1. Evidence--plea agreement of codefendant--no expression of opinion by trial court
The trial court did not commit structural or plain error in an attempted first-degree
murder, first-degree murder, first-degree kidnapping, and conspiracy case by admitting evidence
that the trial court had consolidated charges against a codefendant for sentencing on the condition
that she give truthful testimony in proceedings related to the victim, because: (1) considering the
totality of circumstances, there is no indication that the judge's sentencing of the codefendant
prior to trial expressed an opinion to the jury; and (2) there is no evidence to support the
proposition that the judge was impartial merely because he presided over both the codefendant's
open plea and defendant's trial.
2. Criminal Law--sentencing condition--enforceability_-not presentation of false
evidence
The trial court did not commit structural or plain error in an attempted first-degree
murder, first-degree murder, first-degree kidnapping, and conspiracy case by allegedly presenting
false evidence based on defendant's contention that a codefendant's sentencing condition was
unenforceable under N.C.G.S. § 15A-1021 which governs plea bargains, because: (1) the
codefendant's guilty plea was an open plea of guilty and not a plea agreement with the State, and
the trial court consolidated the codefendant's sentences to a single life sentence on the condition
that she testify truthfully if called upon by the State; (2) there is no evidence that the
enforceability of the condition was discussed at trial at all nor before the jury; and (3) even
assuming the condition was unenforceable, it cannot be said that either the State or the trial court
knew it was not and purposefully implied to the jury that it was.
3. Evidence--codefendant's credibility--sentencing condition
Although defendant contends the trial court committed plain error in an attempted first-
degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by instructing
the jury to carefully consider a codefendant's credibility in light of her agreement with the trial
court, defendant's assertion relied upon a finding that the trial court improperly admitted
evidence of her sentencing condition which the Court of Appeals concluded was not error.
4. Criminal Law--prosecutor's argument--asking defendant rhetorical questions
The trial court did not err in an attempted first-degree murder, first-degree murder, first-
degree kidnapping, and conspiracy case by failing to intervene ex mero motu when the State
asked defendant rhetorical questions during closing arguments, because the questions did not
stray far enough from the parameters of propriety that the trial court abused its discretion by not
intervening on its own accord.
5. Criminal Law--prosecutor's argument-_suffering and mental torture of victims
The trial court did not err in an attempted first-degree murder, first-degree murder, first-
degree kidnapping, and conspiracy case by failing to intervene ex mero motu when the State
asked the jurors during closing argument to think about what happened to the three victims as
they were in their car trunk not knowing what was going to happen to them, because the
argument focused on the suffering and mental torture of the victims.
6. Criminal Law--prosecutor's argument_-implication defendant not raised by his
mother
The trial court did not abuse its discretion in an attempted first-degree murder, first-
degree murder, first-degree kidnapping, and conspiracy case by allowing the prosecutor during
closing argument to read album titles seized from the stolen vehicles to implicate that defendant
was not raised by his mother, because: (1) the implication that defendant was raised by someone
other than his mother is irrelevant and is not inherently degrading and disrespectful; and (2)
considering the plethora of evidence against defendant, it cannot be concluded that the comment
was prejudicial.
7. Criminal Law--prosecutor's argument_-disparaging comments about defense
counsel
Although defendant contends the trial court abused its discretion in an attempted first-
degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by allowing the
prosecutor during closing argument to make comments allegedly disparaging defense counsel,
there is no reasonable possibility that without these comments another result would have been
reached.
8. Criminal Law--prosecutor's argument_-comparison of Crips gang's writings to
Nazi writings
Although the trial court abused its discretion in an attempted first-degree murder, first-
degree murder, first-degree kidnapping, and conspiracy case by allowing the prosecutor during
closing argument to compare the Crips gang's writings demonstrating their intent to the Nazi
writings since they needlessly reference infamous acts that may improperly affect the jury, the
requisite prejudice was not demonstrated to show that a reasonable possibility exists that a
different result would have occurred.
Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.
Margaret Creasy Ciardella, for defendant-appellant.
CALABRIA, Judge.
Carlos Maurice Frink (“defendant”) appeals judgments entered
7 March 2001 by Judge William C. Gore, Jr. (“Judge Gore”) in
Cumberland County Superior Court. Defendant asserts Judge Goreimproperly admitted evidence of a codefendant's sentencing
condition, and erred in permitting certain remarks by the
prosecutor in closing argument. We find no prejudicial error.
