Opinion
No. COA12–710.
2013-02-19
STATE of North Carolina v. Gregory Andrew LUCAS, Defendant.
Irons & Irons, P.A., by Ben G. Irons, II., for defendant-appellant. Roy Cooper, Attorney General, by Karissa J. Davan, Assistant Attorney General, for the State.
Appeal by defendant from judgment entered 8 March 2012 by Judge Carl R. Fox in Warren County Superior Court. Heard in the Court of Appeals 28 January 2013. Irons & Irons, P.A., by Ben G. Irons, II., for defendant-appellant. Roy Cooper, Attorney General, by Karissa J. Davan, Assistant Attorney General, for the State.
MARTIN, Chief Judge.
Defendant Gregory Andrew Lucas was charged with assault inflicting physical injury by strangulation, assault with a deadly weapon, and assault on a government official. He appeals from the judgment entered upon a jury verdict finding him guilty of simple assault. We find no error in his trial.
The State's evidence at trial tended to show the following: on 14 June 2011, defendant went to the residence of his neighbor, Reginald M. Douglas , and apparently threatened to kill him. Defendant was admittedly intoxicated and angry with Mr. Douglas at the time. Mr. Douglas testified that he told defendant to leave twice; defendant left, but returned after a few minutes each time. Upon returning a third time, defendant struck Mr. Douglas with an object that he described as a “black jack or a long cell phone” and attempted to strangle him. In response, Mr. Douglas hit defendant with a two-by-four which was lying near him at the time, once in the side and once in the head.
Although both briefs refer to Mr. Douglas as “Fred Douglas” or “Fredrick Douglass,” the record and transcript refer to the witness as “Reginald M. Douglas,” which we adopt for consistency.
Officer Lawrence Skinner of the Norlina Police Department was called to the scene to assist EMS responders. While investigating the incident, Officer Skinner told defendant that he would go get his flashlight and come right back. After the officer took a few steps, defendant allegedly jumped on him from behind and “started to go for [his] weapon.” Officer Skinner subdued defendant and sent him to Maria Parham Hospital for medical assistance. In performing his investigation, Officer Skinner never found the weapon allegedly used by defendant to strike Mr. Douglas.
Hattie Harris, another of defendant's neighbors, testified on defendant's behalf. Ms. Harris testified that defendant did not touch Officer Skinner, but rather was “waddling fast, and he reached for Officer Skinner,” who knocked defendant backwards.
The jury unanimously found defendant not guilty of assault inflicting physical injury by strangulation with regard to Mr. Douglas, but found him guilty of the lesser included offense of simple assault. The jury also found defendant not guilty of assault with a deadly weapon as well as the lesser included offense of simple assault with regard to Mr. Douglas. The jury was unable to reach a verdict on the charge of assault on a government official with regard to Officer Skinner, and therefore, the court declared a mistrial as to that charge. Defendant was sentenced to a term of thirty days in the custody of the Sheriff of Warren County.
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On appeal, defendant contends the trial court erred when it failed to intervene ex mero motu during the State's closing argument. Defendant argues that the prosecutor improperly (I) vouched for the credibility of one of the State's witnesses during her closing argument and (II) referenced matters outside of the record.
We review “alleged improper closing arguments that fail to provoke timely objection from opposing counsel” for “whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). Thus, we must determine if counsel's remarks during closing argument “strayed far enough from the parameters of propriety” so that the trial court “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.” Id. In the present case, we conclude her remarks were not such as to invoke the court's intervention.
I.
Under N.C.G.S. § 15A–1230(a), “an attorney may not become abusive, inject his personal experiences, [or] express his personal belief as to the truth or falsity of the evidence ....“ N.C. Gen.Stat. § 15A–1230(a) (2011). However, “prosecutors are allowed to argue that the State's witnesses are credible.” State v. Augustine, 359 N.C. 709, 725, 616 S.E.2d 515, 528 (2005), cert. denied,58 U.S. 925, 165 L.Ed.2d 988 (2006).
