Opinion
No. COA02-462
Filed 3 June 2003 This case not for publication
Appeal by defendant from judgments entered 27 July 2001 by Judge Evelyn W. Hill in Alamance County Superior Court. Heard in the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. Richard G. Roose for defendant-appellant.
Alamance County Nos. 00 CRS 57308-09, 00 CRS 57399-400.
Mickey Dale Briggs ("defendant") was indicted by the Alamance County grand jury on two counts of first-degree statutory sexual offense, seven counts of taking indecent liberties with a child, one count of statutory sexual offense against a thirteen, fourteen, or fifteen-year-old, one count of attempted statutory sexual offense against a thirteen, fourteen, or fifteen-year-old and with being an habitual felon. A jury subsequently found defendant to be guilty of ten of the substantive offenses, and defendant admitted being an habitual felon. The trial court consolidated the convictions into four judgments and sentenced defendant as an habitual felon to consecutive sentences having a combined minimum term of 1122 months' imprisonment and a combined maximum term of 1385 months' imprisonment. From the trial court's judgments, defendant appeals.
The State introduced evidence at trial tending to show the following: Between the summer of 1998 and the fall of 1999, defendant engaged in sexual conduct with his step-cousin ("the victim") on several occasions. The victim, who was fifteen years old at the time of the trial in 2001, testified about defendant's conduct. After the victim indicated she was nervous and uncomfortable testifying and also reluctant to go into the details, the State began asking leading questions about the events at issue. Defense counsel objected to five of nine leading questions asked by the State.
When defense counsel objected later to another leading question, the following exchange occurred between the trial court and defense counsel:
THE COURT: Overruled pursuant to State v. Oliver, 85 North Carolina App. 1, 1987, leading questions are permissible under direct examination when inquiry is made into "delicate" subjects such as sexual matters.
The Court will note your continuing objection, but you do not need to make them. But based on that ruling and other rulings, the Court's going to overrule objections to questions leading.
MR. WATKINS: May I be heard, Your Honor?
THE COURT: No.
MR. WATKINS: Okay. Well, in order to preserve, you know, the Courts have ruled that in order to preserve —
THE COURT: Mr. —
MR. WATKINS: — your objections, I'm going to have to —
THE COURT: Mr. Watkins, please sit down. Mr. Watkins, so far when you've made objections you've made the word objection. The courts have ruled that when you only object and you don't state the grounds for the objection, on appeal it's not considered. So, you haven't preserved it yet anyhow.
The Court, however, will note for you that you object to any leading questions by the prosecutor, and therefore, you will not need to make those objections because even the ones you made so far are useless.
MR. WATKINS: For my noted objections to the leading questions, Your Honor, I'd like that noted on the record.
THE COURT: And now that we've had that conversation, let's move on.
After defense counsel subsequently objected to another leading question, the following exchange occurred:
THE COURT: Mr. Watkins, I'm going to make this real clear. Do not object again to leading questions by the prosecutor when they're inquiring as to sexual matters . . . . I will note for the record your objection, but we are not going to continue to interrupt and disrupt this testimony. If you have a question about that, better ask me. This is the second warning.
As defense counsel began to ask a question, the trial court excused the jury. At that time, the trial court stated:
Let the record reflect that during the testimony of this witness by direct examination the Court had an opportunity to observe her demeanor. It's clear that the witness is very young; is very nervous; is embarrassed; is having difficulty when she gets to matters of [a] sexual nature expressing herself.
Let the record reflect that Mr. Watkins continuously made objections without stating the grounds for them while the witness was testifying. That the Court noticed that those objections were coming at a time when the prosecutor was asking leading questions regarding sexual matters.
Let the record further reflect that the Court informed Mr. Watkins in words that should have been clear that, No. 1, objecting without stating a ground is, in fact useless. And No. 2, read to Mr. Watkins the law of North Carolina which is that leading questions on direct examination are permissible when inquiry is made into delicate subjects such as sexual matters. . . .
Let the record further reflect that the Court . . . advised Mr. Watkins that the Court would note on the record for him his continuing objection to those leading questions.
Notwithstanding this explanation by the Court, Mr. Watkins felt compelled to object yet again while the witness was testifying, thus once again disrupting the proceedings.
Defense counsel in response asserted his belief that the State "had gone outside the realm of delicate sexual matters." The trial court had the court reporter read back the State's question, which was "did [defendant] do anything with his finger at that time?" After the trial court stated it could not "see how you can possibly in good faith think that was beyond the realm[,]" the trial court informed defense counsel that "[y]ou can just sit down and you can just remain seated." Defense counsel then responded, "[a]nd shut up." The trial court then informed defense counsel that if he objected again to a leading question involving a sexual matter, "it [would] cost [him] $500.00, and that each objection thereafter would cost him an additional $500.00. However, the trial court subsequently rescinded the threat of the fine before the jury returned.
