State v. Martin , 248 N.C. App. 84 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1104
Filed: 21 June 2016
Forsyth County, No. 14 CRS 53902
STATE OF NORTH CAROLINA
v.
JOSHUA WAYNE MARTIN, Defendant.
Appeal by defendant from judgment entered 14 January 2015 by Judge
Michael D. Duncan in Forsyth County Superior Court. Heard in the Court of Appeals
30 March 2016.
Kimberly P. Hoppin for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Andrew O.
Furuseth, for the State.
ELMORE, Judge.
A jury found Joshua Wayne Martin (defendant) guilty of robbery with a
dangerous weapon. On appeal by writ of certiorari, defendant argues that the trial
court committed reversible error and abused its discretion by overruling his
objections during the State’s closing arguments. We hold that defendant received a
trial free from prejudicial error.
I. Background
STATE V. MARTIN
Opinion of the Court
The State’s evidence at trial tended to show the following: On 22 April 2014,
defendant entered the Adams Market convenience store with a shotgun and
demanded money from the manager, Wanda Robinson. Ms. Robinson complied,
turning over approximately $250.00 from the cash register. Defendant then fled from
the convenience store, leaving Ms. Robinson unharmed. Police identified defendant
as the robbery suspect and arrested him three days later.
During interrogation, defendant told police that the shotgun used in the
robbery was under a truck bed cover behind his father’s house. Police found the
shotgun in that same location. It was unloaded. Defendant’s father testified that the
shotgun was his, though he did not have ammunition for it and had not fired it since
he was thirteen or fourteen years old. He also testified that he did not know when
defendant took the shotgun.
At trial, defendant admitted that he “robbed the store.” When asked how he
used the shotgun, defendant testified, “I pointed it towards Ms. Wanda and asked for
the money and then I pointed it away from her and grabbed the money.” According
to defendant, however, the shotgun was unloaded during the robbery. During closing
arguments, both attorneys argued whether the shotgun defendant used during the
robbery could be considered a dangerous weapon. Defendant’s counsel stated on
several occasions that “the law recognizes that an unloaded gun is not a dangerous
weapon.” She also acknowledged that an unloaded gun could be a dangerous weapon
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Opinion of the Court
if it was used to strike someone, “but there is no evidence of that” in this case. Over
defendant’s objections, the prosecution argued to the jury that the shotgun could be
a dangerous weapon even if it was unloaded:
It is easy to say there is no ammunition in the shotgun. It
is easy to remove ammunition from the shotgun in the
three-day period from the robbery until the gun was found,
but again at the end of the day, as we’ll go through in a few
moments with the elements of a crime[,] it doesn’t matter
whether there is ammunition in the shotgun or not.
MS. TOOMES: Objection.
THE COURT: Overruled.
....
The sixth and seventh elements, ladies and gentlemen of
the jury[,] are the key to the case. This is what makes this
case an Armed Robbery case as opposed to a Common Law
Robbery case. The sixth element is that at the time the
defendant obtained the property, at the time they [sic] took
the money, this defendant was in possession of a dangerous
weapon. You are going to be told that a dangerous weapon
is one, once again[,] that is likely to cause death or serious
bodily injury. You are also going to be told and that
parenthetical is important is very important as well “ . . . or,
that it reasonably appeared to the victim that a dangerous
weapon was being used in which case you may infer the[ ]
said instrument was what the defendant’s conduct
represented it to be.”
Once again we know that this shotgun is a dangerous
weapon for two reasons: No. 1) because someone can fire
the shotgun and shoot someone else with a projectile or
projectiles that would come from the shotgun, and No. 2)
even if a shotgun is not loaded with any ammunition, it is
a dangerous weapon in and of itself. You have heard
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STATE V. MARTIN
Opinion of the Court
testimony, the barrel of a shotgun is made of steel. It is a
hard surface. This is not foam. This is not [s]alt. This is
not plastic. This is not a toy. This [is] real. What the
defendant used is real. One can imagine, if a person takes
this shotgun and strikes or assaults someone, especially
doing so repeatedly, that will likely cause or will cause
serious bodily injury or death. Our common sense and
reason tell us that. That is why if the defendant had
brought in a plastic or toy gun and pointed that at the
victim, this would not be an armed robbery case, or when
you bring a real gun and point a shotgun at someone it is
armed robbery.
MS. TOOMES: I’m going to object, Your Honor.
THE COURT: Overruled.
(Emphasis added.)
