State v. Frazier, 1

• Decision Date: 14 April 1971
• Docket Number: No. 1,1
• Parties: STATE of North Carolina v. Jackie Coleman FRAZIER.
• Court: North Carolina Supreme Court

Page 128

180 S.E.2d 128

278 N.C. 458

STATE of North Carolina v. Jackie Coleman FRAZIER.

No. 1.

Supreme Court of North Carolina.

April 14, 1971.

Osborne & Griffin by Wallace S. Osborne, Charlotte, for defendant appellant.

Robert Morgan, Atty. Gen., James L. Blackburn, Raleigh, Staff Atty., for the State.

HUSKINS, Justice:

No constitutional questions are raised on this appeal. Appellant brings forward three assignments of error, but we find it necessary to discuss only one of them, to wit: Did various remarks of the judge in the course of the trial amount to an expression of opinion on the evidence in contravention of G.S. § 1--180?

At the outset we are faced with the fact that oftentimes the printed word does not capture the emphasis and the nuances that may be conveyed by tone of voice, inflection, or facial expression. In Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372, (1918), Mr. Justice Holmes said: 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' Hence we can only read the record and adjudge by reason and deduction whether the remarks assigned as error were so disparaging in their effect that they could reasonably be said to have prejudiced the defendant. State v. Ownby, 146 N.C. 677, 61 S.E. 630 (1908); State v., Carter, 233 N.C. 581, 65 S.E.2d 9 (1951); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968).

G.S. § 1--180 imposes on the trial judge the duty of absolute impartiality. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107 (1959). It forbids the judge to intimate his opinion in any form whatever, 'it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury.' State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). It has been construed to include any opinion or intimation of the judge at any time during the trial which is calculated to prejudice either of the parties in the eyes of the jury. State v. Douglas, 268 N.C. 267, 150 S.E.2d 412 (1966); Everette v. Lumber Company, 250 N.C. 688, 110 S.E.2d 288 (1959). 'Both the courts and those engaged in the active trial practice recognize the strong influence a trial judge may wield over the jury. 'The trial judge occupies an exalted station. Jurors entertain great respect for his 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 the accused or his cause with the jury. G.S. § 1--180. " State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966).

As stated by Mr. Justice Black in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970): 'It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.' To that end '(t)he judge should be the embodiment of even and exact justice. He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance, which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands. Every suitor is entitled to the law to have his cause considered with the 'cold neutrality of the impartial judge' and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged.' Withers v. Lane, 144 N.C. 184, 56 S.E. 855 (1907).

It now becomes our duty to apply these principles to the remarks of the trial court which form the basis of defendant's assignment of error. Each dialogue occurred while the defendant was offering evidence. The first remark was made when defendant Frazier was on the stand and was being examined by his attorney, Mr. Chalmers. The attorney said: 'I hand you here State's Exhibit No. 3 and ask * * * Your Honor, I am sorry, I referred to these Exhibits as State's Exhibits, they are Defendant's Exhibits.' The trial judge replied: 'It's your case. Try it any way you want to.' While this remark was completely gratuitous and unnecessary, we cannot say that, standing alone, it was prejudicial. Nevertheless, when remarks from the bench tend to belittle and humiliate counsel, defendant's case can be seriously prejudiced in the eyes of the jury. See Annotation, Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal, 62 A.L.R.2d 166 (1958).

A moment later, during cross-examination of defendant by the State, the defendant was asked: 'Mr. Frazier, the cross wasn't burning when you got out of the car and put in in the yard, was it, isn't that right?' The defendant answered: 'Suppose you give me a question and I'll answer it.' At this point the court interjected: 'Wait a minute. Let me inform you, Mr. Frazier, don't come out with any short answers in my court.' The defendant now contends that this statement indicated to the jury that the court was antagonistic toward him.

