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.”
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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
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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.
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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
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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:
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 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.
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
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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.
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(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.”).
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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.