By his first аssignment of error defendant contends that the trial judge committed prejudicial error in questioning the prosecuting witness by intimating an opinion as to the controverted fact of the assailant’s identity. Ms. Simmons, the prosecuting witness, was testifying concerning a photograph showing injuries to her neck and face when the following exchange occurred:
*236 THE COURT: Were those marks on your neck prior to the Defendant placing his hand around your throat?
THE WITNESS: No, they were not.
It is well established by our case law and statutory enactments that it is improper for a trial judge to express in the presence of the jury his opinion upon any issue to be decided by the jury or to indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury.
See
N.C. Gen. Stat. § 15A-1222 (1983);
State v. Harris,
Defendant relies on
State v. Oakley,
On the other hand the State points to
State v. Cureton,
In Cureton a witness had testified that the defendant shot the victim four times and then testified that the defendant had shot deceased a fifth time. At that point the trial judge asked the witness when the defendant shot the deceased the last time. This Court rejected the defendant’s contention that the judge’s question amounted to an expression of opinion that the defendant did the shooting, noting that the witness had already testified that the defendant did the shooting and that the judge’s question was merely for clarification.
In
McEachern
defendant was charged with rape. Before there was any testimony from the victim that she had been raped the trial judge asked the prosecuting witness, “Let me ask you a question of clarification before you go further, you were in the car when you were raped?”
Id.
at 59,
These two cases are distinguishable. In Oakley the court’s question expressed an opinion that the tracks were made by defendant. This crucial proof had not been shown by other evidence. In Cureton thе fact that defendant had shot the deceased was supported by ample evidence, and the judge’s question only sought clarification as to when and where the shooting took place. The defendant did not deny that he shot the deceased and in fact later testified that he fired the fatal shots, but that he did so in self defense.
In the instant case Ms. Simmons had testified at length as to defеndant’s identity, stating that she had previously known him and relating that she was in his presence for a long period of time *238 under conditions which permitted her to see defendant clearly. She picked defendant’s picture out of a photographic lineup shortly after the crime occurred, and had clearly testified that it was defendant who placed his hands around her neck and chоked her.
We do not believe that a juror could reasonably infer that the judge’s question amounted to an expression of an opinion as to defendant’s guilt or innocence or as to any issue to be decided by the jury or as to the weight of the evidence or the credibility of the witness. Obviously the trial judge sought clarification as to whether the marks shown in the photograph were there before the alleged assault on the victim. Therefore, under the rationale of Cureton and McEachern, we hold that the trial judge did not commit prejudicial error by questioning the prosecuting witness about the marks on her neck.
Defendant assigns as error the failure of the trial judge to dismiss the charges of first degree rape and first degree sexual offense. It is his position that there was no evidence before the jury to shоw that a serious personal injury was inflicted upon the victim during the course of the respective crimes.
The pertinent portions of the rape statute and the sexual offense statute are as follows:
§ 14-27.2. First-degree rape.
(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(2) With another person by force and against the will of the other person, and:
b. Inflicts sеrious personal injury upon the victim or another person. . . .
§ 14-27.4. First-degree sexual offense.
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
*239 (2) With another person by force and against the will of the other person, and:
b. Inflicts serious personal injury upon the victim or another person. . . .
The trial judge in the mandate of his instructions to the jury on the charge of first degree rape stated:
So, I charge that if you find from the evidence beyond a reasonable doubt that on or about December the 12th, 1983, that Roger Blackstock engaged in vaginal intercourse with Cynthia Simmons and that he did so by grabbing her, telling her that he had a gun, and by threatening to harm her, and that this was sufficient to overcome any resistance which Cynthia Simmons might make, and that Cynthia Simmons did not consent and that it was against her will, and that the Defendant inflicted a laceration upon Cynthia Simmons’ head, and that this was a serious personal injury, it would be your duty to return a verdict of guilty of first degree rape. However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first degree rape.
He also submitted the charge of second degree rape in the same manner except there was no requirement that the State prove beyond a reasonable doubt that defendant inflicted serious personal injuries upon Ms. Simmons.
The trial court also correctly submitted the charges of first degree sexual offense and second degree sexual offense, noting that first degree sexual offense and secоnd degree sexual offense differed only in that the State did not have to prove the infliction of serious personal injury on Ms. Simmons in order to convict on the charge of second degree sexual offense.
Defendant argues that the serious injury relied upon by the State occurred a substantial time after both criminal offenses had terminated and therefore could not be relied upon as an element of first degree rape or first degree sexual offense. This argument presents a question of first impression concerning the statutory *240 construction of our rape and sexual offense statutes, N.C.G.S. § 14-27.2 and N.C.G.S. § 14-27.4.
The cardinal principle of statutory construction is that the intent of the legislature is controlling.
State v. Fulcher,
In seeking to find the legislature’s intent, we find it necessary to examine the language of N.C.G.S. § 14-21 before its repeal and replacement by our current rape statute, N.C.G.S. § 14-27.2 and the first degree sexual offense statute, N.C.G.S. § 14-27.4. See Act of May 29, 1979, ch. 682, § 1, 1979 Session Laws 727. Prior to the 1979 enactment of N.C.G.S. § 14-27.2, the pertinent portion of the first degree rape statute provided:
If the person guilty of rape is mоre than sixteen years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.
N.C. Gen. Stat. § 14-21 (repealed 1979) (emphasis added).