The State's evidence tended to show the following facts.
Defendant was a member of a gang known as the Crips. Tameika
Douglas (“Douglas”), another gang member, testified for the State.
On 17 August 1998, the gang decided to steal a car. Three newer
members of the gang were sent out with instructions to return with
a car and the owner in the trunk. They accosted Debra Alice
Cheeseborough (“Cheeseborough”), took her money and jewelry, put
her in the trunk of the car and returned to meet the remaining gang
members. Defendant searched through belongings in Cheeseborough's
car. Defendant and other older members of the gang met and decided
to kill Cheeseborough. Defendant, Douglas, and other members of
the gang drove, with Cheeseborough in the trunk, to a secluded
area. The gang formed a semicircle around Cheeseborough and let
her out of the trunk. Defendant instructed another member to shoot
Cheeseborough in the head. The other member repeatedly shot
Cheeseborough, and the gang left.
The gang met and agreed to steal another car. Douglas and
other members got into Cheeseborough's car and drove around
searching for the car. After following a number of cars, they
finally followed and blocked a car occupied by Susan Raye Horne
Moore (“Moore”) and Tracy Rose Lambert (“Lambert”). They forced
Moore and Lambert out of the car and into the trunk. Douglas took
their money and jewelry. The group returned to the trailer, where
defendant and other leaders were waiting. Defendant took thepurses into the trailer and removed the money. The gang then drove
in Moore's and Cheeseborough's cars into the country. They again
circled the trunk of the car containing the victims. One member
assisted Lambert out, and shut Moore in the trunk. Lambert was
then taken by the arm, walked into the field, forced to her knees
and shot in the head. A different member then took the gun, and
helped Moore out of the car. Moore began screaming when she saw
Lambert dead. This member then walked Moore in a different
direction, forced her to her knees and attempted to shoot her.
After the gun jammed, he took out a knife to kill her. Moore plead
“Please don't cut me. If you are going to kill me, then shoot me
because I don't want to suffer.” The man then repeatedly attempted
to fire the gun, which continued to jam; on the fourth time, the
gun fired and shot Moore in the head. The gang returned to the
trailer and dispersed.
The next day, upon learning that Cheeseborough was alive,
defendant, Douglas and other members of the gang took
Cheeseborough's car and drove to Myrtle Beach. The police
subsequently apprehended the group at a motel in Myrtle Beach.
Defendant was arrested, charged and convicted of numerous
crimes including, inter alia, attempted first-degree murder, first-
degree murder, first-degree kidnapping and conspiracy charges.
Defendant was sentenced to a total of 1,570 months to 1,997 months
and two terms of life imprisonment without parole. His sentences
were imposed consecutively.
Defendant appeals asserting the trial court erred by: (I)
admitting “evidence regarding the plea agreement codefendantDouglas had with the trial court[;]” and (II) permitting certain
comments in the State's closing argument.
I. Douglas' Sentencing Condition
[1] State's Exhibit 171 is a transcript of Douglas' open plea
with the court, wherein after Douglas pled guilty to all the
charges, the court consolidated them “on condition that the
defendant give truthful testimony in any proceedings if called upon
to do so by the State of North Carolina.” The court then sentenced
Douglas to concurrent sentences for her crimes, including two terms
of life imprisonment without parole. Regarding the condition,
Douglas testified at defendant's trial:
STATE: All right. Then over on the back, on
the top of the back side of that page, would
you tell us, please, ma'am, what question 14
reads?
DOUGLAS: 'The prosecutor and your lawyer have
informed the Court that these are all the
terms and conditions of your plea.' Do you
want me to read the answer?
STATE: Yes, ma'am.
DOUGLAS: 'The defendant agrees to plead guilty
as charged to all counts in 99 CRS 1543 plus
99 CRS 2708 and has' now plea agreed - -
STATE: And has what?
DOUGLAS: 'No plea agreement with the State of
North Carolina.'
STATE: Okay. Go ahead.
DOUGLAS: 'The Court will consolidate all
counts in 99 CRS 1543 plus 99 CRS 2708 plus
sentencing on condition that the defendant
give truthful testimony in any proceedings if
called upon to do so by the State of North
Carolina.'
