State v. Clark, 690A84
| Decision Date | 05 November 1985 |
| Docket Number | No. 690A84,690A84 |
| Citation | 336 S.E.2d 83,314 N.C. 638 |
| Parties | STATE of North Carolina v. Roger Lee CLARK. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by Jo Anne Sanford, Sp. Deputy Atty. Gen., Raleigh, for the State.
Philip A. Diehl, Raeford, for defendant-appellant.
The defendant brings forward two assignments of error, claiming:
1. The trial court erred in allowing the State to argue improper and prejudicial matters to the jury; and
2. The trial court erred in sentencing the defendant by failing to find certain mitigating factors presented by the evidence.
We first consider the defendant's contention that he is entitled to a new trial as a result of the prosecutor's allegedly prejudicial remarks during closing argument.
During the State's argument to the jury, defense counsel interposed objections four times. The first objection was made when the district attorney was arguing that a statement made by Mrs. Clark in the defense attorney's office to Kermit Locklear, the defense attorney's investigator, should not be given credence. The statement varied from her earlier statements and from her trial testimony by including assertions that Oxendine had called the defendant names, had once tried to run the defendant off the road, had pulled a gun before the defendant shot him, and earlier had struck one of the defendant's children. In his argument, the district attorney suggested that Mrs. Clark made these assertions in an effort to keep "the father of her children" from receiving a death sentence. He said:
So, they called this witness in and Kermit Locklear--and it's been uncontradicted that he told her that the defendant was going to get the chair; says, "We got to go down to the lawyer's office." And I would say to you you need to kind of shade this particular transaction a little shady, Ladies and Gentlemen, because I think it should be obvious to you what it was. They talked with all the witnesses, they evaluated the case, they knew it was a hopeless case--
At that point the defense attorney objected and requested "that the jury be instructed to disregard that argument." A bench conference was then held but is not recorded.
In his brief, the defendant argues that the district attorney "throughout the entire argument ... berated efforts of the defense to adequately prepare for trial" and described defense efforts to interview witnesses as "shady". However, the quoted passage is the only portion of the argument identified by the defendant as making reference to the preparation of the defense case. It is unclear whether the objection is to the characterization of the transaction as shady or to the argument that the defense evaluation of the case was that it was hopeless. After the bench conference, the district attorney avoided any further characterization of the defense preparation. We find that if error was committed in the failure of the judge to instruct the jury to disregard the argument, the defendant has failed to show that he was prejudiced thereby. See N.C.G.S. 15A-1443(a).
We have examined the defendant's remaining objections to the district attorney's argument and have concluded that they either were appropriately handled by the trial judge or did not constitute prejudicial error. This assignment of error is overruled.
We next consider the defendant's assignment of error relating to sentencing.
After the defendant's conviction, the trial judge conducted a sentencing hearing and found as an aggravating factor that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days' confinement. He found no mitigating factors. The defendant contends that the trial judge erred in failing to find the following statutory mitigating factors under N.C.G.S. § 15A-1340.4(a)(2):
i. The defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating.
l. Prior to arrest or at any early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.
m. The defendant has been a person of good character or has had a good reputation in the community in which he lives.
In regard to the first listed factor, the evidence concerning the relationship between the defendant and the deceased was conflicting. Although the defendant's estranged wife's statement, given to the defense counsel at some time after the defendant's arrest, indicated that the deceased previously had pulled a pistol on the defendant, had slapped the defendant's minor daughter, and had tried to run defendant's car off the road, this statement was in conflict both with an earlier statement by her and her trial testimony. The defendant's contention that he acted under strong provocation by reason of his belief that the deceased was going for a gun was contradicted by his wife's testimony and discounted by his own statement that he did not see a gun.
When evidence is offered to support a claim of a mitigating factor of strong provocation, the trial judge first must determine what facts are established by the preponderance of the evidence, State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982), and then determine...
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