State v. Cox

169 S.E.2d 134 (1969)

6 N.C. App. 18

STATE of North Carolina v. Robert COX and Earl Cox.

No. 6911SC277.

Court of Appeals of North Carolina.

August 27, 1969.

*136 Atty. Gen. Robert Morgan and Staff Atty. Sidney S. Eagles, Jr., Raleigh, for the State.

T. Yates Dobson, Jr., Smithfield, for defendant appellant Robert Cox.

Albert A. Corbett, Smithfield, for defendant appellant Earl Cox.

FRANK M. PARKER, Judge.

The defendants' assignments of error relate solely to the question of whether the trial judge violated his duty under G.S. § 1-180 and expressed an opinion on the evidence through certain comments and questioning of witnesses during the trial.

On cross-examination of the prosecuting witness, Mrs. Pollard, the attorney for the defendant Earl Cox requested the witness to stand and face the wall. He then proceeded to cross-examine her at length about the color of shirts being worn by the solicitor and defense attorneys. After she had given her opinion about this the following transpired:

"Q. Mrs. Pollard, what color necktie do I have on ? Objection by Solicitor Taylor. COURT: Objection sustained. I don't even know that. ATTORNEY CORBETT: Now, if your Honor pleases. COURT: All right. She is supposed to look at your face while you are talking to her, so am I. Now that I look at your necktie, I can't tell whether it is black or blue, but it looks like it has some type of diagonal stripes across it and I can't tell whether that is gold or yellow. Now, maybe I need glasses, I don't know. I wear glasses, but I think we are getting just ait is a little bit in the realm of what might be considered frivolous cross examination ATTORNEY CORBETT: now, if your Honor please COURT: I will let you proceed in any manner you wish as to what happened on this particular occasion and you may continue to do so as far as to anything that she might remember about *137 the clothes or anything else regarding the description of her attackers, but as to point out people here in the courtroom and start asking questions of that sort, sir, I am not going to permit any more of it. Now, you may have an objection. * * * * * * ATTORNEY CORBETT: If your Honor pleases, one of the main defenses in this case COURT: all right. I don't want you to start making a speech here in front of this jury. Now, if you got anything you want to say, then you better let me let the jury go out ATTORNEY CORBETT: is the question of identity and I submit COURT: yes I know, but they are not identifying you and they are not identifying the solicitor and they are not identifying Mr. Dobson. The identity as far is the identities concerns the defendants here on trial, not you three gentlemen. ATTORNEY CORBETT: Your Honor, I submit that it goes to her ability to identify a person in the nighttime * * * COURT: All right ATTORNEY CORBETT: and that I should be permitted to ask further questions about it, but I will abide by the court COURT: Well, how many more questions do you intend to ask along these lines? I have already told you you could ask any questions you wish to ask about identification of these two defendants, but I see no need of having her identify the solicitor and what he happens to be wearing, you and the color of your tie or the color of your eyes or any of the rest of questions of that nature. I am looking at you right now, and I can't tell what the color of your eyes are. ATTORNEY CORBETT: Well, sir; I haven't asked the witness about the color of the defendant's eyes or mine either. COURT: I know, but you asked her about the color of your tie and the color of your shirt. Let's draw this to a conclusion as soon as possible please."

The trial judge is responsible for the orderly conduct of a trial. It is his duty to protect a witness from repetitious questions and he may even order a witness to stand aside if counsel disregards repeated warnings to refrain from repetitious and irrelevant questions. McPhail v. Johnson, 115 N.C. 298, 20 S.E. 373. Here counsel had been permitted broad latitude in his cross-examination of the prosecuting witness. The extremes he went to in an effort to impeach her ability to recall the color of his client's shirt was unreasonable and the judge properly sustained an objection to it. Even so the colloquy that followed between the judge and counsel would best have been engaged in, if at all, outside the presence of the jury.

Every person charged with crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Belk, 268 N.C. 320, 150 S.E.2d 481. To accord this right the trial judge must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. He is expressly forbidden to convey to the jury, in any manner, at any stage of the trial, his opinion as to whether a fact is fully or sufficiently proven. G.S. § 1-180. Our Supreme Court has said many times that G.S. § 1-180 does not apply to the charge alone, but prohibits a trial judge from asking questions or making comments at any time during the trial which amount to an expression of opinion as to what has or has not been shown by the testimony of a witness. Galloway v. Lawrence, 266 N.C. 245, 250, 145 S.E.2d 861, and cases cited therein. The criterion for determining whether the trial judge deprived an accused of his right *138 to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made. State v. Carter, 233 N.C. 581, 65 S.E.2d 9.

While we do not approve of the exchange that occurred between the court and counsel, we are of the opinion that under the circumstances it was not prejudicial to the defendants. The comments of the trial judge were directed to a matter of procedure in the conduct of the trial and do not leave the impression that he was expressing an opinion on the evidence or the credibility of the witness. It must be remembered that the trial judge had already permitted numerous questions concerning colors worn by the two defense attorneys and the solicitor at the trial and there had to be reasonable limits placed on such lines of questioning. The challenged comments at most reflect the court's impatience with counsel's reluctance to abide by his ruling.

It has been held that a remark by the court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial. State v. Hooks, 228 N.C. 689, 47 S.E.2d 234; 2 Strong, N.C. Index 2d, Criminal Law, § 99. Admonitions of the court to counsel upon improper questioning of witnesses has repeatedly been held not prejudicial. State v. Davis, 266 N.C. 633, 146 S.E.2d 646; State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422; State v. Davis, 253 N.C. 86, 116 S.E.2d 365; State v. Carter, supra.

On two occasions during the trial the court asked that the defendants be identified by their counsel after having been pointed out in open court by the prosecuting witness. This was for purposes of the record and it has not been shown where any prejudice resulted to either defendant from this action.

The defendants' remaining exceptions are to various questions asked of witnesses by the court during the course of the trial. We have carefully reviewed these exceptions and are of the opinion that the questions in each instance were for purposes of clarification and did not amount to an expression of opinion by the court. The assignment of error embracing these exceptions is overruled. State v. Colson, 274 N.C. 295, 163 S.E.2d 376; State v. Carter, supra.

A review of the entire record discloses that both defendants have had a fair trial free of any prejudicial error.

No error.

MALLARD, C. J., and BRITT, J., concur.