State v. Johnson

• Decision Date: 16 July 2013
• Docket Number: No. COA12–1248.,COA12–1248.
• Citation: 748 S.E.2d 775
• Parties: STATE of North Carolina v. William Earl JOHNSON, Jr.
• Court: North Carolina Court of Appeals

748 S.E.2d 775

STATE of North Carolina

v.William Earl JOHNSON, Jr.

No. COA12–1248.

Court of Appeals of North Carolina.

July 16, 2013.

Appeal by Defendant from judgments entered 31 May 2012 by Judge Russell Duke, Jr., in Martin County Superior Court. Heard in the Court of Appeals 13 March 2013.

Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State.

Unti & Lumsden, LLP, by Margaret C. Lumsden, for Defendant.

DILLON, Judge.

William Earl Johnson, Jr., (Defendant) appeals from judgments entered based upon jury verdicts finding Defendant guilty of resisting a public officer, driving while license revoked, possession of an open container and driving while impaired. We conclude Defendant had a fair trial, free from prejudicial error.

The evidence of record is conflicting, but tends to show the following: On 27 November 2009, at approximately 11:35 P.M., Officer Michael Pope observed Defendant driving an automobile and swerving in between lanes of traffic on East Boulevard in Martin County. After Officer Pope turned on his blue lights and siren, Defendant traveled another quarter of a mile before he pulled over. Officer Pope approached the vehicle and detected that Defendant had a strong odor of alcohol. In addition, Defendant's speech was slurred. When Officer Pope asked Defendant for his license and registration, Defendant replied that he did not have a driver's license. Defendant gave Officer Pope his North Carolina Identification card. Defendant's driver's license had been suspended.¹ Officer Pope saw a 12–pack of beer in the passenger floorboard. Officer Pope also found an open beer can under the driver's seat, which contained alcohol. Defendant said he “had been drinking one or two beers” and refused to take an Alkasensor breath test.

Officer Pope believed Defendant had consumed a sufficient quantity of alcohol to impair his mental and physical faculties. Officer Pope asked Defendant to get out of the vehicle. Defendant refused. Officer Pope asked twice more, but Defendant did not get out of the vehicle. Officer Pope then tried, unsuccessfully, to physically remove Defendant from the vehicle. Another officer, who was also present at the scene, dry-stunned Defendant from the passenger side of Defendant's vehicle, after which Defendant complied with Officer Pope's directions. At the Magistrate's Office, Defendant again refused to submit to a breath test.

Defendant was charged with driving while impaired, driving while license revoked, possession of an open container of alcohol in the passenger area of a motor vehicle, resisting a public officer, and driving left of center. After Defendant's trial, the jury found Defendant guilty of resisting a public officer, driving while license revoked, possession of an open container and driving while impaired.² On 19 July 2010, the trial court entered judgments consistent with the jury's verdicts sentencing Defendant to 24 months incarceration for driving while impaired, 45 days incarceration for driving while license revoked and possession of an open container, and 45 days incarceration for resisting an officer, to be served consecutively. However, the trial court suspended Defendant's active sentences and placed Defendant on supervised probation for 24 months. As a condition of special probation, the trial court ordered that Defendant serve an active term of 30 days in the custody of the Martin County Sheriff's Department for the impaired driving conviction. From these judgments, Defendant appeals.

I: Judicial Hostility

In Defendant's first argument, he contends the trial court engaged in improper and disrespectful conduct toward his trial counsel in violation of N.C. Gen.Stat. § 15A–1222 and N.C. Gen.Stat. § 15A–1232 in violation of his constitutional rights to due process and effective assistance of counsel. ³ We disagree.

N.C. Gen.Stat. § 15A–1222 (2011) provides that “[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.” Id. Moreover, N.C. Gen.Stat. § 15A–1232 (2011), provides, “[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.

“Whenever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N .C.G.S. §§ 15A–1222 and 15A–1232, the error is preserved for review without objection due to the mandatory nature of these statutory prohibitions.” State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005), cert. denied,549 U.S. 855 (2006).

