An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-960

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

STATE OF NORTH CAROLINA

v .                         Johnston County
                            No. 02 CRS 52867
TARVARIS NOVACK MICKENS

    Appeal by defendant from judgment entered 19 December 2003 by Judge William C. Gore, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 10 March 2005.

     Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell, for the State.

    Hardison & Leone, L.L.P., by Richard B. Glazier, for defendant-appellant.

    CALABRIA, Judge.

    Tarvaris Novack Mickens (“defendant”) appeals from a judgment sentencing him to life imprisonment without parole in the North Carolina Department of Correction after a jury found him guilty of first-degree murder. We find no error.
    The State presented evidence at trial that, in the early morning hours of 22 March 2002, Cindy Lemons (the “victim”) was found dead near her residence with a blunt force injury to her head and three gunshot wounds, two of which were to her head and one of which was to her chest. Defendant and the victim were previously involved in a six-year relationship and had three children together. While defendant and the victim subsequently remained intimate, problems developed between them, and the victimunsuccessfully attempted to procure a restraining order against defendant.
    On the evening of 21 March 2002, Brandon Dockery (“Dockery”), with whom the victim was romantically involved, visited the victim. Dockery and the victim were outside her residence when the victim saw defendant approaching in a car. Defendant jumped out of the car with a flashlight in one hand and a gun in the other and started chasing Dockery, who fled to his parent's residence in the same area. Defendant returned to the victim and attempted to force her towards his car. The victim tried to break away from defendant and move towards her house. Both the victim and defendant spoke in raised voices as the victim “yelled for help” and defendant told her to “shut up.” While this was occurring the victim's cousin, Gloria Smith (“Smith”), called 911. Smith lived on the opposite side of the street and had come outside at the time of the altercation because her dog was barking. Although both she and Dockery observed the altercation and heard gunfire, neither actually observed defendant shoot the victim. Defendant then left the scene and called Glenn Murray (“Murray”), a person with whom the victim was previously involved romantically. After identifying himself, defendant told Murray, “I just killed your girl. If I were you, I'd be careful getting in my car in the morning. I'm going to kill all you white folks that were involved.” The victim died before emergency personnel and law enforcement arrived.
    Defendant testified on his own behalf and indicated he came over only after the victim called and invited him. Defendantargued with the victim and Dockery when he arrived and saw them kissing but claimed he only retrieved his gun because Dockery and the victim advanced on him, yelling, and he “thought they were going to jump on [him].” Defendant denied chasing Dockery, who ran upon seeing defendant's gun, and also denied struggling with the victim in an attempt to force her to his car. Defendant admitted shooting the victim but explained that the first shot was an accident resulting from a struggle over the gun initiated by the victim. Defendant had no explanation for the subsequent two shots fired and testified he had no intention of killing the victim when he went to her residence. Defendant admitted he called Murray after the shooting to “inform [him] that [the victim] had been killed [and] that [Murray] just better be careful.”
    Defendant was arrested and charged with the first-degree murder of the victim. At trial, numerous witnesses testified, over defendant's objections, to statements made by the victim concerning defendant as indicative of the victim's state of mind. In closing, the State argued that defendant's story materially differed from other accountings previously given. The jury returned a verdict of guilty of first-degree murder. The trial court entered judgment and sentenced defendant to life imprisonment without parole. Defendant appeals, asserting the trial court erred by (I) allowing improper hearsay evidence and (II) permitting improper closing arguments by the State.
I. Hearsay    Prior to trial, the State gave written notice of its intent to offer out-of-court statements made by the victim to Wendy Madison (“Madison”), Smith, Dockery, and Murray. At trial, defendant objected to the use of this evidence on hearsay grounds, and the trial court deferred ruling until it was presented in the context of trial. Thereafter, during the testimony of all four witnesses, defendant duly objected on hearsay grounds, and the trial court permitted each witness to testify. On appeal, defendant argues “the statements attributed to [the victim], with some exception, were not expressions of fear, but were in fact 'mere statements of fact[.]'” Defendant's brief does not set forth which of the statements within the cited portions of the transcript he contends were mere statements of fact and which of the statements he concedes were expressions of fear. Defendant merely asserts that “nearly every statement” made by the four witnesses was inappropriate. We remind counsel of the necessity of identifying the specific portions of testimony challenged on appeal and admonish counsel that an invitation to this Court to peruse cited testimony in an attempt to justify each statement is not an adequate substitute for proper appellate argument.
    Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). While hearsay is generally inadmissible, see N.C. Gen. Stat. § 8C-1, Rule 802 (2003), one of the exceptions to the hearsay rule is “[a] statement of the declarant's then existingstate of mind, emotion, sensation, or physical condition . . . .” N.C. Gen. Stat. § 8C-1, Rule 803(3) (2003). “Where a state of mind, such as fear or alienation, is declared, the courts have consistently admitted statements made by the victim, usually reasoning that such a state of mind shows the relationship between the victim and the accused and is therefore relevant to the accused's possible motive.” 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 217 (5th ed. 1998). Recently, our Supreme Court noted that, while “[s]tatements that merely recount a factual event are not admissible under Rule 803(3) . . . , where such statements serve . . . to demonstrate the basis for the [victim's] emotions, the statements will be admitted under Rule 803(3).” State v. Smith, 357 N.C. 604, 609, 588 S.E.2d 453, 457 (2003), cert. denied, ___ U.S. ___, 159 L. Ed. 2d 819 (2004) (citation and internal quotation marks omitted).
A. State of Mind Exception
    Defendant cites five pages of Smith's in-court testimony. In pertinent part, Smith testified before the jury and in voir dire that the victim exhibited signs of being scared during one of their conversations approximately one month before her death. Smith stated the victim said, inter alia, (1) “she [the victim] was afraid that [defendant] might hurt her[;]” (2) “she [the victim] feared for her life[;]” and (3) “she [the victim] was scared that he was going to try to hurt her.”
    Defendant cites four pages of testimony by Madison, a co- worker and close friend of the victim, who testified she spokewith the victim prior to her going home the night she was killed. In that conversation, Madison testified that “she [the victim] was scared [defendant] had followed her there because they had been having some problems.” In a separate conversation with Madison occurring within two months of her death, the victim stated that (1) “[defendant] threatened her and she was getting really scared[;]” (2) “she was afraid and . . . really wanted to work things out, but she didn't see that [she and defendant] could because he'd been acting differently, and she was just basically scared[;]” and (3) “[defendant] threatened to kill her” on one occasion.
    Defendant cites nine pages of testimony by Dockery. Dockery testified that the victim told him approximately a month before her death that defendant beat and threatened her and she was “getting tired of it.”
    Defendant cites seventeen pages of testimony by Murray. Murray testified concerning conversations between the victim and himself, including a conversation he had with the victim approximately a week before her death. Murray variously described the victim's demeanor during these conversations as concerned, troubled, worried, desperate, and scared. The victim exhibited these feelings, in part, as a result of and when describing (1) repeated beatings and threats by defendant, including one incident when defendant used a gun to force the victim to drive to and show him where Murray lived; (2) her attempt to get a restraining order against defendant failed; and (3) her refusal to come to Murray'shouse because of her fear of defendant and, on one occasion, because defendant had beaten and disfigured her face.
    Each of the victim's statements either reflect the victim's then-existing state of mind and fear of or exasperation with defendant, demonstrate the basis for the victim's emotions (as permitted under Smith, supra), or illuminate the relationship between the victim and defendant. Accordingly, the trial court properly admitted such statements under Rule 803(3). Accord State v. Jolly, 332 N.C. 351, 362, 420 S.E.2d 661, 668-69 (1992); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74-75 (1990); State v. Faucette, 326 N.C. 676, 682-83, 392 S.E.2d 71, 74-75 (1990).
B. Defendant's Testimony
    Defendant asserts the trial court erred in allowing Madison to testify the victim told her she and defendant “had been having some problems [and] she wished that they could work things out.” Defendant also asserts the trial court erred in allowing Murray to testify as to the victim's statements about her failed attempt to obtain a restraining order and an instance when she had refused to come to Murray's house because defendant had beaten and disfigured her face. However, defendant's subsequent testimony independently informed the jury that his relationship with the victim was troubled, that they were having problems, that the victim had attempted but failed to obtain a restraining order against him, and that he had previously disfigured her face during a physical altercation. Since defendant testified to these facts, he waivedany objections to this testimony. State v. Reed, 153 N.C. App. 462, 466, 570 S.E.2d 116, 119 (2002).
C. Prejudicial Error
    Finally, defendant asserts the trial court erred in allowing Dockery to testify that the victim warned him to “watch [his] back because [defendant] ha[d] been talking a little crazy.” Assuming, arguendo, that this statement was erroneously admitted and that this error transgressed upon defendant's rights under the Confrontation Clause of the Constitution of the United States, in light of the eye-witness testimony of the events that occurred that night and defendant's own admissions, we conclude that such error would be harmless beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2003).
II. Closing Argument
    By his second assignment of error, defendant asserts the trial court erred in allowing the State, over objection, to characterize defendant's in-court testimony as a story defendant had told no one except Dr. Hilkey, who psychologically evaluated defendant, and in allowing the State to argue defendant could be sentenced to less than eight years in prison for second-degree murder.
    With respect to defendant's first argument, defendant, citing Doyle v. Ohio, 426 U.S. 610, 611, 49 L. Ed. 2d 91, 94 (1976), contends that the State's characterization was an improper comment on defendant's right to invoke silence at the time of his arrest or thereafter. During closing arguments, the State argued as follows:
        [THE STATE]: And what's the defendant done this week? He's come in here, he's told youthis story, this new story that no one's ever heard _
        [DEFENSE COUNSEL]: Objection.
        [THE COURT]: Overrule.
        [THE STATE]: _ . . . He thinks that maybe if he comes in here and he tells you this new story that, again, he never said to anyone except Dr. Hilkey _
        [DEFENSE COUNSEL]: Objection.
        [THE COURT]: Overrule.

