State v. Berry - Case Law

NO. COA13-953

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Alamance County
No. 09 CRS 056388

EDDIE DANIEL BERRY

Appeal by defendant from judgment entered 28 February 2013

by Judge James E. Hardin Jr. in Alamance County Superior Court.

Heard in the Court of Appeals 8 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for defendant-
appellant.

STEELMAN, Judge.

In accepting a stipulation of the parties and giving an

instruction to the jury on how to consider the stipulation, the

trial court did not express an opinion on a question of fact to

be decided by the jury in violation of N.C. Gen. Stat. § 15A-

1222 or express an opinion as to whether a fact had been proved

in violation of N.C. Gen. Stat. § 15A-1232. Plain error review

is not applicable to appellate review of a stipulation entered
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into by defendant at trial. The record does not provide

sufficient information for this court to rule on defendant’s

ineffective assistance of counsel claim, and that claim is

dismissed without prejudice to defendant raising the claim in a

motion for appropriate relief filed by the trial court.

I. Factual and Procedural Background

Eddie D. Berry (defendant) met Annalean Rogers (Annalean)

in June of 2000. Shortly thereafter he moved into the apartment

she shared with her four children: daughters A.R. and B.R. and

sons C.R. and D.R. Defendant married Annalean on 5 July 2004 and

assumed the role of stepfather to A.R. and her siblings.

At the time of the trial, A.R. was eighteen years old. A.R.

testified that defendant sexually assaulted her for the first

time a couple of weeks before defendant and Annalean got

married. A.R. testified that the sexual assaults continued for

several years. The final incident occurred on 4 July 2009. After

this incident, A.R. called her uncle, Roy Rogers (Roy), and told

him what had happened. A.R. called the police and gave a

statement to Officer Robert Lovette (Officer Lovette) of the

Graham Police Department. On 15 February 2010, defendant was

indicted for taking indecent liberties with a child. A

superseding indictment was issued on 26 November 2012 charging
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defendant with one count of indecent liberties with a child and

one count of statutory rape.

At trial, by stipulation of the parties, the State entered

into evidence a redacted interview report by Janet Hadler

(Hadler), a clinical social worker who interviewed A.R. Her

report contained some statements that contradicted A.R.’s trial

testimony. The report also contained the following:

TSCC: This report should be used as only one
source of information about the individual
being evaluated. In this respect, no
decisions should be based solely on the
information contained in this report. The
raw and standardized scores contained in
this report should be integrated with other
sources of information when making decisions
about this individual. [A.R.]’s TSCC is
considered to be valid. . . . [A.R.]’s
scores were in the clinically significant
range for the following TSCC Clinical
Scales/Subscales: Anxiety (T-score 67), . .
. Fantasy (T-score 68), Sexual Concerns (T-
score 120), Sexual Preoccupation (T-score
105), and Sexual Distress (T-score 133.)
According to the manual, T-scores at or
above 65 are considered clinically
significant. For the SC (sexual concerns)
scale and it’s [sic] subscales SC-P and SC-
D, T-scores at or above 70 are considered
clinically significant. The manual states,
“children with especially elevated scores on
the SC scale may have been prematurely
sexualized or sexually traumatized. This can
occur as a result of childhood sexual abuse,
[sic] exposure to pornography, witnessing
sexual acts, or, in the case of adolescents,
sexual assault by a peer.”
- 4 -

Hadler was unable to testify at trial due to a family

illness. The parties stipulated that redacted portions of

Hadler’s report be received as evidence for the purpose of

corroborating A.R.’s testimony. The stipulation read as follows:

Janet Hadler, licensed clinical social
worker, performed a child family evaluation
of [A.R.] in September and October of 2009.
Ms. Hadler is unavailable due to family
illness. The parties have stipulated that
the portion of her report of her interview
with [A.R.] may be entered into evidence
without her presence. This evidence may be
considered for the purpose of corroboration
of the witness, [A.R.].

