State of North Carolina v. Tommy McCormick, No. 7815SC39 (N.C. Ct. App. June 6, 1978)

Factual and Procedural Background

Defendant Tommy McCormick was indicted for felonious breaking and entering and felonious larceny, the indictment alleging the offense occurred on or about March 11, 1976. Defendant waived arraignment and pleaded not guilty. Prior to trial, defendant requested voluntary discovery and later moved for discovery under G.S. 15A-902(a). Receiving no documents in response, defendant moved in limine to prohibit the State from introducing any evidence not disclosed pursuant to his discovery motion; the trial court granted that motion.

At trial, the State presented evidence that Thomas L. Clark discovered, on March 11, 1976, that his twelve-gauge Ithaca shotgun and .44 Magnum pistol were missing. Robert Dickey, serving time for various breaking-and-entering convictions, testified that he and defendant entered the Clark home sometime early in 1976 and took the shotgun and pistol. Defendant presented evidence that on March 11 he stayed at his sister's home caring for a sick niece and suggested Dickey's testimony was motivated by a prior quarrel.

The jury found defendant guilty on the breaking-and-entering and larceny counts. The trial court sentenced defendant to six to eight years' imprisonment on the breaking-and-entering count and imposed a consecutive suspended five-year sentence on the larceny count. Defendant appealed, challenging (among other matters) admission of certain witness statements and the trial court's conduct while defendant testified.

Legal Issues Presented

1. Whether a written statement of a witness (Dickey) was barred from admission by the trial court's in limine order restricting evidence not disclosed pursuant to defendant's pretrial discovery request.
2. Whether the trial court committed prejudicial error by failing to hear defendant's counsel upon objection to a line of questioning.
3. Whether the trial court improperly expressed an opinion in violation of G.S. 1-180 by using the word "harassed" in reference to a witness being permitted to leave the courtroom.
4. Whether the trial court violated G.S. 1-180 by directly questioning the defendant on dates (March 8–10) not previously at issue, thereby cross-examining and impeaching defendant's testimony and necessitating a new trial.

Arguments of the Parties

Appellant's (Defendant's) Arguments

• The written statements of witness Robert Dickey were discoverable under defendant's motion and were not provided; therefore they were barred by the in limine order and should not have been admitted (or referenced) at trial.
• The trial court improperly expressed opinions in violation of G.S. 1-180 at three points: (a) by failing to allow defendant's counsel to be heard on an objection, (b) by using the term "harassed" regarding a witness, and (c) by directly questioning defendant about his activities on dates other than March 11, which amounted to an improper cross-examination and impeachment by the court.

State's Position (as reflected in the record)

• The State did not treat Dickey as a co-defendant; the portion of defendant's request specifically seeking co-defendant statements (G.S. 15A-903(b)) therefore did not obligate the State to produce Dickey's statements under that clause. The State sought court permission, outside the jury's presence, to introduce the statement and, after a bench conference, obtained the court's permission with a limiting instruction that the testimony was admitted solely to corroborate Dickey's testimony.
• As to the objections regarding the court's conduct, the record shows the court had previously heard the same line of objection and the State's actions (bench conference and the court's rulings) provided no demonstrated prejudice to defendant in the instances where defendant complained of not being heard or of the term "harassed." Regarding the court's questioning, the State's role in conducting a line of questioning is reflected in the opinion as a matter that could have been proper for the district attorney but was improper when undertaken by the court itself.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in three principal parts corresponding to defendant's challenges:

1. Admissibility of Dickey's Written Statement (Discovery Claim)

• The court examined defendant's discovery requests. One request specifically sought "written ... statements of a codefendant" under G.S. 15A-903(b). Because Dickey was not a co-defendant, the State was not obligated under that particular clause to produce his statement.
• Another part of defendant's request sought "any books, papers, documents ... specifically but not limited to any documents showing ownership of the ... shotgun and ... pistol." The court recognized that this broader request reasonably encompassed Dickey's written statement and that the statement should have been submitted to defendant.
• However, the in limine order granted by the trial court did not constitute an absolute exclusion; it required that evidence within the scope of the discovery request not be mentioned or introduced without first obtaining the court's permission outside the jury's presence. The record shows the State obtained permission at a bench conference (the objection was overruled) and the court gave a limiting instruction that the testimony was admitted only for the purpose of corroborating Dickey's prior testimony.
• The court concluded that, under these circumstances, the State complied with the trial court's order restricting admission and that any error from mentioning the document prior to the court's determination was rendered harmless by the subsequent bench ruling and limiting instruction.

2. Alleged Expressions of Opinion and Failure to Hear Counsel

• Defendant contended the trial judge expressed opinions in violation of G.S. 1-180 in three respects. The court addressed each in turn.
• First, regarding the trial court's denial to allow counsel to be heard on an objection, the appellate court noted that the trial court had just heard an objection relating to the same line of questioning and the record did not demonstrate prejudice to defendant; therefore no reversible error was found on that point.
• Second, the use of the word "harassed" by the trial court when excusing a witness from the courtroom was criticized by the appellate court: while the appellate court did not approve the term's use, it found that the term did not constitute an expression of opinion necessarily harmful to defendant and therefore was not prejudicial error.

3. Trial Court's Examination of Defendant and G.S. 1-180 Violation

• The court observed the indictment charged the offense "on or about" March 11 and that defendant had presented extensive evidence concerning his whereabouts on March 11. No other dates were meaningfully put in issue by defendant's testimony prior to the trial court's questions.
• The trial court then posed a sequence of questions to defendant about March 10, March 9, and March 8 — dates not previously focal in defendant's testimony. The appellate court explained that while a trial judge may ask clarifying, competent questions of a witness, the judge must be cautious not to express an opinion on the facts.
• Relying on State v. Kimrey, the appellate court found that the judge's questions here did not merely clarify testimony but amounted to cross-examination calculated to impeach defendant and deprecate his testimony before the jury. The questions focused on dates not earlier at issue and had the effect of undermining defendant's recollection regarding March 11.
• Because the trial judge's questioning constituted an improper expression of opinion and an improper method of impeaching the defendant (violating G.S. 1-180), the appellate court concluded that this error entitled defendant to a new trial.

Holding and Implications

Holding: The Court of Appeals reversed the conviction and ordered a NEW TRIAL for defendant Tommy McCormick.

Implications:

• The direct effect of the decision is to vacate the judgment rendered by the trial court insofar as it requires that defendant be retried; the appellate court ordered a new trial because the trial judge's questioning of the defendant violated G.S. 1-180.
• The court upheld the trial court's handling of the State's introduction of Dickey's written statement because the State obtained permission outside the jury's presence and the court gave a limiting instruction; the admission (after bench conference) was not treated as reversible error in these circumstances.
• The opinion applies established law (notably State v. Kimrey) prohibiting trial judges from expressing opinions that impeach or deprecate witness testimony and does not purport to announce a new legal principle beyond that application; no broader new precedent is declared in the opinion.

Disposition: New trial ordered. Judges Britt and Erwin concurred.