STATE OF NORTH CAROLINA
v
.
Alamance County
No. 03 CRS 53654
JERRY LYNN STUART, JR.
Roy Cooper, Attorney General, by William B. Crumpler,
Assistant Attorney General, for the State.
Kathryn L. VandenBerg for defendant.
ELMORE, Judge.
On 13 February 2003, Jerry Lynn Stuart, Jr. (defendant) killed
his pregnant girlfriend, April Greer, by slitting her neck with a
sharp knife. In February, 2005, defendant confessed to the killing
during an interview with a psychiatrist working for his defense.
Defendant told the psychiatrist that April was being verbally
abusive while the two were in bed together. At her own request,
April was tied to the bed at the time. April told defendant that
she had been having sexual relationships with another man and
several women, that the baby she was carrying was not defendant's
child, and that “she was doing pornography on the Internet.”
Defendant told the psychiatrist:
The more she talked, the worse it got. I
could feel my heart beating inside my head. There was a knife on the dresser. I used it
to cut the ropes. I turned around to cut the
ropes and the next thing I knew my left arm
was covered in blood. There was no big spue
of blood. No death struggle. I was just on
my knees in front of her.
I remember _ I remember feeling really weak,
disoriented, confused, unsure about what had
happened. It felt unreal and so real. It
felt like waking from a bad dream.
Defendant elaborated, “I was thinking, if I can just cut these
ropes, I'll leave and go away. I turned around and the next thing
I knew she was dead. The knife was in my left hand and my left
hand was bloody.”
After he killed April, defendant removed her legs at the hip
and put her remains into a trash can. Witnesses saw defendant put
the trash can in the trunk of a car. The trash can and April's
body were discovered on 21 April 2003 on the banks of Back Creek in
Alamance County.
Alamance County Sheriff Terry Johnson interviewed defendant on
22 April 2003. Defendant gave a statement to Sheriff Johnson in
which he stated he visited his cousin that night, and returned home
to find April dead and dismembered. Defendant then stated that he
cleaned up the apartment, put April's body into the trash can, and
duct-taped it shut. He put the bloodied mattress and bedclothes
into garbage bags and placed them in the attic. He told his cousin
that the trash can containing April's body was filled with her old
clothes, and the two dumped the trash can into Back Creek. Defendant was convicted of first-degree murder on 24 May 2005,
and sentenced to life in prison without parole.
(See footnote 1)
Defendant
appeals.
I. Right to Silence
Defendant first argues that he is entitled to a new trial
because the prosecutor made improper comments during his closing
argument and during the testimony of Sheriff Johnson, which
violated defendant's constitutional right not to testify at his own
trial. We disagree.
A. Comment on silence during closing argument
Defendant objects to the following statement made by the
prosecutor during his closing argument:
And everybody must dance around everything in
here. They all know so much about what went
on in that bedroom. Well, they know a lot
more than I know, ladies and gentlemen of the
jury. There is only one person rest assured
as you sit in your seats, there's only one
person left on the face of this earth that
knows exactly what went on in that bedroom
late February 13 and early February 14, and
that's that man right there.
[Defense counsel]: Objection.
COURT: Over-ruled.
[Prosecutor]: This man right here, Jerry Lynn
Stuart, Jr. He took care of the State's
witness or you wouldn't be sitting here.
Don't you know Mr. Johnson and I would love tohave her in here telling the other side of
what happened. We don't get that. So we have
to do all this by circumstantial evidence and
eye witnesses, and there ain't any eye
witnesses in the bedroom. There were only two
people in the bedroom, one's dead and one's
here.
Wouldn't we like to know all of it. Wouldn't
we like to know whether she was tied up to the
bed facing him when he came at her with a
knife? Wouldn't we like to know whether she
was tied up and she had her back to him when
he came at her with the knife?
Defendant contends that the State made improper reference to
his failure to testify. Defendant further argues that the trial
court erred by overruling his objection to the alleged reference.
“The standard of review for improper closing arguments that
provoke timely objection from opposing counsel is whether the trial
court abused its discretion by failing to sustain the objection.”
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)
(citations omitted). “Abuse of discretion results where the
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. Peterson, ___ N.C. App. ___, ___, 634 S.E.2d
594, 614 (2006)
(quoting State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988)) (internal quotations omitted).
When applying the abuse of discretion standard
to closing arguments, this Court first
determines if the remarks were improper. . . .
[I]mproper remarks include statements of
personal opinion, personal conclusions,
name-calling, and references to events and
circumstances outside the evidence, such as
the infamous acts of others. Next, we
determine if the remarks were of such a
magnitude that their inclusion prejudiceddefendant, and thus should have been excluded
by the trial court.