“It is fundamental to due process that every defendant be tried before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ” State v. Brinkley, 159 N.C.App. 446, 450, 583 S.E.2d 335, 338 (2003) (citation and quotation marks omitted) (emphasis in original). “Jurors respect the judge and are easily influenced by suggestions, whether intentional or otherwise, emanating from the bench[;][c]onsequently, the judge must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury[.]” State v. Coleman, 65 N.C.App. 23, 29, 308 S.E.2d 742, 746 (1983), cert. denied,311 N.C. 404, 319 S.E.2d 275 (1984) (citation and quotation marks omitted). “The judge's duty of impartiality extends to defense counsel[;][h]e should refrain from remarks which tend to belittle or humiliate counsel since a jury hearing such remarks may tend to disbelieve evidence adduced in defendant's behalf.” Id. “While not every improper remark will require a new trial, a new trial may be awarded if the remarks go to the heart of the case.” State v. Sidbury, 64 N.C.App. 177, 179, 306 S.E.2d 844, 845 (1983).

“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). “The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.” State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950).

In this case, Defendant points to “critici[sms]” by the trial court judge directed toward defense counsel during Defendant's trial,⁴ including the following:

Q. Did you see him put [the Alkasensor] in his mouth?

A. I do not know.

Q. You do not know.

A. As far as my records state—

Q. Were you standing there?

A.—Lieutenant McDougal administered the Alkasensor in which he was incooperative.

Q. Well, those are conclusions. I'm trying to get to facts.

THE COURT: We don't need your comment. You just put your comments in the form of questions.

....

Q. At what point did Patrol Officer Lucido decide to dry-stun [Defendant]?

A. After he refused the first exit of the vehicle. After I advised [Defendant] to exit the vehicle and he refused to do so.

Q. Okay. I am really confused.

THE COURT: Ms. Fagan,—

Q. You—

THE COURT:—wait just a moment. Now, ladies and gentlemen, you are not to consider any comments by the lawyer, such as “I am real confused,” or et [ ]cetera. She knows that she is to place her statements, all of her statements, to a witness in the form of questions, and she is to give the witness an opportunity to answer the question. Now, I expect that you do that.

....

Q. How many volts of electricity go through a person who is being dry-stunned?

A. I have no clue of the volts. But I have been tased myself, and I was able to get up.

MS. FAGAN: Your Honor, strike that. That was unresponsive. I asked him how many volts.

THE COURT: Ma‘am, the proper way to say whatever you're supposed to say to the Court is objection.

....

Q. And, in those training sessions, have they discussed the deaths that have occurred in North Carolina with the use of taser guns?

MR. JONES: Objection.

THE COURT: Sustained. Ladies and gentlemen, you are not to infer by the question of the defense counsel that there have been any deaths in North Carolina. It is not a fact in evidence, and you are not to infer that there has been; you are not to accept that as being true. Now, can all of you accept that and follow that instruction? If you can, please raise your hand.... Counsel has knowingly introduced a fact into evidence that is not under oath about some sort of death in North Carolina regarding stun guns. It is inadmissible, and she knows it. Now, do all of you agree that you do not consider such statements in your deliberation?

....

Q. Now, which officer was that?

A. McDougal.

Q. Was it this officer here? A. No, Ma‘am.

MS. FAGAN: Let the record reflect that he was looking at Sergeant Pope.

THE COURT: What?

MS. FAGAN: I said I'm asking that—to have the record reflect that he is identifying Sergeant Pope.

THE COURT: Just continue your questioning.

....

Q. So Sergeant Pope's testimony a minute ago was that Patrol Officer Lucido—

THE COURT: Wait. Wait just a minute. You can't re-state somebody's testimony.

Although many of the trial court's comments could have been articulated in a more neutral fashion, better facilitating an “atmosphere of judicial calm,” Brinkley, 159 N.C.App. at 450, 583 S.E.2d at 338 (2003), it is nonetheless our opinion the statements of the trial court, when considered in the light of all the facts and attendant circumstances—including the plenary evidence incriminating Defendant—were not of such prejudicial nature as to have had any appreciable effect on the result of the trial below. Assuming arguendo the trial court expressed an impermissible opinion, we conclude the error was harmless. See State v. Gell, 351 N.C. 192, 207–08, 524...