State v. Greene

• Decision Date: 01 July 1974
• Docket Number: No. 90,90
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Launa Ionia Hargett GREENE and Douglas Donald Donnell.

Page 229

206 S.E.2d 229

285 N.C. 482

STATE of North Carolina v. Launa Ionia Hargett GREENE and Douglas Donald Donnell.

No. 90.

Supreme Court of North Carolina.

July 1, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood for the State.

Comer & Dailey by John F. Comer, Greensboro, for defendant appellants.

BRANCH, Justice.

Defendants assign as error the denial of their motions for preliminary hearings upon warrants and bills of indictment charging each of them with kidnapping, conspiracy to commit murder and murder.

Whether an accused is entitled to a preliminary hearing as a matter of right was considered in the case of State v. Hargett, 255 N.C. 412, 121 S.E.2d 589. There, Justice Moore speaking for the Court stated:

'. . . A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction. 'We have no statute requiring a preliminary hearing, nor does the State Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing.' State v. Hackney, 240 N.C. 230, 237, 81 S.E.2d 778, 783. See also State v. Doughtie, 238 N.C. 228, 232, 77 S.E.2d 642; State v. Cale, 150 N.C. 805, 808, 63 S.E. 958. If defendant was at a disadvantage in preparing for trial through ignorance of the nature of the evidence against him, ample remedies were available to him. He might have obtained a hearing at any time by petition for Habeas corpus. In fact, he requested and obtained a bill of particulars. The ruling on the motion was proper.'

This Court has consistently adhered to the principles stated in Hargett. State v. Harrington, 283 N.C. 527, 196 S.E.2d 742; State v. Foster, 282 N.C. 189, 192 S.E.2d 320; State v. Howard, 280 N.C. 220, 185 S.E.2d 633; Gasque v. State, 271 N.C. 323, 156 S.E.2d 740.

We have carefully considered defendants' arguments that we should change this well recognized rule because it contravenes modern notions of due process and fair trial. We do not agree. There are ample provisions in our system of criminal procedure and practice to enable an accused to prepare for his defense without aid of a preliminary hearing. Further, defendants fail to show that they were taken by surprise or that their defense was prejudiced by the Court's ruling.

This assignment of error is overruled.

By Assignments of Error Numbers 3, 4 and 12 defendants contend that the trial judge violated the provisions of G.S. § 1--180 by expressing opinions and by unduly restricting their right of cross-examination.

G.S. § 1--180 provides:

'Judge to explain law, but give no opinion on facts.--No judge, in giving a charge to the petit jury in a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. He shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided the judge shall give equal stress to the State and defendant in a criminal action.'

The duty of the trial judge to abide by the provisions of former § 535 Revisal of 1905, now substantially codified as G.S. § 1--180 was eloquently stated by Justice Walker in the case of Withers v. Lane, 144 N.C. 184, 56 S.E. 855:

'. . . The 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 by 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. . . .'

The provisions of G.S. § 1--180 may be violated at any stage of the trial by comments on the testimony of a witness by remarks which tend to discredit a witness, by imbalancing the evidence in the charge to the jury or by any other means which intimates an opinion of the trial judge in a manner which would deprive an accused of a fair and impartial trial before the jury. State v. Belk, 268 N.C. 320, 150 S.E.2d 481; State v. Douglas, 268 N.C. 267, 150 S.E.2d 412. However, in the exercise of his duty to supervise and control the course of a trial so as to insure justice for all parties, the Court may interrogate a witness for the purpose of clarifying his testimony, State v. Colson, 274 N.C. 295, 163 S.E.2d 376; Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180, and it is the duty of the trial judge to control the examination and cross-examination of witnesses. United States v. Coplon, 2 Cir., 185 F.2d 629; State v. Frazier, 278 N.C. 458, 180 S.E.2d 128; State v. Wright, 274 N.C. 380, 163 S.E.2d 897; Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912, and State v. Stone, 226 N.C. 97, 36 S.E.2d 704.

