No. COA02-893

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

STATE OF NORTH CAROLINA

        v.                             Robeson County
                                  Nos. 95 CRS 015621,
ROBERT MILES                             95 CRS 015622

    Appeal by defendant from judgments entered 5 October 2001 by Judge James F. Ammons, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 13 May 2003.

            Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

            Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was tried before a jury during the 24 September 2001 Criminal Session of Robeson County Superior Court at which time he was convicted of first-degree murder and armed robbery. The jury recommended that defendant be sentenced to life without parole on the first-degree murder conviction. The trial court sentenced defendant to a consecutive term of 103 to 133 months on the armed robbery charge. From these convictions defendant appeals.
    The evidence at trial tended to show that defendant was livingwith his girlfriend, Zemoria Shaw, and her sixteen-year-old-nephew, Gregory Jordan, during the summer of 1995. On 4 August 1995, defendant, who had been smoking marijuana and drinking all day, and his aunt visited the victim, Lorenzo Walker, at which time defendant learned the victim had inherited a large sum of money totaling approximately $10,000.00. Later that evening Shaw and defendant argued about his continued unemployment and lack of income as he was smoking up the marijuana he should have been selling. Defendant and Jordan then left Shaw's mobile home and went to the victim's residence where they drank liquor for the next few hours while watching television. At one point defendant went to the bathroom where he vomited into the sink. Jordan, who testified for the State pursuant to a plea agreement, stated that he followed defendant to the bathroom to see if he was okay, at which time defendant said, “Yeah. I'm about to kill this guy. Just get ready.” Jordan further testified that defendant then returned to the living room with a knife he carried hidden in the sleeve of his shirt. After sitting down, defendant told Jordan to get ready to turn the lights out. Then defendant went behind the victim, who was sitting in his recliner, and stabbed him to death. Jordan turned the lights off and then back on as directed by defendant. The two men then searched the house. Defendant yelled “jackpot” while he was in the victim's bedroom. They later leftthe victim's home at which time defendant carried a trash bag and Jordan had two VCRs. They stopped at a convenience store for cigarettes, at which time defendant gave Jordan a twenty-dollar bill to use for payment.
    When they arrived at Shaw's with the VCRs, she asked for an explanation, as she knew the VCRs had to be stolen. Shaw questioned defendant, and he admitted to her that he had killed Walker. The next day Jordan and Shaw took defendant to Richmond, Virginia, to catch a bus for New York. Shortly after Shaw and Jordan returned from Richmond, the police came to Shaw's mobile home. Both Shaw and Jordan gave statements which implicated defendant.
    At trial defendant denied killing Walker and claimed that Jordan had committed the murder-robbery.
    On appeal defendant argues that the trial court erred (I) by refusing to allow the publication of the accomplice's transcript of plea and excluding the Assistant District Attorney's opinion that the accomplice was untruthful in an out-of-court interrogation; (II) by allowing the prosecutor to engage in unethical behavior; (III) by denying defendant's Brady motion; (IV) in its jury instruction regarding the felony-murder rule; and (V) by failing to allege in the indictment the essential elements of first-degree murder. Each assignment of error will be discussed in turn.

Opinion of Accomplice's Credibility

    A. Exclusion of Transcript of Plea
    The accomplice, Gregory Jordan, testified at trial that he was unaware of the nature of his plea agreement with the State. His testimony is fairly characterized by defendant's counsel as “evasive.” In an effort to show that Jordan had received favorable treatment, trial counsel cross-examined Jordan from the transcript of plea and later called Jordan's own lawyer who read portions of the transcript of plea. The plea agreement showed, and the jury was informed, that Jordan pled guilty to accessory after the fact to first-degree murder and armed robbery with a sentence of 48 to 67 months in exchange for his truthful testimony. After Jordan's lawyer read portions of the transcript of plea to the jury, defendant attempted to immediately publish the transcript of plea to the jury. That request was denied.
    Admission of evidence concerning a plea arrangement is governed by N.C. Gen. Stat. . 15A-1055 which provides:
        Notwithstanding any other rule of evidence to the contrary, any party may examine a witness testifying . . . pursuant to [a plea] arrangement . . . with respect to that . . . arrangement. A party may also introduce evidence or examine other witnesses in corroboration or contradiction of testimony or evidence previously elicited by himself or another party concerning the . . . [plea] arrangement.
    Defense counsel never revisited this issue later nor did he attempt to read the document to the jury during his closing argument as he is permitted to do. See State v. Wingard, 317 N.C. 590, 595-96, 346 S.E.2d 638, 642-43 (1986). While the denial of the publication immediately following the testimony of Jordan's lawyer did occur, it is not apparent from the record that publication at a later time or during closing would have been prevented.
    The manner of the presentation of evidence is a matter that rests in the discretion of the trial judge and will not be disturbed absent manifest abuse. State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986). As the substance of the agreement was before the jury and all parties were aware of the terms of Jordan's plea arrangement, it is apparent that the trial court complied with the statute. This assignment of error is overruled.
    B. Motion to Nullify Agreement
    On 27 April 2001, the prosecutor questioned Jordan in the presence of his counsel and trial counsel for defendant. In May 2001, the prosecutor filed a motion to nullify the plea agreement. In the motion the Assistant District Attorney opined that Jordan was not being truthful in his recollections of the events of 4 August 1995. Jordan's lawyer testified at trial about this motion stating:        [Jordan] was not being truthful and the interview was terminated . . . [he] repeatedly gave false information that was inconsistent with his previous statements and information collected from other witnesses . . . on the few occasions when [Jordan] was confronted with these discrepancies, he would change his answers; he would give different information to the same questions throughout the interview.

