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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. MICHELLE CATHERINE THEER
Filed: 16 January 2007
1. Homicide_first-degree murder_conspiracy_sufficiency of evidence
There was sufficient evidence that defendant was a perpetrator in a prosecution for first-
degree murder and conspiracy to murder. Although much of the evidence was circumstantial and
did not rule out every hypothesis of innocence presented by the defense, it was ample and
sufficient to allow the jury to make reasonable inferences of defendant's guilt.
2. Criminal Law_statements by trial judge_potential liability of witness_Fifth
Amendment rights_not comment on guilt or credibility
There was no prejudice in a prosecution for first-degree murder and conspiracy from the
trial judge's statements that a defense witness may have potential liability and that the witness
may have some Fifth Amendment rights where the trial judge had appointed an attorney to
protect the witness's Fifth Amendment rights; the trial judge thereafter stated that he had no
prosecutorial responsibilities in the matter; and defense counsel was the first to elicit from the
witness a possible charge of accessory to first-degree murder. Rather than expressing an
impermissible opinion as to defendant's guilt or the witness's credibility, the trial judge was
instead seeking to clarify that he had not threatened prosecution as suggested by defense counsel.
3. Evidence_character_alternative lifestyle_mental state, pattern of conduct, motive,
The admission of evidence about defendant's lifestyle and sexual activity was not an
abuse of discretion in a prosecution for conspiracy and first-degree murder. The evidence was
admissible to show a pattern of conduct, motive, and defendant's mental state, as well as to
corroborate other witnesses. Limiting instructions were given and the court made extensive
findings about the reasons for admitting the evidence.
4. Evidence_character_affairs_Wiccan religion_not prejudicial
Evidence about a first-degree murder defendant's affairs after her husband's death, her
practice of the Wiccan religion, and her behavior in jail was not prejudicial in light of the
overwhelming evidence of her alleged motive and involvement in the murder.
5. Evidence_character_cumulative effect_not prejudicial
In light of the overwhelming evidence of defendant's motive for and involvement in the
murder of her husband, the cumulative effect of testimony about her alternative lifestyle and
sexual activity was not prejudicial.
6. Evidence_character_improper relationship with counsel suggested_not plain error
There was no plain error in a first-degree murder prosecution where a witness suggested
an improper relationship between defendant and her counsel. The statements were made in
response to an unrelated question, came in the midst of a rambling non-answer, defense counsel
cross-examined the witness on the subject and impeached her credibility, and a limiting
instruction was given.
7. Criminal Law_mistrial denied_improper character evidence
The trial court did not abuse its discretion by denying a mistrial in a prosecution for
conspiracy and first-degree murder after a witness offered inadmissible bad character evidence,
including the suggestion of an improper relationship between defendant and her trial counsel.
The judge's findings in support of the denial of the mistrial were well supported by reason and
the judge's superior position for observing the jury.
8. Evidence_psychologist_testimony about marital counseling_admissibility
The admission of testimony from a psychologist who had provided marital counseling to
defendant and her husband was not plain error where defendant was being prosecuted for
conspiring and aiding and abetting in the murder of her husband. The psychologist's opinions
relate to the state of defendant's marriage and to her attitude toward her husband and their
marriage, neither of which meets the definition of character evidence. The evidence was relevant
in light of the State's theory of the case, and defendant did not show a probable impact on the
jury's finding of guilt. N.C.G.S. § 8C-1, Rule 405(a).
9. Evidence_marital counseling records_admissibility
The trial court did not abuse its discretion in a murder prosecution by compelling
disclosure of a psychologist's records of marriage counseling sessions between defendant and her
husband, the victim. The state of the marriage was a central issue in the trial and the court
reviewed the records before disclosure. N.C.G.S. § 8-53.3.
10. Evidence_murdered husband's affairs_properly excluded
The exclusion of evidence about a murdered husband's alternative lifestyle and extra-
marital affairs was not an abuse of discretion, and there was no prejudice, where similar evidence
regarding defendant had been admitted as relevant to her state of mind, but the victim's state of
mind was not in issue. Moreover, the evidence was admitted through other witnesses.
11. Constitutional Law_references to pre-arrest exercise of rights_not plain error
The State's references to defendant's pre-arrest exercise of her constitutional rights to
silence and counsel did not involve plain or ex mero motu error.
12. Criminal Law_defense counsel admonished_nine comments in ten weeks--no
prejudice to defendant
Nine comments by which the court admonished defense counsel about inappropriate or
improper questions during a ten-week trial did not prejudice defendant or deprive her of a fair
13. Criminal Law_prosecutor's closing arguments_no intervention ex mero motu
There was no error in the trial court's failure to intervene when certain remarks were
made by the prosecutor during the State's closing argument in a first-degree murder prosecution.
Although the prosecutor referred to defendant's burden, the reference was followed by a clear
statement of the State's burden of proof and was designed to suggest that defendant had not
contradicted the State's evidence. Passing references to the victim and his mother did not
improperly emphasize sympathy or pity for the victim's family, and comments about why theState's evidence should be believed or why a witness should not be believed did not rise to the
level of gross impropriety.
14. Evidence_computer searches for body bags_not prejudicial
The admission of information found on defendant's computer concerning body bags was
not prejudicial, even if the evidence was irrelevant, because these were just three of many
documents reviewed by the court and exhibits submitted by the State, and because the evidence
of guilt was overwhelming.
15. Homicide_first-degree murder_short form indictment_not error
Use of the short-form indictment for first-degree murder did not result the conviction
Appeal by Defendant from judgment entered 3 December 2004 by
Judge E. Lynn Johnson in Superior Court, Cumberland County. Heard
in the Court of Appeals 14 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell and Assistant Attorney General Kathleen U.
Baldwin, for the State.
Daniel R. Pollitt, Assistant Appellate Defender, for the
On 3 December 2004, Defendant Michelle Catherine Theer was
convicted of first-degree murder by aiding and abetting and of
conspiracy to commit first-degree murder in the death of her
husband, United States Air Force Captain Frank Martin Theer.
Defendant appeals to this Court, challenging the sufficiency of the
evidence to convict her and arguing that the trial court committed
either error or plain error in her trial. Upon our careful review
of her appeal, we hold that Defendant received a fair trial that
was free of prejudicial error. At trial, the evidence tended to show that the Theers married
in 1991 and subsequently lived in several different states as
Captain Theer was stationed at Air Force bases around the country.
In 1999, the couple moved to Fayetteville, where Captain Theer was
posted on Pope Air Force Base and Defendant was employed by
psychologist Thomas Harbin, as she worked toward getting her own
permanent license as a psychologist. Throughout this time, Captain
Theer was often deployed overseas and away from home for long
stretches of time, and the marriage struggled.
In early 2000, Defendant met United States Army Sergeant John
Diamond, a Special Forces soldier stationed in Fayetteville
Bragg, via the Internet and began an extramarital affair with him.