During a conference with counsel outside of the presence of

the jury, the trial judge indicated that he would allow the

report to be entered into evidence as State’s Exhibit 6 pursuant

to the agreed upon stipulation, which would be marked as State’s

Exhibit 7. The trial judge further indicated that:

I'll then give a limiting instruction that
is consistent with pattern instruction
101.41 out of the civil pattern instructions
regarding stipulations which will
essentially say that the State of North
Carolina and the defendant have agreed or
stipulated that certain facts shall be
accepted by you [members of the jury] as
true without further proof. Those facts have
been stated in the record as it relates to
stipulation as described in State's Exhibit
7 since the parties have so agreed. You will
take these facts as true for the purpose of
this case.
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The State’s attorney and defendant’s trial counsel assented

to this instruction, and made no objection.

In the presence of the jury, the State’s attorney read the

agreed-upon stipulation to the jury and moved, without

objection, to enter State’s Exhibits 6 and 7 into evidence. The

State’s attorney then moved to publish copies of Hadler’s

redacted report to the jury. The trial judge, before allowing

the redacted report to be published to the jury, instructed the

jury as follows:

Now, before we proceed, ladies and
gentlemen, I want to make sure that you
understand that the State of North Carolina
and the defendant have agreed or stipulated
that certain facts shall be accepted by you
as true without further proof.

The agreed facts in this case relate to what
is marked as State's Exhibit 7 and now
received as a stipulation and State's
Exhibit 6, portions of an interview
conducted by the relevant parties as
described.

Since the parties have so agreed, you are to
take these facts as true for the purposes of
this case.

On 26 February 2013, the jury returned guilty verdicts

against defendant for one count of taking indecent liberties

with a minor and one count of statutory rape; he was sentenced

to 336 to 415 months active imprisonment.

Defendant appeals.
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II. Stipulation and Limiting Instruction

In his first argument, defendant contends that the trial

court erred by instructing the jury to accept as true a redacted

interview report by a licensed social worker that was entered

into evidence by the State. We disagree.

A. Standard of Review

A trial judge’s expression of opinion on a question of fact

violates the statutory mandates of N.C. Gen. Stat. §§ 15A-1222

and 1232, and therefore is preserved for de novo appellate

review as a matter of law. See State v. Young, 324 N.C. 489,

494, 380 S.E.2d 94, 97 (1989).

B. Analysis

The parties advised the trial judge that they had agreed to

the following stipulation:

Janet Hadler, a licensed clinical social
worker, performed a child family evaluation
of [A.R.] in September and October of 2009.
Ms. Hadler is unavailable due to family
illness. The parties have stipulated that a
portion of her report of her interview with
[A.R.] may be entered into evidence without
her presence. This evidence may be
considered for the purpose of corroboration
of the witness, [A.R.]

This stipulation was read verbatim to the jury by Mr.

Thompson, the Assistant District Attorney prosecuting the case.

Mr. Thompson then clarified, “That stipulation, Your Honor, is
- 7 -

State’s Exhibit 7. The actual portion of the evidence we’re

introducing is State’s Exhibit 6.” Judge Hardin then gave a

limiting instruction to the jury which stated that, “The agreed

facts in this case relate to what is marked as State’s Exhibit 7

and now received as a stipulation and State’s Exhibit 6,

portions of an interview conducted by the relevant parties as

described. Since the parties have so agreed, you are to take

these facts as true for the purpose of this case.”

“A stipulation is a judicial admission and ordinarily is

binding on the parties who make it.” State v. Murchinson, 18

N.C. App. 194, 197, 196 S.E.2d 540, 541 (1973) (citing Farmer v.

Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963)).