. . .
STATE: Okay. And did you have a plea
agreement with the state at all?
DOUGLAS: No, ma'am.
. . .
STATE: Okay. Now, Ms. Douglas, as you sit
before this jury right now, do you now have or
have you ever had any sort of plea agreement
with Mr. Grannis, with Mr. Scott, with me,with anyone from the district attorney's
office?
DOUGLAS: No, ma'am.
STATE: And so you're testifying why?
DOUGLAS: Testifying for the part of this
transcript that the judge has signed that I
testify truthfully if called upon by the
state.
Defendant asserts the admission of the Exhibit 171 and
Douglas' testimony that she was present pursuant to an agreement
with the trial court, and not with the State, constitutes
structural and plain error. Defendant further asserts the trial
court committed plain error in its instruction to the jury
regarding Douglas' sentencing condition.
“'[S]tructural error' is a 'defect affecting the framework
within which the trial proceeds, rather than simply an error in the
trial process itself.'” State v. Anderson, 355 N.C. 136, 142, 558
S.E.2d 87, 92 (2002) (quoting Arizona v. Fulminante, 499 U.S. 279,
310, 113 L. Ed. 2d 302, 331 (1991)). However, our Supreme Court
has recognized the rarity of structural error, and noted the United
States Supreme Court has found it in only a limited number of cases
wherein the essential structure of our justice system was
implicated. Id. Structural error may arise by the absence of an
impartial judge. Id., (citing Tumey v. Ohio, 273 U.S. 510, 71 L.
Ed. 749 (1927)).
Alternatively, defendant asserts the trial court's admission
of the exhibit and testimony constituted plain error. Since
defendant failed to object to the admission of this evidence at
trial, defendant correctly asserts appellate review is limited to
plain error. N.C. R. App. 10(c)(4) (2003). “Plain error is error
'“so fundamental as to amount to a miscarriage of justice or whichprobably resulted in the jury reaching a different verdict than it
otherwise would have reached.”'” State v. Parks, 148 N.C. App.
600, 607, 560 S.E.2d 179, 184 (2002) (quoting State v. Parker, 350
N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (quoting State v. Bagley,
321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987))).
A. Impartial Tribunal
Defendant asserts his right to be tried by an impartial
tribunal was violated because Judge Gore expressed his opinion of
Douglas' testimony. Defendant argues the court expressed to the
jury that it trusted Douglas to comply with the sentencing
condition. Defendant explains that by sentencing Douglas before
she complied with the condition, the court would have had no
recourse had Douglas failed to testify. Therefore, defendant
asserts, Judge Gore's trust of Douglas was apparent and improperly
conveyed to the jury.
It is well established that “[t]he judge may not express
during any stage of the trial, any opinion in the presence of the
jury on any question of fact to be decided by the jury.” N.C. Gen.
Stat. § 15A-1222 (2001). Our Court considers the totality of the
circumstances to determine whether the judge has expressed an
impermissible opinion. State v. Wilkerson, 148 N.C. App. 310, 317,
559 S.E.2d 5, 10, rev'd on other grounds, 356 N.C. 418, 571 S.E.2d
583 (2002).
Considering the totality of the circumstances, we find no
indication that Judge Gore's sentencing of Douglas prior to trial
expressed an opinion to the jury. Defendant's assertion that the
jury could or would deduce an implied opinion is unconvincing. Theenforceability of the condition was not discussed before the jury
or raised before the trial court. Moreover, Judge Gore's only
comment regarding Douglas' veracity was in the jury instruction.
There, Judge Gore told the jury to examine Douglas' testimony “with
great care and caution in deciding whether or not to believe it”
because she was testifying as a condition of her sentence.
Accordingly, we find Judge Gore did not express an improper opinion
and find neither structural nor plain error.
Defendant also asserts his right to be tried by an impartial
tribunal was violated because “the trial court wanted the jury to
validate his prior sentencing of Douglas.” Defendant asserts the
trial court's interest can be implied by the fact Judge Gore
presided over both Douglas' open plea and defendant's trial. We
find no support for this proposition, and accordingly hold there is
no merit to defendant's argument that Judge Gore was not impartial,
and overrule this assignment of error.