Under the present rape statute N.C.G.S. § 14-27.2, one of the elements of first degree rape is proof of the infliction of “serious personal injury upon the victim or another person.” N.C. Gen. Stat. § 14-27.2(a)(2)(b) (1981). The same legislature enacted the newly created first degree sexual offense statute in which the identical language concerning the infliction of serious personal injury was inserted as one of the elements of first degree sexual offense. N.C. Gen. Stat. § 14-27.4(a)(2)(b) (1981).
Our examination of the history of these legislative enactments and the actual language of the prior and prеsent statutes leads us quickly to conclude that the legislature intended to *241 change the substance of former N.C.G.S. § 14-21 to the end that the element of “infliction of serious bodily injury” would no longer be limited to the period of time when the victim’s resistance was being overcome or her submission procured. Nor would the infliction of serious personal injury be limited to the person who was the victim of the rаpe or the first degree sexual offense.
The case of
State v. Sturdivant,
There remains the question of the time frame in which the serious personal injury must be inflicted in order to be used as an elemеnt to support a conviction of first degree rape or first degree sexual offense. We find guidance in the decisions of our Court and other jurisdictions in their considerations of the felony murder rule. This is so because in the crimes under consideration and in first degree murder under the felony murder rule, there must be distinct acts or occurrences within a certain time frame in order to sustain a first degree conviction.
North Carolina General Statute § 14-17 provides in part that a murder “committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree. . . .” N.C. Gen. Stat. § 14-17 (1983).
In interpreting this stаtute we have held that a killing is committed in the perpetration of a felony “when there is
no break in the chain of events leading from the initial felony to the act causing death,
so that the homicide is
linked to or part of the series of incidents, forming one continuous transaction." State v. Thompson,
In a discussion of the Delaware felony murder rule, the Supreme Court of that state has held that it suffices if the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it, or to сonceal it.
Parson v. State,
We conclude that our legislature intended and we therefore hold that the element of infliction of serious personal injury upon the victim or another person in the crimes of first degree sexual offense and first degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents fоrming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant’s escape.
In the case before us the serious personal injury inflicted upon the victim was one in a series of incidents in the same criminal episode which occurred before defendant left the home of the victim. The injury was clearly inflicted for the purpose of cоncealing the assailant’s criminal acts or of aiding in his escape.
The trial judge correctly denied defendant’s motions to dismiss the charges of first degree rape and first degree sexual offense.
By his next assignment of error, defendant contends that the trial court erred in refusing to instruct the jury that the serious personal injury must be inflicted at the same time as the rape and sexual offensеs in order to find the defendant guilty of those *243 crimes in the first degree. Our disposition of the previous assignment of error answers this issue adversely to defendant. We overrule this assignment of error.
By his final assignment of error, defendant contends that the trial court erred in failing to grant a mistrial and in taking no remedial action after the prosecuting witness had an emotional outburst during the jury instructions. The trial judge notеd for the record that during his summary of the evidence:
[T]he prosecuting witness, Cynthia Simmons, became hysterical; that she made a loud noise in the courtroom and broke down and was sobbing; that the Court indicated to the prosecutor to have Ms. Simmons removed from the courtroom; the prosecutor, in the company of at least two bailiffs, did have Ms. Simmons removed from the courtroom; thаt she has remained absent from the courtroom for the rest of the Jury instructions and for the rest of the proceedings to this point in the trial.
After the completion of the jury instruction, defendant moved for a mistrial in the jury’s absence. The trial court denied his motion, stating that “the incident was not of sufficient prejudice to defendant to require a mistrial.”
North Carolina General Statute § 15A-1061 provides in рertinent part that:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant’s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case.
N.C. Gen. Stat. § 15A-1061 (1983).
We have held that whether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge.
State v. Calloway,
In
State v. McGuire,
When such an incidеnt involving an unexpected emotional outburst occurs, the judge must act promptly and decisively to restore order and to erase any bias or prejudice which may have been aroused. Whether it is possible to accomplish this in a particular case is a question necessarily first addressed to the sound discretion of the trial judge. “Not every disruptive event occurring during the сourse of trial requires the court automatically to declare a mistrial,” and if in the sound discretion of the trial judge it is possible despite the untoward event, to preserve defendant’s basic right to receive a fair trial before an unbiased jury, then the motion for mistrial should be denied. On appeal, the decision of the trial judge in this regard is entitled to the greatest respect. He is present while the events unfold and is in a position to know far better than the printed record can ever reflect just how far the jury may have been influenced by the events occurring during the trial and whether it has been possible to erase the prejudicial effect of some emotional outburst. Therefore, unless his ruling is clearly erroneous so as to amount to a manifest abuse of disсretion, it will not be disturbed on appeal.
We do not believe the trial judge abused his discretion in refusing to grant a mistrial in the case before us. After the witness’s initial outburst, the judge demonstrated the inappropriateness of the outburst by promptly directing the removal of the witness and by resuming his instructions to the jury. Furthermore, the evidence against defendant was strong. We conclude that in light of the trial cоurt’s prompt actions and the otherwise compelling case against defendant, the witness’s emotional outburst was not so prejudicial to defendant as to result in reversible error.
*245 By the same assignment of error, defendant contends that the trial court should have given a curative instruction with regard to the witness’s outburst in his charge to the jury. Defendant argues that the judge’s failure to give such an instruсtion “was to send a message to the jury that such activity was part of a normal trial.”
We first note that defendant’s attorney made no request for a curative instruction or other remedial action with regard to this matter. Our rule has long been that where a charge fully instructs the jury on substantive features of the case, defines and applies the law thereto, the trial court is not required to instruсt on a subordinate feature of the case absent a special request.
See State v. Alston,
After a careful examination of the entire record,, we conclude that defendant received a fair trial, free of prejudicial error.
No error.