On appeal, defendant argues that the limiting instruction

given by the trial judge violated N.C. Gen Stat. § 15A-1222

because it constituted “an opinion in the presence of the jury

on any question of fact to be decided by the jury.” Defendant

argues that the wording of the instruction and the fact that the

jury was handed only Exhibit 6 (the interview report) after the

stipulation was read, rather than Exhibit 6 and 7 (the

stipulation), that the jury could have reasonably interpreted

the instruction to mean they should take the facts of Hadler’s

redacted report as true, resulting in a prejudicial error to

defendant.
- 8 -

The stipulation, as read to the jury, stated that the

redacted report “may be considered for the purpose of

corroboration of the witness, [A.R.].” The trial judge then gave

his limiting instruction. The redacted report was admitted

pursuant to the stipulation that it may be used for purposes of

corroboration. There is no indication whatsoever that the trial

judge expressed an opinion on any question of fact to be decided

by the jury in violation of N.C. Gen. Stat. § 15A-1222 or as to

whether a fact had been proved in violation of N.C. Gen. Stat. §

15A-1232. The information contained in Exhibit 7, the

stipulation, was to be accepted by the jury as true without

further proof. The information in Exhibit 6, the redacted

report, was to be used for the purposes of corroboration of

A.R.’s testimony. There was no question of fact for the trial

judge to express an opinion, with regard to either the

stipulation or the redacted report.

“In determining whether the trial judge has expressed an

impermissible opinion in its instructions to the jury, ‘[t]he

charge of the court must be read as a whole, in the same

connected way that the judge is supposed to have intended it and

the jury to have considered it.’” State v. Smith, 160 N.C. App.

107, 120, 584 S.E.2d 830, 838 (2003) (quoting State v. Lee, 277

N.C. 205, 214, 176 S.E.2d 765, 770 (1970)). As long as the jury
- 9 -

instructions, viewed in context, present the law “fairly and

clearly to the jury, the fact that some expressions, standing

alone, might be considered erroneous will afford no ground for

reversal.” 160 N.C. App. at 120, 584 S.E.2d at 839. We hold that

these principles apply not only to the final jury charge, but

also to limiting instructions given by the court during trial.

The parties clearly stated that the stipulation was Exhibit

7 and that the interview referenced therein was Exhibit 6. When

reading the stipulation, Mr. Thompson stated, “That stipulation,

Your Honor, is State’s Exhibit 7. The actual portion of the

evidence we’re introducing is State’s Exhibit 6.” Judge Hardin

then stated, “I want to make sure that you understand that the

State of North Carolina and the defendant have agreed or

stipulated that certain facts shall be accepted by you as true

without further proof.” (emphasis added) This makes it clear

that the facts to be accepted as true were those contained in

the stipulation (Exhibit 7).

“[U]nless 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.” State v.

Green, 129 N.C. App. 539, 545, 500 S.E.2d 452, 456 (1998) aff'd,

350 N.C. 59, 510 S.E.2d 375 (1999) (citing State v. Larrimore,

340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)). There is no
- 10 -

reason to believe that the stipulation or limiting instruction

had a prejudicial effect on the result of the trial.

Judge Hardin did not express any opinion to the jury in his

instructions concerning the stipulation. Judge Hardin simply

instructed the jury as to the parties’ stipulation. Nothing in

his instructions to the jury indicated any personal opinion as

to the facts of the case.

The dissent acknowledges that a “totality of the

circumstances” test should be used to determine whether a trial

court has made an improper expression of opinion. State v.

Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415 (2004)

(quoting State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557,

578 (2001). However, it then proceeds to parse the language used

by Judge Hardin to support its conclusions.

The trial court did not express opinion in his limiting

instruction to the jury, and taken as a whole, the instructions

did not prejudice defendant.

This argument is without merit.

III. Admissibility of Report

In his second argument, defendant contends that the trial

court committed plain error by admitting Hadler’s redacted

report into evidence. We disagree.

A. Standard of Review
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For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. See
Odom, 307 N.C. at 660, 300 S.E.2d at 378. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error “had a probable impact on the jury's
finding that the defendant was guilty.” See
id. (citations and quotation marks omitted);
see also Walker, 316 N.C. at 39, 340 S.E.2d
at 83 (stating “that absent the error the
jury probably would have reached a different
verdict” and concluding that although the
evidentiary error affected a fundamental
right, viewed in light of the entire record,
the error was not plain error). Moreover,
because plain error is to be “applied
cautiously and only in the exceptional
case,” Odom, 307 N.C. at 660, 300 S.E.2d at
378, the error will often be one that
“seriously affect[s] the fairness, integrity
or public reputation of judicial
proceedings,” Odom, 307 N.C. at 660, 300
S.E.2d at 378 (quoting McCaskill, 676 F.2d
at 1002).

