{
  "id": 8551569,
  "name": "STATE OF NORTH CAROLINA v. ELTON TEW",
  "name_abbreviation": "State v. Tew",
  "decision_date": "1978-09-05",
  "docket_number": "No. 784SC332",
  "first_page": "33",
  "last_page": "37",
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      "cite": "38 N.C. App. 33"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "reporter": "S.E.2d",
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      "category": "reporters:state",
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      "year": 1973,
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    {
      "cite": "232 S.E. 2d 680",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1977,
      "opinion_index": 0
    },
    {
      "cite": "292 N.C. 160",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8567711
      ],
      "weight": 2,
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/nc/292/0160-01"
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  "last_updated": "2023-07-14T21:32:33.594298+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Vaughn and Mitchell concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ELTON TEW"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendant\u2019s assignments of error pertain to actions and comments of the trial judge which were purportedly prejudicial. We will deal with them seriatim.\nI\nDefendant contends that it was a prejudicial expression of opinion for the trial judge to interject the remark \u201cwho cares?\u201d after a question asked by defendant\u2019s counsel in violation of G.S. 1-180. In the cross-examination of Magdeline Gilmore, decedent\u2019s spouse, counsel for defendant was inquiring as to what she did immediately after the alleged stabbing. She stated that she called the rescue squad and then she \u201ccalled 2-4141 and the law answered.\u201d\nQ. \u201cWhat is that number?\u201d\nCourt: \u201cWho cares?\u201d\nCounsel for defendant concedes that this is the only comment in the record which might tend to ridicule the defendant or his counsel, but contends that in the context of the entire record, the effect of the trial judge\u2019s comment was to express an opinion about the case in violation of G.S. 1-180. We do not agree. Defendant relies on State v. Staley, 292 N.C. 160, 232 S.E. 2d 680 (1977) and State v. Hewitt, 19 N.C. App. 666, 199 S.E. 2d 695 (1973) in support of his contention. Our examination finds the instant record devoid of the circumstances cited in the above two cases where there was repeated and sometimes heated exchange between the trial judges and defense counsel, giving rise to the possibility that, on the totality of the trial record, the juries may have inferred that the trial judges were expressing opinions about the merit of the testimony and the defendants before them. Such is not the case here. Counsel for defendant was allowed to explain his reason for bringing out the witness\u2019s familiarity with the particular telephone number and the cross-examination proceeded thereafter without incident. While we do not approve the inadvertent remark of the trial judge, we find it harmless error. The defendant\u2019s first assignment of error is overruled.\nII\nDefendant next contends that the trial court erred in his examination of some of the State\u2019s witnesses, contending that the examination went beyond what was necessary for proper understanding and clarification of the testimony. We do not agree. Such examination tends to create a prejudicial atmosphere where, by the frequency, or tenor of questions asked, or the persistence of the trial judge in asking them, the jury gets the impression of a \u201cjudicial leaning.\u201d State v. Staley, 292 N.C. 160, 232 S.E. 2d 680 (1977). In the instant case the trial judge asked only four questions which we are asked to review. They all sought to elicit information that would prove to be helpful to the defendant. The tenor of the questions is neutral and certainly the questioning was not excessive. Any error contained therein would tend to be favorable to the defendant, and accordingly we overrule his second assignment of error.\nIll\nThe defendant lastly assigns as error the trial judge\u2019s response to the juror\u2019s question in the following dialogue:\nJuror Number One: \u201cSir, how would I know that is Gilmore if I don\u2019t know him personally?\u201d\nCourt: \u201cIt\u2019s not for you to consider. Listen to the evidence.\u201d\nDefendant contends that by answering the juror\u2019s question in that manner, the trial judge removed from the jury\u2019s consideration the identity of the subject in the photograph. We do not agree. We think it apparent that the judge was instructing the juror not to consider how he would know the person in the photograph, as the evidence either would or would not satisfy him on the point and he should listen to such evidence to make his determination. In his instructions to the jury, Judge Smith correctly placed the burden upon the State to prove defendant\u2019s guilt beyond a reasonable doubt. In the face of defendant\u2019s admission that he did stab Louis Gilmore, we perceive that any possible error or confusion here was harmless. Defendant\u2019s third assignment of error is overruled.\nIV\nIn conclusion, we find that on the record the defendant had a fair trial free from prejudicial error. Accordingly, the judgment of the trial court is affirmed.\nNo error.\nJudges Vaughn and Mitchell concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Leigh Emerson Roman, for the State.",
      "John R. Parker, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ELTON TEW\nNo. 784SC332\n(Filed 5 September 1978)\n1. Criminal Law \u00a7 99.3\u2014 judge\u2019s comment \u201cWho cares?\u201d \u2014no expression of opinion\nIn a homicide prosecution, the trial judge\u2019s comment \u201cWho cares?\u201d after defense counsel had asked decedent\u2019s wife to repeat the number she stated she had called to reach the police immediately after decedent was stabbed did not constitute a prejudicial expression of opinion, particularly since defense counsel was allowed to explain his reason for bringing out the witness\u2019s familiarity with the telephone number and defense counsel\u2019s examination of the witness proceeded thereafter without incident.\n2. Criminal Law \u00a7 99.8\u2014 court\u2019s questioning of witness\nDefendant was not prejudiced by four questions which the trial court asked State\u2019s witnesses where the tenor of the questions was neutral and they all sought to elicit information that would prove to be helpful to the defendant.\n3. Criminal Law \u00a7 99.2; Homicide \u00a7 20.1\u2014 identity of person in photograph \u2014 court\u2019s response to juror\u2019s question \u2014 identity of deceased not removed from jury\u2019s consideration\nIn a homicide prosecution in which a juror asked the trial judge how he would know that a photograph was of deceased if he did not know deceased personally, the trial judge\u2019s response, \u201cIt\u2019s not for you to consider. Listen to the evidence,\u201d did not remove from the jury\u2019s consideration the identity of the person killed but merely told the juror not to consider how he would know the person in the photograph, as the evidence either would or would not satisfy him on that point, and that he should listen to such evidence to make his determination. Furthermore, the trial judge\u2019s response was not prejudicial to defendant since defendant admitted that he stabbed the person alleged to have been killed.\nAPPEAL by defendant from Smith (David), Judge. Judgment entered 9 November 1977 in Superior Court, SAMPSON County. Heard in the Court of Appeals 23 August 1978.\nDefendant Elton Tew was arrested without a warrant on 7 August 1977 and held on a magistrate\u2019s order issued on the same date alleging probable cause to believe that defendant murdered Louis Fulton Gilmore. Preliminary hearing was conducted, probable cause was found and Tew was bound over to superior court for trial on 22 August 1977 on charges of second degree murder.\nTrial was begun 7 November 1977 before Judge David Smith. Evidence for the State tended to show that on 7 August 1977 defendant stabbed and killed Louis Gilmore after Gilmore came into defendant\u2019s house uninvited and began threatening Gilmore\u2019s wife (who was living with the defendant at the time). The defendant took the stand and admitted stabbing Gilmore from behind after Gilmore had threatened Mrs. Gilmore and put his hands in his pocket. The jury found the defendant guilty of voluntary manslaughter and he was sentenced to six years imprisonment. From this judgment defendant appeals, assigning error.\nAttorney General Edmisten, by Associate Attorney Leigh Emerson Roman, for the State.\nJohn R. Parker, for the defendant."
  },
  "file_name": "0033-01",
  "first_page_order": 61,
  "last_page_order": 65
}