An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-770


Filed: 7 June 2005


    v .                     Guilford County
                            No. 02 CRS 101635

    Appeal by defendant from a judgment entered 9 January 2004 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 3 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    BRYANT, Judge.

    Robert Henry Moorefield, III (defendant) appeals from a judgment entered consistent with a guilty verdict of voluntary manslaughter on 9 January 2004 . Defendant was sentenced within the presumptive range at a Prior Record Level II to a minimum term of 77 months and a maximum of 102 months for voluntary manslaughter.
    The State's evidence tended to show that on 26 October 2002, Trampas Owens (victim) was killed from a single gunshot wound to his chest. The victim was six feet four inches tall and weighed three hundred and fifty pounds. Defendant is five feet seveninches tall and weighed one hundred and sixty-five pounds. At the time of the shooting, Amy Owens (the victim's wife) and defendant were having an affair.
    On 26 October 2002, the victim, his wife, his daughter and three of her friends were at the Owens' Thomasville home. Ron Capadonna (Capadonna), the victim's friend, was also there. That evening, the victim's wife, his daughter and her friends left the Owens' home and told the victim they were going to the store ; however, they actually went to defendant's house. Suspecting his wife had gone to defendant's house, the v ictim had Capadonna drive him there.
    When they arrived, they observed Amy's car parked outside and the main door of defendant's house was open. The victim entered and asked defendant: “Where's your little gun now?” Defendant went to his bedroom to retrieve his gun and returned to the living room where the victim stood. After observing the defendant with the gun, the daughter and her friends ran out the door.
    No one, including defendant , testified to having seen the victim with a weapon. As the victim stood in the front doorway, defendant pointed the gun at him, and asked him to leave. Defendant testified that: “He didn't act like he wanted to leave, so I pointed it at him,” and that the victim said he wasn't “scared of no d--- gun.” At that point, defendant testified, the victim“went at” him by “just leading off with his right foot.” Defendant backed up a little, bumped into the recliner, and fired his gun at the victim. After the shooting, Capadonna drove the victim to the hospital, noting he had been wounded on his right side. Defendant called 911 and gave a statement to the police.
    At trial defendant testified: “Yes, I meant to fire the gun. I thought I was fixing to be dead.” Although the victim did not touch him, defendant claimed he would have, had he taken a couple more steps. Defendant further testified he meant to shoot the victim with the first shot, but did not intend to fire the second shot.
    At defendant's home, a police officer found defendant's .40 caliber gun and two shell casings from the gun . The Medical Examiner reported a bullet from a .40 caliber gun had been removed from the victim's body.
    Defendant appeals.

    Defendant raises four issues on appeal: whether the trial court erred in (I) failing to intervene ex mero motu over statements made during the prosecutor's closing argument; (II) finding the defendant's Prior Record Level at Level II; (III) refusing to submit the charge of involuntary manslaughter to the jury; and, whether (IV) defendant was subjected to ineffectiveassistance of counsel. We note because defendant failed to argue his assignments of error 2, 6, and 7, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
    Defendant first argues the trial court erred in failing to intervene ex mero motu when the prosecution referred to defendant as a “gun nut” during closing arguments.
    Because defendant did not object to the prosecution's statements at trial, he has failed to properly preserve this argument for appellate review. N.C. R. App. P. 10 (b)(1). Our Supreme Court has held that review of such unpreserved questions or issues for plain error is limited to those issues involving “either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (citations omitted). “When a defendant fails to object to an allegedly improper closing argument, the 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. Roseboro, 351 N.C. 536, 546, 528 S.E.2d 1, 8 (2000).
    Defendant failed to object to these statements during the closing arguments, therefore he must demonstrate the prosecutor's closing argument amounted to “gross impropriety.” State v.Walters, 357 N.C. 68, 102, 588 S.E.2d 344, 364 (2003). 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 [ex mero motu.]” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). “Control of the arguments of counsel rests in the discretion of the trial court.” State v. McCollum, 157 N.C. App. 408, 416, 579 S.E.2d 467, 472 (2003), aff'd, 358 N.C. 132, 591 S.E.2d 519 (2004) . This Court “ordinarily will not review the exercise of the trial judge's discretion in this regard unless the impropriety of counsel's remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.” State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979) (citing State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976)).
    After defendant testified he was a member of the National Rifle Association and that he owned and kept several guns at his home, the prosecution stated in closing arguments:
        What this case is all about is this, and I contend to you this is what the evidence shows. This defendant is a gun nut. He is a gun nut who is having an affair with somebody else's wife. . . . Then October 27th rolls around. All theparties get together for the first time. Trampas Owens is there, the defendant is there and I contend to you that, being a gun nut Robert Moorefield knows about gun laws. He knows about the law of self-defense of habitation and different things. He is a member of the NRA, he gets publications, he gets gun catalogs. And being a gun nut, he knows what his rights are, he thinks, and seizes the opportunity then to shoot Trampas Owens, claims self-defense, and get the man out of the way that is completely standing between him and Amy Owens. . . .

