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State v. Green

June 02, 1998


The opinion of the court was delivered by: Smith, Judge.

Appeal by defendant from Gregory A. Weeks, Judge. Judgment entered 12 March 1996 in Superior Court, Robeson County. Heard in the Court of Appeals 23 February 1998.

Defendant was convicted in February 1996 of first-degree murder felony, robbery with a dangerous weapon and conspiracy to commit robbery and was sentenced in March 1996 to life imprisonment plus ten years. The State's evidence in this case tends to show that the victim, James Jordan, had been sleeping in his Lexus automobile by a highway in Robeson County, North Carolina, in the early morning hours of 23 July 1993. Defendant and his friend, Larry Demery, approached the car, fatally shot Mr. Jordan and dumped his body off a bridge in an area known as Gum Swamp in Marlboro County, South Carolina. After dumping the body, defendant and Demery used the cellular telephone in the car, drove the car to a number of locations, showed the car to a number of people and displayed distinctive jewelry taken from Mr. Jordan's body and items taken from the car. By the use of cellular telephone records, authorities began to develop evidence that led them to defendant and Demery. The two were charged with murder and other offenses in August 1993. Defendant was convicted following a jury trial in which Demery testified for the State.

In this appeal, defendant made numerous assignments of error. We examine those brought forward in his brief. All other assignments of error are deemed to have been abandoned pursuant to the North Carolina Rules of Appellate Procedure, Rule 28(a).

Defendant first asserts that the trial court erred by preventing him from cross-examining Larry Demery about remarks made by law enforcement officers to Demery during Demery's interrogation. Specifically, defendant asserts that the trial court erroneously stopped him from asking Demery about alleged threats made by police during the interview in which Demery implicated defendant in James Jordan's death. This argument is without merit.

The trial transcript shows that defendant's attorneys cross- examined Demery at length about the circumstances of the initial interrogation that followed Demery's arrest in August 1993. During cross-examination, in the jury's presence, Demery testified that: He was interrogated with up to eight or nine officers present at one time; the interrogation lasted roughly nine hours; none of Demery's friends or family members was present; several officers interrogated him at one time and used profanity; the officers made statements indicating he would face lighter charges and punishment if he made a statement and would face harsher charges and punishment, including the death penalty, if he did not make a statement; he was "scared" about "all these charges"; the officers told him he could not get a fair trial because of the identity of the victim; and the presence of an FBI agent made him think that he might face federal as well as state charges. Demery also testified he made a plea bargain with the State and had agreed to assist the State in obtaining a conviction against defendant. Demery testified that as part of the plea bargain, numerous charges against him were consolidated. While acknowledging he was "scared," Demery repeatedly insisted he was not "intimidated" by the officers who interrogated him. On at least four occasions during defendant's cross-examination of Demery, defense counsel asked Demery if he felt intimidated during the interrogation. In each instance, Demery said he had not been intimidated.

The litany of circumstances surrounding the interrogation and Demery's repeated denials of intimidation notwithstanding, defendant asserts the trial court erred when it sustained an objection during cross-examination of Demery as follows:

Q: And Mr. Demery, the person that broke you told you that "we're talking about first degree murder, capital, you understand. Capital, that's the needle up your ass, son, and you don't wake up from it. All right. Capital. You get a good prosecutor that wants to push it, son, I'm talking capital, all right. Let this man shove it up your ass." Is that the person that broke you?

A: No, the person who said that was a little -- I don't remember his name, but he was a little short bald-headed guy with a smart mouth, but that's not the same person.

Q: The person that broke you, Mr. Demery, did he tell you that, "See, Larry, Daniel can't be guilty of the heinous crime if what he said is true, if all he did was help dump the body in the river. Everything he did according to him was after Mr. Jordan was dead, not before. He can't be guilty of a heinous crime. But he sure shoved that needle up your rear end," is that the person who broke you who said that?

Mr. BRITT [for the State]: Objection, move to strike.

The trial court sustained the objection on the grounds that the question was based on hearsay and, therefore, admissible only to impeach the officer who allegedly made the statement. Defendant contends this was error because he should have been permitted to "confront" Demery with these specific words: "See, Larry, Daniel can't be guilty of the heinous crime if what he said is true, if all he did was help dump the body in the river. . . . He can't be guilty of a heinous crime. But he sure shoved that needle up your rear end." Defendant contends such a confrontation would have enabled him to "test," in the presence of the jury, how the statement "affected" Demery. Defendant argues that if Demery had been "shaken" by a repetition of the detective's distasteful remarks during the cross-examination, the jury would have seen not only that Demery was intimidated during the initial interrogation but that he was still scared and he was still trying to save himself by testifying against defendant.

We reject this argument for several reasons: One, defendant cross- examined Demery over a period of several days, giving the jury ample opportunity to observe Demery's demeanor, including any manifestations of nervousness or fear. Two, the circumstances of the initial interrogation and statements very similar to the one in question came into evidence, giving the jury the opportunity to gauge how such circumstances and remarks might affect someone in Demery's position. Three, defendant repeatedly asked Demery whether he had been intimidated during the interrogation, and Demery repeatedly said, "No." Four, defendant had the opportunity to question the investigators about how they conducted the interrogation of Demery.

