Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State. Unti & Lumsden, LLP, by Margaret C. Lumsden, for Defendant.
Appeal by Defendant from judgments entered 31 May 2012 by Judge Russell Duke, Jr., in Martin County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State. Unti & Lumsden, LLP, by Margaret C. Lumsden, for Defendant.
William Earl Johnson, Jr., (Defendant) appeals from judgments entered based upon jury verdicts finding Defendant guilty of resisting a public officer, driving while license revoked, possession of an open container and driving while impaired. We conclude Defendant had a fair trial, free from prejudicial error.
The evidence of record is conflicting, but tends to show the following: On 27 November 2009, at approximately 11:35 P.M., Officer Michael Pope observed Defendant driving an automobile and swerving in between lanes of traffic on East Boulevard in Martin County. After Officer Pope turned on his blue lights and siren, Defendant traveled another quarter of a mile before he pulled over. Officer Pope approached the vehicle and detected that Defendant had a strong odor of alcohol. In addition, Defendant's speech was slurred. When Officer Pope asked Defendant for his license and registration, Defendant replied that he did not have a driver's license. Defendant gave Officer Pope his North Carolina Identification card. Defendant's driver's license had been suspended. Officer Pope saw a 12–pack of beer in the passenger floorboard. Officer Pope also found an open beer can under the driver's seat, which contained alcohol. Defendant said he “had been drinking one or two beers” and refused to take an Alkasensor breath test.
Defendant's license had been suspended for driving while impaired on 18 October 2010.
Officer Pope believed Defendant had consumed a sufficient quantity of alcohol to impair his mental and physical faculties. Officer Pope asked Defendant to get out of the vehicle. Defendant refused. Officer Pope asked twice more, but Defendant did not get out of the vehicle. Officer Pope then tried, unsuccessfully, to physically remove Defendant from the vehicle. Another officer, who was also present at the scene, dry-stunned Defendant from the passenger side of Defendant's vehicle, after which Defendant complied with Officer Pope's directions. At the Magistrate's Office, Defendant again refused to submit to a breath test.
Defendant was charged with driving while impaired, driving while license revoked, possession of an open container of alcohol in the passenger area of a motor vehicle, resisting a public officer, and driving left of center. After Defendant's trial, the jury found Defendant guilty of resisting a public officer, driving while license revoked, possession of an open container and driving while impaired. On 19 July 2010, the trial court entered judgments consistent with the jury's verdicts sentencing Defendant to 24 months incarceration for driving while impaired, 45 days incarceration for driving while license revoked and possession of an open container, and 45 days incarceration for resisting an officer, to be served consecutively. However, the trial court suspended Defendant's active sentences and placed Defendant on supervised probation for 24 months. As a condition of special probation, the trial court ordered that Defendant serve an active term of 30 days in the custody of the Martin County Sheriff's Department for the impaired driving conviction. From these judgments, Defendant appeals.
The charge of driving left of center was dismissed at the close of the State's evidence.
I: Judicial Hostility
In Defendant's first argument, he contends the trial court engaged in improper and disrespectful conduct toward his trial counsel in violation of N.C. Gen.Stat. § 15A–1222 and N.C. Gen.Stat. § 15A–1232 in violation of his constitutional rights to due process and effective assistance of counsel. We disagree.
We address Defendant's arguments pertaining to ineffective assistance of counsel in section two of this opinion.
N.C. Gen.Stat. § 15A–1222 (2011) provides that “[t]he 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.” Id. Moreover, N.C. Gen.Stat. § 15A–1232 (2011), provides, “[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.” Id.
“Whenever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N .C.G.S. §§ 15A–1222 and 15A–1232, the error is preserved for review without objection due to the mandatory nature of these statutory prohibitions.” State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005), cert. denied,549 U.S. 855 (2006).