During cross-examination, the victim testified about one incident which occurred at her grandfather's house while her grandfather was in the shower. Defense counsel then inquired as follows as to events immediately prior to the victim's grandfather taking his shower:
Q. And how was your grandfather dressed? Had he already taken off his clothes to get into the shower?
A. No.
Q. When [defendant] arrived he had not?
A. He had not.
Q. Okay. So when he wanted to take the shower, when he left the room to go take the shower, he had to change clothes? He had to take his clothes off to take the shower?
A. No. He takes his clothes off when he gets into the bathroom.
Q. Okay. So when he got to the bathroom he would have had to take his clothes off?
A. Yes.
Q. All right.
THE COURT: Unless, of course, he was going to shower with his clothes on, Mr. Watkins. You might want to inquire about that.
MR. WATKINS: Thank you, Your Honor.
THE COURT: You're welcome.
At the close of the State's evidence, the trial court dismissed a portion of one count against defendant. After defendant presented evidence, he renewed his motion to dismiss. The trial court denied the motion and submitted the case to the jury, which found defendant to be guilty of ten of the charges. Defendant then admitted his habitual felon status. Defendant appeals.
Defendant first contends that the trial court erred by interfering with his right to interpose objections. Defendant argues the trial court erred: (1) by refusing to allow his counsel to be heard after overruling his objection to leading questions; (2) by prohibiting his counsel from posing objections; and (3) by stating his counsel would be fined $500.00 if he chose to interpose an objection. For the reasons stated herein, we find no error.
The North Carolina Rules of Evidence specifically provide that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen. Stat. § 8C-1, Rule 611(a) (2001). Absent a manifest abuse of discretion, the trial court's control of the case will not be disturbed. State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986).
In the instant case, a review of the record reveals that defense counsel objected to five leading questions which the State asked the victim. The State's questions, which inquired into sexual matters involving the victim and defendant, were permissible, and the trial court properly overruled those objections. See State v. Chandler, 324 N.C. 172, 190, 376 S.E.2d 728, 739 (1989). When defense counsel objected to another leading question addressed to the victim approximately twenty questions later, the trial court overruled the objection and also explained the basis for its rulings and noted defense counsel's continuing objection. Although the trial court stated it would not permit defense counsel to be heard after its ruling, defense counsel nevertheless did inform the trial court that he was objecting to the leading questions.
After defense counsel objected to another leading question involving sexual conduct approximately seventy-five questions later, the trial court made specific findings in support of its decision to allow the State to employ leading questions with the victim. After excusing the jury, the trial court warned defense counsel that he would be fined $500.00 if he objected again to a leading question involving a sexual matter. However, the trial court rescinded its order prior to the return of the jury and the resumption of the victim's testimony. The State's leading question as to how defendant touched the victim was clearly proper, and the trial court's exchange with defense counsel about the improper objection occurred out of the jury's presence. Furthermore, the trial court rescinded its order to fine defense counsel before the resumption of cross-examination of the victim. Defendant has failed to point to any prejudice resulting from the trial court's action, State v. Crummy, 107 N.C. App. 305, 318, 420 S.E.2d 448,455, disc. review denied, 332 N.C. 669, 424 S.E.2d at 411-12 (1992), and has failed to show an abuse of discretion. These arguments are overruled.
In his remaining argument, defendant contends the trial court erred by making inappropriate comments about questions asked by his counsel and by making suggestions as to what questions his counsel should ask. Defendant contends that the trial court demeaned questions posed by his counsel and by implication demeaned defense counsel himself, when the trial court stated that "[u]nless, of course, he was going to shower with his clothes on, Mr. Watkins. You might want to inquire about that." We are not persuaded by defendant's argument.
In determining whether a trial court has deprived a defendant of his right to a fair trial by improper comments or remarks, "`a totality of the circumstances test is utilized.'" State v. Green, 129 N.C. App. 539, 545, 500 S.E.2d 452, 456 (1998) (quoting State v. Larrimore, 340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)), cert. denied, 528 U.S. 846, 145 L.Ed.2d 100 (1999). "`[U]nless it is apparent that [a judge's comments] might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.'" Id. (quoting Larrimore, 340 N.C. at 155, 456 S.E.2d at 808) . "Not every indiscreet and improper remark by a trial judge is of such harmful effect as to require a new trial." State v. Grogan, 40 N.C. App. 371, 374, 253 S.E.2d 20, 22 (1979). "Defendant bears the burden of establishing that the trial judge's remarks were prejudicial." Green, 129 N.C. App. at 545, 500 S.E.2d at 456. Given the minimal probative value of the tangential issue which defense counsel was pursuing and the response of defense counsel to the trial court's admonishment, it is not apparent the trial court's error might reasonably have had a prejudicial result. This argument is overruled.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).