{ "id": 5314033, "name": "STATE OF NORTH CAROLINA v. RONALD LYNN TAYLOR; STATE OF NORTH CAROLINA v. ELAINE MARIE FOSTER", "name_abbreviation": "State v. Taylor", "decision_date": "1992-07-07", "docket_number": "No. 9110SC46; No. 9110SC51", "first_page": "534", "last_page": "547", "citations": [ { "type": "official", "cite": "106 N.C. App. 534" } ], "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": "326 U.S. 607", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158185 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "614" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/us/326/0607-01" ] }, { "cite": "232 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "684", "parenthetical": "finding prejudicial error where trial court played unusually active interrogational role during presentation of State's evidence, asking altogether twenty-one questions during direct examination by the State, culminating in statement, \"I think it's obvious what the facts are.\"" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "292 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567711 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "165" }, { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0160-01" ] }, { "cite": "127 A.L.R. 1385", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1940, "opinion_index": 0 }, { "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": "224 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1976, "pin_cites": [ { "page": "636" }, { "page": "636" }, { "page": "635", "parenthetical": "reiterating that presiding judge is given great discretionary power as to conduct of trial" }, { "page": "636" }, { "page": "638" } ], "opinion_index": 0 }, { "cite": "290 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560084 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "24" }, { "page": "24" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0016-01" ] }, { "cite": "15 L.Ed.2d 360", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "382 U.S. 955", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6399460, 6399154, 6399775, 6398999, 6399226, 6399675, 6399359 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/382/0955-05", "/us/382/0955-02", "/us/382/0955-07", "/us/382/0955-01", "/us/382/0955-03", "/us/382/0955-06", "/us/382/0955-04" ] }, { "cite": "348 F.2d 204", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 857406 ], "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/f2d/348/0204-01" ] }, { "cite": "310 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523045 ], "year": 1984, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0079-01" ] }, { "cite": "264 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "299 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575616 ], "year": 1980, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0547-01" ] }, { "cite": "57 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "231 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630474 ], "year": 1950, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0467-01" ] }, { "cite": "320 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "311 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685063 ], "year": 1984, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0603-01" ] }, { "cite": "254 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569095, 8569227, 8569133, 8569272, 8569181 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0586-01", "/nc/296/0586-04", "/nc/296/0586-02", "/nc/296/0586-05", "/nc/296/0586-03" ] }, { "cite": "247 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "727" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553041 ], "year": 1978, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0219-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] } ], "analysis": { "cardinality": 1109, "char_count": 29468, "ocr_confidence": 0.767, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7505541828886549 }, "sha256": "00f99e6cd9f1f5bd544bfbf40c4b10f072f66886c8f2c6543975aa7856ad88b9", "simhash": "1:9bb3b184160c5176", "word_count": 5070 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONALD LYNN TAYLOR STATE OF NORTH CAROLINA v. ELAINE MARIE FOSTER" ], "opinions": [ { "text": "PARKER, Judge.\nOn the morning of Saturday, 24 February 1990, defendants Taylor and Foster along with many other people went to the Fleming Center, a private clinic whose services include performing abortions, in Raleigh, North Carolina. Defendant Taylor went as a representative of Operation Save A Baby, a group which opposes abortion. Because of his conduct on the premises of the clinic, defendant Taylor was charged with trespass and resisting officers. He was convicted of second degree trespass in Wake County District Court on 5 April 1990. Charged only with trespass arising from her conduct at the clinic, defendant Foster also was convicted of second degree trespass on 5 April 1990. Both defendants gave notice of appeal and their cases were joined, with those of four other people convicted of the same offense, for trial de novo in Wake County Superior Court. All six defendants appeared pro se. On 24 July 1990 a jury found defendants Taylor and Foster guilty of second degree trespass; each was sentenced to a twenty-nine day term of imprisonment.