NO. COA02-330

STATE OF NORTH CAROLINA

         v.                                Guilford Cou nty
                                        No. 01CRS76272< br> BRYAN LEON ROBINSON
    

    Appeal by defendant from judgment entered 25 September 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Anne Bleyman for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Bryan Leon Robinson was tried before a jury at the 24 September 2001 Criminal Session of Guilford County Superior Court on one count of assault with a deadly weapon inflicting serious injury. The State's evidence showed that at approximately 4:30 a.m. on 13 January 2001, defendant, his cousin Floyd Arnell Robeson (Robeson), and his friend Corey Cotton (Cotton) had been out drinking on Market Street. Robeson, who felt intoxicated, asked defendant to drive the three of them home using Robeson's automobile. As defendant drove, Robeson asked defendant for three dollars. Defendant responded that he did not have the money. Robeson then asked defendant for his vehicle back and defendantstopped the vehicle. When Robeson exited the vehicle to take over the driving, defendant drove off.
    Robeson walked approximately one mile to defendant's parents' house, where defendant lived with his wife. Upon his arrival, he discovered that his vehicle was not in the driveway. Robeson knocked on the door and then on a bedroom window. Defendant's father opened the front door and tried to calm down Robeson, who was upset. When defendant came out of his bedroom, he and Robeson started arguing. Robeson, who was unarmed, stepped toward defendant and defendant stabbed Robeson in his forearm. Defendant's father knocked the knife out of defendant's hand and wrapped Robeson's injured arm. Defendant's wife called the police. Before the police arrived, Robeson left and walked to his father's house. Robeson's brother took him to the hospital, where he underwent emergency surgery to repair an artery and a nerve in his arm.
    Officers T.J. Miller and M.W. Caudle of the Greensboro Police Department were dispatched to defendant's residence. On their way to the scene, they saw another police car chasing a vehicle, which was later determined to be Robeson's vehicle. Officers Miller and Caudle assisted in arresting the driver, Cotton, after he crashed the vehicle into a brick mailbox and attempted to flee on foot. The two officers subsequently arrived at defendant's residence. Defendant told the officers that Robeson had pulled out a knife, and in the course of a struggle, Robeson was stabbed. After the officers questioned Robeson at the hospital, they returned todefendant's residence. At that time, defendant's mother told the officers that defendant stabbed Robeson with a knife and that the knife was in the kitchen sink.
    Defendant presented evidence that after Robeson demanded the three dollars, Robeson grabbed the steering wheel. Defendant stopped the vehicle and the two men exited. Instead of fighting as Robeson suggested, defendant returned to the vehicle and drove away, leaving Robeson. When Robeson arrived at defendant's residence, Robeson threatened to kill defendant. Robeson swung at defendant with his fist and defendant stabbed Robeson with a knife he brought from his bedroom.
    After deliberating, the jury found defendant guilty as charged. The trial court sentenced defendant to a minimum of thirty-seven and a maximum of fifty-four months' imprisonment. Defendant appealed.
    On appeal, defendant argues the trial court erred by (I) failing to intervene during the State's closing argument; (II) overruling his objection to some of the State's questions; and (III) requiring him to make restitution for an offense for which he received an active term of imprisonment. For the reasons stated herein, we disagree with defendant's arguments and hold he received a trial free from error.
        

    Defendant first assigns error to portions of the prosecutor's closing arguments. Because defendant did not object to the prosecutor's closing arguments, “the standard of review is whetherthe argument was so grossly improper that the trial court erred in failing to intervene ex mero motu.” State v. Call, 353 N.C. 400, 416-17, 545 S.E.2d 190, 201, cert. denied, ___ U.S. ___, 151 L. Ed. 2d 548 (2001). “'[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. Davis, 353 N.C. 1, 31, 539 S.E.2d 243, 263 (2000), cert. denied, ___ U.S. ___, 151 L. Ed. 2d 55 (2001) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693).
    Defendant argues that the State misstated the law on self- defense when it “repeatedly said that self-defense is never justified when the victim is unarmed.” In explaining the law of self-defense the prosecutor stated in pertinent part:
        [Defendant's] assault would be excused as being in self-defense only, only if the circumstances at the time he acted were such as would create in the mind of . . . .

            . . . .

            [E]very person of ordinary firmness a reasonable belief that such action was necessary or apparently necessary to protect himself from death or great bodily harm.

            . . . .

            It's for you, the jury, to determine the reasonableness of the defendant's belief from the circumstances as they appeared to him at the time.

            However, the force used cannot be excessive. I repeat that. The force usedcannot be excessive.

