NO. COA02-528

STATE OF NORTH CAROLINA

         v.                        Robeson County
                                No. 01 CRS 6462
WILLIE JAMES WALTERS
    

    Appeal by defendant from judgment entered 26 October 2001 by Judge Sanford L. Steelman in Robeson County Superior Court. Heard in the Court of Appeals 20 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General H. Dean Bowman, for the State.

    Joseph E. Zeszotarski, Jr., for defendant-appellant.

    TYSON, Judge.

    The State's evidence tended to show that on the night of 30 December 2000, several people gathered at Tyrone Mitchell's house. At approximately 9:30 p.m., Michael Watson (“Watson”), Marcus Moore, Rodney Moore and Willie James Walters (“defendant”) started playing cards. Defendant and his girlfriend left Mitchell's house around 10:30 p.m. and returned fifteen minutes later. Upon defendant's return, he and Watson went to the back room and “tussl[ed]” for a minute. There was differing testimony as to what transpired next.     Marcus Moore testified that he, Watson and Rodney Moore got ready to leave when Watson came out of the room. As the three men were halfway out the front door, Tyrone Mitchellcalled Michael's name. Watson turned around and Marcus and Rodney Moore followed him. Marcus Moore testified that as Watson reached the kitchen door, defendant shot him. Marcus Moore heard a second shot as he and Rodney Moore ran out of the house.
    Rodney Moore testified that when he came out of the bathroom, he saw defendant fire a gun at Watson. Watson spun around, and defendant fired a second shot at Watson.
    Deshon Watson, the victim's brother, testified that he stepped between Watson and defendant while they wrestled in the back room. Afterwards, defendant and Deshon Watson went outside. Michael Watson went outside and “ran up” into defendant's face. Deshon grabbed Watson and held him. Watson then went back into the house and Deshon Watson heard two gunshots. When Deshon arrived inside, Watson was holding his chest and said, “D[eshon], I'm shot.” Deshon saw the handle of a gun in defendant's pocket. Deshon did not mention Michael Watson had confronted defendant outside and that he had to restrain Watson in his statement to Investigator Tina Rhodes of the Fairmont Police Department.
    Defendant testified on his own behalf. Defendant testified that he and his girlfriend went to Tyrone Mitchell's house to play cards. Around 9:30 p.m., defendant and his girlfriend went to his house to get his gun. Upon his return to Mitchell's house, Michael Watson told defendant that they needed to talk. The two went into the back bedroom and Watson asked defendant if he wanted to sell his gun. When defendant declined, Watson reached into defendant's pocket to try and take the gun and a “tussle” ensued. DeshonWatson grabbed Watson and defendant went out the front door. Watson followed defendant outside and told defendant that he would take everything in defendant's pocket. Defendant went back inside the house and Watson followed. Watson stated to defendant, “I'll take everything you've got in your damn pocket.” Defendant testified that he was scared, took his pistol from his pocket and fired one shot into the ceiling. Watson kept coming and defendant fired a second shot which struck Watson. In his written statement, however, defendant stated that (1) Watson attacked him immediately after he and his girlfriend walked inside Mitchell's house, (2) a fight broke out between the two of them, (3) Watson tried to take defendant's gun, and (4) defendant fired his gun during the course of the fight.
    Defendant was charged with and tried for first degree murder. A jury found defendant guilty of second degree murder. The trial court sentenced defendant to 200 to 261 months imprisonment. Defendant appeals.

    Defendant contends the trial court erred by (1) allowing the State to question him about the details of his prior conviction for assault with a deadly weapon inflicting serious injury and (2) allowing the prosecutor's closing arguments to the jury. Those assignments of error not argued are abandoned. N.C. R. App. P. 28 (2001).

    During cross-examination of defendant, the followingquestioning took place:
        Q. Now, Mr. Walters, you have been convicted of -- actually, of assault with a deadly weapon, inflicting serious injury, haven't you?