\nBoth defendants gave notice of appeal to this Court, and on 16 January 1991 their motions to consolidate their appeals were granted. Defendants made identical assignments of error and submitted identical briefs.\nDefendants\u2019 three contentions on appeal address only the conduct of the trial judge. First defendants contend the judge erred by expressing an opinion on questions of fact to be decided by the jury. Defendants also contend the judge erred in admonishing defendant Taylor, out of the presence of the jury, to testify truthfully. Finally defendants contend the judge erred by participating in the State\u2019s presentation of its case in chief. We find these contentions without merit and hold defendants received a fair trial free of prejudicial error.\nThe relevant trespass statute provides:\n(a) Offense. \u2014 A person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another:\n(1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or\n(2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.\n(b) Classification. \u2014 Second degree trespass is a misdemeanor punishable by imprisonment for up to 30 days, a fine of up to two hundred dollars ($200.00), or both.\nN.C.G.S. \u00a7 14-159.13 (Supp. 1991).\nDefendants first contend the trial judge erred by expressing opinions on questions of fact to be decided by the jury. We disagree.\nDuring the direct examination of State\u2019s first witness, Officer J.T. Gilliam, who testified from written notes, defendants, by defendant Taylor, requested the opportunity to examine the notes. The judge stated, \u201cIf you wish to see his notes, I will make them available to you at the proper time.\u201d Before attempting to cross-examine Gilliam, defendant Taylor again asked for the notes. Defendants requested a five minute recess in which to review the notes; and the judge stated, \u201cTake fifteen.\u201d Defendant Taylor queried, \u201cFifteen?\u201d The judge replied\nSure. I want you to know what is in there.\nMembers of the jury, you may relax for fifteen minutes. Feel free to wander in the lobby and get a cup of coffee or whatever. The bottom line is I try to conduct a fair trial to both sides and I don\u2019t want anyone to feel they have ever been railroaded in my court. Court will be at ease.\nDefendants argue these remarks clearly intimated the judge\u2019s opinion as to defendants\u2019 guilt and the merits of their defense. We do not find defendants\u2019 argument persuasive.\nA trial judge must not, during any stage of a trial, express \u201cany opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d N.C.G.S. \u00a7 15A-1222 (1988). This statute has been construed to mean that a trial judge must not express any opinion as to the weight or credibility of any competent evidence presented before the jury. State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1983). Whether the opinion is expressed in the court\u2019s charge, in the examination of witnesses, in rulings on evidence, or in any other matter is immaterial. State v. Alston, 38 N.C. App. 219, 220, 247 S.E.2d 726, 727 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 30 (1979). Nevertheless, a new trial is not required if, considering the circumstances under which a remark was made, it could not have prejudiced the defendant\u2019s case. State v. King, 311 N.C. 603, 618, 320 S.E.2d 1, 11 (1984); State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950). On review, all facts and attendant circumstances as shown by the record must be considered and remarks must be considered in context. State v. Brady, 299 N.C. 547, 560, 264 S.E.2d 66, 74 (1980); State v. Lofton, 66 N.C. App. 79, 85, 310 S.E.2d 633, 636 (1984). In light of the foregoing principles, the question for this Court is whether the challenged remarks constituted expression on any question of fact to be decided by the jury or, more narrowly, expression of opinion as to the weight or credibility of any competent evidence presented before the jury.\nFrom context it is clear the court was deeply concerned that without legal counsel, defendants could not mount a proper defense to the charges against them. When defendants\u2019 case was called for trial, the judge began by asking the six defendants individually if they were prepared for trial. The judge specifically asked defendant Taylor if he had \u201cever been involved in any form of litigation in a formal courtroom other than this charge in your district court appearance?