Opinion
No. COA11–1196.
2012-07-3
STATE of North Carolina v. Billy Ray BRIDGES, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Michael E. Casterline for defendant-appellant.
Appeal by defendant from judgments entered 15 February 2011 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 4 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Michael E. Casterline for defendant-appellant.
HUNTER, ROBERT C., Judge.
Billy Ray Bridges (“defendant”) appeals from his conviction in Cleveland County Superior Court on charges of first-degree murder (06 CRS 52585) and possession of a firearm by a felon (10 CRS 3523). After careful review, we find no error.
Background
The State's evidence tended to establish the following. In 2006, defendant lived with his sister in a residential neighborhood in Shelby, North Carolina. Dennis and Wanda Porter (“Mr. Porter” and “Mrs. Porter”) lived directly across the street from defendant.
In 2005, defendant submitted to a psychological evaluation as part of a determination of eligibility for Social Security disability benefits. The psychologist diagnosed defendant with major depression of moderate intensity and noted that he was subject to inappropriate intense anger that had included aggression. He was also evaluated by a psychiatrist who diagnosed defendant with major depression and psychosis. Defendant was found to be delusional and anxious; he was diagnosed with panic disorder, obsessive-compulsive disorder, and a learning disability.
In January 2006, defendant's dog was taken by Animal Control and euthanized after it killed a neighbor's dog. Defendant was distraught over the death of his dog, and he mistakenly believed that Mr. Porter had called Animal Control about the dog. Defendant and Mr. Porter got into an argument in the street between their houses in which defendant repeatedly pushed Mr. Porter despite Mrs. Porter's insistence that they had nothing to do with the dog being taken away. Following this incident, Mr. Porter told his wife to keep the blinds closed at night because he had witnessed defendant spying on another house with binoculars. He also asked her not to walk their dogs at night because he was afraid of what defendant might do to her. Mr. Porter placed a knife and a baseball bat in the couple's vehicles for protection against defendant.
On 21 April 2006, as defendant was working in his garden, defendant saw Mr. Porter come out of his house. Mr. Porter made eye contact with defendant and then got on his riding lawnmower. Defendant became filled with rage; he walked across the street and killed Mr. Porter.
At approximately 2:15 p.m., a neighbor heard a gunshot. When the neighbor looked out of his window, he saw a vehicle in Mr. Porter's driveway and saw defendant carrying or dragging something as he attempted to put the object in the back of the vehicle. The same neighbor later saw defendant standing at the door of his sister's house holding a long-barreled gun.
At approximately 2:20 p.m., a second neighbor saw defendant's car parked in Mr. Porter's driveway with the hatchback open. Defendant was struggling with something in the rear of the car.
A third neighbor was outside at the time and heard four gunshots. He saw Mr. Porter's lawnmower sitting in the Porters' yard with no one sitting on it. Approximately fifteen minutes later, he saw defendant in Mr. Porter's front yard rolling up a cord or hose. He then saw defendant walk slowly around Mr. Porter's yard as if he were looking for something; defendant then bent down near the lawnmower and appeared to spread dirt around with his hands.
Mrs. Porter arrived home around 6:00 p.m. and was unable to find her husband. She called 9–1–1 to report that her husband was missing and that her neighbors had heard gunshots. Mrs. Porter then went to the house of Cleveland County Deputy Sheriff John McIntyre (“McIntyre”). McIntyre and another deputy from the neighborhood searched the Porters' house and yard but were unable to locate Mr. Porter.
McIntyre noticed what appeared to be two large pools of blood on the ground near the Porters' driveway. He also noticed what he thought was a broken piece of pottery but which was later identified as a piece of skull. McIntyre saw that Mr. Porter's riding lawnmower, normally kept in the garage, was parked behind the house.
Soon thereafter, the Cleveland County crime scene investigator found skull fragments and tissue spatter near and on the Porter's driveway along with shotgun wadding and several shotgun pellets. A shotgun shell was found under a car tire in the driveway and was identified as a Remington 12 gauge double-aught buck shell.
