Opinion
No. COA11–1181.
2012-04-17
STATE of North Carolina v. Terry Ray COX.
Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State. Paul F. Herzog, for Defendant.
Appeal by Defendant from judgment entered 29 March 2011 by Judge James Floyd Ammons, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 16 April 2012. Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State. Paul F. Herzog, for Defendant.
BEASLEY, Judge.
Terry Ray Cox (Defendant) appeals from a judgment imposing an active sentence of 80–105 months upon convictions of (1) felony operating a motor vehicle while fleeing and attempting to elude a law enforcement officer, and (2) attaining habitual felon status.
The State's evidence tends to show that on the evening of 24 November 2009, Deputy Brian Carlisle of the Brunswick County Sheriff's Department K–9 unit engaged in a pursuit of a Dodge automobile which reached speeds exceeding 110 miles per hour. The chase ended when the Dodge automobile crashed into a ditch. Deputy Carlisle observed a man, whom he identified as Defendant, exit from the driver's seat of the vehicle and run into some woods. An officer with the Shallotte Police Department K–9 unit arrived to assist. Both officers released their dogs to track the person but the dogs' pursuit was foiled by an electric fence. Deputy Carlisle returned to the Dodge automobile and spoke to two occupants who remained in the vehicle. After speaking to them, he obtained a warrant for Defendant's arrest.
While engaged in the chase, Deputy Carlisle had a dispatcher research the license plate number of the Dodge vehicle. The dispatcher reported the vehicle's owner as Patricia Olsen.
Patricia Olsen testified for the State that she had been involved in a romantic relationship with Defendant and had lived with him for seven months during which time they had purchased a Dodge Intrepid automobile together. The vehicle was kept parked in Defendant's yard. When Defendant's relatives notified her that they had seen “unlicensed drivers” operating the vehicle, she unsuccessfully attempted to contact Defendant. On 25 November 2009, she, a friend, and a sheriff's deputy went to Defendant's workplace to look for the vehicle but the vehicle was not there. Defendant called her about an hour later and stated that the car had been stolen. He told her that if she would not complete a stolen vehicle report or call the police, he would help her find the automobile.
Ms. Olsen disregarded Defendant's offer and contacted the sheriff's department later that day. The officer in charge informed her that the vehicle had been involved in a high speed chase the night before and that it had been wrecked and impounded. She spoke to Defendant about a week later after she had gotten the car out of impoundment. Defendant acknowledged that the car was wrecked after turning a corner “going really fast.” He also told her that a female, a male, and the female's dog were in the vehicle and that a police car passed by the car in the ditch. He also indicated that police dogs were there and that they were not able to apprehend him.
At the conclusion of Defendant's cross-examination of Ms. Olsen, the court interrogated her as follows:
Q. Did Terry tell you about the police chase?
A. No, I read about that on the motion of discovery.
....
Q. Did he tell you about the dogs?
A. He said they had dogs there looking through the woods.
Q. What did he tell you he was doing there this time?
A. Do I have to answer?
THE COURT: YES, MA‘AM, YOU HAVE TO ANSWER; YOU HAVE TO TELL THE TRUTH.
A. I would tell the truth but I would rather not answer. They were looking for him. Q. Why were they looking for him?
A. I assume that the police officers thought he was driving.
Q. Did he tell you whether he was driving or not?
A. He never told me directly.
Q. What did he tell you?
A. He just said that they had the dogs out there and never did find him.
Q. Why didn't they find him?
A. That I don't know, sir.
Q. Why weren't they able to catch him in the car?
A. Because he got out and ran.
The court then offered the parties the opportunity to ask additional questions. Both the prosecutor and Defendant asked follow-up questions.
Defendant contends the court committed prejudicial error by questioning Ms. Olsen. Our Rules of Evidence permit a court to “interrogate witnesses, whether called by itself or by a party.” N.C. Gen.Stat. § 8C–1, Rule 614(b) (2011). Indeed, it has been stated that “the trial judge has a duty to question a witness in order to clarify the testimony being given, or ‘to elicit overlooked, pertinent facts.’ “ State v. Efird, 309 N.C. 802, 808–09, 309 S.E.2d 228, 232 (1983) (internal quotation mars and citations omitted). Questioning or examination of a witness, however, is “to be conducted with care and in a manner which avoids prejudice to either party.” State v. Frazier, 278 N.C. 458, 463, 180 S.E.2d 128, 132 (1971). No objection is necessary to preserve for appeal the issue of the propriety of the judge's questioning. N.C. Gen.Stat. § 8C–1, Rule 614(c) (2011).
Defendant argues the court impermissibly expressed an opinion and assumed a role as prosecutor through its questioning.
It is well established by our case law and statutory enactments that it is improper for a trial judge to express in the presence of the jury his opinion upon any issue to be decided by the jury or to indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury. Even so, every such impropriety by the trial judge does not result in prejudicial error. Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results.
State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985) (citations omitted). Defendant claims the court displayed bias in favor of the prosecution by: (1) asking a large number of questions, thereby suggesting it thought Ms. Olsen was being less than candid in her testimony; (2) encouraging Ms. Olsen to engage in speculation about the meaning of information she received from Defendant; and (3) trying to coerce Ms. Olsen into identifying Defendant as the driver of the Dodge.
Defendant's discloses that Ms romantic feelings eight questions, responses, took up only thirty-two lines of the transcript. During his charge to the jury, the trial judge admonished the jurors not to
mistakenly infer that I have implied that any of this evidence should be believed or disbelieved; that a fact has been proven or not or that I have any opinion as to what your findings ought to be. You should not let any expression on my face, inflection in my voice or any question that I may have asked a witness, to influence you in any way.
“Jurors are presumed to follow the trial court's instructions.” State v. Gregory, 340 N.C. 365, 408, 459 S.E.2d 638, 663 (1995). In view of these “factors and circumstances disclosed by the record,” we conclude Defendant has failed to carry his burden of showing prejudicial error.
In Defendant's trial, we find no error.
No Error. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).