\u201d Defendant responded, \u201cYour Honor, is that a proper question to be answered?\u201d The judge rejoined, \u201cI am asking these questions to try to determine if you are perhaps competent to represent yourself in these proceedings. That is all.\u201d The judge asked first defendant Taylor, then all the other defendants, including defendant Foster, \u201c[D]o you feel comfortable representing yourself?\u201d All defendants responded in the affirmative. The judge then stated, \u201cI don\u2019t feel comfortable with you representing yourselves but if you are ready for trial, we will proceed with trial.\u201d\nAfter giving preliminary instructions to the jury pool, the judge asked them to remember that the defendants had a right to proceed pro se. The judge assured the defendants, \u201cI will assist you in your questions when I think it is appropriate, if that is acceptable to you?\u201d Defendants indicated they would accept help. During jury selection, which took up more than two days, the judge expressed sympathy for the defendants\u2019 philosophical and moral beliefs. In addition, he continued to express concern over defendants\u2019 lack of legal counsel, offering to help them find an attorney and suggesting a specific attorney he knew was qualified. This concern is illustrated by the following statement made to the defendants:\nNow, I am not asking you to use this lawyer to tell you what to do but merely to advise you proeedurally so that you wouldn\u2019t step into pitfalls or things that will be detrimental to you. I want you to get a fair trial. I don\u2019t want you to be railroaded by the district attorney asking an improper question when I am sitting up here looking at something else and not paying attention and an answer comes out.\nEven after the judge explained to defendants that they could accept the assistance of legal counsel and still proceed pro se, defendants insisted on proceeding without legal counsel.\nOn its face the challenged statement contained no intimation as to guilt or lack of merit in the defense. Viewing the statement in context and considering the facts and attendant circumstances, including the court\u2019s numerous expressions of concern and offers of help, we conclude the statement did not constitute impermissible expression of opinion on the weight or credibility of competent evidence before the jury.\nDefendants argue further that in their case in chief, the court made two direct attacks on the credibility of defendant Taylor during his direct examination. We agree but find the errors harmless.\nThe State presented overwhelming evidence against defendants. Witness after witness testified that defendants Foster and Taylor were part of a large group of people at the clinic, some of whom remained on public sidewalks nearby. Defendants Foster and Taylor, however, were on clinic property. Defendant Foster was in a group which blocked the porch and front door. Defendant Taylor went from the front to the back entrance to encourage people blocking the door there. Defendant Taylor returned to the front door and advised everyone to lock arms and sit down when police arrived. Both defendants were repeatedly asked to leave and finally told to leave or suffer arrest. Defendant Taylor was carried away from the front porch area by officers.\nBefore defendants\u2019 case in chief began, the judge several times expressed his intention to limit defendant Taylor\u2019s testimony to evidence contrary to that offered by the State. Defendant Foster showed the judge a list of questions she intended to ask defendant Taylor and the judge stated that since most of the questions' were framed chiefly to permit defendant Taylor to express his beliefs on abortion, the judge intended to sustain every objection by the State. This was the context in which direct examination of defendant Taylor took place.\nBefore the jury, the following exchange occurred:\nQ. [By defendant Foster] Mr. Taylor, you stated to me earlier in private that what you were doing at the Fleming Center that morning was not only [B]iblical but in your opinion legal. Could you explain what you mean by that?\nA. Well, I know in the past President Re[a]gan . . . signed a proclamation . . . declaring the national sanctity of human life and he declared humanity to the unborn child and the fact that it was his proclamation that he signed I felt like that gave even though Roe v. Wade didn\u2019t address the issue of the unborn child but I feel like he was giving humanity to the unborn child and public law 96 or 97280, where again a proclamation declaring that the Bible is the word of God and that we are to be obedient to that and that being a public law, I felt like I was, you know, legally doing what I felt was correct.\nQ. Earlier\u2014\nCOURT: Hold on just a minute. Now, you just made that statement didn\u2019t you and you believed what you just said, don\u2019t you?