State v. Taylor

417 S.E.2d 833, 106 N.C. App. 534, 1992 N.C. App. LEXIS 545
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 1992
DocketNo. 9110SC46; No. 9110SC51
StatusPublished

This text of 417 S.E.2d 833 (State v. Taylor) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Taylor, 417 S.E.2d 833, 106 N.C. App. 534, 1992 N.C. App. LEXIS 545 (N.C. Ct. App. 1992).

Opinion

PARKER, Judge.

On the morning of Saturday, 24 February 1990, defendants Taylor and Foster along with many other people went to the Fleming Center, a private clinic whose services include performing abortions, in Raleigh, North Carolina. Defendant Taylor went as a representative of Operation Save A Baby, a group which opposes abortion. Because of his conduct on the premises of the clinic, defendant Taylor was charged with trespass and resisting officers. He was convicted of second degree trespass in Wake County District Court on 5 April 1990. Charged only with trespass arising from her conduct at the clinic, defendant Foster also was convicted of second degree trespass on 5 April 1990. Both defendants gave notice of appeal and their cases were joined, with those of four other people convicted of the same offense, for trial de novo in Wake County Superior Court. All six defendants appeared pro se. On 24 July 1990 a jury found defendants Taylor and Foster guilty of second degree trespass; each was sentenced to a twenty-nine day term of imprisonment.

[536]*536Both defendants gave notice of appeal to this Court, and on 16 January 1991 their motions to consolidate their appeals were granted. Defendants made identical assignments of error and submitted identical briefs.

Defendants’ three contentions on appeal address only the conduct of the trial judge. First defendants contend the judge erred by expressing an opinion on questions of fact to be decided by the jury. Defendants also contend the judge erred in admonishing defendant Taylor, out of the presence of the jury, to testify truthfully. Finally defendants contend the judge erred by participating in the State’s presentation of its case in chief. We find these contentions without merit and hold defendants received a fair trial free of prejudicial error.

The relevant trespass statute provides:

(a) Offense. — A person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another:
(1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or
(2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.
(b) Classification. — Second degree trespass is a misdemeanor punishable by imprisonment for up to 30 days, a fine of up to two hundred dollars ($200.00), or both.

N.C.G.S. § 14-159.13 (Supp. 1991).

Defendants first contend the trial judge erred by expressing opinions on questions of fact to be decided by the jury. We disagree.

During the direct examination of State’s first witness, Officer J.T. Gilliam, who testified from written notes, defendants, by defendant Taylor, requested the opportunity to examine the notes. The judge stated, “If you wish to see his notes, I will make them available to you at the proper time.” Before attempting to cross-examine Gilliam, defendant Taylor again asked for the notes. Defendants requested a five minute recess in which to review the [537]*537notes; and the judge stated, “Take fifteen.” Defendant Taylor queried, “Fifteen?” The judge replied

Sure. I want you to know what is in there.
Members of the jury, you may relax for fifteen minutes. Feel free to wander in the lobby and get a cup of coffee or whatever. The bottom line is I try to conduct a fair trial to both sides and I don’t want anyone to feel they have ever been railroaded in my court. Court will be at ease.

Defendants argue these remarks clearly intimated the judge’s opinion as to defendants’ guilt and the merits of their defense. We do not find defendants’ argument persuasive.

A trial judge must not, during any stage of a trial, express “any opinion in the presence of the jury on any question of fact to be decided by the jury.” N.C.G.S. § 15A-1222 (1988). This statute has been construed to mean that a trial judge must not express any opinion as to the weight or credibility of any competent evidence presented before the jury. State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1983). Whether the opinion is expressed in the court’s charge, in the examination of witnesses, in rulings on evidence, or in any other matter is immaterial. State v. Alston, 38 N.C. App. 219, 220, 247 S.E.2d 726, 727 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 30 (1979). Nevertheless, a new trial is not required if, considering the circumstances under which a remark was made, it could not have prejudiced the defendant’s case. State v. King, 311 N.C. 603, 618, 320 S.E.2d 1, 11 (1984); State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950). On review, all facts and attendant circumstances as shown by the record must be considered and remarks must be considered in context. State v. Brady, 299 N.C. 547, 560, 264 S.E.2d 66, 74 (1980); State v. Lofton, 66 N.C. App. 79, 85, 310 S.E.2d 633, 636 (1984). In light of the foregoing principles, the question for this Court is whether the challenged remarks constituted expression on any question of fact to be decided by the jury or, more narrowly, expression of opinion as to the weight or credibility of any competent evidence presented before the jury.

From context it is clear the court was deeply concerned that without legal counsel, defendants could not mount a proper defense to the charges against them. When defendants’ case was called for trial, the judge began by asking the six defendants individually [538]*538if they were prepared for trial. The judge specifically asked defendant Taylor if he had “ever been involved in any form of litigation in a formal courtroom other than this charge in your district court appearance?” Defendant responded, “Your Honor, is that a proper question to be answered?” The judge rejoined, “I am asking these questions to try to determine if you are perhaps competent to represent yourself in these proceedings. That is all.” The judge asked first defendant Taylor, then all the other defendants, including defendant Foster, “[D]o you feel comfortable representing yourself?” All defendants responded in the affirmative. The judge then stated, “I don’t feel comfortable with you representing yourselves but if you are ready for trial, we will proceed with trial.”

After giving preliminary instructions to the jury pool, the judge asked them to remember that the defendants had a right to proceed pro se. The judge assured the defendants, “I will assist you in your questions when I think it is appropriate, if that is acceptable to you?” Defendants indicated they would accept help. During jury selection, which took up more than two days, the judge expressed sympathy for the defendants’ philosophical and moral beliefs.

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Related

Bollenbach v. United States
326 U.S. 607 (Supreme Court, 1946)
United States v. Hyman Winter
348 F.2d 204 (Second Circuit, 1965)
State v. Lofton
310 S.E.2d 633 (Court of Appeals of North Carolina, 1984)
State v. Canipe
81 S.E.2d 173 (Supreme Court of North Carolina, 1954)
State v. King
320 S.E.2d 1 (Supreme Court of North Carolina, 1984)
State v. Staley
232 S.E.2d 680 (Supreme Court of North Carolina, 1977)
State v. Rhodes
224 S.E.2d 631 (Supreme Court of North Carolina, 1976)
State v. Brady
264 S.E.2d 66 (Supreme Court of North Carolina, 1980)
State v. Harris
301 S.E.2d 91 (Supreme Court of North Carolina, 1983)
State v. Alston
247 S.E.2d 726 (Court of Appeals of North Carolina, 1978)
State v. Perry
57 S.E.2d 774 (Supreme Court of North Carolina, 1950)

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Bluebook (online)
417 S.E.2d 833, 106 N.C. App. 534, 1992 N.C. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-ncctapp-1992.