Opinion
No. COA12–1557.
2013-08-6
STATE of North Carolina v. Jerome Thomas HOLLY.
Attorney General Roy Cooper, by Special Deputy Attorney General M .A. Kelly Chambers, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant appellant.
Upon writ of certiorari to review judgments entered 15 June 2012 by Judge G. Wayne Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 22 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General M .A. Kelly Chambers, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant appellant.
McCULLOUGH, Judge.
Jerome Thomas Holly (“defendant”) appeals from his convictions for one count of assault with a deadly weapon inflicting serious injury, one count of attempted robbery with a dangerous weapon, and possession of a firearm by a felon. On appeal, defendant argues (1) the trial court plainly erred in admitting certain testimony by a police detective addressing defendant's claim of self-defense; (2) the trial court failed to intervene ex mero motu and prohibit improper remarks during the State's closing argument; and (3) defendant was improperly tried before two different judges during two sessions of court. We find no error in defendant's trial.
I. Background
At trial in the present case, the State presented evidence tending to show the following: On 10 January 2011, Dustin Wilborn (“Wilborn”) contacted his good friend Anthony Norris (“Norris”) and inquired about purchasing a pound of marijuana for $900.00. Norris in turn spoke with a dealer named “TJ,” with whom Wilborn and Norris had dealt on prior occasions, about the proposed marijuana purchase. Norris then drove to Wilborn's residence and picked up Wilborn, and the two proceeded to Richmond Street in Burlington, North Carolina, to meet TJ.
As Wilborn and Norris approached TJ's location on Richmond Street, they observed TJ walking with another man, later identified as defendant. Neither Wilborn nor Norris had met defendant before. Defendant was an experienced drug dealer who had been selling drugs for over ten years. Both TJ and defendant got into Norris's vehicle with Norris and Wilborn, at which point TJ informed Wilborn that he would be purchasing the marijuana from defendant. Defendant then directed Norris to drive to a particular apartment complex. At one point, on the way to the apartment complex, Norris felt that “things seemed fishy,” so he pulled over and tried to back out of the deal, but defendant insisted that Norris continue driving to the apartment complex.
Upon arriving at the apartments, Norris parked his vehicle. Defendant stated to Wilborn that he would need Wilborn's money before providing any marijuana. Wilborn refused to give defendant any money until he had the marijuana. Defendant then stated he would go talk to his man and see what he could do, and defendant got out of the vehicle. Defendant testified at trial that there was no “man,” but that he had made that statement to conceal the fact that he was the actual supplier of the drugs.
Defendant disappeared inside the apartment complex then returned to Norris's vehicle a short while later. Defendant again stated that he could not provide the marijuana without first obtaining the money from Wilborn. Wilborn observed that defendant appeared “really anxious” and told Wilborn continuously to just give him the money. Wilborn steadily refused to give defendant any money until defendant had given Wilborn the drugs. Defendant then questioned whether Wilborn had the money with him. Tucked inside of his sock, Wilborn was carrying a stack of nine $100 bills taped together. Wilborn pulled out the stack, handed one of the $100 bills to defendant, and after inspecting the bill, defendant returned the $100 bill to Wilborn. Wilborn then offered to give defendant the money if defendant would first produce half of the marijuana. Defendant said “all right,” exited the vehicle, disappeared inside the apartment complex, and again returned a short while later. Defendant stated that his man could see Wilborn and Norris and thought they “looked like cops.” Defendant then stated that Wilborn had to give him the money first. Wilborn testified that he continuously refused to give defendant his money because he was concerned that defendant would take his money and run. Wilborn then tried to call the deal off. Defendant told Wilborn to “hold on,” and defendant again exited the vehicle and disappeared into the apartment complex.
After a short time, defendant again returned to the vehicle and produced a “dime bag” of marijuana as a sample for Wilborn. Wilborn looked over the bag but still refused to turn his money over to defendant. Wilborn observed that defendant appeared “more anxious or frustrated” at this point. Defendant then directed Norris, Wilborn, and TJ to drive to the Amko convenience store on Tucker Street, where he would meet them with the drugs.