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012).

B. Analysis

Defendant’s trial counsel made no objection to the

information contained in the report at trial and stipulated to

the admission of the redacted report into evidence. However,

even in the face of his trial stipulation, defendant argues on

appeal that the admission of Hadler’s redacted report is still

reviewable under plain error.
- 12 -

Generally, plain error analysis applies only to jury

instructions and evidentiary matters. State v. Atkins, 349 N.C.

62, 81, 505 S.E.2d 97, 109 (1998). We have been unable to find

any case law supporting the proposition that evidence received

pursuant to a stipulation may be reviewed under plain error. See

State v. Marlow, ___ N.C. App. ___, 747 S.E.2d 741, 745 (2013)

(finding that “while the law is clear on when our courts are

permitted to use the plain error analysis, it is not clear

whether stipulations fall within the purview of such

parameters.”), appeal dismissed, ___ N.C. ___, 752 S.E.2d 493

(2013).

“Plain error review is appropriate when a defendant fails

to preserve the issue for appeal by properly objecting to the

admission of evidence at trial.” State v. Perkins, 154 N.C. App.

148, 152, 571 S.E.2d 645, 648 (2002) (citing State v. Rourke,

143 N.C. App. 672, 675, 548 S.E.2d 188, 190 (2001)).

A stipulation is a judicial admission, voluntarily made by

the parties to admit evidence at trial. In the instant case,

defendant entered into a written stipulation with the State. It

would be indefensible to allow a defendant to enter into a

stipulation and then to challenge the evidence admitted pursuant

to the stipulation on appeal. The essence of plain error is the

failure of a defendant to object, coupled with a “fundamental
- 13 -

error” by the trial court in allowing the evidence to be

received even in the absence of an objection. See State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “Once a

stipulation is made, a party is bound by it and he may not

thereafter take an inconsistent position.” Rural Plumbing and

Heating, Inc. v. H. C. Jones Const. Co., 268 N.C. 23, 31, 149

S.E.2d 625, 631 (1966) (citing Austin v. Hopkins, 227 N.C. 638,

43 S.E.2d 849 (1947)).

The conduct of defendant in entering into a stipulation at

trial and then seeking to repudiate it on appeal is more akin to

invited error than plain error. “[A] defendant who invites error

. . . waive[s] his right to all appellate review concerning the

invited error, including plain error review.” State v. Jones,

213 N.C. App. 59, 67, 711 S.E.2d 791, 796 (2011) (quoting State

v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001)).

Therefore, “[a]lthough defendant labels this [issue on appeal]

as ‘plain error,’ it is actually invited error because, as the

transcript reveals, defendant consented to the manner in which

the trial court gave the instructions to the jury.” State v.

Fox, 216 N.C. App. 153, 160, 716 S.E.2d 261, 266-67 (2011)

(citing State v. Wilkinson, 344 N.C. 198, 235–36, 474 S.E.2d

375, 396 (1996)).
- 14 -

In the instant case, defendant agreed to the language of

the stipulation and limiting instruction at trial. Defendant

made no objection at trial to the limiting instruction,

stipulation, or to the substance of the redacted report when it

was entered into evidence. We hold that the concept of plain

error is not applicable to stipulations entered into at trial.

This argument is without merit.

IV. Ineffective Assistance of Counsel

In his third argument, defendant contends that he received

ineffective assistance of counsel when his trial attorney

stipulated to the admission of the report and failed to object

to the trial court’s instruction regarding the report. We

disagree.

A. Standard of Review

To prevail on a claim of ineffective
assistance of counsel, a defendant must
first show that his counsel’s performance
was deficient and then that counsel’s
deficient performance prejudiced his
defense. Deficient performance may be
established by showing that counsel’s
representation fell below an objective
standard of reasonableness. Generally, to
establish prejudice, a defendant must show
that there is a reasonable probability that,
but for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
- 15 -

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006).

