State v. Rhodes

• Decision Date: 14 May 1976
• Docket Number: No. 83,83
• Citation: 290 N.C. 16,224 S.E.2d 631
• Parties: STATE of North Carolina v. Albert RHODES.
• Court: North Carolina Supreme Court

Page 631

224 S.E.2d 631

290 N.C. 16

STATE of North Carolina v. Albert RHODES.

No. 83.

Supreme Court of North Carolina.

May 14, 1976.

Atty. Gen. Rufus L. Edmisten and Special Deputy Atty. Gen. James L. Blackburn, Raleigh, for the State.

Swain, Leake & Stevenson, Joel B. Stevenson, Asheville, for defendant appellant.

SHARP, Chief Justice:

Defendant's appeal presents the single question whether the trial judge committed reversible error when, after excusing the jury during defendant's cross-examination of Mrs. Rhodes, he extensively warned her that he was 'not impressed with her truthfulness' and that he was 'just not going to tolerate any perjury in this case.' (The judge's remarks to the witness are set forth in the preliminary statement of facts.)

The presiding judge is given large discretionary power as to the conduct of a trial. Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within his discretion. Shute v. Fisher, 270 N.C. 247, 154 S.E.2d 75 (1967); Rooks v. Bruce, 213 N.C. 58, 195 S.E.2d 26 (1938); 88 C.J.S. Trial § 36 (1955); 7 Strong's N.C. Index 2d Trial § 5 (1968). Thus a trial judge may, if the necessity exists because of some statement or action of the witness, excuse the jurors and, In a judicious manner, caution the witness to testify truthfully, pointing out to him generally the consequences of perjury. See 75 Am.Jur.2d Trial § 115 (1974); Annot., Error-Statements as to Perjury, 127 A.L.R. 1385, 1388 (1940).

Any intimation by the judge in the presence of the jury, however, that a witness had committed perjury would, of course, be a violation of G.S. § 1--180 and constitute reversible error. State v. McBryde, 270 N.C. 766, 155 S.E.2d 266 (1967); State v. Simpson, 233 N.C. 438, 64 S.E.2d 568 (1951); State v. Swink, 151 N.C. 726, 66 S.E. 448 (1909). Moreover, whether the reference to perjury be made in or out of the presence of the jury, 'error may be found in any remark of the judge, in either a civil or criminal trial, which is calculated to deprive the litigants or their counsel of the right to a full and free submission of their evidence upon the true issues involved to the unrestricted and uninfluenced deliberation of a jury (or court in a proper case).' Annot., 127 A.L.R. 1385, 1387. Therefore, judicial warnings and admonitions to a witness with reference to perjury are not to be issued lightly or impulsively. Unless given discriminatively and in a careful manner they can upset the delicate balance of the scales which a judge must hold evenhandedly. Potential error is inherent in such warnings, and in a criminal case they create special hazards.

First among these is that the judge will invade the province of the jury, which is to assess the credibility of the witnesses and determine the facts from the evidence adduced. State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954); 7 Strong's N.C. Index 2d Trial § 18 (1968). It is most unlikely that a judge would ever warn a witness of the consequences of perjury unless he had determined in his own mind that the witness had testified falsely. Therefore, if, while acting upon an assumption which only the jury can establish as a fact, he makes declarations which alter the course of the trial, he risks committing prejudicial error. For this reason, Inter alia, the judge has no duty to caution a witness to testify truthfully. 'Once a witness swears to give truthful answers, there is no requirement to 'warn him not to commit perjury or, conversely to direct him to tell the truth.' It would render the sanctity of the oath quite meaningless to require admonition to adhere to it.' United States v. Winter, 348 F.2d 204, 210 (2d Cir.1965).

A second hazard is that the judge's righteous indignation engendered by his 'finding of fact' that the witness has testified untruthfully may cause the judge, expressly or impliedly, to threaten the witness with prosecution for perjury, thereby causing him to change his testimony to fit the judge's interpretation of the facts or to refuse to testify at all. Either choice could be an infringement of the defendant's Sixth Amendment rights to confront a witness for the prosecution for the purpose of cross-examination or to present his own witnesses to establish a defense. Both rights are fundamental elements of due process of law, and a violation of either could hamper the free presentation of legitimate testimony. The following statement from Annot., 127 A.L.R. 1385, 1390, is pertinent: 'Any statement by a trial court to a witness which is so severe as to put him or other witnesses present in fear of the consequences of testifying freely constitutes reversible error.'

The United States Supreme Court considered the foregoing principle in Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam). In that case the defendant was convicted of burglary. At his trial, when the State rested its case, the defendant called his sole witness, who was then serving a prison sentence. In the absence of the jury, on his own initiative, the judge admonished the potential witness concerning the consequences of perjury and threatened him with indictment and a prison sentence if he lied on the stand. The defendant's attorney objected to these comments on the ground that the court was thereby depriving him of his defense by coercing his only witness into refusing to testify. When counsel indicated that he was nonetheless going to ask the witness to take the stand the judge interrupted: 'Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify.' The witness then refused to testify for any purpose and was excused by the court.

Upon his conviction the defendant appealed to the Texas Court of Criminal Appeals, contending that the judge had coerced his witness from testifying and that this conduct indicated the trial judge's bias and resulted in a deprivation of due process. That court affirmed the conviction, holding that the petitioner had not adequately objected to the judge's conduct and that, in any event, 'there was no showing that the witness had been intimidated by the admonition or had refused to testify because of it.'

The Supreme Court, rejecting both of these theories, reversed. The Court said: 'The suggestion that the petitioner or his counsel should have interrupted the judge in the middle of his remarks to object is, on this record, not a basis to ground a waiver of the petitioner's rights. The fact that Mills was willing to come to court to testify in the petitioner's behalf, refusing to do so only after the judge's lengthy and intimidating warning, strongly suggests that the judge's comments were the cause of Mills' refusal to testify.

'The trial judge gratuitously singled out this one witness for a lengthy admonition on the damages of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected Mills to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of this judge to carry out. Yet in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify.

'In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967), we stated:

'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.'

'In the circumstances of this case, we conclude that the judge's threatening remarks, directed alone at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.' Webb v. Texas, supra, 409 U.S. at 97--98, 93 S.Ct. at 353, 34 L.Ed.2d at 333.

A third hazard is that the judge's admonition to the witness with reference to perjury may intimidate or discourage the defendant's attorney from eliciting essential testimony from the witness. This is particularly true when the judge anticipates a line of defense and indicates his opinion that the testimony necessary to establish it can only be supplied by perjury; A fortiori, if the judge's warnings and admonitions to the witness are extended to the attorney, coercion can occur. A law license does not necessarily insulate one from intimidation. In short, even a seasoned trial attorney may trim his sails to meet the prevailing judicial wind. If a defendant's attorney is intimidated by a trial judge's unwarranted or unduly harsh attack on a witness or the attorney himself, then the defendant's constitutional right to effective representation guaranteed by the Sixth Amendment is impinged.

The danger that a defendant's right to effective representation may be impaired by a trial judge's threat to or intimidation of the defendant's counsel has been treated in Annot., Conduct of Court-Rebuking Counsel, 62 A.L.R.2d 166 (1958). In it there appears the following:

'(I)n reviewing a...