Appeal by defendant from judgments entered 9 December 2004 by
Judge Edwin G. Wilson, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 29 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
GEER, Judge.
Defendant Derrick Andre Poke appeals from his convictions for
attempted robbery with a dangerous weapon and for attaining violent
habitual felon status. Defendant contends on appeal that, during
the principal felony stage of his trial, he should have been
allowed to argue the severity of the punishment he stood to receive
under the violent habitual felon statute. We are, however, bound
by this Court's prior rulings in State v. Wilson, 139 N.C. App.
544, 533 S.E.2d 865, appeal dismissed and disc. review denied, 353
N.C. 279, 546 S.E.2d 394 (2000), and State v. Dammons, 159 N.C.
App. 284, 583 S.E.2d 606, disc. review denied, 357 N.C. 579, 589
S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382,124 S. Ct. 1691 (2004), which hold that a defendant being tried as
a habitual felon is not permitted to argue the severity of his
punishment to the jury during his trial on the principal felony.
Further, defendant's argument that his sentence of life in prison
without parole is a cruel and unusual punishment has been rejected
by our Supreme Court in State v. Todd, 313 N.C. 110, 118, 326
S.E.2d 249, 253 (1985). Because we find defendant's remaining
arguments on appeal are likewise without merit, we hold that
defendant received a trial free of error.
Facts and Procedural History
The State's evidence tended to show the following facts.
About 10:00 p.m. on 8 April 2004, Linda McMickle was working as a
cashier at the Crown gas station and convenience store in
Greensboro, North Carolina. McMickle saw defendant enter the store
and approach the beer cooler. McMickle waited on other customers
while defendant lingered in front of the cooler until he finally
made a selection. Defendant brought the beer to the checkout
counter where McMickle was standing and set it down.
Defendant then moved away, and McMickle noticed an open beer
bottle in his pocket. Although he appeared to be putting something
in a trash can next to the counter, he suddenly took the open beer
bottle out of his pocket and smashed the bottle on the edge of the
counter. He ran behind the counter and began to poke and jab at
McMickle with the jagged glass of the broken bottle, demanding
money. When McMickle tried to resist, defendant grabbed her with
his free hand. Several other customers inside the store saw what defendant
was doing and heard McMickle calling for help. While yelling at
defendant to stop, the customers started taking items off the
convenience store shelves and throwing them at defendant. After a
glass bottle struck defendant in the head and wounded him, he
started towards the door of the shop, still holding the broken
bottle. One of the customers tried to stop him, but defendant
broke free and again headed for the door, bleeding from the cut on
his head. As he attempted to leave the store, customers on both
the outside and inside pinned his right arm in the door,
immobilizing him.
The customers kept defendant's arm pinned in the door until
McMickle was able to summon the police. When the police arrived,
they noticed shards of a broken beer bottle lying on the pavement
outside the doorway, about "a foot or two under [defendant's] right
hand."
Defendant was indicted for attempted robbery with a dangerous
weapon, for attaining violent habitual felon status, and for
attaining habitual felon status.
(See footnote 1)
A jury convicted defendant both
of the attempted robbery charge and, following that conviction, of
attaining violent habitual felon status. Defendant received a
sentence of life imprisonment without parole.
I
Defendant first contends that the State's closing argument
during the attempted robbery trial improperly suggested that thejury should penalize defendant for failing to plead guilty to
attempted robbery. Although defendant acknowledges he did not
object to the closing argument at trial, he nonetheless contends
that the trial court should have interrupted the prosecutor
ex mero
motu.
The challenged portion of the closing argument is as follows:
So why are we here? Sometimes cases,
especially cases where I contend the evidence
is so clear, it's difficult for the jury to
understand, there must be something more to
this case, it's so obvious that the defendant
committed the crime and why are we here? The
fact of the matter is that cases, a lot of
times, are tried for three different reasons.
The first reason is sort of the whodunit
reason, it was some other dude who did it, it
wasn't me, I didn't do this. . . .
