Appeal by defendant from judgment entered 18 January 2005 by
Judge Jack A. Thompson in Cumberland County Superior Court. Heard
in the Court of Appeals 11 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
Russell J. Hollers, III, for defendant-appellant.
Defendant Tyler Andre Willis appeals his conviction for second
degree murder. On appeal, defendant argues that the trial court
erred by failing to intervene ex mero motu with respect to certain
statements in the prosecutor's closing argument. We hold that the
statements were not improper, and the trial court had no duty to
The State presented evidence at trial which tended to show the
following facts. On 31 December 2002, Keith Harris drove
defendant, Rico Johnson, and Detoine Wortham to the J&J Food Mart
in Fayetteville, North Carolina. Upon arriving at the store,
Johnson and Wortham went inside, while Harris and defendant begantalking to a man, Antonio Singletary, who was standing outside the
store front. During the conversation, an argument broke out.
Defendant told Harris to shoot the man. Harris declined, saying it
was "stupid," and he wasn't going to shoot anyone "in broad
Johnson and Wortham came out of the store, and the four men
got back into their car. As the car pulled away, shots were fired
in the parking lot of the store. Singletary received a single,
fatal gunshot wound to his abdomen. At trial, defendant was
identified as the shooter by several witnesses.
On 19 May 2003, defendant was indicted for first degree
murder. The case was tried at the 10 January 2005 criminal session
of Cumberland County Superior Court, and a jury convicted defendant
of second degree murder. On 18 January 2005, defendant was
sentenced to 189 to 236 months imprisonment. Defendant timely
appealed to this Court.
Defendant's sole argument on appeal is that the trial court
erred when it failed to intervene ex mero motu
in connection with
the prosecutor's closing argument. During closing arguments,
defendant's counsel argued that the case consisted of "sloppy
police work." The prosecutor responded in his closing argument
with the following:
There's an old legal adage that people
are told when they first start studying the
law: If the law is against you, argue the
facts. If the facts are against you, argue the
Well, a modification of that in a
criminal case is, if the facts are against
you, attack the police. And that's exactly
what is happening in this case.
The prosecutor also argued that defendant's "sloppy police work
defense" was "like building a straw man and then knocking him
down." Lastly, the prosecutor argued that the witnesses had told
"consistent stories from Day 1."
Since defendant did not object at trial to any part of the
closing argument, on appeal he "must establish that the remarks
were so grossly improper that the trial court abused its discretion
by failing to intervene ex mero motu
." State v. Mitchell
, 353 N.C.
309, 324, 543 S.E.2d 830, 839, cert. denied
, 534 U.S. 1000, 151 L.
Ed. 2d 389, 122 S. Ct. 475 (2001). To meet this standard,
"'defendant must show that the prosecutor's comments so infected
the trial with unfairness that they rendered the conviction
fundamentally unfair.'" Id
. (quoting State v. Davis
, 349 N.C. 1,
23, 506 S.E.2d 455, 467 (1998), cert. denied
, 526 U.S. 1161, 144 L.
Ed. 2d 219, 119 S. Ct. 2053 (1999)).
Defendant contends that the prosecutor's argument regarding
defense counsel's attack on the police and the reference to "a
straw man" demeaned defendant's counsel and the choice of defense,
citing State v. Rivera
, 350 N.C. 285, 290, 514 S.E.2d 720, 723
(1999). In Rivera
, the prosecutor stated in his closing argument
that defense counsel "displayed one of the best poker faces . . .
in the history of this courthouse." Id
. at 290-91, 514 S.E.2d at
723. The Court concluded that "'a trial attorney may not make
uncomplimentary comments about opposing counsel'" and that theCourt "shall not tolerate . . . comments . . . tending to disparage
the personality or performance of another." Id
. at 291, 514 S.E.2d
at 723 (quoting State v. Sanderson
, 336 N.C. 1, 10, 442 S.E.2d 33,
In this case, however, the prosecutor did not disparage
defense counsel. Instead, the prosecutor's "straw man" argument
was a proper rebuttal of defense counsel's claims of "sloppy police
work." See State v. Payne
, 312 N.C. 647, 665, 325 S.E.2d 205, 217
(1985) (concluding that counsel may defend the tactics of
investigating authorities when challenged). See also Mitchell
N.C. at 324, 543 S.E.2d at 840 (finding no abuse of discretion in
trial court's failing to intervene when the prosecutor pointed out
defense counsel's strategy and urged that there was no reason to
doubt the State's method of investigation).
Defendant further argues that the prosecutor's argument
regarding the witnesses' "consistent stories" was improper because
it expressed his personal belief as to the truth of the witnesses'
testimony. In pertinent part, N.C. Gen. Stat. § 15A-1230 (2005)
limits an attorney from "express[ing] his personal belief as to the
truth or falsity of the evidence" during a closing argument.
Counsel is, however, "allowed to argue to the jury the law and
facts in evidence and all the reasonable inferences to be drawn
, 312 N.C. at 665, 325 S.E.2d at 217. In arguing
the credibility of a witness, counsel is entitled to suggest to the
jury that the witness should be believed because his version of the
facts was consistent over time _ in other words, that he told aconsistent story. The prosecutor's argument in this case was a
permissible argument regarding credibility. See State v. Wiley
355 N.C. 592, 622, 565 S.E.2d 22, 44 (2002) (holding that a
prosecutor may give the jury reasons to believe the State's
witnesses), cert. denied
, 537 U.S. 1117, 154 L. Ed. 2d 795, 123 S.
Ct. 882 (2003). The jury had the responsibility of deciding
whether the stories were consistent and whether the witnesses
should be believed.
We, therefore, hold that the trial judge did not abuse his
discretion by failing to intervene ex mero motu
remaining assignments of error, which were not brought forward in
his brief, are deemed abandoned. N.C.R. App. P. 28(b)(6).
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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