Appeal by defendant from judgment entered 11 February 1999 by
Judge Thomas W. Ross in Rowan County Superior Court. Heard in the
Court of Appeals 14 February 2002.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Thomas F. Moffitt, for the State.
R. Marshall Bickett, Jr., for defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment sentencing him to life
imprisonment without parole, entered after a jury found him guilty
of first degree murder.
The State's evidence tended to show that the murder victim,
Golden Billings and his wife, Jennifer Billings, lived in the
Graystone Mobile Home Park in Rowan County in January 1998. Around
6:30 or 6:45 p.m. on 9 January 1998, Jennifer telephoned Golden's
sister, Amanda Boss, and asked her to check on Golden. Jennifer
told Amanda that she was concerned about Golden because he had been
distraught and had taken twenty valium pills. Jennifer also told
Amanda that she had been unable to reach Golden by phone. Amanda
knew that Golden had been upset because his mother had died less
than a month before, and he and Jennifer had been having maritaldifficulties. Amanda also knew that Golden had a serious drug
problem, having been addicted to pain killers since his childhood
bouts with polio, and that both he and Jennifer were in a methadone
treatment program for their heroin addictions.
Amanda and her friend, Diane Bass, went to Golden's mobile
home where they found the front door standing open, the lights on,
and the curtains pulled back. Inside, Amanda found her brother
sitting on the couch with his hands on his legs, and his feet on
the floor. Amanda initially thought that Golden had just nodded
off but then saw two gunshot wounds in his chest and realized that
he was dead.
Amanda testified about a conversation she had had with Golden
before he was killed. Golden had told her that he feared defendant
was going to take his life because of an incident that had occurred
a few months prior, involving Elic Scercy, the father of
defendant's girlfriend, Tia Barringer. Elic blamed Golden for
poisoning him with bad drugs and then stealing his poker winnings
when paramedics rushed Elic to the hospital.
Deputy Sheriff T.A. Swing testified that Golden was found
seated on the couch with his feet under the coffee table. SBI
Agent William Lane, an expert in blood spatter analysis, testified
that blood spatter was found on the wall directly behind, and on
the ceiling directly above, where Golden had been sitting.
According to Special Agent Lane, the blood spatter patterns on the
wall indicated that Golden had been shot twice, with the first shot
releasing a flow of blood and the second spattering the flowingblood onto the wall. Additionally, the investigating officers
found no evidence of a forced entry, a struggle, or any spent
shotgun shells in the home.
Dr. John D. Butts, an expert in forensic pathology, testified
an autopsy revealed that Golden's death was caused by two shotgun
wounds to his chest. The two shots had caused partial collapse of
Golden's lungs and penetrated Golden's aorta, resulting in massive
bleeding and death. Shotgun wadding and pellets were removed from
both wounds.
The victim's wife, Jennifer, testified that earlier on the day
of the murder, her husband had shot the telephone in their mobile
home and had threatened to shoot himself. Jennifer testified that
on the evening of 9 January 1998, defendant and his girlfriend, Tia
Barringer, came to her home. Jennifer and Tia left Golden and
defendant in the living room while they went into the bedroom to
talk. Jennifer informed Tia that she wanted to leave Golden and
began gathering her clothes and other items to take with her.
Jennifer heard two gunshots. While she and Tia were in the
bedroom, Jennifer had not heard any argument, threats, or sounds of
a fight or scuffle. After hearing the shots, Jennifer rushed into
the living room to find her husband sitting on the couch with a
hole in his chest and defendant going out the door. Jennifer
testified that there was no weapon in Golden's hands, on the floor,
or on the coffee table in front of him. Tia went to the couch and
removed a 9 mm pistol from the back of Golden's trousers. Jennifer
quickly finished gathering her clothes and ran out the door. Bythat point, defendant was already in the driver's seat. Jennifer
and Tia got into the car and the three of them drove to Kannapolis,
where they dropped defendant off at a church. Prior to defendant
getting out of the car, Jennifer saw a sawed off shotgun in
defendant's lap and saw defendant wiping the gun down or wrapping
it up in a sheet. After defendant got out, Tia drove until the car
ran out of gas shortly thereafter. Jennifer and Tia then walked to
defendant's sister's house to look for defendant. When they found
that defendant was not there, they left.