We note defendant correctly asserts that our system is
structured such that the judge remains impartial. With regard to
plea bargains, the judge's role is limited to acceptance or
rejection of the bargain negotiated between defendant and the
State. While our system permits the trial court judge to impose
sentencing conditions, it does not permit this power to be utilized
in substitution for the plea bargaining process. We expressly
disapprove of such a practice. However, in the case at bar, we do
not find the admission of evidence of Douglas' sentencing condition
rises to the level of structural error.
B. False Evidence [2] Defendant asserts, alternatively, the court committed
structural and plain error because the evidence constituted false
evidence. Defendant explains the evidence was false since the
sentencing condition was unenforcable under N.C. Gen. Stat. § 15A-
1021, which governs plea bargains. Defendant asserts Judge Gore
participated in misleading the jury by characterizing the
sentencing condition as an agreement in his jury instruction. We
disagree.
“'[I]t is established that a conviction obtained through use
of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.'” State v.
Williams, 341 N.C. 1, 16, 459 S.E.2d 208, 217 (1995) (quoting Napue
v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221 (1959)).
The evidence presented was entirely true. Douglas' guilty plea was
an open plea of guilty, and not a plea agreement with the State.
Douglas never had a plea agreement with the State. The court, in
its discretion, consolidated her sentences to a single life
sentence on the condition that she testify truthfully if called
upon by the State. Defendant's argument regarding the knowing use
of false evidence is based solely upon the assertion that the State
and Judge Gore presented to the jury that the sentencing condition
was enforceable, while defendant asserts it was not. However,
there is no evidence that the enforceability of the condition was
discussed at trial at all, nor, more importantly, before the jury.
Accordingly, even assuming arguendo the condition is not
enforceable, we cannot find either the State or Judge Gore knew it
was not and purposefully implied to the jury it was. Therefore,defendant's assertion is without merit, and we cannot find the
actions of the Judge and the State constituted presentation of
known false evidence in violation of defendant's due process
rights. Accordingly, we find neither structural nor plain error,
and overrule this assignment of error.
C. Jury Instructions
[3] Defendant asserts the court committed plain error by
instructing the jury to carefully consider Douglas' credibility in
light of her agreement with the court. Defendant's assertion
relied upon finding the court improperly admitted evidence of her
sentencing condition, and in accordance with our decision, this
assignment of error is overruled.
II. State's Closing Argument
Defendant asserts the trial court erred by permitting the
State to make improper statements during closing argument during
the guilt-innocence phase of the trial.
Our standard of review of the prosecutor's statements depends
on whether defendant objected at trial. If defendant objected,
“this Court must determine whether 'the trial court abused its
discretion by failing to sustain the objection.'” State v.
Walters, 357 N.C. 68, 101, ___ S.E.2d ___, ___ (2003) (quoting
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)).
“When defendant fails to object to an argument, this Court must
determine if the argument was 'so grossly improper that the trial
court erred in failing to intervene ex mero motu.'” Id., (quoting
State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002),
cert. denied, ___ U.S. ___, 155 L. Ed. 2d 1074 (2003)).A. Failure to Intervene
[4] We first address those statements to which defendant did
not object. Under these circumstances, “'[o]nly an extreme
impropriety on the part of the prosecutor will compel this Court to
hold that the trial judge abused his discretion in not recognizing
and correcting ex mero motu an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken.'” State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592
(2001), cert. denied, 354 N.C. 575, 559 S.E.2d 184, cert. denied,
536 U.S. 930, 153 L. Ed. 2d 791 (2002)(quoting State v. Richardson,
342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)). The test for our
Court is “'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. . . .'”
Walters, 357 N.C. at 102, ___ S.E.2d at ___ (quoting Jones, 355
N.C. at 133, 558 S.E.2d at 107). Defendant assigns error to the
following argument:
There are some things I don't think you and I
can explain. Why in the world _ _ (walked
over in front of defense table) _ _ Mr. Frink,
would a civilized man do this to a fellow
human being? What joy and fun do civilized
men find in doing these things, Mr. Frink?
Why wouldn't one of these civilized human
beings, Mr. Frink, have tried to protect Debra
Cheeseborough and saved her from this barbaric
attack? Why wouldn't one of them have gone
back and offered her aid and help, Mr. Frink?
You were there. (Walked back to podium.)
