State v. Curry , 171 N.C. App. 568 ( 2005 )

WYNN, Judge

concurring in result.

While I concur in the result, I write separately to comment further on the trial court’s questioning of a witness and the conspiracy to commit felony murder.

Regarding the trial court’s questioning of a witness, “the trial court is permitted to ‘interrogate witnesses, whether called by itself or by a party,’ N.C.G.S. § 8C-1, Rule 614(b) (1992), ‘in order to clarify. confusing or contradictory testimony,’ State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986).” State v. Corbett, 339 N.C. 313, 328, 451 S.E.2d 252, 260 (1994).

In the case at bar, Defendant had $19.75 in quarters in his pockets, and the State presented evidence that the quarters came from game machines located inside Wood’s Grocery Store. The defense rebutted with witness Joshua Curry, who testified that he and Defendant tended bar together the night before the alleged crimes, when it had been fifty-cent beer night. Joshua Curry testified that customers left quarters as tips. After testifying that he and Defendant split the quarters in the tip jar in half, the trial court then asked:

Trial Court: What do you do with your quarters when you get them?

Joshua Curry: Cash them in.

Trial Court: For dollars?

Joshua Curry: Sometimes I do, sometimes I don’t.

Trial Court: You carry them for 48 hours in your pocket if there are 80 quarters?

Joshua Curry: He left early that night.

The trial court’s questions here do not clarify confusing or contradictory testimony. While we have only the benefit of the cold record to review this exchange, it is logical to conclude that the questioning, particularly “You carry them for 48 hours in your pocket if there are 80 quarters?” with voice inflections, may have come uncomfortably close to an opinion as to the credibility of the witness’s testimony. As this Court has made clear,

Trial judges are prohibited from expressing an opinion by N.C. Gen. Stat. § 15A-1222 (1978). They must be careful in what they say and do because a jury looks to the court for guidance and picks up the slightest intimation of an opinion. It does not matter whether the opinion of the trial judge is conveyed to the jury directly or indirectly as every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury. State v. Whitted, 38 N.C. App. 603, 248 S.E.2d 442 (1978).

State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983). Nevertheless, “not every improper remark made by the trial judge requires a new trial[,]” and “the underlying result may manifest mere harmless error.” State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361 (citations omitted), disc. review denied, 327 N.C. 143, 394 S.E.2d 183 (1990). Here, given the overwhelming weight of the evidence against Defendant, any error in the trial court’s questioning would have been harmless.

Regarding conspiracy to commit felony murder, Defendant posits that North Carolina does not recognize conspiracy to commit felony murder. The two cases on which Defendant heavily relies in making his argument are State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874 (1997), and State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000). While those cases addressed attempted felony murder and attempted second-degree murder, respectively, their reasoning, particularly that in Lea, also applies to conspiracy to commit felony murder.

In Lea, this Court stated:

[A] conviction of felony murder requires no proof of intent other than the proof of intent necessary to secure conviction of the underlying felony. Id.

To convict a defendant of criminal attempt, on the other hand, requires proof that the defendant specifically intended to commit the crime that he is charged with attempting. E.g., State v. McAlister, 59 N.C. App. 58, 60, 295 S.E.2d 501, 502 (1982), disc. review denied, 307 N.C. 471, 299 S.E.2d 226 (1983). Ari attempt, by definition, “is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission.” Id. “Although a murder may be committed without an intent to kill, attempt to commit murder requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344, 351, 114 L. Ed. 2d 385, 393, 111 S. Ct. 1854 (1991) (citation omitted).

We conclude that a charge of “attempted felony murder” is a logical impossibility in that it would require the defendant to intend what is by definition an unintentional result. Accordingly, the offense of “attempted felony murder” does not exist in North Carolina.

Lea, 126 N.C. App. at 449-50, 485 S.E.2d at 880. And in Coble, our Supreme Court affirmed Lea and held:

Because specific intent to kill is not an element of second-degree murder, the crime of attempted second-degree murder is a logical impossibility under North Carolina law. The crime of attempt requires that the actor specifically intend to commit the underlying offense. See Hageman, 307 N.C. at 13, 296 S.E.2d at 441. It is logically impossible, therefore, for a person to specifically intend to commit a form of murder which does not have, as an element, specific intent to kill.

Coble, 351 N.C. at 451, 527 S.E.2d at 48.

While neither Lea nor Coble addresses conspiracy to commit felony murder, extending the logic particularly of Lea could lead one to conclude that conspiracy to commit felony murder is also a logical impossibility, given the requirement for specific intent for conspiracy and the lack of such requisite intent for felony murder. Nevertheless, a prior North Carolina Supreme Court case, State v. Gibbs, 335 N.C. 1, 51-52, 436 S.E.2d 321, 350 (1993), explicitly upheld a conspiracy to commit felony murder conviction. And because Lea, a Court of Appeals case, could not overrule Gibbs, and neither Lea nor Coble directly addressed conspiracy to commit felony murder, Gibbs controls, and this Court is constrained to hold that Defendant’s conviction of conspiracy to commit felony murder must stand. I do, however, respectfully urge our Supreme Court to grant review on this issue, if requested by Defendant, to give greater clarity on the law controlling this issue.