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    "judges": [
      "Judge ELMORE concurs.",
      "Judge WYNN concurs in the result by separate opinion."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JOHNNY SHANE CURRY"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nJohnny Shane Curry (\u201cdefendant\u201d) appeals from judgments entered after a jury returned guilty verdicts for: (1) assault with a deadly weapon with intent to kill inflicting serious injury; (2) felonious breaking or entering; (3) felonious larceny; (4) robbery with a dangerous weapon against Lloyd Triplett (\u201cTriplett\u201d); (5) felonious conspiracy to commit first-degree murder under the felony murder rule; (6) felonious conspiracy to commit robbery against Ruth\u2019s Ice Cream and Sandwich Shop (\u201cRuth\u2019s\u201d); (7) felonious conspiracy to commit robbery with a dangerous weapon against Triplett; and (8) attempted murder. We find no error.\nI. Background\nDefendant, twenty-nine years old, and Danielle Edsel (\u201cEdsel\u201d), seventeen years old, were dating in February 2003. Triplett operated Wood\u2019s Grocery Store (\u201cWood\u2019s\u201d) and lived in a house next door. Triplett had known Edsel since she was a child and allowed her to live in a small apartment in the back of Wood\u2019s Grocery. He also gave her money and food and permitted her to use his bathroom when those at Wood\u2019s were not working. Edsel also occasionally worked for Triplett at Wood\u2019s.\nThe State\u2019s evidence tended to show that defendant and Edsel were seeking money. They discussed robbing Ruth\u2019s, where Edsel formerly worked. However, on the day they planned to rob Ruth\u2019s, bad weather had forced Ruth\u2019s to close early and they could not get inside the store.\nDefendant and Edsel next planned to rob Triplett. They discussed several options to steal Triplett\u2019s money. The first option involved Edsel seducing Triplett, tying him to the bed, then forcing him to tell them where he kept his money. However, they determined that plan would allow Triplett to identify both of them.\nThe next plan involved Edsel knocking Triplett out at his house with defendant coming in and killing him. However, Edsel later determined that she would kill Triplett, so defendant would not \u201cbe the one to live with it.\u201d\nOn the evening of 16 February 2003, Edsel approached Triplett as he was working at Wood\u2019s and asked if she could use his bathroom. He agreed and the two walked from Wood\u2019s to Triplett\u2019s house. Triplett cooked dinner while Edsel showered. The two ate together, drank liquor, and watched television. Triplett asked Edsel if she wanted to spend the night. She agreed and Triplett left the house to move Edsel\u2019s car behind Wood\u2019s. After Triplett left, Edsel called defendant and asked him to come over to complete the robbery. When defendant hesitated, Edsel told him to \u201cnever mind,\u201d that she would call him later.\nTriplett returned home after moving Edsel\u2019s car and the two talked for a while. At about 11:00 p.m., Triplett heard someone knocking on the door and went to answer it. Edsel, believing defendant was at the door, panicked and grabbed a gun she had hidden underneath the sofa. She aimed and shot Triplett in the back of the head. Triplett was knocked unconscious by the bullet and collapsed.\nDefendant came inside Triplett\u2019s house and began searching for money. He went to Triplett\u2019s room and discovered another gun, which he stole. Edsel and defendant also grabbed some jewelry and another gun. Edsel checked Triplett and determined he was still alive. She was about to shoot him again when defendant stopped her. As Triplett regained consciousness, defendant and Edsel told him that someone had hit him on the head. Defendant advised Triplett to go to the hospital, but he refused. Edsel and defendant asked Triplett where he kept his money. Triplett claimed his niece held it all.\nDefendant stayed with Triplett while Edsel went to Wood\u2019s to look for money. She broke open video poker machines and stole all of the quarters, but could not find additional cash. Edsel returned to Triplett\u2019s house and she and defendant attempted to cut the phone lines to Triplett\u2019s house. Defendant then left to search Wood\u2019s for money. Triplett still refused to go to the hospital. Edsel walked out of Triplett\u2019s house for a moment to get away from him. Triplett locked Edsel out of the house and called the police and his sister. Defendant returned to the house and he and Edsel asked Triplett to let them back inside. Triplett refused and informed them that he had called the police and his sister.