The investigator noticed that the garden hose, normally kept on a spool, had been extended out into the yard. Stretching it out, the investigator observed that the hose reached to a “washed-out area” near the blood and shotgun pellets where it appeared some of the grass had been washed away. Mr. Porter's DNA was later matched to DNA isolated from a swabbing of the hose nozzle.
The investigator found shotgun pellet marks in the fabric of the rear side of the lawnmower seat. A firearms expert confirmed that the holes in the seat fabric were consistent with holes caused by shotgun pellets. The expert also found a mark on the seat caused by a plastic shotgun wadding; this indicated the shot that caused the damage was fired from relatively close range.
Late that afternoon, defendant's car, a white Ford, was found on the Blue Ridge Parkway by Park Ranger John Anthony (“Anthony”). Anthony considered the car suspicious but did not see anyone present. The next day when Anthony arrived at work he became aware that an alert had been issued for the white Ford. Anthony contacted the Cleveland County Sheriff's Office, whose officers, along with investigators from the State Bureau of Investigation, found Mr. Porter's body in the woods near the location where defendant's car had been spotted the day before. Mr. Porter's body was found at the end of a trial in the woods and was covered with leaves.
Later that day defendant's car was spotted in Cherokee, North Carolina. After a brief pursuit, defendant was stopped and arrested. A search of defendant's car produced a Glock .45 caliber handgun, a Norinco 7.62 caliber rifle, a Mossberg 12–gauge shotgun, ammunition for all three firearms (including Remington 12–gauge double-aught buck shells that matched the fired shell found at the crime scene), and a bulletproof vest. DNA testing matched Mr. Porter's DNA to DNA extracted from swabbings of the inside of defendant's car.
An autopsy revealed that Mr. Porter had two large wounds on the left side of his neck, consistent with contact shotgun wounds, as well as groups of wounds on both sides of his back and matching exit wounds on the front of his abdomen. Any of the individual wounds would have been lethal but it was determined the head wounds caused Mr. Porter's death. The pathologist found double-aught buckshot pellets in Mr. Porter's body. He also found wounds on Mr. Porter's thigh that indicated Mr. Porter was sitting down when he was shot.
Defendant was arrested and indicted for first-degree murder and possession of a firearm by a felon. Shortly after his arrest a forensic psychologist, Dr. John Warren, III (“Dr.Warren”), was hired by defendant's counsel to conduct a psychological evaluation. Dr. Warren and other psychologists from his practice met with defendant several times.
Defendant was found to have an IQ of 80, which was in the low-average to borderline-mentally-retarded range. Dr. Warren also diagnosed defendant with paranoid personality disorder and delusional disorder of the persecutory type. He concluded defendant was paranoid, had a distorted view of reality, and was specifically obsessed with the death of his dog and the role he believed Mr. Porter had played in its euthanization. Defendant was impaired in his ability to comprehend the consequences of his actions and alternatives to his behavior. Nevertheless, Dr. Warren testified that defendant admitted to shooting Mr. Porter, that he believed defendant made the decision to conceal the homicide, and that his decision was “more intentional.”
The Cleveland County Sheriff obtained a warrant to search the home of defendant's sister. Defendant filed a motion on 2 February 2011 to suppress the evidence found at his sister's house including a Remington 12–gauge shotgun. The motion was granted.
The matter came on for trial during the 7 February 2011 Criminal Session in Cleveland County Superior Court. The parties stipulated that defendant had a previous felony conviction. At the close of the State's evidence, defendant moved for dismissal of the charges on the grounds that the State had failed to prove premeditation or deliberation with regard to the first-degree murder charge and that there was a fatal discrepancy between the indictment and the State's evidence with regard to the charge of possession of a firearm by a felon. The motion was denied.
At the close of all evidence, defendant moved for dismissal for the same reasons or, alternatively, for a mistrial on the basis that the prosecution had asked Dr. Warren a question that referred to suppressed evidence. Both motions were denied.