The second reason is more along the lines
of not a whodunit, but more of a what is it. .
. .
. . . .
And the third reason is, ladies and
gentlemen, a lot of times people don't want to
take responsibility for what they do. And
that is what I think is the argument here, the
reason we have to try this case, the reason
you have to sit here for a day, two days, and
listen to us is that the defendant doesn't
want to take responsibility for his actions. .
. . I mean, if he was just going to do
violence, he would have gotten up there and
choked her. He would have gotten up there and
punched her. If his intent was just to do a
common-law robbery of violence, he could have
done it without busting that beer bottle. But
instead, he broke that beer bottle because he
wanted a weapon, a dangerous weapon, a weapon
which, the way he used it, can cause serious
bodily injury. The fact that Ms. McMickle was
not injured is due to the fact that those two
customers came in, and they hurt him, hit him
in the head with a beer bottle, busted his
skull wide-open and penned him in the door. He used a dangerous weapon in this case and he
doesn't want to take responsibility for that.
Hold him responsible. Take your reason,
take your common sense back in the jury room
with you and return a verdict of guilty as
charged to attempted robbery with a dangerous
weapon, and tell him, you are responsible for
what you did out there. We are not letting
you go. You will pay the price for the crime
you committed. Find him guilty as charged.
Given defense counsel's failure to object to this argument at
the proper time, we apply the standard of review set forth in State
v. Walters, 357 N.C. 68, 101_02, 588 S.E.2d 344, 364, cert. denied,
540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003): "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 mero motu.'" Id. at 101, 588 S.E.2d at
364 (quoting 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, 123 S.
Ct. 2087 (2003)). The Court elaborated:
"In other words, the reviewing court must
determine 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 and: (1)
precluded other similar remarks from the
offending attorney; and/or (2) instructed the
jury to disregard the improper comments
already made."
Id. at 102, 588 S.E.2d at 364 (quoting State v. Jones, 355 N.C.
117, 133, 558 S.E.2d 97, 107 (2002)). Our Supreme Court has
stressed that: "'[o]nly an extreme impropriety on the part of the
prosecutor will compel this Court to hold that the trial judgeabused 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. Anthony, 354
N.C. 372, 427, 555 S.E.2d 557, 592 (2001) (quoting State v.
Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied,
519 U.S. 890, 136 L. Ed. 2d 160, 117 S. Ct. 229 (1996)), cert.
denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct. 2605 (2002).
It is well-settled that "[r]eference by the State to a
defendant's failure to plead guilty violates his constitutional
right to a jury trial." State v. Larry, 345 N.C. 497, 524, 481
S.E.2d 907, 923, cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234, 118
S. Ct. 304 (1997). On the other hand, it is not improper for the
prosecutor to urge the jury to hold a defendant responsible for his
actions. See, e.g., State v. Walls, 342 N.C. 1, 64, 463 S.E.2d
738, 772 (1995) (no error when the prosecutor argued that defendant
was "the master of [his] destiny" and that "we are responsible for
the consequences of our actions"), cert. denied, 517 U.S. 1197, 134
L. Ed. 2d 794, 116 S. Ct. 1694 (1996). In this case, the
prosecutor's statements appear to have crossed the line into an
improper reference to defendant's failure to plead guilty. His
reference to the jury's being required "to sit here for a day, two
days, and listen to us" can only be construed as an allusion to the
fact that if defendant had pled guilty, the case would not have
needed to go to trial.
We are nonetheless unpersuaded that the trial court erred in
failing to intervene ex mero motu. The improper comments werebrief and occurred in the context of an otherwise proper
exhortation to the jury to hold defendant responsible for his
actions despite his claim that he was innocent of the crime
charged.
Further, in light of the overwhelming evidence of defendant's
guilt in this case _ he was caught by his victims at the scene of
the crime _ coupled with the passing nature of the improper
argument, we do not believe the prosecutor's comments resulted in
"fundamental unfairness" during the trial. State v. Anderson, __
N.C. App. __, __, 624 S.E.2d 393, 400-01 (holding that the
prosecutor's description of defendant's argument as "just crazy"
was an improper statement of personal belief as to the truth or
falsity of defendant's arguments, but did not rise to the level of
reversible error), appeal dismissed and disc. review denied, 360
N.C. 484, __ S.E.2d __ (2006) . See also State v. Tirado, 358 N.C.