Approximately 25–30 minutes later, defendant arrived at the Amko in a small gray sport utility vehicle. Once defendant arrived, TJ exited Norris's vehicle and walked over to defendant's vehicle to speak with defendant. While TJ was speaking with defendant, Wilborn stated to Norris that something didn't feel right, and he pulled out a knife, showed it to Norris, and put the knife back in his pocket. TJ returned to Norris's vehicle a short while later and indicated that Wilborn needed to go speak with defendant. Wilborn exited Norris's vehicle and approached defendant's car, and defendant instructed several times that Wilborn get inside defendant's vehicle. After Wilborn got inside defendant's vehicle, defendant pulled his vehicle forward towards one of the parking lot exits. Norris testified that he thought it was odd that defendant moved his vehicle closer towards one of the exits of the convenience store parking lot.
Inside defendant's vehicle, Wilborn asked defendant to show him the marijuana. Defendant handed to Wilborn a heavy object wrapped inside several yellow or white grocery bags and tied with a large knot at the top. Wilborn could not see inside the bags, but he noticed the object inside was heavy, weighing much more than one pound, and had sharp corners. Wilborn believed the object wrapped inside the bags was a book. To determine what was inside the bags, Wilborn pulled out one of two pocketknives that he was carrying. The pocketknife resembled a box cutter and featured a single locked blade requiring its user to push down on a button in order to open and close the blade. Upon producing the knife, Wilborn testified that defendant asked him if he was going to rob defendant, to which Wilborn laughed and said no. Wilborn testified that before he had time to open the knife's blade, defendant “jerked” the package out of Wilborn's hands, threw it in the backseat, and pulled out a gun. Wilborn testified that defendant then stated to Wilborn, “[Y]ou gonna give me your money.” Wilborn testified that he was scared for his life and was pleading with defendant not to shoot him. Wilborn then reached down his leg with his left hand to pull the money out of his sock and tried to simultaneously open the car door with his right hand to escape. As Wilborn tried to fall out of defendant's vehicle, defendant fired his gun at Wilborn, striking him in the collarbone. Defendant pushed Wilborn completely out of his vehicle and sped off out of the parking lot with his tires squealing. Norris heard the gunshot, saw Wilborn tumble out of defendant's vehicle and hit the ground, and went to Wilborn's aid. Wilborn told Norris he could not move, and Norris observed that Wilborn was pale and cold.
John Dodson (“Dodson”), who worked in a building adjacent to the Amko convenience store, also heard the gunshot as he was leaving work. Dodson testified that following the gunshot, he heard “tires squealing” and observed a gray sport utility vehicle leaving the scene. Less than one minute later, Dodson walked over to the convenience store and observed Wilborn lying on the ground in a pool of blood. Dodson testified that Wilborn kept saying he could not feel his legs and that he did not want to die. Dodson testified that Wilborn was pale and that, by the time the paramedics arrived, Wilborn was almost blue.
Private First Class Anamaet (“Private Anamaet”) with the Burlington Police Department was the first officer to arrive at the scene and observed Wilborn lying in the parking lot. Private Anamaet observed that Wilborn was pale, was “in and out of consciousness[,]” and appeared to be “barely clinging to life.” Alamance County paramedic Adam Barker (“Barker”) testified that when he arrived at the scene, he observed Wilborn lying on his back in a large puddle of blood and that Wilborn was very pale and clammy and was having trouble breathing. Barker confirmed that Wilborn had been shot above the collarbone between the neck and the shoulder. Barker further observed that Wilborn had no motor or sensory function in his legs or toes through his torso, and Barker testified that Wilborn remained in critical condition during “the entire time” Barker was treating him.