B. Analysis

Generally, to establish a claim for ineffective assistance

of counsel, “[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland v. Washington,

466 U.S. 668, 694, 80 L.Ed.2d 674, 698 (1984). The Supreme Court

has noted that, “Judicial scrutiny of counsel's performance must

be highly deferential. It is all too tempting for a defendant to

second-guess counsel's assistance after conviction or adverse

sentence, and it is all too easy for a court, examining

counsel's defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.”

466 U.S. at 689, 80 L.Ed.2d at 694.

In the present case, the record does not provide sufficient

information to determine whether trial counsel’s decision to

agree to the stipulation of the report was the result of a

legitimate trial strategy. The report that was entered into

evidence arguably bolstered defendant’s position by
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demonstrating the victim’s lack of coherence in her story of the

events. Defendant’s claim of ineffective assistance of counsel

is dismissed without prejudice to filing a motion for

appropriate relief in the trial court.

NO ERROR IN PART, DISMISSED IN PART.

Judge BRYANT concurs.

Judge HUNTER, Robert C. concurs in part and dissents in

part.
NO. COA13-953

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Alamance County
No. 09 CRS 056388
EDDIE DANIEL BERRY

HUNTER, Robert C., Judge, concurring in part and dissenting
in part.

I concur with the portions of the majority opinion

regarding plain error review of stipulations on appeal and

defendant’s argument that he was denied effective assistance of

counsel. However, because I believe that the trial court’s

instruction could have been reasonably interpreted by the jury

as a mandate to accept certain disputed facts of this case as

true, in violation of N.C. Gen. Stat. §§ 15A-1222 and 15A-1232

(2013), I respectfully dissent and conclude that defendant

should be granted a new trial.

Background

Defendant was indicted for taking indecent liberties with a

child on 15 February 2010. A superseding indictment charging

defendant with one count of indecent liberties with a child and

one count of statutory rape was issued on 26 November 2012.
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At trial, defendant’s stepdaughter, A.R., testified that

defendant sexually abused her repeatedly over a number of years,

beginning when she was either ten or eleven years old. By

stipulation of the parties, the State entered into evidence a

redacted interview report by Janet Hadler (“Hadler”), a clinical

social worker who interviewed A.R. The report contained

numerous accusations of abuse by A.R., specifically that: (1)

defendant sexually abused A.R. and her sister beginning when

A.R. was eleven years old; (2) defendant had sexual intercourse

with A.R. and took her virginity; and (3) defendant continued to

have sex with A.R. “every time he can get away from [A.R.’s]

mother.” The report also contained Hadler’s professional

opinion as to these accusations, which appeared as follows:

[A.R.]’s TSCC1 is considered to be valid. . .
. [A.R.]’s scores were in the clinically
significant range for the following TSCC
Clinical Scales/Subscales: Anxiety (T-score
67), . . . Fantasy (T-score 68), Sexual
Concerns (T-score 120), Sexual Preoccupation
(T-score 105), and Sexual Distress (T-score
133.) According to the manual, T-scores at
or above 65 are considered clinically
significant. For the SC (sexual concerns)
scale and it’s [sic] subscales SC-P and SC-
D, T-scores at or above 70 are considered
clinically significant. The manual states,
“children with especially elevated scores on
the SC scale may have been prematurely
sexualized or sexually traumatized. This can

1
It is unclear from the record what “TSCC” stands for.
- 3-

occur as a result of childhood sexual abuse
exposure to pornography, witnessing sexual
acts, or, in the case of adolescents, sexual
assault by a peer.”

Hadler was unable to testify at trial due to a family

illness. According to the stipulation, the parties agreed to

let redacted portions of her report come in for the purpose of

corroborating A.R.’s testimony. The stipulation read as

follows:

Janet Hadler, a licensed clinical social
worker, performed a child family evaluation
of [A.R.] in September and October of 2009.
Ms. Hadler is unavailable due to family
illness. The parties have stipulated that
the portion of her report of her interview
with [A.R.] may be entered into evidence
without her presence. This evidence may be
considered for the purpose of corroboration
of the witness,[A.R.].