We recognize that "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 353 (1974). We also note, however, that "the trial Judge, who sees and hears the witnesses and knows the background of the case, has wide discretion in controlling the scope of cross-examination." State v. Hansley, 32 N.C. App. 270, 273, 231 S.E.2d 923, 925 (1977) (citations omitted). In Hansley, this Court held that the trial court did not err in sustaining the State's objections where defendant attempted to cross- examine State's witness about statements made to her by others to show influence on her testimony. Id. As in Hansley, "[w]e perceive no abuse of discretion under the facts in this case." Id.

Finally on this point, we note defendant's argument that the trial court erred in characterizing the disputed question as hearsay. Defendant says he was not offering the distasteful statements for the truth of the statements but rather to test their affect on Demery. The State counters that defendant framed his question in such a way as to allege that the investigator made distasteful statements in an attempt to threaten and coerce Demery. In support of its position, the State cites State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386 (1967), in which our Supreme Court held that a defendant is not entitled to offer evidence of his own, "under the guise of cross examination, in the midst of the State's presentation of its case . . . ." Id. at 646, 157 S.E.2d at 409. We find this argument persuasive, particularly in light of the fact that defendant had the opportunity to question investigators about how they conducted their interrogation of Demery. If the trial court erred in sustaining the objection, the error was harmless beyond a reasonable doubt. Defendant had ample opportunity to cross-examine Demery, and distasteful remarks used by investigators during the initial interrogation of Demery were admitted in evidence. The trial court gave defendant full opportunity to cast doubt upon Demery's credibility and motivation. It was the jury's prerogative and province to draw its own Conclusions.

Defendant next contends he is entitled to a new trial because, he asserts, the trial court expressed an opinion on the evidence during defendant's closing argument.

"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 (1977).

It is fundamental to our system of Justice that each and every person charged with a crime be afforded the opportunity to be tried "before an impartial Judge and an unprejudiced jury in an atmosphere of judicial calm." As the standard-bearer of impartiality the trial Judge must not express any opinion as to the weight to be given to or credibility of any competent evidence presented before the jury.

In evaluating whether a Judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. "[U]nless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless."

State v. Larrimore, 340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995) (citations omitted). Defendant bears the burden of establishing that the trial Judge's remarks were prejudicial. State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361, disc. review denied, 327 N.C. 143, 394 S.E.2d 183 (1990). In weighing whether an expression by the trial court prejudiced a defendant's case, our Supreme Court has taken into account the trial court's instructions as to its own impartiality. State v. Porter, 340 N.C. 320, 330-31, 457 S.E.2d 716, 721 (1995).

In the case at bar, the trial court made the remarks in question in response to defendant's suggestion, during closing arguments, that the State had "problems" with certain evidence and improperly tried to "cure" them. The State objected to defendant's insinuation, and the trial court sustained the objection, saying, Members of the jury, you are to disregard any contention by counsel for defendant, Mr. Bowen, that there has been any fabrication of evidence in this case in any respect. There is absolutely no evidence to support that contention. That is improper, and you're not to consider that argument in any respect during your deliberations in this matter.

Defendant contends that, with those remarks, the trial court effectively instructed the jury to accept the testimony of Larry Demery, a key State witness, at face value. We disagree. The trial court did not mention Demery or make any reference to his testimony. Viewing the trial court's comments in the context in which they were made, and in the broader context of a trial that lasted roughly ten weeks and produced a transcript of more than 8,000 pages, we find no error. Furthermore, the trial court instructed jury members that they were the sole Judges of the credibility of each witness and that they must decide for themselves whether to believe the testimony of any witness. The trial court also instructed the jury:

Now, folks, the law as indeed it should, requires the presiding Judge to be impartial. Therefore, I instruct you that you are not to draw any inference from any ruling that I have made. You are not to draw any inference from any inflection in my voice, any expression on my face, or any question that I may have asked the witness during the course of these proceedings, or anything else that I may have said or done as to whether or not I have any of any kind or as to whether or not I have intimated any opinion of any kind, as to whether any of the evidence in this case should be believed or disbelieved, or as to whether any fact in this case has or has not been proved, or as to what your findings ought to be. It is your exclusive province to find the true facts of this case and to render a verdict reflecting the truth as you find it to be.

This assignment of error is without merit.

Defendant next asserts that the trial court committed error by admitting in evidence statements defendant made to law enforcement during what defendant asserts was a custodial interrogation where no Miranda warnings were given.

Several officers went to defendant's home on 14 August 1993, and he voluntarily went with them to the Robeson County Sheriff's Department. The officers told defendant he was not under arrest. They did not read him his Miranda rights prior to questioning him throughout the night. In response to the questioning, defendant made many statements. These were used at trial to cast doubt on alibi testimony that defendant presented through a number of third-party witnesses. The question before us is whether ...

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