Opinion
No. COA09-1123
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgment entered 9 April 2009 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 12 April 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State. Leslie C. Rawls for Defendant.
Guilford County Nos. 08 CRS 106176, 106178.
I. Procedural History
On 5 January 2009, Defendant Marcus Lavert Miller was indicted on one count of robbery with a dangerous weapon and one count of possession of a firearm by a felon. Defendant was tried during the 6 April 2009 Criminal Session of Guilford County Superior Court. On 9 April 2009, a jury found Defendant guilty of both offenses. The trial court entered judgment and sentenced Defendant to a consolidated term of 133 to 169 months imprisonment. Defendant gave timely notice of appeal in open court.
II. Factual Background
At trial, the State's evidence tended to show the following: Cesar Ramira Valdivia and Sergio Estrada are friends who work together at a landscaping company and live in apartment complexes approximately one kilometer apart in Greensboro, North Carolina. On 20 October 2008, Mr. Estrada took Mr. Valdivia grocery shopping, driving Mr. Estrada's Ford Mustang. The two returned to Mr. Valdivia's apartment around 7:30 p.m. As they were parking, the two noticed a dark Ford Thunderbird drive past. Mr. Valdivia got out of the car and unlocked his apartment, and Mr. Estrada carried some of the groceries inside. Mr. Estrada then gave Mr. Valdivia the keys to his Mustang so Mr. Valdivia could open the trunk. Mr. Valdivia then returned to the car alone to retrieve the remaining groceries from the trunk.
As Mr. Valdivia leaned into the trunk, two men approached him from behind. One of the men held a sawed-off shotgun to Mr. Valdivia's head and told Mr. Valdivia to kneel on the ground and not look up. Mr. Valdivia complied, and the gunman reached into Mr. Valdivia's pocket, took the car keys and his wallet, and left in Mr. Estrada's car. Mr. Valdivia turned around and saw the gunman's face as he got into the Mustang. The other man left in the Thunderbird.
Mr. Estrada watched the incident from the top of the stairway leading to Mr. Valdivia's apartment. The parking lot was lit and Mr. Estrada, who was approximately 15 to 20 meters away, saw the gunman's face. After the assailants drove away, Mr. Estrada went downstairs to the parking lot.
A few minutes later, Mr. Estrada's wife called to ask where he was, because she thought she had seen his car drive past their apartment very fast. Around the same time, Juan Robles, who also worked with the two men and lived in the same apartment complex as Mr. Valdivia, returned home from work. He gave the two men a ride to Mr. Estrada's apartment.
When the three men arrived at Mr. Estrada's apartment complex, Mr. Estrada went into his apartment to call the police. Mr. Valdivia and Mr. Robles stayed outside. A few minutes later, Mr. Valdivia and Mr. Robles saw the Thunderbird and Mr. Estrada's Mustang drive through the parking lot. The cars were driven to the end of the complex and backed into adjacent spaces. When the police arrived, the occupants of the vehicles ran away.
The police searched the Thunderbird and found an amplifier and speakers which belonged to Mr. Estrada. They also found Mr. Valdivia's groceries and the shotgun that had been pointed at Mr. Valdivia's head. A crime scene investigator lifted six fingerprints from the car, one of which matched Defendant. No usable fingerprints were found on the shotgun or on the Mustang. The police did not recover Mr. Valdivia's wallet or Mr. Estrada's car keys.
Detective R.E. Ferrell of the Greensboro Police Department talked to the owner of the Thunderbird and identified Defendant as a suspect. Detective Ferrell created a photographic lineup using a recent photograph of Defendant and photographs of five other individuals who resembled Defendant. Detective Ferrell shuffled the photographs and placed them in an envelope. He prepared two sets of the lineup, one for Mr. Valdivia and one for Mr. Estrada.
Detective Ferrell presented the photographic lineup separately to Mr. Estrada and Mr. Valdivia at their place of employment on 30 October 2008. Detective D.A. Lyndrup assisted Detective Ferrell with the lineup because he speaks fluent Spanish. Mr. Valdivia was brought in first. Speaking Spanish, Detective Lyndrup read him a standard script, explaining, among other things, that Detective Lyndrup did not know the identity of the suspect; that Mr. Valdivia should not feel compelled to make an identification; and that the perpetrator may not be in the lineup. Mr. Valdivia selected Defendant's photograph and told Detective Lyndrup that he was 70 percent sure that the person in the photograph was the gunman. At trial, Mr. Valdivia identified Defendant as the gunman who had robbed him.
Detective Lyndrup repeated the same procedure with Mr. Estrada. Mr. Estrada also selected Defendant's photo and stated that he was 100 percent sure that the person in the photo was the gunman. At trial, Mr. Estrada identified Defendant as the gunman who had robbed Mr. Valdivia.
Detective Ferrell subsequently identified Ladon Brown as the second suspect in the robbery and prepared a different photographic lineup which included Ladon Brown's photograph. The two detectives presented the photographic lineup to Mr. Valdivia and Mr. Estrada on 4 February 2009. Mr. Estrada did not select Ladon Brown's photograph and, instead, selected another person's photo. He rated his confidence in his identification as 70 percent.
