Opinion
No. COA12–529.
2013-03-19
STATE Of North Carolina v. Kevin Kraig TAYLOR, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State. Marilyn G. Ozer for defendant-appellant.
Appeal by defendant from judgment entered 21 November 2011 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 25 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State. Marilyn G. Ozer for defendant-appellant.
GEER, Judge.
Defendant Kevin Kraig Taylor appeals from his conviction of first degree murder of his mother. He primarily contends on appeal that the trial court erred in admitting, over his objection, testimony from his brother regarding defendant's verbally abusive relationship with their mother. Because defendant did not object when other similar testimony was admitted, he waived his objection. Further, even if the issue were preserved, testimony about the nature of the relationship between defendant and the victim was properly admitted under Rule 404(b) of the Rules of Evidence.
Facts
The State's evidence tended to show the following facts. In early 2007, Naomi Taylor was 79 years old and shared her home with one of her sons, defendant, who was on disability. Ms. Taylor gave defendant, a regular heroin user, $20 to $30 per week that she believed he was using to buy heroin.
A week before Ms. Taylor's death, defendant checked himself into Forsyth Medical Center for a nervous condition. At that time, Ms. Taylor told another son, Kurtis Taylor, that defendant's treatment of her had become increasingly abusive, and defendant had telephoned her to say that he should “just come home and knock [her] GD head off.” Ms. Taylor told Kurtis that she did not know how much longer she could take the abuse.
Defendant was released from the hospital on 6 November 2007. That night, a woman defendant had recently dated, Christina Hardin, went to defendant's house. When she arrived, Ms. Taylor was not home. All the windows in the home were open, the heat was not on, and it was cold. Ms. Hardin saw papers scattered on the kitchen table and thought it unusual as Ms. Taylor was such a good housekeeper. In addition, while in the past, Ms. Hardin would go outside to smoke, defendant told her that she could smoke inside now.
At one point, Ms. Hardin walked close to Ms. Taylor's bedroom. Defendant told her that there was no need to try the bedroom door because it was locked. Ms. Hardin found the comment strange since she had never been in Ms. Taylor's bedroom and was not going into it when defendant spoke. Ms. Hardin left the house around 9:30 or 10:00 p.m.
Lisa Oorbek had met defendant on the psychiatric floor of Forsyth Medical Center. The two were released at the same time and exchanged phone numbers. On 8 November 2007, two days after they were released, Ms. Oorbek got a phone call from defendant at around 11:55 p.m. saying his mother was missing and his life was in danger. She picked defendant up at a convenience store and started to drive him toward his mother's house, but ultimately they went to Ms. Oorbek's apartment.
When they got to the apartment, Ms. Oorbek noticed that defendant was muddy and smelled. She washed defendant's clothes while defendant showered. Defendant had on several layers of clothing and his socks were so muddy that Ms. Oorbek would not wash them and put them and defendant's muddy shoes in a bag. After defendant got out of the shower, Ms. Oorbek asked him if he had murdered his mother. Defendant answered, “People are going to think this, aren't they?” Later in the night, he said that he had killed his mother, but then immediately denied he had said it.
On the same day, 8 November 2007, defendant also called his brother Kurtis Taylor and told him that their mother had been missing since Tuesday. Defendant admitted he had not called the police. Mr. Taylor immediately called the police and went to his mother's house. He entered the house with a key he had and found his mother's false teeth, glasses, and purse still there. Two windows in the house were open, and the heat was off. The police came and searched the house, but could not find his mother.
Mr. Taylor returned to the house again around midnight with a deputy sheriff. The men discovered that one of the outbuildings on the property that was generally unlocked was now locked, and the lock had been tampered with so that no key would open it. At Mr. Taylor's request, officers forced the door open and found “a bundle of comforters, flannel sheets, plastic, black and clear plastic wraps, and blue roofing tarp all wrapped up in like a roll.” Mr. Taylor recognized the comforters as having come from his mother's house. When Mr. Taylor called defendant, defendant refused to return to his mother's house.
Crime scene analysts arrived at the house on the morning of 9 November 2007. Inside the bundle of plastic and comforters, they found Ms. Taylor's body with a knife still stuck in her chest. There was a shoe print underneath Ms. Taylor's body that was consistent with the tread of defendant's shoe. In the house, the analysts located an area in the kitchen that had been cleaned, but blood splatter remained around the room. They identified further blood splatter in both Ms. Taylor's bedroom and in the bathroom. A pair of defendant's shoes still in his bedroom tested positive for blood on the tops, sides, and bottoms of the shoes.
