{ "id": 8320459, "name": "STATE OF NORTH CAROLINA v. DOUGLAS SHANE WRIGHT", "name_abbreviation": "State v. Wright", "decision_date": "2005-08-16", "docket_number": "No. COA04-689", "first_page": "464", "last_page": "475", "citations": [ { "type": "official", "cite": "172 N.C. App. 464" } ], "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": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "220 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "337", "parenthetical": "\"The substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "year": 1975, "pin_cites": [ { "page": "598", "parenthetical": "\"The substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "255 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "369", "parenthetical": "citation omitted" }, { "page": "369", "parenthetical": "\"[W]hether the accused was deprived of a fair trial by the challenged remarks [of the court] must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances[.]\"" } ], "opinion_index": 0 }, { "cite": "297 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570457 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "392", "parenthetical": "citation omitted" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0388-01" ] }, { "cite": "319 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686439, 4683348, 4682297, 4684091, 4686270 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0404-03", "/nc/311/0404-02", "/nc/311/0404-01", "/nc/311/0404-04", "/nc/311/0404-05" ] }, { "cite": "308 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "746" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521720 ], "year": 1983, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0023-01" ] }, { "cite": "368 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "622", "parenthetical": "quoting Carter, 233 N.C. at 583, 65 S.E.2d at, 10" } ], "opinion_index": 0 }, { "cite": "322 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516286 ], "year": 1988, "pin_cites": [ { "page": "429", "parenthetical": "quoting Carter, 233 N.C. at 583, 65 S.E.2d at, 10" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0425-01" ] }, { "cite": "65 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "10" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "weight": 3, "year": 1951, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "583 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "338", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" }, { "page": "337", "parenthetical": "ordered a new trial based on comments made by Judge Evelyn W. Hill in the Superior Court, Durham County that were inappropriate when the questioning was in the presence of the jury and could potentially prejudice the jury's view of the defendant and his counsel" }, { "page": "338" }, { "page": "337" }, { "page": "450" }, { "page": "338" }, { "page": "338" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956714 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "450", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" }, { "page": "447" }, { "page": "450" }, { "page": "449" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0446-01" ] }, { "cite": "614 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633103 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/614/0262-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "609 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "221", "parenthetical": "\"we conclude that Judge Hill's actions constitute conduct in violation of Canons 1, 2A, 3A(2), and 3A(3) of the North Carolina Code of Judicial Conduct.\"" } ], "opinion_index": 1 }, { "cite": "359 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800654 ], "year": 2005, "pin_cites": [ { "page": "308", "parenthetical": "\"we conclude that Judge Hill's actions constitute conduct in violation of Canons 1, 2A, 3A(2), and 3A(3) of the North Carolina Code of Judicial Conduct.