State v. Oxendine
| Decision Date | 06 December 1991 |
| Docket Number | No. 591PA87,591PA87 |
| Citation | 410 S.E.2d 884,330 N.C. 419 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Stevie OXENDINE. |
Lacy H. Thornburg, Atty. Gen. by G. Lawrence Reeves, Asst. Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia Devine, Asst. Appellate Defender, Raleigh, for defendant appellant.
The defendant's only assignment of error deals with the prosecuting attorney's argument to the jury, which the defendant contends "exceeded the bounds of the relevant statutes in ways sufficiently numerous and egregious to infringe on defendant's right to a fair trial at the hands of an unprejudiced jury." See N.C.G.S. § 15A-1230 (1988). The defendant objected to only one part of the argument of the prosecuting attorney. For those parts of the argument to which he did not object and now assigns error, we must review them to determine whether they were so grossly improper that the trial court abused its discretion in failing to intervene ex mero motu to correct the error. State v. Jones, 317 N.C. 487, 346 S.E.2d 657 (1986).
The prosecutor argued to the jury that the deceased was afraid of the defendant, that she had been the victim of physical threats and torture and on one occasion she had been beaten with a shoe. The defendant says this was an improper argument. There was testimony that the defendant had hit the deceased with a shoe. There was also testimony that the defendant had beaten the deceased and had threatened her. This would support an inference that she was afraid of him. This argument was properly made. State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986).
The defendant also argues that it was improper for the prosecuting attorney to argue that the deceased was working because she was "trying to get enough money to get the lights cut back on" and "he got out [of the truck] in the most cowardly way and went over there and put a gun straight to her head and blew her head off." There was evidence that the defendant and his wife had argued over the light bill, although there was no evidence that the electricity had been cut off. There was evidence that the defendant had left his truck and walked over to his wife and shot her in the head, although there was no evidence that he had shot her head off. There was no objection to these arguments and they were not so grossly improper that the court should have intervened ex mero motu.
The defendant next contends it was error for the prosecuting attorney to argue that the defendant's wife had said "I'd rather be dead than live another night in that house with him." The court had excluded testimony to this effect at the trial. Again there was no objection to this argument by the defense attorney. The prosecuting attorney may have exaggerated the deceased's feelings, but it is a reasonable inference that she did not want to live any longer with the defendant. This statement was not so grossly improper that the court should have intervened ex mero motu.
The defendant next says that in arguing the element of malice in the law of homicide, the prosecuting attorney made "a dangerous and unauthorized detour into psychology and/or religion for impressionable jurors." The prosecuting attorney argued to the jury that the attitude of the defendant towards his wife, which included "meanness, hate, possessiveness, wanting to control, wanting to stifle another human being, wanting to own her, wanting to make sure no one else has...
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State v. Williams
...sufficient prejudice to warrant awarding him a new trial." 58 N.C.App. at 725-26, 294 S.E.2d at 763. See also State v. Oxendine, 330 N.C. 419, 423, 410 S.E.2d 884, 886 (1991) (no new trial for prosecutor's argument quoting excluded testimony where substance of statement quoted could reasona......
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State v. Bullock
...we do not address this issue on appeal. Stevenson, 136 N.C.App. at 244, 523 S.E.2d at 739; see also State v. Oxendine, 330 N.C. 419, 422, 410 S.E.2d 884, 330 N.C. 419, 422 (1991). This argument is without In his fifth argument, defendant contends that the trial court erred in submitting the......
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State v. Salmon
...improper that the trial court abused its discretion in failing to intervene ex mero motu to correct the error." State v. Oxendine, 330 N.C. 419, 422, 410 S.E.2d 884, 886 (1991). We hold that they were At most, the prosecutor's remarks were technical misstatements of the law. Defendant's act......
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State v. Greenfield
...was not the first time defendant had driven impaired," while improper, did not warrant a new trial). See also State v. Oxendine , 330 N.C. 419, 423, 410 S.E.2d 884, 886 (1991). Therefore, we conclude that the trial court did not commit reversible error by failing to intervene ex mero motu d......