The State went on to contrast defendant's in-court testimony with previous actions and comments by defendant. For example, the State pointed out that, after the shooting, defendant called and informed Murray he had just killed Cindy and then threatened him. The State additionally contrasted defendant's in-court version of the events (that he felt threatened and that the gun went off because of the struggle) with his admission to his aunt (that he did not know why he shot the victim when she asked his motivation). The State's arguments did not implicate defendant's right to remain silent but, rather, discredited defendant's in-court testimony by contrasting it with other statements he previously recounted. Defendant's argument is, accordingly, rejected.
    Defendant also challenges the State's closing argument that defendant could receive a sentence of less than eight years in prison for second-degree murder. Under N.C. Gen. Stat. § 7A-97 (2003), counsel has the right “to inform the jury of the punishment prescribed for the offense for which defendant is being tried.” State v. Walters, 294 N.C. 311, 313, 240 S.E.2d 628, 630 (1978). However, counsel is not entitled to attack the propriety of the punishment. Id. In the instant case, the State informed the jury of a minimum sentence defendant could face were he convicted ofsecond-degree murder. The trial court, immediately following the prosecutor's closing statement, instructed the jury that (1) defendant could receive a minimum sentence of thirty-two years and eight months if convicted of second-degree murder and (2) the jury should not be concerned about the sentence that would be imposed. Our review of the arguments and instructions to the jury during trial reveal defendant received a fair trial free of reversible error. This assignment of error is overruled.
    No error.
    Judge TIMMONS-GOODSON concurs.
    Judge GEER concurs with a separate opinion.
    Report per Rule 30(e).

NO. COA04-960

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

STATE OF NORTH CAROLINA

v .                         Johnston County
                            No. 02 CRS 52867
TARVARIS NOVACK MICKENS,
        Defendant.

    GEER, Judge, concurring.