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0308-01" ] }, { "cite": "361 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "417" } ], "opinion_index": 1 }, { "cite": "87 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358629 ], "year": 1987, "pin_cites": [ { "page": "504" } ], "opinion_index": 1, "case_paths": [ "/nc-app/87/0502-01" ] }, { "cite": "589 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "172", "parenthetical": "citing State v. Waters, 87 N.C. App. 502, 504, 361 S.E.2d 416, 417 (1987)" }, { "page": "172", "parenthetical": "holding the burden of showing prejudice is upon the appellant" }, { "page": "172" } ], "opinion_index": 1 }, { "cite": "161 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959431 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "600", "parenthetical": "citing State v. Waters, 87 N.C. App. 502, 504, 361 S.E.2d 416, 417 (1987)" }, { "page": "600" }, { "page": "600" } ], "opinion_index": 1, "case_paths": [ "/nc-app/161/0595-01" ] }, { "cite": "394 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495744, 2500097, 2496514, 2493066, 2500301 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0143-02", "/nc/327/0143-05", "/nc/327/0143-01", "/nc/327/0143-04", "/nc/327/0143-03" ] }, { "cite": "390 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "361" }, { "page": "361" } ], "opinion_index": 1 }, { "cite": "98 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523391 ], "weight": 2, "pin_cites": [ { "page": "174" }, { "page": "174" } ], "opinion_index": 1, "case_paths": [ "/nc-app/98/0167-01" ] }, { "cite": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "opinion_index": 1, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "220 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "337" } ], "opinion_index": 1 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "year": 1975, "pin_cites": [ { "page": "598" } ], "opinion_index": 1, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "255 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "369", "parenthetical": "emphasis supplied" }, { "page": "369" } ], "opinion_index": 1 }, { "cite": "297 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570457 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "392", "parenthetical": "emphasis supplied" }, { "page": "392" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0388-01" ] }, { "cite": "368 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "622", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 1 }, { "cite": "322 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516286 ], "year": 1988, "pin_cites": [ { "page": "429", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0425-01" ] }, { "cite": "65 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "10" } ], "opinion_index": 1 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "year": 1951, "pin_cites": [ { "page": "583" } ], "opinion_index": 1, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "583 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "337", "parenthetical": "quoting McNeill v. Durham County ABC Bd., 322 N.C. 425, 429, 368 S.E.2d 619, 622 (1988) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" }, { "page": "338", "parenthetical": "comments were made in the presence of the jury" }, { "page": "338" }, { "page": "338" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956714 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "447", "parenthetical": "quoting McNeill v. Durham County ABC Bd., 322 N.C. 425, 429, 368 S.E.2d 619, 622 (1988) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" }, { "page": "450" }, { "page": "450" }, { "page": "450" } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0446-01" ] } ], "analysis": { "cardinality": 909, "char_count": 22633, "ocr_confidence": 0.745, "pagerank": { "raw": 2.496845062851345e-07, "percentile": 0.8090989088553039 }, "sha256": "a5ef8a2c70da129057f2c7200800c006196ecac734147f68930e05a001acb19d", "simhash": "1:0a82992c7539e87a", "word_count": 3869 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge TYSON concurs in part, dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. DOUGLAS SHANE WRIGHT" ], "opinions": [ { "text": "WYNN, Judge.\n\u201cIt is fundamental to due process that every defendant be tried \u2018before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u2019\u201d State v. Brinkley, 159 N.C. App. 446, 450, 583 S.E.2d 335, 338 (2003) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)). In this case, the trial judge\u2019s numerous negative comments to the defense counsel, both in and out of the presence of the jury, created a negative atmosphere at the trial to the prejudice of Defendant. Accordingly, we must remand for a new trial.