During closing arguments, which were not recorded, the prosecutor made an inappropriate religious statement. The trial court sustained an objection to the prosecutor's comment and gave the jury a curative instruction. Following closing arguments, defendant moved for a mistrial on the basis of the religious content of the argument. The motion was denied.
Defendant proposed jury instructions on the subject of premeditation and deliberation. The trial court rejected defendant's proposed instructions. The trial court later called the jury back into the courtroom to read to the jurors the pattern jury instructions on lack of mental capacity to form specific intent after premeditation and deliberation.
On 15 February 2011, the jury found defendant guilty of first-degree murder and possession of a firearm by a felon. Defendant moved to set aside the verdict, moved for a mistrial and a new trial. The motions were denied. The trial court sentenced defendant to life in prison without parole for first-degree murder and 16–20 months imprisonment for possession of a firearm by a felon. Defendant entered notice of appeal in open court.
Discussion
A. Proposed Jury Instructions
Defendant argues the trial court erred by denying his request to give his proposed jury instructions on first-degree murder. We disagree.
In North Carolina, “any ... willful, deliberate and premeditated killing ... shall be deemed to be a murder in the first degree....” N.C. Gen.Stat. § 14–17 (2011) (emphasis added). Defendant contends that his proposed instructions would have allowed the jury to “connect[ ]” the elements of intent, premeditation, and deliberation to his defense theory of diminished capacity. Specifically, defendant argues that in addition to allowing the jury to infer the presence of intent, premeditation, and deliberation from the State's circumstantial evidence, his proposed instructions would have also have allowed the jury to infer the absence of these elements due to his diminished mental capacity.
On appeal of a trial court's refusal to use proposed jury instructions,
[t] he party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by [the] instruction.... “[I]t is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.”
State v. Blizzard, 169 N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005) (quoting Bass v. Johnson, 149 N.C.App. 152, 160, 560 S.E .2d 841, 847 (2002) (emphasis added)). When a defendant requests instructions that are “correct in law and supported by the evidence, the court must give the instruction in substance,” not verbatim. State v. Ball, 324 N.C. 233, 238, 377 S.E.2d 70, 73 (1989) (emphasis added).
Our review of the trial court's jury instructions on first-degree murder reveals that the instructions were substantially the same as defendant's proposed instructions. Our Supreme Court found no error in the rejection of nearly identical instructions proposed by the defendant in State v. Wallace, 351 N.C. 481, 524–25, 528 S.E.2d 326, 353–54,cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000), where the trial court instructed the jury utilizing the North Carolina pattern jury instructions. There the defendant sought to supplement the pattern instructions on the element of deliberation. Id. The Court rejected the argument and concluded the “[d]efendant's proposed instructions merely articulate[d] variations on the definition.” Id. at 525,528 S.E.2d at 353.
Similarly, here, the trial court instructed the jury utilizing the pattern jury instruction for first-degree murder, N.C.P.I.Crim. 206.14. As to the element of intent, the trial court stated, in pertinent part: “An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.” Defendant proposed adding: “Likewise, the absence of intent to kill may also be inferred from relevant circumstances, such as the mental condition of the defendant at the time of the assault.”
On the elements of premeditation and deliberation, the trial court instructed as follows:
Four, the State must prove that the defendant acted with premeditation. That is that the defendant formed the intent to kill the victim over some period of time, however short, before the defendant acted.
And fifth, the State must prove that the defendant acted with deliberation, which means that the defendant acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion.
If the intent to kill is formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.
Through his proposed instructions, defendant sought to add, inter alia: “Likewise, the absence of either premeditation or deliberation may be inferred from circumstances, such as the mental or emotional condition of the defendant at the time of the killing.” The parties agree that both the instructions given and those proposed were an accurate statement of the law.