While the jury was dismissed, the trial judge indicated to

counsel that he would allow the report to be entered into

evidence as State’s Exhibit 6 pursuant to the agreed-upon

stipulation, which would be marked as State’s Exhibit 7.

Following the bench conference, the jury returned to the

courtroom. The State’s attorney read the agreed-upon

stipulation to the jury and moved, without objection, to enter

State’s Exhibits 6 and 7 into evidence. The State’s attorney

then moved to publish copies of Hadler’s report to the jury,
- 4-

whereupon the trial judge, before granting the motion to

publish, instructed the jury as follows:

The agreed facts in this case relate to what
is marked as State’s Exhibit 7 and now
received as a stipulation and State’s
Exhibit 6, portions of an interview
conducted by the relevant parties as
described.

Since the parties have so agreed, you are to
take these facts as true for the purposes of
this case.

On 26 February 2013, the jury returned guilty verdicts

against defendant for one count of taking indecent liberties

with a child and one count of statutory rape; he was sentenced

to 336 to 415 months active imprisonment.

Discussion

Defendant argues that the trial judge failed to give a

promised limiting instruction and violated statutory mandates of

sections 15A-1222 and 15A-1232 prohibiting a trial judge from

expressing an opinion (1) as to whether or not a fact has been

proved and (2) on any question of fact to be decided by the

jury, because the judge inadvertently instructed the jury to
- 5-

consider the facts contained in Hadler’s report as true. After

carefully reviewing the record and transcript of the trial, I

agree. I would hold that the trial court inadvertently erred in

its jury instruction on the stipulation, and because this error

prejudiced defendant, I would order a new trial.

Typically, in order to preserve an argument for appellate

review, a defendant must have “presented the trial court with a

timely request, objection or motion, stating the specific

grounds for the ruling sought if the specific grounds are not

apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809,

814 (1991); see also N.C. R. App. P. 10(a)(1) (2013). Defendant

here failed to object to the trial court’s instruction.

However, the North Carolina Supreme Court has held that

“[w]henever a defendant alleges a trial court made an improper

statement by expressing an opinion on the evidence in violation

of N.C.G.S. §§ 15A-1222 and 15A-1232, the error is preserved for

review without objection due to the mandatory nature of these

statutory provisions.” State v. Duke, 360 N.C. 110, 123, 623

S.E.2d 11, 20 (2005). Defendant has made such allegations in

this case, and thus, these arguments are preserved

notwithstanding defendant’s failure to object at trial. See id.

On appeal, the burden is on the defendant to show that he was
- 6-

prejudiced by the allegedly improper remarks. See State v.

McNeil, 209 N.C. App. 654, 666, 707 S.E.2d 674, 683 (2011).

That is, he must show that “there is a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached” by the jury. Id.; see also N.C.

Gen. Stat. § 15A-1443(a) (2013).

N.C. Gen. Stat. § 15A-1222 provides that a trial judge “may

not express during any stage of the trial, any opinion in the

presence of the jury on any question of fact to be decided by

the jury.” N.C. Gen. Stat. § 15A-1232 further states in

relevant part that “[i]n instructing the jury, the judge shall

not express an opinion as to whether or not a fact has been

proved[.]” Prejudicial error results where “the jury may

reasonably infer from the evidence before it that the trial

judge’s action intimated an opinion as to a factual issue, the

defendant’s guilt, the weight of the evidence or a witness’s

credibility[.]” State v. Blackstock, 314 N.C. 232, 236, 333

S.E.2d 245, 248 (1985). “Whether a trial court’s comment

constitutes an improper expression of opinion is determined by

its probable meaning to the jury, not by the judge’s motive.

Furthermore, a totality of the circumstances test is utilized

under which defendant has the burden of showing prejudice.”
- 7-

State v. Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415

(2004) (alteration in original) (citations and internal

quotation marks omitted).

Here, while outside the presence of the jury, counsel for

defendant and the State conferred with the trial judge regarding

the stipulation. The substance of the stipulation was that: (1)

Hadler was unavailable to testify at trial; (2) portions of her

report were to be admitted into evidence; and (3) these redacted

portions may be considered for the purpose of corroborating

A.R.’s testimony. The trial court informed counsel that it

would instruct the jury as to this stipulation based on N.C.P.I.