In light of Wilborn's condition, Detective Jeff Kology (“Detective Kology”) of the Burlington Police Department rode in the ambulance to the hospital with Wilborn in order to obtain a statement from Wilborn in case Wilborn died en route. Detective Kology tried to ask Wilborn what had happened, to which Wilborn uttered, “It was a big black guy who said, give me your money, give me your money.” Wilborn then lost consciousness. After paramedics again stabilized Wilborn, he stated to Detective Kology that the incident “was over weed.” Detective Kology was unable to get any further clarification from Wilborn.
Once at the hospital, Detective Kology collected Wilborn's clothing. Detective Kology found in Wilborn's clothing a black-handled lock blade pocketknife with a deer scene depicted on it. Detective Kology testified that the blade of the pocketknife was closed when he found it in Wilborn's clothing. Detective Kology also discovered and collected nine $100 bills, eight of which were taped together and one of which was loose, in Wilborn's sock.
Patrolman First Class Victoria Underwood (“Officer Underwood”) of the Burlington Police Department was one of several police officials who arrived at the scene at the Amko convenience store. Officer Underwood recovered a bloodstained pocketknife or box cutter with a black handle that was lying on the ground next to Wilborn. Officer Underwood testified that she could not remember whether the box cutter's blade was open or closed when she discovered it at the scene, but she further explained that she leaves evidence as she finds it, and the box cutter's blade was closed when presented at trial.
Two days after the shooting, on 12 January 2011, defendant was located and arrested. Defendant was interviewed jointly by Detective Kology and his partner, Detective Steven Reed (“Detective Reed”), at the time of his arrest. Defendant waived his Miranda rights and agreed to speak with the detectives. In his statement to the two detectives, defendant admitted shooting Wilborn during an attempted drug sale, but defendant maintained he did so because Wilborn had pulled out a knife and swung at him. Defendant informed the detectives of the location of the gun, a “five shooter” .38 caliber revolver. Officers recovered the gun and observed the gun contained four rounds and one spent shell casing.
Defendant testified in his own defense at trial. Defendant stated that on 10 January 2011, his younger cousin, TJ, had called and asked whether defendant would be willing to sell him a pound of marijuana for Norris. Defendant testified that he had seen Norris a “[c]ouple of times” prior and was familiar with Norris. Defendant stated that after a second telephone call from TJ, he agreed to sell the marijuana.
Defendant testified that Norris and Wilborn picked up TJ and him on Richmond Street, upon which defendant got into the vehicle behind Norris, the driver, and TJ got into the vehicle in the rear passenger seat behind Wilborn. Defendant testified that after being introduced to Norris and Wilborn by TJ, defendant observed that Wilborn was acting strangely, to which Wilborn replied that he had been doing cocaine all night. Defendant testified that he directed Norris and Wilborn to a particular apartment complex that was adjacent to another apartment complex where he had previously parked his vehicle because he did not want Norris and Wilborn to know that he was the actual supplier of the drugs.
Defendant testified that upon arriving at the apartment complex, Wilborn refused to turn his money over to anyone and inquired about the quality of marijuana defendant was selling. Defendant stated that he then went to his vehicle to retrieve a sample of the marijuana for Wilborn, and he also grabbed his gun because Wilborn was acting “erratic[ally].” Defendant testified that after inspecting the sample, Wilborn asked defendant to split up the pound and sell him only a $900 amount, so defendant returned to his vehicle to measure out a $900 quantity of marijuana. Defendant testified that when he returned to Norris's vehicle, Wilborn acted as if he did not want to complete the deal, so defendant asked him to see the money, upon which Wilborn produced a single $100 bill pulled from a stack of taped $100 bills in his sock. Defendant inspected the $100 bill and returned it to Wilborn. Defendant testified that Wilborn then indicated he did not feel comfortable buying the drugs at the apartment complex, so defendant suggested they complete the transaction at the convenience store on Tucker Street. Defendant testified that Norris, Wilborn, and TJ agreed, and after defendant provided the group with instructions on how the deal would take place at the convenience store, Norris, Wilborn, and TJ left the apartment complex.
