Case Summaries - N.C. Court of Appeals (Oct. 6, 2020)

This post summarizes published criminal opinions by the North Carolina Court of Appeals released on October 6, 2020. (1) Trial court’s instructions that the jury “will determine what the assault was” did not amount to an improper expression of opinion on the evidence in context; (2) The trial court’s response to a jury question during deliberations regarding a prior conviction was an not impermissible expression of opinion on the evidence State v. Austin, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was tried and convicted of assault on female and habitual misdemeanor assault in Forsyth County and thereafter pled guilty to attaining habitual felon status. On appeal, he argued that the trial court erred by expressing an opinion on the evidence during its instructions to the jury and by improperly answering a jury question during deliberations. A majority of the Court of Appeals found no error. (1) G.S. §§ 15A-1222 and 1223 prohibit the trial court from expressing opinions on the evidence to the jury. An alleged violation of this statutory mandate may be reviewed on appeal notwithstanding the defendant’s failure to object at the time, but the defendant has the burden to show that remarks were prejudicial under the totality of circumstances. Here, the defendant pointed to parts of the jury instructions where the trial court described the various alleged assaults and told the jury “You will determine what the assault was . . .” Slip op. at 9. However, the jury instructions began with the trial court informing [...]