State v. McLean , 17 N.C. App. 629 ( 1973 )

195 S.E.2d 336 (1973) 17 N.C. App. 629

STATE of North Carolina
v.
John David McLEAN, Jr., and James Willie McAllister.

No. 7310SC199.

Court of Appeals of North Carolina.

March 28, 1973.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Charles M. Hensey, for the State.

Gulley & Green, by Charles P. Green, Jr., Raleigh, for defendant appellant McLean.

Joyner & Howison, by G. Clark Crampton, Raleigh, for defendant appellant McAllister.

CAMPBELL, Judge.

Several of the defendants' assignments of error challenge the propriety of statements made by the trial judge while charging the jury.

The trial judge stated the contentions of the State in the following manner:

"The State says and contends that you should find each defendant guilty as charged; State says and contends that in this case the victim of this assault was a young man who had been sentenced to prison for a law violation and that his punishment for this offense was a term in confinement, but that the court's punishment certainly was never intended to include a gang rape, and that this prisoner is entitled to the same protection against this kind of degrading and vicious crime as any other citizen.

"That the testimony of this victim was not unsupported, but it was corroborated and strengthened by the testimony of another prisoner, James Gaddy, an eyewitness, and by the testimony of the staff nurse, who certainly has no interest at all in the outcome of this case, so the State says and contends, and fully supports the testimony of the witness Davis with physical evidence as to his condition, both physical, emotional and mental."

In recapitulating the testimony of James Gaddy the court charged:

"That McAllister pulled Davis's pants down and defendant McLean went on with his sex act and then Snyder got in on the bunk with Davis and then McAllister."

G.S. § 1-180, while it cannot insure the impartiality of the trial judge, does require that he not express any opinion to the jury as to the merit of the case being tried. Even if the trial judge undertakes to state the contentions of the parties in a criminal case, which he is not required to do, the expression of an opinion therein must be held to be prejudicial error. State v. Stroud and State v. Mason and State v. Willis, 10 N.C.App. 30, 177 S.E.2d 912 (1970). In stating the contentions the trial judge must be extremely careful, for arguments proper on the part of counsel may be highly improper if repeated by the bench.

It has long been held in this State that even the slightest intimation from a judge as to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury; and, therefore, the court must be careful to see that neither party is unduly prejudiced by any expression from the bench which is likely to prevent a fair and impartial trial. State v. Ownby, 146 N.C. 677, 61 S.E. 630 (1908).

Accordingly, it is error for the trial judge to intimate that controverted facts have or have not been established, State v. Hall, 11 N.C.App. 410, 181 S.E.2d 240 (1971); State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963); or to place before the jury in a statement of contentions matter which they should not take into consideration in arriving at a verdict, State v. Pillow, 234 N.C. 146, 66 S.E.2d 657 (1951). It is error to intimate an opinion as to the relative strength or weakness of a party's case, or the credibility of his witnesses, State v. Rhinehart, 209 N.C. 150, 183 S.E. 388 (1936); State v. Stroud and State v. Mason and State v. Willis, supra; or to make any statement such as to invoke sympathy for the prosecuting witness, thereby bolstering that testimony, State v. Woolard, 227 N.C. 645, 44 S.E.2d 29 (1947).

To tell the jury, even in the form of a contention, that the prosecuting witness was a young man whose punishment for law violation "was never intended to include a gang rape, and that this prisoner is entitled to the same protection against this kind of degrading and vicious crime as any other citizen," is no less an invocation of sympathy than the statement made in State v. Woolard, supra, in which the trial judge stated in the presence of the jury that "you people cannot laugh at the predicament of this poor little girl; the only difference between you and she is that you haven't been caught."

The error in the instant case is similar in nature to the statement made by the trial judge in State v. Kline, 190 N.C. 177, 129 S.E. 417 (1925), in which the judge said to the jury, "``If the evidence is believed, it was a terrible wrong which was done this young man, and a cold-blooded, cruel assault was committed upon him. . . .'" The Kline opinion ordered a new trial due to the prejudicial nature of the above statement.

Further, it is error to speak of the impartiality of a witness in such a manner as to emphasize the credibility of his testimony, or to emphasize to the jury that the testimony of the prosecuting witness was corroborated by other testimony. Either conduct of the trial judge constitutes the expression of an opinion, which is prohibited.

It was held in State v. Ownby, supra, a prosecution for embezzlement, that the court's charge that the prosecuting witnesses were "``"not interested one cent in the result of this suit. It makes no difference how it may go with them"``" was prejudicial error, constituting a statement of opinion as to the weight and credibility of the evidence.

A statement by the trial court, in State v. Benton, 226 N.C. 745, 40 S.E.2d 617 (1946), that the police were disinterested and worthy of belief, that the physician testifying for the State was an expert and corroborated the prosecutrix's testimony, together with a later statement that the evidence was "rather clear", was prejudicial error.

In State v. Maready, 269 N.C. 750, 153 S.E.2d 483 (1967), the trial judge repeated a contention of the State to the effect that a police witness had no interest in the case, and therefore was worthy of belief. That statement was held to be prejudicial error. To the same effect is the case of State v. Byrd, 10 N.C.App. 56, 177 S.E.2d 738 (1970), in which the court's charge included the statement that an officer's testimony was substantially the same as another witness. Such charge was error; it told the jury that the State's evidence was corroborated, the question of corroboration being, on the contrary, a jury question.

Further, we feel that the misstatement by the trial court of the testimony of the witness Gaddy to the effect that Gaddy saw defendant McAllister sexually assault Davis was highly prejudicial; the court effectively told the jury that not only was there evidence that McAllister committed the crime, but there was also an "eyewitness" to his commission of the crime who corroborated the statement of the prosecuting witness. The evidence in the record does not support any such charge, and actually contains testimony contrary.

Because of the inadvertent but prejudicial statements made by the trial judge, we feel that both defendants are entitled to a new trial. A new trial being required, it is unnecessary to discuss any other assignment of error as they may not arise again.

New trial.

MORRIS and PARKER, JJ., concur.