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State v. Little8/2/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Johnny Earl Little (defendant) was indicted on 6 October 2003 for possession with intent to sell or deliver a controlled substance and for being an habitual felon. On 22 July 2004, the State moved to correct the habitual felon indictment. The motion was allowed prior to trial. The case was tried at the 26 July 2004 Criminal Session of Henderson County Superior Court.
The State presented evidence at trial which tended to show the following: In May 2003, defendant was arrested after a search warrant was executed on his residence. During the search, $162.00 was recovered from defendant's person and six clear baggies containing .9 grams of cocaine were found in the living room areaof the home. A plethora of additional evidence, unnecessary for the resolution of this appeal, was introduced by the State to support the charged offense. Defendant testified at trial and denied that the drugs were his.
Defendant was convicted of possession with intent to sell or deliver cocaine and being an habitual felon and was sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.
Defendant first argues that the trial court erred by failing to remain an impartial and disinterested tribunal. Specifically, defendant cites several comments made by the trial judge and argues that these disparaging remarks indicate "a general tone or trend of hostility which has a cumulative effect of prejudice."
The first instance relates to a dog bite suffered by an officer involved in executing the search warrant. When the officer entered the home and began to chase the defendant, he was tripped by a dog on a leash that was in the hallway, and the dog bit him on the leg. During cross-examination, defendant's counsel asked the officer what type of dog it was. The officer replied that he did not know, but that " t was a biting dog." Counsel then asked if it was a small dog, and when the officer agreed, the trial judge added the comment " ittle teeth."
The next instance was during defense counsel's cross-examination of Kelly Page, a forensic drug chemist with the State Bureau of Investigation. Counsel asked Page, "What would you equate the weight of the [.]9 grams to, of something not measured in the metric system?" After the prosecutor objected, the courtasked counsel what system he would want her to use. When counsel attempted to rephrase the question, the trial judge stated, "Yeah. Use the Chinese System. What would it equate for in that?" After counsel rephrased the question, Page testified that .9 grams was similar to the amount of sugar in a sugar packet at a restaurant.
Third, during defendant's direct examination, he testified that on 2 May 2003, he slept until late afternoon and then went out and purchased a $40 money order. Counsel asked him if he ever told police that he purchased the money order to pay the phone bill. The following exchange occurred:
[DEFENDANT]: They didn't give me time. No, I didn't get it - - I ain't never said a thing about a phone bill. I don't pay phone bills there. The phone bill is paid into the rent. Mr. Gibbs pays the phone bills. In other words, we pay - - I pay $75 a week for the apartment.
[THE COURT]: A week?
[DEFENDANT]: $75 a week for the apartment, and he pays the rent - - I mean, the phone bill - - I mean, the light bill.
[THE COURT]: Which one? The light bill or the phone bill?
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