State v. Erlewine

Citation328 N.C. 626,403 S.E.2d 280
Decision Date02 May 1991
Docket NumberNo. 398A90,398A90
PartiesSTATE of North Carolina v. Jerry Dale ERLEWINE.
CourtUnited States State Supreme Court of North Carolina

Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia Devine and Constance H. Everhardt, Asst. Appellate Defenders, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant, Jerry Dale Erlewine, was tried upon proper bills of indictment charging him with the armed robbery and murder of David Lee Carlisle, first degree burglary of Carlisle's residence, armed robbery of Patricia Ann Cox and assault upon Cox with a deadly weapon with intent to kill inflicting serious injury. The jury found the defendant guilty of first degree murder on theories of premeditation and deliberation and felony murder, and also returned verdicts finding him guilty of first degree burglary, two counts of robbery with a firearm, and assault with a deadly weapon with intent to kill inflicting serious injury. After a sentencing proceeding under N.C.G.S. § 15A-2000, the jury recommended life imprisonment for the first degree murder conviction. The trial court sentenced the defendant to life imprisonment for the murder and to consecutive prison terms of forty-six years for the first degree burglary, thirty-six years for each count of armed robbery, and twenty years for assault with a deadly weapon with intent to kill inflicting serious injury.

On appeal, the defendant brings forward four assignments of error. First, he contends that the prosecutors committed gross improprieties during their closing arguments which deprived him of a fair trial. Second, he argues that the trial court committed plain error in its instructions to the jury on acting in concert and assault with a deadly weapon with intent to kill inflicting serious injury. Third, he maintains he is entitled to a new sentencing hearing on the charge of first degree burglary because the evidence of the aggravating factor that he "took advantage of a position of trust or confidence to commit the offense" was insufficient as a matter of law. Finally, he contends that with regard to the assault charge, the trial court erroneously used the same evidence to support two aggravating factors. We find no error in the guilt phase of the trial, but we remand for new sentencing on the first degree burglary charge.

The State's evidence tended to show that during October 1988, David Carlisle and Patricia Cox lived together in a mobile home on a dirt road in Mount Airy. Shelley Massey and Tina Simmons Kittle lived together in a mobile home at the end of the same dirt road. Carlisle and Cox sold cocaine at their mobile home, and the defendant regularly purchased cocaine there.

Around mid-October 1988, the defendant told Shelley Massey that he was going to rob Carlisle. On the 23rd or 24th of October 1988, the defendant also told Tina Simmons Kittle that he was going to rob Carlisle. The defendant had made similar statements on at least ten other occasions. Sometime after the defendant made the threats on the 23rd or 24th of October, Massey and Kittle warned Cox and Carlisle to be leery of the defendant.

On the evening of 25 October 1988, the defendant and Joey Lynch injected cocaine. Lynch then drove the defendant to Lenore Foster's mobile home where all three injected cocaine. After they had injected the cocaine, the defendant told the others that he knew where they could get more cocaine and asked whether either of them had a gun. Lynch provided Foster's shotgun and one shell. The defendant and Lynch then drove Foster's truck to Pilot Mountain where the defendant entered Kenny Olievy's house and exited with a sawed-off double-barreled shotgun. The defendant and Lynch agreed to go to Carlisle's house, induce Carlisle to open the door by knocking, then burst in and demand Carlisle's money and cocaine.

Around midnight, the defendant and Lynch parked near Tina Kittle's mobile home, then walked to Carlisle's mobile home with guns in hand. The defendant knocked on the door, but he received no response. He then went to the back window, knocked and told someone inside that he had the money that he owed. Carlisle opened the door, and the defendant and Lynch entered the mobile home. The defendant offered to barter his gun for cocaine. Carlisle then examined the gun, but he rejected the offer. At this point, Carlisle's telephone rang. Patricia Cox answered on a telephone in the bedroom. Tina Kittle was calling to speak to Carlisle. When Carlisle left the room to answer the telephone, the defendant told Lynch that he was going to shoot Carlisle when he came back into the room and that he did not want to leave any witnesses. The defendant also told Lynch to take care of Cox and the defendant would take care of Carlisle. Lynch suggested that the defendant wait until after they got the cocaine.

When Carlisle returned, he and the defendant began arguing about the money the defendant owed him. Lynch then stood, pointed his gun at Carlisle and demanded Carlisle's cocaine and money. As their voices grew louder, Patricia Cox entered the living room. The defendant and Lynch each held a gun aimed at Carlisle. As Cox entered the room, Lynch aimed his gun at her and told her to sit down. The defendant demanded Carlisle's cocaine, and Lynch demanded money. Cox led Lynch to the bathroom where the cocaine was hidden in a "Crown Royal" duffle bag inside a heating vent. Lynch held his gun barrel against Cox's neck as they walked through the mobile home. The "Crown Royal" bag contained about an ounce of cocaine, some marijuana, a small scale and a spoon. Lynch demanded Cox's purse, and she gave it to him. The purse contained about $2,000.