Immediately after closing arguments, the trial court instructed the jury that
“[b]oth attorneys in their closing arguments have stated what they believe the law is
in this case. I will instruct you that if their statements in closing arguments differ
from what I am getting ready to tell you the law is then you are to follow the
instructions of the law as I given it [sic] to you.” The court then instructed the jury
on the elements of robbery with a dangerous weapon and common law robbery. As to
the dangerous weapon element, the court explained that
an object incapable of endangering or threatening lives
cannot be considered a dangerous weapon. In determining
whether evidence of a particular instrument constitutes
evidence of a dangerous weapon, the determinative
question is whether there is evidence that a person’s life
was in fact endangered or threatened. Now members of the
jury, a robbery victim, that is one who is a victim of a
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STATE V. MARTIN
Opinion of the Court
robbery, more particularly, an armed robbery, should not
have to force the issue of whether the instrument being
used actually is also loaded and can shoot a bullet.
In an Armed Robbery case the jury may conclude that the
weapon is what it appeared to the victim to be, a loaded
gun; if, however, there is any evidence that the weapon was
in fact not what it appeared to be, that is a loaded gun, to
the victim, the jury must determine what, in fact, the
instrument was. It is for the jury to determine the nature
of the weapon, and [ ] how it was used[,] and [ ] you could,
but you’re not required to infer from the appearance of the
instrument[ ] to the victim or alleged victim that it was a
dangerous weapon.
On 14 January 2015, the jury found defendant guilty of robbery with a
dangerous weapon, and the trial court sentenced defendant to an active term of sixty-
seven to ninety-three months of imprisonment. Defendant filed a written notice of
appeal on 20 January 2015, though the notice failed to “designate the judgment or
order from which appeal is taken,” as required by Rule 4. N.C. R. App. P. 4(b) (2016).
Despite the timely filing and service on the State, appellate entries were not made
until 6 April 2015. Nevertheless, we allow defendant’s petition for writ of certiorari
pursuant to Rule 21(a)(1) to review the merits of the appeal. N.C. R. App. P. 21(a)(1)
(2016) (“The writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take timely action . . . .”);
see State v. Gordon, 228 N.C. App. 335, 337, 745 S.E.2d 361, 363 (2013) (“ ‘Appropriate
circumstances’ may include when a defendant’s right to appeal has been lost because
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Opinion of the Court
of a failure of his or her trial counsel to give proper notice of appeal.” (citing State v.
Hammonds, 218 N.C. App. 158, 163, 720 S.E.2d 820, 823 (2012))).
II. Discussion
Defendant argues that the trial court erred in overruling his objections to the
statements made by the prosecutor during its closing argument regarding whether
the shotgun was a dangerous weapon.
“It is well settled that the arguments of counsel are left largely to the control
and discretion of the trial judge and that counsel will be granted wide latitude in the
argument of hotly contested cases.” State v. Williams, 317 N.C. 474, 481, 346 S.E.2d
405, 410 (1986) (citations omitted). Pursuant to N.C. Gen. Stat. § 15A-1230, counsel
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) (2015). “Counsel are entitled to argue to the jury all
the law and facts in evidence and all reasonable inferences that may be drawn
therefrom, but may not place before the jury incompetent and prejudicial matters and
may not travel outside the record by interjecting facts of their own knowledge or other
facts not included in the evidence.” State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d
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118, 144 (1993) (citing State v. McNeil, 324 N.C. 33, 48, 375 S.E.2d 909, 918
(1989), sentence vacated, 494 U.S. 1050, 108 L. Ed. 2d 756, on remand, 327 N.C. 388,
395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991)). “Incorrect
statements of law in closing arguments are improper . . . .” State v. Ratliff, 341 N.C.
610, 616–17, 461 S.E.2d 325, 328–29 (1995) (holding that the trial court erred in
failing “to sustain defendant’s objection and instruct the jury to disregard” the
prosecutor’s improper statement of the law).
“The standard of review for improper closing arguments that provoke timely
objection from opposing counsel is whether the trial court abused its discretion by
failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106
(2002) (citations and quotation marks omitted). “Abuse of discretion results where
the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285,
372 S.E.2d 523, 527 (1988). “[S]tatements contained in closing arguments to the jury
are not to be placed in isolation or taken out of context on appeal. Instead, on appeal
we must give consideration to the context in which the remarks were made and the
overall factual circumstances to which they referred.” State v. Green, 336 N.C. 142,
188, 443 S.E.2d 14, 41 (1994).
In North Carolina, armed robbery is defined in N.C. Gen. Stat. § 14-87 as
follows:
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Opinion of the Court
(a) Any person or persons who, having in possession or with
the use or threatened use of any firearms or other
dangerous weapon, implement or means, whereby the life
of a person is endangered or threatened, unlawfully takes
or attempts to take personal property from another or from
any place of business, residence or banking institution or
any other place where there is a person or persons in
attendance, at any time, either day or night, or who aids or
abets any such person or persons in the commission of such
crime, shall be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2015). “The essential difference between armed robbery
and common law robbery is that the former is accomplished by the use or threatened
use of a firearm or other dangerous weapon whereby the life of a person is endangered
or threatened.” State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707 (1973).