Before concluding its case, the State introduced a stipulation, signed by Defendant, defense counsel, and the State, which stated that Defendant committed a felony offense on 11 July 1995 in Guilford County and pled guilty to that offense on 17 March 1997. Defendant did not present any evidence at trial.
III. Discussion
By Defendant's sole argument on appeal, Defendant contends that the trial court erred in failing to intervene ex mero motu during the State's closing argument. Specifically, Defendant challenges three separate statements made by the prosecutor, arguing that the statements were grossly improper and prejudicial as they were not supported by the evidence and were intended to inflame the jury.
"It is well settled in North Carolina that counsel is allowed wide latitude in the argument to the jury." State v. Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761 (1979). Counsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). "Further, arguments are to be viewed in the context in which they are made and the overall factual circumstances to which they refer." State v. Peterson, 350 N.C. 518, 531, 516 S.E.2d 131, 139 (1999), cert. denied, 528 U.S. 1164, 145 L. Ed. 2d 1087 (2000). "Even so, counsel may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence." Johnson, 298 N.C. at 368, 259 S.E.2d at 761. Control of the arguments of counsel is left largely to the discretion of the trial judge. Id.
Where, as here, Defendant failed to object to any of the statements made by the State in closing, our standard of review "is whether the argument was so grossly improper that the trial court abused its discretion in not intervening ex mero motu." Peterson, 350 N.C. at 532, 516 S.E.2d at 140. "[O]nly 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." State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). Thus, only when a prosecutor's comments stray so far from the bounds of propriety as to impede the defendant's right to a fair trial does the trial court have the duty to act ex mero motu. State v. Davis, 305 N.C. 400, 421-22, 290 S.E.2d 574, 587 (1982)).
Defendant first alleges that the following statement by the prosecutor was grossly improper:
"[Mr. Estrada and Mr. Valdivia] were selected because they were Hispanic and would not report the crime, and they were selected because even if they did report the crime, they would not come to court. That's why they were victims in this courtroom.
What the defendant did not count on is, A, them [sic] reporting the crime, and, B, them [sic] showing up in court to tell you about it. And that's why Mr. Miller is sitting over in that chair over there."
Defendant contends that with this statement, the prosecutor improperly "ascribed to [Defendant] a motive unsupported by the evidence or by inference from the evidence."
Preliminarily, we note that the above-stated argument in its contextual entirety is as follows:
When they were selected as victims by these defendants, they were selected because they were alone, they were selected because they had a nice car, they were selected because they were Hispanic and would not report the crime, and they were selected because even if they did report the crime, they would not come to court. That's why they were victims in this courtroom.
What the defendant did not count on is, A, them [sic] reporting the crime, and, B, them [sic] showing up in court to tell you about it. And that's why Mr. Miller is sitting over in that chair over there.
Our Supreme Court has acknowledged that arguing apparent motive is not a matter outside the record and is a reasonable inference. Peterson, 350 N.C. at 531, 516 S.E.2d at 139 (prosecutor argued permissible inferences by asking the jurors to consider defendant's apparent motive). In this case, "[c]onsidered in context, the prosecutor's argument was not urging the jurors to consider facts without an evidentiary basis; rather, the prosecutor was arguing permissible inferences by asking the jurors to consider [D]efendant's apparent motive[s]" for committing the offenses charged. Id.
Nonetheless, Defendant argues that the prosecutor's inference that the victims' ethnicity was an apparent motive for the robbery was improper as it was "designed to sway the jury's decision based on emotions and prejudices rather than evidence."
"Although it is improper gratuitously to interject race into a jury argument where race is otherwise irrelevant to the case being tried, argument acknowledging race as a motive or factor in a crime may be entirely appropriate." State v. Diehl, 353 N.C. 433, 436, 545 S.E.2d 185, 187 (2001).
In this case, the victims' race was referenced one time in the context of suggesting possible motives for why Defendant selected Mr. Estrada's Mustang for the robbery. However, even assuming arguendo that this was inappropriate, given the copious evidence presented by the State that Defendant was indeed the perpetrator of the offenses charged, including eyewitness testimony, several identifications, and a fingerprint match, we conclude that the prosecutor's comments did not stray so far from the bounds of propriety as to impede Defendant's right to a fair trial without judicial intervention ex mero motu. See State v. Barden, 356 N.C. 316, 365, 572 S.E.2d 108, 139 (2002) (holding that prosecutor's reference to victim's race was not so grossly improper that the trial court should have intervened ex mero motu where the prosecutor's arguments were not designed to generate an issue of race in the trial), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003); State v. Sims, 161 N.C. App. 183, 192-95, 588 S.E.2d 55, 62-64 (2003) (holding that district attorney's references to "wild dogs or hyenas" hunting on the "African plain" were improper, but given the totality of the closing argument, the trial court's instruction to the jury, and the evidence, defendant was not denied a fair trial due to the improper comments). Defendant's argument is overruled.