In June 2000, Defendant rented her own apartment and lived
separately from Captain Theer ; the two started marital counseling
in July while also going through a trial separation. In October,
Defendant reconciled with Captain Theer, moving back into their
home and telling Dr. Harbin that she planned to end her affair with
Sergeant Diamond. In November, Sergeant Diamond sent e-mails to
Defendant indicating he was unhappy about the possibility of their
relationship ending and Defendant's remaining with her husband. On
9 December 2000, Defendant met and engaged in sexual relations with
Sergeant Diamond in Raleigh, after telling Captain Theer she was
going there to celebrate her birthday with a graduate school
On 17 December 2000, Defendant and Captain Theer traveled from
Fayetteville to Cary with Dr. Harbin, his wife, and another couple,for a dinner to celebrate the holidays. Around 9:00 or 9:30 p.m.,
as the group prepared to leave the restaurant, Defendant went to
the restroom and made a cell phone call to Sergeant Diamond, who
was watching a video with his estranged wife and mother-in-law.
After the phone call, Sergeant Diamond put on cold-weather clothing
and left the house.
Meanwhile, Defendant and Captain Theer took the other couple
back to Dr. Harbin's office in Fayetteville, where they had left
their car, arriving around 10:30 p.m. Thereafter, Defendant and
her husband left the parking lot but returned approximately ten to
fifteen minutes later after Defendant remembered that she needed
a reference book from her office to prepare for two book reports .
. . due the next day. Defendant later told the police that
Captain Theer waited outside while she went inside Dr. Harbin's
office to get the books. Shortly thereafter, she heard gunshots,
ran outside, and found Captain Theer, unresponsive, at the bottom
of the steps outside of the building. Defendant stated that
because she had accidentally locked her keys inside the building
when she went outside, she ran to a late-night video store about a
block away to get help. Captain Theer died as a result of five
gunshot wounds, including one fired at close range just behind his
Following Captain Theer's death, Defendant continued her
relationship with Sergeant Diamond, including taking a trip to
Florida together. Police later linked Sergeant Diamond to a
semiautomatic pistol that was of the same model used to killCaptain Theer. However, after Sergeant Diamond learned that the
police wanted to obtain the pistol for ballistics testing, he
reported that his vehicle had been broken into on base and the
As a result of his statements regarding the pistol, military
authorities charged Sergeant Diamond with making a false official
statement, false swearing, and obstruction of justice. Around 20
, he was placed into pre-trial confinement at a
. Sergeant Diamond was later charged with and
convicted by a General Court-Martial of murder and conspiracy to
commit murder in the death of Captain Theer and sentenced to life
in prison without parole.
On 21 May 2002, Defendant was indicted for first-degree murder
and conspiracy to commit first-degree murder in the death of
Captain Theer. However, around the date of the indictment,
Defendant, who had moved to New Orleans since the murder, left from
there, reportedly to start a new life. She moved to Florida,
where she rented an apartment and had plastic surgery performed
under an assumed name. Files and documents found in her Florida
apartment indicated Defendant had a long-range plan to create
several false identities and essentially to disappear.
Police located and arrested Defendant in August 2002, and her
trial began on 27 September 2004. At the conclusion of the nearly
three-month trial, the jury returned verdicts of guilty of first-
degree murder by aiding and abetting, and of conspiracy to commit
first-degree murder. The trial court sentenced Defendant to lifein prison without parole.
Before this Court, Defendant appeals from those verdicts,
arguing (I) the trial court erred by denying her motion to dismiss
the charges of first-degree murder and conspiracy to commit first-
because the State presented insufficient evidence
that she was a perpetrator of the crimes charged; (II) the trial
court improperly expressed opinions about her guilt and defense
witness Angela Forcier's credibility;
(III) the trial court
erroneously admitted irrelevant evidence and argument about her bad
character; (IV) the trial court improperly denied her motion for a
mistrial based on inadmissible evidence; (V) the trial court
erroneously allowed inadmissible and privileged witness testimony
concerning her marital counseling; (VI) the trial court erroneously
excluded relevant defense evidence; (VII) the trial court committed
plain error by allowing State evidence and argument as to her
exercise of her constitutional rights to silence and counsel;
(VIII) the trial court improperly belittled her trial counsel and
denied her motion for a mistrial based on that conduct; (IX) the
prosecutor's closing argument was ex mero motu error; (X) the trial
court erroneously admitted State evidence about computer documents
related to body bags; and, (XI) the indictment was insufficient.
 Defendant argues that the trial court erred by denying her
motion to dismiss the charges of first-degree murder and conspiracy
to commit first-degree murder. She contends that the State failed
to present sufficient evidence that she was a perpetrator. Wedisagree.
When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense. State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert.
denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005); see also State v.
Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert.
denied, 126 S. Ct. 47, 163 L. Ed. 2d 79 (2005); State v. Butler,
356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002). Our Supreme Court
has defined substantial evidence as relevant evidence that a
reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion. Garcia, 358 N.C. at
412, 597 S.E.2d at 746 (citations omitted).
Additionally, [i]f there is substantial evidence _ whether
direct, circumstantial, or both - to support a finding that the
offense charged has been committed and that the defendant committed
it, the case is for the jury and the motion to dismiss should be
denied. Butler, 356 N.C. at 145, 567 S.E.2d at 140 (quoting State
v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). In
considering a motion to dismiss by the defense, such evidence must
be taken in the light most favorable to the state. . . . [which] is
entitled to all reasonable inferences that may be drawn from the
evidence. State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396,
if the evidence is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense
or the identity of the defendant as the perpetrator, the motion to
dismiss must be allowed. State v. Malloy, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983) (internal citation omitted). This is true
even though the suspicion aroused by the evidence is strong. Id.
(internal citation omitted). However, [c]ircumstantial evidence
may withstand a motion to dismiss and support a conviction even
when the evidence does not rule out every hypothesis of innocence.
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation
and quotation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d
150 (2000). As our Supreme Court has noted,
There is no logical reason why an inference
which naturally arises from a fact proven by
circumstantial evidence may not be made. This
is the way people often reason in everyday
life. In this case the inferences on
inferences dealt with proving the facts
constituting the elements of the crime. We
hold that the jury could properly do this
State v. Childress, 321 N.C. 226, 232, 362 S.E.2d 263, 267 (1987).
Here, Defendant contends that there was insufficient evidence
that she (1) knowingly advised, instigated, encouraged, procured,
or aided Sergeant Diamond to commit first-degree murder, or (2)
entered into an agreement with Sergeant Diamond to commit first-
degree murder. See State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163,
175 (1996) (outlining required elements for aiding and abetting a
crime), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997);
State v. Merrill, 138 N.C. App. 215, 218, 530 S.E.2d 608, 611
(2000) (outlining required elements for conspiracy to commitmurder).
While true that much of the State's evidence as to Defendant's
involvement in the murder was circumstantial, and the evidence did
not rule out every hypothesis of innocence presented by the
defense, including that Mr. Diamond acted alone, we find that the
State introduced ample and sufficient evidence to allow the jury to
make reasonable inferences of Defendant's guilt as to each element
of the crimes charged. Indeed, testimony and exhibits offered by
the State tended to prove Defendant's affair with Sergeant Diamond,
ongoing problems in her marriage to Captain Theer, her financial
status and the insurance payout, and her suspicious behavior and
flight following the murder - all of which could reasonably give
rise to inferences that would prov[e] the facts constituting the
elements of the crime, even if evidence also existed to the
contrary. We hold that sufficient evidence was offered to show
that Defendant was a perpetrator of the crimes charged.