\nDefendant and Edsel returned to Wood\u2019s. Defendant broke open another video poker machine, stole cigarettes, and other items. They gathered the stolen goods into several bags and placed them inside Edsel\u2019s car. Both entered the vehicle, which they started to defrost the windows.\nWilkes County Sheriff\u2019s deputies were dispatched to Triplett\u2019s house in response to the 911 call. They arrived and saw Edsel\u2019s car parked behind Wood\u2019s. Triplett told the deputies that someone had knocked him unconscious. When he regained consciousness, he observed defendant and Edsel going through his things. The deputies approached Edsel\u2019s car and asked Edsel if they could search the vehicle. Edsel consented to the search. The deputies recovered two guns, a large quantity of cigarette cartons, bags of jewelry, and cash. When asked about these items, defendant and Edsel responded that they did not know how the items got into the car.\nTriplett was taken to Wilkes Regional Medical Center and was treated for a gunshot wound to the head. The bullet fractured Triplett\u2019s skull and he was transferred to Baptist Hospital in Winston-Salem. He underwent neurosurgery to treat the gunshot wound and skull fracture.\nOn 14 April 2003 and 8 December 2003, the grand jury of Wilkes County returned true bills of indictment against defendant for: (1) assault with a deadly weapon with intent to kill inflicting serious injury; (2) felonious breaking and entering; (3) felonious larceny; (4) robbery with a dangerous weapon against Triplett; (5) felonious conspiracy to commit first-degree murder under the felony murder rule; (6) felonious conspiracy to commit robbery against Ruth\u2019s; (7) felonious conspiracy to commit robbery with a dangerous weapon against Triplett; and (8) attempted murder.\nA. Defendant\u2019s Evidence\nDefendant was tried by a jury during the 12 January 2004 Criminal Session of Wilkes County. Defendant offered evidence from a fellow inmate of Edsel that she had planned the entire event and intended on having sex with Triplett in exchange for money. This testimony tended to show that after Edsel engaged in sexual intercourse, Triplett did not pay her and she shot him. The fellow inmate also testified Edsel stated she did not contact or involve defendant until after she had shot Triplett. Defendant did not testify.\nB. Verdict and Sentence\nOn 16 January 2004, the jury found defendant to be guilty of all charges. The trial court arrested judgment on the charge of conspiracy to commit robbery with a dangerous weapon (03 CRS 50657) and consolidated the verdicts for the charges of felonious larceny (03 CRS 50656) and felonious breaking and entering (03 CRS 50656). During sentencing, defendant was found to have a prior record level of III. Defendant was sentenced in the presumptive range for all charges, the following to run consecutively: (1) 220 months minimum to 273 months maximum for attempted murder; (2) 116 months minimum to 149 months maximum for assault; (3) 220 months minimum to 273 months maximum for conspiracy to commit murder; (4) 103 months minimum to 133 months maximum for armed robbery; and (5) ten months minimum to twelve months maximum for breaking and entering. Defendant was also sentenced for a concurrent term of ten months minimum to twelve maximum for conspiracy to commit robbery. Defendant appeals.\nII. Issues\nDefendant argues: (1) the trial court erred in admitting into evidence letters written between defendant and Edsel; (2) the trial court erred in posing a question to a defense witness; (3) he was improperly charged for conspiracy to commit felony murder; and (4) defendant received ineffective assistance of counsel.\nIII. Admissibility of Letters\nDefendant argues the trial court committed plain error by failing to edit or redact highly prejudicial portions from letters written by defendant and Edsel and later admitted into evidence at trial. We disagree.\nA. Preservation of Potential Error for Appellate Review\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.\nN.C.R. App. P. 10(b)(1) (2004). Assignments of error are generally not considered on appellate review unless an appropriate and timely objection was entered. State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988) (citing State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988)); N.C. Gen. Stat. \u00a7 15A-1446(a) (2003).