STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 03 CRS 7132, 51760
NOBLE O. MILLER
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Russell J. Hollers, III, for defendant-appellant.
ELMORE, Judge.
Noble O. Miller (defendant) was charged with possession with
intent to sell and deliver cocaine. By a separate bill of
indictment, defendant was charged with attaining habitual felon
status. The State's evidence tended to show that on 18 February
2003, officers of the Winston-Salem Police Department were
conducting surveillance of the 1401 Pleasant Street residence. The
officers parked their vehicles about three houses away from the
residence. At approximately 4:00 p.m., police observed a gray
Pontiac Grand Am park in front of the residence. Defendant exited
the vehicle and entered the residence through the side door.
Defendant left the residence four minutes later and returned to hisvehicle.
Defendant drove a short distance east on Pleasant Street, made
a U-turn and headed in the direction of the surveillance vehicles.
As defendant drove passed the surveillance vehicles, defendant made
eye contact with Officer Mike Cardwell. Defendant then drove one
more block, made a U-turn and parked in front of 1401 Pleasant
Street. Defendant hurriedly entered the residence. When the
police officers approached the residence, defendant came out and
shut the door behind him.
Officer Mike Cardwell identified himself and advised defendant
that he and his fellow officers were conducting an investigation of
the location. Officer Cardwell smelled an odor of burnt marijuana
coming from defendant and asked defendant if he had been smoking
marijuana. Defendant responded that he had smoked marijuana
earlier that day. Officer Cardwell then asked defendant if his
vehicle contained marijuana. Defendant stated that there was a
“blunt” in his vehicle. Upon a search of defendant's vehicle,
Officer Cardwell found a plastic bag of marijuana and a burnt
marijuana cigarette. Officer Cardwell also found a black jacket
containing defendant's driver's license and two small plastic bags
of cocaine. The officers arrested defendant and conducted a search
of defendant's person, which yielded a total of $623.00 dollars and
a hand-held metal scale. In response to routine booking questions,
defendant indicated he was unemployed.
A jury found defendant guilty of the lesser included offense
of possession of cocaine and of attaining habitual felon status. The trial court sentenced defendant to 70 to 93 months
imprisonment. Defendant appeals.
Defendant contends the trial court erred by permitting the
State to make improper statements during closing argument.
Defendant failed to object to the closing arguments at trial,
therefore, this Court must determine if the argument was “so
grossly improper that the trial court erred in failing to intervene
ex mero motu.” State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108,
135 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003).
Under these circumstances, “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.” State v.
Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996). 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 on its own accord[.]” State v.
Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).
Defendant challenges the following excerpts of the closing
argument:
And first, we find the cocaine. And don't be
fooled because it's small. It's like nuclear
waste. It's deadly, tearing apart our
society. And even though it's small, it's
very valuable. That's why people sell it.
. . .
If this was the first time he'd ever been in
that car, if that wasn't his coat, could have
brought somebody to say, “That's not his coat,
never seen him wear it before. That's not his
car. This is the first time he's ever had the
car. He's never been in that car.”
. . .
[T]he only logical explanation for how he
obtained that money is this - - poisoning the
community. . . . There is no explanation for
that, except . . . ruining the lives of the
members of Forsyth County to fulfill his
greed.
Defendant argues that “the prosecutor argued facts outside the
record, placed incompetent and prejudicial matters before the jury,
and referred to Mr. Miller's decision not to put on any evidence.”
We disagree, and do not find these arguments “strayed far
enough from the parameters of propriety” that the trial court
abused its discretion by not intervening of its own accord. Jones,
355 N.C. at 133, 558 S.E.2d at 107. Here, the prosecutor's
comments regarding the drug trade's effect on the community and
society are logical deductions or fair inferences from the evidence
admitted at trial. See State v. Anderson, 322 N.C. 22, 37, 366
S.E.2d 459, 468 (1988)(“[c]ounsel 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). When the prosecutor's
statement about the lack of evidence is considered in its proper
context, it is apparent that the prosecutor did not comment on
defendant's failure to testify. In fact, the prosecutor himself
informed the jury that “defendant has no obligation to put on anyevidence” before making his comment. Moreover, after closing
arguments, the court instructed the jury that defendant has the
privilege not to testify. Finally, even assuming that any portion
of the challenged remarks were impermissible, we find no
probability that the outcome at trial was affected. Given the
evidence in the present case, defendant has not carried the burden
of establishing that the impropriety resulted in prejudice such
that his conviction was a denial of due process. Accordingly, the
trial court did not err in failing to intervene ex mero motu.
Defendant also contends, and the State agrees, his case should
be remanded to the trial court to correct clerical errors in his
judgment and commitment form. See State v. Jarman, 140 N.C. App.
198, 202, 535 S.E.2d 875, 878 (2000) (“a court of record has the
inherent power to make its records speak the truth and, to that
end, to amend its records to correct clerical mistakes or supply
defects or omissions therein.”). Because the record clearly
reflects these clerical errors, we agree, and remand the case to
the trial court for the following corrections to the written
judgments and commitment entered 9 March 2004: (1) the lead file
number should reflect the predicate offense file number 03 CRS
051760, instead of the habitual felon indictment number 03 CRS
007132; (2) the offense for file number 03 CRS 051760, should state
possession of cocaine and its offense class should state “I”,
instead of possession with intent to sell and deliver and class
“H”; (3) the punishment class of offense for file number 03 CRS
051760 should reflect enhancement of Class “C”; and (4) block 5should be checked to reflect that the possession of cocaine
convictions are subject to an enhanced punishment based upon
defendant's status as an habitual felon.
No error in the trial. Remanded for corrections.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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