Accordingly, we uphold the trial court's denial of Defendant's
motion to dismiss.
Next, we address Defendant's argument that she is entitled
to a new trial because the trial court improperly expressed an
opinion as to her guilt and as to the credibility of a defense
witness. We disagree.
The exchange at issue involved the testimony of Defendant's
sister, Angela Forcier, during Defendant's case-in-chief. Before
Ms. Forcier's testimony, the trial court excused the jury from thecourtroom and appointed a local attorney to advise her about her
Fifth Amendment rights regarding the possibility of being an
accessory-after-the-fact to first-degree murder.
for the day to allow Ms. Forcier the opportunity to consult with
counsel, Ms. Forcier elected to take the stand the following
With Ms. Forcier's appointed attorney present during her
testimony, the trial judge informed the jury that the attorney was
appointed by this Court to protect any Fifth Amendment rights Ms.
Forcier may have in the trial of this matter and he will advise
her, if necessary.
On direct examination, defense counsel asked Ms. Forcier if
she was being threatened with prosecution in this matter. When Ms.
Forcier answered that she was threatened with prosecution for
accessory after the fact of murder, the trial judge stopped the
questioning and inquired if defense counsel was referring to what
the trial judge had said the day before, to which the defense
counsel ultimately replied, I acknowledge that you had just warned
her. Thereafter, the trial court addressed the jury, stating:
THE COURT: Ladies and gentlemen of the jury,
on yesterday's date, when I sent you out, I
simply advised Ms. Forcier of her potential
liability in this case of being . . . an
accessory after the fact, that she may have
some Fifth Amendment rights. It is not my
responsibility to prosecute any action in this
case. So that's a mischaracter - misstatement
. . . . Do you acknowledge that?
DEFENSE COUNSEL: . . . I acknowledge that you
just warned her.
. . .
THE COURT: I said she had some Fifth Amendmentrights and she stood liable for accessory
after the fact.
DEFENSE COUNSEL: To first degree murder.
THE COURT: Correct.
Defendant contends that this exchange was an improper expression by
the trial court as to her guilt and the credibility of Ms. Forcier
as a witness, since Defendant would have to be guilty of first-
degree murder in order for Ms. Forcier to be guilty of accessory
after the fact to first-degree murder. See State v. Freeman
N.C. 622, 626, 187 S.E.2d 59, 62-63 (1972) ([I]t is error for the
trial judge to express or imply . . . any opinion as to the guilt
. . . of the defendant . . . or as to the credibility of any
witness.). Such a statement would be improper if a juror could
reasonably infer therefrom that the judge was intimating an opinion
as to the credibility of the witness or as to any fact to be
determined by the jury. Id.
at 628, 187 S.E.2d at 63.
Our standard of review in considering this exchange is whether
it created a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises. N.C. Gen.
Stat. § 15A-1443(a) (2005). If Defendant succeeds in showing
prejudice from the exchange, [t]he burden is upon the State to
demonstrate, beyond a reasonable doubt, that the error was
harmless. N.C. Gen. Stat. § 15A-1443(b) (2005). However, [a]
defendant is not prejudiced . . . by error resulting from his own
conduct. N.C. Gen. Stat. § 15A-1443(c) (2005); see also State v.
, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (Ordinarilyone who causes or . . . joins in causing the court to commit error
is not in a position to repudiate his action and assign it as
ground for a new trial.)
Here, Defendant's counsel join[ed] in causing the court to
commit error, such that we conclude there was no prejudice to
Defendant stemming from the objected-to exchange. In his
statements while the jury was present, the trial judge
Ms. Forcier's potential liability and that she may have some
Fifth Amendment rights, while also stating that he had no
prosecutorial responsibilities in the matter. Defense counsel,
however, was the first to elicit from Ms. Forcier the possible
charge of accessory after the fact to first-degree murder, which he
subsequently reiterated in front of the jury during his exchange
with the trial judge.
Rather than expressing an impermissible opinion as to
Defendant's guilt or Ms. Forcier's credibility, we find that the
trial judge was instead seeking to remedy the situation by
clarifying that he had not threatened prosecution, as suggested by
defense counsel, and to thereby avoid prejudice, not cause it. We
recognize that the trial court's statement that Ms. Forcier stood
liable for accessory after the fact perhaps went too far in its
forcefulness; however, we also note that Ms. Forcier's testimony in
front of the jury might have in fact enhanced her credibility as a
witness who felt strongly enough still to testify, even in the faceof such threat
(See footnote 1)
Accordingly, we find no merit to this assignment
 Defendant next argues that she is entitled to a new trial
because the trial court erroneously admitted the State's irrelevant
evidence and argument about her bad character, in contravention of
Rules of Evidence 401-404 and the Fourteenth Amendment to the U.S.
(See footnote 2)
A trial court's rulings under Rule 403 are reviewed for an
abuse of discretion, see State v. Lanier
, 165 N.C. App. 337, 345,
598 S.E.2d 596, 602, disc. review denied
, 359 N.C. 195, 608 S.E.2d
, as are those under Rule 404(b). See State v. al-
, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005) (Whether
to exclude evidence is a decision within the trial court's
discretion.), cert. denied
, 126 S. Ct. 1784, 164 L. Ed. 2d 528
(2006). This Court will find an abuse of discretion only where atrial court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision. State v. Campbell
, 359 N.C. 644, 673, 617 S.E.2d 1, 19
(2005) (citation and quotation omitted), cert. denied
, 126 S. Ct.
1773, 164 L. Ed. 2d 523 (2006).
Although rulings under Rule 401
are not discretionary and therefore are not reviewed under the
abuse of discretion standard, we also note that such rulings are
given great deference on appeal.
State v. Wallace
, 104 N.C. App.
498, 502, 410 S.E.2d 226, 228 (1991) (internal citations omitted),
, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
In her appeal, Defendant argued prejudicial, plain, and ex
error as to the evidence and testimony challenged in this
argument. However, she failed to distinguish as to the specific
grounds for objection and appropriate standard of review concerning
the testimony of each of the eighteen witnesses she challenges.
Nevertheless, even assuming arguendo
that the objected-to testimony
was error in each instance, thereby giving Defendant the benefit of
the most favorable standard of review, we hold that its admission
was not prejudicial to Defendant. See
N.C. Gen. Stat. § 15-1443(a)
(A defendant is prejudiced by errors . . . when there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
out of which the appeal arises. The burden of showing such
prejudice . . . is upon the defendant.).
