State v. Freeman

• Decision Date: 15 March 1972
• Docket Number: No. 25,25
• Citation: 187 S.E.2d 59,280 N.C. 622
• Parties: STATE of North Carolina v. Denny Junior FREEMAN.
• Court: North Carolina Supreme Court

Page 59

187 S.E.2d 59

280 N.C. 622

STATE of North Carolina v. Denny Junior FREEMAN.

No. 25.

Supreme Court of North Carolina.

March 15, 1972.

Atty. Gen. Robert Morgan and Associate Attorney Edwin M. Speas, Jr., Raleigh, for the State.

Walter H. Oakey, Jr., Hertford, for defendant.

LAKE, Justice.

The defendant is not entitled to a new trial by reason of the failure of the record to show a ruling by the trial court upon a motion prepared and filed by the defendant, himself, for a change of venue, this being his Assignment of Error No. 1. Prior to the filing of this document, competent, experienced counsel was appointed to represent the defendant and has represented him diligently at all stages of this proceeding. The motion was prepared and filed without the knowledge of the defendant's counsel. Upon receipt of the document, the presiding judge wrote the defendant, with a copy to his counsel, advising him that he had court-appointed counsel, that he should communicate with his counsel at once and that any motions 'that are to be made can be made through him.' The motion for change of venue was not renewed.

Thereafter, at the defendant's arraignment, the court, prior to ordering the drawing of a special venire from the Chowan County jury box, inquired, 'Is there anything before I proceed with this order?' The defendant's counsel replied, 'No, Sir, we are ready.' The order for the special venire was thereupon entered and the trial of the defendant proceeded.

The defendant's contention, in his self-prepared motion, was that the deceased, a resident of Edenton, had many friends therein, whereas the defendant was from 'out of town,' and a newspaper, circulated in the Town of Edenton, and radio broadcasts had contained vivid accounts of the incident, which would prevent the selection of a fair jury. The granting of a motion for change of venue on account of local prejudice rests in the discretion of the trial court. State v. Ray, 274 N.C. 556, 568, 164 S.E.2d 457; State v. Allen, 222 N.C. 145, 22 S.E.2d 233. There is nothing whatever in the record to indicate abuse of discretion if, indeed, the motion filed by the defendant should not be deemed waived or withdrawn by his counsel. Proceeding with the trial was, in effect, a denial of the motion. Nothing in the record indicates that the defendant exhausted that peremptory challenges allowed him by law in the selection of the jury.

Assignments of Error 2, 3 and 5 are to questions directed by the court to witnesses for the State and to the defendant as a witness in his own behalf, the contention being that thereby the court indicated to the jury an opinion that the defendant was guilty and reflected upon his credibility. The defendant concedes that the questions would not have been improper had they been asked by the solicitor.

It is elementary that it is error for the trial judge to express or imply, in the presence of the jury, any opinion as to the guilt or innocence of the defendant, or as to any other fact to be determined by the jury, or as to the credibility of any witness. It is immaterial how such opinion is expressed or implied, whether in the charge of the court, in the examination of a witness, in the rulings upon objections to evidence or in any other manner. G.S. § 1--180; State v. Atkinson, 278 N.C. 168, 177, 179 S.E.2d 410; State v. Belk, 268 N.C. 320, 150 S.E.2d 481; State v. Douglas, 268 N.C. 267, 271, 150 S.E.2d 412; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378. It is equally clear that, as the defendant here concedes, the trial judge may direct questions to a witness for the purpose of clarifying his testimony and promoting a better understanding of it. The rule with reference to such questions by the court is thus stated by Justice Huskins in State v. Colson, 247 N.C. 295, 308, 163 S.E.2d 376, 385, cert. den., 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780:

'Defendant assigns as error certain questions put to witnesses by the trial judge during the trial. The Court of Appeals found no merit in this assignment, and we agree. '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. Such examinations should 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. McRae, 240 N.C. 334, 82 S.E.2d 67; Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180; State v. Peters, 253 N.C. 331, 116 S.E.2d 787; State v. Lea, 259 N.C. 398, 130 S.E.2d 688. Even so, this Court has said that 'judges do not preside over the courts as moderators, but as essential and active factors or agencies in the due and orderly administration of justice. It is entirely proper, and sometimes necessary, that they ask questions of a witness so that the 'truth, the whole truth, and nothing but the truth' be laid before the jury.' Eekhout v. Cole, 135 N.C. 583, 47 S.E. 655. We have examined the questions by the judge to which exception was taken, and in our opinion no prejudice resulted from them. The questions served only to clarify and promote a proper understanding of the testimony of the witnesses and did not amount to an expression of opinion by the judge. State v. Carter, 233 N.C. 581, 65 S.E.2d 9; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1.'

It is, of course, immaterial upon this point that it was not the motive of the trial judge to convey any opinion of his own to the jury, or that his expression or intimation of such opinion was inadvertent. State v. Lea, 259 N.C. 398, 130 S.E.2d 688. Upon appeal, we must examine such questions or comments by the court with care to see if a juror could reasonably infer therefrom that the judge was intimating an opinion as to the credibility of the witness or as to any fact to be determined by the jury. If so, the defendant must be given a new trial. Much depends upon tone of voice and facial expressions not discoverable in the printed record. The trial judge must be constantly alert to avoid the expression of his opinion in any manner whatever.

It is the duty of the trial judge, in his charge to the jury, to review the evidence to the extent necessary to apply the law thereto. He must also rule upon the motions, if any, of the defendant for a judgment of nonsuit. Obviously, in order to perform these duties, the judge must hear and understand the answers given by a witness to questions propounded by counsel. He may, with care, propound questions of his own to a witness for this purpose.

We have carefully examined the thirteen questions propounded by the court to the State's first witness, Tom White, to each of which the defendant took an exception. Each was designed to clarify the testimony of this witness as to the location of the witness, the defendant and Smith at the time of the firing of the shots about which the witness had testified. We find nothing therein which could reasonably be construed as intimating any opinion by the court concerning these matters, the credibility of the witness or the guilt of the defendant. Several of these questions were the result of unclear answers by the witness to a previous question by the court.

Similarly, the five questions which the court asked the State's witness Grandy were designed to ascertain the respective positions of the defendant and Smith with reference to the poolroom door at the time of the shooting, which this witness had testified he observed. Nothing in the record before us indicates that a juror could reasonably have inferred from any of these questions, or from all of them, that the judge was expressing an opinion as to these facts, the credibility of the witness or the guilt of the defendant.

The defendant also excepts to nine questions directed by the court to the defendant, himself, when testifying in his own behalf. Three of these were propounded by the court following objections by the solicitor to questions asked by defendant's counsel. Their purpose was to elicit information which would enable the court to rule properly upon the objection. These questions were entirely proper. Another question was to clarify a simple, affirmative answer to a question asked in the alternative. Four others were to clarify the defendant's ambiguous answers to questions by the solicitor concerning a prior conviction on the charge of assault with a deadly weapon. The remaining question appears to have been to enable the court to make an accurate note concerning the defendant's testimony as to his reason for following Smith out of the poolroom. We find nothing in these questions which could reasonably be deemed by a juror to imply an opinion by the court as to the defendant's credibility or guilt, or as to any fact to be determined by the jury.

The defendant also takes exception to ten rulings of the trial court sustaining the solicitor's objections to questions propounded to the defendant on direct examination. The defendant assigns these rulings as error, not because of any present disagreement as to the competency of the evidence sought to be introduced, but as reflections upon the credibility of the defendant and indications of an opinion of the...