\nFollowing his convictions on charges on two counts of taking indecent liberties with a child and sentence to two active consecutive aggravated sentences of twenty-six months to thirty-two months imprisonment, Defendant brought this appeal contending that the trial court erred by: (1) denying his motion in limine to prohibit evidence of prior bad acts; (2) violating his constitutional and statutory rights to have a fair and non-prejudicial trial by the trial judge\u2019s conduct and statements towards defense counsel in the presence of the jury; and (3) aggravating his sentence beyond the presumptive maximum without submitting that issue to a jury.\nAs to the first issue, we summarily hold that the trial court did not abuse its discretion by allowing evidence of Defendant\u2019s prior bad acts. But regarding the second issue, we hold that the trial judge\u2019s conduct and statements at trial amounted to prejudicial error which we address in detail.\nDefendant cites several incidents in which he argues the trial judge\u2019s extraneous comments to his counsel were improper and deprived him of a fair and impartial trial. The following took place in front of the jury:\nDefense counsel: Okay.\nCourt: Excuse me, what did you just say? Excuse me. I asked you a question. What did you just say?\nDefense counsel: I said okay, Your Honor, under my breath.\nCourt: Well, if it was under your breath, why was I able to hear it, and also the Court Reporter. I don\u2019t know what to do, Mr. Thompson. I have done everything I can possibly do, except end your cross examination. We\u2019re not moving along. Whatever you need to do, as I have now told you three times, whatever you need to do to help yourself not do that, do it.\nWhen defense counsel began to formulate a question in front of the jury, the trial judge interrupted him, and the following conversation transpired:\nDefense counsel: Yes, Your Honor.\nCourt: This is the way a question would go. For example: Isn\u2019t it true that you asked her what clothes: Did you take off? What were you wearing on Friday? You are just reading the question, and it\u2019s a statement. And there\u2019s no question for the Sergeant to answer.\nDefense counsel: I apologize, Your Honor. I thought the inflection.\nCourt: I don\u2019t think I asked you for any explanation. I don\u2019t think I desire to hear any. Just try and do it right and move along.\n* * t-\nCourt: She\u2019s already indicated through her testimony. We\u2019re not going to beat a defunct equine. Okay. She\u2019s already testified that she did not call in any crime scene people whatever. So do you have another question you want to ask? Do you have any other questions?\nDefense counsel: May I have one second?\nCourt: You\u2019ve had your second.\nThe jury had been dismissed from the court room and the trial judge called for the jury to be escorted back in when this exchange took place, prior to the jury returning:\nDefense counsel: May I be heard?\nCourt: Sit down, Mr. Thompson. I am tired of your cavalier attitude and your feeling that whatever you want to do in a courtroom is okay. It\u2019s not.\n***\nCourt: Madame Court Reporter, take the following please. Yesterday on numerous occasions, the Court had to ask Mr. Craig Thompson to stop saying okay at the end of every witness\u2019s answer. In spite of the court\u2019s admonition and request, he continued to do so. He continues to do so today. The Court finds that Mr. Thompson for the defendant has intentionally and purposely pretended ignorance at what the Court was telling him with a meanest look on face as if he didn\u2019t understand. I did not ask for a response from you, sir. Today the court sat here and did not once ask him to stop saying okay, although he continued to do it. Although he now continues to make faces while the court\u2019s speaking. Sir, you\u2019re not going to speak. You can just sit back and stop using your body language to interrupt me. It is rude, discourteous, uncivil and contemptuous. You might do well to listen to what people say instead of planning your response.\nCourt: There are several options open to the Court. The Court does not plan at this time to cite any of the attorneys for contempt, but the Court believes if the attorneys cannot comply with the rules of law and are going to continually act bemused, and confused as if they don\u2019t understand what it means, they subject themselves to that. If you don\u2019t know when you\u2019re saying okay at the end of a sentence, then learn to find out, because if a Judge tells you to stop doing it, you stop doing it. When I sat in that chair, if a judge told me to stop doing it, I stopped doing it. And you\u2019re no more above the law than anyone else, and you\u2019ve been warned.