(Emphasis added). Defendant failed to object to any statements made by the State during closing arguments, and now assigns error to the State's reference to defendant as a “gun nut.” During closing arguments the prosecutor argued evidence presented at trial and the inferences arising from the evidence. See State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988) (“Counsel may argue the facts in evidence and all reasonable inferences that may be drawn therefrom together with the relevant law in presenting the case.”), cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988). In the case sub judice, the evidence showed defendant had an interest in guns. Defendant testified he owned a number of guns too few to count “off hand.” The evidence also showed defendant kept guns throughout his home: in a safe beside his bed, in a case in the arm of the recliner and one clipped to his bed rail. Under the facts here, the prosecutor's statements were “not so gross or excessive to compel us to hold that the trial judge abused his discretion innot correcting them or that defendant is entitled to a new trial.” Johnson at 369, 259 S.E.2d at 761 .
    This assignment of error is overruled.
    Defendant next argues the trial court erred in finding the defendant's Prior Record Level at Level II .
    N.C.G.S. § 15A-1340.14(f) allows proof of prior convictions by stipulation, court record of prior convictions, records from the Division of Criminal Information, the Division of Motor Vehicles, or the Administrative Office of the Courts, or by “any other method found by the court to be reliable.” N.C. Gen. Stat. § 15A-1340.14(f) (2003). Defense counsel's statement “might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's work sheet.” State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 742 (2002) (when worksheet was presented to trial court, defendant failed to object to the convictions listed); State v. Johnson, 164 N.C. App. 1, 24, 595 S.E.2d 176, 189 (2004) (when defense counsel “answered in the affirmative” in response to the trial court's statement that the defendant had a prior record level the exchange was a stipulation to the prior convictions listed on the worksheet).
    In the present case, defendant's 1986 driving while impairedconviction enhanced his Prior Record Level to Level II. During the sentencing hearing, defendant argued for the finding of a number of mitigating factors:
        [Defense Counsel]: The only conviction that he has is that single DWI, and obviously that runs him up to Level II. . . .[I]f your Honor does sentence in a particular range [I] would ask that it be towards the bottom of a particular range which would be consistent with a Level I. I think that makes sense, because the only conviction he has on his record is the DWI. . . .