Mr. Taylor called Ms. Hardin to see if she had spoken with defendant. She said she had, and she then spoke with a detective. Ms. Hardin agreed to arrange for defendant to meet her at work that day, 9 November 2007, which enabled the police to apprehend defendant.
After defendant was taken to the Forsyth County Sheriff's Department and given his Miranda warnings, defendant gave a statement in which he admitted to slitting his mother's throat after she told him he would have to find another place to live. Defendant admitted that he then went to Wendy's to get food, came back to the house, checked his mother for a pulse, and cleaned the kitchen floor.
Defendant was indicted for first degree murder on 7 November 2011. The jury convicted defendant of that charge, and the trial court sentenced defendant to life without possibility of parole. Defendant timely appealed to this Court.
I
Before the case came to trial, defendant moved to suppress both the evidence found in the search of the shed, including Ms. Taylor's body, and defendant's statements to law enforcement confessing to the killing of his mother. Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). A. Motion to Suppress Evidence Found in the Shed
Defendant first contends that when the officers broke the lock and entered the shed, they conducted an unconstitutional search and seizure. In denying defendant's motion to suppress on this issue, the trial court entered an order concluding that
neither Deputy Ward or [sic] Sergeant Gilbertson were engaged in a search for evidence to be used in a criminal prosecution, and that until they observed the blood stains inside the shed, neither of them was in a position to allege a particular object that might be sought by means of a search warrant; that Kurtis Taylor had apparent authority to allow entrance into the enclosed portion of the shed, and that Sergeant Gilbertson acted reasonably in carrying out Kurtis Taylor's request that the door be opened; that the actions of the deputies in breaking the padlock and opening the door to the shed were supported by Section 15A–285 of the North Carolina General Statutes and that they reasonably believed that their actions were urgently necessary to save life or prevent serious bodily harm to the missing person Naomi Taylor; even if Kurtis Taylor had not been present, given the information the deputies possessed at the time, that a woman of more than 70 years of age had been missing for at least two days, it was reasonable for the deputies to open the door to the shed to determine if the reportedly missing Naomi Taylor was inside and it was not a violation of the defendant's Constitutional rights under the Constitutions of the United States and the State of North Carolina for them to break the lock and open the door to the shed to determine if a missing person was inside.
In other words, the court concluded that entry was appropriate on multiple bases, including (1) the lack of any search for purposes of prosecution; (2) Mr. Taylor's apparent authority to authorize entry; and (3) the need to determine whether a missing person was inside and alive.
Defendant's argument on appeal addresses only the first and possibly the third bases for the trial court's conclusion, leaving undisturbed the trial court's conclusion regarding the apparent authority of Mr. Taylor to give the officers' permission to open the shed. As a result, even if the trial court had erred regarding the first and third bases, the apparent authority conclusion would still support the trial court's order.
In support of the apparent authority basis for the denial of the motion to suppress, the trial court found that Mr. Taylor told the officers that he was the son of Ms. Taylor, who was missing; that Mr. Taylor had keys to Ms. Taylor's home; that he asked the officers to search the property for Ms. Taylor; that he told the officers that the shed ordinarily was not locked; and that he asked them to break the padlock and go into the shed. These findings were sufficient to establish that Mr. Taylor could validly consent to a search of the shed. See, e.g., State v. Kellam, 48 N.C.App. 391, 395, 269 S.E.2d 197, 200 (1980) (holding that neighbor who was given key to housesit for owners of home had authority to consent to search of property). See alsoN.C. Gen.Stat. § 15A–222(3) (2011) (providing that consent for search and seizure may be given by “a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises”). Defendant has, therefore, failed to show any error in the denial of the motion to suppress evidence found in the shed. B. Motion to Suppress Statements to Law Enforcement
Defendant also contends that the trial court improperly denied his motion to suppress his statements to law enforcement during his interrogation on 9 November 2007. He contends that the confession should have been suppressed because he was high on heroin and had drunk “Four Loco,” the equivalent of six beers, and was, therefore, impaired at the time of his confession. Defendant also contends the interrogation should have ceased because he requested an attorney.