\nDuring direct examination of Ray Wright, a witness for Defendant, the following exchange ensued in the presence of the jury:\nCourt: No. What did you just say?\nDefense counsel: I asked him if he recalled what day.\nCourt: What did you just say? I think that you.\nDefense counsel: I said \u201cokay,\u201d Your Honor. I apologize, Your Honor.\nCourt: Exactly. It\u2019s not my job to draw it to your attention, sir.\nDefense counsel: Your Honor, I apologize for apparently an unfortunate speech habit that I\u2019ve had for a number of years.\nCourt: Ladies and gentleman of the jury, please step to the jury room. Don\u2019t discuss . . .\nThe Jury exited the court room and Judge Hill stated:\nCourt: Madame Clerk, take the following, I mean Madame Court Reporter. I am 54 almost 55 years old. I have practiced law since 1979. I have practiced law for 21 years as a trial attorney in Superior Court before numerous Superior Court Judges including but not limited to James H. Pugh Bailey ... to name just a few. I was taught as a trial attorney to show respect to the court and to follow the court\u2019s directions whether I agreed with them or not, whether I thought they were reasonable or not. When a Superior Court Judge for whatever reason points out to a litigant a certain behavior, whether it\u2019s clicking a pen, chewing gum, saying okay at the end of every witness\u2019s answer, my experience has been that I, as a litigant and the vast majority of the litigants with whom I practice law and have appeared before me, make some effort to comply with what the Court has asked. To make matters worse in this case, Mr. Thompson has by his facial expressions questioned whether he\u2019s even said the things that I\u2019ve said he said, and has actually yesterday questioned that he did say them. At this point, I feel that there\u2019s no point in me even trying to communicate about this with Mr. Thompson, since he shrugs it off cavalierly as quote \u201can unfortunate speech habit.\u201d Therefore, he can\u2019t possibly be responsible for it. I asked yesterday, I asked again yesterday, I asked a third time yesterday, I asked again today and I have pointed it out today, and I even stopped at the end of question to ask him to see whether or not he realized what he was doing. But clearly Mr. Thompson\u2019s message to the Court is this is an unfortunate speech habit. Get over it, judge. So I\u2019m not going to point it out again. I\u2019m going to keep count. And at the end of trial, it will be a hundred dollar fine for each time you do it. And we can use the Court Reporter\u2019s notes to go back and see if you did it. But I won\u2019t bother anymore to point it out. Bring the jury back in please.\nJudge, may I have, may I be heard briefly? Defense counsel:\nI\u2019m sorry. Court-\nMay I be heard briefly? Defense counsel:\nNo, sir. Court:\nA trial judge\u2019s unique position and duties in court commands respect and deference. \u201c \u2018[J]urors entertain great respect for [a judge\u2019s] opinion, and are easily influenced by any suggestion coming from him [or her]. As a consequence, he [or she] must abstain from conduct or language which tends to discredit or prejudice\u2019 any litigant in his [or her] courtroom.\u201d Brinkley, 159 N.C. App. at 447, 583 S.E.2d at 337 (ordered a new trial based on comments made by Judge Evelyn W. Hill in the Superior Court, Durham County that were inappropriate when the questioning was in the presence of the jury and could potentially prejudice the jury\u2019s view of the defendant and his counsel) (quoting McNeill v. Durham County ABC Bd., 322 N.C. 425, 429, 368 S.E.2d 619, 622 (1988) (quoting Carter, 233 N.C. at 583, 65 S.E.2d at, 10)); see also N.C. Gen. Stat. \u00a7 15A-1222 (2003).\n\u201cIt is fundamental to due process that every defendant be tried \u2018before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u2019 \u201d Brinkley, 159 N.C. App. at 450, 583 S.E.2d at 338 (quoting Carter, 233 N.C. at 583, 65 S.E.2d at 10). \u201cThe judge\u2019s duty of impartiality extends to defense counsel. He [or she] should refrain from remarks which tend to belittle or humiliate counsel since a jury hearing such remarks may tend to disbelieve evidence adduced in defendant\u2019s behalf.\u201d State v. Coleman, 65 N.C. App. 23, 29, 308 S.E.2d 742, 746 (1983), cert. denied, 311 N.C. 404, 319 S.E.2d 275 (1984).