Opinion
No. COA10-326
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 17 June 2009 by Judge Henry W. Hight, Jr. in Franklin County Superior Court. Heard in the Court of Appeals 15 September 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Haral E. Carlin for defendant-appellant.
Franklin County No. 08 CRS 52500.
Defendant Derrick Lamont Crudup appeals from his conviction of second degree murder. Although defendant failed to object at trial, he argues on appeal that the trial court erred in admitting evidence of a photograph of the victim at the funeral home, in not intervening when the State referred to that photograph in the closing argument, and in also not intervening when the State argued that defendant "would just about say anything to save his neck." We hold that given the evidence, defendant has failed to demonstrate sufficient prejudice to warrant a new trial. We do not believe that the jury would likely have reached a different verdict in the absence of the photograph and the arguments. We also reject defendant's claim that the court erred in failing to find certain mitigating factors during sentencing because the court imposed a sentence in the presumptive range and was, therefore, not required to make such findings.
Facts
The State's evidence tended to show the following facts. On 24 September 2008, Darryl Collins was driving a four-wheeler and pulled out in front of a patrol car driven by Lieutenant William Mitchell of the Franklin County Sheriff's Department. Lieutenant Mitchell activated his lights and siren to pull Collins over, but Collins refused to stop. In his effort to flee, Collins drove his four-wheeler through defendant's mother's yard. Defendant was outside mowing his mother's lawn and saw Collins cut through the yard.
The next evening, at around 10:00 p.m., defendant went to Anderson Barber Shop for a haircut. While defendant was getting his hair cut, Collins arrived at the shop. Everything "seemed to be fine" between defendant and Collins until defendant brought up the four-wheeler incident. Defendant told Collins, "Don't[,] you know, ride through my mother's yard, tearing up the yard[,]" but Collins denied having driven the four-wheeler through the yard. The two men then began fighting with Collins hitting defendant four or five times. As a result, defendant fell into a newsstand and sustained several cuts to his lip and forehead.
The barber intervened and escorted Collins to the door. As Collins left, he turned to defendant and said, "`Don't be here when I get back.'" The barber helped defendant clean up, and defendant drove away in his truck.
After the fight, Collins went to the home of his girlfriend, Stephanie Hilliard. Collins was upset and told Hilliard that he had just been in a fight with defendant. He also told her that defendant "had threatened him and said that he would treat him like a deer if he saw him or his cousin in his mother's yard again." Hilliard understood the threat to mean that defendant would "[s]hoot him."
Meanwhile, defendant drove to his fiancée's apartment and retrieved a .44 magnum gun he had purchased for deer hunting. Defendant's fiancée, Alissa Wiggins, attempted to stop defendant from leaving, but he took the keys to her car and drove off in her car rather than in his truck. After defendant left her home, Wiggins called 911 and reported:
Yes, this is Alissa Wiggins, I was calling because my fiancé had left. Someone had hit him in the face and he was getting a hair cut [sic] up here by the river at this barber shop and someone came and hit him in the face. And he came home to get the gun and said he was going to kill him.
. . . .
. . . I think his name was Darryl Collins.
Defendant drove in the direction of his mother's house, taking a route that went past the barber shop. He saw Collins standing by his car in the barber shop parking lot. Defendant hit his brakes and fired three or four shots at Collins from the car and drove away.
Defendant threw the gun into the woods, drove to Wiggins' mother's house, and parked behind the house. According to State Bureau of Investigation Special Agent Lynn Gay, the car was not in "any kind of logical parking area. It was wedged in there between the house and deck." Wiggins picked defendant up in his truck and drove him to his own mother's house, where he was subsequently apprehended around 3:00 a.m. Law enforcement officials found the truck "hidden behind the residence" where it could not be seen from the road — all the other cars at the house were parked in the driveway.
The officers who responded to the shooting found Collins' body by his car "just outside of the door, like it had fallen out of the door, face down." The officers discovered two bags of a green leafy substance under the driver's seat, two wads of money totaling $2,380.00 in Collins' pocket, and two cell phones, one of which was lying near the body. The officers also found a 12-gauge shotgun locked in the trunk of Collins' vehicle, but they found no other gun near Collins.