Defendant, Jennifer, and Tia were soon reunited back at the
car. Someone eventually stopped and helped them obtain some
gasoline. Tia then drove defendant and Jennifer to Elic Scercy's
house and left Jennifer there. From Elic's house, Jennifer called
her house several times at defendant's suggestion so that it would
not look as if she already knew her husband was dead. Jennifer
also called Amanda Boss because she wanted somebody to go to the
house and find her husband.
Tia Barringer testified that in January 1998 she and defendant
were living together in Kannapolis. A few days prior to Golden's
death, Tia had been in a traffic accident and was arrested for
drunk driving, hit and run, and careless and reckless driving. Tia
gave the Kannapolis police officers a false identification. Tia
made bond 8 January 1998 and Tia and defendant decided to go to
South Carolina before the police found out about the false
identification and came to arrest her. They stopped by Golden's
house to get some drugs on the way out of town on 9 January 1998. Tia testified that when she and defendant arrived at Golden's
trailer, Golden motioned them inside. Jennifer was upset and
crying. While Tia and Jennifer were in the back bedroom talking,
Jennifer told Tia that Golden had been mistreating her and that she
wanted to leave him. Tia stated that a few minutes later, they
heard two gun shots and that her “first thought was it was Goldie's
gun because Jennifer said he'd been shooting up the house.” Tia
even stated “that's Goldie's gun” when she heard the shots. After
running to the living room, Tia saw Golden on the couch with blood
on his shirt and then removed the gun from the back of his pants,
put it in her purse and left. On the way to Kannapolis, Tia
testified that she heard defendant say, “that son of a bitch pulled
a gun on me.” After defendant and Tia dropped Jennifer off at Elic
Scercy's home, they went to a friend's house. Tia drank until she
passed out and when she came to, the pistol that she had taken from
Golden was missing from her purse. She asked defendant what had
happened to it and he told her that he had sold it.
Janie Cook, defendant's sister, testified that on the evening
of 9 January 1998 defendant went to her house in Kannapolis looking
for someone to help him fix his car. Janie testified that she did
not see any weapon on defendant's person. However, she saw
defendant pull several shotgun shells from his coat pocket and wipe
them with a kitchen towel. Janie provided a bag into which
defendant put the shotgun shells. The next day, SBI Agent Gale
found a white Eckerd's drug prescription bag, one spent shotgun
shell, and five unfired shotgun shells along the road near Janie'shouse.
SBI Agent Eugene Bishop, an expert in the field of forensic
firearm and tool mark identification, examined wadding and shotgun
pellets that were removed from Golden's body. Bishop additionally
examined the six shotgun shells found near Janie's house. Bishop
testified that the waddings were consistent with having come from
12-gauge Remington Peters and Winchester AA shotgun shells. Bishop
further testified that for the wadding to have been forced into
Golden's chest, the shotgun would have to have been fired at close
range. According to Bishop, five of the shotgun shells found near
Janie's house were 12-gauge birdshot shells and the sixth was a
12-gauge buckshot shell.
The trial court also admitted into evidence a statement made
by Janie Cook's son, Kenneth Gabriel, to Sergeant Agner of the
Rowan County Sheriff's Office on 10 January 1998, the day following
Golden Billings' death. In the statement, Kenneth Gabriel stated
that after defendant had left his mother's house on 9 January 1998,
he found defendant near the church where defendant's car had run
out of gas. Defendant had blood on his hands and had a sawed-off
shotgun with a pistol grip concealed under his coat, which Kenneth
saw when defendant was removing cigarettes from his jacket.
