State v. Staley

• Decision Date: 07 March 1977
• Docket Number: No. 67,67
• Citation: 292 N.C. 160,232 S.E.2d 680
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Benny STALEY.

Page 680

232 S.E.2d 680

292 N.C. 160

STATE of North Carolina v. Benny STALEY.

No. 67.

Supreme Court of North Carolina.

March 7, 1977.

Rufus L. Edmisten, Atty. Gen., by T. Buie Costen, Sp. Deputy Atty. Gen., Raleigh, for the State.

Franklin D. Smith, Elkin, for defendant-appellant.

EXUM, Justice.

We allowed further review to determine whether certain remarks made by the trial judge during cross-examination of a state's witness constituted an expression of opinion upon the evidence in violation of General Statute 1--180. We are of the opinion that, by these remarks, the court inadvertently communicated to the jury an attitude prejudicially antagonistic to defendant's case and that a new trial is consequently required.

This Court has been consistently vigilant to protect the right of every criminal defendant to the assistance of counsel at a trial "before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.' State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10,' State v. Lynch, 279 N.C. 1, 10, 181 S.E.2d 561, 567 (1971). Recognizing the threat posed to an unbiased consideration of the evidence by the weight and credence inevitably accorded by the jury to their perception of the trial judge's opinion of the case, the Legislature very early provided a statutory safeguard. As currently embodied in General Statute 1--180, this legislative prohibition dictates that '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 . . ..'

While referring explicitly only to the charge, the statute has always been interpreted to forbid 'the expression of any opinion or even an intimation by the judge, at any time during the course of the trial, which might be calculated to prejudice either party.' State v. Smith, 240 N.C. 99, 101, 81 S.E.2d 263, 265 (1954); State v. Bryant, 189 N.C. 112, 126 S.E. 107 (1925); State v. Cook, 162 N.C. 586, 77 S.E. 759 (1913).

Of course, it is the presiding judge's responsibility to control the examination and cross-examination of witnesses in order to assure orderly and expeditious proceedings and to protect witnesses from extended, unnecessary or abusive interrogation. State v. Lynch, supra. On the other hand, the strength of the attorney's role as advocate is crucial to the success of our judicial system: his duty vigorously to represent his client requires him 'to present everything admissible that favors his client and to scrutinize by cross-examination everything unfavorable.' Annot., 62 A.L.R.2d 166, 237 (1958), Quoted in State v. Lynch, supra, 279 N.C. at 10, 181 S.E.2d at 567.

As we recognized in State v. Lynch, the sometimes conflicting responsibilities of the trial judge, who labors under the pressure of a crowded docket, and of counsel seeking to present his client's case thoroughly and in the light most favorable to him inevitably result frequently in feelings of tension on both sides. The judge may be harassed by the lawyer's objections and exceptions; the attorney may feel bullied by the court's rulings against him. Rather heated interchanges may result from this conflict. Nevertheless, both should remain conscious of their unanimity of purpose in the high goal of ensuring that the jury be informed fully, instructed properly, and permitted to render a fair and unbiased verdict. For a thorough treatment of this subject, See N. Dorsen and L. Friedman, Disorder in the Court (1973).

We recognize that both the trial judge and the lawyer are human and that quite heated conversations may ensue with the preservation nonetheless of strict impartiality on the one hand and consistent respect on the other. Nevertheless, the judge should recognize that he occupies a position exalted in the eyes of the jury, who must view him as an expert in the appraisal of testimony presented and in the perception of its truth or falsehood by virtue of his legal training and experience on the bench. Any expression as to the merits of the case, or any intimation of contempt for a party or for counsel may be highly deleterious to that party's position in the eyes of the jury. As the Court stated in Withers v. Lane, 144 N.C. 184, 188, 56 S.E. 855, 856 (1907), the judge

'may clearly indicate to a jury what impression the testimony has made upon his mind or what deductions should be made therefrom, without expressly stating his opinion upon the facts. This may be done by his manner or peculiar emphasis or by his so arraying and presenting the evidence as to give one of the parties an undue advantage over the other; or, again, the same result will follow the use of language or a form of expression calculated to impair the credit which might otherwise and under normal conditions be given by the jury to the testimony of one of the parties. State v. Dancy, 78 N.C. 437; State v. Jones, 67 N.C. 285. It can make no difference in what way the opinion of the judge is conveyed to the jury, whether directly or indirectly. The act forbids an intimation of his opinion in any and every form, the intent of the law being that each of the parties shall have an equal and a fair chance before the jury. Construing this statute, Judge Nash said: 'We all know how earnestly, in general, juries seek to ascertain the opinion of the judge who is trying a cause upon the controverted facts, and how willing they are to shift their responsibility from themselves to the court. . . .' Nash v. Morton, 48 N.C. 3.'

