McNeill v. Durham County ABC Bd.

• Decision Date: 02 June 1988
• Docket Number: No. 524PA87,524PA87
• Citation: 368 S.E.2d 619,322 N.C. 425
• Parties: Leroy D. McNEILL, Jr. v. DURHAM COUNTY ABC BOARD and Ronald D. Allen.
• Court: North Carolina Supreme Court

Page 619

368 S.E.2d 619

322 N.C. 425

Leroy D. McNEILL, Jr. v. DURHAM COUNTY ABC BOARD and Ronald D. Allen.

No. 524PA87.

Supreme Court of North Carolina.

June 2, 1988.

McMillan, Kimzey, Smith & Roten by Russell W. Roten, Duncan A. McMillan, and Katherine E. Jean, Raleigh, for plaintiff.

Haywood, Denny, Miller, Johnson, Sessoms & Patrick by George W. Miller, Jr., and E. Elizabeth Lefler, Durham, for defendants.

Jeff Erick Essen, Chapel Hill, and William G. Simpson, Jr., Greensboro, for North Carolina Civil Liberties Union Legal Foundation, amicus curiae.

FRYE, Justice.

After reviewing the assignments of error brought forward by both the plaintiff and defendants, we find that the Court of Appeals erred in holding that the cumulative effect of extraneous remarks made by the trial judge in no way deprived defendants of a fair and impartial trial. Having found that the cumulative effect of these remarks was prejudicial to the defendants, we order a new trial.

Plaintiff instituted this action against defendant Durham County ABC Board and defendant Ronald D. Allen, an ABC enforcement officer who is an agent of defendant Durham County ABC Board. Plaintiff alleged Allen unlawfully and maliciously assaulted him and used unnecessary and excessive force while apparently attempting to serve a warrant at the home of plaintiff's mother. The evidence showed that the defendant Durham County ABC Board suspected plaintiff's mother of operating an illegal "liquor house." Plaintiff's evidence further showed that when plaintiff did not cooperate with defendant Allen's efforts to search the premises for intoxicating beverages, Allen struck him over the head with a flashlight. Defendants denied the import of plaintiff's allegations and asserted several different defenses. Defendant Allen counterclaimed, alleging that plaintiff assaulted him. The Board stipulated that defendant Allen was acting within the scope of his employment.

At the conclusion of plaintiff's evidence, defendant Board moved for a directed verdict on both the liability and punitive damages issues on the grounds of governmental immunity. Both motions were denied. At the close of all the evidence and after deliberation, the jury found that defendant Allen committed an assault and battery on plaintiff with excessive force, and that plaintiff did not assault Allen. The jury awarded plaintiff $105,500 in compensatory damages and $7,000 in punitive damages, including $5,000 from defendant Board and $2,000 from defendant Allen. Judgment was entered on the verdict. Defendants appealed the verdict and award to the Court of Appeals.

The Court of Appeals held there was no error in the trial or judgment against defendant Allen. However, the Court of Appeals held that governmental immunity attached to the investigative and enforcement activities of local ABC Boards and therefore no action could be brought against them when acting in this capacity unless their immunity had been waived by the purchase of liability insurance. That court then remanded the case to the trial court with instructions to determine whether the Board had in fact purchased liability insurance and if it had not, to set aside the judgment against it; but if defendant Board had such insurance, the award was to be limited to the amount of the coverage and the judgment was to so provide.

We granted the petitions of both parties pursuant to N.C.G.S. § 7A-31 to review the decision of the Court of Appeals.

Defendants, in their first assignment of error, contend that the Court of Appeals erred by not granting them a new trial because of extraneous remarks made by the trial judge which exhibited to the jury the court's antagonism towards the defendants and their cause. We agree that the extraneous statements of the trial judge, in their totality, gave the appearance of antagonism and therefore prejudiced the defendants and denied them a fair and impartial trial. See Board of Transportation v. Wilder, 28 N.C.App. 105, 220 S.E.2d 183 (1975).

Our review is limited to the record. We are mindful of the difficulty faced in attempting to capture in the printed word "the emphasis and the nuances that may be conveyed by tone of voice, inflection, or facial expressions" inherent in all speech. State v. Frazier, 278 N.C. 458, 460, 180 S.E.2d 128, 130 (1971). Any determination of prejudice then must be premised upon reason and deduction; that is, "whether the remarks assigned as error were so disparaging in their effect that they could reasonably be said to have prejudiced the defendant[s]." Id.

Important in our review of the record are the circumstances involved in this particular trial. The circumstances surrounding this trial concerned the sale and distribution of intoxicating beverages from the home of plaintiff's mother. The trial had the effect of positioning the defendant ABC Board and its agent, as enforcer of alcoholic beverage control laws, against plaintiff and his mother, suspected violators of such laws. Any intimation by the trial court aligning itself with either side was certain to have effect in this environment. Against this backdrop, defendants contend that some thirty-seven remarks or commentaries were made by the trial judge to jurors, witnesses, and defense counsel, which when viewed in toto were prejudicial to them. Examples of the trial court's remarks support that contention and evidence the irreparable harm to defendants' right to a fair and impartial trial.

In the opening remarks to the jury pool, the trial judge stated: "I regret to say that the ABC Board has refused to provide any free samples, so we'll be trying the case without the benefit of that sort of evidence. (General laughter.) They could have gotten right popular if they'd seen it the other way." When several members of the jury pool stated they knew defendant Allen, the court inquired, "[w]hat did y'all do, just meet him while I was talking? (General laughter.) Well, Mr. Allen, the way you know these folks, you ought to run for Congress."

The trial court made additional remarks as the trial progressed. In one exchange the court interrupted defense counsel's examination of a witness. The court interposed, "[w]hat in the world has that got to do with this case?" When defense counsel stated, "I'm gonna' move on--I'm gonna' move on," the court responded, "I hope so." In yet another exchange during defense counsel's cross-examination of a witness, the court interrupted, "I'm bored with the repetition, frankly, and I think everybody else is. Let's get on to something that's got something to do with this case without repeating other things." Defense counsel asked if he might approach the bench. The court replied, "[n]o, sir, not if you just want to tell me something I already know; that's what you're doing now.... But for the love of Mike, let's get down to something new."

After denying defense counsel's request for a recross-examination of a character witness for plaintiff, the trial judge exhorted, "I'm not going to do that.... I don't know why we're getting so torn to pieces by a little liquor and gambling going on." The trial judge later asked an expert medical witness for plaintiff if the witness knew a certain doctor who was an "old drinking buddy of mine." The record reflects that general laughter ensued.

The same disaffection seemed not to be visited upon plaintiff's witnesses. On one occasion, in an effort to lay the foundation for an award of damages against defendants, an expert witness for plaintiff testified to the hearing loss of plaintiff apparently resulting from the blow perpetrated by defendant Allen. When plaintiff's counsel made a request that this witness be excused, the request was granted and the trial court stated, "[t]hank you for being here, sir. I enjoyed--I enjoyed your explanation." When viewed against the ostensible hostility exhibited against defendants, such deference may be read to suggest an alignment with plaintiff's cause.

We note the esteemed station occupied by our state's trial judges. Because of this esteem, "jurors entertain great respect for [a judge's] opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice" any litigant in his courtroom. State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951).

Throughout the trial, the court maintained an atmosphere of levity. The record reveals episodic laughter sufficient in time and manner to warrant notation by the court reporter. The trial judge's comments,...