Defendant takes specific issue with witness testimony
concerning, among other things, her refusal to have children, hersexual promiscuity and affairs during her marriage and after her
husband's death, her alternative lifestyle including classified
Internet ads seeking sexual partners and swinging, her belief in
the Wiccan religion, and her ability to manipulate others,
Regarding the testimony of Charles McLendon, a man with whom
Defendant had an extramarital affair from late 1999 to early 2000,
the trial court overruled defense counsel's objection based upon
the [North Carolina] rules of evidence
, finding that his testimony
was relevant on the issues of motive, pattern of conduct on using
the Internet to engage in sexual liaisons, and the status of the
apparent disengagement from [Defendant's] husband, Frank Martin
The trial judge also instructed the jury that Mr.
McLendon's testimony should be received for only those limited
purposes, as well as for the mental state of Defendant.
Likewise, after reviewing eight boxes of some 21,000 documents
and computer records, the trial court found that
The marital relationship between the
defendant and Frank Martin Theer, the length
and depth of the disengagement between the
defendant and Frank Martin Theer in their
marriage, thus the motive and marital state of
the defendant leading up to December 17, 2000,
are relevant for the jury's consideration. It
is also relevant on the issue of the process
which the defendant utilized during the
disengagement from Frank Martin Theer and in
corroboration of the testimony of Charles
The relationship of the defendant to John
Diamond and the defendant's relationship to
her husband, Frank Martin Theer, have now
become a substantial and material matter and,
thus, the mental state of the defendant at the
time of the death of Frank Martin Theer aswell as the motive on the part of the
defendant. The matters dealing with an
alternative life-style may reflect not only
the degree of engagement with John Diamond but
also the degree of disengagement from her
husband, Frank Martin Theer, at the time of
. . . The Court has considered this matter
under Rule 403. The defendant's motion is
denied. The Court will give a limiting
A limiting instruction was later given to the jury
, bidding them to
receive evidence as to Defendant's Internet posting and alternative
lifestyle for the limited purpose of [their] evaluation of the
marital status of the defendant and Frank Martin Theer, any motive
in this particular case, corroboration of the prior testimony of
Charles McLendon and, thus, [their] evaluation of the mental state
of the defendant.
Defendant argues that this testimony about the computer
documents and e-mails should have been excluded as bad character
evidence, as it made her out to be a moral degenerate and went
beyond simply chronicling her extramarital affairs. See State v.
, 301 N.C. 407, 432-33, 272 S.E.2d 128, 143-44 (1980),
superseded by statute on other grounds as stated in State v. Woods
307 N.C. 213, 217-18, 297 S.E.2d 574, 577 (1982). However, as our
Supreme Court similarly concluded in Small
, [w]e are satisfied .
. . that given the admissibility of the fact that defendant had
sexual relations with other[s], the outcome of the trial would not
have been different had this bit of embellishment not been
. at 433, 272 S.E.2d at 144.
Moreover, as the trial court found and instructed the jury,the evidence in question was properly admitted for another,
permissible purpose, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.
N.C. Gen. Stat. § 8C-1, Rule 404(b). Likewise, in light of the
trial court's extensive findings on the record concerning his
reasons for admitting this evidence, we conclude his rulings were
neither unsupported by reason nor arbitrary and thus were not an
abuse of discretion. See Campbell
, 359 N.C. at 673, 617 S.E.2d at
As such, we uphold the trial court's finding that the
probative value of this evidence was not substantially outweighed
by its prejudicial effect. N.C. Gen. Stat. § 8C-1, Rule 403.
 Turning now to the evidence of Defendant's affairs while
living in Florida after her husband's death, as well as her alleged
practice of the Wiccan religion and her behavior while in jail, we
acknowledge that this evidence had a tenuous, at best, relevance to
the question of Defendant's guilt. However, even assuming arguendo
that it was error to admit this evidence, we hold that it was not
prejudicial in light of the overwhelming amount of evidence
presented by the State as to Defendant's alleged motive and
involvement in the murder. After reviewing all of the testimony
and transcript in this case, we are unpersuaded that, but for this
evidence, Defendant would have been acquitted of the crimes
N.C. Gen. Stat. § 15-1443(a).
 Additionally, although Defendant seems to argue that the
cumulative effect of these evidentiary rulings should entitle her
to a new trial, we believe that, even when taken as a whole, theevidentiary rulings in question did not deprive Defendant of a fair
trial. This evidence went to Defendant's motive and state of mind
with respect to her husband's death; it did not include any
suggestion that she had committed similar crimes in the past. See
State v. Anthony
, 354 N.C. 372, 423, 555 S.E.2d 557, 589 (In light
of the great weight of evidence against defendant presented at
trial, we hold that the combined effect of any erroneous
evidentiary rulings was not prejudicial to defendant.) (2001)
, 536 U.S. 930, 153 L. Ed. 2d 791 (2002); State v.
146 N.C. App. 220, 234, 552 S.E.2d 193, 202 (2001) ([W]e
find no merit in defendant's final argument that he was prejudiced
by the cumulative effect of the trial court's alleged errors.),
, 355 N.C. 350, 563 S.E.2d 562 (2002); but see
State v. White
, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992)
(finding the cumulative effect of evidence as to the defendant's
commission of two similar crimes in the past to have deprived him
of his fundamental right to a fair trial).
For the foregoing reasons, we find no merit in this
assignment of error.
 Next, Defendant argues she is entitled to a new trial
because the trial court improperly denied her motion for a mistrial
following inadmissible bad character evidence offered by witness
Rosaida Rivera, including the suggestion of an improper
relationship between Defendant and her trial counsel. Defendant
contends that admission of the testimony was plain error, and thatdenial of the motion for mistrial was an abuse of discretion. She
specifically objects to the following statements made by Ms. Rivera
on direct examination:
A: . . . I told her about her lawyer, about
her and her lawyer used to get these - these
special contact visits. How they were real
close. She used to - before she'd go see her
lawyer, she always used to take these little -
a whole bunch of paper, which - about her case
and stuff like that that she would take to her
lawyer. She would brag on her lawyer was so
good and how sweet her lawyer is. And people
suspected, you know, that her and her lawyer
were a little too close than most lawyers
would be with a client but how she'd get
little special things that no other inmate can
get unless her lawyer would bring it in. That
would be like erasers and pads, what else?
These statements were made in response to an unrelated question by
the prosecution, and in fact came in the midst of what might be
characterized as a rambling non-answer by Ms. Rivera. Defendant
asserts that the suggestion of an improper relationship with her
trial counsel impaired the latter's ability to effectively
represent her and caused her substantial and irreparable prejudice.
The plain error rule is always to be applied cautiously and
only in the exceptional case where, after reviewing the entire
record, the error is found to have been so basic, so prejudicial,
so lacking in its elements that justice cannot have been done or
that it had a probable impact on the jury's finding that the
defendant was guilty. State v. Odom
, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (internal citation and quotation omitted).