\nA. Yes, sir.\nCOURT: You honestly believe that?\nA. I believe that President Re[a]gan did this.\nCOURT: Your interpretation of what President Re[a]gan did, do you honestly believe this gave you authority to do what you did here on the 24th of February?\nA. In addition to the [B]iblical references and my understanding of the [Constitution that everybody has pursuit of life, liberty and the pursuit of happiness, yes, sir.\nWe agree with defendants that the judge\u2019s questions about belief and honest belief constituted a direct attack on the credibility of defendant Taylor.\nShortly after this exchange, the following colloquy took place:\nQ. Why \u2014 from earlier testimony it showed that they carried you to the bus. Why didn\u2019t you get up and walk?\nA. I think first of all that number one I don\u2019t think I had the opportunity because of the way that the events went.\nCOURT: Now, you told me you were going to tell the truth.\nA. Your honor, I am going to tell the truth if you will allow me to continue.\nCOURT: Didn\u2019t the officer ask you to leave?\nA. Your honor, may I complete the answer to the question?\nCOURT: Yes, sir, but I want to make sure we stay in step with each other.\nA. The officer did ask me to leave.\nCOURT: Did you leave?\nA. I did not leave. As the officer pointed his finger at me and said him first, I don\u2019t know which officers it were that, you know, pulled me and lifted me up, but go back to your question that you asked me about why, you know, why I was carried. First of all, I was not asked to walk to the van. That\u2019s no problem. My second statement is I probably would not have walked to the van, that I probably if that had been asked of me, which it was not, I probably would have sat down at the doors. I was sitting down at the doors and I probably would have requested the officer to carry me and that may even come up with another question as to what was, you know, what was the purpose in carrying you, why didn\u2019t you walk to the van. It was not intended as an act of resisting arrest. The records that we keep basically say that the number of women that are turned away from an abortion clinic\u2014\nCOURT: Here we go again. Now, I\u2019m not going to allow it.\nA. By staying at the door and again not b[eing] asked whether I want to walk or be carried, I would probably have been carried even if they had asked me to walk) That\u2019s a moot point. By being carried it takes the officers longer to process the arrest and gives our sidewalk counselors longer to talk to the women that are about to go into the clinic.\nWe agree with defendants that the judge\u2019s admonition to tell the truth also constituted a direct attack on the credibility of defendant Taylor.\nThe North Carolina Supreme Court has said\n[T]he judge has no duty to caution a witness to testify truthfully. \u201cOnce a witness swears to give truthful answers, there is no requirement to \u2018. . . direct him to tell the truth.\u2019 It would render the sanctity of the oath quite meaningless to require admonition to adhere to it.\u201d United States v. Winter, 348 F.2d 204, 210 (2d Cir.) [cert. denied, 382 U.S. 955, 15 L.Ed.2d 360 (1965)].\nState v. Rhodes, 290 N.C. 16, 24, 224 S.E.2d 631, 636 (1976).\nWe conclude that the trial court\u2019s questions about belief and honest belief and admonition to tell the truth in the presence of the jury invaded \u201cthe province of the jury, which is to assess the credibility of the witnesses and determine the facts from the evidence adduced. State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954); 7 Strong\u2019s N.C. Index 2d Trial \u00a7 18 (1968).\u201d State v. Rhodes, 290 N.C. at 24, 224 S.E.2d at 636. Nevertheless, considering defendant Taylor\u2019s testimony in its entirety, we are unable to find that the questions and admonition, even though constituting impermissible expression of opinion, prejudiced defendants\u2019 case. Nothing in defendant Taylor\u2019s proposed or actual testimony tended to contradict the evidence against him. Instead, assuming arguendo that State\u2019s evidence left room for reasonable doubt as to his guilt, defendant Taylor\u2019s testimony established beyond all doubt that even if asked to leave only once, he did not leave and had no intention of leaving but intended instead to force the officers to carry him bodily away. Under these circumstances, the judge\u2019s questions and admonition could not prejudice defendant Taylor\u2019s case or that of defendant Foster.