An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-1011


Filed: 3 October 2006


    v.                            Cumberland County
                                No. 03 CRS 50077

    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.

    GEER, Judge.

    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 intervene.


    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 daylight."
    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 law.
            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, 39 (1994)).
    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, 353 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 therefrom." Payne, 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. Defendant's remaining assignments of error, which were not brought forward in his brief, are deemed abandoned. N.C.R. App. P. 28(b)(6).

    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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