An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1052

NORTH CAROLINA COURT OF APPEALS

Filed: 02 August 2005

STATE OF NORTH CAROLINA

v .                         Cabarrus County
                            No. 96 CRS 1923
LATON SHARMALE CUNNINGHAM

    Appeal by defendant from judgment entered 11 June 2003 by Judge Clarence E. Horton, Jr. in Cabarrus County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defenders Daniel R. Pollitt and Kelly D. Miller, for defendant-appellant.

    STEELMAN, Judge.

    The State's evidence tended to show that in January 1996 defendant and four others went to the home of Loudeal Isom and her sister, Sherry Atwell, to break into a safe which contained $4,500.00 and some jewelry. Defendant was carrying a shotgun and when Isom surprised the men, defendant shot and killed her. A more detailed discussion of the facts of the case can be found in this Court's earlier opinion, State v. Cunningham, 140 N.C. App. 315, 536 S.E.2d 341 (2000), review dismissed, 353 N.C. 385, 547 S.E.2d 24 (2001).
    Defendant was tried in 1997 for first-degree murder of Isom, first-degree burglary, and attempted armed robbery with a dangerousweapon. The State submitted two theories of first-degree murder to the jury: (1) premeditation and deliberation and (2) felony murder, with burglary as the underlying felony. The State did not use the attempted robbery charge as a basis for the theory of felony murder. On 3 April 1997, the jury found defendant guilty of first-degree murder under the felony murder rule, not guilty of first-degree murder based upon premeditation and deliberation, guilty of first-degree burglary, and guilty of attempted robbery with a dangerous weapon. The trial court arrested judgment on the burglary charge and sentenced defendant to life imprisonment plus a term of 77 to 102 months, to be served consecutively. Defendant appealed all three convictions. Upon review of the case, this Court upheld defendant's conviction of attempted armed robbery with a dangerous weapon, but vacated his conviction of first-degree burglary. Id. at 326, 536 S.E.2d 349. As a result, we granted defendant a new trial on the offense of felony murder, but this Court limited the State to the use of felonious breaking or entering as the basis of felony murder upon retrial. Id. This Court further held that for breaking or entering to constitute the basis of a felony murder conviction, it must be committed or attempted with the use of a deadly weapon as required by N.C. Gen. Stat. § 14-17. Id. at 325, 536 S.E.2d at 348.
    In June 2003, defendant was retried for the crime of first- degree murder under the theory of felony murder with felonious breaking or entering committed with a deadly weapon constituting the basis for felony murder. On 11 June 2003, the jury founddefendant guilty of first-degree murder. The trial court sentenced defendant to life imprisonment without parole. Defendant appeals.
    In defendant's first argument he contends the murder indictment was insufficient to comply with N.C. Gen. Stat. § 15-144 because it failed to allege the crime was committed with “malice aforethought” and therefore, the trial court lacked jurisdiction to convict defendant.
    Defendant was tried for first-degree murder based on a short-form murder indictment. “The purpose of an indictment is to inform the defendant of the charge against him with sufficient certainty to enable him to prepare a defense.” State v. Bullock, 154 N.C. App. 234, 244, 574 S.E.2d 17, 23 (2002), cert. denied, 540 U.S. 928, 157 L. Ed. 2d 231 (2003). To be sufficient, an indictment must allege the essential elements of the crime charged. Id. However, when an indictment fails to allege the essential elements of the crime charged the trial court is without jurisdiction over the matter and the reviewing court must arrest judgment. Id. It is well-established law in North Carolina that a short-form indictment need not allege the murder was committed with premeditation and deliberation or allege felony murder in order to satisfy the requirements of N.C. Gen. Stat. § 15-144. State v. Avery, 315 N.C. 1, 14, 337 S.E.2d 786, 793 (1985). Rather, N.C. Gen. Stat. § 15-144 provides that “[i]n indictments for murder and manslaughter, it is not necessary to allege matter not required to be proved on the trial[.]” “Malice is not an element of felony murder.” State v. Golden, 143 N.C. App. 426,434, 546 S.E.2d 163, 169 (2001). Therefore, the element of malice need not be alleged in an indictment where the defendant is being tried only under the theory of felony murder, as is the case here.
    Furthermore, our Supreme Court has previously addressed this issue in State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974). In Moore, the Court analyzed the indictment in State v. Davis, 253 N.C. 86, 116 S.E.2d 819 (1961), which alleged the defendant committed the murder in the perpetration of a rape, but did not allege the murder was committed with malice. Moore, 284 N.C. at 495, 202 S.E.2d at 175. In considering the court's ruling in Davis, the Supreme Court stated:
        This Court could have said [in Davis], but did not say, the indictment failing to charge malice, required the State to make out its case of murder in the first degree upon a showing the killing was done in the perpetration or attempt to perpetrate the crime of rape. The indictment, omitting malice, was insufficient to elevate the killing above the crime of manslaughter, except for the “felony murder” rule which Judge Campbell submitted to the jury.
Id. (emphasis added). Thus, even though the indictment failed to allege the crime was committed with malice, it was still sufficient to charge the defendant with felony murder. Id. at 495-96, 202 S.E.2d at 175-76.
    In support of his argument, defendant relies heavily on State v. Bullock, 154 N.C. App. 234, 244-45, 574 S.E.2d 17, 24 (2002), which held the underlying indictment for attempted first-degree murder was insufficient to vest the trial court with jurisdiction as it omitted the phrase “malice aforethought.” The instant caseis distinguishable from the holding in Bullock where the defendant was indicted for attempted first-degree murder, which is a specific intent offense and requires that the defendant attempt to kill the victim with malice. See State v. Tew, 149 N.C. App. 456, 461, 561 S.E.2d 327, 332 (2002) (holding malice is an element of attempted first-degree murder). Since malice is an essential element of attempted first-degree murder, it must be pled in the indictment. In contrast, defendant in this case was convicted of first-degree murder on the theory of felony murder, for which there is no requirement that the defendant kill the victim with malice.
    The indictment contains every averment necessary to be made under N.C. Gen. Stat. § 15-144 and contains the necessary language to place defendant on notice of the crime for which he is charged, as well as the theory on which the State will proceed at trial. “If the defendant desired more definite information he had the right to request a bill of particulars, in the absence of which he has no cause to complain.” State v. Mays, 225 N.C. 486, 489, 35 S.E.2d 494, 496 (1945). As such, the indictment in question complies with the short-form indictment authorized by N.C. Gen. Stat. § 15-144 in all essential aspects and is sufficient to charge defendant with first-degree murder without specifically alleging malice. This argument is without merit.
    In his second argument defendant contends his first-degree murder conviction must be vacated and he be discharged because the retrial and entry of judgment violated the state and federal constitutional prohibition against double jeopardy.    Once a panel of this Court rules on a question in a given case, that decision becomes the law of the case and governs the issue not only on remand at trial, but subsequent appellate panels which may thereafter consider the case. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983). Since the power of one panel of this Court is “equal to and coordinate with that of another, a succeeding panel of [this] court has no power to review the decision of another panel on the same question in the same case.” Id. at 567, 299 S.E.2d at 631-32.
    In the first appeal of this case, a panel of this Court held:
        As to the offense of felony murder, we grant defendant a new trial, but limit the State solely to the use of felonious breaking or entering as the predicate felony for that offense. Although, as pointed out earlier, we could also remand for entry of judgment as to felonious breaking or entering, we expressly decline to do so here so that the State will not be barred by Double Jeopardy principles from employing that theory on re-trial.