\nIn summary, the challenged remarks about railroading did not constitute impermissible expression of opinion. Although the judge\u2019s questions about belief and honest belief and his admonition to tell the truth constituted impermissible expression of opinion, the error was harmless. We are not persuaded by defendants\u2019 argument that prejudice arose from the cumulative effect of all the remarks and questions. Instead, the record makes clear that throughout the trial, the judge\u2019s goal was that defendants receive fair treatment by the judicial system. For all the foregoing reasons, defendants\u2019 first assignment of error is overruled. \u25a0\nDefendants\u2019 second contention is that the judge\u2019s admonition to tell the whole truth and nothing but the truth, made to defendant Taylor outside the presence of the jury, constituted prejudicial error. Again we disagree.\nJust before his direct examination began, defendant Taylor asked, \u201cYour Honor, may I make a few comments to the [cjourt before they examine me?\u201d This request was denied. The trial court sent the jury out and cautioned defendant Taylor thus\nCOURT: Now, at this point, sir, and let me[J if I can[,] get you to understand this, you are taking the witness stand in your own behalf?\nA. That is correct.\nCOURT: At this point the State has clearly shown that you were on the premises of another and that you were asked to leave the premises and either by conduct or by conversation you refused to leave the premises after being requested to do so. In the opinion of this [c]ourt your testimony should be such as to show that the State\u2019s evidence was not as it was presented here, but was something else and that you weren\u2019t asked to leave or in fact you did leave or as you were attempting to leave in obedience to their request to leave that you were then arrested, something defensive to show it in a light other than that presented by the State. And as I said to you earlier now, I\u2019m going to restrict as near as I possibly can the testimony in this case to the issue of trespass and I have not intended nor am I about now to allow the Superior Court of Wake County to be turned into a forum to advance the cause of pro life or no abortions. That\u2019s not what we\u2019re here for. We\u2019re here to determine if in fact you violated the North Carolina second degree trespass law. Now, what did you want to say to me in the presence of the jury? That\u2019s what I\u2019m concerned about.\nA. Well, originally ... it was not my intention to take the stand.\nCOURT: And I\u2019m wondering why you have at this point.\nA. ... I want to say that I think it is almost demanding of me to take the stand because of some misstatements that were made by . . . clinic personnel [and] police officers that really need correctpng] and in my opinion the best way that I can correct those ... is by taking the witness stand.\nCOURT: Is that important?\nA. Yes, sir, it is very important.\nCOURT: Now, when I ask is that important I ask it in this light, were you on the premises?\nA. Yes, sir.\nCOURT: Were you asked to leave?\nA. That is a technical question that I would like to discuss[. T]he . . . officers . . . [as] I have been trying to say throughout [trial,] prior to my arrest, came up on the steps of the clinic and I don\u2019t remember his exact words but to the effect that you are trespassing and you will be arrested if you do not leave. Immediately after that I responded with sir, we have reason to believe that babies are going to be killed here this morning and I can\u2019t really express the expression on Lieutenant Turnage\u2019s face. It was \u2014 it wasn\u2019t anger. I can\u2019t articulate what his expression \u2014 it was not anger. It was not shock. It was not remorse but it was understanding but I have a job to do. But what I\u2019m saying, Your Honor, before of course he did not respond at all.\nCOURT: But did you respond to his request is the question before the [cjourt and jury.\nA. Well, what happened is after I made my statement immediately he pointed to me and the officer to his left said he\u2019s first and so I don\u2019t believe that in the technical sense of the question\u2014\nCOURT: You\u2019re kidding yourself.\nA. No, sir, I\u2019m not.\nCOURT: I rule that you are. Who do you think is going to win this argument? He asked you to leave and instead of leaving you began some dialogue.\nA. That is correct.\nCOURT: And that was a mistake. He gave you a lawful order based on North Carolina law and it was your duty to follow it or suffer the consequences. Now, all of this is said out of the presence of the jury but I want you to know where you are and what you are facing right now.\nA. I understand.\nCOURT: Now, what you want that jury to speculate on or believe or disbelieve because the instructions I\u2019m going to give them will be straight North Carolina law, I have denied you the defense of necessity, whether I\u2019m right or wrong legally the higher courts can say if you elect to appeal it, but even at this point if you or any of the rest of you want to not take the stand and put on evidence I\u2019ll still afford you that right to protect you. I personally think it would be detrimental to you to take the stand but it\u2019s your right and perhaps I shouldn\u2019t say I think it would be detrimental . . . but I practiced law for almost 18 years and I have been a judge for 15 and a half and under the circumstances of this case I don\u2019t see how you can help yourself because when Mr. Spoon gets through cross examining you it\u2019s going to be pitiful, but your choice.