An accused is not entitled to a new trial because of remarks of the trial judge unless they tend to prejudice defendant in light of the circumstances in which they were made, and the burden of showing that he had been deprived of a fair trial by such remarks is upon the defendant. State v. Green, 268 N.C. 690, 151 S.E.2d 606; State v. Faust, 254 N.C. 101, 118 S.E.2d 769; State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Carter, 233 N.C. 581, 65 S.E.2d 9.

We consider these assignments of error in light of the above stated principles of law.

During the course of his cross-examination the witness Danny Cobb admitted that he had been convicted of the 'marijuana tax' in 1958 and that in 1970 he was convicted of possession of methadone. Defense counsel thereupon asked the witness what methadone was and the trial judge sustained the State's objection. Thereafter the witness admitted that he had been convicted of felonious possession of a firearm. When defense counsel inquired as to what other Felonies the witness had been convicted of the trial judge observed that counsel was getting into the field of law and that he should restrict this line of questioning to the crimes of which the witness had been convicted. When defense counsel again pursued his cross-examination concerning prior convictions, the witness professed to be puzzled by the meaning of the word 'convicted.' At this point Judge Copeland said:

'Just a minute. The District Attorney has stated that he would stipulate to everything that this witness has been convicted or pled guilty to, or of which he has knowledge.'

An assistant prosecuting attorney then stated that to his knowledge the witness had been convicted of felonious possession of a hand gun, possession of heroin and that both of these cases were on appeal. Also on appeal was another case in Cumberland County for possession of heroin.

Defendants strenuously argue that by these statements and rulings, the trial judge improperly limited and frustrated their right to cross-examination, and expressed an opinion detrimental to them.

Considering the witness' prior admission that it was a crime to possess methadone we see no relevancy or purpose in allowing defendants' counsel to elicit evidence as to the other characteristics of the drug.

It was also reasonable and proper for the trial judge, in the exercise of his duty to control the course of the trial, to restrict that portion of the cross-examination which sought to have an untrained witness distinguish between felonies and misdemeanors. Neither do we discern that prejudicial error resulted because Judge Copeland allowed an Assistant Solicitor to relate Cobb's additional convictions in light of the facts that the witness was a prisoner at the time that he testified, and that he had already admitted to extensive criminal activities.

The witness was fully revealed to the jury as a repeated criminal offender, and defense counsel's attempts to discredit and impeach the witness were not frustrated by the remarks and rulings of the trial judge.

We hold that defendant has failed to carry the burden of showing prejudice in these rulings and statements of the trial judge.

By Assignment of Error Number 12 defendant again contends that the trial judge made a comment amounting to an expression of opinion which denied him a fair trial.

Defendant Donnell, testifying in his own behalf, stated that on 9 April 1973 he went to the home of Danny Edward Cobb's parents to collect a debt, and while there he was shot in the leg by Danny Cobb. Defendants introduced into evidence the pants which Donnell was allegedly wearing when he was shot and Donnell pointed out the hole in the clothing which he stated was caused by the shot.

On cross-examination, the District Attorney inquired about the severity of the wound and the following exchange occurred:

Donnell: 'I didn't say how bad I was shot. The pants speak for themselves.

Q. Tell the jury where the blood is.

A. In my leg.

COURT: Listen, you don't have to talk like that.'

Aside from a ruling on the admission of evidence, the words complained of in this Assignment of Error were the only utterances made by the trial judge during Donnell's direct examination and cross-examination. The words appear to be simply an admonishment to the witness to give serious and responsive answers to questions put to him. Such comment was made pursuant to the trial judge's duty to insure proper decorum in the courtroom and an orderly trial. There was nothing in the Judge's statement which reflected upon the credibility of the witness or which amounted to an expression of opinion as to the weight of the evidence.

This assignment of error is overruled.

Defendants next contend that prejudicial error resulted from the trial judge's rulings permitting the Solicitor to interrogate two State's witnesses by asking questions which they contend were leading.

It is generally recognized that an examining counsel should not ask his...