Opinion
No. 1
Filed 14 April 1971
1. Criminal Law 99 — impartiality of the trial court — scope of statute The statute imposing the duty of absolute impartiality on the trial judge has been construed to include any opinion or intimation of the judge at any time during the trial which is calculated to prejudice either of the parties in the eyes of the jury. G.S. 1-180.
2. Criminal Law 99 — examination of witnesses — expression of opinion by court In exercising its duty of controlling the examination of a witness the court must not intimate any opinion either of the witness or of his credibility.
3. Criminal Law 99 — ridicule of witness G.S. 1-180 prohibits any ridicule that casts aspersions on the testimony of a witness and thus damages his credibility.
4. Criminal Law 99, 170 — remarks of trial court — prejudicial effect — new trial Cumulative effect of trial court's remarks was prejudicial to the defendant and warranted a new trial, where the remarks included the following statements: "It's your case. Try it any way you want to" [to defense counsel]; "Let me inform you, Mr. Frazier, don't come out with any short answers in my court" [to defendant]; "You don't mean he's still there" [to a defense witness, in response to her testimony that her husband did not leave the home on the night of the crime].
APPEAL by defendant from judgment of Bailey, J., 26 June 1967 Special Criminal Session of MECKLENBURG Superior Court.
Osborne and Griffin by Wallace S. Osborne, Attorneys for defendant appellant.
Robert Morgan, Attorney General; James L. Blackburn, Staff Attorney, for the State of North Carolina.
Justice LAKE dissenting.
Jackie Coleman Frazier, Donald Laughter, Andy Gay Laughter, Harold Carr and John R. Dossett were charged in a bill of indictment with unlawfully placing and burning a cross on the property of Genius C. Evans without first obtaining written permission from the owner or occupier of the premises, a violation of G.S. 14-12.12.
The State's evidence tends to show that on the morning of 31 December 1966 Genius C. Evans and his wife discovered a partially burned cross standing in their front yard. They had not given written or oral permission to anyone to place or burn a cross on their premises. The police were notified and the cross was removed from the premises.
Freddy C. Smith and Frederick Davidson Feimster each testified that he was a member of the Ku Klux Klan and attended a Klan meeting on Friday night, 30 December 1966; that the five defendants in this case were present at that meeting; that following the meeting all of them went to Andy Laughter's house about 10:15 p.m. and constructed two crosses; that Andy and Donald Laughter wrapped the crosses in burlap and Jackie Coleman Frazier furnished some type of liquid fuel to put on the crosses so they would burn better; that the crosses were then put in Andy Laughter's car and all five defendants proceeded to the Evans home on Hutchinson-McDonald Road; that one of the crosses was taken from Andy Laughter's car and set up in the Evans front yard. "The cross was set in a stand which we built at the same time we built the cross and it was ignited and then we got back in the automobiles and left. As we pulled away from the house, the cross was burning."
Each of the defendants, as well as other witnesses presented in their behalf, testified that all five defendants were at a surprise birthday party at John R. Dossett's home on the night of 30 December 1966 and until about 2 a.m. on the morning of 31 December 1966; that they were not with Freddy C. Smith or Frederick Davidson Feimster at any time that night and did not participate in the cross burning activities described by those two witnesses.
All five defendants were convicted. Defendant Jackie Coleman Frazier was sentenced to eighteen months imprisonment and gave notice of appeal in apt time. He was allowed thirty days in which to prepare and serve statement of case on appeal. His counsel at that time, Lester V. Chalmers, Jr., failed to perfect the appeal within the allotted time and on 20 September 1967 Judge Snepp, on motion of the solicitor, dismissed the appeal. Thereafter, defendant employed his present counsel and petitioned this Court for permission to perfect a delayed appeal. His petition, treated as a petition for certiorari to the Superior Court of Mecklenburg County to send up the record as a delayed appeal, was allowed. The appeal is now before this Court for consideration of the assignments of error noted in the opinion.
No constitutional questions are raised on this appeal. Appellant brings forward three assignments of error, but we find it necessary to discuss only one of them, to wit: Did various remarks of the judge in the course of the trial amount to an expression of opinion on the evidence in contravention of G.S. 1-180?
At the outset we are faced with the fact that oftentimes the printed word does not capture the emphasis and the nuances that may be conveyed by tone of voice, inflection, or facial expression. In Towne v. Eisner, 245 U.S. 418, 62 L.Ed. 372, 38 S.Ct. 158 (1918), Mr. Justice Holmes said: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances at the time in which it is used." Hence we can only read the record and adjudge by reason and deduction whether the remarks assigned as error were so disparaging in their effect that they could reasonably be said to have prejudiced the defendant. State v. Owenby, 146 N.C. 677, 61 S.E. 630 (1908); State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968).
G.S. 1-180 imposes on the trial judge the duty of absolute impartiality. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107 (1959). It forbids the judge to intimate his opinion in any form whatever, "it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury." State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). It has been construed to include any opinion or intimation of the judge at any time during the trial which is calculated to prejudice either of the parties in the eyes of the jury. State v. Douglas, 268 N.C. 267, 150 S.E.2d 412 (1966); Everette v. Lumber Company, 250 N.C. 688, 110 S.E.2d 288 (1959). "Both the courts and those engaged in the active trial practice recognize the strong influence a trial judge may wield over the jury. `The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. G.S. 1-180.'" State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966).