On 13 October 2008, defendant was indicted for first degree murder. At trial, the medical examiner testified that Collins died from a single gunshot wound "to his back." The medical examiner explained that the bullet entered Collins' back on the right side and fractured a rib. From there, the bullet traveled through the lower lobe of Collins' right lung and diaphragm, struck the edge of the liver, and went into the sac that surrounds the heart. It injured the right side of the heart and exited the left chest. Collins suffered "bleeding and major damage to the internal organs" such that he could only have survived for a few seconds to a couple of minutes.
Defendant testified on his own behalf at trial. He admitted that he shot Collins, but claimed he did so in self defense. According to defendant, as Collins left the barber shop, he told defendant, "`Be here when I get back. I have something for you around the corner[,]'" which defendant took to mean "a gun, or what not." Defendant knew that Collins had a "pretty bad reputation" in the community and that he "had a bad reputation of toting a gun, because [he] knew [Collins] had knocked his kids [sic] momma's teeth out with a gun." He also knew Collins "ran with bad guys" and had been banned from the State Employees' Credit Union. Defendant explained that he was concerned because Collins knew where his mother and children lived, as well as where defendant and Wiggins drove, and he "knew that [he] had to get — you know, protect [himself] from him if [he] had another run in with him."
Defendant further explained that after he picked up his gun, he chose the "quickest" route to go check on his mother, which meant driving past the barber shop again. As he passed the barber shop, he saw Collins was back. Collins was standing outside his car, and defendant claimed that Collins appeared to have a gun in his hand. Defendant testified:
[A]t the time, I hit [sic] brakes, and I couldn't turn away, so I couldn't back up, and I was just panicked, and he was outside — like outside of the car with something. It seemed to be a gun, to me, in his hand, and I — at the time, turned, fired to there, because he had — I knew that he was a bad boy. I knew that he told me . . . if I was there when he come back that he had something for me. And so, I just — at the time I figured that I had to defend myself from him, because it wasn't no — I didn't think of no police, and he was there, and knew that he meant business.
When defendant was asked why he did not just drive away, defendant responded, "I figured that if I sped off, he had come back to get me, because he told me not to be there when I come back, if I sped off he was going to just chase me and do what he told me. . . . And was figuring he had a gun, so I didn't take any chances of speeding off and him following." Defendant said that he fired three times and sped away.
The jury found defendant guilty of second degree murder. The trial court sentenced defendant to a presumptive-range term of 189 to 236 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first argues that the trial court erred in allowing the State to introduce a photograph of Collins at the funeral home. Defendant contends that this photograph, introduced while Collins' mother was on the stand, had no probative value and was used solely to unfairly inflame the passions of the jury in violation of his federal and state constitutional rights.
Because defendant did not object to the admission of the photograph at trial, he asks that the Court review for plain error. As the Supreme Court has explained:
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the . . . mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)). To find plain error, the error must have been "so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).
We need not address whether the photograph was improperly admitted, because, in any event, defendant has failed to demonstrate that the alleged error rose to the level of plain error. Significantly, the jury declined to find defendant guilty of first degree murder, but instead found defendant guilty of second degree murder. As a result, defendant, in order to establish the existence of plain error, must demonstrate that in the absence of the alleged error, the jury would probably have convicted him of the lesser offense of voluntary manslaughter or found him not guilty.
Defendant's challenge to this particular photograph is essentially tied to Collins' mother crying on the stand when she saw it. Aside from claiming that the photograph was introduced only to inflame the passion of the jury and generally asserting that without the photograph "a different result was likely," defendant makes no argument as to why, had the photograph not been admitted, the jury would probably have acquitted him or convicted him of voluntary manslaughter.
Defendant has never disputed that he shot Collins. Under his theory of the case, the only real issue was whether he acted in self defense. We cannot conclude that, if the trial court had excluded the photograph, the jury would probably have determined that defendant acted in self defense. "The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands." State v. Norman, 324 N.C. 253, 259, 378 S.E.2d 8, 12 (1989).