'It is both the right and the duty of the presiding judge to control the examination and cross-examination of witnesses, both for the purpose of conserving the time of the court and for purpose of protecting the witness from prolonged and needless examination.' State v. Mansell, 192 N.C. 20, 133 S.E. 190 (1926). Nevertheless, in doing so the court must not intimate any opinion either of the witness or his credibility. State v. Belk, supra. The remark of the court here was undoubtedly calculated to impress upon the witness that he should keep in mind the gravity of the situation and control his attitude accordingly. As such, an appropriate admonition was entirely in order. The language used by the judge, although not the wisest choice, is insufficient standing alone to constitute reversible error.

The third remark of which defendant complains occurred when Donald Laughter was being examined by Attorney Chalmers, who represented all five defendants. Laughter had denied placing or burning a cross on the night in question. Attorney Chalmers then asked: 'Mr. Laughter, have you at any time, anywhere * * *' The court interrupted, saying: 'Mr. Chalmers, we are only trying him for one place.' Defendant contends this remark clearly implied to the jury that defendants had burned other crosses at other times and places and was highly prejudicial. The State contends, on the other hand, that the court was only trying to keep the examination within the bounds of relevancy. In our view, the defendant's position is more consonant with reason. Its import may well have found its mark in the minds of the jurors. Upchurch v. Funeral Home, 263 N.C. 560, 140 S.E.2d 17 (1965). See Annotation, Prejudicial effect of trial judge's remarks, during criminal trial, disparaging accused, 34 A.L.R.3d 1313 (1970).

The fourth incident occurred during the direct examination of Betty Lou Dossett wife of defendant John R. Dossett. In response to a question by defense counsel, she testified that her husband was at home at 5:30 p.m. on 30 December 1966 'and he did not depart from the residence either after 5:30 p.m. or 12 o'clock midnight.' The court interjected: 'You don't mean he's still there?'

While this remark was probably intended as humorous, it tends to ridicule the witness and impair her credibility in the eyes of the jury. G.S. § 1--180 prohibits any ridicule that casts aspersions on the testimony of a witness and thus damages his credibility. 'It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so * * *.' State v. Horne, 171 N.C. 787, 88 S.E. 433 (1916). Even so, the law requires such examinations to be conducted with care and in a manner which avoids prejudice to either party. 'If by their tenor, their frequency, or by the persistence of the trial judge they tend to convey to the jury in any manner at any stage of the trial the 'impression of judicial leaning,' they violate the purpose and intent of G.S. § 1--180 and constitute prejudicial error.' State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). Accord State v. Lea, 259 N.C. 398, 130 S.E.2d 688 (1963); State v. Peters, 253 N.C. 331, 116 S.E.2d 787 (1960); Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); State v. McRae, 240 N.C. 334, 82 S.E.2d 67 (1954).

The fifth comment by the court to which exception is taken occurred during the examination of the same witness a few minutes later. Attorney Chalmers elicited the same testimony from the witness, I.e., that her husband was at home all evening. The State objected on grounds of repetition and the objection was sustained. Mr. Chalmers then inquired: 'May I get her answer in the record your Honor?' The court replied: 'You may not. It's been answered three times.' An examination of the record discloses that the court was correct. The answer of the witness is indeed in the record three times. Since the court must be left free to keep the examination of witnesses under control and within the bounds of lawful, relevant, and non-repetitive inquiry, we hold that this remark was not error.

As already noted, some of the judge's comments run counter to the intent and meaning of G.S. § 1--180. Some do not. Any one of them standing alone, even when erroneous, might not be regarded as prejudicial. But when all the incidents are viewed in light of their cumulative effect upon the jury, we are constrained to hold that the cold neutrality of the law was breached to the prejudice of this defendant. The content, tenor, and frequency of the remarks, and the persistence on the part of the trial judge portray an antagonistic attitude toward the defense and convey to the jury the impression of judicial leaning prohibited by G.S. § 1--180. This requires a new trial.

We have examined the remaining assignments of error and fined nothing of sufficient import to merit discussion.

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