\nOur review of the transcripts and record fails to show that defendant moved to redact portions of or exclude the letters or made a timely and specific objection when the State proffered the letters and Edsel\u2019s corroborating testimony into evidence. Defendant had access to the letters prior to trial, knew the State intended to introduce them, but failed to request the trial court to edit the allegedly prejudicial portions. Under Rule 10(b)(1), defendant failed to preserve this assignment of error for review.\nB. Plain Error Rule\nOur Supreme Court adopted the plain error rule as an exception to Rule 10 in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) (applied to assignments of error regarding jury instructions). A defendant seeking plain error review must \u201cspecifically and distinctly contend[]\u201d that any error committed by the trial court amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999). The proponent must show that:\n[A]fter reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nOdom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). We may only apply the plain error rule in exceptional cases. State v. Sams, 317 N.C. 230, 241, 345 S.E.2d 179, 186 (1986) (citation omitted). Our Supreme Court has extended plain error review to issues concerning admissibility of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).\nWe examine the entire record to decide whether the error \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d Odom, 307 N.C. at 661, 300 S.E.2d at 379 (citation omitted). We determine whether, absent the error, the jury would have returned a different verdict. State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986). Defendant properly argued in his brief with citations to relevant authority that the admission of portions of the letters constitutes plain error, warranting this Court\u2019s review of an otherwise unpreserved assignment of error.\nC. Relevant Evidence\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to 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. Gen. Stat. \u00a7 8C-1, Rule 401 (2003). \u201cEvidence is relevant if it has any logical tendency, however slight, to prove a fact at issue.\u201d State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986) (citations omitted). Our Supreme Court has \u201cinterpreted Rule 401 broadly and [has] explained on a number of occasions that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994) (citations omitted).\nGenerally, all relevant evidence is admissible. N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (2003). However, relevant \u201cevidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2003). Exclusion or admission of evidence under Rule 403 rests within the sound discretion of the trial court. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).\nHere, defendant asserts the following portions of the letters read into evidence and Edsel\u2019s testimony were highly prejudicial: (1) Edsel\u2019s opinion that defendant was guilty of felony larceny and felony breaking and entering; (2) defendant had prior criminal convictions; (3) defendant had previously been incarcerated; (4) defendant threatened to assault Edsel; (5) defendant advised Edsel how to pass a gunshot residue test; (6) defendant had no intention of testifying or taking a plea offer; (7) defendant thought a \u201cfixer\u201d was the only means to prevent his conviction; (8) defendant thought he had a \u201cpiss-poor\u201d lawyer; and (9) defendant knew of \u201cthings that can be done\u201d to get shorter sentences.\nOur review of these instances set out in the transcript and the entire record indicate absent this evidence, the jury would not have returned a different verdict. Riddle, 316 N.C. at 161, 340 S.E.2d at 80. The State proffered separate and overwhelming testimonial and physical evidence against defendant to prove his guilt. Defendant has failed to show any alleged error in permitting introduction of the above evidence was \"fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quotation omitted). Under the other evidence presented, defendant has failed to show this is the exceptional case where the claimed error is so fundamental that justice was not done. Sams, 317 N.C. at 241, 345 S.E.2d at 186. This assignment of error is overruled.