\nA. And I have decided to make testimony.\nCOURT: All right. But now I\u2019m going to restrict your testimony to the facts in the case, whether or not you were trespassing, to the facts that day.\nCOURT: Now, understand I\u2019m not going to let you make superior court a forum [for] your protest. We\u2019re going to stick to this trial. . . .\nA. Are you saying ... I cannot tell . . . why I was there? . . .\nCOl\u00cdRT: ... If you will tell the truth, the whole truth and nothing but the truth so help you God, I\u2019ll let you say what you want to. . . . [T]he truth I\u2019m looking for, one, is this, were you on the premises sitting at the door of the clinic or standing or both, next, were you asked to leave, next, did you leave voluntarily and that\u2019s what is on trial here today and that\u2019s all that\u2019s on trial in this courtroom today. Abortion is not on trial in this courtroom today. I have said this before this trial started. I\u2019ve said it several times during the trial and I\u2019m going to say it again. This is a court of law and the law of the State of North Carolina is that if you go on someone else\u2019s premises or property and you are asked to leave by the owner, person in charge or person of authority and you refuse to do so you have violated the trespass law, second degree trespass. Now, that\u2019s what we\u2019re faced with and that\u2019s all we\u2019re faced with. Your views on abortion are not on trial in this courtroom today. That\u2019s it. Your views on abortion are not on trial in this courtroom today. It is not an issue in this case.\nThis passage represents only a small part of the lengthy dialogue between defendant Taylor and the court.\nRelevant evidence is evidence tending \u201cto make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1988). The North Carolina Evidence Code also provides that the trial court \u201cshall 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.\u201d N.C.G.S. \u00a7 8C-1, Rule 611 (1988). See also State v. Rhodes, 290 N.C. at 23, 224 S.E.2d at 635 (reiterating that presiding judge is given great discretionary power as to conduct of trial).\n\u201cAny intimation by the judge in the presence of the jury, however, that a witness had committed perjury would, of course ... constitute reversible error.\u201d Id. at 23, 224 S.E.2d at 636. Whether a reference to perjury is \u201cmade in or out of the presence of the jury, \u2018error may be found in any remark of the judge . . . calculated to deprive the litigants ... of the right to a full and free submission of their evidence upon the true issues involved to thp unrestricted and uninfluenced deliberation of a jury ....\u2019\u201d Id. (quoting Annotation, Error \u2014 Statements as to Perjury, 127 A.L.R. 1385 (1940)). To constitute reversible error, the judge\u2019s remarks must have \u201cthe effect of stifling the free presentation of competent, available testimony.\u201d Id. at 28, 224 S.E.2d at 638.\nAs the transcript portions quoted above show, the trial court understood the \u201ctrue\u201d or narrow issues in defendants\u2019 trial and attempted without success to help defendants to a similar understanding of the application of law to the facts of their case. The court had previously expressed concern that without legal counsel, defendants could not understand the legal issues in their case. The court tried repeatedly to explain to defendants what evidence could constitute evidence relevant to the charge against them and why certain testimony they wished to elicit from State\u2019s witnesses or present in their case in chief was irrelevant. Nevertheless, the record shows defendants could not or would not understand. In the face of such conduct, the court could do no more than maintain its zealous refusal to admit irrelevant ^evidence. The admonition to defendant Taylor, while couched in terms of truthfulness, addressed the question of relevancy of his proposed testimony. Under all the circumstances we cannot say the admonition to tell the whole truth had the effect of stifling the free presentation of competent testimony on any true issue in the case. Therefore, we overrule this assignment of error.\nDefendants\u2019 final contention is that the trial court erred by its active participation in State\u2019s case in chief, including overbroad cross-examination of defendant Taylor. We disagree.