Defendant testified that when he arrived at the convenience store, TJ got into his vehicle and informed defendant that Wilborn did not want to give anyone his money. Defendant testified that TJ returned to Norris's vehicle, and Wilborn then came over and got into the front passenger seat of defendant's vehicle. Defendant testified that Wilborn asked to see the marijuana, and defendant then handed the drugs to Wilborn. Defendant stated that the marijuana was packaged in a clear plastic Ziplock bag. Defendant stated that he pulled his car near one of the parking lot exits to let other cars pass into the parking lot area. Defendant testified that Wilborn then pulled out a knife, and defendant reacted by producing his gun and asked Wilborn if he was trying to rob him. Defendant testified that Wilborn stated he wasn't going to rob him. Defendant testified that he next noticed Wilborn open the passenger door, so defendant grabbed the marijuana from Wilborn and asked Wilborn if he was trying to run off with the drugs, to which Wilborn replied no. Defendant then insisted that they “just do this deal.”
Defendant testified that Wilborn then stated he had the money and reached down his leg toward his sock “like he was getting the money,” and defendant heard a click. Defendant testified that Wilborn then reached up with his open pocketknife and swung at defendant. Defendant testified that he immediately fired his gun at Wilborn and Wilborn fell into the seat facing him. Defendant testified that he then pushed Wilborn out of the vehicle and drove off. Defendant testified that as he drove away from the convenience store, he tossed the gun into a nearby creek. Defendant testified that he did not try to rob Wilborn and had no reason to rob him.
In connection with these events, defendant was charged with and indicted for assault with a deadly weapon with intent to kill inflicting serious injury, assault inflicting serious bodily injury, attempted armed robbery, and possession of a firearm by a felon. Defendant was tried by a jury beginning 4 June 2012 during the Regular Criminal Session of Alamance County Superior Court, Judge Wayne Abernathy (“Judge Abernathy”) presiding. On Friday, 8 June 2012, Judge Abernathy was excused from the proceedings due to illness, and Judge Robert F. Johnson (“Judge Johnson”) then presided over the trial, which resumed with the State's closing argument. Following the State's closing argument, Judge Abernathy returned and presided over the remainder of defendant's trial.
On 11 June 2012, the jury returned verdicts finding defendant guilty of assault with a deadly weapon inflicting serious injury, assault inflicting serious bodily injury, attempted armed robbery, and possession of a firearm by a felon. On 15 June 2012, Judge Abernathy arrested judgment on the verdict for assault inflicting serious bodily injury. Defendant was then sentenced to 44–62 months' imprisonment for the assault with a deadly weapon inflicting serious injury conviction, followed by a consecutive term of 20–24 months' imprisonment for the possession of a firearm by a felon conviction, and a concurrent term of 111–143 months' imprisonment for the attempted armed robbery conviction. Defendant gave written notice of appeal from the trial court's judgments on 18 June 2012.
We acknowledge the State's contention that defendant's notice of appeal is deficient pursuant to Rule 4(b) of our Rules of Appellate Procedure in that it does not specifically designate the judgments being appealed from and the court to which appeal is being taken. SeeN.C.R.App. P. 4(b) (2013) (“The notice of appeal [in a criminal action] ... shall designate the judgment or order from which appeal is taken and the court to which appeal is taken....”). Here, defendant's notice of appeal states only that defendant gives notice of appeal “in the above-entitled action .” Recognizing the deficiency, defendant filed a petition for writ of certiorari with this Court. Because defendant's notice of appeal does contain the specific case numbers that correspond with the judgment he is now appealing, thereby making it clear to this Court which judgments are being appealed from, we grant defendant's petition for writ of certiorari and reach the merits of his appeal. SeeN.C.R.App. P. 21 (2013).
II. Admission of Testimony By Police Detective
In his first argument on appeal, defendant contends the trial court plainly erred in admitting certain testimony by Detective Reed. Specifically, defendant challenges the following exchange:
Q (By [Prosecutor] ) Okay. Now, Detective Reed, in your—in this period of time that [defendant gave his] statement, did, in fact, was Mr. Holly in your mind truthful to you?