The trial court concluded that defendant gave his confession freely, voluntarily, and understandingly. In support of that conclusion, the trial court found that defendant did not appear to be impaired to the detective interrogating him. Defendant had “a normal gait when he walked, did not have a strange demeanor, and had no odor of alcohol coming from his person or his breath.” Defendant told the detective that he “had ingested the narcotic heroin at approximately 2:00 p.m. on the 9th of November, [sic] 2007,” but the detective was of the opinion that defendant was not impaired by any impairing substance by the time of the interview. The trial court found that “defendant gave appropriate responses to [the detective's] questions and had a normal affect of voice.” Finally, the trial court found that defendant did not request an attorney.
Defendant does not dispute that the findings of fact supported the trial court's conclusion of law. He argues, instead, that the trial court should have found other facts based on other testimony. Because the findings are supported by evidence, including the detective's testimony, those findings are binding on appeal and may not be revisited.
Additionally, defendant contends that the trial court failed to resolve a conflict in the evidence regarding whether the detective told him before the interrogation that this was not the kind of interrogation for which he needed a lawyer, but rather was intended to help find his mother. “ ‘[T]he general rule is that [the trial court] should make findings of fact to show the bases of [its] ruling.’ State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). ‘If there is a material conflict in the evidence ... [the trial court] must do so in order to resolve the conflict.’ Id. ... ‘Findings and conclusions are required in order that there may be a meaningful appellate review of the decision’ on a motion to suppress. State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984).” State v. Salinas, ––– N . C. ––––, ––––, 729 S.E.2d 63, 66 (2012).
Here, the trial court resolved the conflict in the evidence regarding whether the detective made any assurances to defendant by finding “[t]hat no threats or promises were made to the defendant to coerce or unduly influence him to answer questions.” The trial court, therefore, did not err in denying the motion to suppress his confession.
II
Defendant next argues that Mr. Taylor's testimony regarding defendant's relationship with his mother constituted evidence of bad character that was inadmissible under Rules 401, 402, 403, 404(a), and 608 of the Rules of Evidence and violated defendant's constitutional right to due process. The State, however, contends that defendant did not preserve this issue for appeal and, in any event, the testimony was properly admitted under Rule 404(b).
On direct examination of Mr. Taylor—and over defendant's objection —the State elicited the following testimony regarding Mr. Taylor's observations of defendant's behavior towards his mother:
Defendant did not object on due process grounds below.
Q. Can you describe that for us, please.
A. His relationship with her was volatile and hostile, abusive, verbally abusive.
Q. And at that stage when you were still in the home, can you explain the nature of the verbal abuse?
A. Demeaning, name calling, “You're stupid. You don't connect the dots. You don't understand what I'm saying.”
Mr. Taylor continued over defendant's objection: “It was continuously the same type of thing. Hostile, demeaning, and had become increasingly so since the passing of his daughter in August. He was more anxious and volatile and more angry at mama.”
Later, however, after the State had questioned Mr. Taylor on other subjects, defendant did not renew his objection when Mr. Taylor testified: “On occasion if things weren't just quite to his liking, he could be very hostile and demeaning about ‘How many times do I have to tell you to prepare it like this or like that? Wasn't enough salt, not enough pepper, too much garlic—or not enough garlic,’ things like that.” Defendant also did not object to Mr. Taylor's testimony that defendant called their mother “[s]tupid, bitch” and described her abdomen as “her beach ball.”
Even though defendant objected to part of the testimony he challenges, it is still “ ‘a well-settled rule that if a party objects to the admission of certain evidence and the same or like evidence is later admitted without objection, the party has waived the objection to the earlier evidence.’ “ State v. West, 202 N .C.App. 479, 483, 689 S.E.2d 216, 219 (2010) (quoting State v. Wingard, 317 N.C. 590, 599, 346 S.E.2d 638, 644 (1986)). Because defendant did not object to Mr. Taylor's subsequent testimony that defendant was hostile and demeaning towards his mother, he waived his initial objection.
Moreover, even if the initial objections could be viewed as covering the subsequent testimony, defendant also failed to object on character and relevance grounds to the admission of Ms. Hardin's testimony to the same effect:
Q. Did you have an opportunity to observe the defendant's relationship with his mother and his interaction with his mother, Naomi?
A. Yes, sir.
Q. Can you describe for the Ladies and Gentlemen of the Jury what you observed.
A. Sure. It was definitely not a healthy relationship
[Defendant's Counsel]: Objection to the conclusion.