Defendant's argument fails to acknowledge that the trial court instructed the jury on diminished mental capacity, stating: “If as a result of lack of mental capacity the defendant did not have the specific intent to kill the deceased, formed after premeditation and deliberation, then he would not be guilty of first degree murder.” As for defendant's desire to emphasize that the absence of premeditation and deliberation could be inferred from the evidence, we conclude such an instruction was not necessary; it is self-evident that where the trial court instructs the jury that it may infer the evidence established an element of the crime charged the jury is not compelled to do so. Additionally, in light of Wallace, 351 N.C. at 525, 528 S.E.2d at 353, we conclude defendant's proposed instructions merely provided variations on definitions provided in the pattern jury instructions. Therefore, the trial court did not err in refusing to use defendant's proposed instructions.
B. Motion to Dismiss the First–Degree Murder Charge
Defendant argues the trial court erred in denying his motion to dismiss the charge of first-degree murder for insufficient evidence of premeditation or deliberation. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). “[T]he trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995). When the evidence presented is circumstantial, “the question for the court is whether a reasonable inference of [the] defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.” State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965).
Defendant contends that the State has failed to prove his state of mind at the time of the killing. He argues that the State presented no evidence as to what took place between the two men and that the State's case is entirely circumstantial. However, “[p]remeditation and deliberation are mental processes which are ordinarily not susceptible to proof by direct evidence. In a majority of cases, they must be proved by circumstantial evidence.” State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992) (emphasis added). Premeditation and deliberation may be implied from the following circumstances:
(1) absence of provocation on the part of the deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
Id.
The State provided substantial evidence that defendant acted with premeditation and deliberation. There was no evidence that Mr. Porter did anything to provoke defendant other than making eye contact with him shortly before defendant walked across the street and shot him. See State v. Small, 328 N.C. 175, 183, 400 S.E.2d 413, 417 (1991) (absence of provocation supported jury's finding of premeditation and deliberation). Testimony established that defendant resented Mr. Porter for his supposed involvement in the death of defendant's dog. Defendant was obsessed with the death of his dog and accosted Mr. Porter in the street after the dog was euthanized. See State v. Collins, 335 N.C. 729, 739, 440 S.E.2d 559, 565 (1994) (noting that evidence of “ill-will or previous difficulty” between the defendant and the victim supported a finding of premeditation and deliberation).
Additionally, the manner in which defendant shot Mr. Porter and his actions after the shooting provide substantial evidence of premeditation and deliberation. The autopsy revealed that Mr. Porter was shot two times in the back from relatively close range while sitting on his lawnmower and two more times by placement of a shotgun directly against Mr. Porter's neck; any one of the wounds would have been sufficient to kill Mr. Porter. See Small, 328 N.C. at 183, 400 S.E.2d at 417 (the presence of a “hard contact” wound, where the defendant placed the gun directly against the victim's head before firing, was evidence of premeditation and deliberation); Olson, 330 N.C. at 565–66, 411 S.E.2d at 596 (the absence of provocation as well as the fact that the defendant continued shooting after inflicting a fatal wound on the victim were evidence of the defendant's premeditation and deliberation).
Defendant's premeditation and deliberation in killing Mr. Porter could also be inferred from the evidence that defendant went to great lengths to conceal the crime: by moving Mr. Porter's lawnmower to the back yard; by attempting to wash away Mr. Porter's blood and tissue from the front yard; by removing spent shotgun shells from the scene; and by disposing of Mr. Porter's body in a remote location in the Blue Ridge Mountains. Defendant's expert witness even testified that defendant made the decision to conceal the homicide. See State v. Patel, ––– N.C. ––––, ––––, 719 S.E.2d 101, 109–10 (2011) (the defendant's effort to dispose of the victim's body was evidence of premeditation and deliberation).
Despite defendant's argument to the contrary, there was substantial evidence from which the jury could have concluded that defendant acted with premeditation and deliberation in killing Mr. Porter. The trial court did not err in denying his motion to dismiss the charge of first-degree murder.