A No.
Q Okay. Can you point to specifically incidents where you feel he was not being truthful to you?
A When they were at the store he stated that the victim had reached in his sock to grab his money and then had pulled his hand back. At this time he said he displayed his firearm and said, look, we're going to do this. He did not see a knife at that point. He specifically stated that he was—the victim was going for his money and then pulled his hand back.
By displaying the firearm at that point without seeing a knife, it appeared that he either was trying to force a transaction or it was armed robbery.
Q All right. At some time later did he, let's say, edit or give a different version of what happened?
A Yes, he did. He then stated that he had saw (sic) a knife. Stated that he didn't know if the blade was open.
....
Q (By [Prosecutor] ) All right.... Detective Reed— Detective, in your mind that did not sound truthful; is that correct?
A It did not.
(Emphasis added.) Defendant argues on appeal that Detective Reed's testimony improperly commented on defendant's credibility in his claim of self-defense and improperly gave an opinion addressing defendant's guilt for the attempted armed robbery charge. Defendant argues the jury likely gave significant weight to the detective's testimony on these critical issues, and therefore, absent the challenged testimony, the jury likely would have reached a different verdict.
Defendant did not object to the challenged testimony at trial. Nonetheless, he specifically contends on appeal that the trial court's admission of the challenged testimony constituted plain error.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4) (2013). Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ 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.1982)).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal quotation marks and citations omitted).
In the present case, prior to the challenged testimony elicited during direct examination of Detective Reed, defendant elicited testimony from Detective Kology on cross-examination to the effect that Detective Kology believed that defendant was being honest when defendant gave his initial statement to the officers—the same subject of the testimony given by Detective Reed now being challenged by defendant on appeal. In addition, subsequent to the challenged testimony elicited on direct examination of Detective Reed, during cross-examination of Detective Reed, defendant again questioned Detective Reed about his opinion concerning defendant's truthfulness in giving his initial statement to the officers. Thus, although the testimony being directly challenged by defendant on appeal was elicited by the State during direct examination of Detective Reed, testimony of the same or similar import was elicited by defendant on cross-examination of both Detective Reed and Detective Kology. Defendant did not object to or seek to strike this testimony from the record. Indeed, the record reveals defendant sought to place his cooperation and truthfulness in issue before the jury. Defendant cannot now complain about the admission of this testimony on appeal. See State v. Quick, 329 N.C. 1, 31, 405 S.E.2d 179, 197 (1991) (“Because (1) the court sustained defendant's objection, (2) defendant failed to move to strike the objectionable testimony, (3) defendant himself elicited similar evidence on cross-examination, and (4) the same evidence came in later without objection, this assignment of error is overruled.”).
Furthermore, the challenged testimony given by Detective Reed did not improperly comment on defendant's guilt as to the armed robbery charge. The mere fact that Detective Reed used the term “armed robbery” in his testimony does not alone convey an opinion of defendant's guilt of that offense. Indeed, the context of Detective Reed's testimony reveals his belief that the factual circumstances defendant had described in his initial statement could have constituted the offense of armed robbery, or they could have been indicative of defendant's intent in forcing a drug transaction. Detective Reed's testimony is not tantamount to his opinion that defendant was guilty of that offense. Defendant's arguments on this issue are without merit.
III. Prosecutor's Closing Argument
In his second argument on appeal, defendant contends the trial court failed to intervene ex mero motu and prohibit improper remarks during the State's closing argument. Defendant argues that the prosecutor's remarks during closing argument tended to disparage the defense attorney and reflected the prosecutor's belief that defendant had lied when giving his trial testimony. Defendant argues that the prosecutor's improper remarks were prejudicial in that they likely caused the jury to lose confidence in the defense attorney's theory of the case and to give more weight to the State's theory of the case.