\nThis Court has recognized that, \u201c \u2018[w]hether the accused was deprived of a fair trial by the challenged remarks [of the trial judge] must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant.\u2019 \u201d State v. Faircloth, 297 N.C. 388, 392, 255 S.E.2d 366, 369 (1979) (citation omitted).\nIn Brinkley, the trial judge made numerous comments to defense counsel regarding the counsel\u2019s repetitive questions. Brinkley, 159 N.C. App. at 449, 583 S.E.2d at 337. This Court found the most prejudicial comment made after the counsel\u2019s questioning regarding an inadmissible statement, the trial judge said, \u201cYou moved to admit it and the Court denied admitting it into evidence. Then you deliberately went and asked a question using the information from that, which is not only improper, unethical, but also in flagrant violation of what the Court ruled. I\u2019m at my wit\u2019s end. \u201d Id. at 450, 583 S.E.2d at 338. This Court found that \u201c[w]hen all the incidents raised by defendant, particularly the three cited above, are viewed in light of their cumulative effect upon the jury, we are compelled to hold that the atmosphere of the trial was tainted by the trial judge\u2019s comments to the detriment of defendant.\u201d Id.\nLike in Brinkley, the trial judge in this case made negative comments about the defense counsel by stating, \u201cThe Court finds that Mr. Thompson for the defendant has intentionally and purposely pretended ignorance at what the Court was telling him with a meanest look on face as if he didn\u2019t understand. ... It is rude, discourteous, uncivil and contemptuous.\u201d Although not all of the trial judge\u2019s negative comments to defense counsel were made in the presence of the jury, they created a negative atmosphere at trial, which became apparent upon the questioning of an alternate juror after the jury went into deliberations.\nThe Court: And I, you all paid rapt attention. I noticed that. I certainly do appreciate that.\nAlternate 2: We were scared not to.\nThe Court: That\u2019s good. Were you scared of me?\nAlternate 2: Yes, Your Honor.\nThe Court: Oh, that\u2019s good. I always want jurors to be scared.\nSee Faircloth, 297 N.C. at 392, 255 S.E.2d at 369 (\u201c[W]hether the accused was deprived of a fair trial by the challenged remarks [of the court] must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances[.]\u201d). Apparently, the trial judge\u2019s remarks to the defense counsel had the effect of setting a tone of fear at the trial.\nMoreover, the cumulative nature of the trial judge\u2019s inappropriate comments to the defense counsel regarding his speech pattern, along with the fine imposed for the counsel\u2019s use of the word \u201cokay,\u201d tainted the atmosphere of the trial to the detriment of Defendant. Brinkley, 159 N.C. App. at 450, 583 S.E.2d at 338. The record shows that the exchanges created an impermissibly chilling effect on the trial process and most likely affected defense counsel\u2019s ability to question the remaining witnesses, thereby prejudicing Defendant.\nEvery Defendant is entitled to a fair and impartial trial. See State v. Miller, 288 N.C. 582, 598, 220 S.E.2d 326, 337 (1975) (\u201cThe substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\u201d (emphasis added)). In this case, the trial judge\u2019s conduct and statements deprived Defendant of a fair and impartial trial; accordingly, we must remand for a new trial.\nSince we grant Defendant a new trial, the trial court\u2019s error in sentencing Defendant in the aggravated range on factors not submitted to the jury should not arise again in light of State v. Allen, 359 N.C. 425, - , - S.E.2d - , - (2005) and State v. Speight, 359 N.C. 602, 606, - S.E.2d - , -( 2005).\nNew trial.\nJudge ELMORE concurs.\nJudge TYSON concurs in part, dissents in part.", "type": "majority", "author": "WYNN, Judge." }, { "text": "TYSON, Judge\nconcurring in part, dissenting in part.\nThe majority\u2019s opinion holds the trial court did not err by denying defendant\u2019s motion in limine to prohibit evidence of defendant\u2019s prior bad acts. The majority further holds the trial court erred in aggravating defendant\u2019s sentence beyond the presumptive maximum without submitting that issue to the jury. I concur with the analysis and holding in the majority\u2019s opinion concerning defendant\u2019s motion in limine and the decision to remand for resentencing.