“It is fundamental to due process that every defendant be tried before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ” State v. Brinkley, 159 N.C.App. 446, 450, 583 S.E.2d 335, 338 (2003) (citation and quotation marks omitted) (emphasis in original). “Jurors respect the judge and are easily influenced by suggestions, whether intentional or otherwise, emanating from the bench[;][c]onsequently, the judge must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury[.]” State v. Coleman, 65 N.C.App. 23, 29, 308 S.E.2d 742, 746 (1983), cert. denied, 311 N.C. 404, 319 S.E.2d 275 (1984) (citation and quotation marks omitted). “The judge's duty of impartiality extends to defense counsel[;][h]e should refrain from remarks which tend to belittle or humiliate counsel since a jury hearing such remarks may tend to disbelieve evidence adduced in defendant's behalf.” Id. “While not every improper remark will require a new trial, a new trial may be awarded if the remarks go to the heart of the case.” State v. Sidbury, 64 N.C.App. 177, 179, 306 S.E.2d 844, 845 (1983).
“In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.” State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). “The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless 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. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950).
Defendant also directs this Court to several statements made by the trial court after the jury's verdict had been rendered. However, as there was no possibility that the statements made after the return of the jury's verdicts had a prejudicial effect on the result of the trial, any alleged error was harmless and need not be considered in our analysis. Perry, 231 N.C. at 471, 57 S.E.2d at 777.
Q. Did you see him put [the Alkasensor] in his mouth?
A. I do not know.
Q. You do not know.
A. As far as my records state
Q. Were you standing there?
A.—Lieutenant McDougal administered the Alkasensor in which he was incooperative.
Q. Well, those are conclusions. I'm trying to get to facts.
THE COURT: We don't need your comment. You just put your comments in the form of questions.
Q. At what point did Patrol Officer Lucido decide to dry-stun [Defendant]?
A. After he refused the first exit of the vehicle. After I advised [Defendant] to exit the vehicle and he refused to do so.
Q. Okay. I am really confused.
THE COURT: Ms. Fagan,
THE COURT:—wait just a moment. Now, ladies and gentlemen, you are not to consider any comments by the lawyer, such as “I am real confused,” or et [ ]cetera. She knows that she is to place her statements, all of her statements, to a witness in the form of questions, and she is to give the witness an opportunity to answer the question. Now, I expect that you do that.
Q. How many volts of electricity go through a person who is being dry-stunned?
A. I have no clue of the volts. But I have been tased myself, and I was able to get up.
MS. FAGAN: Your Honor, strike that. That was unresponsive. I asked him how many volts.
THE COURT: Ma‘am, the proper way to say whatever you're supposed to say to the Court is objection.
Q. And, in those training sessions, have they discussed the deaths that have occurred in North Carolina with the use of taser guns?
MR. JONES: Objection.
THE COURT: Sustained. Ladies and gentlemen, you are not to infer by the question of the defense counsel that there have been any deaths in North Carolina. It is not a fact in evidence, and you are not to infer that there has been; you are not to accept that as being true. Now, can all of you accept that and follow that instruction? If you can, please raise your hand.... Counsel has knowingly introduced a fact into evidence that is not under oath about some sort of death in North Carolina regarding stun guns. It is inadmissible, and she knows it. Now, do all of you agree that you do not consider such statements in your deliberation?
Q. Now, which officer was that?
Q. Was it this officer here? A. No, Ma‘am.
MS. FAGAN: Let the record reflect that he was looking at Sergeant Pope.
THE COURT: What?
MS. FAGAN: I said I'm asking that—to have the record reflect that he is identifying Sergeant Pope.
THE COURT: Just continue your questioning.
Q. So Sergeant Pope's testimony a minute ago was that Patrol Officer Lucido
THE COURT: Wait. Wait just a minute. You can't re-state somebody's testimony.
