48 N.C. App. 209 | N.C. Ct. App. | 1980
While instructing the jury on the lesser included offense of reckless driving, the trial judge stated the contentions of the state and then stated the following:
The defendant, on the other hand, contends that you should not find him guilty of this. The defendant contending that at this time in the morning on a street such as Greenfield Street and 18th Avenue that there was very little or no traffic. In fact, there is no evidence there was any other traffic other than the police cruiser and one other vehicle, and the defendant contends that it is common practice for all motorists at such early hour in the morning to exceed the speed limit in safety and without worrying about other vehicles coming in contact with him, and that it*211 was not necessary to have on headlights, due to the fact that the street is a well lighted area, and consequently, he was in town and headlights are not needed for the safe operation of a vehicle at this time of morning, and that for the same reason, since there was very [little] traffic, the defendant contends that it was not necessary to stop for the stop light, and the defendant contends that you should return a verdict of not guilty as to all charges.
Generally objections to statements of the contentions of the parties not made at the time of trial so as to permit the court to correct them are deemed waived. State v. Williams, 279 N.C. 515, 184 S.E. 2d 282 (1971). Where, however, the court impermissibly expresses an opinion in so stating the contentions, the question may be considered for the first time on appeal. State v. Watson, 1 N.C. App. 250, 161 S.E. 2d 159 (1968). Defendant contends that the above-quoted portion of the charge constituted an impermissible expression of opinion by the trial judge in violation of G.S. 15A-1232.
In the present case defendant’s plea of not guilty controverted and put in issue the existence of every fact essential to constitute the offense charged and cast upon the State the burden of proving all necessary elements beyond a reasonable doubt. State v. Swaringen, 249 N.C. 38, 105 S.E. 2d 99 (1958). Inherent in the court’s statement of defendant’s contentions was the assumption that defendant admitted that he was in fact operating a motor vehicle upon a public highway at the time the alleged offense took place, and that he was driving his car without lights at an excessive speed. Defendant did not testify at trial, and the court’s assumption in stating defendant’s contentions that he admitted certain essential elements of the State’s case was error, particularly where the manner in which those contentions were stated had the effect of ridiculing the defendant before the jury. As stated by Justice Sharp (later Chief Justice) in State v. Douglas, 268 N.C. 267, 150 S.E. 2d 412 (1966):
In a case where the State’s evidence seems to establish defendant’s guilt conclusively, and the judge must strain credulity to state any contrary contention for defendant,*212 his obvious solution is to state no contentions at all. A simple explanation of the plea of not guilty will fulfill the requirement. As every trial lawyer knows, a judge can indicate to the j ury what impression the evidence has made on his mind and what deductions he thinks it should draw from it without expressly stating his opinion in so many words. If, however, the judge intimates an opinion by his manner of stating the evidence, “by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial,” he violates G.S. 1-180 [now G.S. 15A-1232] no less.
268 N.C. at 271, 150 S.E. 2d at 416.
The State contends that any error in the charge was harmless, since defendant was convicted of the offense of driving under the influence of intoxicating liquor and not of reckless driving, to which the portion of the charge excepted to referred. We disagree. G.S. 20-140, which defines the offense of reckless driving, states that the offense “shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended.” Because of this relationship between the two offenses, the error in stating defendant’s contention as to the lesser offense was likely to have affected impermissibly the verdict of guilty of the greater offense.
For the error noted above, defendant is entitled to a
New Trial.
