State v. Smarr

• Citation: 551 S.E.2d 881,146 NC App. 44
• Decision Date: 04 September 2001
• Docket Number: No. COA00-722.,COA00-722.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Antorio Maurice SMARR.

551 S.E.2d 881

146 NC App. 44

STATE of North Carolina v. Antorio Maurice SMARR.

No. COA00-722.

Court of Appeals of North Carolina.

September 4, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Elizabeth N. Strickland, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

CAMPBELL, Judge.

Defendant was convicted by a jury of second degree murder, three counts of attempted robbery with a dangerous weapon, aiding and abetting an assault with a deadly weapon inflicting serious injury, and conspiracy to commit a felony. Defendant was sentenced to a total of 390 to 514 months in prison.

The evidence presented by the State tends to show that Nicholas and Crystal Hammond, along with their cousin Joshua Long ("Long"), were walking along Garrison Boulevard around 4:00 a.m. on 14 July 1998. They saw a Dodge Caravan drive by them two times as they were walking along the road. The van then pulled to a stop in a nearby park. Mr. Hammond observed three black males walking toward him from the direction of the van. Mr. Hammond heard one of them say "what's up" and then heard a gunshot. He turned to see one of the men shoot Long with a handgun. Another man stepped out from a bush, pointed at Mrs. Hammond and said "there the bitch goes." The third individual fired a shot in her direction. Mr. Hammond was also shot by the same assailant who shot Long. Although Mr. and Mrs. Hammond performed CPR on Long, he died at the hospital from loss of blood. Mr. Hammond underwent emergency surgery to remove his spleen, and later had a second surgery to remove a bullet lodged in his back.

Mrs. Hammond described a similar series of events in her testimony, adding that before Mr. Hammond was shot, she heard one of the assailants say "give it up."

Detective Jimmy Arndt testified that he was one of the primary investigators of the case. He arrived at the crime scene around 5:10 a.m., and later interviewed Mr. and Mrs. Hammond at the hospital. At about 6:05 a.m. on 15 July 1998, he went to the home of defendant with another detective and two uniformed officers. Defendant's mother indicated that defendant was in bed asleep. The officers entered defendant's bedroom and yelled at him to get up and keep his hands where they could see them. They told defendant they needed to talk to him. A loaded revolver was recovered from under defendant's bed. Defendant was transported to the police station where he was read his juvenile Miranda rights (defendant was sixteen years old at the time) and signed a form indicating that he understood his rights and was willing to make a statement.

Later that day defendant directed Detective Arndt to Montrell McNeil's ("McNeil") home, where the detective recovered a .38 caliber handgun, which defendant identified as the weapon McNeil had used during the incident on 14 July 1998.

On cross examination, Detective Arndt testified that during his interview with Mrs. Hammond, she never mentioned a third assailant, nor anyone shouting something from behind a bush. At trial Mrs. Hammond had testified that a third assailant shouted "there goes the bitch."

Defendant took the stand on his own behalf. According to his testimony, he arrived home around 1:00 or 2:00 a.m. on 14 July 1998, and saw McNeil riding his bike nearby. Defendant agreed to go riding with him, but first went inside to retrieve his bike and his gun, which he had recently purchased for protection. Defendant and McNeil had been riding around for a few hours when Chris Lipscomb ("Lipscomb"), an acquaintance of defendant, pulled up alongside them in a van. The three talked for a while and Lipscomb offered them a ride home, but indicated that he needed some gas money. After getting in the van, defendant reached into his pocket and removed his gun in order to get to his wallet. Lipscomb saw the gun and grabbed it. As they were driving to the gas station, Lipscomb announced that he wanted to rob someone. McNeil said he would help, and showed his own gun, but defendant said no. Defendant testified that he felt scared. When the three reached the gas station, Lipscomb handed defendant's gun to McNeil so he could go inside to pay while defendant pumped the gas.

After they got back in the van, they drove by the Hammonds and Long a few times, then pulled over and parked. While parking Lipscomb handed the gun back to defendant. After the van was stopped, Lipscomb demanded the gun back and defendant complied. Lipscomb told defendant to get out of the van. After he was out of the van, the three began to follow the Hammonds and Long on foot. Defendant stopped to tie his shoes, and when he looked up, Lipscomb and McNeil were no longer in sight. He proceeded further down the road and witnessed Lipscomb shoot Long and Mr. Hammond. He also saw McNeil fire his weapon. McNeil and Lipscomb began running towards defendant, and the three got into the van and drove off. Defendant returned home around noon that day.