Kenneth also said that he had seen several shotgun shells drop out
of defendant's jacket pocket; defendant picked the shells up off
the ground.
The State also offered evidence tending to show that defendant
had killed Pearl Walker on 25 June 1971 by shooting her withbirdshot from a 12-gauge shotgun, and had been convicted of second
degree murder.
Defendant testified in his own defense, claiming that he had
killed Golden Billings in self-defense. Defendant testified that
when he and Tia arrived at Golden's home, Jennifer was crying and
blood was running out of the corner of her mouth. Defendant stated
that he and Golden stayed in the living room while Tia and Jennifer
went into another room to talk. According to defendant, he was not
high on drugs at the time of his visit to Golden's home, even
though he had taken some prescription painkillers that day.
Defendant also testified that there were no hard feelings between
Golden and himself. Defendant admitted that he had taken a sawed-
off shotgun, concealed under his coat, into Golden's trailer.
Defendant testified that he had been carrying the gun for
protection since he was beaten with a ball bat in 1997.
Golden told defendant that he and Jennifer had been fighting
that day and that he wanted Jennifer to leave. Golden told
defendant that he was tired of people, particularly Tia,
interfering in his marriage. After sensing that Golden was
becoming antagonistic, defendant told Tia that it was time for them
to leave. According to defendant, at that point Golden pulled out
his 9 mm pistol and chambered a round. Defendant did not pull his
gun out nor make any other overt act towards defendant at that
time. Defendant was anxious because he knew Golden was “messed up”
and was upset with Jennifer. Defendant had also seen Golden shoot
and stab people in the past when he was “messed up.” Goldeneventually put the pistol away. As Tia entered the living room,
defendant stated that it appeared to him that Golden was reaching
for his pistol so he told Tia to get back and he shot Golden.
Defendant testified that he only pulled the trigger once but both
barrels discharged simultaneously. Defendant acknowledged that he
had not actually seen the pistol in Golden's hand at the time he
pulled the trigger.
Several witnesses testified that Golden Billings was a violent
man. Phillip Frye testified that two years earlier, he had gotten
into a fight with Golden. After the altercation, Phillip went to
another trailer and fell asleep. Phillip awoke to find Golden
standing over him. Golden shot Phillip four times and then hit
Phillip in the head with the gun and fled the scene. Phillip
admitted on cross-examination that he refused to press charges
against Golden and that he told the police another man had shot
him.
Eric Black also testified that Golden Billings had a
reputation for violence. On 8 January 1998, Eric and Kimberly
Hardy saw Golden at a convenience store. Eric and Kimberly
followed Golden to his trailer where they drank and used drugs. On
this same evening, Golden and Jennifer got into an argument and
Golden pulled out a 9 mm pistol, waved it around, and then pointed
it at Jennifer's head. Defendant's step-son, Terry Bunn testified
that Golden had a bad reputation for violence and “was probably the
meanest little man around.”
Rule 10(c)(1) of the North Carolina Rules of Appellate
Procedure requires that “clear and specific record or transcript
references” be included in assignments of error in the record on
appeal. N.C.R. App. P. 28(b)(5) requires that immediately
following each question presented in the appellant's brief “shall
be a reference to the assignments of error pertinent to the
question, identified by their numbers and by the pages at which
they appear in the printed record on appeal.” Defendant's counsel
has complied with neither rule. The Rules of Appellate Procedure
are designed to facilitate effective appellate review; they are
mandatory and a failure to follow the Rules subjects an appeal to
dismissal. N.C.R. App. P. 25(b). In the exercise of the
discretion granted us by N.C.R. App. P. 2, however, we will suspend
the requirements of these rules in the present case and consider
the merits of defendant's arguments.
By his first assignment of error, defendant contends the trial
court erred by allowing the State to elicit testimony from a
witness on redirect examination that went beyond the scope of the
witness' testimony during direct and cross-examination.