Defendant contends the prosecutor expressed personal opinions by improperly vouching for the credibility of the State's witness, Mr. Douglas, by characterizing Mr. Douglas' testimony regarding how the assault occurred as “completely honest” and describing him as “completely forthcoming this whole time.” The prosecutor began her closing argument by stating “[t]his case boils down to credibility.... It's all about the credible evidence that you heard from the stand.” She went on to acknowledge that Mr. Douglas had a prior record, including a prior assault, but noted that Mr. Douglas' statement “was consistent with what his testimony was here on the stand today.” It was within this context that the prosecutor's remarks characterizing Mr. Douglas as “honest” were made. While these remarks may have been improper under N.C.G.S. § 15A–1230(a), when viewed in the context in which they were made, we believe counsel's statements were not grossly improper, as they were intended to suggest that Mr. Douglas' testimony was credible based on the fact that it was consistent with the written police statement. See State v. Wilkerson, 363 N.C. 382, 424–26, 683 S.E.2d 174, 200–01 (2009) (holding that it was not grossly improper for the prosecutor to state that the State's witness is telling the truth in the context of acknowledging the weaknesses in the witness' testimony and in making the point that the witness' testimony was consistent with the evidence), cert. denied,––– U.S. ––––, 176 L.Ed.2d 734 (2010).
Defendant also contends that the prosecutor stated an opinion in her closing argument by insinuating that both she and the trial court did not believe defendant's testimony when she said, “[the Norlina police are] conspiring against him. That I'm conspiring against him. The Court's conspiring against him. Everyone in cahoots to get Mr. Lucas.”
Again, we are not persuaded. The prosecutor stated just prior to the above quoted statement that Officer Skinner and defendant knew each other and that defendant stated during his testimony that he does not like the Norlina Police Department because he feels that they are “not doing their job” and are “conspiring against him.” We believe counsel's statement suggested that defendant may have attacked Officer Skinner based on their prior dealings and his negative opinion of the police department, and therefore, did not insinuate that the police, court, or prosecutor did not believe defendant's testimony. This issue is overruled.
II.
Defendant next contends the trial court erred by failing to intervene ex mero motu when the prosecutor stated that Ms. Harris “had an attitude” and “got smart with [her]” while on the stand. Defendant also argues that the trial court should have intervened when the prosecutor stated, with regard to Ms. Harris' testimony:
As soon as I asked, ‘Didn't tell [sic] the Norlina Police Department they weren't worth anything’ ‘No, I didn't hear that. No, I didn't see what happened here. No, I didn't see that.’ It's all about credibility.
Defendant contends that the prosecutor, in the above statement, was implying that Ms. Harris was not credible because she denied a fact that defendant had admitted at the trial, i.e., that he made derogatory comments about the Norlina Police Department, and therefore, her argument amounted to a comment on matters not in the record. We disagree.
“During a closing argument to the jury an attorney may not ... make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.” N.C. Gen.Stat. § 15A–1230(a). However, “[o]ur appellate courts have routinely recognized that counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.” State v. Peterson, 179 N.C.App. 437, 466–67, 634 S.E.2d 594, 616 (2006) (internal quotation marks omitted), aff'd, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied,552 U.S. 1271, 170 L.Ed.2d 377 (2008). During closing argument, “a lawyer can argue to the jury that they should not believe a witness.” Augustine, 359 N.C. at 725, 616 S.E.2d at 528 (internal quotation marks omitted).
In context, we interpret the prosecutor's argument as suggesting only that Ms. Harris was not credible because she was being evasive in order to protect her friend. Just before the above statement, the prosecutor said “[h]is friend Ms. Harris claims they are family friends” and “she is here to protect her friend Mr. Lucas.” Thus, when read in context, we find that counsel's statement was not grossly improper, and that the court did not err by failing to intervene ex mero motu. See Augustine, 359 N.C. at 725–26, 616 S.E.2d at 528 (“a prosecutor's statements during closing argument should not be viewed in isolation but must be considered in the context in which the remarks were made and the overall factual circumstances to which they referred.” (internal quotation marks omitted)).
No error. Judges McGEE and CALABRIA concur.
Report per Rule 30(e).