State v Broadnax, (03-724) 06/15/2004

Appeal by defendant from judgment entered 27 February 2001 by Judge Peter M. McHugh in Rockingham County Superior Court. Heard in the Court of Appeals 29 March 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Ralf F. Haskell, for the State.

Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    THORNBURG, Judge.

    Enoch Eugene Broadnax (“defendant”) appeals from convictions of second degree murder and possession of a firearm by a felon. Defendant asserts that the trial court erred by (1) permitting certain remarks by the prosecutor during closing argument; (2) denying defendant's motions to dismiss; and (3) overruling defendant's objection to the trial court's response to a jury question. For the reasons stated herein, we find no prejudicial error.
    The evidence at trial tended to show the following: The events that gave rise to defendant's convictions occurred at approximately 2:30 a.m. on 23 November 1999 when Timothy Galloway (“Galloway”)was shot in front of Hickory Square Apartments. Earlier that evening defendant, Galloway, and several friends of defendant were at the house of an acquaintance when a fight broke out in the bathroom. During the fight, Michael Artis, one of defendant's second or third cousins, was beaten by Galloway. Defendant, Michael Artis, and Wayne Artis left the house and went to Michael Artis's house. From Michael Artis's house, defendant and Michael Artis left in order to look for the people that had beaten Michael Artis. Fifteen minutes later, Wayne Artis met up with Michael Artis and defendant. Defendant then exited Michael Artis's vehicle and entered Wayne Artis's vehicle. Wayne Artis and defendant proceeded to the Hickory Square Apartments. Defendant directed Wayne Artis where to park, and defendant exited the vehicle.
    Charles Broadnax testified for the State as follows: At approximately 2:30 or 3:00 a.m. on 23 November 1999, Charles Broadnax was standing outside of the Hickory Square Apartments. Galloway was present at the apartment complex as well. Charles Broadnax saw a truck drive up to the complex and saw defendant get out of the truck. Defendant walked towards Galloway and asked Galloway two or three times “Why did you do it?” Charles Broadnax also heard the words, “Don't pull your hand out of your pocket” or “Don't go into your pocket.” He then heard a few shots and saw Galloway fall to the ground. Defendant then told Charles Broadnax to shut his mouth. Charles Broadnax ran off, but he returned ten minutes later. After determining that Galloway was dead, Charles Broadnax looked through Galloway's pockets. He testified that hehad not seen Galloway with a weapon, nor did he find a weapon in Galloway's pocket or see any weapons laying around Galloway's body.     A jury convicted defendant of second degree murder and possession of a firearm by a felon on 22 February 2001. The trial court sentenced defendant to a minimum of 251 months and a maximum of 311 months for second degree murder and a minimum of 20 months and a maximum of 24 months for possession of a firearm by a felon. Defendant appeals.
    Defendant first argues that the trial court erred in permitting the prosecutor to make certain remarks during closing arguments. Defendant did not object to these arguments at trial and, therefore, contends that the trial court should have intervened ex mero motu. The standard of review for this Court where no objection was made at trial is to determine whether the arguments amounted to gross impropriety to the extent that defendant's conviction was fundamentally unfair. See State v. Walters, 357 N.C. 68, 110, 588 S.E.2d 344, 369 (2003), cert. denied, ___ U.S.___, 157 L. Ed. 2d 320 (2003). Further, we note 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).
    Defendant assigns error to the trial court's failure to intervene during the following portion of the State's closing argument:         Ladies and gentlemen, [defense counsel] had the audacity to get up here in front of you and say that [defendant] did nothing aggressive, absolutely nothing. That's hogwash. What did he do, he went and armed himself. He went and hunted Duke Galloway down on the sidewalk, shot him down, left him laying there. He did nothing aggressive, Duke Galloway lived down there. The defendant didn't live down there. . . . Duke Galloway was not the aggressor. It was that man. This man was the aggressor.

