State v. Jolly ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-194
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Guilford County
Nos. 12 CRS 24828,92661
GEORGE DAVID JOLLY
Appeal by defendant from judgment entered 6 June 2013 by
Judge Ronald E. Spivey in Guilford County Superior Court. Heard
in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa K. Bradley, for the State.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Jillian C. Katz, for defendant-
appellant.
McCULLOUGH, Judge.
Defendant appeals from judgment entered upon a jury verdict
finding him guilty of assault with a deadly weapon inflicting
serious injury and his guilty plea to attaining the status of an
habitual felon. For the following reasons, we find no
prejudicial error.
I. Background
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As a result of an altercation on 19 October 2012, on 10
December 2012, a Guilford County Grand Jury returned indictments
against defendant for assault with a deadly weapon inflicting
serious injury and attaining the status of an habitual felon.
Following a pretrial hearing on 3 June 2013, defendant’s case
was called for jury trial in Guilford County Superior Court on 4
June 2013, the Honorable Ronald E. Spivey, Judge presiding.
The evidence presented at trial tended to show that
defendant was present at a residence shared by Richard Roscoe
and Philip Culbreth at 1523 North O’Henry Boulevard on the
evening of 19 October 2012. Roscoe and Culbreth testified that
defendant showed up unannounced while they were playing video
games and drinking. They claim defendant was intoxicated when
he arrived and became belligerent and started to argue with
Roscoe when he lost a video game. Defendant, on the other hand,
testified that he spoke with Roscoe and arranged to do laundry
at the residence, which was not unusual given that Roscoe
allowed defendant to store a washer and dryer, as well as other
miscellaneous items, at the residence. Defendant claims that
while he was doing laundry, Roscoe accused him of taking liquor
and they began to argue. Despite the differing accounts, it is
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undisputed that defendant got into an argument with Roscoe. As
a result of that argument, Culbreth called the police.
By the time the police arrived, defendant had left the
residence. Defendant, however, returned shortly after the
police left to retrieve his belongings. Defendant’s wife and
daughter returned with defendant but remained in the car parked
in front of the residence while defendant entered the house.
Upon defendant’s return, the argument between defendant and
Roscoe resumed and quickly escalated into a physical
altercation, during which defendant cut Culbreth across the
abdomen with a box cutter. Roscoe and Culbreth testified that
defendant was not provoked and defendant was the aggressor in
the altercation. Defendant, however, testified that he cut
Culbreth in self-defense after Roscoe and Culbreth attacked him.
Testimony from defendant’s daughter, who witnessed the
altercation through the glass front door from the rear seat of
the car parked in front of the house, corroborated defendant’s
testimony. Defendant’s wife, who had the better view from the
front seat of the car, was not called as a witness at trial.
During the altercation, Roscoe escaped the residence and
called police from a neighbor’s house. Roscoe returned shortly
thereafter as police were arriving at the scene. Together, they
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found Culbreth in the backyard with a serious wound to his
abdomen. Defendant had fled the house. Yet, defendant later
turned himself in on 22 October 2012 after spending several days
in Asheboro to avoid the police.
On 5 June 2013, the jury returned a verdict finding
defendant guilty of assault with a deadly weapon inflicting
serious injury. Defendant then pled guilty to attaining the
status of an habitual felon and the trial court entered judgment
on 6 June 2013 sentencing defendant to a term of 77 to 105
months imprisonment and ordering the payment of restitution.
Defendant gave notice of appeal in open court.
II. Discussion
The sole issue raised on appeal is whether the trial court
erred by failing to intervene ex mero motu during the State’s
closing argument when the State mentioned defendant’s failure to
produce his wife as a witness. Yet, before reaching the merits
of the appeal, we address whether the issue was preserved for
review.
In the portion of the State’s closing argument at issue,
the State attempted to cast doubt on defendant’s self-defense
argument by emphasizing the inconsistencies between a written
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statement he provided to police and the testimony he provided at
trial. Specifically, the State argued the following:
And he'll say, you know what. Well, my
wife, helped me write this and helped me
write that, and that's why I wrote it.
Well, you know what. His wife is here, and
if that was the case, you could always call
her and have her get up on the stand and let
us know that. But she's here. And if you
recall, [defendant’s daughter] said, you
know, look, I'm in the back seat, and mom's
up in the front, you know. She had a better
vantage point than I did. She can see it
better. Well, she's here, and she ain't
testified.
So you can make your own inference about
that, if she supposedly saw this incident
and the way it happened. Here you are
facing a felony, facing this potential of
jail time. And then I've got my wife, who's
seated in the front seat, who supposedly had
the best view of what has taken place this
night. And I'm sitting here before a jury
of 12. And I'm not going to call her. So
you have to decide why that decision was
made. Of course, I'd argue to you, because
the facts as they're giving them to you is
[sic] not true.
Defendant did not object to the State’s argument and the trial
court did not intervene.
Generally, “[i]n order to preserve an issue for appellate
review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for
the ruling the party desired the court to make if the specific
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grounds were not apparent from the context.” N.C. R. App. P.
10(a)(1) (2014).
In the present case, defendant made no such request,
objection, or motion during the State’s closing argument.
Defendant, however, citing State v. Braxton, 352 N.C. 158, 177,
531 S.E.2d 428, 439 (2000) and State v. Lawrence, 352 N.C. 1,
13, 530 S.E.2d 807, 815 (2000), contends his right to appeal was
preserved because the trial court acted contrary to a statutory
mandate. In response, the State contends that defendant failed
to preserve the issue for appeal.