In rebuttal, the State presented the testimony of Montrell McNeil. McNeil testified that he and defendant had been riding around early on 14 July 1998 looking for someone to rob. After they ran into Lipscomb, they told him they were looking for someone to rob and he agreed to give them a ride. The three spotted the Hammonds and Long and followed them. Lipscomb and defendant argued over who would use defendant's gun, but defendant eventually agreed to allow Lipscomb to use it. McNeil fired his own weapon once, while Lipscomb fired defendant's weapon three times.

Defendant's first argument on appeal is that the trial court committed reversible error when it questioned witnesses in a manner which he contends helped prove the State's case and indicated a bias against defendant. We disagree.

"The 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." N.C. Gen.Stat. § 15A-1222 (1999). In discussing an earlier version of the statute, our Supreme Court noted that "`[t]he judge occupies an exalted station, and jurors entertain a profound respect for his opinion. As a consequence, the judge prejudices a party or his cause in the minds of the trial jurors whenever he violates the statute by expressing an adverse opinion on the facts.'" State v. Carter, 268 N.C. 648, 653, 151 S.E.2d 602, 606 (1966) (citation omitted in original) (quoting State v. Canipe, 240 N.C. 60, 64, 81 S.E.2d 173, 177 (1954)). Thus, "`[t]he law imposes on the trial judge the duty of absolute impartiality.'" State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732 (1999) (quoting Nowell v. Neal, 249 N.C. 516, 520, 107 S.E.2d 107, 110 (1959)).

Nevertheless, the trial court is permitted to "interrogate witnesses, whether called by itself or by a party." N.C. Gen. Stat. § 8C-1, Rule 614(b) (1999). Furthermore, in order to insure justice for the parties, the trial court may ask clarifying questions of a witness to alleviate confusion. State v. Quick, 329 N.C. 1, 21-22, 405 S.E.2d 179, 192 (1991). Such questions are only prejudicial error if "by their tenor, frequency, or persistence, the trial judge expresses an opinion." State v. Rinck, 303 N.C. 551, 562, 280 S.E.2d 912, 921 (1981).

Defendant complains of three instances in which the trial court questioned witnesses in a manner he considers prejudicial. On cross examination, the prosecutor asked defendant when the topic of robbing someone first came up. Defendant responded that it had come up "[w]hen we was leaving out of Bojangle's." The trial court then intervened:

THE COURT: When you were leaving Bojangle's?

A. When we left out of Bojangle's and we were starting to go down the hill. That's when we planned—Mr. Lipscomb said he wanted to rob somebody.

THE COURT: What did he say then?

A. He had said that y'all want to rob somebody and I told him no. I said are you crazy. I said I ain't robbing nobody.

THE COURT: Now was that before or after you stopped to get gas?

A. That was before we went to go get gas.

THE COURT: So before he stopped to get gas he was talking about robbing somebody?

A. Yes, sir.

THE COURT: When was it you took your gun out of your pocket when you reached for your wallet?

A. When we was in the Bojangle's parking lot.

THE COURT: You pulled your wallet out in Bojangle's parking lot?

A. Yes, sir.

THE COURT: Why did you do that?

A. To get the money. I was getting the money out that I was going to give [Lipscomb] for the gas.

THE COURT: That was all while you were in the Bojangle's parking lot?

A. Yes, sir.

THE COURT: [To the prosecutor] Go ahead.

Defendant argues that these questions by the trial court aided the State by emphasizing that defendant had not taken advantage of opportunities to leave McNeil and Lipscomb before the robbery and by suggesting that defendant's claim that he did not willingly remain with McNeil and Lipscomb was "pure nonsense." We disagree. The trial court's questions indicate an attempt to ascertain the correct sequence of events. All of the information gathered by the trial court had previously been elicited on direct examination, but on cross examination, the order of the events was confused. None of the questions by the trial court suggest an opinion on the facts, nor do they comment on the weight of the evidence or the credibility of the witness. We hold that the trial court acted properly by clarifying confusing testimony, with no resulting prejudice to defendant.

Defendant also objects to questions the trial court asked of defendant's sister, Shawntay, which he contends impeached her credibility. The trial court questioned Shawntay as follows:

THE COURT: When was it that you saw Chris Lipscomb drive by and stop?

A. I'm not for sure. I mean I didn't know that all this stuff had went on, but I think it was like that next day.

THE COURT: What time the next day?

A. Probably like that evening, about 3:30,

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