Jones, 355 N.C. at 131, 558 S.E.2d at 106 (citations omitted).
We apply the two-step approach used in Jones, and first
determine whether the comments were improper. If the comments were
improper, we then ask whether the improper comments were of such
magnitude that their inclusion prejudiced defendant and therefore
should have been excluded by the trial court.
Defendant correctly states, “A criminal defendant may not be
compelled to testify, and any reference by the State regarding his
failure to testify is violative of his constitutional right to
remain silent.” State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1,
6 (1994) (citing Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d
106 (1965)). In Baymon, the closing arguments were not recorded or
transcribed and the judge was out of the courtroom when the
statement was made. Id. at 757, 446 S.E.2d at 6. The judge asked
each attorney to summarize in writing, to the best of his
recollection, the objectionable statement. Id.
Defense counsel's recollection was that the
prosecutor stated, “We don't know how many
times but the defendant knows and he's not
going to tell you; he doesn't have to tell
you.” The prosecutor's recollection was that
he stated, “[W]e don't know how many times the
child was . . . sexually [assaulted or
abused]. . . . The defendant knows, but he's
not going to tell you.”
Id. (alteration in original).
The judge overruled the defendant's objection. Id. Our
Supreme Court found that, even “[c]onstrued in the light most
favorable to the State both versions of the prosecutor's closingargument were direct references to defendant's failure to testify.
The comment was obviously intended to disparage defendant in the
eyes of the jury for failing to testify.” Id. at 758, 446 S.E.2d
at 6. It continued, “the trial court's failure to give a curative
instruction was error requiring a new trial unless the State can
show that the error was harmless beyond a reasonable doubt.” Id.
(citation omitted).
However, our Supreme Court has decided a number of other cases
that are factually more similar to the case at bar than Baymon. A
brief review of these cases follows.
In State v. Prevatte, our Supreme Court held that “if a
prosecutor's comment on a defendant's failure to testify was not
extended or was a 'slightly veiled, indirect comment on [a]
defendant's failure to testify,' there was no prejudicial violation
of the defendant's rights.” 356 N.C. 178, 248, 570 S.E.2d 440, 479
(2002) (quotations and citations omitted) (alteration in original).
The prosecutor in Prevatte made the following two comments, which
were deemed not to have been a prejudicial violation of the right
not to testify:
“There wasn't one witness for the defendant
that could speak to you and look you in the
eye and tell you the person that used this
rope and this knot was having a psychotic
episode or having some type of out-of-body
experience.” Second, the State said,
“[T]here's not been a consequence for that man
that sits over there who won't even look you
folks in the eye. . . . And hasn't the entire
trial.”
Id. (alterations in original).
The Supreme Court explained that, In the present case, the State's argument that
no witness could testify that defendant was
having a psychotic episode was merely a
comment on the witnesses who had testified.
The State was arguing that no defense witness
could testify concerning defendant's mental
state at the time of the killing. Because we
find no direct reference in this comment to
defendant's silence, we hold the trial court
did not err by failing to intervene ex mero
motu.
Similarly, as to the State's comment on
defendant's failure to look into the jurors'
eyes, we conclude this was merely a brief
reference to defendant's courtroom demeanor.
This comment cannot reasonably be read in a
manner that implicates the defendant's right
not to testify. As such, the trial court did
not err in handling this portion of the
State's argument.
Id. at 248-49, 570 S.E.2d at 479.
In State v. Fletcher, the Supreme Court held that there is no
violation of the right not to testify when a prosecutor makes
remarks that are “directed toward defendant's failure to offer
evidence to rebut the State's case, not at defendant's failure to
take the stand himself.” 348 N.C. 292, 322, 500 S.E.2d 668, 685
(1998). The prosecutor in Fletcher stated, in his closing
argument:
That's what happened. Somebody just pulled
that [storm] door open. Now do we know what
happened to that glass? We don't. It's one of
the many, many unanswered things about what
happened there in that house that night. Two
people know what happened in that house that
night. One of them is dead. The other one is
sitting right here. So I don't know.
Id. at 321, 500 S.E.2d at 685 (emphasis added) (alteration in
original). In a third case, the defendant objected to the prosecutor's
statement during closing arguments that “the evidence in this case
is there are only three folks that can tell what happened, you know
what, those three folks are dead and the person who did it.” State
v. Porter, 340 N.C. 320, 326, 457 S.E.2d 716, 718 (1995) (emphasis
in original). The Supreme Court
conclude[d] from the evidence presented in
this case that the prosecutor's statement that
only the three victims and the perpetrator
knew exactly what happened inside the mobile
home simply was the statement of a truism,
i.e. [sic], when only four people are present
at an event, only those four people can know
exactly what happened.