Here, because defense counsel did not object at trial to the
substance of Ms. Rivera's testimony, and thus did not preserve theissue on appeal, we may only review the evidence under the plain
error standard. To that end, we note that defense counsel did
cross-examine Ms. Rivera concerning her claims of an improper
relationship, drawing the jury's attention to the strict conditions
of Defendant's imprisonment and monitored meetings with her
(See footnote 3)
He further impeached Ms. Rivera's credibility by
reviewing her extensive criminal record. Moreover, at the close of
all evidence, the trial court specifically instructed the jury that
There is evidence which tends to show
that the witness Rosaida Rivera solicited help
from the State of North Carolina in exchange
for her testimony. If you find that she
testified in whole or in part for this reason,
you should examine her testimony with great
care and caution in deciding whether or not to
believe it. If, after doing so, you believe
her testimony in whole or in part, you should
treat what you believe the same as any other
In light of the curative effect of the cross-examination of Ms.
Rivera and the trial court's instructions to the jury concerning
her testimony, we decline to find plain error in the admission of
Ms. Rivera's testimony.
 The trial court is required to declare a mistrial upon a
defendant's motion if there occurs during the trial an error or
legal defect in the proceedings, . . ., resulting in substantial
and irreparable prejudice to the defendant's case. N.C. Gen.Stat. § 15A-1061 (2005); State v. Tirado
, 358 N.C. 551, 585, 599
S.E.2d 515, 538 (2004)
, cert. denied
, Queen v. North Carolina
U.S. 909, 161 L. Ed. 2d 285 (2005). The decision whether to grant
a mistrial is within the trial court's discretion and will be given
great deference since he is in a far better position than an
appellate court to determine whether the degree of influence on the
jury was irreparable. State v. Williamson
, 333 N.C. 128, 138, 423
S.E.2d 766, 772 (1992). This Court will find an abuse of
discretion only where a trial court's ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision. Campbell
, 359 N.C. at
673, 617 S.E.2d at 19.
Here, after reviewing the arguments for the State and
Defendant as to Defendant's motion for mistrial, the trial court
entered findings as to Ms. Rivera's testimony that included the
Paragraph three, there is a substantial
body of evidence before the jury that could
cause a finder of fact to view Rosaida
Rivera's testimony with great care and caution
. . .
Paragraph four, it is also worthy of note
that no objection nor any motion to strike was
raised by the defendant - defendant's counsel
. . . cross-examined Rivera about the security
when contact visits were permitted including
windows through which jail personnel could
observe the contact visit.
. . .
Paragraph six, it is the Court's judgment
borne of 22 years of experience as a trial
judge as well as input from fellow trial
judges that testimony such as Rosaida Rivera's
is generally viewed with skepticism by jurors.
Additionally, Rosaida Rivera's testimony
represented only a very small piece of a veryextensive and substantiated circumstantial
case against the defendant.
The trial judge based the denial of the motion for mistrial on
these findings, which we conclude to be well supported by reason
and the trial judge's superior position to observe the jury. We
therefore decline to disturb the trial court's ruling on appeal.
 Defendant next contends that she is entitled to a new
trial because the trial court erroneously admitted inadmissible and
privileged opinion and hearsay testimony from Dr. Kenneth
Kastleman, a clinical psychologist who provided marital counseling
to Defendant and Captain Theer. We disagree.
At the outset, we note that Defendant's objections at trial to
Dr. Kastleman's testimony were based on psychologist-patient and
marital privilege, as well as
(See footnote 4)
did not offer evidentiary arguments at trial regarding the
testimony, we review those contentions here under a plain error
standard, as articulated above. See
N.C. R. App. P. 10©)(4). We
review the trial court's decision to compel disclosure of what
would otherwise be privileged information under an abuse of
discretion standard. See State v. Smith
, 347 N.C. 453, 461, 496
S.E.2d 357, 362 (The decision that disclosure is necessary to a
proper administration of justice is one made in the discretion ofthe trial judge, and the defendant must show an abuse of discretion
in order to successfully challenge the ruling.) (internal citation
and quotation omitted), cert. denied
, 525 U.S. 845, 142 L. Ed. 2d
Defendant specifically objects to Dr. Kastleman's testimony
that during their sessions in the summer of 2000, Defendant was
not looking for common ground in the marriage, that she was
establishing boundaries toward her husband and getting
separation from him, and that she was attempting to distance
herself from the marriage and not motivated to undertake
He further testified that Captain Theer did indeed want
to make [the marriage] work, was attempting to accommodate to
[Defendant's] wishes, and that he felt he and [Defendant] could
work out their problems together. Dr. Kastleman also stated that
Captain Theer said that he was the one putting all the energy in
trying to get things back together and that he guessed Defendant
did not love him anymore and he did not understand why she doesn't
want to be together.
Defendant argues that these statements and opinions
constituted impermissible expert testimony on character, in
violation of North Carolina Rule of Evidence 405(a). See
Stat. § 8C-1, Rule 405(a) (2005) (Expert testimony on character or
a trait of character is not admissible as circumstantial evidence
After a careful review of all of Dr. Kastleman's
testimony, we find that his opinions related to the state of the
Theer marriage and Defendant's attitude toward her husband and hermarriage, neither of which meet the definition of character
evidence. See State v. Baldwin
, 125 N.C. App. 530, 536, 482 S.E.2d
1, 5 (Character is a generalized description of a person's
disposition, or of the disposition in respect to a general trait .
. .) (internal citation and quotation omitted), disc. review
, 347 N.C. 348, 492 S.E.2d 354 (1997).
Additionally, he made no impermissible statements nor suggestions
as to Defendant's guilt. See State v. Mixion
, 110 N.C. App. 138,
145, 429 S.E.2d 363, 367 (
In North Carolina an expert may not
express an opinion regarding the guilt or innocence of a
defendant.), disc. review denied
, 334 N.C. 437, 433 S.E.2d 183
We thus conclude that admission of the testimony did not
violate Rule 405(a).
Defendant also contends that the testimony violated Rules of
Evidence 401-403 as to relevance and prejudicial effect, Rules 701-
702 as to opinion and expert testimony, and Rules 801-803 as to
N.C. Gen. Stat. § 8C-1, Rules of Evidence (2005). We
find these arguments to be without merit, particularly under a
plain error standard. See State v. Cummings
, 352 N.C. 600, 636-37,
536 S.E.2d 36, 61 (2000) (holding that the bare assertion of
plain error in an assignment of error, without accompanying
explanation, analysis, or specific contentions in a defendant's
brief, is insufficient to show plain error)
, cert. denied
, 532 U.S.
997, 149 L. Ed. 2d 641 (2001). In light of the State's theory of
the case, that Defendant conspired with and aided and abetted
Sergeant Diamond in the murder of her husband, the testimony oftheir marriage counselor was surely relevant. Furthermore,
Defendant has failed to make any argument or showing in her brief
the testimony as to Captain Theer's statements had a probable
impact on the jury's finding that the defendant was guilty. See
, 307 N.C. at 660, 300 S.E.2d at 378.