    I write separately to emphasize the inappropriateness of the prosecutor's argument regarding the possible sentence for second degree murder. While I agree that this error was harmless in light of the trial court's subsequent instruction to the jury and the evidence offered at trial, I believe that the prosecutor's statements in closing are precisely the type of argument that our Supreme Court has held to be improper.
    Specifically, the State argued: "[Counsel for defendant] also told you that he felt like, based upon what you have heard, he's asking you to find the defendant guilty of second-degree murder. Do you know that a defendant in North Carolina can be sentenced for less than eight years in prison for a conviction of second-degree murder?" The probable inference that a jury would draw from this assertion is that it should not convict defendant of second degree murder because of the brevity of the sentence.
    In State v. Rhodes, 275 N.C. 584, 591, 169 S.E.2d 846, 851 (1969), our Supreme Court observed that "[j]urors, as every trial judge knows, are always interested in the consequences of theirverdict. As laymen, it is hard for them to understand that they have nothing to do with punishment." The Court then flatly held: "The amount of punishment which a verdict of guilty will empower the judge to impose is totally irrelevant to the issue of a defendant's guilt. It is, therefore, no concern of the jurors." Id. at 588, 169 S.E.2d at 848.
    Consistent with this principle, while counsel may, pursuant to N.C. Gen. Stat. § 7A-97 (2003), "read[] the punishment provisions of the statute to the jury," counsel may not "'argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely.'" State v. Walters, 294 N.C. 311, 313-14, 240 S.E.2d 628, 630 (1978) (quoting State v. Britt, 285 N.C. 256, 273, 204 S.E.2d 817, 829 (1974)). Phrased differently, N.C. Gen. Stat. § 7A-97 "does not mean that a defendant should be permitted to argue that because of the severity of the statutory punishment the jury ought to acquit; to question the wisdom or appropriateness of the punishment; or to state the punishment provisions incorrectly." State v. McMorris, 290 N.C. 286, 288, 225 S.E.2d 553, 555 (1976). More generally, as the Court explained in State v. Wilson, 293 N.C. 47, 57, 235 S.E.2d 219, 225 (1977), counsel may not ask "the jury to consider the punishment as part of its substantive deliberations . . . ."
    These principles apply equally to the State. A prosecutor may not ask the jury to consider the sentence to be imposed in thecourse of its deliberations. Thus, the prosecutor may not urge a jury to convict on a greater offense rather than a lesser offense because the sentence for the lesser offense is too lenient. Such an argument is merely the inverse of the argument that our Supreme Court has consistently held to be improper when made by defense counsel and is itself inappropriate.
    Here, the prosecutor argued that the jury should not consider second degree murder as a verdict because defendant might receive only an eight-year sentence. Since this argument was not made in direct response to any contention by defendant, I can conceive of no basis upon which this argument could be justified.
    Nevertheless, the trial court, although it first overruled defense counsel's objection, later specially instructed the jury on this issue:
        Now, ladies and gentlemen, before I begin my formal instructions to you, let me say to you that the prosecutor has mentioned to you in her closing statement that a person convicted of second-degree murder could be sentenced to as little as eight years in prison. I should also tell you a couple of things: First of all, it is also possible that a person convicted of second-degree murder could receive a minimum since [sic] of as much as 32 years and 8 months. The sentence, of course, would depend on many factors concerning the individual defendant and the facts of the individual case.

            I want to further tell you, and I will mention this again, that it is _ the sentence is not something that you should be concerned with. If the defendant should be guilty of some offense, the Court will determine the appropriate sentence. That will not be a concern for the jury. Your only duty is to render a verdict as to the guilt or innocenceof the defendant, and sentencing should not be something that you're concerned about.

I am not confident that this instruction fully cured the problem caused by the prosecutor's argument since a jury could interpret the judge's remarks as meaning that the maximum sentence for second degree murder would be only 32 years. Nevertheless, given both the evidence presented at trial and this curative instruction, I do not think that defendant has established a reasonable possibility that the jury would have reached a different result in the absence of the prosecutor's argument.

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