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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1474

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA

v .                         Wilson County
                            No. 03 CRS 56886
TERRANCE JERMAINE QUINLAN,
        Defendant.

    Appeal by defendant from a judgment dated 23 March 2006 by Judge Clifton W. Everett, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 24 May 2007.

    Attorney General Roy Cooper, by Assistant Attorney General, Tina A. Krasner, for the State.

    Jeffrey Evan Noecker for defendant.

    BRYANT, Judge.

    Terrance Jermaine Quinlan (defendant) appeals from a judgment dated 23 March 2006 and entered consistent with a jury verdict finding him guilty of voluntary manslaughter. For the reasons stated herein, we find defendant received a fair trial free from error.

Facts

    The State's evidence tended to show the following: On 12 December 2003, Bettina Edwards, her two-year-old daughter Jada, and Bettina's boyfriend Phillip McIver were at Ms. Edwards' apartment watching a movie together. Mr. McIver responded to a knock at the back door of the apartment. Ms. Edwards initially could not see who was at the door, but could identify the voice of defendant. Defendant and Mr. McIver began to argue and Ms. Edwards went to the back door. While standing at the back door Ms. Edwards began shining a small laser light on the faces of defendant and Mr. McIver as they argued. As the argument ended and defendant began to walk away from the apartment a car parked in the yard began blinking its headlights. Defendant then turned back around and began shooting. Mr. McIver sustained three gunshot wounds, one each to his abdomen, left arm, and left knee, and later died as a result of the gunshot wound to his abdomen.
    Defendant was apprehended near the scene of the shooting, taken into custody and questioned by law enforcement. Initially, defendant invoked his right to remain silent and to speak with an attorney. Defendant later waived his rights and made a statement to investigating officers admitting he shot McIver as he was walking away from Ms. Edwards' residence because he saw a “blue light” or beam pointing toward him and he felt his life was in danger. Defendant presented no evidence at trial.
Procedural History

    On 6 July 2004, defendant was indicted on the charge of first- degree murder. Defendant was tried before a jury at the 20 March 2006 Criminal Session of the Superior Court of Wilson County, the Honorable Clifton W. Everett, Jr. presiding. On 23 March 2006, the jury returned its verdict, finding defendant guilty of voluntary manslaughter. The trial court subsequently entered judgment against defendant, consistent with the jury verdict, and sentenced defendant to an active term of 103 to 133 months imprisonment inthe custody of the North Carolina Department of Correction. Defendant appeals.
_________________________

    Defendant raises the issues of whether the trial court erred in: (I) allowing the State to introduce evidence that defendant had invoked his right to remain silent; and (II) expressing its opinion on the credibility of one of the State's key witnesses.
I

    Defendant first contends the trial court erred in allowing the State to introduce evidence that he had invoked his right to remain silent pursuant to the Fifth Amendment to the United States Constitution. At trial the State elicited, without objection, the following testimony from Detective Glenn Neal:
        Q. And did you read [defendant] his waiver of rights?

        A. Yes, I did.

        . . .

        Q. And that is your signature at the bottom, as well as the Defendant's signature?

        A. Yes, sir.

        Q. And did you witness that Defendant, over there in the white shirt and the tie -- did you witness him sign that piece of paper?

        A. Yes, I did.

        . . .

        Q. And after he read the -- after the Defendant read the waiver of rights and you read the waiver of rights to him, what did -- what did you say and do then?
        A. At that point in time, he stated he did not wish to make a statement. He stated he would like to speak with an attorney.

        Q. Okay. And when someone does that, what do you do?

        A. At that point in time, they invoke their rights, so we cannot ask them any more questions at that point.

        Q. Okay. And what did you do when he invoked his right at that point?

        A. He was taken out of the interview room. He was carried back to what we call Patrol Area. This is an area with three or four desks in it. It's also got a fingerprint machine, which we use to start processing people that we have brought into the Sheriff's Office.

    The North Carolina Supreme Court has addressed a similar situation, holding:
        the exercise of [a defendant's] constitutionally protected rights to remain silent and to request counsel during interrogation may not be introduced as evidence against [a defendant] by the State at trial. However, even when a defendant objects, this constitutional error will not merit a new trial where the State shows that the error was harmless beyond a reasonable doubt. Where, as in this case, a defendant has failed to object, the defendant has the burden of showing that the error constituted plain error, that is, (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.