551, 581, 599 S.E.2d 515, 536 (2004) (assuming arguendo that
closing argument was erroneous, error was not reversible where
substantial physical and testimonial evidence supported finding of
guilt), cert. denied sub nom Queen v. North Carolina, 544 U.S. 909,
161 L. Ed. 2d 285, 125 S. Ct. 1600 (2005); State v. Williams, 350
N.C. 1, 28-29, 510 S.E.2d 626, 644 (no reversible error due to very
brief improper statement when viewed in context of State's lengthy
and otherwise proper closing argument), cert. denied, 528 U.S. 880,
145 L. Ed. 2d 162, 120 S. Ct. 193 (1999). This assignment of error
is overruled.
II
Defendant next argues that the trial court committed plain
error when it admitted the broken bottle into evidence. He objects
that the bottle should have been excluded as irrelevant because it
was not clear that it was the same bottle defendant was holding
when he attempted to rob the store. In support of his argument,
defendant points to evidence of other broken glass lying in and
around the convenience store as a result of the scuffling between
defendant and the customers.
The Supreme Court has held that "evidence is relevant if it
has '
any logical tendency, however slight, to prove a fact in issue
in the case.'"
State v. Payne, 328 N.C. 377, 399-400, 402 S.E.2d
582, 595 (1991) (quoting
State v. Perry, 298 N.C. 502, 510, 259
S.E.2d 496, 501 (1979)) (evidence that the fiber on defendant's
shirt was not consistent with fiber from carpet samples taken from
defendant's home was relevant because it had "some logical tendency
to show that the source of the fiber was not this carpet"). In
this case, evidence that a glass bottle was found immediately below
defendant's outstretched hand has some logical tendency to show
that defendant was indeed holding the bottle before the pinning of
his arm in the door forced him to drop it. The fact that there was
no direct evidence that the State's exhibit was the same bottle
fragment that defendant used to threaten McMickle goes to the
weight, not the admissibility, of the evidence.
See id. at 400,
402 S.E.2d at 595. The trial court, therefore, did not err in
admitting the bottle.
III
Defendant next argues that the trial court committed plain
error by failing to instruct the jury on the defense of voluntary
intoxication. Our Supreme Court "has held on numerous occasions
that it is the duty of the trial court to instruct the jury on all
of the substantive features of a case. This is a duty which arises
notwithstanding the absence of a request by one of the parties for
a particular instruction."
State v. Loftin, 322 N.C. 375, 381, 368
S.E.2d 613, 617 (1988) (internal citations omitted). Nonetheless,
in the absence of a request for a specific instruction, this Court
will review the instruction's omission for plain error only.
N.C.R. App. P. 10(c)(4).
Because defendant failed to request a voluntary intoxication
instruction, he is limited to plain error review. "Under plain
error review, 'reversal is justified when the claimed error is so
basic, prejudicial, and lacking in its elements that justice was
not done,'"
State v. Miller, 357 N.C. 583, 592, 588 S.E.2d 857, 864
(2003) (quoting
State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d
440, 484 (2002),
cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681, 123
S. Ct. 1800 (2003)),
cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819,
124 S. Ct. 2914 (2004), and, "absent the [claimed] error, the jury
probably would have reached a different result."
State v. Jones,
355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
To raise the issue of voluntary intoxication, "a defendant
must produce more than evidence of mere intoxication; he must
produce substantial evidence which would support a conclusion bythe judge that he was so intoxicated that he could not form the
required
mens rea."
State v. Yang, __ N.C. App. __, __, 622 S.E.2d
632, 636 (2005) (internal quotation marks omitted),
disc. review
denied, ___ N.C. ___, 628 S.E.2d 12 (2006). "A person may be
excited, intoxicated and emotionally upset, and still have the
capability to formulate the necessary intent required to commit a
criminal offense."
