State Carolina v. Herrin

• Decision Date: 21 June 2011
• Docket Number: No. COA10–1446.,COA10–1446.
• Citation: 711 S.E.2d 802
• Parties: STATE of North Carolinav.Tony Allen HERRIN, Defendant.
• Court: North Carolina Court of Appeals

711 S.E.2d 802

STATE of North Carolina

v.Tony Allen HERRIN, Defendant.

No. COA10–1446.

Court of Appeals of North Carolina.

June 21, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 20 May 2010 by Judge Eric L. Levinson in Gaston County Superior Court. Heard in the Court of Appeals 25 April 2011.

Roy Cooper, Attorney General, by Barry H. Bloch, Assistant Attorney General, for the State.

Michael E. Casterline, for defendant-appellant.

MARTIN, Chief Judge.

Defendant Tony Allen Herrin appeals from a judgment entered upon a jury verdict finding him guilty of felonious malicious use of an explosive or incendiary device or material in violation of N.C.G.S. § 14–49(a).

The evidence presented at trial tended to show that, in the early evening hours of 19 July 2009, defendant was visiting with some of the other residents in his mobile home community in Gastonia, North Carolina, when Julie Davenport rode towards the group on her child-sized bicycle. Mrs. Davenport and her husband, Daniel Davenport, lived next-door to defendant in the mobile home community, and had been defendant's neighbors since he moved into the community three years prior. According to defendant, he had a good relationship with the Davenports, and testified that, earlier that day, at Mr. Davenport's request, defendant did some brake repair work on Mr. Davenport's vehicle, and then “went halfers [sic]” with Mr. Davenport on a “crack rock.”

As Mrs. Davenport peddled her small bicycle toward the gathering of neighbors, defendant approached Mrs. Davenport, grabbed the bicycle, pulled it out from under her, and began “playing tug of war with [her] bicycle.” Although defendant said he and Mrs. Davenport were “just pulling, playing around,” as he claimed they did every day, Mrs. Davenport suggested that defendant was not being playful and that he “was cussing all the cuss words” at her as he tugged on her bicycle. When Mr. Davenport, who was outside of his mobile home at the time, saw this interaction between his wife and defendant, Mr. Davenport “started in that direction to assist [his] wife, because [he] knew she was in trouble.” The struggle between defendant and Mrs. Davenport continued and, according to Mr. Davenport, as defendant tugged on the bicycle, he “kept dragging [Mrs. Davenport] towards the creek,” which ran through a ditch that was in close proximity to their homes, until Mrs. Davenport “couldn't hold [her] strength anymore and [she] had to let [the bicycle] go.” When Mrs. Davenport let go of the bicycle, defendant “fell back into the creek with the bicycle on top of him, and he hit a stump on this side of his head and made his head bleed.” Defendant then emerged from the creek and climbed out of the ditch. By this time, Mr. Davenport had made his way over to defendant. Mrs. Davenport then took her bicycle and returned home. Although there is conflicting testimony about the exchange that followed between defendant and Mr. Davenport, the testifying witnesses appear to agree that, at some point during the exchange, Mr. Davenport put one or both of his hands around defendant's neck and, in response, defendant punched Mr. Davenport in the jaw. Mr. Davenport then left defendant and returned home.

The Davenports testified that, shortly thereafter, they looked outside and saw defendant swinging a flat-bladed shovel at a neighbor's dog and at the Davenports' cats in the yard between their home and defendant's home. Believing that defendant was trying to kill their cats, Mr. Davenport went outside and grabbed his shovel to confront defendant and Mrs. Davenport grabbed a steel or metal-tined rake and followed behind her husband. Although defendant and his witnesses testified that the Davenports were the first to arm themselves with yard tools before defendant approached them with his shovel in hand, all parties agree that, when the three met, they began “dueling with the shovels and rakes” for about ten minutes, with “shovels and rakes going everywhere.”