Although many of the trial court's comments could have been articulated in a more neutral fashion, better facilitating an “atmosphere of judicial calm,” Brinkley, 159 N.C.App. at 450, 583 S.E.2d at 338 (2003), it is nonetheless our opinion the statements of the trial court, when considered in the light of all the facts and attendant circumstances—including the plenary evidence incriminating Defendant—were not of such prejudicial nature as to have had any appreciable effect on the result of the trial below. Assuming arguendo the trial court expressed an impermissible opinion, we conclude the error was harmless. See State v. Gell, 351 N.C. 192, 207–08, 524 S.E.2d 332, 342–43,cert. denied, 531 U.S. 867 (2000) (stating that “[t]he trial court made appropriate inquiries into evidentiary issues, asked questions designed to promote a proper understanding of the testimony, and generally supervised and controlled the course of the trial and the scope and manner of witness examination with care and prudence”); see also State v. Herrin, 213N.C.App. 68, ––––, 711 S.E.2d 802, 807,appeal dismissed, 365 N.C. 351, 732 S.E.2d 158 (2011) (stating that “[a]lthough the judge's outburst may have been ill-advised and did not exemplify an undisturbed ‘atmosphere of judicial calm,’ after considering the matter ‘in light of the factors and circumstances disclosed by the record,’ we conclude that any resulting error was harmless and did not prejudice defendant so as to entitle him to a new trial”) (internal citations omitted).
II: Motion for Continuance; Ineffective Assistance of Counsel
In Defendant's second argument, he contends the trial court erred in denying his counsel's motion for a continuance for medical reasons. Defendant further contends that the denial of his motion for a continuance rose to the level of constitutional error, as it deprived Defendant of the right to the effective assistance of counsel. We find Defendant's arguments unconvincing.
“A motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and the ruling will not be disturbed absent a showing of abuse of discretion.” State v. Blakeney, 352 N.C. 287, 301, 531 S.E.2d 799, 811 (2000), cert. denied, 531 U.S. 1117 (2001). “However, when a motion to continue raises a constitutional issue, as in the instant case, the trial court's ruling is fully reviewable by an examination of the particular circumstances of each case.” State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000) (citation and quotation marks omitted). “Generally, the denial of a motion to continue, whether a constitutional issue is raised or not, is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error.” Id. (citation omitted).
In this case, Defendant argues he was denied the effective assistance of counsel due to the trial court's denial of his motion to continue.
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). “While a defendant ordinarily bears the burden of showing ineffective assistance of counsel, prejudice is presumed without inquiry into the actual conduct of the trial when the likelihood that any lawyer, even a fully competent one, could provide effective assistance is remote.” Rogers, 352 N.C. at 125, 529 S.E.2d at 675 (citing United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d 657 (1984)). “A defendant is deprived of counsel under Cronic when the facts show that counsel completely failed to function in any meaningful sense as an adversary to the prosecution or was prevented from assisting the defendant during a critical stage of the prosecution.” State v. Brower, 186 N.C.App. 397, 400, 651 S.E.2d 390, 392 (2007), disc. review denied,362 N.C. 363, 661 S.E.2d 742,cert. denied,555 U.S. 954 (2008) (citing Cronic, 466 U.S. at ––––, 80 L.Ed.2d at ––––). Under the rule of Cronic, “[c]ases in which a denial of counsel has been found are limited to blatant and egregious violations of Sixth Amendment rights.” Id.
Defendant specifically argues that because counsel was suffering from recurring migraines, counsel was “less effective” at trial and that the trial court should have continued the present case to avoid this result. However, Defendant fails to explain how counsel was deficient or how her performance was adversely affected by her physical condition. After a careful review of the transcript, we do not believe this is a scenario in which prejudice is presumed, that is to say, this is not a case in which “the facts show that counsel completely failed to function in any meaningful sense as an adversary to the prosecution or was prevented from assisting the defendant during a critical stage of the prosecution.” Id. at 400, 651 S.E.2d at 392. Therefore, prejudice is not presumed; and Defendant had the burden in this case to show that any alleged deficiency in counsel's assistance was prejudicial to the outcome of his trial. However, Defendant does not explain, and we see nothing in the record to indicate, how Defendant was prejudiced by the denial of his motion for a continuance, or whether his attorney would have been better prepared or provided more effective representation had the continuance been granted. Rogers, 352 N.C. at 124, 529 S.E.2d at 675 (stating that “the denial of a motion to continue, whether a constitutional issue is raised or not, is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error”). Accordingly, Defendant's argument is overruled.