State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (internal citations omitted).
    Defendant is correct in his assertion that the admission of the testimony regarding the exercise of his right to remain silent was error. Id. However, defendant has not met his burden to showthe admission amounted to plain error. The comments were relatively harmless and the inadmissable evidence came out as Detective Neal was describing the steps he took during the investigation of the case, including the chronology of the interview with defendant. The prosecutor did not emphasize that defendant had exercised his right to remain silent or imply that doing so was an admission of guilt. Further, the evidence of defendant's guilt was substantial and corroborated by a number of eyewitnesses. Given the case at hand, we cannot conclude that the jury would have probably reached a different result if this testimony had been excluded or that defendant did not receive a fair trial. See State v. Alexander, 337 N.C. 182, 194-96, 446 S.E.2d 83, 90-91 (1994). This assignment of error is overruled.
II

    Defendant next argues the trial court erred by expressing its opinion on the credibility of one of the State's key witnesses. It is well established that the trial court “may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2005); see also State v. Fleming, 350 N.C. 109, 125, 512 S.E.2d 720, 732 (1999). This includes expressing any opinion regarding the weight or credibility of any competent evidence presented before the jury. State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1983). This Court must consider the totality of the circumstances in evaluating whether a trial court has expressed an impermissible opinion. Fleming, 350 N.C. at 125, 512 S.E.2d at 732(citing State v. Jones, 347 N.C. 193, 207, 491 S.E.2d 641, 649-50 (1997)). However, “[a] remark by the court is not grounds for a new trial if, when considered in the light of the circumstances under which it was made, it could not have prejudiced defendant's case.” State v. Anderson, 350 N.C. 152, 179, 513 S.E.2d 296, 312 (1999) (citation and quotation omitted).
    Defendant sought to attack Ms. Edwards' credibility by questioning Detective Neal regarding a written statement attributed to Ms. Edwards and written by her mother. At the time of defendant's questioning of Detective Neal evidence had already been admitted that two statements were given to Detective Neal, one written by Ms. Edwards and another written by Ms. Edwards' mother because Ms. Edwards' “handwriting wasn't all that good because of [her] nerves, so [her] mother had to rewrite it.” The wording of the two statements was identical and they were written outside the presence of Detective Neal. The statement written by Ms. Edwards' mother was introduced into evidence by the State without objection. The statement written by Ms. Edwards was never introduced into evidence and Detective Neal denied ever receiving it.
    During defendant's cross-examination of Detective Neal the following occurred:
        Q. Now, is it normal in a murder case to have the eyewitness's mother write the statement for them, in your experience?

        THE COURT: Well, sustained.

        [PROSECUTOR]: Judge, objection. There's no relevance to this.        

        THE COURT: Sustained.
        Q. Were you present when the statement was written by Arlene Sutton?

        A. No, sir, I was not.

        Q. I noticed that the other statements in this case are all signed by the person giving the statement. Is that normal procedure?

        A. Yes.

        Q. Okay. Why is it that Bettina Edwards' signature or initials appear nowhere on this statement?

        THE COURT: Are you going to object?

        [PROSECUTOR]: Yes, sir, Your Honor.

        THE COURT: Sustained.

        Q. Do you consider it to be her statement?

        A. Yes, I do.

        Q. Was her mother there that day?

        A. Yes, she was.

    Defendant contends the trial court erroneously expressed an opinion regarding the credibility of Ms. Edwards by sustaining its own objection to defendant's question as to whether it was “normal in a murder case to have the eyewitness's mother write the statement for them” and then by later asking the State if it was going to object to defendant's question “Why is it that Bettina Edwards' signature or initials appear nowhere on this statement?” We disagree.
    “'The trial court has a duty to control the examination of witnesses, both for the purpose of conserving the trial court's time and for the purpose of protecting the witness from prolonged, needless, or abusive examination.'” Jones, 347 N.C. at 207, 491S.E.2d at 649 (quoting State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995)). Defendant's first question was irrelevant to the matter at hand, and the second question asked for an answer beyond the scope of Detective Neal's knowledge. Neither of the trial court's interjections expressed any opinion as to the credibility of Ms. Edwards. Further, defendant cannot show he was prejudiced by the interjections as he had ample opportunity to attack the credibility of Ms. Edwards during his extensive cross-examination of her regarding her statement and why it had been written and signed by her mother. Additionally, we note the trial judge properly instructed the jury that the law requires the presiding judge to be impartial and that it should not draw any inferences from his rulings, inflections in his voice, expressions on his face, questions asked of any witnesses, or anything else he might have said or done. These assignments of error are overruled.
    No error.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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