State v. Austin

• Decision Date: 06 October 2020
• Docket Number: No. COA19-1110,COA19-1110
• Citation: 849 S.E.2d 307
• Parties: STATE of North Carolina v. John Fitzgerald AUSTIN
• Court: North Carolina Court of Appeals

849 S.E.2d 307

STATE of North Carolina

v.John Fitzgerald AUSTIN

No. COA19-1110

Court of Appeals of North Carolina.

Filed: October 6, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Chris D. Agosto Carreiro, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

BRYANT, Judge.

Where the trial court's instructions to the jury left the determination of whether defendant John Fitzgerald Austin had committed an assault entirely for the jury, there was no impermissible expression of opinion by the trial court. Accordingly, we hold no error.

On 27 August 2018, a Forsyth County grand jury indicted defendant on charges of assault on a female and habitual misdemeanor assault under N.C. Gen. Stat. § 14-33.2. The matter came on for trial during the 6 May 2019 session of Forsyth County Superior Court before the Honorable L. Todd Burke, Judge presiding.

The evidence presented at trial tended to show the following. Defendant was in a dating relationship with Claudette Little (Claudette) and had lived with her since January 2017. On the evening of Saturday, 7 January 2018, Claudette and her cousin went to a night club/lounge to support Claudette's younger brother, who was the DJ that night. When Claudette left her residence, defendant was asleep. Shortly after she arrived at the club, Claudette received a phone call from defendant. Claudette informed defendant where she was using her cell phone's "face-chat" to show defendant her surroundings. Defendant repeatedly indicated that "he didn't care, you know, what [she] was doing" and accused her of "doing something." Claudette invited defendant to come out and join her. An hour later, defendant appeared at the lounge with a friend.

Claudette joined defendant and she noted that he appeared to be in "a daze"—he was just "sitting looking into space .... He was somewhere else. Like he was just on something." Seeing defendant in a daze, "[Claudette] didn't want to deal with it, whatever it was." Claudette told defendant's friend not to bring defendant back to her residence that night. Defendant asked if Claudette was leaving with him and Claudette responded that she was not going anywhere with him that night. Defendant left the lounge half an hour after he arrived. Claudette remained at the club until it closed at 2:00 am.

Claudette's cousin drove her home at 2:30 am with her brother following behind "[just] to see if everything was okay." Though defendant was not at Claudette's apartment when they arrived, Claudette's brother and cousin stayed with Claudette for an hour. "I told them, I say, ‘I'm okay. [Defendant]’s not -- if he ain't in here by now, he's not coming." So, her cousin and brother left, and Claudette went to bed.

Claudette awoke to find defendant standing over her, yelling.

A. He was like, "oh, you like to go to clubs." And then he said, ‘oh, yeah, you like making Jell-O shots. You like this.’ I mean, he was saying so much to me." ...

....

And I kept on saying, "what are you talking about? Why are you doing this? And then he just took his belt off and he wrapped it around his hand, saying, "you want to know what I'm talking about, you want to know what I'm talking about," (demonstrating).

Q. What happened then?

A. And, you know, I just went to leap for him and we got to struggle. He took the -- he hit me upside the head with the belt on. His fist hit me. I fell back on the bed like that (demonstrating). And then he got over top of me and say, "you think I'm playing, you think I'm playing."

Claudette testified that defendant struck the right side of her face with his fist. Defendant then laid on the bed, told Claudette to take off her clothes and "get on top of him." On his demand, Claudette performed fellatio on defendant.

A. Then after that, he -- I was -- started crying. He took the belt from around his hand and put it around his neck.

....

He put the belt around his back [sic] and he pulled it, and he pulled it. And I kept crying. And I said, "don't, don't." And he said, "I'll just kill myself, just kill myself." And I was like, "No. Please, don't, don't do this. I love you. Don't do this. Don't do this." I kept crying and crying right. Then he did like this (demonstrating) and he said, "Yeah, that's what I thought."