During the course of the altercation, the three alternately wielded their gardening implements at each other “wildly,” in what was described as a “full-fledged massacre.” At one point, Mrs. Davenport swung the rake so that the metal tines went into [defendant's] arm and, when Mrs. Davenport “went to yank it out, [the tines] were stuck in defendant's arm, so the rake broke” and left “four big old holes” in defendant's arm, “pull[ing] the meat out of the holes.” The Davenports then knocked the shovel out of defendant's hands. Shortly thereafter, Mr. Davenport said that defendant—who had been heard to say that he “would light people up” on several occasions—said he was going to “burn[ ] you all.” Then, according to his own testimony, defendant took a few steps back to his house and grabbed a cut off aluminum Bud Lite can that was “full of gas” and also “had a little bit of two-cycle oil in it,” which defendant had been using to start his car. “[B]ecause [he] knowed [sic][he] had [gas in] there because [he] was working on [his] car there,” defendant testified that he “slung that gas on [Mr. Davenport]” and “doused [Mr. Davenport] straight on in [his] face” and down his back. Then, defendant struck his lighter three times and Mr. Davenport “was, puff, on fire.” A few seconds later, after defendant ignited the material he had thrown on Mr. Davenport, according to Mr. Davenport's testimony, defendant “ran like a bitch all the way, way down past his house.” Mr. Davenport then jumped in the creek to put out the fire, was taken by ambulance to the hospital, and was then transferred to the Chapel Hill Burn Center, where he was treated and released two or three days later.

Defendant was indicted for maliciously injuring Mr. Davenport by using an explosive or incendiary device or material in violation of N.C.G.S. § 14–49(a). The matter was tried before a jury in Gaston County Superior Court. Defendant moved to dismiss the charge at the close of the State's evidence and at the close of all of the evidence, which the trial court denied. On 20 May 2010, the jury found defendant guilty and, on the same day, the trial court entered its judgment upon the jury's verdict and sentenced defendant to a minimum term of 133 months and a maximum term of 169 months imprisonment. In its order, the trial court included the following additional recommendation: “This sentence shall not and can not [sic] be served with any other sentence.” Defendant gave timely written notice of appeal.

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I.

Defendant first contends the trial court erred by instructing the jury that “gasoline is an incendiary material,” because defendant asserts that he had a “constitutional right” to have the jury determine “whether the gas mixture that he threw on Daniel Davenport was an incendiary material.” However, our review of the record shows that, at trial, defendant did not object to this instruction on the grounds he now advances to this Court. Instead, defendant only requested that the trial court instruct the jury that gasoline is an incendiary material or device, in order to adhere more closely to the language of N.C.G.S. § 14–49(a), which provides that a person is guilty of the Class D felony of malicious use of an explosive or incendiary when he or she “willfully and maliciously injures another by the use of any explosive or incendiary device or material.” N.C. Gen.Stat. § 14–49(a) (2009) (emphasis added). We do not find that defendant challenged this portion of the trial court's instruction on the basis of the arguments advanced in his brief. Moreover, defendant does not argue that, in the absence of an objection, the trial court committed plain error by instructing the jury that “gasoline is an incendiary material.” Therefore, “[s]ince defendant did not object at trial or allege plain error, he has failed to properly preserve this issue for appeal.” See State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996). Accordingly, we overrule this issue on appeal.

II.

Defendant next contends the trial court committed prejudicial error in violation of N.C.G.S. § 15A–1222 when the judge laughed in open court and in the presence of the jury upon hearing Mr. Davenport's testimony that defendant “ran like a bitch all the way, way down past his house.” Although defendant failed to raise an objection to the judge's outburst at trial, “[t]he statutory prohibitions against expressions of opinion by the trial court contained in N.C.G.S. § 15A–1222 and N.C.G.S. § 15A–1232 are mandatory.” See State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). Thus, “[a] defendant's failure to object to alleged expressions of opinion by the trial court in violation of those statutes does not preclude his raising the issue on appeal.” Id. Accordingly, contrary to the State's suggestion, we need not confine our review of this issue to plain error, but, after considering the merits of defendant's arguments, we conclude defendant suffered no prejudice as a result of the trial court's injudicious conduct.

“Every person charged with crime ... is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.” State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951). “The responsibility for enforcing this right necessarily rests upon the trial judge. He should conduct himself with the utmost caution in order that the right of the accused to a fair trial may not be nullified by any act of his.” Id. Thus, in accordance with N.C.G.S. §§ 15A–1222 and 15A–1232, the trial judge “must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury.” Id.; see also State v. Herbin, 298 N.C. 441, 446–47, 259 S.E.2d 263, 267 (1979) (“A trial judge cannot express an opinion on the evidence in the presence of the jury at any stage of the trial. [N.C.G.S. §§ 15A–1222 and 15A–1232] repealed and replaced [N.C.G.S. § ] 1–180 effective 1 July 1978. The new...