\nEven assuming the court erred, the , question for this Court is whether the error was prejudicial to defendants\u2019 case. State v. Staley, 292 N.C. 160, 165, 232 S.E.2d 680, 684 (1977) (finding prejudicial error where trial court played unusually active interrogational role during presentation of State\u2019s evidence, asking altogether twenty-one questions during direct examination by the State, culminating in statement, \u201cI think it\u2019s obvious what the facts are.\u201d). In the instant case, State\u2019s evidence was clearly sufficient for the jury to find defendants guilty of the charge against them. So far from contradicting State\u2019s evidence, defendants\u2019 evidence tended to confirm their guilt.\nStaley suggests that where the trial court plays an unusually active interrogational role during presentation of State\u2019s evidence, the ultimate \u201c \u2018question is not whether guilt may be spelt out of a record.\u2019 \u201d 292 N.C. at 169, 232 S.E.2d at 686 (quoting Bollenbach v. United States, 326 U.S. 607, 614, 90 L.Ed. 350, 355 (1946)). Rather the question is whether the trial judge\u2019s involvement in the trial procedure and process prejudiced defendant\u2019s case by leaving the jury with an impression of the judge\u2019s opinion of the facts and of defendant\u2019s guilt such that in essence the defendant was tried by the judge, not by the jury. In the case under review the number and tenor of the questions asked by the court were nothing like those in Staley. Moreover, in Staley, the court was not faced with the refusal of the defense, in cross-examining State\u2019s witnesses and in presenting its case in chief, to stick to the issues on trial. In the instant case such refusal by defendants caused the trial court to play an unusually active role. Considering all the facts and circumstances, we are unable to find prejudice and, therefore, overrule this assignment of error.\nNo error.\nJudges WELLS and WYNN concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Philip A. Lehman, for the State.", "Randall, Yaeger, Jervis, Hill & Anthony, by Robert B. Jervis, for defendant-appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONALD LYNN TAYLOR STATE OF NORTH CAROLINA v. ELAINE MARIE FOSTER\nNo. 9110SC46\nNo. 9110SC51\n(Filed 7 July 1992)\n1. Criminal Law \u00a7 375 (NCI4th)\u2014 appearance pro se \u2014comments by court \u2014 no prejudicial error\nThere was no prejudicial error from the trial court\u2019s remarks in a trespassing trial which arose from an abortion protest where defendants insisted on appearing pro se; the court\u2019s comment that he did not want anyone to feel railroaded did not constitute an impermissible expression of opinion; although the court\u2019s questions about honest belief and his admonition to tell the truth constituted an impermissible expression of opinion, the error was harmless; defendants\u2019 argument that prejudice arose from the cumulative effect of the remarks and questions was not persuasive; and the record made clear that the judge\u2019s goal throughout the trial was that defendants receive fair treatment by the judicial system.\nAm Jur 2d, Trial \u00a7 276.\n2. Criminal Law \u00a7 385 (NCI4th)\u2014 appearance pro se \u2014 judge\u2019s admonition to defendant to tell the truth \u2014questions of relevancy \u2014no prejudicial error\nThere was no prejudicial error in a trespassing prosecution arising from an abortion protest where the trial court admonished defendant Taylor outside the presence of the jury to tell the truth and nothing but the truth just before his direct examination began. The admonition, while couched in terms of truthfulness, addressed the question of relevancy of defendant\u2019s proposed testimony and, under all the circumstances, it cannot be said that the admonition to tell the whole truth had the effect of stifling the free presentation of competent testimony on any true issue in the case.\nAm Jur 2d, Trial \u00a7 276.\n3. Criminal Law \u00a7 367 (NCI4th)\u2014 appearance pro se \u2014court\u2019s participation in State\u2019s case \u2014 no \u00a1prejudicial error\nThere was no prejudicial error in a trespassing prosecution arising from an abortion protest in which defendants appeared pro se where the trial court actively participated in the State\u2019s case, including the cross-examination of defendant Taylor. The State\u2019s evidence was clearly sufficient for the jury to find defendants guilty of the charge against them, and the refusal of the defense to stick to the issues on trial caused the trial court to play an unusually active role.\nAm Jur 2d, Trial \u00a7 274.\nAPPEAL from judgments entered 25 July 1990 by Judge George R. Greene in WAKE County Superior Court. Heard in the Court of Appeals 8 October 1991.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Philip A. Lehman, for the State.\nRandall, Yaeger, Jervis, Hill & Anthony, by Robert B. Jervis, for defendant-appellants." }, "file_name": "0534-01", "first_page_order": 564, "last_page_order": 577 }