        A. Yes, sir.

        Q. In just 1994?

        A. Yes, sir.

        . . .

        Q. Was that a guilty plea?

        A. Yes, sir. It was a guilty plea.

        Q. All right.

        A. Got probation.

        Q. Assault with a deadly weapon, what was the deadly weapon, sir?

        A. Yes, sir.

        Q. What was the deadly weapon?
        [DEFENSE COUNSEL]: Objection.

        THE COURT: Overruled.

        THE WITNESS: It was a shotgun.

        BY [THE PROSECUTOR]:

        Q. You shot someone with a shotgun.

        A. (Affirmative non-verbal response.)

        Q. Now -_ but that wasn't any of the people involved in the incidents of December 30th, was it?

        A. No, sir.

Defendant argues the prosecutor's questioning was to show that he was a person predisposed to violence involving guns. (Relying on State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993)).    In Lynch, our Supreme Court held that during cross-examination of a defendant the State was prohibited “from eliciting details of prior convictions other than the name of the crime and the time, place, and punishment for impeachment purposes under Rule 609(a) in the guilt-innocence phase of a criminal trial.” Id. at 410, 432 S.E.2d at 353. Our Supreme Court, however, went on to state that such evidence is admissible
        to correct inaccuracies or misleading omissions in the defendant's testimony or to dispel favorable inferences arising therefrom. For example, when the defendant “opens the door” by misstating his criminal record or the facts of the crimes or actions, or when he has used his criminal record to create an inference favorable to himself[.]

Id. at 412, 432 S.E.2d at 354.
    Defendant testified on direct examination that he had a prior conviction of assault in 1998 and that he had no other convictions. Defendant's testimony on direct examination was misleading about the gravity and nature of his prior conviction. Defendant testified that he had no convictions other than an “assault,” and created an inference favorable to himself. Defendant opened the door for the prosecutor to elicit the true nature of the conviction on cross-examination, that defendant's 1998 assault conviction involved the use of a firearm. The trial court properly permitted the State's cross-examination under the restrictions set forth in Lynch. This assignment of error is overruled.

    Defendant also assigns error to portions of the prosecutor's closing arguments. Defendant did not object to the prosecutor'sclosing arguments. Our “standard of review is whether the 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, 534 U.S. 1046, 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, 534 U.S. 839, 151 L. Ed. 2d 55 (2001) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996)).
    During the State's closing argument, the prosecutor stated:
        The two that were inconsistent, the only two, were Mr. Walters and Deshon. I'd suggest to you one clear point of view is that, when the defendant sat here throughout Deshon's testimony, he liked what he heard enough that he adopted it. Of course, it was completely inconsistent with what he said happened, being the most critical person involved in this incident, the actual shooter; but, he liked Deshon's version, so he had to change his to match it. And, of course, he didn't hear Deshon's new version until this week.

Defendant argues the State violated his right to be present in the courtroom during his trial when it asserted that his presence in the courtroom permitted him to tailor his testimony to match that of other witnesses at trial.
    Our Supreme Court has consistently held that “[t]rial counsel is allowed wide latitude in argument to the jury and may argue allof 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 in context 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).
    We have reviewed the challenged argument in context and conclude the prosecutor's argument was not improper. The prosecutor properly referred to the testimony of defendant and Deshon Watson and argued that the jurors should determine the reasonableness of their testimony and statements. Due to the inconsistencies between defendant's statement and his trial testimony, the prosecutor's questioning of defendant's credibility constitutes a reasonable inference from the evidence. The prosecutor did not, as defendant suggests, violate defendant's right to be present during the trial. We cannot conclude that the prosecutor's inference was so grossly improper as to require the trial court to intervene ex mero motu when, at trial, defense counsel apparently did not believe the argument was prejudicial and did not object. See State v. Murillo, 349 N.C. 573, 606, 509 S.E.2d 752, 771 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999). This assignment of error is overruled.
    The defendant received a trial before an able judge and a jury of his peers that was free from errors that he assigned and argued.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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