C. Motion to Dismiss the Firearm Charge
Defendant argues the trial court erred in denying defendant's motion to dismiss the charge of possession of a firearm by a felon in violation of N.C. Gen.Stat. § 14–415.1. The indictment charged that defendant “unlawfully, willfully and feloniously did possess and have in the defendant's custody and control a Remington Model 870 12 guage [sic] Shotgun bearing Serial Number 0814891M, which is a firearm.” Although a shotgun matching this description was found in the house where defendant was living, it was suppressed by the trial court due to an improper warrant. Defendant argues that because the State was unable to prove that defendant possessed the specific firearm named in the indictment, it was error for the trial judge to deny defendant's motion to dismiss. We disagree.
i. Preservation of the Issue
As a threshold matter, the State contends that defendant failed to preserve this issue for appeal as he failed to argue at trial that the State's evidence varied from the indictment. However, it is clear from the record that defendant's argument in support of his motion to dismiss was that the firearm listed in the indictment was suppressed evidence and that the firearm was not presented to the jury. Thus, defendant has preserved the issue for appeal. See State v. Curry, 203 N.C.App. 375, 384, 692 S.E.2d 129, 137 (2010) (“[A] ‘defendant may raise the question of variance between the indictment and the proof by a motion’ to dismiss, but [the] defendant must also state this at trial as the grounds for the motion to dismiss.” (quoting State v. Skinner, 162 N.C.App. 434, 446, 590 S.E.2d 876, 885 (2004)).
ii. Variance between Indictment and Proof
Defendant contends that although the State was not required to include a description of the firearm in its indictment, once it did so it was required to prove that defendant possessed the firearm described. Defendant's reliance on State v. Yarborough, 198 N.C.App. 22, 27, 679 S.E.2d 397, 403 (2009), is misplaced. There, this Court's holding was based on the underlying rule that when an indictment alleges intent to commit a specific felony, the State must prove “the particular felonious intent alleged.” Id. That rule is not at issue here, thus Yarborough is distinguishable.
In State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997), the defendant was charged with discharging “a shotgun, a firearm” into a dwelling house. Id. The evidence at trial, however, indicated that the weapon used was a handgun, not a shotgun. This Court held that because the essential element of the crime was discharging a firearm, the description of the firearm as “a shotgun” was surplusage and did not create a fatal variance. Id.; see State v. Blackwell, 163 N.C.App. 12, 20, 592 S.E.2d 701, 707 (2004) (the variance between the brand name of firearm as charged and the brand name presented at trial was not fatal because “any person of common understanding would have understood that [the defendant] was charged with possessing the sawed-off shotgun that he used to shoot the victim on the night alleged”).
Here, the crime at issue was possession of a firearm by a felon. “[T]he State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.” State v. Wood, 185 N.C.App. 227, 235, 647 S.E.2d 679, 686,disc. review denied,361 N.C. 703, 655 S.E.2d 402 (2007). As defendant conceded his previous felony conviction, the only element at issue was possession of a firearm. Therefore, the description of the firearm in the indictment was not an essential element but rather was surplusage.
The State's evidence was sufficient for the jury to conclude that defendant possessed a firearm. Defendant admitted to Dr. Warren that he shot Mr. Porter; the medical examiner concluded that Mr. Porter was killed with a shotgun; a neighbor witnessed defendant carrying a long-barreled gun shortly after hearing a gunshot; and when defendant was arrested, several firearms were found in his vehicle, including a shotgun. Therefore, the trial court's denial of the motion to dismiss was not error.
D. Mention of Suppressed Evidence
Defendant argues the trial court erred in denying defendant's motion for a mistrial based on the State's reference to suppressed evidence. We disagree.