 Defendant also argues that the trial court erred by
compelling disclosure of Dr. Kastleman's records of his counseling
sessions with the Theers. The trial court ordered the disclosure
of the counseling session records in the interest of the
administration of justice and pursuant to North Carolina General
Indeed, our legislature has seen fit to give trial judges such
discretion to compel the disclosure of what would otherwise be
privileged communications between psychologist and patient. See
N.C. Gen. Stat. § 8-53.3 (2005) (Any resident or presiding judge
in the district in which the action is pending may . . . compel
disclosure, . . . if in his or her opinion disclosure is necessary
to a proper administration of justice.). Given that the state of
the Theer marriage was a central issue in the trial as to
Defendant's alleged motive for the crime, and that the trial judge
himself reviewed the records prior to their disclosure, we find no
abuse of discretion by the trial judge regarding this issue.
 Defendant next argues that she is entitled to a new trial
because the trial court improperly excluded relevant defense
evidence about Captain Theer's alternative lifestyle. We disagree. We review the admissibility of expert testimony under an abuse
of discretion standard. See State v. Anderson
, 322 N.C. 22, 28,
366 S.E.2d 459, 463 (In applying [Rule 702], the trial court is
afforded wide discretion and will be reversed only for an abuse of
that discretion.), cert. denied
, 488 U.S. 975, 102 L. Ed. 2d 548
(See footnote 5)
Defendant specifically objects to the exclusion of portions of
testimony offered by two clinical psychologists, Dr. Deborah
Layton-Tholl and Dr. Donald Stewart. Dr. Layton-Tholl was
qualified as an expert in the fields of psychology and extramarital
affairs; she interviewed Defendant and reviewed documents and e-
mails related to the case.
Dr. Stewart is a clinical psychologist
in Florida who provided marital counseling to Defendant and her
husband in 1997.
After hearing from the defense as to what information Dr.
Layton-Tholl and Dr. Stewart planned to offer, the trial court
excluded any testimony that was based on statements made by
Defendant to either psychologist.
(See footnote 6)
In doing so, the trial courtreferred on the record to our Supreme Court's holding in State v.
, noting that
It is well settled that an expert must be
allowed to testify to the basis of her
opinion. State v. Ward
, 338 N.C. 64, 105-06,
449 S.E.2d 709, 732 (1994), cert. denied
U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1013
(1995). Nonetheless, admission of the basis
of an expert's opinion is not automatic.
State v. Workman
, 344 N.C. 482, 495, 476
S.E.2d 301, 308 (1996). The trial court, in
its discretion, must determine whether the
statements in issue are reliable, especially
if the statements are self-serving and the
defendant is not available for
. Moreover, if the
statements appear unnecessary to the expert's
opinion, exclusion of the basis may be proper.
State v. Baldwin
, 330 N.C. 446, 457, 412
S.E.2d 31, 38 (1992).
356 N.C. 178, 233, 570 S.E.2d 440, 470 (2002) (emphasis added),
, 538 U.S. 986, 155 L. Ed. 2d 681 (2003). The trial
court here noted that statements made to the two psychologists by
Defendant would have been self-serving and that they would beallowed only if Defendant elected to testify.
Both witnesses were,
however, permitted to testify as to other facts at issue. Dr.
Layton-Tholl offered extensive testimony concerning her research
into extramarital affairs and specifically her opinions on the
relationship between Defendant and Sergeant Diamond, including why
Defendant might have vacillated between her husband and Sergeant
Diamond and why she might have continued her relationship with
Sergeant Diamond after Captain Theer's death. Dr. Stewart
testified that he had provided marital counseling to Defendant and
her husband and had recommended to Captain Theer's commanding
officer that his scheduled transfer be postponed in order for the
couple to receive additional counseling.
Defendant contends that, under the trial court's previous
evidentiary rulings and Rules of Evidence 401-403 as to relevance,
Dr. Layton-Tholl and Dr. Stewart should have been allowed to
testify in full as to Captain Theer's extramarital affairs and
alternative lifestyle in order to show a direct correlation
between his behavior and Defendant's state of mind. The trial
court found the evidence to be related to Captain Theer's state of
mind, not Defendant's; he therefore excluded the expert witness
testimony that might have involved their opinions of
Theer's state of mind
, saying that The victim's state of mind is
not relevant in this trial. Her state of mind is, not what his
attitude was towards her.
The trial court's position on this question is reflected in
the following exchange from the transcript, conducted outside thepresence of the jury:
DEFENSE COUNSEL: But the state and the Court
has made Marty's state of mind relevant in
this matter. You've admitted, you know, Dr.
Kastleman's records. The state has, you know,
hammered home how Marty said this and said
that and so forth and, you know, that became _
that became an issue in this case by them
raising Marty's state of mind.
THE COURT: Frank Martin Theer was assassinated
on December 17th of 2000. If the facts in
this case show that this arose out of spousal
abuse and that they had a shoot-out at the
O.K. Corral and you wanted to develop the
history between these two individuals, then it
may be relevant. But the fact pattern in this
case is very simple. Some individual, the
state contends it being John Diamond, hid
behind some bushes and at some point in time,
apparently Frank Martin Theer went up the rear
steps of 2500 Raeford Road and some person,
the state contends being John Diamond, shot
Frank Martin Theer four times and apparently
the state contends that once he was on the
ground, some person came up and put a bullet
through his brain. The mental state of Frank
Martin Theer in this case is not relevant.
DEFENSE COUNSEL: When they have paraded in
front of this jury, you know, the extramarital
affairs of Michelle Theer _
THE COURT: They are held relevant as to her
state of mind and her reasons or the
attribution being made by the state as to why
she would want to have Frank Martin Theer
In reviewing this exchange between the trial court and defense
counsel, it is clear to us that the trial court did not make a
is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.
, 359 N.C. at 673, 617 S.E.2d at 19.
Furthermore, we note that Defendant was able to introduceevidence of Captain Theer's alleged extramarital affairs and
Internet activities through other witnesses.
Thus, even assuming
that it was error to exclude the evidence, Defendant has
failed to show a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises. N.C. Gen.
Stat. § 15A-1443(a). We conclude that this assignment of error is
 Defendant also contends that she is entitled to a new
trial because the trial court committed plain and ex mero motu
error by allowing State evidence and argument about her exercise of
her constitutional rights to silence and counsel. We disagree.
Defendant points to a number of instances in which the State
made reference at trial to her pre-trial exercise of her
constitutional rights to silence and counsel. It is telling that
she refers to this pre-trial exercise, as the references are all
to instances in which a witness testified to Defendant's invocation
of her rights to counsel and to remain silent prior to being
arrested herself. Witnesses such as police and Army investigators
and Defendant's boss testified as to her lack of cooperation with
the police during the investigation of her husband's murder; the
prosecutor's closing argument likewise referred to her reaction to
invoke her right to counsel when Sergeant Diamond was arrested.
None of these situations was custodial such that her Fifth and
Sixth Amendment rights to counsel and to remain silent would haveattached. See Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d
694, 706 (1966); Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d
411, 417 (1972 (plurality); State v. Phipps, 331 N.C. 427, 441, 418
S.E.2d 178, 185 (1992).
None of the four cases cited by Defendant nor those found by
this Court in its review of this argument have awarded a defendant
a new trial on the basis of references at trial to the defendant's
right to remain silent and right to counsel prior to being arrested
or to being in custodial interrogation. See also Jenkins v.