Civil 101.41, which provides that juries are to accept

stipulated facts as true without further proof. Specifically,

the trial court informed counsel that it would instruct the jury

as follows: “[F]acts have been stated in the record as it

relates to stipulation as described in State’s Exhibit 7 since

the parties have so agreed. You will take these facts as true

for the purpose of this case.” However, when the jury returned

to the courtroom, the following colloquy took place:

THE COURT: All right. The jurors are now
present with us in the courtroom. Mr.
Thompson [counsel for the State], ready to
proceed?

MR. THOMPSON: We are, Your Honor.
- 8-

Your Honor, at this time the State would
make this following tender of stipulation.

Janet Hadler, a licensed clinical social
worker, performed a child family evaluation
of [A.R.] in September and October of 2009.
Ms. Hadler is unavailable due to family
illness. The parties have stipulated that
the portion of her report of her interview
with [A.R.] may be entered into evidence
without her presence. This evidence may be
considered for the purpose of corroboration
of the witness, [A.R.]. That stipulation,
Your Honor, is State’s Exhibit 7.

The actual portion of the evidence we’re
introducing is State’s Exhibit 6. We move
to enter 6 and 7 at this time.

THE COURT: What says the defendant?

MR. MARTIN [defense counsel]: No objection.

THE COURT: All right. Without objection
what is marked as State’s Exhibit 6 and
State’s Exhibit 7 each is admitted and
received.

MR. THOMPSON: At this time, Your Honor, we
ask to publish the copies to the jury.

THE COURT: Now, before we proceed, ladies
and gentlemen, I want to make sure that you
understand that the State of North Carolina
and the defendant have agreed or stipulated
that certain facts shall be accepted by you
as true without further proof.

described.

Since the parties have so agreed, you are to
take these facts as true for the purposes of
this case. The motion to publish is allowed.

It’s my impression, ladies and gentlemen,
you all each have a copy of State’s Exhibit
6. If you will read that to yourselves,
again, without comment. And once you’ve
completed your review of the document, pass
that back down to the bailiff so that we
know that you’ve completed your examination
of that report.

(Whereas State’s Exhibit No. 6 was published
to the jury.)

(Emphasis added.)

The State argues, and the majority agrees, that the trial

court did not violate sections 15A-1222 or 15A-1232 because it

did not instruct the jury to read Hadler’s report as true.

Rather, the statement that “the agreed facts in this case relate

to . . . State’s Exhibit 6” merely indicated that the actual

stipulation in State’s Exhibit 7 related to the admissibility of

State’s Exhibit 6.

However, on appeal, this Court is to consider the

instruction’s “probable meaning to the jury” under the totality

of the circumstances. Mucci, 163 N.C. App. at 620, 594 S.E.2d

at 415. The attendant circumstances and wording of the

instruction leads me to conclude that the jury could have
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reasonably interpreted the trial court’s statement as requiring

the jury members to accept Hadler’s report as true, in clear,

but inadvertent, violation of sections 15A-1222 and 15A-1232.

First, the trial court told the jury that “[t]he agreed

facts in this case relate to what is marked as State’s Exhibit 7

and now received as a stipulation and State’s Exhibit 6,

portions of an interview conducted by the relevant parties as

described.” (Emphasis added.) The use of the conjunctive “and”

in this instruction unavoidably combined both exhibits under the

umbrella of what the “agreed facts . . . relate to,” even though

the trial judge told counsel during the bench conference that he

would only instruct the jury that “facts have been stated in the

record as it relates to stipulation as described in State’s

Exhibit 7 since the parties have so agreed. You will take these

facts as true for the purpose of this case.” Thus, the trial

court’s instruction to the jury differed materially from the

instruction it promised counsel it was going to make while the

jury was outside the courtroom, indicating that the reference to

State’s Exhibit 6 was unplanned and inadvertent.