Specifically, defendant objects to Amanda Boss's testimony
concerning statements the murder victim made to her, shortly before
his death, expressing his fear that defendant was going to kill
him. The trial court ruled, over defendant's objection, that the
murder victim's statements made to Amanda were admissible “to show
the present state of mind of the alleged victim as one being in
fear of [defendant]” under Rule 803(3) of the North Carolina Rulesof Evidence and instructed the jury that it could consider the
statements solely for that purpose. Amanda testified that the
murder victim told her six to eight weeks before his death that he
feared defendant was going to kill him because Elic Scercy, father
of defendant's girlfriend, believed that Golden had tried to poison
him by giving him contaminated drugs and then stole his money while
he was sick. Defendant cross-examined Amanda concerning these
statements.
A party ordinarily may not question a witness on entirely new
matters on redirect examination.
State v. Weeks, 322 N.C. 152, 367
S.E.2d 895 (1988). However, a trial judge has discretion to allow
testimony on redirect examination that exceeds the scope of direct
and cross-examination provided the testimony is relevant and
otherwise admissible.
State v. Barton, 335 N.C. 696, 441 S.E.2d
295 (1994);
see N.C. Gen. Stat. § 8C-1, Rule 611(a) (1999) (“The
court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence . . . .) and N.C.
Gen. Stat. § 15A-1226(b) (1999) (“The judge in his discretion may
permit any party to introduce additional evidence at any time prior
to verdict.”)
“Evidence tending to show a presently existing state of mind
is admissible if the state of mind sought to be proved is relevant
and the prejudicial effect of the evidence does not outweigh its
probative value.”
State v. Locklear, 320 N.C. 754, 760, 360 S.E.2d
682, 685 (1987). A murder victim's statements, made shortly before
his death in which he expressed fear that the defendant was goingto kill him have been held admissible under the state of mind
exception to the hearsay rule to show the status of the victim's
relationship to the defendant prior to the killing.
See, e.g.,
State v. Crawford, 344 N.C. 65, 472 S.E.2d 920 (1996);
State v.
Burke, 343 N.C. 129, 469 S.E.2d 901,
cert denied, 519 U.S. 1013,
136 L. Ed. 2d 409 (1996); and
State v. Alston, 341 N.C. 198, 461
S.E.2d 687 (1995),
cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100
(1996). A victim's statements have also been held admissible under
the state of mind exception to establish the defendant's motive for
murder.
See, e.g.,
State v. Miller, 344 N.C. 658, 477 S.E.2d 915
(1996).
In the present case
, the victim's statements were relevant to
show that the relationship between defendant and Golden was not a
good one, and to show that defendant had a motive for the killing,
i.e., revenge for poisoning Elic Scercy and stealing his money.
Finally, the victim's statements of fear were also relevant upon
the issue of whether the killing was a deliberate premeditated act
rather than a spontaneous act done in self-defense. The probative
value of such testimony outweighed any potential prejudice to
defendant. Thus, we hold the trial judge did not abuse his
discretion in permitting the prosecutor to admit testimony on
redirect examination concerning the victim's fear that defendant
was going to kill him.
By his second assignment of error, defendant argues the trial
court erred in allowing the hearsay statement of Kenneth Gabriel
into evidence. On 10 January 1998, Kenneth gave police officers asigned statement describing his encounter with defendant on the
night of the alleged murder. After repeated unsuccessful attempts
to secure Kenneth's presence at trial to testify, the prosecutor
moved to introduce the written statement under one or both of the
residual exceptions to the hearsay rule. N.C. Gen. Stat. § 8C-1,
Rules 803(24) and 804(b)(5). Following a
voir dire hearing, the
trial judge made findings of fact and conclusions of law and ruled
the statement admissible. Defendant contends the ruling was error.