Even assuming that defendant reasonably believed that Collins would eventually harm him or his family, a fear of death is not equivalent to a fear of imminent death. The Supreme Court has explained:
The term "imminent," as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." Black's Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase "about to suffer" interchangeably with "imminent" to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
Id. at 261, 378 S.E.2d at 13. In Norman, the evidence indicated that the defendant's husband, who was abusive and had threatened to kill her, was asleep when the defendant walked to her mother's house, picked up a gun, returned to where her husband slept, and shot him. Id. In holding that the imminence requirement had not been satisfied, our Supreme Court stated, "[t]he defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured." Id.
Here, when the barber ended the confrontation between defendant and Collins, the two men departed separately from the barber shop. Collins did not pursue defendant or continue to issue threats while defendant drove away. Like the defendant in Norman, however, defendant went to retrieve a gun and then chose to drive along a route that passed by the barber shop. His fiancée reported to police that defendant had said he was going to kill Collins. While defendant was still in the car, he shot three times at Collins, who was parked at the barber shop. The medical examiner established that defendant shot Collins in the back. In addition, a bystander, who witnessed the shooting, testified that Collins did not have a gun, and the investigating officers found no gun near Collins. Because there was no evidence indicating that defendant had a reasonable fear of imminent death or bodily harm and because of all the evidence pointing to defendant's guilt of second degree murder, we do not believe that the photograph and Collins' mother's reaction to it tilted the scales against defendant.
We note as well that although defendant contends that the photograph was introduced so that the prosecutor could refer to the image in making a grossly improper closing argument (discussed below), "the plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error." State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463 (emphasis added), appeal dismissed and disc. review denied, 363 N.C. 376, 679 S.E.2d 139 (2009). Because defendant did not object to the prosecutor's argument regarding the photograph, we must consider defendant's contentions regarding the closing argument separately from the admission of the photograph.
When, as in this case, a defendant fails to object during closing argument, "our review is limited to whether the argument was so grossly improper as to warrant the trial court's intervention ex mero motu. Under this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken. Defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Anthony, 354 N.C. 372, 427-28, 555 S.E.2d 557, 592 (2001) (internal citations, quotation marks, and brackets omitted), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct. 2605 (2002).
During the closing argument, the prosecutor held up the photograph of Collins at the funeral home and told the jury, "I can't express to you the agony that she [Collins' mother] feels about losing her child. This is how she had to see him when she went to see him in his funeral clothes." Defendant claims that this statement "was nothing short of an attempt to appeal to the jury's emotions and [was] improper."
This Court has stressed the principle that a jury's decision "`must be based solely on the evidence presented at trial and the law with respect thereto, and not upon the jury's perceived accountability to the witnesses, to the victim, to the community, or to society in general.'" State v. Brown, 320 N.C. 179, 195-96, 358 S.E.2d 1, 13 (quoting State v. Boyd, 311 N.C. 408, 418, 319 S.E.2d 189, 197 (1984), cert. denied, 471 U.S. 1030, 85 L. Ed. 2d 324, 105 S. Ct. 2052 (1985)), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). "Such arguments are not appropriate in the guilt phase of the trial, in which the jury's focus is properly upon guilt or innocence, not upon mercy, prejudice, pity or fear." Id. at 196, 358 S.E.2d at 13. Not all references which may evoke pity or prejudice will be grounds for reversal, however.
In State v. Alford, 339 N.C. 562, 571-72, 453 S.E.2d 512, 517 (1995), the defendant challenged similar comments made during the State's closing argument. The defendant argued that the trial court erred in failing to rule on the defendant's objection to the prosecutor's statement that "the victim was `[t]aken from two parents that care' and `who loved their son[,]'" and later erred by failing to intervene ex mero motu when the prosecutor argued "that it is a terrible thing `when you have to bury a child under these type[s] [of] circumstances.'" Id. at 571, 572, 453 S.E.2d at 517.
This Court rejected the defendant's argument, reasoning that "in the context of [the prosecutor's] entire argument, these comments did not attempt to make sympathy for the victim or his family the focus of the jury's deliberation. The statements did not imply that the jury should consider accountability to the victim's family or the community in reaching its verdict." Id. at 572-73, 453 S.E.2d at 517. Further, the Court emphasized that "the record provides ample evidence to support defendant's first-degree murder conviction notwithstanding these remarks; therefore, these arguments could have had no prejudicial effect on the verdict. In the absence of a showing of prejudice, improper jury arguments do not require reversal." Id. at 573, 453 S.E.2d at 517.