....
[A]: He was verbally abusive. She waited on him, fixed his food, did his laundry, and he required that of her. And if she didn't do—well, I never experienced her not doing those things for him, but he would, you know, verbally berate her.
....
Q. What types of things would he say to his mother?
A. Call her stupid and dumb and, you know, things like that.
Q. Was this an occasional instance or was this a fairly constant instance?
A. This was fairly—very constant, yeah.
Q. Did it have an effect on you?
A. Well, yeah, I definitely didn't like to see that.
The failure to object to this testimony constituted a waiver of the objection to Mr. Taylor's testimony. See State v. Reid, 335 N.C. 647, 662–63, 440 S.E.2d 776, 785 (1994) (holding objection to admission of statement as hearsay was waived when next witness testified without objection to the same statement). Further, given the admission of Ms. Hardin's testimony—which is not challenged on appeal—defendant cannot show that he was prejudiced by the admission of Mr. Taylor's comparable testimony. See State v. Henderson, 182 N.C.App. 406, 416, 642 S.E.2d 509, 515 (2007) (holding that admission of nurse's testimony was harmless error when it substantially reiterated another witness' expert testimony that was not challenged on appeal).
Even though this issue was not preserved and defendant does not argue plain error on appeal, we note that the evidence was properly admitted under Rule 404(b). Rule 404(b) provides that evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” That prohibition is, however, subject to the caveat that such evidence “may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C.R. Evid. 404(b). The question whether evidence is within the scope of Rule 404(b) is reviewed de novo. State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012).
Rule 404(b) is “ ‘a clear general rule of inclusion.’ “ Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 159 (quoting State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990)). “The rule lists numerous purposes for which evidence of prior acts may be admitted, including ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.’ “ Id. at ––––,726 S.E.2d at 159 (quoting N.C.R. Evid. 404(b)). “This list ‘is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.’ “ Id. at ––––, 726 S.E.2d at 159 (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852–53 (1995)).
Even if evidence is, however, relevant for purpose permissible under Rule 404(b), its probative value must not be outweighed by its prejudicial effect under Rule 403. State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995). The determination whether evidence was properly admitted pursuant to the requirements of Rule 403 is reviewed for abuse of discretion. Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 159.
Here, contrary to defendant's argument on appeal, the State was not presenting evidence of general character traits under Rule 404(a), but rather was submitting the evidence to show the nature of defendant's relationship with his mother and its deterioration during the time frame leading up to Ms. Taylor's murder. Our courts have repeatedly upheld the admission of such testimony under Rule 404(b). See State v. Thibodeaux, 352 N.C. 570, 579, 532 S.E.2d 797, 804 (2000) (holding testimony by wife at prior hearing regarding domestic violence committed by defendant was admissible under Rule 404(b) in subsequent prosecution of defendant for wife's murder); State v. Murillo, 349 N.C. 573, 591, 509 S.E.2d 752, 763 (1998) (“We consistently have allowed evidence spanning the entire marriage when a husband is charged with murdering his wife in order ‘to show malice, intent and ill will towards the victim.’ “ (quoting State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990))).
We see no meaningful distinction between allowing evidence of the relationship between a husband and wife and evidence of the relationship between a mother and son living in the same house. The trial court, therefore, properly admitted the testimony under Rule 404(b).
III
Defendant also argues that the trial court should have intervened ex mero motu during the State's closing argument and prevented references to the movies “Nightmare on Elm Street” and “Psycho.” The prosecutor began his closing by referencing horror movies:
We speak of horror. We speak in terms of Hitchcock, Wes Craven, Stephen King. We think about movies like Psycho or a Nightmare on Elm Street, and we think of those things in terms of horror. That's not horror. Those things are nothing more than escapism. Our attempts to escape the things in this world that are real horror.
Oh, horror exists. But not in the form of Freddie Krueger or Norman Bates. Horror is at age 79 realizing that the son you labored for, the son you doted over and you slaved over for 43 years is trying to slice your throat open. Horror is, with your 79–year–old hands and your paper thin skin, trying to grab the blade of a razor sharp knife and save your own life. Horror is pinning your chin to your chest trying to keep that blade from cutting open your throat, and horror is lying on the floor of your own home feeling the stinging warmth of your life's blood pool around you and looking into the face of that defendant as he buries a butcher knife in your chest again and again and again. That's horror. Horror exists, and it's called first-degree murder.