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted). “In order to carry this burden, [the] defendant must show that the prosecutor's comments so infected the trial that they rendered his conviction fundamentally unfair.” State v. Call, 349 N.C. 382, 420, 508 S.E.2d 496, 519 (1998).
Here, defendant takes issue with two types of comments made by the prosecutor during closing argument. First, defendant argues the prosecutor disparaged the defense attorney by arguing to the jury that the defense's theory of the case was “stupid,” “an insult to [the jury's] intelligence,” “silly,” and “nonsense.” Second, defendant argues the prosecutor improperly commented on defendant's credibility by characterizing defendant's testimony as a “fantasyland story” and a “fabrication” and by asserting to the jury that defendant took the witness stand and lied.
“It is well established that the jury arguments of trial counsel are left largely to the control and discretion of the trial court, and counsel will be granted wide latitude in the argument of hotly contested cases.” State v. Rivera, 350 N.C. 285, 291, 514 S.E.2d 720, 723 (1999). Nevertheless, “a trial attorney may not make uncomplimentary comments about opposing counsel, and should ‘refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.’ “ State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994) (quoting State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967)).
This Court shall not tolerate, and our trial courts must not tolerate, comments in court by one lawyer tending to disparage the personality or performance of another. Such comments tend to reduce public trust and confidence in our courts and, in more extreme cases, directly interfere with the truth-finding function by distracting judges and juries from the serious business at hand.
Rivera, 350 N.C. at 291, 514 S.E.2d at 723. In addition, “[i]t 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.” Miller, 271 N.C. at 659, 157 S.E.2d at 345.
In State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002), our Supreme Court expressly elaborated on the issue of improper closing arguments and the professional obligations of counsel. On this point, our Supreme Court emphasized the following pertinent rules and guidelines for closing arguments in a criminal trial:
“During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record.... An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.”
N.C.G.S. § 15A–1230(a) (1999)....
....
In considering the professional obligation of counsel, we call attention to Rule 12—“Courtroom decorum”—in the General Rules of Practice for the Superior and District Courts, which provides, in pertinent part: “Abusive language or offensive personal references are prohibited,” “[t]he conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness,” and “[c]ounsel are at all times to conduct themselves with dignity and propriety.” Gen. R. Pract. Super. and Dist. Ct. 12, paras. 7, 8, 2, 2002 Ann. R. N.C. 10.... Rule 3.4(e) [of the Rules of Professional Conduct of the North Carolina State Bar] ... requires that a lawyer shall not,
“in trial, ... state a personal opinion as to ... the credibility of a witness, ... or the guilt or innocence of an accused.”
R. Prof. Conduct N.C. St. B. 3.4(e), 2002 Ann. R. N.C. 630.
Id. at 127–28, 558 S.E.2d at 104.
In light of the foregoing, we agree with defendant that certain of the prosecutor's remarks in the present case were improper. Specifically, the prosecutor's remarks that certain of defense counsel's arguments were “stupid,” “an insult to [the jury's] intelligence,” “silly,” and “nonsense” tended to express the prosecutor's personal belief as to the truth or falsity of defendant's evidence and were entirely dismissive of defense counsel's effort to put on a defense for defendant. In addition, the prosecutor's assertion to the jury that defendant took the stand and lied is tantamount to outright calling him a liar, which was clearly improper.
Nonetheless, we cannot say the prosecutor's improper comments during closing argument were unduly abusive or so grossly improper that they required the trial court's intervention absent objection by defendant or so infected the trial that they rendered his conviction fundamentally unfair. The prosecutor's closing argument as a whole was proper, as it presented to the jury the State's evidence and theory of the case and demonstrated why defendant's evidence, consisting entirely of his own testimony, was not credible. In addition, despite arguing to the jury that defendant was lying on the witness stand, the prosecutor subsequently informed the jury that it was, in fact, their duty to determine the credibility of the witnesses.
