State v. Jackson , 56 N.C. App. 607 ( 1982 )

MARTIN (Robert M.), Judge.

Defendant's first argument on appeal involves the testimony of Officer Ivey, quoted above, as to what defendant’s wife told him about defendant’s conduct on the day in question. Defendant argues that the wife’s declarations concern confidential communications between husband and wife and that the trial judge should have excluded this testimony on his own motion. Defendant cites State v. Dillahunt, 244 N.C. 524, 94 S.E. 2d 479 (1956), and State v. Warren, 236 N.C. 358, 72 S.E. 2d 763 (1952). Accepting defendant’s contentions arguendo, we nonetheless find the error harmless in this case. In awarding a new trial in Warren, our Supreme Court noted that the inference contained in the statement attributed to the defendant’s wife in that case was “unmistakably incriminating and harmful.” Id. at 360, 72 S.E. 2d at 764. We cannot say the same here. Defendant argues that his wife’s declarations were prejudicial since they provided evidence of flight, since they showed that he had been drinking and thereby bolstered Turner’s testimony, and since they showed that he did not deny his guilt to his wife. However, there was other evidence of flight through the testimony of Officer Ivey. Officer Ivey’s testimony also tended to show that the defendant was carrying a bottle of liquor on the day in question. Although the wife’s declarations contained no denial of defendant’s guilt, they contained no admission of guilt either. Defendant only told her that the law was looking for him. In short, we conclude that defendant has not carried the burden imposed by G.S. 15A-1443(a) of showing that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.”

In his second argument on appeal, the defendant contends that the trial judge expressed an opinion on the merits of the case through his denial of a defense motion at the close of evidence and through his unbalanced summary of the evidence. At the close of evidence we find the following exchange:

[DEFENSE Counsel]: . . . Defendant offers no evidence, your Honor.

THE COURT: You want to make a motion?

[Defense Counsel]: Yes, sir, I would. .

THE Court: Motion denied.

Defendant cites State v. Goode, 300 N.C. 726, 268 S.E. 2d 82 (1980); however, that case is easily distinguishable from the present one. In Goode the trial judge in the presence of the jury denied unnamed motions before they were made and then immediately denied defense counsel’s request for a short recess to decide whether defendant would offer evidence. In finding an abuse of discretion, our Supreme Court relied almost exclusively on the denial of the defense motion for a recess. Goode does not stand for the proposition that the denial of unnamed motions alone constitutes an abuse of discretion or the expression of an opinion prejudicial to defendant. Although we do not approve the practice, we believe that in the present case both defense counsel and the trial judge understood the motion to which each was referring and that no error resulted. Defendant also argues that the trial judge’s summary of the evidence in his charge was unbalanced in favor of the State. G.S. 15A-1232 requires the trial judge to summarize the evidence only to the extent necessary to explain the application of the law thereto. Where, as in the present case, defendant presents no evidence, the judge must nonetheless summarize evidence favorable to defendant which is brought out on cross-examination if necessary to explain the application of the law. However, this requirement does not apply when the evidence on cross-examination is of only an impeaching effect and does not go to the establishment of a substantive defense. State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980). We find no error in the summary of the evidence herein.

No error.

Judges Webb and Wells concur.