Opinion
No. COA11–1243.
2012-05-1
STATE of North Carolina v. Oliver Wendell WATLINGTON.
Attorney General Roy Cooper, by Assistant Attorney General Robert Croom, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Appeal by defendant from judgment entered 8 June 2011 by Judge William Z. Wood in Rockingham County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Robert Croom, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
CALABRIA, Judge.
Oliver Wendell Watlington (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of two counts of breaking or entering a motor vehicle. Defendant pled guilty to attaining the status of an habitual felon. We find no error, but remand for correction of clerical errors.
I. Background
In April 2010, Marcus Ramos Nolasco (Marcus) lived at 312 West Morehead Street and his brother, Juan Ramos Nolasco (Juan), lived next door. On the morning of 21 April 2010, Marcus looked out his window and saw a man, later identified as defendant, standing next to Juan's Nissan truck. When Marcus saw defendant's hand inside the truck window, trying to open the truck door, he approached him and asked defendant what he was doing. Defendant replied, “I'm here at my car.” After telling defendant, “that car is not yours,” Marcus summoned his brother Juan. Marcus saw that the truck window was broken. Marcus also noticed that defendant had what appeared to be an ice pick in his right hand and items underneath his jacket.
Marcus tried to detain defendant until Juan came out of his house, but defendant ran down Morehead Street. Marcus pointed out defendant to Juan and told him to call the police. Marcus then followed defendant down the street. After Juan informed the police that someone broke into his truck, he joined the chase. Juan caught up to defendant and grabbed his hand. However, defendant fled when he saw the police. As defendant fled, a stapler, GPS, and a Kenwood car stereo fell to the ground from defendant's jacket. Eventually, defendant was apprehended and transported to the police station. The police later determined that the Kenwood car stereo belonged to a Honda Passport that was parked outside Marcus's residence on the morning of 21 April 2010.
Defendant was charged with two counts of breaking or entering a motor vehicle, misdemeanor larceny and attaining the status of an habitual felon. At the close of the State's evidence, defendant made a motion to dismiss all charges. The court granted the motion to dismiss the charge of misdemeanor larceny. After the jury returned verdicts finding defendant guilty of two counts of breaking or entering a motor vehicle, he pled guilty to attaining habitual felon status. The court sentenced defendant to a minimum of 110 months to a maximum of 114 months in the North Carolina Department of Correction. Defendant appeals.
II. Questioning Witnesses
Defendant alleges the trial court committed prejudicial error by assuming the role of the prosecutor and questioning a witness in violation of N.C. Gen.Stat. § 8C–1, Rule 614. Specifically, defendant contends the trial court erred by eliciting evidence beneficial to the State's case by posing a question to Juan at the conclusion of his cross-examination. We disagree.
Our Rules of Evidence permit a court to “interrogate witnesses, whether called by itself or by a party.” N.C. Gen.Stat. § 8C–1, Rule 614(b) (2011). The judge may ask questions to clarify a witness's testimony. State v. Smarr, 146 N.C.App. 44, 49, 551 S .E.2d 881, 884 (2001), disc. review denied, 355 N.C. 291, 561 S.E .2d 500 (2002). In fact, “[a] judge may ask questions ... that elicit testimony which proves an element of the State's case so long as [the judge] does not comment on the strength of the evidence or the credibility of the witness.” State v. Lowe, 60 N.C.App. 549, 552, 299 S.E.2d 466, 468 (1983); see alsoN.C. Gen.Stat. § 15A–1222 (2011) (“The 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.”). In Lowe, the Court recognized that the judge's questions “were neutral, which, depending upon the answer, would benefit either the State or the defendant.” Id.
In the instant case, after defense counsel cross-examined Juan, the court questioned Juan as follows:
THE COURT: Thank you, you may step down, sir. I've got one question, I'm sorry, please. Did you give anybody permission to go into your truck on the evening of April 20th or morning of April 21st, 2010?
[Juan]: I don't understand that question.
THE COURT: Did you give anyone permission to go into your truck, to break a window and go into your truck, before the morning of April 21st?
[Juan]: I was sleeping. My truck was locked.
THE COURT: Did you give anyone permission to go in?
[Juan]: No.
The court then offered the parties the opportunity to ask additional questions. Neither the prosecutor nor defendant asked Juan any follow-up questions.
Here, the trial court asked Juan questions. Although the judge's questions were neutral, Juan's answers provided an element of the case that was favorable for the State's evidence. Juan's answers could have been equally favorable for defendant if Juan had answered that he did give someone permission to go into his truck. More importantly, the trial court never commented on the strength of Juan's testimony or whether Juan's answers to the judge's questions provided the State with facts that were favorable to their case against defendant. The court's questions and Juan's testimony, that defendant did not have permission to go in his truck, merely clarified facts for the jury to decide. In addition, none of the trial court's questions explicitly or implicitly stated an opinion as to the facts or Juan's credibility.
Later, during its charge to the jury, the trial court instructed the jurors as follows:
Now, the law requires the presiding Judge to be impartial. You should not infer from any statement I have made or any question I have asked that any of the evidence is to be believed or disbelieved; that a fact has or has not been proved; or as to what your findings ought to be. It is your duty and yours alone to find the true facts in this case and to render a verdict reflecting the truth.
“Jurors are presumed to follow the trial court's instructions.” State v. Gregory, 340 N.C. 365, 408, 459 S.E.2d 638, 663 (1995), cert. denied,517 U.S. 1108, 134 L.Ed.2d 478 (1996). In the instant case, the judge's instructions to the jury reminded the jurors that they were required to either believe or disbelieve Juan's answers to his questions, that they were not to infer any facts that he elicited in Juan's answers had or had not already been proved, that it was their duty alone to determine whether Juan's answers were the true facts.
Accordingly, we conclude the questions asked by Judge Wood were within the court's power and allowable under N.C. Gen.Stat. § 8C–1, Rule 614(b). In addition, Judge Wood did not express any opinion in violation of N.C. Gen.Stat. § 15A–1222. The trial court did not err when it questioned Juan.
III. Clerical Errors
Finally, we note two clerical errors in the written judgment. A clerical error has been defined by this Court as “[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” State v. Jarman, 140 N.C.App. 198, 202, 535 S .E.2d 875, 878 (2000) (citation and quotation marks omitted). “When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record ‘speak the truth.’ “ State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696 (2008) (citation omitted).
In the instant case, during sentencing, Judge Wood stated, “The sentence is 110 months minimum, 141 maximum, in the custody of the State Department of Corrections.” However, the written judgment transposes the last two digits and instead shows a maximum of 114 months imprisonment. The written judgment should reflect the proper corresponding maximum term of 141 months. SeeN.C. Gen.Stat. § 15A–1340.17 (2011). In addition, defendant's name was misspelled as “Windelle” as opposed to the correct spelling, “Wendell”. Accordingly, we remand to the trial court for correction of the clerical errors.
We find no error in defendant's trial, but remand for correction of clerical errors in the judgment.
No error. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).