Anderson, 447 U.S. 231, 238
, 65 L. Ed. 2d 86, 94-95 (1980) (We
conclude that the Fifth Amendment is not violated by the use of
prearrest silence to impeach a criminal defendant's credibility.);
State v. Lane, 301 N.C. 382, 384-385, 271 S.E.2d 273, 275 (1980)
(distinguishing between impermissible references to the decision to
remain silent after arrest and allowable references
prior to arrest). We decline to do so now. We hold that this
assignment of error is without merit.
 Defendant next contends she is entitled to a new trial
because the trial court made nine improper negative comments before
the jury that belittled her trial counsel, and also improperly
denied her motion for a mistrial based on this conduct. We
In evaluating whether a judge's comments cross into the realm
of impermissible opinion, a totality of the circumstances test is
utilized. State v. Larrimore
, 340 N.C. 119, 155, 456 S.E.2d 789,808 (1995); see also
State v. Blackstock
, 314 N.C. 232, 236, 333
S.E.2d 245, 248 (1985); State v. Allen
, 283 N.C. 354, 358-59, 196
S.E.2d 256, 259 (1973)
. Furthermore, [e]ven if it cannot be said
that a remark or comment is prejudicial in itself, an examination
of the record may indicate a general tone or trend of hostility or
ridicule which has a cumulative effect of prejudice. State v.
, 292 N.C. 160, 165, 232 S.E.2d 680, 684 (1977). A judge
must remain impartial towards defense counsel and should refrain
from remarks which tend to belittle or humiliate counsel since a
jury hearing such remarks may tend to disbelieve evidence adduced
in defendant's behalf. State v. Wright
, 172 N.C. App. 464, 469,
616 S.E.2d 366, 369 (quoting
State v. Coleman
, 65 N.C. App. 23, 29,
308 S.E.2d 742, 746 (1983), cert. denied
, 311 N.C. 404, 319 S.E.2d
275 (1984)), aff'd per curiam
, 360 N.C. 80, 621 S.E.2d 874 (2005).
Nevertheless, unless it is apparent that such infraction of
the rules might reasonably have had a prejudicial effect on the
result of the trial, the error will be considered harmless. State
, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950). This
burden to show prejudice rests upon the defendant to show that the
remarks of the trial judge deprived him of a fair trial. State v.
, 87 N.C. App. 502, 504, 361 S.E.2d 416, 417 (1987).
In the instant case, after carefully reviewing in context the
nine comments complained of by Defendant,
(See footnote 7)
we find that none riseto the level seen in any of the cases cited by Defendant in which
a new trial was ordered. See, e.g.
, 292 N.C. at 165, 232
S.E.2d at 684 (finding prejudice and ordering a new trial where the
trial judge had made comments to the jury including, '
gentlemen if these witnesses are not telling the truth, then the
court, I think it is obvious what the facts are. Now, I have made
your speech again for you
.'); (emphasis in original)); Wright
N.C. App. at 464-65, 616 S.E.2d at 367 (finding prejudice and
ordering a new trial where trial judge mocked defense counsel infront of jury on several occasions and made comments such as, 'I
have done everything I can possibly do, except end your cross
examination. . . . Whatever you need to do, as I have now told you
three times, whatever you need to do to help yourself not do that,
Rather, as in Larrimore
and State v. Agnew
, the trial court's
statements in this case reflected efforts on the part of the trial
judge to maintain progress and proper decorum in what was evidently
a prolonged and tedious trial. Larrimore
, 340 N.C. at 155, 456
S.E.2d at 808 (quoting State v. Agnew
, 294 N.C. 382, 395, 241
S.E.2d 684, 692, cert. denied
, 439 U.S. 830, 58 L. Ed. 2d 124
(1978)). In a ten-week trial with over 6,300 pages of transcript,
we find that the nine comments by which the trial court admonished
Defendant's counsel when he asked inappropriate or improper
questions did not prejudice Defendant nor deprive her of a fair
trial. Accordingly, we find no merit to this assignment of error.
 Defendant also contends that she is entitled to a new
trial because the prosecutor's closing argument was ex mero motu
error, such that the trial court should have intervened. We
In cases where a defendant does not object at trial to the
prosecutor's closing arguments, the impropriety of the argument
must be gross indeed in order for [an appellate court] to hold that
a trial judge abused his discretion in not recognizing and
correcting ex mero motu an argument which defense counselapparently did not believe was prejudicial when he heard it.
State v. Hoffman, 349 N.C. 167, 185, 505 S.E.2d 80, 91 (1998)
(internal quotations and citations omitted), cert. denied, 526 U.S.
1053, 143 L. Ed. 2d 522 (1999). Additionally, our Supreme Court
has repeatedly held that counsel must be allowed wide latitude in
the argument of hotly contested cases. State v. Berry, 356 N.C.
490, 518, 573 S.E.2d 132, 150 (2002) (citation and quotations
Here, after carefully reviewing the entirety of the
prosecutor's closing argument to the jury, we find that none of the
comments challenged by Defendant were so grossly improper as to
require the ex mero motu intervention by the trial court.
Defendant specifically objects to the prosecutor's statements (1)
that Defendant had a burden there once they put on evidence and
you can reject it or you can accept it ; (2) concerning Captain
Theer's character and his mother; (3) assuring the jury that
[e]verything I argued to you is supported by the facts in this
case ; and, (4)referring to occasions on which Defendant had lied.
We note that the prosecutor also
explicitly said in his
closing argument, The defendant doesn't have to prove anything.
The state has the burden of proof. We have the burden of proof.
We put on evidence. In a criminal case, the defendant's failure
to produce exculpatory evidence or to contradict evidence presented
by the State may properly be brought to the jury's attention by the
State in its closing argument. State v. Taylor, 337 N.C. 597,
613, 447 S.E.2d 360, 370 (1994). The prosecutor's reference hereto Defendant's burden was not grossly improper when it followed
a clear statement of the State's burden of proof in the case, and
was instead designed to suggest to the jury that Defendant had
failed to contradict the State's evidence.
Furthermore, the prosecutor's passing references to Captain
Theer's character and to his mother did not improperly emphasize
sympathy or pity for the victim's family. State v. Alford, 339
N.C. 562, 572, 453 S.E.2d 512, 517 (1995).
[v]iewed in the context of his entire argument, these comments did
not attempt to make sympathy for the victim or his family the focus
of the jury's deliberation. Id. As such, they were not improper.
A prosecutor is similarly permitted to give reasons why the jury
should believe the State's evidence or not believe a witness, and
the prosecutor's comments here did not rise to the level of gross
impropriety that would have warranted ex mero motu intervention by
the trial court. See State v. Bunning, 338 N.C. 483, 489, 450
S.E.2d 462, 464-65 (1994), sentence vacated, 346 N.C. 253, 485
S.E.2d 290 (1997); State v. McKenna, 289 N.C. 668, 687, 224 S.E.2d
537, 550, sentence vacated, 429 U.S. 912, 50 L. Ed. 2d 278 (1976).
This assignment of error is therefore without merit.