            Even if you believe that Floyd came after Bryan and swung at him and somehow got stabbed up through his forearm so that the blade came at him like that, like his wife and like Bryan so conveniently tried to testify to, even if you believe that, he's an unarmed man. I cannot walk up to anybody, and neither can a bailiff, neither can a law-enforcement officer, neither can the Judge, and go to take a swing at somebody. And if I go to take a swing at somebody, they pull out a gun and shoot me, that's not self-defense, ladies and gentlemen. Neither is, if you believe he tried to take a swing at him, him getting stabbed. That does not justify self-defense.
            This means that the defendant had to -- had the right to use only such force as reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. In making this determination, you should consider the circumstances as you find them to exist from the evidence, including the size, age, and strength of the defendant as compared to the victim.

In conclusion, the prosecutor stated, in pertinent part:

            We are here today because of Mr. Robinson's actions and for him to take responsibility for those actions. Any one of us sitting here today does this, including myself, anybody, we have to take responsibility for our actions. We can't just stab an unarmed person. That's not the way our society functions. That's not what the law says. That's not what the law is.

            And ladies and gentlemen, after you've heard all this evidence and you're applying your reason to this and your common sense, you will find the defendant is guilty of assault with a deadly weapon inflicting serious injury on Mr. Floyd Robeson. You'll also see there is no defense of self-defense. No knife, not by Floyd, no self-defense. Even if you believe that he swung at him. To believe that he swung at him, you have to somehow figureout how that knife went through the top of his forearm and came out the back, as Floyd testified to.

    Our Supreme Court has stated that “[t]rial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom.” State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999). To determine the propriety of the prosecution's argument, the Court must review the argument and analyze the import of the argument within the trial context, including the evidence and all arguments of counsel. Darden v. Wainwright, 477 U.S. 168, 179, 91 L. Ed. 2d 144, 156 (1986).
    After reviewing the challenged argument, we conclude the prosecutor's argument was not improper. The prosecutor properly argued to the jurors that they should determine the reasonableness of defendant's belief that, by stabbing Robeson, he was going to protect himself from death or great bodily harm from the circumstances as they appeared to him at that time. The prosecutor did not, as defendant suggests, argue that the jurors should reject the defense of self-defense because the victim was unarmed. Furthermore, assuming arguendo that the prosecutor's argument about self-defense was improper in any respect, the trial court's accurate instructions on self-defense cured the impropriety. See State v. Cummings, 352 N.C. 600, 623, 536 S.E.2d 36, 53 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Therefore, the trial court did not err by failing to intervene ex mero motu,and defendant's first assignment of error is overruled.

    By his second assignment of error, defendant contends the trial court erred in allowing the State to elicit testimony from Robeson on redirect examination that went beyond the scope of Robeson's testimony during direct and cross-examination. Specifically, the State asked Robeson on redirect, “Would you characterize [defendant] as drunk also?” The trial court overruled defendant's objection and allowed Robeson to answer the question.
    As a general rule, “the calling party is ordinarily not permitted . . . to question the witness on entirely new matters[]” on redirect examination. State v. Weeks, 322 N.C. 152, 169, 367 S.E.2d 895, 905 (1988). However, the decision whether to allow testimony on redirect examination involving matters beyond the scope of the witness' testimony on direct and cross-examination is a matter left to the sound discretion of the trial court. State v. Waters, 308 N.C. 348, 354, 302 S.E.2d 188, 192 (1983). Furthermore, N.C. Gen. Stat. § 8C-1, Rule 611(a) (2001) provides that “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence[.]”
    We conclude the trial court did not abuse its discretion because the subject of defendant's state of intoxication was discussed on both direct and cross-examination. On direct examination, Robeson testified that he and defendant were drinking. When defendant's counsel asked, “All of this started when you and [defendant] and Corey had been out -- had been drinking for awhile; right?”, Robeson responded, “Yes.” Moreover, defendant could not have been prejudiced by Robeson's testimony on redirect examination when the subject of defendant's drinking and intoxication was explored through examination of defendant himself without objection. Accordingly, this argument is without merit.

    Lastly, defendant contends the trial court erred by requiring him to make restitution for an offense for which he received an active term of imprisonment. Defendant argues the trial court could only “recommend” that he make restitution as a condition of work release or post-release supervision. See State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000).
    In Hughes, this Court held that the trial court lacked authority to order restitution by a defendant who received an active prison sentence without probation. This Court explained:
        When a court imposes an active prison sentence, the court may recommend restitution to the Secretary of Correction as a condition of work-release. Additionally, the court may recommend restitution to the Post-Release Supervision and Parole Commission as a condition of post-release supervision and parole. Finally, restitution may be ordered as a condition of probation.     

Id. at 98, 524 S.E.2d at 67 (citations omitted).
    Here, the written Judgment and Commitment specifically provided: “The Court recommends: . . . Payment as a condition of post release supervision, if applicable, or from work release earnings, if applicable, of . . . $8,087.90" and that “The Courtfurther recommends: RESTITUTION SHALL BE PAID TO HEALTHCARE PROVIDER.” The trial court's recommendation that the restitution be paid as a condition of post-release supervision or work release falls within the boundaries articulated in Hughes. Accordingly, defendant's final assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***