Cunningham, 140 N.C. App. at 326, 536 S.E.2d at 349 (emphasis added). Based on the “law of the case” principle, we are bound by the previous panel's ruling on this issue. Accordingly, this issue is not properly before this panel of our Court and we will not address it. Accord State v. Boyd, 148 N.C. App. 304, 308, 559 S.E.2d 1, 3 (2002).
    In his third argument defendant contends he is entitled to a new trial because the prosecutor made several improper statements during his closing arguments. We disagree.
    First, defendant contends that the prosecutor improperly misrepresented the evidence to the jury during closing arguments. Where a defendant fails to object at trial to a prosecutor's closing argument, but challenges the argument on appeal, as defendant does here, our standard of review is limited to “'whether the argument was so grossly improper as to warrant the trial court's intervention ex mero motu.'” State v. Nicholson, 355 N.C. 1, 41, 558 S.E.2d 109, 137 (2002) (citations omitted). When applying this standard “only 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.” Id. (citations and internal quotation marks omitted). As a result, the defendant bears the burden of demonstrating that the prosecutor's comments “so infected the trial with unfairness that they rendered the conviction fundamentally unfair.” Id.
    Defendant contends the prosecutor misrepresented the evidence to the jury when she stated that the evidence showed: (1) defendant said he saw the victim run into the bathroom; (2) defendant jerked the bathroom door open; (3) the victim put her hands in the air surrendering; (4) defendant stood in the bathroom doorway and fired; and (5) defendant continued to look for the safe after the shooting.
    Counsel is allowed to argue all of the evidence, as well as all the reasonable inferences that may be drawn therefrom. State v. Thomas, 350 N.C. 315, 361, 514 S.E.2d 486, 514 (1999); N.C. Gen. Stat. § 15A-1230(a) (2004). Prosecutors are given wide latitude inthe scope of their closing arguments to the jury. State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911 (1987).
    The prosecutor's arguments were based on the reasonable inferences that could be drawn from the evidence presented at trial. When the prosecutor made this argument to the jury she expressly informed them of the evidence she was relying on to support her statements, i.e., the positioning of the body and the point of entry of the bullet. The investigating officers testified they found the victim with half of her body in the bathroom, that she fell face forward after being shot, and there were no bullet holes in the door. The victim's daughter testified she heard the bathroom door close and “figured that [her] mother ran into the bathroom.” She then heard someone say “Where's the safe? Open the door[,]” to which she heard her mother respond “No,” followed by a gun going off. From this evidence, the prosecutor could reasonably infer the victim ran into the bathroom, defendant jerked open the door, and then fired. Further, the evidence concerning the gunshot wound supported the prosecutor's argument that the victim had her hand raised in the air in a position of surrender. The medical examiner described the exit wound in the victim's left armpit area, noting the lack of other damage to the arm, and concluding her left arm would not have been at her side when she was shot, but rather could have “possibly [been] up in the air.” There was also considerable evidence presented at trial concerning the crime scene, the location of blood, the damage to the victim's body, and the clothing she was wearing when she was shot, which supported theprosecutor's arguments to the jury. Further, the prosecutor never stated defendant by himself kept searching for the safe after shooting the victim. She argued to the jury that “they” still kept looking for the safe, meaning defendant's accomplices continued looking. Her statement was supported by defendant's own confession. Thus, the prosecutor's argument was based on the evidence presented at trial, as well as the reasonable inferences drawn therefrom, and was not grossly improper.
    Defendant also contends the prosecutor improperly argued to the jury during her closing argument concerning the impact of the victim's death on her family and the trial court erred in failing to intervene ex mero motu.
