{ "id": 8550771, "name": "STATE OF NORTH CAROLINA v. BRUCE BYRD", "name_abbreviation": "State v. Byrd", "decision_date": "1970-12-16", "docket_number": "No. 708SC515", "first_page": "56", "last_page": "61", "citations": [ { "type": "official", "cite": "10 N.C. App. 56" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "81 S. Ct. 717", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1961, "opinion_index": 0 }, { "cite": "5 L. Ed. 2d 707", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "365 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203232, 6202818, 6202405, 6203045, 6202223, 6202580 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/us/365/0830-06", "/us/365/0830-04", "/us/365/0830-02", "/us/365/0830-05", "/us/365/0830-01", "/us/365/0830-03" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "108 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621354 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0204-01" ] }, { "cite": "81 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594845 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0060-01" ] }, { "cite": "64 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610305 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0438-01" ] } ], "analysis": { "cardinality": 551, "char_count": 11108, "ocr_confidence": 0.5, "pagerank": { "raw": 4.0113435016243365e-07, "percentile": 0.9061960755240943 }, "sha256": "eb97b4b6ea664655ef54fed2ee24340551c2ccbdb56f11f2d33e08729ecdb266", "simhash": "1:91fd31a0f43c6cab", "word_count": 1979 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Graham concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BRUCE BYRD" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nDefendant\u2019s record on appeal was docketed on 13 July 1970. Under the rules of practice in this court, it should have been docketed within ninety days after 24 March 1970. On 13 November 1970 defendant filed a petition for certiorari as a substitute for an appeal. This petition is allowed, and the case is considered on its merits.\nThe evidence for the State tended to show that on 21 November 1969 the prosecuting witness, Brafman, and three other Marines were on their way back to Camp Lejeune after having attended a dance in Kinston. They stopped at defendant\u2019s place of business to buy some beer. The three companions of the prosecuting witness went into the place of business. The prosecuting witness remained in the car. The defendant refused to sell them any beer and struck one of them in the face with his fist and then hit him with a fan belt. He left the store and told the prosecuting witness what had occurred. The proseeut-ing witness thereupon went into the defendant\u2019s place of business to investigate the matter. The defendant, without provocation, thereupon shot the prosecuting witness with a .38 caliber pistol.\nThe bullet went through his arm, penetrated his body, and at the time of the trial was located in his spinal canal. As a result of the bullet wound, he remained in the hospital for approximately six weeks and at the time of the trial in March 1970 was still experiencing pain from the wound.\nThe defendant testified in his own behalf but offered no other witnesses. The evidence for the defendant tended to show that the prosecuting witness came in his place of business on Saturday morning, the 22nd, and \u201cwanted to know what in hell was going on\u201d and began arguing and contending that somebody \u201chad about murdered his buddy.\u201d Defendant testified that he told the prosecuting witness, \u201c * * * No, I asked him to leave and he wouldn\u2019t and I just persuaded him, and I said it is about time for you to go now and I fired one time in the ceiling, that\u2019s all I done.\u201d On cross-examination the defendant stated that there were four other people there besides himself when the \u201cboy\u201d came in there and asked for some beer and that a Mr. Rufus Allen was there all the time on this occasion. Mr. Allen was working for the defendant at the time of the trial. He also testified:\n\u201cI ain\u2019t shot nobody. I just shot to show I meant business. I didn\u2019t shoot intending to hit him. I shot up in the ceiling. I don\u2019t know where the bullet came from that entered his body, if there\u2019s one in him.\u201d\nDuring the cross-eaxamination of the defendant, the following colloquy took place:\n\u201c[By the Court: Let me ask you one thing. You say there were two men there that lived in Jones County.