Q. Why were you saying that to him if he had just hit you previously?

A. Anything so that he -- to keep him calm. I didn't want him to keep hitting on me. I didn't want him -- I didn't know what was going on, what he was doing. Anything to keep him – I just cried "I love you. Don't do this. Don't do this." I cried. Cause I didn't know if he was getting a reaction from me, to see if I still cared or not.

Q. How many times did he hit you, to that point?

A. I can't even count them.

Claudette lay down next to defendant and waited for him to fall asleep before she got up, got dressed, and left the apartment.

At the close of the State's evidence, defendant moved to dismiss the charge against him and indicated that he would not present any evidence. The trial court denied the motion to dismiss.

The trial court instructed the jury on the charges of assault on a female and habitual misdemeanor assault. The court soon adjourned for the day. The next morning, at the jury's request, the court again instructed the jury on the charges. Thereafter, the jury returned guilty verdicts against defendant on both charges. Defendant pled guilty to attaining habitual felon status. The trial court entered a consolidated judgment against defendant on the charges of assault on a female, habitual misdemeanor assault, and attaining habitual felon status. Defendant was sentenced to an active term of 103 to 136 months. Defendant appeals.

_________________________

On appeal, defendant argues the trial court erred by (1) communicating to the jury during its jury instructions that it believed an assault had occurred and (2) responding to a jury question regarding a conflict in the State's evidence by instructing the jury to accept the trial court's assertion as to when an alleged prior conviction had occurred. We disagree.

Standard of Review

Before this Court, defendant contends that the trial court violated a statutory mandate, codified within N.C. Gen. Stat. §§ 15A-1222 and 15A-1232, by improperly expressing its opinion to the jury. However, before the trial court, defendant failed to raise a challenge to the court's jury instructions.

The 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. 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. See State v. Ashe , 314 N.C. 28, 331 S.E. 2d 652 (1985) ; State v. Bryant , 189 N.C. 112, 126 S.E. 107 (1925) (decided under former N.C.G.S. § 1-180 ).

State v. Young , 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). Thus, defendant is not precluded from raising these arguments before this Court.

It is well settled that a trial judge may not express an opinion as to the guilt or innocence of a criminal defendant, the credibility of a witness, or any other matter which lies in the province of the jury. G.S. 1-180 ; State v. Freeman , 280 N.C. 622, 187 S.E.2d 59 (1972) ; State v. Owenby , 226 N.C. 521, 39 S.E.2d 378 (1946). An expression of judicial leaning is absolutely prohibited regardless of the manner in which it is expressed, and this is so even when such expression of opinion is inadvertent.

State v. Atkinson , 278 N.C. 168, 179 S.E.2d 410 (1971).

State v. Hudson , 295 N.C. 427, 434-35, 245 S.E.2d 686, 691 (1978).

Even so, every such impropriety by the trial judge does not result in prejudicial error. Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. State v. Brady , 299 N.C. 547, 264 S.E. 2d 66 (1980) ; State v. Greene , 285 N.C. 482, 206 S.E.2d 229 (1974). Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results. State v. Yellorday , 297 N.C. 574, 256 S.E.2d 205 (1979).

State v. Blackstock , 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). "In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized." State v. Larrimore , 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (citations omitted) (citing Blackstock , 314 N.C. 232, 333 S.E.2d 245 ); see also State v. Summey , 228 N.C. App. 730, 735-36, 746 S.E.2d 403, 408 (2013) (quoting Blackstock , 314 N.C. at 236, 333 S.E.2d at 248 ).

Analysis

Defendant argues that the trial court violated General Statutes, sections 15A-1222 and 15A-1232. Pursuant to section 15A-1222 ("Expression of opinion prohibited"), "[t]he judge 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 (2019). Pursuant to section 15A-1232 ("Jury instructions; explanation of law; opinion prohibited"), "[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence." Id. § 15A-1232 ; see also State v. Cuthrell , 235 N.C. 173, 174, 69 S.E.2d 233, 234 (1952) ("The rule is that the trial court in charging a jury may not give an instruction which assumes as true the existence or nonexistence of any material fact in issue." (citations omitted)).

In Young , 324 N.C. 489, 380 S.E.2d 94, the defendant argued that a trial court's statements before a jury amounted to an...