\nIV. Trial Court\u2019s Question\nDefendant asserts the trial court committed prejudicial error by asking a defense witness a question. We disagree.\nHere, defendant was arrested with $19.75 in quarters in his pockets. The State presented evidence that the quarters came from the video poker machines located inside Wood\u2019s. To rebut the State\u2019s evidence, defense witness Joshua Curry testified that he and defendant tended bar the night before the incident. He continued that it had been \u201cfifty-cent beer night\u201d and customers had left quarters as tips. The following exchange took place:\nDefense Counsel: What happens when they tell you to keep the change?\nJoshua Curry: You put the quarters in the tip jar.\nDefense Counsel: That night did you get a bunch of quarters in the tip jar?\nJoshua Curry: Yeah. We do every night when we have 50-cent beer. They don\u2019t tip dollars; they tip 50 cents.\nDefense Counsel: Okay. If you remember, do you remember whether [defendant] got a bunch of tips that night? How do you split the tips?\nJoshua Curry: We split it right down the middle. Divide them at the end of the night.\nDefense Counsel: Take the jug or whatever and pour it out?\nJoshua Curry: Count it out and split it right down the middle.\nDefense Counsel: Okay.\nTrial Court: What do you do with your quarters when you get them?\nJoshua Curry: Cash them in.\nTrial Court: For dollars?\nJoshua Curry: Sometimes I do, sometimes I don\u2019t.\nTrial Court: You carry them for 48 hours in your pocket if there are 80 quarters?\nJoshua Curry: He left early that night.\nTrial Court: Go ahead.\nOur Supreme Court considered this issue in State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999).\nThe 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. . . . The law imposes on the trial judge the duty of absolute impartiality. The trial judge also has the duty to supervise and control a defendant\u2019s trial, including the direct and cross-examination of witnesses, to ensure fair and impartial justice for both parties. Furthermore, it is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts.\nIn evaluating whether a judge\u2019s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. The trial court has a duty to control the examination of witnesses, both for the purpose of conserving the trial court\u2019s time and for the purpose of protecting the witness from prolonged, needless, or abusive examination. In performing this duty, however, the trial court\u2019s position as the standard-bearer of impartiality requires that the trial judge must not express any opinion as to the weight to be given to or credibility of any competent evidence presented before the jury.\nId. (internal citations and quotations omitted).\nThe trial court did not comment on the credibility of the witness or his testimony. Rather, it just clarified the line of questioning concerning defendant\u2019s possession of the quarters, a pertinent fact. Fleming, 350 N.C. at 126, 512 S.E.2d at 732 (\u201c[I]t is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts.\u201d) (citations omitted).\nIn addition, the trial court- provided the following instruction to the jury immediately prior to their deliberations:\nAs presiding judge, I am required by law to be impartial. Therefore, you shouldn\u2019t mistakenly infer that I have implied that any of the evidence should or should not be believed, that a fact has or has not been proven or what your findings ought to be. Instead, you alone are to find the facts and to render a verdict reflecting the truth as you find it.\nWe hold the trial court\u2019s questions to the defense witness on the pertinent facts surrounding defendant\u2019s possession of quarters was not a comment on the witness\u2019s credibility or his testimony. The jury was instructed that the trial judge is required to be impartial. This assignment of error is overruled.\nV. Conspiracy to Commit Felony Murder\nDefendant argues that North Carolina does not recognize conspiracy to commit felony murder and the trial court erred in submitting the offense to the jury. We disagree.\nOur Supreme Court addressed this issue in State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). The defendant in Gibbs contended \u201cthe trial court erred by instructing the jurors that they could convict him of conspiracy to commit murder if they found an agreement to commit felony murder.