State v. McEachern

• Decision Date: 14 March 1973
• Docket Number: No. 45,45
• Citation: 194 S.E.2d 787,283 N.C. 57
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Thomas A. McEACHERN.

Page 787

194 S.E.2d 787

283 N.C. 57

STATE of North Carolina v. Thomas A. McEACHERN.

No. 45.

Supreme Court of North Carolina.

March 14, 1973.

Robert Morgan, Atty. Gen., by James E. Magner, Jr., Asst. Atty. Gen., for the State.

Sol G. Cherry, Fayetteville, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge violated the provisions of G.S. § 1--180 by expressing an opinion as to his guilt.

During the prosecuting witness's direct testimony the trial judge asked the following question: 'COURT: Let me ask you a question of clarification before you go any further, you were in the car when you were raped? A. Yes, sir.'

This question was posed after Mrs. Sanderson had testified she had been rendered unconscious by defendant's blow, and after she stated she 'saw this black man's body and my bloody pants going out the window.'

On occasion, it is the duty of the trial judge to ask questions in order to clarify testimony or to elicit overlooked, pertinent facts. Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912; State v. Harvey, 214 N.C. 9, 197 S.E. 620. However, the judge must be careful not to offend the provisions of G.S. § 1--180. The terms of that statute are not confined to formal instructions to the jury, but prohibit expressions of opinion by the trial judge at any time during the trial. The statute is designed to guarantee to every litigant the right to have his cause considered with 'the cold neutrality of the impartial judge and the unbiased mind of a properly instructed jury.' Whether the judge's language amounts to an expression of opinion is determined by its probable meaning to the jury, not by the judge's motive. State v. Williamson, 250 N.C. 204, 108 S.E.2d 443; State v. Canipe, 240 N.C. 60, 81 S.E.2d 173; State v. Bryant, 189 N.C. 112, 126 S.E. 107. Ordinarily, such expression of opinion cannot be cured by instructing the jury to disregard it. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Winckler, 210 N.C. 556, 187 S.E. 792.

One of the ways in which the trial judge may violate the statute is by posing questions which convey to the jury his opinion as to what has or has not been shown by the testimony of a witness. Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Cantrell, supra.

State v. Oakley, 210 N.C. 206, 186 S.E. 244, presents a situation analogous to instant case. There the State sought to identify the defendant as the person who had committed a burglary by offering testimony that tracks in newly-fallen snow were followed from the scene of the crime to defendant's dwelling, where he was later arrested. The officer did not compare the snow tracks with defendant's shoes. During the officer's testimony the court inquired: 'You tracked the defendant to whose house?' The court immediately thereafter told the jury that he had not meant to say defendant.

This Court, holding this to be an expression of opinion requiring a new trial, in part stated:

'The expression of the court below, 'You tracked the defendant to whose house?' we think prejudicial, and especially so as the evidence of the State was circumstantial. Although inadvertently made by the learned and able judge, yet we think the expression, even when followed by 'I didn't mean to say the defendant,' would make a lasting impression on the jury, who alone were the triers of the facts. Then, again, the defendant was on trial for his life, and this Lapsus linguae may have determined his fate.'

An opposite result concerning an asserted judicial statement of opinion was reached in the case of State v. Cureton, 215 N.C. 778, 3 S.E.2d 343. In that case a witness testified that defendant had shot the deceased four times, and then shot him the fifth time. The witness testified that when deceased was going down defendant shot him again. The trial judge asked the witness:

"When did he (defendant) shoot him (deceased) the last time,' to which the witness replied: 'I don't know."

This Court, finding no prejudicial error, stated:

'. . . The question propounded was tantamount to asking the witness where did you say the defendant shot the deceased the last time, and did not tend to lead the jury to believe that the judge had formed the opinion that the defendant did the shooting. And again, while up to this time the defendant by his plea of not guilty had denied that he was the person who shot the deceased, he later, as witness in his own behalf, admitted that he fired the fatal shots, but contended he did so in self defense. So, if there was error in the question propounded, it was rendered harmless by the subsequent admission by the defendant.'

These two cases are distinguishable. In Oakley the court's question expressed an opinion that the tracks were made by defendant. This crucial proof had not been shown by other evidence. In Cureton the fact that defendant had shot the deceased was supported by ample evidence, and the judge's question only sought clarification as to when and where the shooting took place. The defendant did not deny that he shot the deceased and in fact later testified that he fired the fatal shots, but that he did so in self defense.