Upon review, we find the statute at issue in this case,
N.C. Gen. Stat. § 8-57(a), distinguishable from N.C. Gen. Stat.
§ 15A-1214, the jury selection statute at issue in Braxton and
Lawrence. Unlike N.C. Gen. Stat. § 15A-1214, N.C. Gen. Stat. §
8-57(a) does not direct the court to do anything in particular;
it simply directs that “the failure of the defendant to call [a]
spouse as a witness shall not be used against him.” N.C. Gen.
Stat. § 8-57(a) (2013). Thus, we distinguish the present case
from Braxton and Lawrence.
Nevertheless, we reach the merits of defendant’s appeal.
This Court has long addressed arguments that the trial court
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erred by failing to intervene in closing arguments ex mero motu.
As stated by our Supreme Court,
[t]he standard of review for assessing
alleged improper closing arguments that fail
to provoke timely objection from opposing
counsel is whether the remarks were so
grossly improper that the trial court
committed reversible error by failing to
intervene ex mero motu. 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.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)
(citation omitted).
In full, N.C. Gen. Stat. § 8-57(a) provides, “[t]he spouse
of the defendant shall be a competent witness for the defendant
in all criminal actions, but the failure of the defendant to
call such spouse as a witness shall not be used against him.
Such spouse is subject to cross-examination as are other
witnesses.” (Emphasis added).
Upon review of the record in this case, we hold the State’s
comments during closing arguments regarding defendant’s failure
to call his wife as a witness were improper under N.C. Gen.
Stat. § 8-57(a). Yet, given the evidence against defendant, we
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find a different result is unlikely absent the comments and
therefore hold defendant is not entitled to a new trial.
In support of his contention that the trial court failed to
intervene ex mero motu, defendant cites two 1976 decisions by
our Supreme Court, State v. McCall, 289 N.C. 570, 223 S.E.2d 334(1976) and State v. Thompson, 290 N.C. 431, 226 S.E.2d 487(1976), and argues for the same result in the present case.
In McCall, our Supreme Court granted the defendant a new
trial where the prosecution commented on the fact that the
defendant’s wife did not testify. McCall, 289 N.C. at 577-78,
223 S.E.2d at 338. The Court reasoned,
[t]he provisions of [N.C. Gen. Stat. §] 8-
57, and decisions of this Court interpreting
and applying them, impel the conclusion that
where evidence is rendered incompetent by
statute, it is the duty of the trial judge
to exclude it, and his failure to do so is
reversible error, whether objection is
interposed and exception noted or not. In
such case it is the duty of the judge to act
on his own motion. The rule applies with
equal force to the argument of counsel when
evidence forbidden by statute is
argumentatively placed before the jury and
used to the prejudice of the defense. When
this occurs it is the duty of the judge ex
mero motu to intervene and promptly instruct
the jury that the wife's failure to testify
and the improper argument concerning that
fact must be disregarded and under no
circumstances used to the prejudice of the
defendant.
Id. (Citations omitted).
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Similarly, in Thompson, the Court granted the defendant a
new trial where the prosecution commented on the defendant’s
failure to call his wife to provide an alibi. Thompson, 290
N.C. at 446-47, 226 S.E.2d at 496-97. Relying on its decision
in McCall, the Court noted the prosecution’s comment “violate[d]
both the letter and the spirit of [N.C. Gen. Stat.] § 8-57.”
Id. at 447, 226 S.E.2d at 497. The Court then pointed out that
the primary error was not the judge’s, but the prosecution’s
“flagrant disregard of a mandatory rule which has been well-
known statutory law in this State for over a hundred years.”
Id. at 448, 226 S.E.2d at 497.
By highlighting to the jury the fact that
she was not a witness, the district
attorney, in violation of [N.C. Gen. Stat.]
§ 8—57, used the failure of the wife to
testify for her husband to the prejudice of
defendant. Notwithstanding the failure of
the defendant's counsel to object to the
argument it was incumbent upon the trial
judge, on his own initiative, to intervene
and to instruct the jury to disregard the
solicitor's argument.
Id. at 447-48, 226 S.E.2d at 497.
However, as our Supreme Court recognized in State v.
Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149 (2002), the year
after the McCall and Thompson decisions were announced, N.C.
Gen. Stat. § 15A-1443 was enacted. “Pursuant to N.C. Gen. Stat.
§ 15A–1443(a), defendant has the burden of showing there is a
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reasonable possibility that a different result would have been
reached at trial had the trial court's error not occurred.”
State v. Peterson, 179 N.C. App. 437, 470, 634 S.E.2d 594, 618
(2006). Specifically, the statute provides in pertinent part:
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises.
The burden of showing such prejudice under
this subsection is upon the defendant.
N.C. Gen. Stat. § 15A-1443(a) (2013).
Although defendant does not address N.C. Gen. Stat. § 15A-
1443 directly, defendant does make a prejudice argument.
Defendant contends the State’s argument was “undoubtedly
calculated to show that [defendant] was lying as to the ultimate
question of who was the aggressor” and “was the last thing the
jury heard prior to the jury instructions, where they were asked
to decide if [defendant] acted in self-defense or if he cut Mr.
Culbreth with no justification for his actions.” While this may
be, considering all the evidence in the record, we are not
convinced that there is a reasonable possibility that a
different result would have been reached absent the improper
comments during the State’s closing argument. Therefore, we
hold defendant has failed to meet his burden to show prejudice
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and the State’s closing argument, although improper, does not
warrant a new trial.
III. Conclusion
For the reasons discussed above, we find no prejudicial
error warranting a new trial.
No prejudicial error.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).