\nThe majority\u2019s opinion further holds the trial court erred and violated defendant\u2019s constitutional and statutory rights to have a fair and non-prejudicial trial by the trial judge\u2019s conduct and statements toward defense counsel in the presence of the jury. I respectfully dissent from the majority\u2019s holding to award defendant a new trial.\nI. Trial Court\u2019s Comments Before the Jury and During Trial\nA trial judge\u2019s unique position and duties in court commands respect and deference. \u201c \u2018[Jjurors entertain great respect for [a judge\u2019s] opinion, and are easily influenced by any suggestion coming from him [or her]. As a consequence, he [or she] must abstain from conduct or language which tends to discredit or prejudice\u2019 any litigant in his [or her] courtroom.\u201d State v. Brinkley, 159 N.C. App. 446, 447, 583 S.E.2d 335, 337 (2003) (quoting McNeill v. Durham County ABC Bd., 322 N.C. 425, 429, 368 S.E.2d 619, 622 (1988) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)).\nThis Court has recognized that \u201cnot every improper remark made by the trial judge requires a new trial. When considering an improper remark in light of the circumstances under which it was made, the underlying result may manifest mere harmless error.\u201d State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361 (citation omitted), disc. rev. denied, 327 N.C. 143, 394 S.E.2d 183 (1990). \u201cWhether the accused was deprived of a fair trial by the challenged remarks [of the trial judge] must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant.\" State v. Faircloth, 297 N.C. 388, 392, 255 S.E.2d 366, 369 (1979) (emphasis supplied).\nDefendant argues, and the majority\u2019s opinion agrees, the trial judge\u2019s comments belittled defense counsel before the jury and prejudiced defendant to warrant a new trial. All comments defendant contends were prejudicial were addressed solely to his counsel. None were directed at him.\nWe have instructed that \u201ccare should be taken to conduct such reprimands [of counsel] outside the presence of the jury to ensure the court does not prejudice the jury against defendant.\u201d Brinkley, 159 N.C. App. at 450, 583 S.E.2d at 338 (comments were made in the presence of the jury). As in previous cases,\nwhen all the incidents raised by defendant, particularly . .. [those done in the presence of the jury], are viewed in light of their cumulative effect upon the jury, we are compelled to hold that the atmosphere of the trial was tainted by the trial judge\u2019s comments to the detriment of defendant.\nId.\nThe majority\u2019s opinion awards defendant a new trial based on five cited comments by the presiding judge and a statement made by alternate juror number two. Unlike the cases cited in the majority\u2019s opinion, the record here shows the majority of the judge\u2019s comments were not in the jury\u2019s presence. Comments made were in the presence of the jury may have been inappropriate, but defendant has failed to show the comments made were so prejudicial to justify awarding defendant a new trial.\nEvery defendant is entitled to \u201ca fair trial before an impartial judge.\u201d State v. Miller, 288 N.C. 582, 598, 220 S.E.2d 326, 337 (1975). As in State v. Mack, defendant here failed to \u201cmet his heavy burden of proving the trial judge\u2019s remarks deprived him of a fair trial and caused a prejudicial effect on the outcome.\u201d 161 N.C. App. 595, 600, 589 S.E.2d 168, 172 (2003) (citing State v. Waters, 87 N.C. App. 502, 504, 361 S.E.2d 416, 417 (1987)).\nThe majority\u2019s opinion sets out a conversation between the trial judge and alternate juror number two as further grounds to grant defendant a new trial, quoting alternate juror number two as being \u201cscared of the judge.\u201d Alternate juror number one also participated in that conversation. Alternate juror number one stated:\nAlternate 1: I\u2019ve never been scared.\nCourt: Well, you should be.\nAlternate 1: Oh, really. I\u2019ve enjoyed this. But I\u2019m not frightened or anything. I\u2019ve certainly enjoyed it.\nCourt: Really. That\u2019s good. We rarely hear anything positive ....\nThe majority\u2019s opinion cites Faircloth and considers their notion of the effect of the judge\u2019s comments on the jury and juror number two\u2019s answers to the judge\u2019s question as evidence of any alleged negative effect. The majority\u2019s opinion disregards alternate juror number one\u2019s comments and inordinately weighs alternate juror number two\u2019s response as the pulse of the jury. In Faircloth, the trial judge\u2019s prejudicial comments were made in the presence of the jury. 297 N.C. at 392, 255 S.E.2d at 369. The comments the majority holds to be prejudicial were not said in front of the jury.