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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. NORRIS DONNELL BELL, Defendant
Criminal Law_final closing argument_evidence not introduced on cross-examination
The trial court erred by depriving defendant of the right to the final closing argument
where he cross-examined an SBI agent about the method and instruments she used to determine
the nature of the substance seized from defendant's sock. Defendant did not introduce evidence
within the meaning of Rule 10 of the General Rules of Practice for the Superior and District
Appeal by Defendant from judgment entered 8 February 2005 by
Judge Kenneth C. Titus in Superior Court, Wake County. Heard in
the Court of Appeals 22 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Heather H. Freeman, for the State.
Haral E. Carlin for defendant-appellant.
In all cases, civil or criminal, if no evidence is
introduced by the defendant, the right to open and close the
argument to the jury shall belong to him.
(See footnote 1)
that since he offered no evidence at his trial, the trial court
erred by denying him the right to close argument to the jury.
For the reasons given in State v. Shuler, 135 N.C. App. 449, 452-
53, 520 S.E.2d 585, 588-89 (1999) and State v. Wells, 171 N.C.
App. 136, 140, 613 S.E.2d 705, 706-08 (2005), we agree with
Defendant and order a new trial.
This appeal arises from Defendant's trial on the charges ofpossession of cocaine and attaining habitual felon status. At
the end of the State's evidence, Defendant did not present
evidence on his own behalf. However, the trial judge stated that
he was allowing the State the final argument to the jury because
defense counsel had forfeited the right to final closing argument
by cross-examining the State's witness, Agent Amy Bommer (a
forensic drug chemist), with a document which was not admitted
into evidence, and questioning her concerning that document.
Defense counsel objected to losing his final closing argument.
Following his conviction on the charges and resulting
sentence of 95 to 123 months' imprisonment, Defendant appealed on
several issues, seeking a new trial. We find it dispositive that
he is entitled to a new trial based on the failure to allow his
counsel closing argument.
The right of a defendant to present a final closing argument
to a jury is governed by Rule 10 of the General Rules of Practice
for the Superior and District Courts, which provides that, in cases
in which the Defendant introduces no evidence, the right to open
and close the argument to the jury shall belong to him. N.C.
Super. and Dist. Ct. R. 10. Although there is no right to offer
evidence during cross-examination, evidence may be found to be
introduced during cross-examination, within the meaning of Rule
10, when: (1) it is offered into evidence by the cross-examiner;
or (2) the cross-examination introduces new matter that is not
relevant to any issue in the case. Shuler, 135 N.C. App. at 452-
53, 520 S.E.2d at 588 (citations omitted). If new matter raisedduring cross-examination is relevant, it is not considered
introduced within the meaning of Rule 10. Id. at 453, 520 S.E.2d
at 588 (citing N.C. Gen. Stat. § 8C-1, Rule 401).
In Shuler, this Court granted a new trial to a defendant after
the trial court denied the defendant's right to the closing jury
argument based on its erroneous finding that the defendant had
introduced new evidence during her cross-examination of a State
witness. On direct examination, the State's witness testified to
various statements the defendant made during interviews the two had
attended. On cross-examination, defense counsel asked the witness
to read portions of transcripts from the interviews to put the
defendant's statements into context, and questioned the witness
about her accounting procedures and other topics discussed during
the interviews. This Court concluded that matters raised during
the defendant's cross-examination of the State's witness were
relevant to evidence introduced by the State. Therefore, the
defendant did not introduce any new evidence on cross-examination,
and the trial court wrongly denied defendant's right to the closing
jury argument. Id. at 455, 520 S.E.2d at 589-90.
Likewise, we granted a new trial to the defendant in State v.
Wells, 171 N.C. App. 136, 613 S.E.2d 705 (2005), on the grounds
that the trial court erred by depriving the defendant of his right
to close to the jury. In Wells, the defendant was on trial for
murder. During direct examination, the State introduced a
statement the witness gave to detectives on 18 December 2002, in
which the witness stated that the defendant stood in the middle ofthe street and fired at the victim and another as they fled, then
casually drove away. On cross-examination, the defendant moved to
introduce the witness's 17 December 2002 statement, in which the
witness stated that defendant was running away from the recording
studio as he fired at the victims. This Court concluded that the
witness was questioned about statements which directly related to
the witness's own testimony on direct examination. Therefore, the
defendant did not introduce any evidence within the meaning of Rule
10, and the trial court erred in depriving him of the right to the
closing argument to the jury. Id. at 140, 613 S.E.2d at 708.
In the present case, the State questioned Agent Bommer about
the tests, instruments, and procedures she used to reach her
conclusion that the powdery substance seized was cocaine. On
direct examination, the prosecutor asked Agent Bommer, So cocaine
has a particular graph that will come out after being bombarded?
Agent Bommer replied, Correct. On cross-examination, the
following questioning occurred:
Q. Did you bring that graph with you?
Q. May I see it?
[DEFENSE COUNSEL]: May I approach, please?
THE WITNESS: (Document tendered.)
[DEFENSE COUNSEL]: Thank you.
Q. So actually it's various graphs; is that
A. It's various sheets of paper that's been
printed out as the report.
* * * *
Q. Thank you (document tendered).
Defense counsel also cross-examined Agent Bommer about a lab
report that she used during her testimony on direct examination.
Counsel asked Agent Bommer if she produced a lab report outlining
the results of her examination. Agent Bommer responded, It's part
of the process. Defense counsel subsequently asked, And do you
have a copy of it in front of you? She responded, I have a copy
of the shortened report in front of me. The DAs get  a three- to
four-page copy of the report.
Finally, defense counsel cross-examined Agent Bommer as
Q: Okay, you brought all of your records and
notes concerning this case?
A: Yes, I have my case notes with me.
Q: May I approach?
Court: Yes, you may.
Q: Can I see those, please?
The witness tendered the documents.
[DEFENSE COUNSEL]: Thank you.
Thank you. (Documents tendered.)
Here, defense counsel's questioning was related to Agent Bommer's
testimony on direct examination regarding the method and
instruments she used to determine the nature of the substanceseized from defendant's sock. We conclude that defense counsel's
cross-examination of Agent Bommer was relevant and directly related
to Agent Bommer's testimony during direct examination.
In sum, we hold that Defendant did not introduce any evidence
within the meaning of Rule 10, and the trial court therefore erred
in depriving him of the right to the closing argument to the jury.
As in Shuler
, we conclude that this error entitles
Defendant to a new trial. Shuler
, 135 N.C. App. at 455, 520 S.E.2d
at 590; Wells
, 171 N.C. App. at 140, 613 S.E.2d at 708; see also
State v. Raper
, 203 N.C. 489, 492, 166 S.E. 314, 315 (1932)
(holding that the closing argument to the jury is a substantial
legal right, the denial of which necessitates a new trial); State
, 57 N.C. App. 561, 564_65, 291 S.E.2d 812, 815 (1982)
(finding that the precedent of Raper
was not superseded by
amendments to Rule 10 of the General Rules of Practice for the
Superior and District Courts).
Judges HUDSON and TYSON concur.
N.C. Super. and Dist. Ct. R. 10.
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