In instant case there was evidence which would support a reasonable inference that the defendant raped the prosecuting witness. However, the prosecutrix did not ever actually testify that she had been raped. Neither of the two medical experts subsequently offered by the State could testify that Mrs. Sanderson had been raped. Throughout the case defendant contended that he had not raped Mrs. Sanderson.

It is generally recognized that a trial judge may wield a strong influence over the trial 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.' State v. Carter, 233 N.C. 581, 65 S.E.2d 9. See also State v. Frazier, 278 N.C. 458, 180 S.E.2d 128; State v. Belk, 268 N.C. 320, 150 S.E.2d 481.

The question by the able and fair trial judge, although clearly inadvertent, Assumed that defendant had raped Mrs. Sanderson. This expression of opinion might well have affected the verdict of the jury.

Defendant also contended that the trial judge erred in sustaining the State's objection to evidence relating to the character of the prosecuting witness. Apparently the objection was sustained because the witness, Elaine Williams, did not know what Mrs. Sanderson's 'neighbors' or those who resided in Mrs. Sanderson's particular 'community' in Fayetteville said or knew about her character.

We quote relevant portions of Elaine Williams' testimony:

'Q. Do you know Mrs. Sanderson's general character and reputation in the community--

MR. GRANNIS: Objection

COURT: What community?

Q. Community of Fayetteville, your Honor.

MR. GRANNIS: I request a voir dire, your Honor.

THE JURY RETIRES.

Q. Do you know Mrs. Sanderson's general character and reputation in and around the community of Fayetteville?

A. Yes, I do.

Q. What is it?

A. I know that she likes colored men.

Q. What is her general character and reputation, is it good or bad?

A. It's bad as far as I know.

Q. I have no further questions.

REDIRECT EXAMINATION By Defendant's Attorney:

Q. Have you ever heard other persons in the community discuss Mrs. Sanderson's reputation?

A. Lots of people have.

Q. Have you heard other people make comments about her reputation?

A. I have.

Q. And about how many have you heard make comments?

A. A lot of them.

Q. A lot of them?

A. Yes.

Q. And have those people give her a bad reputation?

A. Some of them talks, yes, plenty of people.

EXAMINATION By Mr. Cherry:

Q. Do you know her general character and reputation in the community in which you live?

A. Which I was living at the time.

Q. What time?

A. In '67, Ray Avenue and Teachers Drive.

Q. Do you know her general character and reputation in the community and the area where Mary Blue lives?

A. Yes, that is the same.

COURT: Same as what?

A. Ray Avenue where I was living.

COURT: Do you know what her general character and reputation is down there?

A. Bad.

COURT: All right.

EXAMINATION By Mr. Grannis:

Q. Was this the reputation that she had in 1967?

A. Yes.

Q. That is what you are basing it on, isn't it?

A. It's not only 1967, it's been bad since.'

Judge Clark sustained the State's objection and refused to allow the witness to testify as to Mrs. Sanderson's general reputation.

The general rule in North Carolina is that a person's character is proven by evidence of the general reputation he bears in the community or neghborhood in which he resides or has resided. Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168; State v. Ellis, 243 N.C. 142, 90 S.E.2d 225; State v. Bowen, 226 N.C. 601, 39 S.E.2d 740; State v. Steen, 185 N.C. 768, 117 S.E. 793. See 1 Brandis, Stansbury's North Carolina Evidence § 110 (Rev. ed. 1973). It appears this rule was first fully announced in the case of State v. Steen, supra: 'In North Carolina the testimony of a character witness is confined to the general reputation of the person whose character is attacked, or supported, in the community in which he lives.'

Prior to Steen many decisions had approved a qualifying question showing the witness to be acquainted with a person's general reputation without use of the geographic limitation 'in his community' or 'in his neighborhood.' State v. Mills, 184 N.C. 694, 114 S.E. 314; Edwards v. Price, 162 N.C. 243, 78 S.E. 145; State v. Ussery, 118 N.C. 1177, 24 S.E. 414; State v. Coley, 114 N.C. 879, 19 S.E. 705; State v. Wheeler, 104 N.C. 893, 10 S.E. 491; State v. Gee, 92 N.C. 756; State v. Laxton, 76 N.C. 216; State v. Speight, 69 N.C. 72; State v. Boswell, 13 N.C. 209. See also, State v. Parks, 25 N.C. 296; State v. Stallings, 3 N.C. 300.

The Court in State v. Smoak, 213 N.C. 79, 195 S.E. 72, emphasized the qualifying phrase 'in the community in which he lives' to reach the conclusion that evidence of the general...