 Next, Defendant argues she is entitled to a new trial
because the trial court erroneously admitted the State's evidence
about computer documents related to body bags, specifically,
concerning alleged searches on the website eBay for body bag
disaster pouches stored in the memory of Defendant's homecomputer. Defendant asserts that the evidence was irrelevant and
inadmissible under Rules of Evidence 401-403 and 901, as well as
the Fourteenth Amendment to the Constitution.
(See footnote 8)
In its ruling on Defendant's motion to exclude the evidence,
the trial court noted that it had reviewed eight boxes of computer
records which have now been represented to be an approximately
He further stated,
It was a rare occurrence that a document could
be interpreted as having been produced by a
third party. The computers were found in a
locale at least in the constructive possession
of the defendant. The State always has the
burden of showing relevancy and attributions
to the defendant which the Court will have to
judge as to its admissibility as offered.
At trial, after overruling the defense objection to the evidence in
question, the trial court instructed the jury that
this evidence concerning with this issue
dealing with the body bag is offered and
received concerning the defendant's then
existing state of mind or emotion such as
intent, plan, motive or design. It's offered
and received for that limited purpose and your
Even assuming arguendo
that the admission of this testimony
was error and an abuse of the trial court's discretion, we find
that it was not prejudicial to Defendant. See
N.C. Gen. Stat. §
14-1443(a) (prejudice results where, had the error in question not
been committed, a different result would have been reached at thetrial out of which the appeal arises.).
The evidence referring to
the body bags comprised just three documents out of the 21,000
reviewed by the trial court, and out of over five hundred exhibits
submitted by the State.
The trial court made findings that the
computer was in the constructive possession of Defendant, and
defense counsel cross-examined the State's computer expert as to
whether Captain Theer could perhaps have conducted the searches
rather than Defendant.
In light of the other overwhelming evidence presented to the
jury as to Defendant's guilt, we conclude that this evidence, even
if irrelevant, was not so prejudicial as to have affected the
outcome of the trial. This assignment of error is without merit.
 Lastly, Defendant argues that her conviction for first-
degree murder should be vacated because the short-form indictment
was insufficient. As recognized by Defendant in her brief,
however, our courts have previously rejected the argument she
makes, and this issue was raised and decided against Defendant at
trial. See State v. Hunt, 357 N.C. 257, 278, 582 S.E.2d 593, 607,
cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). This
assignment of error is accordingly dismissed.
For the foregoing reasons, we conclude that Defendant's trial
was free of prejudicial error. We therefore uphold her convictions
for first-degree murder and conspiracy to commit first-degreemurder.
No prejudicial error.
Judges BRYANT and STEPHENS concur.
Moreover, Ms. Forcier was not the only witness whom the
jury saw with her own counsel sitting beside her; the trial judge
also instructed the counsel for State witness Rosaida Rivera to
sit beside her while she testified and informed the jury that the
appointed attorney was there representing any Fifth Amendment
interests that Ms. Rivera may have and that the attorney may
consult [the witness] at any time concerning any issues that may
Similarly, Dr. Kenneth Kastleman, who had provided
marital counseling to the Theers, had an attorney present during
his testimony to represent his interests.
The fact that the jury
saw the same treatment of other witnesses lessens the potentially
prejudicial impact of the trial court's statements concerning Ms.
Although Defendant refers to a violation of the Fourteenth
Amendment in her brief, she offers no argument or citations in
support of this contention. Accordingly, she did not preserve
her constitutional claims regarding this evidence. See
App. P. 28(b)(6).
We also point out that, after Ms. Rivera made the
statement recounted above, the prosecution did not pursue the
suggestion of an improper relationship any further. In the
course of cross-examination, however, defense counsel elicited
the first and only mention of possible sexual contact between
Defendant and himself.
In her assignments of error to this Court, Defendant
alleges that the admission of this testimony violated her state
and federal constitutional rights.
However, her brief argues
only that the testimony violated various Rules of Evidence.
Defendant did not preserve her constitutional claims
as to this evidence. See
N.C. R. App. P. 28(b)(6).
Although Defendant again asserts constitutional error in
the section of her brief devoted to this issue, she fails to
present any argument or citations to that effect. Accordingly,
her constitutional arguments are deemed abandoned, see
App. P. 28(b)(6), and we consider only her objections on the
grounds of the North Carolina Rules of Evidence.
With respect to Dr. Stewart's testimony, the trial court
also excluded any information that was gained from statements
made by Captain Theer, on the basis that he had not waived the
psychotherapist-patient privilege provided by Florida law, even
if Defendant had. The Florida statute allows the privilege to be
For communications relevant to an issue ofthe mental or emotional condition of the
patient in any proceeding in which the
patient relies upon the condition as an
element of his or her claim or defense or,
after the patient's death, in any proceeding
in which any party relies upon the condition
as an element of the party's claim or
Fla. Stat. Ann. § 90.503(4)©) (2006).
Without providing any
supporting case law or argument, Defendant asserts that the
State was using Marty's mental condition as an element of a legal
claim, such that the privilege should be penetrated, and that
the Trial Court incorrectly applied Florida rather than North
Carolina law. Given that the marital counseling in question was
conducted in Florida, and that the State put at issue only
Defendant's state of mind and the status of the marriage as a
whole, not Captain Theer's state of mind, we find these arguments
The nine comments objected to by Defendant, with some
parenthetical relevant context, were as follows:
(1) [L]et's move on to something reasonable, please. (Defense
counsel questioned a forensic technician for the Fayetteville
Police Department as to whether her watch was coordinated withthe watch at the department and, if not, how far off it might
(2) Well, that makes it an unfair question then. (Defense
counsel questioned the forensic technician about blood testing
that she did not conduct.)
(3) That's an unfair question.
(Defense counsel questioned a
Fayetteville Police detective as to whether a signature was that
(4) [Y]ou know that's not appropriate.
continued asking the same question after an objection by the
State had twice been sustained by the trial court.)
(5) You know that's inappropriate, please, sir. (Defense
counsel made a statement in front of the jury in response to a
sustained objection, then continued and finished the statement
over an additional sustained objection.)
(6) Let's not make any gratuitous remarks. (Defense counsel
made a statement about not knowing a witness before the trial,
during the State's redirect examination of that witness.)
(7) That's not a proper question for the jury. Specifically
prohibited by the rules of evidence. (Defense counsel asked an
agent with the U.S. Army Criminal Investigations Division whether
she had noticed anything about interviewees being untruthful when
they made statements to her.)
(8) Don't do that again.
(The State objected, after defense
counsel used a third redirect examination to ask a witness the
same questions and make the same points that had been made on the
(9) So that's a mischaracter _ misstatement . . . . Do you
(Defense counsel asked a defense witness if
she had been threatened with prosecution in the case, suggesting
that it was the trial court who had done so.)
Although Defendant's brief refers to the Fourteenth
Amendment as grounds for finding this evidence to have been
inadmissible, she offers no argument to support the
constitutional grounds. We therefore consider only her
evidentiary claims, under an abuse of discretion standard. See
N.C. R. App. P. 28(b)(6).
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