Furthermore, the trial court failed to clarify that the

redacted portions of Hadler’s report were not to be considered

for substantive purposes at all. Despite the agreement made
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between counsel outside the presence of the jury that the report

would only be admitted for corroborative purposes, the trial

court never specifically instructed, either before or after

publishing the document to the jury, that there were limits on

the admissibility of Hadler’s report. The stipulation itself

provided only that Hadler’s report “may be considered for the

purpose of corroboration of the witness, [A.R.].” (Emphasis

added.) The jury was never instructed at any point of the trial

that it may not consider the report as substantive evidence of

defendant’s guilt. During the jury charge, the trial court

instructed the jury that:

Evidence has been received tending to show
that at an earlier time a witness made a
statement which may be consistent or may
conflict with the testimony of the witness
at this trial.

You must not consider such earlier statement
as evidence of the truth of what was said at
that earlier time because it was not made
under oath at this trial.

If you believe that the earlier statement
was made and that it is consistent or does
conflict with the testimony of the witness
at this trial, then you may consider this
and all other facts and circumstances
bearing upon the witness’ truthfulness in
deciding whether you will believe or
disbelieve the testimony of the witness.
-12-

(Emphasis added.) Thus, the trial court failed to specify that

Hadler’s report, which included not only statements from A.R.

but also Hadler’s professional opinion on the clinical

significance of those statements, was only admitted to

corroborate A.R.’s testimony and was not to be considered for

any other purpose. See State v. McMillan, 55 N.C. App. 25, 30,

284 S.E.2d 526, 530 (1981) (finding error where the trial court

instructed on prior statements of “a witness” but failed to

specify the limit on admissibility related solely to the

specific witness’s statements). Accordingly, the trial court’s

instruction to “take these facts as true,” with the facts

“relating to” both the stipulation and Hadler’s report, was more

amenable to being interpreted as invitation to read Hadler’s

report as true given the lack of specific limiting instructions

on that exhibit.

Second, only Hadler’s report, and not the stipulation

itself, was published to the jury immediately following the

trial court’s ambiguous instruction. I believe that the jury

could have reasonably inferred that what was being published to

them was the subject of the instruction; or in other words, that

Hadler’s report was the document that the jury members were to

read as true. This conclusion is especially availing given that
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the trial court said “you are to take these facts as true for

the purposes of this case” immediately after saying “[t]he

agreed facts in this case relate to . . . State’s Exhibit 6,

portions of an interview conducted by the relevant parties as

described,” just before publishing State’s Exhibit 6 to the

jury, and without any clarification regarding the stipulation

that Hadler’s report “may be considered for the purpose of

corroboration[.]” (Emphasis added.)

Based on the totality of the circumstances, Mucci, 163 N.C.

App. at 620, 594 S.E.2d at 415, I would hold that the challenged

instruction could have been reasonably interpreted by the jury

as requiring them to read Hadler’s report as true. In giving

this instruction, the trial court both bolstered the credibility

of the prosecuting witness, A.R., and afforded undue evidentiary

weight to Hadler’s conclusions in the report regarding the

clinical significance of A.R.’s “T-scores.” Each of which

constitutes prejudicial error. See Blackstock, 314 N.C. at 236,

333 S.E.2d at 248 (“[I]n a criminal case it is only when the

jury may reasonably infer from the evidence before it that the

trial judge’s action intimated an opinion as to a factual issue,

the defendant’s guilt, the weight of the evidence or a witness’s

credibility that prejudicial error results.”).
-14-

Therefore, while it is clear that this error was

inadvertent, the jury may have reasonably believed that they

were instructed to read the statements in Hadler’s redacted

report as true, in which case the trial court inherently

intimated an opinion as to the weight of this evidence, and

prejudicial error resulted. See Blackstock, 314 N.C. at 236,

333 S.E.2d at 248.

Conclusion

Based on the foregoing, I would hold that the trial judge

inadvertently erred by giving an instruction constituting an

impermissible expression of judicial opinion in violation of

sections 15A-1222 and 15A-1232. Because this error bolstered

the credibility of the prosecuting witness and afforded undue

weight to a report admitted solely for corroborative purposes, I

would conclude that defendant was prejudiced by this error,

requiring a new trial.