\nDefendant has not met his heavy burden in proving any prejudicial effect of the comments. Mack, 161 N.C. App. at 600, 589 S.E.2d at 172 (holding the burden of showing prejudice is upon the appellant). A judge cannot know the \u201cfear\u201d or lack of fear jurors may hold. One alternate juror\u2019s opinion or alleged fears are insufficient to dictate a new trial.\nDefendant was tried for two counts of statutory rape, two counts of indecent liberties with a minor, and two counts of statutory sex offense. The jury convicted defendant only on the lesser offenses of taking indecent liberties with a child. The jury\u2019s acquittal of defendant for the far more serious charges he faced is evidence the jury was not \u201cscared\u201d or in \u201cfear\u201d of the trial judge.\nThe majority\u2019s opinion further states the fine imposed for defense counsel\u2019s repeated use of the word \u201cokay\u201d tainted the atmosphere or the \u201cjudicial calm\u201d of the trial. Brinkley, 159 N.C. App. at 450, 583 S.E.2d at 338. The conversation between the trial judge and defense counsel about this fine did not occur in the presence of the jury. Defense counsel was told at the close of the trial no fine would be imposed.\nSince our holding in Mack, our Supreme Court, citing Mack and several other cases, has again censured this trial judge for inappropriate comments and conduct during trials. In Re Hill, 359 N.C. 308, 308, 609 S.E.2d 221, 221 (2005) (\u201cwe conclude that Judge Hill\u2019s actions constitute conduct in violation of Canons 1, 2A, 3A(2), and 3A(3) of the North Carolina Code of Judicial Conduct.\u201d).\nA trial judge should avoid inappropriate and unprofessional renditions of personal opinions or experiences which are extraneous to the issues at trial and issue reprimands, if necessary, to parties or their counsel out of the jury\u2019s presence. Brinkley, 159 N.C. App. at 450, 583 S.E.2d at 338. Procedures are available to this Court, the Bar, and the public to challenge inappropriate judicial conduct and to recommend appropriate remedial measures. N.C. Gen. Stat. \u00a7 7A-376 (2003).\nThe trial court\u2019s comments in the presence of the jury may have been inappropriate, but defendant has failed to show these comments were prejudicial to warrant a new trial. Mack, 161 N.C. App. at 600, 589 S.E.2d at 172.\nII. Conclusion\nI concur with the majority\u2019s opinion to: (1) affirm the trial court\u2019s denial of defendant\u2019s motion in limine as to a prior bad act; (2) vacate the aggravated sentence and remanding for a new sentencing hearing. State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005); State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005).\nDefendant has failed to show the trial court\u2019s comments to his counsel either in or out of the presence of the jury prejudiced his case to warrant a new trial. Summerlin, 98 N.C. App. at 174, 390 S.E.2d at 361. Defendant has failed to meet his \u201cheavy burden\u201d to show a violation of his constitutional and statutory rights to have a fair and nonprejudicial trial. Any alleged error was harmless beyond reasonable doubt. I respectfully dissent from awarding defendant a new trial.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.", "Robert T Newman, Sr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DOUGLAS SHANE WRIGHT\nNo. COA04-689\n(Filed 16 August 2005)\nJudges\u2014 remarks to defense counsel \u2014 prejudicial negative atmosphere\nDefendant was awarded a new trial where the trial judge\u2019s numerous negative comments to the defense counsel, both in and out of the presence of the jury, created a negative atmosphere at the trial to the prejudice of defendant. It is fundamental to due process that every defendant be tried before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\nJudge Tyson concurring in part, dissenting in part.\nAppeal by Defendant from judgments entered 20 October 2003 by Judge Evelyn W. Hill in Superior Court, Alamance County. Heard in the Court of Appeals 12 April 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\nRobert T Newman, Sr., for defendant-appellant." }, "file_name": "0464-01", "first_page_order": 494, "last_page_order": 505 }