An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 02 CRS 044625
MARCUS DONTAVIN ALEXA BEATTY
Appeal by defendant from judgment entered 16 April 2004 by
Judge Henry W. Hight, Jr., in Durham County Superior Court. Heard
in the Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert R. Gelblum, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
Marcus Dontavin Alexa Beatty (defendant) appeals from
judgment entered after a jury found him to be guilty of possessing
a handgun after having been convicted of a felony. We find no
prejudicial error at trial but remand for resentencing.
On 19 March 2002, Durham Police Officers K.E. Stephens
(Officer Stephens) and J.A. Friedrick (Officer Friedrick)
(collectively, the Officers) responded to a request for
assistance from another Durham Police Officer investigating an
armed robbery on Canal Street. The suspects were described as two
black males wearing all dark clothing walking south on GurleyStreet. The Officers proceeded down Canal Street, turned onto
Gurley Street, and spotted two black males wearing dark clothing.
Defendant was standing on the porch of a house located at 601
Gurley Street as the Officers approached. Defendant bent over,
placed something onto the porch with his right hand, stood up, and
knocked on the door. The resident of the house answered the door.
The Officers motioned defendant to descend from the porch and
requested his identification. Defendant walked down the steps and
gave Officer Stephens a North Carolina Division of Motor Vehicles
Identification Card issued to him. Officer Stephens asked the
occupants of the house, who had come outside their home, if
anything was located on the porch that did not belong to them. The
resident's niece, Tonia Williams (Ms. Williams), responded,
there is a gun on the porch.
When Ms. Williams made this statement, defendant fled. The
Officers did not apprehend defendant immediately. The Officers
recovered a black North Face jacket defendant had dropped during
the pursuit. The jacket contained a white piece of paper with a
gang reference to Blood Creed on it, three OxyContin tablets, and
a package of Newport cigarettes containing one cigarette.
Defendant was later apprehended.
On 3 September 2002, defendant was indicted for possession of
a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1.
After trial, the jury found defendant guilty of possessing a
handgun after having been convicted of a felony. Defendant wassentenced to a minimum term of twenty-five months and a maximum
term of thirty months. Defendant appeals.
Defendant argues the trial court erred by: (1) not granting
his motion for mistrial; (2) not intervening ex mero motu with
curative instructions or declaring a mistrial; and (3) not
submitting aggravating factors to the jury amounting to plain
Defendant failed to argue the remaining assignment of error in
his brief. Without citation to any authority or argument in
support of that assignment of error, it is deemed abandoned.
N.C.R. App. P. 28(b)(5) (2004).
III. Standard of Review
Our standard of review of the State's statements depends on
whether defendant objected at trial.
If defendant objected, this Court must
determine whether the trial court abused its
discretion by failing to sustain the
objection. When defendant fails to object to
an argument, this Court must determine if the
argument was so grossly improper that the
trial court erred in failing to intervene ex
State v. Frink, 158 N.C. App. 581, 589, 582 S.E.2d 617, 622 (2003)
(internal quotations and citations omitted).
IV. Motion for Mistrial
Defendant argues the trial court erred by not granting his
motion for a mistrial when the State made improper comments in its
[A] mistrial should be declared upon the
defendant's motion if there occurs during the
trial an error or legal defect in the
proceedings, or conduct inside or outside the
courtroom, resulting in substantial and
irreparable prejudice to the defendant's case
. . . . The scope of our review therefore is
limited to whether in denying the motion for a
mistrial there has been an abuse of judicial
State v. Brown, 64 N.C. App. 637, 643, 308 S.E.2d 346, 350 (1983),
aff'd, 310 N.C. 563, 313 S.E.2d 585 (1984).
We have previously stated how we apply our review to
Application of the abuse of discretion
standard to closing argument requires this
Court to first determine if the remarks were
improper. Improper remarks include statements
of personal opinion, personal conclusions,
name-calling, and references to events and
circumstances outside the evidence, such as
the infamous acts of others. Upon finding
improper remarks were made, we determine if
the remarks were of such a magnitude that
their inclusion prejudiced defendant, and thus
should have been excluded by the trial court.
In order to demonstrate prejudicial error, a
defendant must show that there is a reasonable
possibility a different result would have been
reached had the error not occurred.
Frink, 158 N.C. App. at 591, 582 S.E.2d at 623 (internal citations
and quotations omitted).
Defendant relies largely on State v. Rivera, 350 N.C. 285, 514
S.E.2d 720 (1999), to support his assertion of prejudicial error.
In Rivera, our Supreme Court held:
It is well established that the jury arguments
of trial counsel are left largely to the
control and discretion of the trial court, and
counsel will be granted wide latitude in the
argument of hotly contested cases. State v.
Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997).Nevertheless, a trial attorney may not make
uncomplimentary comments about opposing
counsel, and should 'refrain from abusive,
vituperative, and opprobrious language, or
from indulging in invectives.' State v.
Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39
(1994) (quoting State v. Miller, 271 N.C. 646,
659, 157 S.E.2d 335, 346 (1967)); see also
Gen. R. Pract. Super. and Dist. Ct. 12, 1999
Ann. R. N.C. 10 (All personalities between
counsel should be avoided. The personal
history or peculiarities of counsel on the
opposing side should not be alluded to.
