State v. McCormick

244 S.E.2d 433 (1978)

STATE of North Carolina v. Tommy McCORMICK.

No. 7815SC39.

Court of Appeals of North Carolina.

June 6, 1978.

*434 Atty. Gen. Rufus L. Edmisten by Associate Attys. Douglas A. Johnston and Lucien Capone, III, Raleigh, for the State.

John P. Paisley, Jr., Graham, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in allowing into evidence certain statements made by witness Dickey. According to defendant's contention, these statements were barred by the court's order granting defendant's motion in limine for *435 failure of the State to turn over documents as required by Article 48 of Chapter 15A of the General Statutes. We do not agree.

The record disclosed that defendant in his motion for discovery requested "[a]ll written. . . statements of a co-defendant which the State intends to offer at trial as provided by G.S. 15A-903(b)." Dickey, of course, was not a co-defendant and, thus, the State was not bound to submit copies of Dickey's statement under this portion of defendant's motion. However, defendant also requested:

"Any books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, and/or any other tangible objects which the State intends to offer at trial, specifically but not limited to any documents showing ownership of the twelve-gauge Ithaca shotgun and the forty-four Magnum pistol, in the name of Thomas L. Clark."

We believe this portion of defendant's request clearly included the written statement by Dickey and should have been submitted to the defendant. Nevertheless, the order filed by the court granting defendant's motion in limine did not irreversibly deny the State the right to put on evidence. The order stated in part:

"NOW, THEREFORE, IT IS ORDERED as follows: * * * * * * "That the State and counsel for the State are further ordered to instruct the State, its witnesses and all its counsel, not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly any evidence and/or other information requested in the defendant's Request for Voluntary Discovery and/or Motion for Discovery, without first obtaining permission of the Court outside the presence and hearing of the jury . . .." [Emphasis added.]

The record shows that the court sustained defendant's objection to the reading of the statement, and then the following occurred:

"MR. ALDRIDGE: May I approach the bench, your Honor? "COURT: Yes. (Conference at the bench.) "COURT: Objection is overruled. "Members of the jury, this the following testimony of Mr. Morton is for the sole purpose of corroborating the testimony of Mr. Robert Allen Dickey, a previous witness, if in fact it does corroborate Mr. Dickey's testimony. Again, you will decide whether or not it does. It is admitted for no other purpose, and you will consider it for no other purpose."

Under the facts as presented, therefore, we believe that the State complied with the court's order restricting admission of evidence. The error of allowing mention of the document prior to the court's determination of admissibility was rendered harmless by the court's subsequent ruling.

We next consider defendant's argument that the trial court erred in unfairly expressing an opinion in violation of G.S. 1-180. G.S. 1-180 forbids the trial judge from expressing an opinion as to what facts of a case have been established. Defendant argues that the trial court expressed an opinion at three different points during the trial.

First, defendant contends that the court erred by failing to allow him to be heard upon the Court's ruling on a motion. Defendant's argument is based on the following portion of the record:

"Q. Was anyone with you when you went to this residence? "A. Yes, sir. "MR. PAISLEY: Your Honor, again object and would like to be heard on this objection. "COURT: Overruled. "A. Yes, sir, your Honor. "MR. PAISLEY: Your Honor, I request to be heard. "COURT: Denied. Move on. "A. Yes, sir."

We cannot find in this portion of the record, and defendant does not show us, any prejudice resulting to him. He simply argues that the trial court "did not even *436 extend to defendant's counsel the courtesy to be heard upon his objection, tending to discredit defendant's counsel and his case in the eyes of the jury." Taking into consideration the fact that the trial court had just heard defendant on an objection to this line of questioning, we find no error prejudicial to defendant.

We also find no prejudicial error in the trial court's use of the word "harassed" in the following discussion:

"(At this time, the State requested that Mr. Clark be permitted to leave the courtroom.) "MR. PAISLEY: Your Honor, we're not sure; but particularly after we put Mr. McCormick on the stand, we may have a question of him at that time depending on "COURT: He's been down here long enough and been harassed enough; so I'm going to let him go. He can unless you can show me some reason why you need him any longer."

While we fail to understand the trial court's use of the term "harassed" and while we do not approve it, we cannot find that this expressed an opinion necessarily harmful to defendant.

Finally, defendant argues that the trial court erred in posing certain questions to defendant while defendant was on the witness stand and after counsel for both defendant and the State had questioned him. This argument has merit. We agree that the trial court, in questioning the defendant, expressed an opinion in violation of G.S. 1-180.

The record is unclear about when the alleged breaking and entering occurred. The indictment stated "on or about the 11th day of March 1976"; there was evidence to show that the Clarks had first missed the shotgun and pistol on the 11th day of March, and defendant put on extensive evidence concerning his whereabouts on March 11. No other date was mentioned until the trial court asked the following questions of defendant:

"COURT: And what did you do on March the 10th, Mr. McCormick? The morning of March the 10th? "A. About the that that whole time I I never I never did usually get up well, about that time, you know, I'd usually sleep until about 12:00 or 1:00 o'clock, something like that. "COURT: What did you do March the 9th? "A. About the same time, you know, that was at that time, period of time, I was playing a lot of pool over at the Idle Hour in Burlington and I'd usually just stay hang around the house and sleep and rest until, you know, it was time for the pool room to open and I'd go over there and usually stay over there until closing time and then I'd come home. "COURT: March the 8th? "A. Sir? "COURT: What did you do on the morning of March the 8th? "A. I guess the same well, about the same like I said, the whole time, about the whole time of that say that month it was, you know, the pool room was it was a good time for playing pool. It was a lot of people around playing pool, coming through and everything. I played a lot of pool."

While a trial court may ask competent questions to a witness in order to clarify his testimony, he must exercise extreme care that he not express an opinion on the facts. State v. Kimrey, 236 N.C. 313, 72 S.E.2d 677 (1952). We find that here, as in the Kimrey case, the trial court's questions amounted to a cross-examination of defendant which was calculated to impeach defendant and deprecate his testimony before the jury. As far as we can tell, the questions propounded in no way clarified evidence about which defendant had been testifying; indeed, they related solely to defendant's activities on days not previously mentioned and had the effect of impeaching defendant's recollection as to his activities on 11 March. While this may have been a proper line of questioning by the district attorney, it was clearly not proper *437 when undertaken by the trial court. G.S. 1-180 was violated and defendant is entitled to a new trial.

New trial.

BRITT and ERWIN, JJ., concur.