Murder came to visit this beautiful, sweet, loving person in the form of that defendant on Tuesday, November 6, 2006(sic).
Defendant did not object to this portion of the State's closing argument.
The 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) (internal citation omitted). “In order to determine whether the prosecutor's remarks are grossly improper, the remarks must be viewed in context and in light of the overall factual circumstances to which they refer.” Alston, 341 N.C. at 239, 461 S.E.2d at 709.
Our Supreme Court in State v. Walls, 342 N.C. 1, 63, 463 S.E.2d 738, 772 (1995), considered whether references to horror movies within a closing argument were proper. There, the Court examined the context and apparent purpose of the argument in finding no error:
Fifth, defendant contends the prosecutor denigrated defendant by referring to him as the horror movie characters “Jason” and “Freddie Kruger” and as “that devil.” However, taken in the context in which it was made, the prosecutor did not call defendant “Jason” or “Freddie Kruger.” Rather, the prosecutor argued to the jury that this case was “about Friday the 13th and Jason ... [i]t ain't about no Casablanca [, it's about] Freddie Kruger and nightmares.” Such an argument was not improper.
Id.
Defendant, however, points to State v. Walters, 357 N.C. 68, 105, 588 S.E.2d 344, 366 (2003) (finding improper State's argument that the jury should “ ‘act with resolve’ “ and “ ‘[d]o like Winston Churchill when he stood up to Hitler. Do it like that. Stand up to evil. Go back there and find this person guilty of every single charge on that indictment’ ”), and Jones, 355 N.C. at 132, 558 S.E.2d at 107 (holding references to Columbine shooting and Oklahoma City federal building bombing were improper because (1) they were outside record, (2) urged jury to compare defendant's acts with other infamous happenings, and (3) were an attempt to have the jury decide case based upon passion and not upon evidence before it).
These cases involved argument “designed to inflame the jury, either directly or indirectly, by making inappropriate comparisons or analogies.” Walters, 357 N.C. at 105, 588 S.E.2d at 366. In Walters and Jones, the prosecutors attempted to obtain a conviction by tying the crime before the jury to actual notorious events outside the record—the juries were in effect told that if they did not convict the defendant, they would be condoning other infamous, historical conduct.
In Walls, however, the prosecutor used fiction to characterize the evidence and acts that were before the jury. We believe that the argument in this case is of even less concern than the one in Walls. The State was not trying to inflame the jury by analogizing the facts of the case to other events. Rather, it is apparent from the entire context of the argument that the prosecutor was trying to focus the jury's attention on the actual evidence in this case and address possible desensitization that may have occurred as a result of the prevalence of horror movies. The prosecutor was, in effect, arguing that the evidence was not analogous to horror movies because the events were real and not fictional. We see nothing improper under the circumstances of this case with the State emphasizing to the jurors that the evidence before them was dealing with real life events, real blood, real pain, and real fear.
Even assuming there was gross impropriety in the argument, we cannot conclude that the jury would have reached any other verdict in the absence of the references to horror movies. Given defendant's properly-admitted confession, his statements to others, his behavior in the house in the days following his mother's “disappearance,” the presence of his shoe print under his mother's body, the presence of blood in the house, and the blood on his shoes, it is likely the jury would have found defendant guilty in the absence of any closing argument at all.
IV
Defendant also contends that the trial court improperly overruled his objections to portions of the State's closing argument. In each instance, defendant contends that the argument violated the principle that a lawyer shall not “ ‘in trial ... state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.’ “ Jones, 355 N.C. at 128, 558 S.E.2d at 104 (quoting N.C.R. Prof. Conduct 3.4(e) (2002)) (holding that attorneys are expected “ at a minimum ” to conduct themselves in accordance with such rules).
Defendant first complains that the prosecutor commented on the justness of the case when he argued: “That's the law of North Carolina, and it's a good law, and it's the right law because we do not want defendants like that to do what he did and not be guilty of first-degree murder.” Defendant then objected, the trial court overruled his objection, and the prosecutor continued: “And it's the law because it's the truth and it's the way we want it to be as I was just saying.”
With respect to the prosecutor's statements regarding the law being “good,” “right,” “the truth,” or “the way we want it to be,” the prosecutor was commenting not on the “justness of a cause” or of the case, but rather on the justness of the law. Defendant cites no authority precluding such an argument.