Further, during its final charge to the jury, the trial court properly instructed the jury on its role in evaluating the credibility of every witness, including defendant, and the weight to be given to that testimony. The trial court likewise instructed the jury that after hearing all the evidence and the arguments of counsel, “[i]f your recollection of the evidence differs from that of the attorneys, you are to rely solely upon your recollection.” In light of the State's closing argument viewed as a whole, the focus throughout the case on the truthfulness of both defendant and the victim, and the proper instructions given to the jury by the trial court prior to deliberations, we cannot say the prosecutor's challenged comments rendered defendant's convictions fundamentally unfair; therefore, the trial court did not err in failing to intervene ex mero motu to prohibit the prosecutor from making the improper remarks. See State v. Campbell, 359 N.C. 644, 679, 617 S.E.2d 1, 23 (2005) (noting that, even if the prosecutor's comments during closing argument were improper, “the jury instructions informed the jury not to rely on the closing arguments as their guide in evaluating the evidence[,]” and holding that, when “viewed as a whole, and in light of the wide latitude afforded the prosecution in closing argument, the prosecutor's challenged arguments did not so infuse the proceeding with impropriety as to impede defendant's right to a fair trial”). Thus, we are unable to agree with defendant that the prosecutor's comments entitle defendant to a new trial in the present case.
IV. Organization of Trial and Substitution of Trial Court Judge
In his final argument on appeal, defendant contends that he was improperly tried before two different judges during two sessions of court, in violation of statutory mandate and the law of this State. “ ‘When a trial court acts contrary to a statutory mandate, the defendant's right to appeal is preserved despite the defendant's failure to object during trial.’ “ State v. Braxton, 352 N.C. 158, 177, 531 S.E.2d 428, 439 (2000) (quoting State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000)).
Pursuant to N.C. Gen.Stat. § 15A–1224(b) (2011):
If by reason of absence, death, sickness, or other disability, the judge before whom the defendant is being or has been tried is unable to perform the duties required of him before entry of judgment, and has not ordered a mistrial, any other judge assigned to the court may perform those duties, but if the other judge is satisfied that he cannot perform those duties because he did not preside at an earlier stage of the proceedings or for any other reason, he must order a mistrial.
Id. Here, defendant asserts this statute was not complied with in the present case in two ways. Defendant's first argument addresses the propriety of the substitution of Judge Johnson for Judge Abernathy during his trial. Defendant argues that Judge Johnson was not “assigned” to preside over criminal sessions of court in Alamance County during the session in which defendant was tried. Defendant contends that Judge Johnson's commission only permitted him to preside over a “Special Session of Superior Court” beginning 8 June 2012, thereby prohibiting his substitution for Judge Abernathy during the regular criminal session of court. Defendant also contends that because Judge Johnson was assigned to “an entirely different session of court,” he was improperly tried during two sessions of court. Defendant further contends that because Judge Abernathy returned to continue presiding over his trial, Judge Abernathy was not “unable to perform the duties required of him before entry of judgment,” as required in order to trigger the provisions of N.C. Gen.Stat. § 15A–1224(b). Defendant's second argument addresses Judge Johnson's ability to continue presiding over his trial. Defendant argues that Judge Johnson was required to order a mistrial instead of proceeding to hear the State's closing argument because Judge Johnson could not properly perform his duties without having been present during both the presentation of evidence and defendant's closing argument.
First, we note that the plain language of N.C. Gen.Stat. § 15A–1224(b) allows another judge to “perform those duties” that the presiding judge is unable to perform due to sickness or other disability. The statute in no way requires the presiding judge to be fully debilitated for the remainder of the trial in order for another judge to properly step in and perform judicial duties during a portion of the trial. In addition, the fact that the presiding judge is subsequently able to return and continue performing his judicial duties for the remainder of the trial does not render a substitution performed under this statute improper. Thus, because Judge Abernathy returned on the afternoon of 8 June 2012 to continue performing his judicial duties in defendant's trial does not render Judge Johnson's performance of those duties in his absence improper under the statute.