N.C. Gen.Stat. § 15A–1061 (2011) provides that a trial court “must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings ... resulting in substantial and irreparable prejudice to the defendant's case.” A decision to grant or deny a mistrial is at the discretion of the trial court and will be reversed only on a clear showing that the court abused its discretion. State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990). “ ‘A mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant's case and make it impossible for the defendant to receive a fair and impartial verdict.’ “ Id. (quoting State v. Laws, 325 N.C. 81, 105, 381 S.E.2d 609, 623 (1989), vacated on other grounds,494 U.S. 1022, 108 L.Ed.2d 603 (1990)).
Defendant's sister's house was searched pursuant to a warrant and several firearms were found including a Remington 12–gauge shotgun and two AR–15 rifles. However, this evidence was suppressed by the trial court. During cross-examination of defendant's expert witness, Dr. Warren, the prosecutor asked a series of questions regarding the basis for his report on defendant; specifically, the prosecutor asked about interviews Dr. Warren's employees had conducted with defendant. In his answer, Dr. Warren referred to some of the weapons that were subject to the trial court's suppression order. Defendant objected and moved for a mistrial. The motion was denied.
The trial court ruled Dr. Warren's answer was admissible because Dr. Warren stated on direct examination that he relied on the interviews conducted by his employees to write his report concerning defendant's state of mind. Pursuant to N.C. Gen.Stat. § 8C–1, Rule 705 (2011), the facts and data that an expert witness uses in formulating his opinion may be disclosed on cross-examination. Furthermore, N.C. Gen.Stat. § 8C–1, Rule 703 states that the facts or data which the expert uses to formulate his opinion need not be admissible. The commentary to Rule 703 clarifies that “an expert may testify as to the facts upon which his opinion is based, even though the facts would not be admissible as substantive evidence.”
This is especially true on cross-examination because “the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.” State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981); see State v. Warren, 347 N.C. 309, 317, 492 S.E.2d 609, 613 (1997) (where the defendant's expert testified that the defendant's prior bad acts formed the basis of the defendant's psychological diagnosis, the State was justified in asking about the nature of those acts on cross-examination, even if they would otherwise be inadmissible). Thus, notwithstanding the suppression order, the question was proper to explain the basis of an expert opinion.
Assuming, arguendo, that the testimony was admitted in error, defendant has failed to prove he was prejudiced. Defendant argues that he “was prejudiced by the jury's exposure to evidence that he possessed a number of guns—and that he possessed a Remington shotgun, in particular.” It is unclear how this could have prejudiced the jury given the State's other substantial evidence that defendant was seen carrying a long-barreled gun and was in possession of a number of guns, including a shotgun, when he was arrested. It is uncontested that defendant shot Mr. Porter and the evidence is clear that it was with a shotgun containing Remington 12–gauge double-aught buck shells. Given this other evidence, it is unlikely that a single mention of these suppressed weapons would have prejudiced the jury. The trial court did not abuse its discretion in denying defendant's motion for a mistrial.
E. State's Closing Argument
Defendant argues the trial court erred in not declaring a mistrial after the prosecutor made an inappropriate closing argument. We disagree.
During closing arguments, which were not transcribed, the prosecutor made the argument to the effect that “the fact that the ranger, Anthony, did not go into the woods and see [defendant] is proof that there is a Lord in Heaven because [Anthony] would be dead[.]” Defendant objected to the comment and the trial court issued a curative instruction. Following closing arguments, defendant moved for a mistrial. The motion was denied.
The trial court's ruling on a motion for a mistrial is reviewed for abuse of discretion. Warren, 327 N.C. at 376, 395 S.E.2d at 123. Our Supreme Court has held that “[w]here, immediately upon a defendant's objection to an improper remark made by the prosecutor in his closing argument, [and] the trial court instructs the jury to disregard the offending statement, the impropriety is cured.” State v. Woods, 307 N.C. 213, 222, 297 S.E.2d 574, 579 (1982).
Here, the trial court gave a curative instruction immediately following the comment to which defendant objected. Therefore, the trial court did not abuse its discretion in denying the motion for a mistrial.
Conclusion
For the reasons stated above, we find no error. No error.