\u201d Id. The Court disagreed, holding \u201c[f]irst-degree murder by reason of felony murder is committed when a victim is killed during the perpetration or attempted perpetration of certain enumerated felonies or a felony [is] committed or attempted with the use of a deadly weapon .... In felony murder, the killing may, but need not, be intentional.\u201d Id. The key component, however, is the jurors must be instructed that \u201cto find a conspiracy to commit murder, they must first find an agreement to commit first-degree murder.\u201d Id.\nHere, the trial court instructed the jury as follows:\nthe State must prove three things beyond a reasonable doubt: First, that the defendant and Danielle Edsel entered into an agreement; second, that the agreement was to commit first-degree murder ...[;] [a]nd third, that the defendant and Danielle Edsel intended the agreement to be carried out at the time it was made.\nThis instruction requiring the jury to find an agreement and specific intent to kill \u201celiminated the possibility that an unintentional felony murder formed the basis for the specific intent underlying the conspiracy of which they convicted defendant.\u201d Id. at 52, 436 S.E.2d at 350. This assignment of error is overruled.\nVI. Ineffective Assistance of Counsel\nDefendant contends he was deprived of his constitutional right to effective assistance of counsel when defense counsel allowed the letters to be admitted. We disagree.\nOur Supreme Court adopted the United States Supreme Court\u2019s language in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), concerning claims of ineffective assistance of counsel. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The Braswell Court developed a two-part test in considering these arguments:\n\u201cFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d\n312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).\nThe fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings. This determination must be based on the totality of the evidence before the finder of fact.\nId. at 563, 324 S.E.2d at 248 (citations omitted) (emphasis supplied). \u201c[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel\u2019s performance was actually deficient.\u201d Id. at 563, 324 S.E.2d at 249.\nThe State presented overwhelming testimonial and physical evidence of defendant\u2019s guilt. Triplett, Triplett\u2019s sister and brother-in-law, Wilkes County Sheriff\u2019s deputies, and Edsel testified defendant and Edsel planned to rob and kill Triplett to prevent their identification. Triplett survived the murder attempt and identified both defendant and Edsel as those who shot him. He also identified both as those who stole items from his home and Wood\u2019s. Triplett\u2019s sister and brother-in-law corroborated Triplett\u2019s testimony and testified when they arrived \u00bft Triplett\u2019s home, defendant and Edsel were found with items stolen from Triplett\u2019s home and from Wood\u2019s. Wilkes County Sheriff\u2019s deputies testified defendant and Edsel were found in a car in possession of items stolen from Triplett\u2019s home and from Wood\u2019s. A State Bureau of Investigation agent testified bullet fragments removed from Triplett\u2019s skull were fired from a gun like the one defendant and Edsel used.\nDefendant asserts his trial counsel committed prejudicial error by allowing the admission of letters written back and forth between defendant and Edsel. All of the evidence set out above was presented and properly admitted in addition to the letters allegedly admitted by defense counsel\u2019s error in judgment. Defendant fails to show and our review of the record and transcripts does not indicate a \u201creasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different. . . .\u201d Braswell, 312 N.C. at 563, 324 S.E.2d at 249. This assignment of error is overruled.\nVIL Conclusion\nThe trial court did not commit plain error by admitting letters written by defendant and Edsel into evidence. The trial court clarified and did not improperly comment on testimony by asking a witness additional questions. Defendant was properly charged and convicted of conspiracy to commit first-degree murder under the felony murder rule. Defendant was not prejudiced by his counsel\u2019s alleged error in judgment leading to the admission of evidence. Defendant received a fair trial, free from prejudicial errors he assigned and argued.\nNo error.\nJudge ELMORE concurs.\nJudge WYNN concurs in the result by separate opinion.",
        "type": "majority",
        "author": "TYSON, Judge."