As for the prosecutor's statement that “we do not want defendants like that to do what he did and not be guilty of first-degree murder,” we note that in State v. Britt, 291 N.C. 528, 537–38, 231 S.E.2d 644, 651 (1977), our Supreme Court considered whether comments by a prosecutor in closing that the defendant was a “ ‘cold-blooded, deliberate murderer, regardless of what [the jury's] decision in [that] case [was]’ “ and that the defendant was “ ‘guilty as sin and I'm asking you to put him out of the shooting business' “ were proper.
The Court acknowledged the rule that “ ‘it is improper for the prosecuting attorney to express his personal opinion or belief in the guilt of the accused, unless it is apparent that such opinion is based solely on the evidence, and not on any reasons or information outside the evidence.’ “ Id. at 538, 231 S.E.2d at 651 (quoting 23A C.J.S. Criminal Law § 1104). Because the prosecutor's argument in Britt was “based solely upon evidence from which his inferences and conclusions could legitimately be inferred,” it was proper. Id.
Likewise, here, to the extent the prosecutor's argument can be viewed as being an expression of his personal belief in defendant's guilt, it was based solely on the evidence before the jury. Under Britt, it was not, therefore, improper.
Defendant also contends that that the trial court erred in allowing the State, over defendant's objection, to comment on defendant's demeanor while in the courtroom. The prosecutor argued: “We all have looked on with various degrees of horror, queasiness, tears as photograph after photograph of this beautiful woman's horribly mutilated body was shown, and each time it goes to the defendant's table first, and you-all have seen his expression. Like he's looking at a dead dog[.]” After defendant's objection was overruled, the prosecutor continued: “Like he's looking at a dead dog, a dead animal. No tears, no warmth for mom. Even if through some incredible miracle he didn't do it, you'd be crying your eyes out. Not this one.”
It is, however, well established that “[a] prosecutor may properly comment on a defendant's demeanor displayed throughout the trial.” State v. Flippen, 349 N.C. 264, 276, 506 S.E.2d 702, 710 (1998) (holding that trial court properly overruled objection to prosecutor's characterization of defendant's demeanor at trial as “ ‘sniveling’ ”). The Court explained that “[r]emarks relating to a defendant's demeanor are permissible because the defendant's demeanor is before the jury at all times.” Id. (internal quotation marks omitted).
Thus, in this case, the trial court properly overruled defendant's objection to the prosecutor's argument regarding defendant's demeanor. It was up to the jurors to decide whether their observations of defendant's demeanor were consistent with those of the prosecutor.
V
Finally, defendant argues that the trial court improperly limited his closing argument in response to the State's closing. The following exchange occurred during defendant's closing:
When [the prosecutor] got up here he told you that when someone is charged with murder they have all sorts of excuses. You know, could be self defense, could be somebody else did it, could be “I'm crazy” or could be reasonable doubt. Apparently [the prosecutor] has thought about a number of cases that have come through this court and other courts around North Carolina where people who are accused of murder are actually not guilty of those offenses. That's the fifth option, and we see continual reminders of that over the past
[PROSECUTOR]: Objection.
THE COURT: Objection sustained.
Defendant then explained for the record what his argument would have been had the State's objection not been sustained:
[DEFENSE COUNSEL]: I went into that argument because I believe when [the prosecutor] talked about when someone's charged with murder, these are the only options, and I believe that opened the door
THE COURT: Say that again, when someone's charged with murder
[DEFENSE COUNSEL]: He said there was four—when someone's charged with murder, either someone else did it, or self defense, or some psychological, or I'm just going to be quiet, and I thought it opened the door for me to be able to argue there are lots of other possibilities out there.
THE COURT: Which you did. But it appeared to me that you were going into specific instances. Assuming that all 12 jurors—an attorney may argue those things that are common, general knowledge, but we cannot assume that all 12 jurors have knowledge of specific instances, and that is your—in closing argument—testifying.
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: That's the reason for which the Court sustained the objection.
On appeal, defendant claims that his trial counsel was precluded from arguing that innocence was a possibility. To the contrary, as the trial court explained, counsel was free to argue the “fifth option” of innocence. The court simply did not allow him to argue “specific instances” of innocence because those instances were outside the record and not necessarily common knowledge for the jurors. Because defendant sought to go outside the record in the closing argument, the trial court properly sustained the State's objection.
No error. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).