The defendant and Lynch directed Carlisle and Cox at gunpoint to the bedroom. They forced Cox and Carlisle to lie on the bed on their backs. The defendant bound Carlisle's hands together with a leather belt. He told Lynch to tie up Cox, but Lynch was unable to find anything with which to tie her. During this time, Carlisle was saying, "Don't hurt her. You don't have to do this." The defendant then nodded toward Lynch, Cox raised her hand to her face, and Lynch shot her. As Carlisle stood up to protest, the defendant pulled one trigger of Olievy's double-barreled shotgun, but it did not fire. The defendant struck Carlisle in the back of the head with the gun barrel, and Lynch struck Carlisle on the stomach with his gun. The defendant then pulled the other trigger, and the resulting gun blast hit Carlisle in the face and sent him to the floor. The defendant and Lynch ran from the mobile home carrying the "Crown Royal" bag, the purse, Carlisle's wallet and their guns.

Cox remained conscious and called the police. The gun blast had penetrated her left hand and left eye, tearing away part of her face and blowing out six teeth. Carlisle was dead at the scene. He was killed by the shotgun wound to his face.

On 26 October 1988, Leila Dickson, Lynch's sister, took Lynch and the defendant out of town where they dumped two duffle bags near Belews Creek. Dickson then drove to Winston-Salem where she left the defendant. On 29 October 1988, the defendant was arrested in Winston-Salem.

The defendant did not present any evidence.

By his first assignment of error, the defendant contends that during their closing arguments, District Attorney H. Dean Bowman and Assistant District Attorney James C. Yeatts III improperly invoked community sentiment, expressed their personal opinions on the defendant's guilt and on the credibility of witnesses, improperly commented upon the defendant's failure to testify, his not guilty plea, the presumption of innocence and the role of the defense counsel, and abused the defendant personally. The defendant contends that such arguments constituted gross improprieties and deprived him of a fair trial. We disagree.

We have repeatedly held that arguments of counsel are left largely to the control and discretion of the trial court and that counsel will be allowed wide latitude in the argument of hotly contested cases. E.g., State v. Shank, 327 N.C. 405, 407, 394 S.E.2d 811, 813 (1990). As to several of the arguments at issue, the trial court sustained objections by defense counsel and instructed the jury not to consider those arguments. We must assume the jury heeded the instructions and did not consider the arguments to the defendant's prejudice. North Carolina State Highway Com. v. Pearce, 261 N.C. 760, 763, 136 S.E.2d 71, 73 (1964). Hence, by sustaining the objections and instructing the jury to disregard those arguments, the trial court cured any error that may have been present in those arguments. State v. Small, 328 N.C. 175, 185-86, 400 S.E.2d 413, 418 (1991); State v. Woods, 307 N.C. 213, 222, 297 S.E.2d 574, 579 (1982). Therefore, we will not address those arguments in this opinion.

In other arguments at issue, Assistant District Attorney Yeatts said, in his portion of the State's closing argument,

Using those same tests what really has this case been for the number of days that the State of North Carolina has presented uncontradicted evidence? Uncontradicted. There is a lot of difference between denying and contradicting. That evidence is uncontradicted.

District Attorney Bowman emphasized a similar theme in his closing argument:

One thing is, however, for certain in this case. Excuse me. Whatever they argue and whatever they contend it's going to have to be the State of North Carolina's case that they're talking about, isn't it? For obvious reasons.

[DEFENSE COUNSEL ]: Objection.

[MR. BOWMAN ]: Because the State's case is uncontradicted.

[THE COURT ]: Overruled.

[MR. BOWMAN]: There is a big difference in denying and contradicting. You can see me stand right here and kick this podium over, and I can deny it from now on, can't I?

[DEFENSE COUNSEL ]: Objection.

[THE COURT ]: Overruled.

[MR....

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    ......Erlewine , 328 N.C. 626, 637, 403 S.E.2d 280 (1991) ), we are unable to determine that the performance of DNA testing on the shell casings and projectile recovered from the Amoco station would provide material evidence of defendant's innocence of second-degree murder. ¶ 59 In addition, we note that Judge ......
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    .......         This Court has, on numerous occasions, considered and rejected the contention that statements by the prosecutor in closing argument that the evidence was uncontradicted or unrebutted amount to impermissible comments on the defendant's failure to testify. State v. Erlewine, 328 N.C. 626, 633, 403 S.E.2d 280, 284 (1991); see also State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991); State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977). It is well settled that the State may properly draw the jury's attention to the failure of the defendant to produce exculpatory . ......
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    • United States State Supreme Court of North Carolina
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    ...must assume the jury heeded the instructions and did not consider the arguments to the defendant's prejudice." State v. Erlewine, 328 N.C. 626, 632, 403 S.E.2d 280, 283 (1991). We conclude that in this case the trial court properly controlled the prosecutor's closing argument so as to avoid......
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    ...... See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.7, at 143-44 (1986). .         We recognize there is support in State v. Erlewine, 328 N.C. 626, 403 S.E.2d 280 (1991), for the instruction given here by the trial court. In Erlewine, we said: . The theory of acting in concert .. requires a common purpose to commit a crime. State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979). Thus, before the jury . Page 738 . could .. ......
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