This argument essentially attacks the credibility of defendant and specifically the self-defense argument. However, the evidence presented at trial also tended to attack the credibility of defendant's assertion that he shot Galloway in self-defense. Because the defense raised self-defense, the State rebutted that argument by contending that defendant was the aggressor. The testimony tended to show, for example, that defendant armed himself with a firearm and sought out Galloway.
    Further, we note that although a prosecutor should not call a particular witness a liar, it is not improper for her to argue to the jury that it should not believe the witness. See State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967). In the present case we conclude that the comments at issue served to support the reasonable inference that defendant's self-defense argument was not credible. Accordingly, this assignment of error is overruled.
    Defendant also assigns error to the trial court's failure to intervene during the following statement made later in the State's closing argument:        I want to point out to you, when you take a convicted felon and combine it with a deadly weapon this is what you get. That's the reason felons are prohibited from having guns, especially violent felons, because they will go arm themselves and they will hunt young men down and they will kill them in the street like rabid dog[s] and that's not right.

Defendant asserts that this argument is grossly improper and a misstatement of law.
    In State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), the defendant raised similar arguments on appeal. In that case, the prosecutor argued to the jury that the defendant “stalked innocent, some of them children” and referred to the defendant as “the prince of darkness” and “the King of Cobra.” State v. Grooms, 353 N.C. 50, 81-83, 540 S.E.2d 713, 732-34 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). Our Supreme Court held that the trial court did not err by not intervening, reasoning that the comments were based on competent evidence presented during the trial. Id.
    In the present case, one of the charges at issue was possession of a firearm by a felon. Thus, evidence presented at trial related to defendant's status as a convicted felon. Other evidence tended to show that defendant had gone looking for Galloway, stopped to arm himself, and shot an unarmed person. Therefore, although of questionable relevancy, this portion of the argument was sufficiently based on evidence presented at trial to withstand defendant's present assignment of error.
    Because we conclude that the State's closing argument was not so prejudicial and grossly improper as to require action by the trial court ex mero motu, we overrule these assignments of error.This decision, however, should not serve to encourage future arguments that further “push the envelope” of acceptability. We remind both counsel and trial judges that the wide latitude given to counsel “has its limits” and, “it is incumbent on the trial court to monitor vigilantly the course of such arguments, to intervene as warranted, to entertain objections, and to impose any remedies pertaining to those objections.” State v. Jones, 355 N.C. 117, 129, 558 S.E.2d 97, 105 (2002).
    Defendant next contends that the trial court erred by failing to grant defendant's motions to dismiss at the close of the State's evidence and at the close of all the evidence. Specifically, defendant argues that the State did not present sufficient evidence that defendant did not act in self-defense. In order to survive a motion to dismiss, the State must present substantial evidence of each essential element of the offense charged. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. All evidence must be considered in the light most favorable to the State, and “the state is entitled to every reasonable inference therefrom.” Id.
    Second degree murder is the unlawful killing of another human being with malice but without premeditation and deliberation. State v. Brown, 300 N.C. 731, 735, 268 S.E.2d 201, 204 (1980). “The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.” State v. Judge, 308 N.C. 658, 661, 303 S.E.2d 817, 820 (1983). At trial,the State's evidence tended to show that defendant deliberately sought out Galloway and intentionally fired a gun at him, leaving him dead. The State also presented evidence indicating that Galloway was unarmed at the time of the shooting. Thus, the State presented substantial evidence that defendant did not act in self- defense. Accordingly, the trial court did not err in denying defendant's motions to dismiss.
    Defendant's final argument asserts that the trial court erred in defining the term “aggressor” in response to a jury inquiry. The transcript, however, contains no record of a timely objection to this instruction. Thus, this alleged error was not preserved for our review. N.C. R. App. P. 10(b)(2). Nor did defendant “specifically and distinctly” contend that this instruction constituted plain error. State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). Accordingly, defendant waived his right to appellate review of this issue. Id. This assignment of error fails.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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