Opinion
No. COA12–29.
2012-09-4
STATE of North Carolina v. Dashon Octavious PATTERSON.
Attorney General Roy Cooper, by Assistant Attorney General Phillip T. Reynolds, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt and Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
Appeal by Defendant from judgment entered 14 July 2011 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Phillip T. Reynolds, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt and Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
THIGPEN, Judge.
Dashon Octavious Patterson (“Defendant”) appeals from jury verdicts convicting him on one count each of sale of marijuana, delivery of marijuana, and possession of marijuana. We find no error.
I. Factual & Procedural Background
On 24 June 2010, Defendant was arrested after selling approximately 2.6 grams (“$20 worth”) of marijuana to an undercover police officer at a Fast Mart parking lot in Charlotte. Defendant was subsequently indicted on charges of possession with intent to sell or deliver a controlled substance, sale of a controlled substance, and delivery of a controlled substance. The matter came on for trial in Mecklenburg County Superior Court on 13 July 2011, the Honorable Richard D. Boner presiding. On 14 July 2011, the jury returned verdicts finding Defendant guilty of possession of marijuana, sale of marijuana, and delivery of marijuana. The trial court arrested judgment on Defendant's delivery of marijuana conviction, consolidated the two remaining judgments, and sentenced Defendant to a term of six to eight months imprisonment. Defendant's prison sentence was suspended, and Defendant was placed on twenty-four months supervised probation as an intermediate sanction. Defendant appeals.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011), as Defendant appeals from a final judgment of the superior court as a matter of right.
III. Analysis
Defendant's sole contention on appeal is that the trial court committed reversible error in failing to intervene ex mero motu when the prosecutor made the following comments during the State's closing argument:
Your duty, the promise you made was to evaluate the evidence according to reason and common sense and to follow the law as the judge gives it to you, and that's what I'm asking you to do, ladies and gentlemen. If it's hard, if you have questions, you can't just throw up your hands and say I ‘m not sure and I don't like it so I'm going to find him not guilty. That's not your job. Your job is to determine the truth based on that evidence and based on that law and I'm asking you to find the Defendant guilty beyond a reasonable doubt of selling marijuana, delivering marijuana, and possession with intent to sell or deliver marijuana. Thank you.
(Emphasis added). Defendant contends that the statement, “If it's hard, if you have questions, you can't just throw up your hands and say I'm not sure and I don't like it so I'm going to find him not guilty[,]” “was grossly improper because it seriously misstated the law about ... the role of the jury and the burden of proof in the case against [Defendant].” According to Defendant, this remark “expressly told the jurors that they could not return a verdict of not guilty even if they were unsure about the case against [Defendant].” Defendant asserts that this misstatement of the State's burden of proof entitles him to a new trial. We disagree.
“The scope of jury arguments is left largely to the control and discretion of the trial court, and trial counsel will be granted wide latitude in the argument of hotly contested cases.” State v.. Call, 349 N.C. 382, 419, 508 S.E.2d 496, 519 (1998). Where, as here, a defendant fails to raise a timely objection to the State's closing argument at trial, we must review the challenged statement to determine whether it was “so grossly improper that the trial court erred in failing to intervene ex mero motu.” State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002). Our Supreme Court has stated that trial court intervention during closing arguments is required only where “the argument strays so far from the bounds of propriety as to impede defendant's right to a fair trial.” State v. Atkins, 349 N.C. 62, 84, 505 S.E.2d 97, 111 (1998); see also State v. Paul, 58 N.C.App. 723, 725, 294 S.E.2d 762, 763 (1982) (“Defendant is entitled to a new trial only if the impropriety is shown to be prejudicial.”). In reviewing the propriety of the prosecutor's closing argument, we must view the challenged remarks “in the context in which they were made and in light of the overall factual circumstances to which they referred.” Call, 349 N.C. at 420, 508 S.E.2d at 519;see also State v. Bell, 359 N.C. 1, 20, 603 S.E.2d 93, 107 (2004) (“A prosecutor's arguments are not to be reviewed in isolation; rather, consideration must be given to the context of the remarks and to the overall factual circumstances.”).
In State v. Jones, our Supreme Court held that even assuming arguendo that the prosecutor had presented a misleading definition of “reasonable doubt” during closing arguments,
the trial court did not err in failing to immediately correct the prosecutor's erroneous definition where ... the trial court followed the complained-of argument of the prosecutor with proper instructions correctly defining the term “reasonable doubt.” In this context, any error of the prosecutor in defining the term “reasonable doubt” could not have denied the defendant due process and did not require a new trial.
336 N.C. 490, 496, 445 S.E.2d 23, 26 (1994).
At the conclusion of closing arguments in the instant case, the trial court charged the jury with the following instructions concerning the jury's duty and the State's burden of proof:
All of the evidence in this case has been presented, it's now your duty to decide from the evidence what the facts are. You must then apply those facts to the law that I'm about to give you. It's absolutely necessary that you understand and apply the law as I give it to you and not as you think it or as you might like it to be. This is important because justice requires that everyone tried for the same crime be treated in the same way and have the same law applied.
The Defendant has entered pleas of not guilty. The fact that he has been charged is no evidence of guilt. Under our system of justice when a Defendant pleads not guilty he is not required to prove his innocence, he's presumed to be innocent. The State of North Carolina must prove to you that the Defendant is guilty beyond a reasonable doubt.
A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the Defendant's guilt.
Thus, even assuming arguendo that the prosecutor's comments were improper, the trial court's instruction to the jury on the State's burden of proof mitigated any prejudicial impact of those comments. See State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (presuming the jury “ ‘attend[s] closely [,] ... strive[s] to understand, ... and follow[s] the instructions given them’ “ (quoting Francis v. Franklin, 471 U.S. 307, 324 n .9 (1985))). We also note that the prosecutor expressly and properly stated the State's burden of proof to the jury at the beginning of the State's closing argument as follows: “And I want to start by talking about the law. Start by talking about the standard. Even though you've heard it lots of times over the past couple of days, it's beyond a reasonable doubt.” (Emphasis added). Moreover, viewing the challenged comments in context, our review of the trial transcript indicates that the thrust of the prosecutor's comments was to remind the jury of its duty to reach a verdict based on the evidence, and not based on other factors, such as whether Defendant appeared innocent (or guilty). In light of this context, and the trial court's instruction to the jury on the reasonable doubt standard, we cannot say that the prosecutor's closing argument exceeded the bounds of propriety or deprived Defendant of a fair trial, or that the statements were so grossly improper that the trial court erred in failing to intervene ex mero motu.
For instance, in addition to the challenged comments, the prosecutor stated the following during the State's closing argument:
As I said at the beginning of my closing, I know this probably isn't easy for you, to sit and judge somebody else, especially someone that defense counsel has been sure to highlight looks very innocent. Now, if someone—and I don't know that I could define this for you, looks guilty, you can't find him guilty because they look guilty to you. I'm asking you not to find someone not guilty because they may look innocent to you.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).