The motion was admitted into evidence, but the portions regarding the prosecutor's opinion of Jordan's credibility were excised. Defendant was also allowed to cross-examine Jordan regarding his knowledge of the motion to nullify.
    This issue is governed by Rule 608 of the Rules of Evidence which provides:
         Rule 608. Evidence of character and conduct of witness.

            (a) Opinion and reputation evidence of character:--The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

            (b) Specific instances of conduct.-- Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.
N.C. Gen. Stat. § 8C-1, Rule 608 (2001). As the Rule makes clear, opinions of the credibility of witnesses are prohibited, even by expert witnesses. State v. Mackey, 352 N.C. 650, 535 S.E.2d 555 (2000). Defendant further asserts that the Assistant District Attorney, after moving to nullify Jordan's plea arrangement, was a necessary witness and should not have been involved in the case. Defendant never objected to his role at trial. This issue was not preserved, and we decline to address it. N.C.R. App. P. 10(b)(1) (2003).
    Thus, the trial court did not err in excluding the opinion portion of the motion and this assignment of error is also overruled.

    Defendant maintains that by cross-examining Jordan's defense attorney about the difference between the obligations of a prosecutor and a defense attorney, the prosecutor improperly demeaned defense lawyers and misstated their obligations. While we do not condone the questioning engaged in by the Assistant District Attorney, it appears that he was attempting to explain why the State of North Carolina made a deal with Jordan for his testimony.
    In his closing the prosecutor stated:
        [A]nd let me address one thing, the motion that [defense counsel] was waving around there, the motion made by the State to revokeGregory's plea bargain. One of the things that I asked Mr. Thompson, when he got on the witness stand, “Was there not a difference between the oath that the State takes, prosecutors for the State, and oaths taken by defense attorneys?” He said that there was. Ladies and gentleman, my job is not to convict. My job is to seek justice. If that means making a deal, then we do that. If it means reducing charges, then we do that.
    
    Jordan's credibility was a central issue in this case. It was hotly argued by both sides and defendant's counsel argued that the prosecutor himself had stated that he did not believe Jordan.
    While the law does not allow counsel to go beyond the record or inject his personal opinion of a witness's credibility, when there has been an attack on the witness's credibility, past cases have allowed a response in kind. See, e.g., State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987). Nor is it error for the prosecutor to explain why a plea arrangement was entered into. State v. Gregory, 348 N.C. 203, 499 S.E.2d 753, cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998).
    Here the trial judge sustained an objection to part of the prosecutor's argument and issued a curative instruction that a lawyer's beliefs are not part of the case. The trial court also instructed the jury that “[t]he final arguments of the attorneys are not evidence” and that it was improper “to express a personal belief as to the guilt or innocence of the defendant, or to makearguments on the basis of matters outside the record.”
    Proper instructions, such as those given here, are presumed to cure any error. State v. Williams, 350 N.C. 1, 510 S.E.2d 626, cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999).
    Defendant also argues that the prosecutor's argument on acting in concert was improper. There was no objection to this argument. We have examined the statements and do not believe the argument so grossly misstates the law that the trial court should have intervened at that time, ex mero motu, to correct the error. We note that the trial court correctly instructed the jury on the elements of the offense, thus any errors of law made in the closing argument were harmless.
    In the context of this trial we do not believe the prosecutor's arguments, even if error, rise to the level of reversible or prejudicial error. Accordingly, this assignment of error is overruled.

    Defendant argues that he was denied, prior to trial, certain statements of the witness Jordan which were of an impeaching nature. The State has a constitutional obligation to disclose exculpatory information at trial. U.S. v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342 (1976); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). Copies of a witness's recorded statements are availableafter the witness has testified on direct examination. N.C. Gen. Stat. . 15A-903(f) (2001). Here, defendant's trial counsel was present for one of two interviews with Jordan held on 27 April 2001 and was permitted to question him about both the earlier interview and the one he attended. Defendant's trial counsel also questioned Jordan's own attorney and thus had the opportunity to ask him about the events of the first interview held on 27 April. Based on the record before us, it does not appear that defendant was denied any of Jordan's statements and accordingly is not entitled to any relief. State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992).

    Defendant complains that the trial court failed to properly instruct the jury on the theory of acting in concert. As this murder occurred on 5 August 1995, the trial was governed by the law in State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994), overruled on other grounds, State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997). Under the test set forth in Blankenship, the State must prove that the defendant possessed the mens rea to commit the specified crime. Id. at 558, 447 S.E.2d at 736.
        Robert Miles, acting either by himself or acting together with another person, intentionally killed the victim with a deadly weapon and this proximately caused the victim's death and that the defendant intended to kill the victim, and that he acted with malice after premeditation and withdeliberation . . . .

Such an instruction fully complies with the requirements of Blankenship. State v. Evans, 346 N.C. 221, 485 S.E.2d 271 (1997), cert. denied, Gillis v. N.C., 522 U.S. 1057, 139 L. Ed. 2d 653 (1998). This assignment of error is therefore overruled.

    Finally, defendant contends that the short-form indictment violated his constitutional rights because it fails to list all of the elements of the offense of first-degree murder. Our Supreme Court has upheld the use of the short-form indictment and this assignment of error is without merit. State v. Hunt, ___ N.C. ___, ___ S.E.2d ___ (filed 16 July 2003); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000).
    For the reasons set forth above, we believe defendant received a fair trial free from prejudicial error and thus uphold his convictions.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).