There is no question that the testimony in dispute here was
“hearsay” since it was “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c). Our Supreme Court has set forth six
requirements which must be met for a hearsay statement to be
admissible under Rule 803(24) where the availability of the
declarant is immaterial: (1) the proponent must notify his
adversary in writing of his intent to introduce the statement; (2)
the statement must not be admissible under any of the listed
hearsay exceptions; (3) the statement must possess circumstantial
guarantees of trustworthiness equivalent to those of the listed
exceptions; (4) the statement must be offered as evidence of a
material fact; (5) the statement must be more probative on the
point for which it is offered than other evidence which the
proponent can produce through reasonable efforts; and (6) the
general purposes of the rules of evidence and the interests of
justice will best be served by admission of the statement intoevidence.
State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). The
Court has also held that for a hearsay statement to be admissible
under Rule 804(b)(5), where the availability of the declarant is
material, the same six requirements must be met after the proponent
first proves that the declarant is unavailable.
State v. Triplett,
316 N.C. 1, 340 S.E.2d 736 (1986).
Although defendant discusses the various requirements for
admissibility under the residual exceptions to the hearsay rule, he
specifically questions only the trustworthiness of Kenneth
Gabriel's statement and Kenneth Gabriel's unavailability.
Therefore, we will only address these two issues.
The trial judge made specific findings of fact and conclusions
of law relating to both the trustworthiness of Kenneth's statements
and to his unavailability to testify at trial. Those findings are
amply supported by evidence presented during the
voir dire hearing,
and therefore, are conclusive and binding on appeal.
See State v.
Parker, 350 N.C. 411, 516 S.E.2d 106 (1999),
cert. denied, 528 U.S.
1084, 145 L. Ed. 2d 681 (2000).
In determining whether a hearsay statement is trustworthy
under the residual hearsay exceptions, our Supreme Court has
directed trial judges to consider the following factors:
(1) assurance of personal knowledge of the
declarant of the underlying event; (2) the
declarant's motivation to speak the truth or
otherwise; (3) whether the declarant ever
recanted the testimony; and (4) the practical
availability of the declarant at trial for
meaningful cross-examination.
Smith, 315 N.C. at 93, 337 S.E.2d at 845 (citations omitted). As to the trustworthiness of Kenneth's statement, the trial
judge found that Kenneth was interviewed while seated in a law
enforcement vehicle. Additionally, Kenneth stated that he had seen
defendant carrying a sawed-off shotgun with a black pistol grip and
a strap which went over defendant's shoulder the night before.
When Kenneth made his statement, he knew that the officers were
investigating a homicide in which he was not implicated and that
his statement would incriminate defendant, his uncle. Under these
circumstances, the trial judge concluded that the testimony bore
circumstantial guarantees of trustworthiness. The statement
described an event about which Kenneth had first-hand knowledge.
Further, Kenneth had no motive to lie to the police since he was
providing information that was adverse to the interests of his
relative and he was not trying to evade any personal responsibility
for the crime. The trial judge also found that there was no
evidence that Kenneth ever recanted his statement. Finally, the
trial judge found that “there is no practical availability of
[Kenneth] at the trial for purposes of meaningful cross examination
since he is unavailable and the Court has so found and concluded.”
As to the unavailability of Kenneth to testify at trial, the
trial judge concluded that the State made
every diligent effort to locate [Kenneth] and
make the witness available for cross
examination; . . . [and that] the evidence
shows . . . [Kenneth] is specifically
secreting himself and avoiding appearance
before the Court in testifying, and that the
Court would conclude he is an unavailable
witness.
These conclusions were supported by detailed findings of fact. Thetrial judge found that a subpoena had been issued at the
prosecutor's request to compel Kenneth's appearance at trial. The
subpoena was left in the hands of Kenneth's mother, Janie Cook, who
stated that Kenneth was in the bathroom when the deputy arrived to
serve him, and said she would give the subpoena to him.
Subsequently, Detective Linda Porter recovered the subpoena,
believing that it had not been properly served. Law enforcement
officers tried to locate Kenneth by contacting his probation
officer and his Department of Social Services (DSS) caseworker.