Colloquies between counsel should be
350 N.C. at 291, 514 S.E.2d at 723.
In Rivera during the State's closing argument, the prosecutor
remarked over defendant's objection that defense counsel displayed
one of the best poker faces as we introduced Dr. Bissett in the
history of this courthouse. Id. The defendant contended that the
prosecutor's comment improperly implied that defense counsel had
personal knowledge of both the validity and the damaging nature of
the State's evidence concerning [defendant's] whereabouts . . . and
was attempting to conceal this knowledge by not reacting to the
presentation of Dr. Bissett's testimony. Id. The trial court
overruled the defendant's objection and remarked that the jury
would decide the case based upon the evidence and not the
personalities of the lawyers. Id. The Supreme Court acknowledged
the prosecutor made an improper comment and the trial court's
response thereto was lacking. Id. The Court further held, the
comment of the prosecutor in this case was not extreme, it did not
meet the standard of 'dignity and propriety' required of all trial
counsel by Rule 12 of the General Rules of Practice for theSuperior and District Courts. Id. (quoting Gen. R. Pract. Super.
and Dist. Ct. 12, 1999 Ann. R. N.C. 10 (Counsel are at all times
to conduct themselves with dignity and propriety.)). The Court
concluded it would be in the best interest of the courts and the
public that our trial courts hold counselors to the proper standard
and impose appropriate sanctions for deviations. Id.
Here, defendant argues the prosecutor made improper comments
during the State's closing arguments.
Well, you heard Mr. Bradley say that Mr.
Beatty didn't go to the police and tell them
about his I.D.'s had been stolen. Well, you
know what, Mr. Beatty is not the only one that
didn't go to Officer Stephens about his I.D.
being stolen. Where did this come from?
[During this statement the prosecutor held up
a newly discovered lighter and keys to the
jury.] This magically appeared yesterday in
this courtroom in this jacket. You heard me
ask . . . Officer Stephens, did Mr. Bradley
ever come to you and tell you about this new
evidence, this magic new evidence that
Defendant asserts the prosecutor's statements implied defense
counsel had planted evidence.
What's up with that? He checked the coat.
Officer Friedrick checked the coat. What did
he find in the coat? Little itty-bitty pills,
flimsy little paper, bulky cigarette pack.
Missed this? Keys? In the big pocket, not
the zipper pocket, [defense counsel] went
right up to the big pocket in that jacket,
pulled this out, like a rabbit out of a hat.
Defendant also avers the prosecutor again implied impropriety on
State: Plan A, Plan B, run like
Hershall Walker; Plan C, lost
your ID five, six times; Plan
D, handwriting, this is myhandwriting, this is my
handwriting right here. Plan D
stuff in jacket nobody else
found. Didn't tell anybody
Mr. Bradley: Objection.
The Court: Overruled.
State: Why does an innocent person
need to have a plan, or second
plan, or all these plans. They
don't. Innocent people don't
need plans, excuses,
explanations. But Mr. Beatty
does, because he's guilty.
We hold the prosecutor's comments were inappropriate. These
statements were uncomplimentary comments about opposing counsel
and in the trial court in its discretion could have appropriately
sanctioned counsel. Rivera, 350 N.C. at 291, 514 S.E.2d at 723;
see also Frink, 158 N.C. App. at 592, 582 S.E.2d at 623. We
admonish the prosecutor to avoid any repetition of this conduct in
the future. While the prosecutor's statements do not meet the
standard of dignity and propriety required, they are not so
extreme to prejudice defendant and warrant a new trial. Rivera,
350 N.C. at 291, 514 S.E.2d at 723.
The improper comments were not so prejudicial to defendant
[in light of overwhelming evidence of defendant's guilt or] show a
reasonable possibly the jury would have reached a different result
had the error not occurred. Frink, 158 N.C. App. at 591, 582
S.E.2d at 623. Defendant failed to show these comments and the
trial court's response constituted an abuse of its discretion in
denying defendant's motion for mistrial.
V. Ex Mero Motu
Defendant argues the trial court erred by not intervening ex
mero motu with curative instructions or declaring a mistrial.
Having previously held the trial court did not abuse its
discretion in not allowing defendant's motion for mistrial, we
decline to review defendant's assertions regarding the State's
improper comments under the higher standard of grossly improper.
Id. at 589, 582 S.E.2d at 622.
VI. Aggravating Factors
Defendant argues the trial court erred by not submitting
aggravating factors to the jury. Our Supreme Court recently held
in State v. Allen, [o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed presumptive range must be submitted to a jury and proved
beyond a reasonable doubt. ___ N.C. ___, ___, ___ S.E.2d ___, ___
(July 1, 2005) (485PA04).
The Court later stated in State v. Speight, the rationale in
Allen applies to all cases in which (1) a defendant is
constitutionally entitled to a jury trial, and (2) a trial court
has found one or more aggravating factors and increased a
defendant's sentence beyond the presumptive range without
submitting the aggravating factors to a jury. ___ N.C. ___, ___,
614 S.E.2d 262, 264 (2005).
Here, the trial court found defendant was on pretrial release
to support an aggravated sentence and did not submit this factor to
the jury. See Id. This case is remanded for imposition of asentence consistent with our Supreme Court's decisions in Allen and
The trial court did not err when it denied defendant's motion
for mistrial. The prosecutor's comments were improper and could
have subjected him to sanctions. Defendant failed to show these
comments were so prejudicial that the jury would have reached a
different result if the comments had not been made.
In light of our holding on defendant's motion for mistrial, we
do not address defendant's assignment of error asserting the trial
court erred by not declaring a mistrial ex mero motu
. Because we
find no abuse of discretion, the higher standard of grossly
improper review is unnecessary. Frink
, 158 N.C. App. at 591, 582
S.E.2d at 623.
Defendant's sentence is vacated and this case is remanded for
resentencing consistent with our Supreme Court's decisions in Allen
No Prejudicial Error at Trial; Remanded for Resentencing.
Judges MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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