Defendant makes a separate “ineffective assistance of counsel” argument in his brief arising from his trial counsel's cross-examination of the arresting officer. He specifically contends his trial counsel's failure to make an offer of proof after the trial court sustained the State's objection to questions posed on cross-examination concerning taser-related deaths constituted ineffective assistance of counsel. However, Defendant does not argue, nor are we able to see how the officer's knowledge of deaths from the use of tasers has any bearing on the issue of Defendant's guilt of any of the offenses for which he was convicted. We, therefore, conclude Defendant's ineffective assistance of counsel claim is without merit. See Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693.
In Defendant's third argument, he contends the trial court erred in allowing the State to introduce the results of an Alkasensor breath test without calling the person who conducted the test to be a witness. We find Defendant's argument meritless.
“The Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant.” State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 158 L.Ed.2d 177, ––– (2004)). The U.S. Supreme Court has applied the holding in Crawford to “testimonial” lab reports, holding that “[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence [is] error.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 329, 174 L.Ed.2d 314, 332 (2009). Nevertheless, “[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.” Id. at 314, n. 3.
“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2013). Furthermore, a constitutional issue not raised at trial will generally not be considered for the first time on appeal. State v. Nobles, 350 N .C. 483, 495, 515 S.E.2d 885, 893 (1999). When a defendant fails to properly object at trial, “the burden is on the party alleging error to establish. that the alleged error constitutes plain error.” State v. Walker, 316 N.C. 33, 37, 340 S.E.2d 80, 82 (1986) (citation and quotation marks omitted). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993); see also State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (stating that plain error is “always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done” (emphasis in original) (internal quotation marks omitted)).
In this case, Defendant argues Officer Pope's testimony concerning the results of a roadside Alkasensor test violated Defendant's confrontation rights. Specifically, Defendant argues that Officer Pope should not have been allowed to testify that Defendant refused to take the Alkasensor test when another officer actually administered—or attempted to administer—the test. Defendant supports his argument by pointing out that Officer Pope testified on cross-examination that he did “not know” if Defendant blew into the Alkasensor. Defendant further contends that it cannot be determined from the results of the Alkasensor whether Defendant refused to blow into the Alkasensor or whether his breath sample was merely insufficient to register. However, Defendant did not object to Officer Pope's testimony at trial; therefore, we must review for plain error. Assuming arguendo any constitutional violation of Defendant's confrontation rights occurred, Defendant has failed to show how it prejudiced his trial. The evidence tends to show that Defendant was swerving between lanes, slurring his speech, and smelled strongly of alcohol. Furthermore, testimony revealed that Defendant had a 12–pack of beer in the passenger floorboard and an open beer can under the driver's seat, which contained alcohol. Defendant admitted to having drunk one or two beers. Moreover, in addition to the roadside breath test—which is the subject of Defendant's argument on appeal—a second breath test was performed at the Magistrate's office. The second test was administered by Officer Pope, and Defendant also refused this test. Officer Pope testified about the results of the second test, and the results—which show Officer Pope's signature as the chemical analyst and Defendant's refusal—were admitted as an exhibit at trial. In light of the foregoing evidence at trial, and because Defendant has failed to show on appeal how the admission of Officer Pope's testimony regarding the results of the roadside breath test was prejudicial, we conclude that any error in the admission of the testimony did not constitute plain error. See State v. Ward, ––– N.C.App. ––––, ––––, ––– S.E.2d –––, ––– (2013) (COA12–1125) (applying the plain error standard of review to a Sixth Amendment Confrontation Clause argument pertaining to testimony at trial, to which the defendant did not object, regarding the results of a test and the subsequent admission of the test report itself into evidence, and concluding that the admission of the testimony did not rise to the level of plain error).
NO ERROR. Judge CALABRIA and Judge ERVIN concur.
Report per Rule 30(e).