According to his probation officer, there was an outstanding
warrant for Kenneth's arrest for a probation violation. Kenneth's
DSS caseworker had not seen him recently. Officers also contacted
Kenneth's girlfriend and the Kannapolis Police Department for
assistance in finding Kenneth but were again unsuccessful.
Kenneth's mother, Janie Cook, had spoken with Kenneth by telephone
the day before the trial, but he refused to tell her where he was.
These findings of fact are supported by evidence presented during
the
voir dire hearing.
We hold that the trial judge properly applied the requirements
of Rules 803(24) and 804(b)(5) and correctly ruled that Kenneth's
statement was admissible thereunder. This assignment of error is
overruled.
Defendant next assigns error to the trial court's admission of
evidence that defendant had been convicted of second degree murder
for shooting Pearl Forney Walker with a 12-gauge shotgun in 1971.
Following a
voir dire hearing, the trial judge ruled, overdefendant's objection, that this evidence was admissible under G.S.
§ 8C-1, Rule 404(b) as relevant to defendant's intent to kill and
defendant's identity as the perpetrator of the murder in the
instant case. Defendant argues the evidence of the 1971 murder
should have been excluded because it was too remote in time and
insufficiently similar to be relevant, and, even if admissible
under Rule 404(b), the evidence was so prejudicial that it should
have been excluded under G.S. § 8C-1, Rule 403. We reject
defendant's argument.
Generally, under Rule 404(b), evidence of other crimes,
wrongs, or acts is admissible to show “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-
1, Rule 404(b). It is well established that Rule 404(b) is a rule
of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but
one exception requiring its exclusion
if its
only probative value is to show that
the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Therefore, evidence of bad conduct and prior crimes is admissible
under Rule 404(b) “as long as it is relevant to any fact or issue
other than the defendant's propensity to commit the crime.”
State
v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 853,
cert. denied, 516
U.S. 994, 133 L. Ed. 2d 436 (1995).
However, such evidence must be “sufficiently similar and notso remote in time as to be more probative than prejudicial under
the balancing test of [ ] Rule 403.”
State v. Boyd, 321 N.C. 574,
577, 364 S.E.2d 118, 119 (1988). Our Supreme Court has explained
that a crime or bad act is similar under Rule 404(b) if there are
“'some unusual facts present in both crimes or particularly similar
acts which would indicate that the same person committed both,'”
but the similarities between the two situations do not have to
“rise to the level of the unique and bizarre.”
State v. Green, 321
N.C. 594, 603-04, 365 S.E.2d 587, 593,
cert. denied, 488 U.S. 900,
102 L. Ed. 2d 235 (1988) (quoting
State v. Riddick, 316 N.C. 127,
133, 340 S.E.2d 422, 426 (1986)). Further, remoteness in time is
more significant when a prior crime is used to prove a common
scheme or plan but less significant when used to prove intent.
State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991). In
the later instance, “remoteness in time generally affects only the
weight to be given such evidence, not its admissibility.”
Id.
The trial judge in the case
sub judice made extensive findings
of fact and conclusions of law. He found the following
similarities between the murders of Pearl Walker in 1971 and Golden
Billings in 1998: (1) both victims died from a shotgun wound to
the upper torso; (2) both victims were shot with 12-gauge shotguns;
(3) both victims were shot at such close range that the waddings
from the shotgun shells were embedded in their wounds; (4)
relatively fine shot was found in both victim's bodies; (5) the
murder weapons in both instances were never found and there was
some evidence that the weapons were disposed of; (6) defendant wasalone in a room with each of the victims when they were shot; (7)
both victims were killed in their own homes; (8) in both instances
co-defendants were involved but were not present in the room when
defendant shot the victims; (9) defendant made efforts in both
instances to avoid leaving his fingerprints by wiping off the
murder weapon or taping his fingertips; and (10) in both instances
defendant fled from North Carolina and was captured out-of-state.