Next, Defendant contends that "[t]he prosecutor also engaged in argument unsupported by the evidence when [he] stated that Mr. Valdivia and Mr. Estrada consistently identified [Defendant] as the perpetrator." In his brief, Defendant quotes the following statement of the prosecutor in support of his argument:
"First of all, [Mr. Estrada and Mr. Valdivia] who made the identification have had — each had four chances — well, each had two, four altogether, to identify someone other than this man. And every time the face of [Defendant] is the face of the man who committed the robbery. . . . They have not wavered in their identification."
Defendant argues that this statement is not supported by the record because when shown a photographic lineup on 4 February 2009, Mr. Estrada "did not identify [Defendant], but selected a filler photograph."
We first note that the above-stated argument, without the use of misleading ellipses, is as follows:
First of all, [Mr. Estrada and Mr. Valdivia] who made the identification have had — each had four chances — well, each had two, four altogether, to identify someone other than this man. And every time the face of [Defendant] is the face of the man who committed the robbery. Once for each of them in the photographic lineup, once for each of them when they saw him in court. They have not wavered in their identification.
Furthermore, Defendant's argument is, at best, a misapprehension of the evidence. On 30 October 2008, Mr. Valdivia was shown a photographic lineup, and he identified Defendant as the gunman with 70 percent certainty. On that same date, Mr. Estrada was shown the same lineup, and he also identified Defendant as the gunman, but with 100 percent certainty. At trial, both men identified Defendant as the gunman. On 4 February 2009, Mr. Valdivia and Mr. Estrada were shown a photographic lineup which included a photograph of the second suspected assailant, Ladon Brown. Mr. Estrada did not select Ladon Brown's photograph and, instead, selected another person's photo, rating his confidence in his identification as 70 percent.
Mr. Estrada's failure to identify Ladon Brown from the photographic lineup as the second assailant is irrelevant to the prosecutor's argument that both Mr. Valdivia and Mr. Estrada identified Defendant as the gunman "[o]nce for each of them in the photographic lineup, once for each of them when they saw him in court."
Nonetheless, Defendant argues that the statement was not supported by the record because Mr. Valdivia rated his confidence in identifying Defendant from the photographic lineup as only 70 percent. However, the record does not indicate that Mr. Valdivia subsequently questioned his identification of Defendant or identified any other individual as the gunman in the robbery. Thus, it was reasonable for the prosecutor to characterize the identifications of Defendant as unwavering. Accordingly, the prosecutor's argument was supported by evidence in the record and was not improper, much less grossly improper. Defendant's argument is meritless.
Finally, Defendant challenges the following statement by the prosecutor:
I think we all can agree that what happened to [Mr. Estrada] and Mr. Valdivia was terrible. They're just two innocent people going about their own business in a parking lot trying to get some groceries in the house when they're approached by two men, one armed with a gun, and robbed. And there's not anything more aggravating in our community than to have activity like this just right out in the open like this was committed. And I think we can all agree that that's terrible.
Defendant argues that the trial court should have intervened ex mero motu because the prosecutor improperly urged the jury to convict Defendant based on public sentiment about crime and the wishes of the general public. We disagree.
It is not improper for the prosecutor to argue that the jury is "the voice and conscience of the community." Barden, 356 N.C. at 367, 572 S.E.2d at 140 (citation and quotation marks omitted). A prosecutor may ask the jury to "send a message to the community regarding justice." Id. (citation and quotation marks omitted). However, a prosecutor cannot encourage the jury to "lend an ear to the community." State v. Golphin, 352 N.C. 364, 471, 533 S.E.2d 168, 237 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). "In other words, the jury may speak for the community, but the community cannot speak to the jury." Barden, 356 N.C. at 367, 572 S.E.2d at 140-41.
In the present case, the prosecutor did not urge the jury to "lend an ear to the community[,]" Golphin, 352 N.C. at 471, 533 S.E.2d at 237, by referring to any specific public perception regarding the robbery or equate it to any widely publicized tragedy. See State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002) (prosecutor's closing argument linking the tragedies of Columbine and Oklahoma City with the tragedy of the victim's death was improper); State v. Scott, 314 N.C. 309, 312, 333 S.E.2d 296, 298 (1985) (prosecutor's suggestion that the jury convict based on public sentiment "against driving and drinking, causing accidents on the highway" was improper). Instead, the prosecutor stated to the jury that the facts in this particular case were terrible and then expressed his expectation that the jury would agree that "there's not anything more aggravating in our community than to have activity like this just right out in the open like this was committed." We note that counsel for Defendant echoed the prosecutor's sentiment in his closing argument when he stated the following:
And one thing [the prosecutor] and I agree on is what happened to [Mr. Valdivia] and — and [Mr. Estrada] by — by his vicarious experience of what happened to [Mr. Valdivia] when he — when the robber put that shotgun to his head and made him get on his knees, that's a horrible, horrible thing. And so, if we're involved in that, and I think anybody who is, that's a terrible thing.
We conclude that the prosecutor's statement was not improper, much less grossly improper.
For the foregoing reasons, we hold that Defendant received a trial free from error.
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).