State v. Rogers, 153 N.C. App. 203, 214, 569
S.E.2d 657, 665 (2002),
disc. review denied, 357 N.C. 168, 581
S.E.2d 442 (2003).
See also State v. Kornegay, 149 N.C. App. 390,
395, 562 S.E.2d 541, 545 (2002) (defendant's statements upon arrest
that he was "drunk and high from smoking [cocaine]" and that he was
"coming down" from the night before were not enough evidence to
entitle him to a voluntary intoxication instruction absent some
further showing that he was intoxicated at the time he committed
the crime),
appeal dismissed and disc. review denied, 355 N.C. 497,
564 S.E.2d 51 (2002).
Here, two witnesses for the State testified that defendant
looked like he was "on something" at the time of the crime. The
arresting officer described defendant as "hot and sweaty and tired-
looking" when the police arrived at the scene. Beyond this
testimony, no other evidence as to defendant's mental or physical
condition was offered at trial. Defendant, significantly, did not
present any evidence tending to show that his intoxication rendered
him unable to form the requisite specific intent for the crime of
attempted robbery with a dangerous weapon. We hold that the
evidence "fall[s] short of requiring the judge,
sua sponte, toinstruct the jury on voluntary intoxication."
State v. Torres, 171
N.C. App. 419, 423, 615 S.E.2d 36, 38 (2005).
IV
Defendant next argues that the trial court erred in denying
his "motion to be allowed to question prospective [jurors] and
argue to the jury the potential life without parole sentence for
defendant upon conviction of attempted robbery with a dangerous
weapon." It is well-established that, in cases where the defendant
faces a habitual felon charge, the defendant is not permitted to
argue the severity of his punishment to the jury during his trial
on the principal felony.
State v. Wilson, 139 N.C. App. 544, 548,
533 S.E.2d 865, 868 (observing that "the statutory provisions that
an habitual felon trial be held subsequent and separate from the
principal felony trial, and that an habitual felon indictment be
revealed to the jury
only upon conviction of the principal felony
offenses . . . logically preclude argument of issues pertaining to
the habitual felon proceeding, specifically and particularly
including punishment, during the principal felony trial"),
appeal
dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394
(2000);
see also State v. Dammons, 159 N.C. App. 284, 295, 583
S.E.2d 606, 613 (citing
Wilson and noting that prior case law
permits apprising the jury only of the punishment that may be
imposed upon conviction of the crime for which defendant is being
tried),
disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003),
cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382, 124 S. Ct. 1691
(2004). Defendant contends that this line of case law was incorrectly
decided. We are, however, bound by
Wilson and
Dammons and may not
revisit their holdings.
See In Re Appeal from Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the
Court of Appeals has decided the same issue, albeit in a different
case, a subsequent panel of the same court is bound by that
precedent."). Defendant also attempts to distinguish
Wilson on the
grounds that in
Wilson, the sentence at stake was a mere range of
months, whereas here a life sentence hangs in the balance. Nothing
in
Wilson or
Dammons, however, indicates that their reasoning turns
on the length of the sentence at stake. We are, therefore,
compelled to overrule this assignment of error.
V
Defendant's final argument is that his sentence of life in
prison without parole is a cruel and unusual punishment for the
crime of attempted robbery with a dangerous weapon. This argument
was rejected by our Supreme Court in
State v. Todd, 313 N.C. 110,
118, 326 S.E.2d 249, 253 (1985) (holding that a life sentence under
the habitual felon statute does not violate the Eighth Amendment).
See also State v. Mason, 126 N.C. App. 318, 321, 484 S.E.2d 818,
820 (1997) (holding that
Todd's holding applied to defendants
convicted under the violent habitual felon statute),
cert. denied,
354 N.C. 72, 553 S.E.2d 208 (2001). Since these cases are
controlling, defendant's final assignment of error is accordingly
overruled.
No error.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
Footnote: 1