State v. Brock

• Decision Date: 04 May 1982
• Docket Number: No. 47A81,47A81
• Citation: 290 S.E.2d 566,305 N.C. 532
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ricky Dale BROCK.

Page 566

290 S.E.2d 566

305 N.C. 532

STATE of North Carolina v. Ricky Dale BROCK.

No. 47A81.

Supreme Court of North Carolina.

May 4, 1982.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., J. Michael Carpenter and Associate Atty. Gen., Daniel C. Higgins, Raleigh, for the State.

Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant.

BRITT, Justice.

All of defendant's assignments of error relate to the prosecutor's jury argument and the trial court's jury instructions. We find no merit in any of the assignments and leave undisturbed the judgment of the trial court.

Defendant contends first that the prosecutor violated his rights guaranteed by Article I, Section 23, of the state constitution, and the fifth and fourteenth amendments to the federal constitution "by arguing to the jury that evidence of defendant's post-arrest silence was evidence of his guilt of the crimes charged."

Defendant testified that while he was present at the murder scene, he was not the perpetrator and participated only because of coercion. On direct examination, he made no reference to any statement made at the time of his arrest. On cross examination defendant testified that on the date of the offense he was living with his girlfriend; that when the officers came to his apartment and informed him of the murder charges against him, his girlfriend hugged his neck and said, "You didn't do this, did you?"; that he replied "No."; and that he believed Officers Lowder, Almond and Covington were present at the time he made the answer to his girlfriend.

Also on cross examination defendant testified that at the time the officers came to his home and served the murder warrant on him, he told Sheriff McSwain that he did not commit the murder; and that he further told Mr. McSwain after he was brought to the courthouse that he did not do it.

On rebuttal, Deputy Sheriff Lowder was called as a witness by the state. He testified that he was one of the officers that went to the defendant's home for the purpose of serving the murder warrant on him; that he read the allegations in the warrant to defendant; that defendant's girlfriend was present at the time; that immediately thereafter she said, "Ricky, tell me you didn't do it."; that she made this statement two or three times; and that defendant made no response to her.

At defendant's request, the trial court agreed to instruct the jury that defendant's post-arrest silence could not be considered as evidence of his guilt; and that the evidence of defendant's silence would be admitted only to contradict and impeach the testimony of defendant that he did not remain silent when arrested. The court instructed the prosecutor that he was not to argue to the jury or imply that defendant's silence was an admission of guilt, but that he could argue the discrepancy in defendant's testimony and Mr. Lowder's testimony for impeachment purposes.

Under this assignment of error, defendant complains about the following portions of the prosecutor's argument to the jury:

You can't believe what this defendant said. He has changed his story several times--didn't tell or wouldn't tell the story to start with. (Emphasis added.) Rp 146.

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First of all, let's go back before that, and look how the defendant reacted when he was arrested. This is for you to consider. He said that he responded to his girlfriend and said, no, he didn't do it. What did Roger Lowder say--he said he was right there--false testimony. Roger Lowder has no interest in the outcome of this case. Trying to get the truth. His own girlfriend--his own girlfriend--tell me you didn't do it--tell me you didn't do it. Has she testified? Think about it--think about it. Dwight Farmer--many days later--many days later. Then by this time he had his story, he thought, put together.... Rp 180.

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And would you expect him to tell one bit of the truth--a man who acts like this--a man who never told a story until many days or weeks later. R pp 183-184.

It is well-settled in this jurisdiction that control of the arguments of counsel rests primarily in the discretion of the presiding judge. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980). State v. Thompson, 293 N.C. 713, 239 S.E.2d 465 (1977). Ordinarily, objection to the prosecuting attorney's jury argument must be made prior to the verdict for the alleged impropriety to be reversible on appeal. State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978); State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970). Failure to object waives the alleged error. Id.

An exception to this rule is found in capital cases where, because of the severity of the death sentence, this court will review alleged improprieties in the prosecutor's jury argument despite defendant's failure to timely object. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). However, even in death cases the impropriety must be extreme for this court to find that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel failed to find prejudicial when he heard it. Id. In the case at bar, since defendant received a sentence of life imprisonment the general rule and not the exception applies.

The record reveals that defendant had no objection to these remarks of the prosecutor when they were made at trial. He has thus waived any impropriety and will not be allowed to raise these objections for the first time on appeal.

One comment by the district attorney, of the same nature as the above arguments, did draw an objection from defendant.

The defendant gets arrested--doesn't deny to his girlfriend that he's guilty--does not deny it. He even knows she was trying to persuade him to say it isn't so--that's strong language, folks--strong evidence--.... R p 184.

Following this objection the court asked counsel to approach the bench. While the court did not rule on the objection, the prosecutor in resuming his summation changed his line of argument. Defense counsel did not request a curative instruction.

This court has consistently held that the prosecutor may argue to the jury the relevant law, facts in evidence and all reasonable inferences to be drawn therefrom. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). Defendant testified that he denied his guilt when confronted by his girlfriend at the time of his arrest. In rebuttal, the state presented evidence that defendant made no such denial but in fact remained silent. The rebuttal evidence was properly admissible, but only for purposes of challenging defendant's earlier exculpatory statement. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Although he could not argue defendant's silence as substantive evidence of defendant's guilt, the prosecutor was entitled to comment on this contradictory evidence in his final argument as grounds for disbelief of defendant's story. Reviewing the prosecutor's comment in context, we find that the argument was not so prejudicial as to deny defendant a fair trial. The prosecutor's argument was cut short by defendant's objection before it reached the level of reversible error. Failure of defense counsel to seek curative instructions indicates that he was satisfied that no prejudice had accrued at that point.

Finally, with regard to all the above portions of the prosecutor's closing argument now objected to by defendant, we note that any prejudice to defendant was negated by the court's thorough instruction to the jury that defendant had a right to be and remain silent and that defendant's silence was not to be considered in any manner to be an admission of his guilt or as evidence of his guilt.

The assignment of error is overruled.

In his second assignment of error, defendant takes exception to numerous other comments made by the prosecutor during his final argument. We find it unnecessary to set forth these remarks now excepted to on appeal as none were objected to at trial. Defendant has waived those alleged errors. Further, it is well-established that counsel is allowed wide latitude in arguing hotly contested cases. State v. Johnson, supra; State v. Covington, supra. The prosecuting attorney has the duty to use every legitimate means to bring about a just conviction and to make an earnest and vigorous presentation of the state's case. State v. King, supra; State v. Monk, supra. We perceive no abuse of discretion by the court in its control of counsel's closing arguments.

Defendant's next assignment of error concerns the court's instructions on the elements of first-degree murder. He contends that the court committed reversible error by failing to explicitly instruct the jury that they must find defendant's acts caused the victim's death in order to convict him of first-degree murder.

The portions of the charge excepted to required that in order for the jury to find defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation, the state must prove first "that the defendant intentionally and with malice hit or shot Bobby Clyde Gardner, Sr. with a deadly weapon" and second "that the hitting and shooting was a proximate cause of Gardner's death." (Emphasis added.)

Defendant's contention is based on conclusions he submits the jury could have drawn from the evidence presented. The state's evidence, through the testimony of Caudle, established defendant as the sole perpetrator of the murder. Defendant, on the other hand, testified that at gunpoint he assisted Caudle in disposing of the body and cleaning up the gore in the garage. He further testified that he never hit or shot Gardner. Defendant asserts that from this evidence the jury might have found that defendant participated in the crime to a greater degree than he admitted to and, that he, in fact, inflicted one or more of the wounds on Gardner. Should the jury have so found, he argues, then...