    As we stated above, the prosecutor is allowed wide latitude in making closing arguments to the jury. Zuniga, 320 N.C. at 253, 357 S.E.2d at 911. However, “'the jury's decision must be based solely on the evidence presented at trial and the law with respect thereto, and not upon the jury's perceived accountability to the witnesses, to the victim, to the community, or to society in general.'” State v. Alford, 339 N.C. 562, 572, 453 S.E.2d 512, 517 (1995) (citations omitted). During the guilt-innocence phase of a trial, the jury's focus must be on whether the defendant is guilty or innocent of the crime charged. Id. Thus, arguments which place undue emphasis on such factors as sympathy or pity for the victim or their family are improper. Id. However, such comments must not be viewed in isolation, but in the context of the prosecutor's entire closing argument. Id. The defendant bears theburden of showing he was prejudiced as a result of the arguments since improper jury arguments alone do not require reversal. Id. at 573, 453 S.E.2d at 517.
    During the prosecutor's closing remarks she commented to the jury concerning the loss suffered by the victim's children and grandchildren, as well as the things the victim would never be able to do, like see her grandchildren get married or go to college. The prosecutor also asked the jury to speak for the victim and find defendant guilty of murder. While these remarks lean towards the admonitions mentioned above, we cannot say the trial court erred in failing to recognize and correct “'ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.'” State v. Brown, 320 N.C. 179, 196, 358 S.E.2d 1, 13 (1987)(holding prosecutor's argument to the jury during guilt phase that the victim's family only had them to turn to for justice was not so improper as to require intervention ex mero motu) (citations omitted). See also Alford, 339 N.C. at 571-73, 453 S.E.2d at 517 (holding same). Furthermore, when read in context, the prosecutor was not attempting to make sympathy for the victim or her family the focus of the jury's deliberation. Finally, there was sufficient evidence in the record to support a conviction for felony murder, notwithstanding these remarks. Consequently, we find defendant has failed to meet his burden of showing he was prejudiced as a result of the prosecutor's remarks. This argument is without merit.    In defendant's final argument he contends the State's presentation of evidence and argument that the shooting was not an accident was inadmissible and improper. We disagree.
    Defendant failed to object at trial to the admission of testimony that the shooting was not an accident, therefore we must review this assignment of error applying plain error analysis. State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135, cert. denied, ___ U.S. ___, 160 L. Ed. 2d 500 (2004). Defendant bears the burden of convincing the appellate court that absent the error, the jury probably would have reached a different verdict. Id. “Evidence that has no logical tendency to prove a fact in issue is inadmissible.” State v. Watkins, 77 N.C. App. 325, 328, 335 S.E.2d 232, 235 (1985). However, the admission of such evidence does not constitute reversible error “unless it misleads the jury or prejudices the opponent.” Id. Evidence concerning whether the shooting was accidental or intentional was irrelevant at retrial since defendant was only being retried on the theory of felony murder. See Cunningham, 140 N.C. App. at 326, 536 S.E.2d at 349. After careful review, we believe the evidence was sufficient to sustain defendant's conviction for felony murder regardless of the admission of the evidence that he shot the victim intentionally. We are not convinced that the jury would have returned a different verdict had the complained of testimony been excluded. This argument is without merit.
    Defendant also contends the prosecutor's statements during closing arguments that the shooting was not accidental was improperand the trial court erred by failing to intervene ex mero moto. As we stated above, where a defendant fails to object at trial to a prosecutor's closing argument, but challenges the argument on appeal, as defendant does here, our standard of review is limited to “whether the argument was so grossly improper as to warrant the trial court's intervention ex mero motu.” Nicholson, 355 N.C. at 41, 558 S.E.2d at 137. The defendant bears the burden of showing that the prosecutor's comments “so infected the trial with unfairness that they rendered the conviction fundamentally unfair.” Id. (citations and internally quotation marks omitted).
As we stated above, we believe there was sufficient evidence to sustain defendant's conviction for felony murder regardless of the prosecutor's arguments to the jury that defendant shot the victim intentionally. Consequently, defendant has failed to meet his burden of establishing the comments made infected the trial with unfairness, rendering the conviction fundamentally unfair. This argument is without merit.
    NO ERROR.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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