Here, as in Alford, the prosecutor's closing argument did not focus on sympathizing with Collins' family. The entire argument is approximately nine pages long in the trial transcript, and this challenged portion took up only about three lines. The prosecutor spent the bulk of her closing argument explaining to the jury that the facts of the case did not square with defendant's theory of self defense. In accordance with Alford, we conclude that the trial court did not err in failing to intervene ex mero motu at this point in the prosecutor's argument. See also Brown, 320 N.C. at 195, 196, 358 S.E.2d at 13 (where prosecutor stated that date of murder "`was the most important day in the life of [victim's] family. . . . The family of the victim has no one to turn to but you[,]'" holding that trial court did not err in "failing to recognize and correct ` ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.'" (quoting State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979))).
Defendant also challenges a second portion of the prosecutor's closing argument — the prosecutor's assertion that defendant "would just about say anything to save his neck." Although defendant did not object at trial, defendant contends on appeal that this statement improperly expressed the prosecutor's personal opinion as to the truth or falsity of defendant's testimony.
It is well established that it is "improper for a lawyer in his argument to assert his opinion that a witness is lying. He can argue to the jury that they should not believe a witness, but he should not call him a liar." State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967). Here, the prosecutor did not explicitly call defendant a liar, but rather highlighted the reason that the jury should question the credibility of defendant's testimony:
Now, His Honor may instruct you on interested witnesses. Well, folks, the person that has the most interest who had testified in this case is the defendant. And I would contend to you that he would just about say anything to save his neck. So, whatever he said, and whatever he testified to, I would ask you to scrutinize very, very closely, because he has the most to lose out of this case of anybody.
This argument was not grossly improper when "considered in `the context in which the remarks were made and the overall factual circumstances to which they referred.'" State v. Augustine, 359 N.C. 709, 725-26, 616 S.E.2d 515, 527-28 (2005) (holding remarks not grossly improper where prosecutor said, "The state didn't go for it. And you shouldn't go for one word that [witness] said from that stand.") (quoting State v. Jaynes, 353 N.C. 534, 559, 549 S.E.2d 179, 198 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 220, 122 S. Ct. 1310 (2002)), cert. denied, 548 U.S. 925, 165 L. Ed. 2d 988, 126 S. Ct. 2980 (2006). In any event, we do not believe, given the evidence, that the jury would have reached a different verdict in the absence of the challenged argument. See also State v. Sexton, 336 N.C. 321, 363, 444 S.E.2d 879, 903 (holding prosecutor's repeatedly telling jury defendant was liar and had lied to them was impermissible, but "considering all the facts and circumstances revealed in the record which showed overwhelming evidence against defendant, defendant has failed to show that the error was prejudicial"), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429, 115 S. Ct. 525 (1994). We, therefore, hold that the trial court did not err in failing to intervene during the prosecutor's closing argument.
Finally, defendant argues that the trial court erred in the sentencing phase of the trial by declining to find any mitigating factors despite defendant's having presented evidence that defendant has a good reputation in the community, supports his family, has a positive employment history, and is gainfully employed. According to defendant, the trial court was required to find his proposed mitigating factors because evidence of their existence was both uncontradicted and manifestly credible. See State v. Pigott, 331 N.C. 199, 214, 415 S.E.2d 555, 564 (1992) (noting that "when evidence of the existence of a statutory mitigating factor is both uncontradicted and manifestly credible, the trial court's failure to find that factor must be deemed error").
This principle does not apply to this case, however, because the trial court imposed a presumptive-range sentence. N.C. Gen. Stat. § 15A-1340.16(c) (2009) (emphasis added) specifically provides that the trial court must make "findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences. . . ." Because the trial court, in this case, "entered a sentence within the presumptive range, the court did not err by declining to formally find or act on defendant's proposed mitigating factors, regardless whether evidence of their existence was uncontradicted and manifestly credible." State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357, 363, disc. review denied, 361 N.C. 571, 651 S.E.2d 225 (2007). See also State v. Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 786 (2006) ("Defendant's notion that the court is obligated to formally find or act on proposed mitigating factors when a presumptive sentence is entered has been repeatedly rejected.").
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).