There is another danger in the trial judge's overly vehement response to counsel's questions or objections. The United States Court of Appeals for the Second Circuit has observed:

'While the trial judge should be permitted considerable attitude (sic) in dealing with counsel, ruling on objections, and keeping the trial moving, he must not forget that the jury hangs on his every word and is most attentive to any indication of his view of the proceedings. Thus repeated indications of impatience and displeasure of such nature to indicate that the judge thinks little of counsel's intelligence and what he is doing are most damaging to a fair presentation of the defense. A less experienced advocate might well have trimmed his sails to such a judicial wind as prevailed in the courtroom during this trial, and thus have jeopardized the rights and the proper interests of a defendant on trial for a serious felony.' United States v. Ah Kee Eng, 241 F.2d 157, 161 (1957).

Thus, 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.' Withers v. Lane, supra, 144 N.C. at 191--92, 56 S.E. at 857--58.

This standard applies 'regardless of how unreasonable or improbable the defendant's story' may be. State v. Taylor, 243 N.C. 688, 690, 91 S.E.2d 924, 925 (1956). The weight and credibility of the evidence must be left strictly to the jury. State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966).

The crucial exchange to be considered in the trial of this defendant occurred during cross-examination of Kyle Gentry, Chief of Police of North Wilkesboro, who testified for the state in corroboration of the testimony of two earlier witnesses, Mike Jarvis and Mike Berrong. Jarvis and Berrong, both claiming to have been defendant's accomplies, had given their accounts of the crimes committed, implicating defendant. Chief Gentry's testimony tended to establish that the earlier out-of-court statements made to him by these two witnesses were consistent with their in-court testimony. Defendant attempted to establish alibi as his defense. In their immediate context, the remarks of Judge Wood claimed to be prejudicial occurred as follows:

'Q. (Mr. Smith, defendant's counsel) Now, Chief, you were not present on this occasion when this happened?

'A. No sir.

'Q. And you have no independent personal knowledge of any of the evidence in the case, do you?

'A. No sir.

'Q. And the only testimony you are relating to the court here is what this young man Mike Berrong related to you and you say the Jarvis statement wasn't any different?

'A. Yes.

'Q. Now, if these boys are not telling the truth about this matter, then what you say wouldn't be true either would it?

'State objects. Sustained.

'MR. SMITH: May I have his answer put in the record, your Honor?

'State objects.

'THE COURT: You may whisper your answer in the record.

'THE COURT: I think the answer is obvious. I am going to let you make a speech to the jury and you can tell the jury that Mr. Smith. Of course, if these boys werent's telling the truth, it didn't happen, didn't happen the way they say it was the court will take judicial notice of that.

'MR. SMITH: I just wanted the witness to answer the question for me.

'THE COURT: Yes, I understand what you wanted. Now, Mr. Solicitor, do you want to make a speech to the jury?

'MR. ASHBURN: Your Honor, it is not time.

'THE COURT: In order to equalize things here.

'MR. ASHBURN: No sir, it would be improper.

'THE COURT: All right, go ahead, I am going to let you cross examine him, but I told you a half dozen times not to make speeches to the jury. It is out of order.

'MR. SMITH: Your Honor, I just simply asked him about what these boys told him.

'THE COURT: I will let you cross examine him.

'THE COURT: Ladies and gentlemen if these witnesses are not telling the truth, then the court, I THINK IT IS OBVIOUS WHAT THE FACTS ARE. NOW, I HAVE MADE YOUR SPEECH AGAIN FOR YOU.' (Emphasis added.)

It is true that in the immediate context the emphasized portion of ...