In State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986), our Supreme Court
summarized the evidentiary rules in armed robbery cases where the “dangerous
weapon” element is at issue:
(1) When a robbery is committed with what appeared to the
victim to be a firearm or other dangerous weapon capable
of endangering or threatening the life of the victim and
there is no evidence to the contrary, there is a mandatory
presumption that the weapon was as it appeared to the
victim to be. (2) If there is some evidence that the
implement used was not a firearm or other dangerous
weapon which could have threatened or endangered the life
of the victim, the mandatory presumption disappears
leaving only a permissive inference, which permits but
does not require the jury to infer that the instrument used
was in fact a firearm or other dangerous weapon whereby
the victim’s life was endangered or threatened. (3) If all
the evidence shows the instrument could not have been a
firearm or other dangerous weapon capable of threatening
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Opinion of the Court
or endangering the life of the victim, the armed robbery
charge should not be submitted to the jury.
Id. at 124–25, 343 S.E.2d at 897.
Here, defendant argues that the prosecutor made an incorrect statement of the
law when he told the jury that “it doesn’t matter whether there is ammunition in the
shotgun or not.” According to defendant, the prosecutor’s statements turned the
“permissive inference,” whereby the jury was permitted but not required to infer that
the shotgun was a dangerous weapon, into a “mandatory presumption that the
weapon was as it appeared to the victim to be.” Defendant also contends that it was
improper for the prosecutor to tell the jury that “when you bring a real gun and point
a shotgun at someone it is armed robbery,” as that statement, in context, suggests
the shotgun was a dangerous weapon “in and of itself” because it could be used to
“strike or assault” someone. We agree.
Whether the shotgun was loaded at the time of the robbery was relevant
because “[a]n object incapable of endangering or threatening life cannot be considered
a dangerous weapon.” State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913
(2002) (citing Allen, 317 N.C. at 122, 343 S.E.2d at 895). In Frazier, we explained
that “where a defendant presents evidence that the weapon used during a robbery
was unloaded or otherwise incapable of firing, such evidence ‘tend[s] to prove the
absence of an element of the offense [of armed robbery].’ ” Id. (quoting State v. Joyner,
67 N.C. App. 134, 136, 312 S.E.2d 681, 682 (1984), aff’d, 312 N.C. 779, 324 S.E.2d 841
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STATE V. MARTIN
Opinion of the Court
(1985)). If the jury believed defendant’s evidence tending to show that the shotgun
was unloaded, it should have found defendant not guilty of armed robbery.
In addition, while prior decisions have held that a firearm incapable of firing
may be a dangerous weapon where it was used to strike or bludgeon the victim, e.g.,
State v. Funderburk, 60 N.C. App. 777, 778–79, 299 S.E.2d 822, 823 (1983), there was
no evidence in this case that defendant used the shotgun to strike Ms. Robinson. By
suggesting that the shotgun could have been used to strike her, the prosecutor
ignored “the circumstances of use” from which we “determine whether an instrument
is capable of threatening or endangering life.” State v. Westall, 116 N.C. App. 534,
539, 449 S.E.2d 24, 27 (1994) (citing State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d
389 (1982)); see State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982) (“[T]he
determinative question is whether the evidence was sufficient to support a jury
finding that a person’s life was in fact endangered or threatened.” (citing State v.
Moore, 279 N.C. 455, 183 S.E.2d 546 (1971))).
Although we agree that the prosecutor’s statements were improper, defendant
has failed to show prejudice. N.C. Gen. Stat. § 15A-1442(6), -1443(a) (2015). “[A]s a
general rule, a trial court cures any prejudice resulting from a prosecutor’s
misstatements of law by giving a proper instruction to the jury.” State v. Goss, 361
N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (citing State v. Trull, 349 N.C. 428, 452,
509 S.E.2d 178, 194 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999)). After
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Opinion of the Court
closing arguments, the trial court admonished the jury to follow its own instructions
and not the attorneys’ statements of the law. The court then properly instructed the
jury on the elements of armed robbery, including the permissive inference regarding
the “dangerous weapon” element, and the lesser-included offense of common law
robbery. Based on the steps taken by the trial court, defendant has failed to show
prejudice which would warrant a new trial.
III. Conclusion
We conclude that defendant received a trial free from prejudicial error. The
trial court took appropriate steps to correct the prosecutor’s misstatements of the law
and otherwise properly instructed the jury on the law and the offenses at issue.
NO PREJUDICIAL ERROR.
Judges HUNTER, JR. and DAVIS concur.
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