Converted WP file 041286-1

Appeal by defendant from judgment entered 22 April 2004 by Judge Narley Cashwell in Caswell County Superior Court. Heard in the Court of Appeals 10 October 2005.

Attorney General Roy Cooper, by Assistant Attorney General Scott T. Stroud, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.

GEER, Judge.

    Defendant Timothy Miles was found guilty of voluntary manslaughter. He was sentenced to a minimum term of imprisonment of 61 months and a maximum term of 83 months. On appeal, he contends (1) that the trial court erred in allowing one of the State's witnesses to testify while referring to her written statement and (2) that the court should have intervened ex mero motu during the State's closing argument. Based on our review of the record, we hold that the trial court did not err.
    The State presented evidence tending to show that on 2 July 2003, Debbie Pinnix witnessed an argument between defendant and his roommate, James Graves, that culminated in defendant's knockingGraves to the floor of their mobile home and kicking Graves several times in the head and stomach. Defendant left Graves on the floor and ignored Graves' repeated calls for help. Defendant and Pinnix, who stayed overnight, subsequently placed Graves on his bed.
    The next morning, Graves continued to call out for help, saying he could not move. Defendant accused Graves of stealing money from him, hit Graves several more times, and went through Graves' pockets in search of money. Pinnix persuaded defendant to stop hitting Graves, and Pinnix and defendant then left the mobile home. Defendant returned to the mobile home later that afternoon and found Graves dead. The autopsy report showed that Graves sustained a broken vertebra that ultimately resulted in paralysis of his respiratory system.
    Defendant first argues that the trial court erred by allowing Pinnix to read from her prior statement while she was testifying. The record shows that defendant objected to the "witness reading her statement as she goes along." After the court removed the jurors from the courtroom, counsel stated that she "did not notice until just a moment ago that the witness is reading from her statement, and the State has not introduced it." Counsel added that the witness had not been asked whether she needed it to refresh her memory. After counsel conceded that she did not have legal authority for her position, the court overruled the objection.
    The test for determining whether a witness is properly using a recorded memorandum to refresh her recollection is "whether thewitness has an independent recollection of the event and is merely using the memorandum to refresh details or whether the witness is using the memorandum as a testimonial crutch for something beyond his recall." State v. York, 347 N.C. 79, 89, 489 S.E.2d 380, 386 (1997). This determination is to be made on a case-by-case basis looking at the particular facts and circumstances. State v. Smith, 291 N.C. 505, 516, 231 S.E.2d 663, 670-71 (1977).
    Here, a review of Pinnix's testimony shows that she had extensive recall of the events in question. Nothing indicates that she was reading directly from the statement. To the contrary, the record tends to show that she used the memorandum solely for the purpose of refreshing her recollection of details. For example, the record shows that she made reference to the memorandum when she was asked for the times that certain events happened.
    Defendant's remaining contention is that the court erred by failing to intervene ex mero motu when the prosecutor stated during closing argument that Pinnix went to the Sheriff's Department and "told the truth. She answered to some degree. She came here and testified before you and told the truth." Defendant contends that the prosecutor improperly expressed an opinion as to the credibility of a witness.
    An established principle is that control of arguments of counsel rests within the discretion of the trial judge. State v. Worthy, 341 N.C. 707, 709, 462 S.E.2d 482, 483 (1995). "[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonableinferences that can be drawn from that evidence." State v. Richardson, 342 N.C. 772, 792-93, 467 S.E.2d 685, 697, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160, 117 S. Ct. 229 (1996). Counsel may not, however, "place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence." State v. Locklear, 294 N.C. 210, 217, 241 S.E.2d 65, 69 (1978). When an argument is made for the first time on appeal that counsel's closing argument crossed the bounds of propriety, our standard of review is "'whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.'" State v. Jones, 358 N.C. 330, 349-50, 595 S.E.2d 124, 137 (quoting State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)), cert. denied, __ U.S. __, 160 L. Ed. 2d 500, 125 S. Ct. 659 (2004).
    As a general principle of law, counsel is allowed to respond to arguments made by opposing counsel and to restore the credibility of a witness whose credibility has been attacked in the opponent's closing argument. State v. Perdue, 320 N.C. 51, 62, 357 S.E.2d 345, 352 (1987). Here, defendant opened the door to the prosecutor's argument by stating in his closing argument that Pinnix, "[b]y her very record and by her testimony she is a liar and a thief." Under these circumstances, we cannot conclude that the State's closing argument was so grossly improper that the court erred by failing to intervene ex mero motu.

    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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