These findings are supported by the evidence and disclose
sufficient similarities between the two killings to render evidence
of the earlier murder of Pearl Walker admissible.
The trial judge also addressed the issue of remoteness. He
found that during the twenty-seven year period between the two
killings, defendant spent approximately eighteen years in prison.
This Court has stated that “[i]t is proper to exclude time
defendant spent in prison when determining whether prior acts are
too remote.”
State v. Berry, 143 N.C. App. 187, 198, 546 S.E.2d
145, 154,
disc. review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).
As noted above, remoteness in time generally affects only the
weight to be given evidence of a prior crime and not its
admissibility when such evidence is being used to show intent,
motive, knowledge, or lack of accident rather than to show that
both crimes arose out of a common scheme or plan.
Stager, 329 N.C.
at 307, 406 S.E.2d at 893. We hold the evidence of defendant's
1971 shooting of Pearl Walker was not so remote in time, nine years
excluding the eighteen years defendant was imprisoned, as to render
it inadmissible.
See State v. Murillo, 349 N.C. 573, 509 S.E.2d752 (1998),
cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999)
(twenty-two years not too remote);
State v. White, 340 N.C. 264,
457 S.E.2d 841,
cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436
(1995) (nineteen years not too remote).
Finally, as to this third assignment of error, although the
evidence was harmful to defendant's case, its probative value upon
the issues for which it was offered, defendant's intent to kill and
his identity as the perpetrator, far outweighed the possibility of
unfair prejudice. Therefore, we conclude that the trial court did
not err in admitting the evidence pursuant to Rules 404(b) and 403.
By his fourth and final assignment of error, defendant argues
the trial judge erred in not preventing the prosecutor from arguing
to the jury that defendant had produced no evidence of any criminal
convictions to support his claim that the deceased victim was a
mean and violent person. Defendant contends the prosecutor's
argument was improper since the prosecutor had filed a motion
in
limine to prevent defendant from mentioning Golden Billings' prior
criminal convictions, and the trial judge had allowed the motion,
ordering:
the defendant and his counsel and witnesses
not to mention or inquire into any prior
criminal activity of the victim . . . except
that activity for which the door may be opened
by the State's own evidence.
Defendant failed to object at trial to the prosecutor's jury
argument of which he now complains and the trial court did not
intervene
ex mero motu. Defendant now argues that the prosecutor's
comments during closing argument that defendant had not producedany evidence showing that Golden had been convicted of a violent
crime was so grossly improper as to require the trial court's
intervention, and, failing such intervention, as to entitle him to
a new trial. We disagree.
Arguments of counsel are left largely to the control and
discretion of the trial judge, and counsel is allowed wide latitude
in the argument of hotly contested cases.
State v. Williams, 317
N.C. 474, 346 S.E.2d 405 (1986). When a defendant fails to object
to the arguments at trial, he must establish that the remarks were
so grossly improper that the trial judge abused his discretion by
failing to intervene
ex mero motu.
State v. Rose, 339 N.C. 172,
202, 451 S.E.2d 211, 228-29 (1994),
cert. denied, 515 U.S. 1135,
132 L. Ed. 2d 818 (1995). To establish such abuse, defendant must
show that the prosecutor's comments so infected the trial with
unfairness that they rendered the conviction fundamentally unfair.
Id.
Even if we were to hold
that the prosecutor's argument with
respect to the absence of evidence of Golden's convictions was
improper in light of the motion
in limine and the trial court's
ruling thereon, they were not so egregious as to be grossly
improper and warrant intervention
ex mero motu by the trial court.
In light of the evidence presented at defendant's trial, we do not
believe there is any reasonable likelihood that a different result
would have been reached had the argument not been made or had the
trial court intervened,
ex mero motu, to stop the argument.
Therefore, we hold defendant's right to a fair trial was notcompromised, and defendant's assignment of error is overruled.
Defendant received a fair trial, free from prejudicial error.
No error.
Judges HUDSON and CAMPBELL concur.
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