Defendant argues these rhetorical questions were posed “for the
purpose of irritating or provoking the defendant” and accordingly
the trial court should have intervened. We disagree, and do notfind these rhetorical questions asked of defendant “strayed far
enough from the parameters of propriety” that the trial court
abused its discretion by not intervening of its own accord. State
v. Hill, 139 N.C. App. 471, 485, 534 S.E.2d 606, 615 (2000) (where
the trial court intervened ex mero motu when the prosecutor during
closing argument was agitated, approached the defense table and
shouted rhetorical questions at defense counsel while brandishing
the pistol introduced into evidence).
[5] Defendant also asserts it was error for the trial court
not to intervene ex mero motu into the following argument:
But you need to think about what happened to
these three ladies as they're in the trunk of
the car. You need to think about what they
went through as they ride around in the trunk
of the car. Not knowing what's going to
happen to them. And then, of course, the
ultimate bad happening to them. Think about
the suffering. Think about the torture.
Think about the mental anguish. Think about
it.
Generally, “[a]n argument 'asking the jurors to put themselves in
place of the victims will not be condoned. . . .'” State v.
McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993) (quoting
United States v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)).
However, “'this Court has consistently allowed arguments where the
prosecution has asked the jury to imagine the emotions and fear of
a victim. . . .'” Anthony, 354 N.C. at 428, 555 S.E.2d at 592
(quoting State v. Wallace, 351 N.C. 481, 529, 528 S.E.2d 326, 356
(2000)). Since this argument focused on the suffering and mental
torture of the victims, we hold the trial court did not err by
failing to intervene ex mero motu.
B. Failure to Sustain the Objection We next address those statements to which defendant objected
at trial. Our standard of review is abuse of discretion. Walters,
357 N.C. at 102-03, ___ S.E.2d at ____. “Application of the abuse
of discretion standard to closing argument requires this Court to
first determine if the remarks were improper.” Id., 357 N.C. 101,
___ S.E.2d at ___. “'[I]mproper remarks include statements of
personal opinion, personal conclusions, name-calling, and
references to events and circumstances outside the evidence, such
as the infamous acts of others.'” Id., 357 N.C. 105, ___ S.E.2d at
___ (quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). Upon
finding improper remarks were made, “'we determine if the remarks
were of such a magnitude that their inclusion prejudiced defendant,
and thus should have been excluded by the trial court.'” Id., 357
N.C. 101, ___ S.E.2d at ___ (quoting Jones, 355 N.C. at 131, 558
S.E.2d at 106). “In order to demonstrate prejudicial error, a
defendant must show that there is a reasonable possibility a
different result would have been reached had the error not
occurred.” State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375
(2001) (holding prejudicial error because prosecutor's argument);
State v. Little, 126 N.C. App. 262, 268, 484 S.E.2d 835, 839 (1997)
(holding no prejudicial error despite prosecutor's argument).
[6] Defendant assigns error to the prosecutor's reading of
album titles seized from the stolen vehicles, wherein the
prosecutor said: “'Mama Raised Me.' You heard a shred of evidence
about any mama _ _ anybody's mama raising 'em, amongst this group
of people right here, including that defendant (indicating)?”
Defendant objected at trial, and asserts on appeal that theprosecutor implied that defendant was not raised by his mother, and
“[t]his comment is analogous to the State calling a defendant a
'mean S.O.B.'” and is reversible error under State v. Davis, 45
N.C. App. 113, 114-15, 262 S.E.2d 329, 329-30 (1980). We find this
remark was an improper remark. However, we do not find this remark
was prejudicial error. The implication that defendant was raised
by someone other than his mother is irrelevant, and is not
inherently “degrading and disrespectful. . . .” Davis, 45 N.C.
App. at 115, 262 S.E.2d at 330. Considering the plethora of
evidence against defendant, we cannot conclude this comment was
prejudicial.
[7] Defendant assigns error to the following closing
arguments:
PROSECUTOR: Now, the state didn't just go out
_ _ walk out in the street _ _ now, that's
something defense counsel like to do. They
like to come up and tell you all _ _
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
PROSECUTOR: _ _ that the police botched it.
Why don't we have the deaf guy? Where is Ione
Black?
. . .