      },
      {
        "text": "WYNN, Judge\nconcurring in result.\nWhile I concur in the result, I write separately to comment further on the trial court\u2019s questioning of a witness and the conspiracy to commit felony murder.\nRegarding the trial court\u2019s questioning of a witness, \u201cthe trial court is permitted to \u2018interrogate witnesses, whether called by itself or by a party,\u2019 N.C.G.S. \u00a7 8C-1, Rule 614(b) (1992), \u2018in order to clarify. confusing or contradictory testimony,\u2019 State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986).\u201d State v. Corbett, 339 N.C. 313, 328, 451 S.E.2d 252, 260 (1994).\nIn 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\u2019s 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:\nTrial Court: What do you do with your quarters when you get them?\nJoshua Curry: Cash them in.\nTrial Court: For dollars?\nJoshua Curry: Sometimes I do, sometimes I don\u2019t.\nTrial Court: You carry them for 48 hours in your pocket if there are 80 quarters?\nJoshua Curry: He left early that night.\nThe trial court\u2019s 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 \u201cYou carry them for 48 hours in your pocket if there are 80 quarters?\u201d with voice inflections, may have come uncomfortably close to an opinion as to the credibility of the witness\u2019s testimony. As this Court has made clear,\nTrial judges are prohibited from expressing an opinion by N.C. Gen. Stat. \u00a7 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).\nState v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983). Nevertheless, \u201cnot every improper remark made by the trial judge requires a new trial[,]\u201d and \u201cthe underlying result may manifest mere harmless error.\u201d 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\u2019s questioning would have been harmless.\nRegarding 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.\nIn Lea, this Court stated:\n[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.\nTo 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, \u201cis an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission.\u201d Id. \u201cAlthough a murder may be committed without an intent to kill, attempt to commit murder requires a specific intent to kill.\u201d Braxton v. United States, 500 U.S. 344, 351, 114 L. Ed. 2d 385, 393, 111 S. Ct. 1854 (1991) (citation omitted).\nWe conclude that a charge of \u201cattempted felony murder\u201d is a logical impossibility in that it would require the defendant to intend what is by definition an unintentional result. Accordingly, the offense of \u201cattempted felony murder\u201d does not exist in North Carolina.\nLea, 126 N.C. App. at 449-50, 485 S.E.2d at 880. And in Coble, our Supreme Court affirmed Lea and held:\nBecause 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.\nCoble, 351 N.C. at 451, 527 S.E.2d at 48.\nWhile 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\u2019s 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.",
        "type": "concurrence",
        "author": "WYNN, Judge"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.",
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY SHANE CURRY\nNo. COA04-776\n(Filed 19 July 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 no objection at trial\nDefendant did not preserve for appeal issues concerning letters written by a codefendant where he did not move to redact or exclude the letters or object to their admission.\n2. Appeal and Error\u2014 plain error \u2014 properly argued\nDefendant properly argued plain error in the admission of letters from a codefendant, warranting appellate review of an otherwise unpreserved assignment of error.\n3. Evidence\u2014 letters from codefendant \u2014 admission not prejudicial\nDefendant did not demonstrate plain error in the admission of portions of letters from a codefendant. The State offered separate and overwhelming testimonial and physical evidence of defendant\u2019s guilt.\n4. Criminal Law\u2014 question by judge \u2014 no indication of opinion\nThe court\u2019s question to a witness did not constitute prejudicial error where the court clarified a line of questions about a pertinent fact and did not comment on the credibility of the witness or his testimony. Moreover, the court instructed the jury that the judge is required to be impartial, that it should not infer that he was implying that evidence or facts were or were not proven, and that the jury alone finds the facts.\n5. Conspiracy\u2014 felony murder \u2014 specific intent\nThe trial court did not err by submitting to the jury conspiracy to murder under the felony murder rule. The court\u2019s instruction required the jury to find an agreement and specific intent to kill and eliminated the possibility that an unintentional felony murder formed the basis for the specific intent underlying the conspiracy.\n6. Constitutional Law\u2014 ineffective assistance of counsel\u2014 overwhelming evidence of guilt\nThere was no prejudice from any ineffective assistance of counsel in the admission of letters from a codeferidant in a prosecution for assault, breaking and entering, and other crimes. The State presented overwhelming testimonial and physical evidence of defendant\u2019s guilt.. \u2019\nJudge Wynn concurring in the result.\nAppeal by defendant from judgments entered 16 January 2004 by Judge Michael E. Helms in Wilkes County Superior Court. Heard in the Court of Appeals 8 March 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant."
  },
  "file_name": "0568-01",
  "first_page_order": 598,
  "last_page_order": 613
}
