State v. Marino

• Decision Date: 20 August 2013
• Docket Number: No. COA12–1422.,COA12–1422.
• Citation: 747 S.E.2d 633
• Parties: STATE of North Carolina v. Jory Joseph MARINO.
• Court: North Carolina Court of Appeals

747 S.E.2d 633

STATE of North Carolina

v.Jory Joseph MARINO.

No. COA12–1422.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by defendant from judgment entered 18 May 2012 and order entered 24 July 2012 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 24 April 2012.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., Southern Pines, for defendant appellant.

McCULLOUGH, Judge.

Jory Joseph Marino (“defendant”) appeals from his convictions for impaired driving (“DWI”) and speeding. For the following reasons, we find no error.

I. Background

On the evening of 21 March 2009, at approximately 10:40 p.m., Officer Robbie Moore (“Officer Moore”), at that time a patrol officer with the Pinehurst Police Department (“PPD”), stopped defendant on Morganton Road in Pinehurst, North Carolina, after clocking him speeding 52 m.p.h. in a 35 m.p.h. zone. Defendant and his wife were in the vehicle. As Officer Moore approached the vehicle, defendant, who was driving, rolled his window down. Officer Moore testified he was initially going to ask defendant to move his car further off the road but changed his mind when he noticed the smell of alcohol coming from the vehicle.

When Officer Moore informed defendant that he was speeding, defendant disputed the allegation stating, “I wasn't speeding. I could have swore I was only going 35 or 36 miles per hour.” Officer Moore testified that defendant's speech was slightly slurred and his face seemed flushed.

Due to the smell of alcohol, combined with defendant's slurred speech and flushed face, Officer Moore became concerned about the possibility of impaired driving and inquired into whether defendant had had anything to drink. Defendant initially denied having anything to drink; yet, after Officer Moore performed a quick version of the horizontal gaze nystagmus (“HGN”) test, and two preliminary breath tests indicated the presence of alcohol, defendant admitted that he may have had a couple of drinks with dinner.

Officer Moore then asked defendant to exit the vehicle to perform several standardized field sobriety tests. Defendant's wife remained inside the vehicle. Officer Moore indicated that, once defendant exited the vehicle and the two were face-to-face, he could smell alcohol coming from defendant's mouth.

Officer Moore administered three separate field sobriety tests; an HGN test, a walk-and-turn test, and a one-leg stand test. Officer Moore testified that each test revealed numerous indicators that defendant was impaired. Defendant was then given an additional preliminary breath test which, like the prior breath tests, indicated the presence of alcohol. Based on the totality of his observations, Officer Moore formed the opinion that defendant was impaired by alcohol. As a result, Officer Moore placed defendant under arrest and transported him to the PPD. Defendant's wife followed behind them.

At approximately 11:30 p.m., with his wife present, defendant consented to a chemical analysis breath test on the Intoximeter EC/IR II (“Intoximeter”) at the PPD. Defendant's first and second breath samples registered alcohol concentrations of .11 and .10 grams of alcohol per 210 liters of breath, respectively. A citation was then issued charging defendant with DWI and speeding. Officer Moore continued to believe that defendant was impaired by alcohol throughout the testing of defendant's breath.

Defendant's citation originally came on for trial in Moore County District Court. Upon entry of a guilty judgment defendant appealed to Moore County Superior Court.

On 29 June 2010, defendant filed a motion for Brady material and a request for disclosure, objection to affidavit, and motion in limine. Several days later on 2 July 2010, defendant filed an additional motion seeking an order finding materiality, relevance, and necessity of the Intoximeter software source code. The purpose of the 2 July 2010 motion was to facilitate the pretrial issuance of a subpoena to out-of-state witnesses in order to procure the source code so that defendant could mount a challenge to the Intoximeter results. The State filed a response on 6 August 2010.