\nA: Yes, sir.\nQ: A Mr. Allen?\nA: No, Mr. Allen lives in Lenoir County.\nQ: I know that. Two live in Jones County and where are the others?\nA: One of them, someone said he had moved to Washington, D. C. I don\u2019t know where the boy lives.\nQ: Those in Jones County, why don\u2019t you have them subpoenaed?\nA: (First few words of the witness were not audible to the reporter.) He said he hadn\u2019t indicted nobody.\nQ: He said what?\nA: He hadn\u2019t indicted nobody.\nBy the Reporter : I did not understand what he said.\nBy the Court : Q: Why didn\u2019t you have them subpoenaed as your witnesses to testify for you ?\nA: Well, I had some subpoenaed when those darkies tried to hold me up and you know how many showed up? One man.\nQ: When you have a man subpoenaed, he has got to come or the court can send the sheriff after him.\nA: Well, he didn\u2019t bring them.]\nException No. 3.\n[Q: If you don\u2019t want to have them here, that\u2019s up to you, but if I had some witnesses who saw what you say they saw, I would have them here.]\nException No. 4.\n* * *\nQ: Do you really want Mr. Allen here?\nA: I could get him if I wanted to. Yes, sir.\n[By the Court : That\u2019s not what he asked you. He said, do you want him here?\nA: Well, I could get him right now if I could get to a telephone.\nBy the Court : He didn\u2019t ask you that. He asked you if you wanted him here?\nA: No, not now, I don\u2019t.] \u201d\nThe defendant contends that the trial judge, in thus questioning the defendant, expressed an opinion and violated the provisions of G.S. 1-180.\nIn 7 Strong, N. C. Index 2d, Trial, \u00a7 10, it is said:\n\u201cGS 1-180 applies not only to the charge of the court, but also prohibits the court at a jury trial from expressing an opinion on the evidence or the veracity of the witnesses at any time during the trial in any manner, or in any form, by word of mouth or by action, and prohibits the trial judge from asking questions or making comments at any time during the trial which amount to an expression of opinion as to what has or has not been shown by the testimony of a witness.\nIt is proper for the court to ask a witness questions for the purpose of clarifying the witness\u2019 testimony, but in so doing the court should be careful not to express an opinion on the facts or impeach or discredit the witness.\u201d\nThe judge may not make a statement or ask a defendant or a witness questions tending to impeach him or to cast doubt on his credibility or which intimate that a fact has or has not been established. However, remarks of the court during a trial will not entitle a defendant to a new trial unless they tend to prejudice the defendant, and the question of whether prejudice resulted is to be considered in the light of the circumstances under which the remarks were made. 2 Strong, N. C. Index 2d, Criminal Law, \u00a7 99. State v. Simpson, 233 N.C. 438, 64 S.E. 2d 568 (1951).\nIn State v. Canipe, 240 N.C. 60, 81 S.E. 2d 173 (1954), it is stated: \u201cWhether the conduct or the language of the judge amounts to an expression of his opinion on the facts is to be determined by its probable meaning to the jury, and not by the motive of the judge. * * *\u201d See also State v. Williamson, 250 N.C. 204, 108 S.E. 2d 443 (1959).\nWe think that the judge expressed an opinion as to the credibility and probative value of the defendant\u2019s testimony when he said to the defendant, in the presence of the jury, that if he (the judge) \u201chad some witnesses who saw what you say they saw, I would have them here.\u201d It apparently was done by the experienced trial judge in an effort to help the defendant who was without counsel; however, we think it could have and probably did lead the jury to believe that the trial judge thought the defendant\u2019s testimony was of little probative value and needed supporting evidence or that the witnesses, if present, would not support the defendant\u2019s testimony. We think, under the circumstances revealed by this record, that this was prejudicial error, entitling the defendant to a new trial. This effect was again emphasized after the defendant was asked by the solicitor if he wanted Mr. Allen as a witness. The defendant finally replied, \u201cYes, sir.