Second, despite defendant's reliance on the master calendar for superior court sessions and the assignment of judges thereunder, Judge Johnson obtained a special commission to preside over the pending mixed criminal and civil session of superior court in light of Judge Abernathy's illness. By his special commission, Judge Johnson was “assigned” to preside over civil and criminal superior court cases in Alamance County on 8 June 2012 during Judge Abernathy's absence. The requisite provisions of N.C. Gen.Stat. § 15A–1224(b) allowing Judge Johnson to perform those judicial duties required during defendant's trial in light of Judge Abernathy's illness were properly complied with in the present case.
Furthermore, we find defendant's argument that Judge Johnson's commission created two separate sessions of court to be completely without merit. We agree with defendant that “this Court has held that ‘an order of the superior court, in a criminal case, must be entered during the term, during the session, in the county and in the judicial district where the hearing was held.’ “ State v. Trent, 359 N.C. 583, 585, 614 S.E.2d 498, 499 (2005) (quoting State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984)). However, such is not the case here, where the only factual circumstance supporting defendant's argument that he was tried during two separate sessions of court is the wording of Judge Johnson's commission assigning Judge Johnson to preside over civil and criminal cases in Alamance County on 8 June 2012 due to Judge Abernathy's illness. Judge Johnson's commission specifically stated:
A Special Session of Superior Court is hereby set for Alamance County for the trial of Criminal and Civil cases to begin June 8, 2012, and continue One Day, or until the business is completed. The Honorable Robert F. Johnson, one of the Regular Judges of the Superior Court, is commissioned and assigned to preside over this session.
Defendant argues that because Judge Johnson's commission declares a “Special Session of Superior Court” commencing on 8 June 2012, Judge Johnson was assigned to preside over a different session of court than was Judge Abernathy, thereby causing defendant to be tried in two entirely different sessions of court.
Despite defendant's attempt to contort the language of Judge Johnson's commission, we fail to see how the language of the commission created two entirely different sessions of court. Indeed, nothing in the record before us indicates that Judge Johnson presided over an entirely separate session of superior court. To the contrary, the record indicates Judge Johnson was commissioned and assigned to Alamance County Superior Court on 8 June 2012, specifically to substitute for Judge Johnson during the ongoing criminal and civil session of superior court.
Finally, the record in no way reveals that Judge Johnson could not perform the judicial duties required in presiding over the State's closing argument in this case. As elaborated above, the proper bounds of a prosecutor's closing argument are well established in this state. Furthermore, as we previously stated, defendant was not prejudiced by the State's improper remarks during closing argument, especially in light of his failure to object at the time the statements were made. Thus, defendant has shown no way in which Judge Johnson could not perform his duties properly in presiding over the State's closing argument.
In sum, this is not a case in which defendant's judgment was entered during a separate session of court in violation of the principle articulated by our Supreme Court in Trent and Boone, despite his attempt to construe the issue as such. In addition, none of the statutory provisions governing the organization of the trial court or the substitution of one judge for another during the same session of superior court were violated in the present case. Rather, the organization of defendant's trial was entirely proper, and defendant's arguments on this issue are without merit.
V. Conclusion
We hold the trial court did not err, let alone commit plain error, in admitting the challenged portions of Detective Reed's testimony. Defendant elicited testimony of the same or similar import during cross-examination of both Detective Reed and Detective Kology, thereby placing his truthfulness when giving his initial statement to the officers in issue before the jury. In addition, Detective Reed's testimony did not improperly give an opinion as to defendant's guilt of the armed robbery charge.
We further hold defendant was not prejudiced by the prosecutor's improper comments during closing argument in light of the State's closing argument as a whole addressing the evidence and issues presented during trial and the trial court's proper instructions to the jury. We nonetheless advise the prosecutor involved in the present case to refresh himself on the proper bounds of closing argument in a criminal trial.
Finally, we hold the trial court committed no error in the organization of defendant's trial and in the substitution of trial court judges during the proceedings. Defendant received a fair trial free from prejudicial error.
No error. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).