PROSECUTOR: I know this has been a long ordeal
for y'all. And I don't want to just go on and
on, (indicating) but when the defense counsel
gets up here _ _
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
PROSECUTOR: _ _ and tries to tell _ _ put a
spin on what you saw with your own eyes, I ask
you the question that Groucho Marx asked one
time, 'You going to believe me or your lying
eyes?' You see? So you believe your own
eyes, ladies and gentlemen of the jury.
Defendant asserts these remarks were improper, and made with the
intent to disparage defense counsel. The State asserts this
argument was proper and merely countered defendant's contentionthat the State failed to meet its burden of proof. We need not
determine the impropriety of these arguments since we cannot find
a reasonable possibility exists that without these comments another
result would have been reached. Accordingly, we find no
prejudicial error.
[8] Defendant assigns error to improper comments by the
prosecutor during closing argument referencing Hitler and the
Nazis. The prosecutor made the following arguments:
PROSECUTOR: And he wants you to think that
he's sitting over there fresh out of college
with a tie on, a haircut, cleaned up. He
would deceive you, ladies and gentlemen of the
jury. Evil doesn't necessarily have a bad or
dirty or whatever kind of face you want to put
on it. Ordinary people could be evil. Did
you know a man named Heinrich Himmler that was
responsible for the slaughter of _ _
DEFENSE COUNSEL #1: Objection.
DEFENSE COUNSEL #2: Objection.
PROSECUTOR: _ _ the Jews?
THE COURT: Overruled.
PROSECUTOR: Did you know he was a chicken
farmer? The man raised chickens, but he went
to a meeting called the Wannsee Conference,
and he sat down with a bunch of other people
and planned to slaughter six million people or
more. This defendant (walked over to defense
table, indicating) was sitting right at 1386
Davis Street with his friends (walked over in
front of easel), planning to slaughter
somebody. Didn't know who. Didn't know it
was going to be Debra Cheeseborough. Didn't
know it was going to be Susan Moore. (Moved
over in front of DA's table.) Didn't know it
was going to be Tracy Lambert. But they knew
they were gonna slaughter somebody. Isn't
that wicked? Isn't that vile?
. . .
PROSECUTOR: Now, let me _ _ let me jump back
to Nazi Germany right quick.
DEFENSE COUNSEL: Objection, your Honor.
THE COURT: Overruled.
PROSECUTOR: The reason Telford Taylor and
those men that tried the Nuremberg criminals
at the Nuremberg trials were able to find out
so much is because the Germans put it inwriting, the Nazis put it in writing, (held up
exhibit) just like them (indicating defense
table), put it in writing.
. . .
PROSECUTOR: This was found in their gang
headquarters. (Indicating easel.) End of the
World War II, that's where those folks _ _
that's where our soldiers got all that
information from when they went in the bunker
and went in Bertchesgaden, found all that
stuff that belonged to Hitler and their gang.
They put it in writing. Unbelievable, but
they put it in writing. These people put
their intent in writing. (Indicating, holding
exhibit.)
We agree with defendant that these arguments were improper.
Although our courts “do not completely restrict closing arguments
to matters that are only within the province of the record, to the
exclusion of any historical references. . . . [We] will not allow
such arguments designed to inflame the jury, either directly or
indirectly, by making inappropriate comparisons or analogies.”
Walters, 357 N.C. at 105, ___ S.E.2d ___. Moreover, “using Hitler
as the basis for the example has the inherent potential to inflame
and to invoke passion in the jury, particularly when defendant is
compared to Hitler in the context of being evil.” Walters, 357
N.C. at 105, ___ S.E.2d at ___. We find prosecutor's comments
comparing defendant to Himmler also has the inherent potential to
improperly impassion the jury and such statements are improper. We
find prosecutor's comments comparing the Crips' writings
demonstrating their intent to the Nazi writings are also improper
as they needlessly reference infamous acts that may improperly
affect the jury.
However, we find the requisite prejudice was not demonstrated.
In the present case, we find no support for the assertion thatwithout these comments by the prosecutor a reasonable possibility
exists a different result would have occurred.
Defendant neither briefed nor argued his remaining assignments
of error and accordingly they are deemed abandoned. N.C. R. App.
28(b)(6)(2003).
No error.
Chief Judge EAGLES and Judge HUNTER concur.
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