As stated by Mr. Justice Black in Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S.Ct. 1057 (1970): "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." To that end "[t]he 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, 144 N.C. 184, 56 S.E. 855 (1907).
It now becomes our duty to apply these principles to the remarks of the trial court which form the basis of defendant's assignment of error. Each dialogue occurred while the defendant was offering evidence. The first remark was made when defendant Frazier was on the stand and was being examined by his attorney, Mr. Chalmers. The attorney said: "I hand you here State's Exhibit No. 3 and ask . . . Your Honor, I am sorry, I referred to these Exhibits as State's Exhibits, they are Defendant's Exhibits." The trial judge replied: "It's your case. Try it any way you want to." While this remark was completely gratuitous and unnecessary, we cannot say that, standing alone, it was prejudicial. Nevertheless, when remarks from the bench tend to belittle and humiliate counsel, defendant's case can be seriously prejudiced in the eyes of the jury. See Annotation, Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal, 62 A.L.R.2d 166 (1958).
A moment later, during cross-examination of defendant by the State, the defendant was asked: "Mr. Frazier, the cross wasn't burning when you got out of the car and put it in the yard, was it, isn't that right?" The defendant answered: "Suppose you give me a question and I'll answer it." At this point the court interjected: "Wait a minute. Let me inform you, Mr. Frazier, don't come out with any short answers in my court." The defendant now contends that this statement indicated to the jury that the court was antagonistic toward him.
"It is both the right and the duty of the presiding judge to control the examination and cross-examination of witnesses, both for the purpose of conserving the time of the court, and for the purpose of protecting the witness from prolonged and needless examination." State v. Mansell, 192 N.C. 20, 133 S.E. 190 (1926). Nevertheless, in doing so the court must not intimate any opinion either of the witness or his credibility. State v. Belk, supra. The remark of the court here was undoubtedly calculated to impress upon the witness that he should keep in mind the gravity of the situation and control his attitude accordingly. As such, an appropriate admonition was entirely in order. The language used by the judge, although not the wisest choice, is insufficient standing alone to constitute reversible error.
The third remark of which defendant complains occurred when Donald Laughter was being examined by Attorney Chalmers, who represented all five defendants. Laughter had denied placing or burning a cross on the night in question. Attorney Chalmers then asked: "Mr. Laughter, have you at any time, anywhere . . ." The court interrupted, saying: "Mr. Chalmers, we are only trying him for one place." Defendant contends this remark clearly implied to the jury that defendants had burned other crosses at other times and places and was highly prejudicial. The State contends, on the other hand, that the court was only trying to keep the examination within the bounds of relevancy. In our view, the defendant's position is more consonant with reason. Its import may well have found its mark in the minds of the jurors. Upchurch v. Funeral Home, 263 N.C. 560, 140 S.E.2d 17 (1965). See Annotation, Prejudicial effect of trial judge's remarks, during criminal trial, disparaging accused, 34 A.L.R.3d 1313 (1970).
The fourth incident occurred during the direct examination of Betty Lou Dossett, wife of defendant John R. Dossett. In response to a question by defense counsel, she testified that her husband was at home at 5:30 p.m. on 30 December 1966 "and he did not depart from the residence either after 5:30 p.m. or 12 o'clock midnight." The court interjected: "You don't mean he's still there?"
While this remark was probably intended as humorous, it tends to ridicule the witness and impair her credibility in the eyes of the jury. G.S. 1-180 prohibits any ridicule that casts aspersions on the testimony of a witness and thus damages his credibility. "It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so. . . ." State v. Horne, 171 N.C. 787, 88 S.E. 433 (1916). Even so, the law requires such examinations to be conducted with care and in a manner which avoids prejudice to either party. "If by their tenor, their frequency, or by the persistence of the trial judge they tend to convey to the jury in any manner at any stage of the trial the `impression of judicial leaning,' they violate the purpose and intent of G.S. 1-180 and constitute prejudicial error." State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). Accord State v. Lea, 259 N.C. 398, 130 S.E.2d 688 (1963); State v. Peters, 253 N.C. 331, 116 S.E.2d 787 (1960); Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); State v. McRae, 240 N.C. 334, 82 S.E.2d 67 (1954).
The fifth comment by the court to which exception is taken occurred during the examination of the same witness a few minutes later. Attorney Chalmers elicited the same testimony from the witness, i.e., that her husband was at home all evening. The State objected on grounds of repetition and the objection was sustained. Mr. Chalmers then inquired: "May I get her answer in the record your Honor?" The court replied: "You may not. It's been answered three times." An examination of the record discloses that the court was correct. The answer of the witness is indeed in the record three times. Since the court must be left free to keep the examination of witnesses under control and within the bounds of lawful, relevant, and nonrepetitive inquiry, we hold that this remark was not error.
As already noted, some of the judge's comments run counter to the intent and meaning of G.S. 1-180. Some do not. Any one of them standing alone, even when erroneous, might not be regarded as prejudicial. But when all the incidents are viewed in light of their cumulative effect upon the jury, we are constrained to hold that the cold neutrality of the law was breached to the prejudice of this defendant. The content, tenor, and frequency of the remarks, and the persistence on the part of the trial judge portray an antagonistic attitude toward the defense and convey to the jury the impression of judicial leaning prohibited by G.S. 1-180. This requires a new trial.
We have examined the remaining assignments of error and find nothing of sufficient import to merit discussion.
For the reasons above set out, there must be a
New trial.