Defendant's motions came on for hearing in Moore County Superior Court on 3 November 2010 before the Honorable James M. Webb (“Judge Webb”). By order filed 18 November 2010, the court ordered the State to provide defendant with “all downloaded and non-downloaded data in its possession that was generated from [the] Intoximeter [used to analyze defendant's breath.]” The court, however, deferred ruling on the materiality of the Intoximeter source code until defendant had had the opportunity to analyze the data produced by the State.

On 11 February 2011, the State provided defendant with data from the Intoximeter used to analyze defendant's breath. Thereafter, following numerous hearings on issues of discovery, the trial court denied defendant's motion for an order finding the Intoximeter source code material in open court on 8 December 2011.

Defendant's case came on for trial de novo in Moore County Superior Court on 14 May 2012, Judge Webb presiding. At the conclusion of the trial, the jury returned verdicts finding defendant guilty of DWI and speeding. ¹ Judgment was entered on defendant's DWI conviction on 18 May 2012 and defendant was sentenced to a term of 60 days' imprisonment; the term was suspended on condition that defendant complete 12 months of unsupervised probation and pay costs, fines, and fees.

Defendant appealed to this Court. Following notice of appeal, on 29 May 2012, defendant filed a Motion for Appropriate Relief (“MAR”) in Moore County Superior Court. Defendant's MAR was denied by order filed 24 July 2012.

II. Analysis

Improper Closing Argument

Defendant's first argument on appeal is that portions of the State's closing argument were grossly improper. Consequently, defendant contends that he was denied a fundamentally fair trial and is entitled to a new trial.

As our Supreme Court reiterated in State v. Jones, “[a] lawyer's function during closing argument is to provide the jury with a summation of the evidence, which in turn serves to sharpen and clarify the issues for resolution by the trier of fact, and should be limited to relevant legal issues.” 355 N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (internal quotation marks and citations omitted). Thus,

[d]uring a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.

N.C. Gen.Stat. § 15A–1230(a) (2011). Furthermore, “[i]n considering specific cases of improper argument, we acknowledge our oft-quoted refrain—‘that counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.’ ” Jones, 355 N.C. at 128, 558 S.E.2d at 105 (quoting State v. Richardson, 342 N.C. 772, 792–93, 467 S.E.2d 685, 697 (1996)).

In this case, defendant asserts that “the failure of the trial court to intervene, ex mero motu, to address the grossly improper closing argument of the State constituted plain error and an abuse of discretion[.]”

At the outset, we note that defendant has muddled different standards of review. “[T]his Court has stated that plain error review is appropriate only ‘when the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence.’ ” State v. Walters, 357 N.C. 68, 110, 588 S.E.2d 344, 369 (2003) (quoting State v. Cummings, 346 N.C. 291, 314, 488 S.E.2d 550, 563 (1997), cert. denied,522 U.S. 1092, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998)). “The standard of review for alleged errors in closing arguments ‘depends on whether there was a timely objection made or overruled, or whether no objection was made and defendant contends that the trial court should have intervened ex mero motu.’ ” State v. Chappelle, 193 N.C.App. 313, 325, 667 S.E.2d 327, 334 (2008) (quoting Walters, 357 N.C. at 101, 588 S.E.2d at 364). “If there is an objection, this Court must determine whether ‘the trial court abused its discretion by failing to sustain the objection.’ ” Walters, 357 N.C. at 101, 588 S.E.2d at 364 (quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). If there is no objection, “this Court must determine if the argument was ‘so grossly improper that the trial court erred in failing to intervene ex mero motu.’ ” Id. (quoting State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002)).

In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.

Jones, 355 N.C. at 133, 558 S.E.2d at 107. In either case, in order for an improper closing argument to constitute reversible error, the “prosecutor's remarks must be both improper and prejudicial.” Id. at 133, 558 S.E.2d at 107–08.

In this case, defendant contends that the State's closing argument as a whole “reveals a pattern of speculation, misstatement of the law, opinion, mean-spiritedness, and prejudicial stereotyping[.]” Additionally, defendant identifies specific remarks made during the State's closing argument that he alleges...