(Emphasis added). Also at the close of the State's case, defense counsel stated he was “aware of one conviction” on defendant's record “which is a DWI case” from 1986. These statements made by defense counsel may reasonably be construed as a stipulation by defendant that he had been convicted of the charge listed on the prior record level worksheet. Accordingly, this assignment of error is overruled.
    Defendant next appeals the issue of whether the trial court erred in refusing to submit the charge of involuntary manslaughter to the jury .
    “Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.” State v.Evans, 149 N.C. App. 767, 775, 562 S.E.2d 102, 107 (2002) (quoting State v. Wingard, 317 N.C. 590, 600, 346 S.E.2d 638, 645 (1986)) . “A killing is intentional where the defendant commits an assault against the victim which in itself amounts to a felony or is likely to cause death or serious bodily injury.” State v. Childers, 131 N.C. App. 465, 471, 508 S.E.2d 323, 328 (1998) (internal quotation marks omitted); State v. Jackson, 145 N.C. App. 86, 92, 550 S.E.2d 225, 230 (2001) ( where culpability is reduced for killing in imperfect self-defense, defendant is not entitled to acquittal and is guilty at least of voluntary manslaughter).
    Defendant argues that after firing a first shot at the victim in self-defense, he did not intentionally fire his gun the second time . The State's evidence tended to show defendant fired the gun intentionally (e.g., defendant testified: “Yes I meant to fire the gun.”). It is unclear from the evidence which shot actually killed the victim; however based on these facts, defendant's intentional acts were a proximate cause of the victim's death. Therefore, the trial court did not err in refusing to submit involuntary manslaughter instructions to the jury. See State v. Eubanks, 151 N.C. App. 499, 504, 565 S.E.2d 738, 741-42 (2002) (trial court did not err in refusing to instruct the jury on involuntary manslaughter where evidence tended to show the defendant intentionally fired the gun and told the officer he had intended toshoot the victim in the rear end and had missed). This assignment of error is overruled.
    Defendant's final issue on appeal is whether defendant was subjected to ineffective assistance of counsel , contending “the implication of defense counsel's argument was that the jury should find the defendant guilty of voluntary manslaughter.”
    To support his claim:
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). A defendant is denied effective assistance of counsel if his counsel admits his guilt to the jury without his consent. State v. Harbison, 315 N.C. 175, 177, 337 S.E.2d 504, 505 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986) . A defense counsel's closing argument that the defendant is innocent, but if found guilty it should be of a lesser crime based on the evidence, is not an admission that the defendant is necessarilyguilty. State v. Thompson, 359 N.C. 77, 117, 604 S.E.2d 850, 878 (2004) (trial court inquired of defense counsel whether 'there will be any portion of the argument which could be construed as an acknowledgment of culpability or an admission of guilt on the part of the defendant' . . . [to which] [c]ounsel responded, 'Your Honor, the way that I plan on handling that is, by acknowledging responsibility in these cases, but without specifically mentioning guilt'); State v. Gainey, 355 N.C. 73, 558 S.E.2d 463 (2002) (no ineffective assistance of counsel claim where evidence of defendant's guilt, including his confessions, is overwhelming and defense counsel's failure to object to the alleged errors at trial did not impact the trial such that a different outcome might have resulted).
    In the present case, defendant's theory in response to the charges against him was based on self-defense. Defendant's counsel informed the trial judge his client would not admit guilt during the following colloquy prior to jury selection:
        THE COURT: Okay, well, I just wanted to have a feel for the issues, if there's going to be any concession on the defendant's part, I just wanted to address that outside the presence of the jury, to the extent we get - it doesn't sound like there's an admission that he was guilty of any lesser offense. MR. SMOTHERS: No ma'am.

The defense counsel's closing argument stated that the burden ofproof is on the State to show defendant did not act in self-defense and reiterated it is the State's burden to prove defendant used excessive force. The closing argument continues:
        Voluntary manslaughter. That's what I was talking about, imperfect self-defense. If you think my client exceeded his right to defend himself by pulling out that gun and shooting Trampas Owens, you could find him guilty of voluntary manslaughter. I'm not saying that's what happened, but that's something you could find. But the State still has to prove that it was excessive force. And how do they do that? They have to go over those elements that I've talked about before. They have to reconcile the size difference, they have to reconcile the reputation of Trampas Owens for violence. They have to reconcile that my client knew that Trampas Owens might be carrying a knife. The State has to satisfy their burden beyond a reasonable doubt on all those particular elements to find Bobby Moorefield guilty of voluntary manslaughter, which leads to not guilty.

(Emphasis added). D efense counsel concluded:
        The State has not proved their case, ladies and gentlemen. I ask you to speak with one another, be candid with one another. Relate your own experiences, what makes sense to you. Use your own recollection of events. If you do that, talk with one another, vote your conscience, you will vote your duty, and your duty is to find my client not guilty. Thank you.
(Emphasis added). Defense counsel also attempted to educate the jury on self-defense and the State's burden of proof with respect to self-defense, all the while arguing his client's innocence. Defendant has failed to show his counsel prejudiced the outcome of his case. See e.g., Wiggins v. Smith, 539 U.S. 510, 534, 156 L. Ed. 2d 471, 493 (2003) (quotation omitted) (“to establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'”). This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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