State v. Robinson

279 N.C. 495 | N.C. | 1971

MOORE, Justice.

Defendant contends that the trial judge’s comment, “I can’t see what the key has to do with this case, frankly,” constitutes an expression of opinion and is reversible error.

Defendant has testified that he and two girls arrived at the motel about eleven or twelve o’clock on the night of 30 August 1970, and the motel operator let them into the rooms and asked defendant to get the key the following morning. At this point defendant’s attorney asked a leading question: “And did you the next day go down to the desk and ask for a key?” Defendant answered, “Yes sir.” The solicitor objected to the question as leading. It was then that the court said, “I can’t see what the key has to do with this case, frankly.” Defendant contends that the court’s comment negated a possible alibi and destroyed any hope that defendant’s statement with regard to his movements and activities would be considered by the jury as having any importance.

Two things clearly appear: First, at the time the court made the comment to which defendant takes exception, there was no evidence before the court to indicate that defendant was attempting to set up an alibi for 10:00 or 10:30 a.m. or that he was attempting to use the key incident as a part of the alibi; secondly, the comment by the judge was obviously addressed to the solicitor’s objection and was in effect a statement that he was overruling the objection to the leading question. The defendant was allowed to develop his evidence as to the key incident without any limitation. It should also be noted that defendant testified that he was at the motel about 10:00 or 10:30 a.m. The defendant’s evidence as to the key does not attempt to establish an alibi between 10:30 and 11:00 a.m., the time of the robbery. Thus, under any consideration of the judge’s remark, it cannot be said to be an expression of an opinion prejudicial to the defendant.

As said in State v. Perry, 231 N.C. 467, 471, 57 S.E. 2d 774, 777 (1950) :

“ . . . The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.”

In charging the jury the court fully stated defendant’s evidence concerning the key and in the charge stated:

“Now, ladies and gentlemen of the jury, the court has no opinion as to what your verdict should not or should be. Anything that the court has said in its charge or anything that the court has said during the course of the trial, shall not be considered by you as an expression of opinion as to what your verdict should or should not be, because the law of North Carolina does not permit me to express an opinion. In fact the court has no opinion in this matter.”

We think the comment made by the trial judge about the key had no appreciable effect on the result of the trial below.

Defendant does not contend that other errors were committed, and we find none.

No error.