\u201d The judge apparently overlooked his answer and, in substance, repeated the question twice. The defendant, evidently confused, replied in the negative. We think that the questions and statement of the judge influenced the jury is indicated by the fact that after the jury had been charged and was considering the case, the jury returned to the courtroom and the following occurred:\n\u201c(By Juror: Would there be reason to think that at a second trial more evidence could be presented:\nBy the Court: I don\u2019t know, I could not tell you, I have no means of knowing. It has been some time and everybody has had opportunity to get what evidence here they wanted. I just don\u2019t know.) \u201d\nDefendant contends that the judge also committed error by expressing an opinion in the following portion of the charge:\n\u201c(Lieutenant Shannon testified that Brafman told him at the hospital what you have just heard him testify, substantially the same as Brafman testified to here on the witness stand, and that so did the other man, Johnny Stefanyszym.)\u201d\nThe vice in this instruction is that when the judge told the jury that the witness Shannon testified \u201csubstantially the same as Brafman testified to here on the witness stand,\u201d he inadvertently told the jury that the testimony of the prosecuting witness, Brafman, was corroborated by the witness Shannon. The question of whether the testimony of Shannon did corroborate that of Brafman was a question of fact for the jury. State v. Case, 253 N.C. 130, 116 S.E. 2d 429 (1960), cert. denied, 365 U.S. 830, 5 L. Ed. 2d 707, 81 S. Ct. 717 (1961).\nDefendant has other assignments of error which we do not discuss since he is entitled to a new trial.\nNew trial.\nJudges Parker and Graham concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Attorney General Morgan and Trial Attorney Jacobs for the State.", "Braswell, Strickland, Merritt & Rouse by Roland C. Braswell for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRUCE BYRD\nNo. 708SC515\n(Filed 16 December 1970)\n1. Criminal Law \u00a7 156\u2014 appellate review \u2014 granting of certiorari\nThe Court of Appeals allows defendant\u2019s petition for certiorari and considers his case on its merits, where defendant failed to docket his record on appeal within the time provided by the rules of the Court.\n2. Criminal Law \u00a7 99\u2014 remarks of trial court during trial \u2014 expression of opinion on defendant\u2019s testimony\nTrial Judge improperly expressed an opinion on the credibility and probative value of defendant\u2019s testimony when he said to the defendant, in the presence of the jury, that if he (the judge) \u201chad some witnesses who saw what you say they saw, I would have them here.\u201d G.S. 1-180.\n3. Criminal Law \u00a7 99\u2014 remarks of trial court during trial' \u2014 prejudicial effect\nRemarks of the court during a trial will not entitle a defendant to a new trial unless they tend to prejudice the defendant, and the question of whether prejudice resulted is to be considered in the light of the circumstances under which the remarks were made.\n4. Criminal Law \u00a7 99\u2014 remarks of trial court during trial \u2014 expression of opinion on evidence\nTrial court\u2019s instruction to the jury that the investigating officer testified \u201csubstantially the same as the prosecuting witness testified to here on the witness stand,\u201d held erroneous in expressing an opinion on the evidence, since the question of whether the officer\u2019s testimony did corroborate that of the prosecuting witness was a question of fact for the jury.\nAppeal by defendant from Superior Court Judge Bundy, 23 March 1970 Session of Superior Court held in Lenoir County.\nDefendant was tried upon a bill of indictment, proper in form, charging him with a felonious assault upon Arthur T. Brafman with a deadly weapon, to wit: a .38 caliber pistol, with intent to kill, inflicting serious injuries not resulting in death.\nWhen the case was called for trial, the defendant, in writing, waived the assignment of counsel and expressed the desire to represent himself. This was done in open court after he had been informed of the charges against him and of his right to have counsel assigned by the court.\n,The defendant pleaded not guilty. The jury found the defendant guilty of an \u201cassault with a deadly weapon per se, inflicting serious injury.\u201d\nFrom judgment of imprisonment, the defendant appealed to the Court of Appeals.\nAttorney General Morgan and Trial Attorney Jacobs for the State.\nBraswell, Strickland, Merritt & Rouse by Roland C. Braswell for defendant appellant." }, "file_name": "0056-01", "first_page_order": 80, "last_page_order": 85 }