Id. at 328, 457 S.E.2d at 719.
After reviewing these cases, it is apparent that the
prosecutor's statements are more similar to those made in Fletcher
and Porter, which were held to be constitutional, than those made
in Baymon. The statements did not violate defendant's right not to
testify, and the trial judge did not abuse his discretion by
overruling defendant's objection to the prosecutor's statement.
B. Comments on silence during Sheriff Johnson's testimony
Defendant contends that he is entitled to a new trial because
the trial court erred by (1) permitting the prosecutor to ask, “Did
the defendant ever say to you or your deputy in your presence from
that date until now . . . that he had killed April Greer?”; (2)
failing to strike Sheriff Johnson's response, “He never said he
killed April Greer . . . to me or anyone in my presence.”; and (3)denying defendant's motion for mistrial based on the prosecutor's
question.
“[A] defendant's exercise of his constitutionally protected
rights to remain silent and to request counsel during interrogation
may not be used against him at trial. However, such a
constitutional error will not warrant a new trial where it was
harmless beyond a reasonable doubt.” State v. Elmore, 337 N.C.
789, 792, 448 S.E.2d 501, 502 (1994) (citations omitted).
A de
minimis violation of the right by itself would not constitute
reversible error. Id. at 792-93, 448 S.E.2d at 503.
At trial, defense counsel specifically took issue with the
form of the question and the State's inclusion of the phrase, “from
that date until now.” Defense counsel argued that this specific
“question implies that in a way that he ought to get up there and
say that he killed her. . . . He had a right to remain silent and
after he gave his statement, it was inappropriate to imply that by
exercising those rights that he had done something wrong . . . .”
We hold that the trial court did not err by denying
defendant's motion for a mistrial. Any violation of defendant's
rights was de minimis. The trial court reasoned that Sheriff
Johnson's testimony did not violate defendant's right to silence
because (1) the sheriff testified that his involvement in the case
ended after the interview with defendant, and (2) his answer “was
limited” to stating that defendant did not confess to the sheriff
or his deputies. The thrust of defendant's objection to this
testimony is the prosecutor's use of the words, “until now.” Sheriff Johnson's answer did not suggest that he had any contact
with defendant after the interview. It follows that defendant's
only opportunity to confess to Sheriff Johnson was during the
interview. It seems unlikely that the jury would have concluded
that defendant failed to seek out Sheriff Johnson and confess at
some later time.
II. The Credibility of Dr. Bellard
Defendant next argues that the prosecutor improperly attacked
Dr. James Bellard, a board-certified forensic psychiatrist and a
key defense witness, during cross-examination and closing argument.
Dr. Bellard testified about his evaluation and opinion of
defendant's state of mind at the time of the offense.
A. Cross-Examination
Defendant argues that the trial court erred by allowing the
State, over defense counsel's objection, to cross-examine Dr.
Bellard about why Dr. Bellard had not provided certain materials to
the State. Specifically, the State asked why Dr. Bellard had not
included “any raw data or handwritten notes that [he] had of [his]
meetings and interviews with the defendant or any other people that
[he] might have talked to such as his mother or his sister or
family members?” When asked why he had not given these notes to
the prosecution, Dr. Bellard answered, “I was not aware that [they
were] being requested. No request was made of me even by the
attorneys.” Dr. Bellard stated during this colloquy that he hadgiven the notes to defense counsel the night before his testimony.
When asked again, “And you didn't bring any notes and turn them
over to anybody until you gave them to the lawyers last night?” he
responded, “They were not requested.”
Defendant asserts that he complied with the discovery rules
and the court order to “notify the State and provide a written copy
of any report and curriculum vitae of [any expert witness]
sufficiently in advance before that witness is called to testify in
order to allow the State adequate opportunity to prepare for cross-
examination.” The defense decided to call Dr. Bellard as an expert
witness after his 11 February 2005 interview with defendant. Dr.
Bellard completed his report on 16 March 2005, and it was provided
to the State on 28 March 2005. Dr. Bellard testified on 12 May
2005.
Defendant also asserts that “even if the trial court had
properly found a discovery violation, the remedies for such a
violation do not include impeaching or attacking a witness in the
jury's presence.”
It is apparent from the transcript that the trial judge
was
not reviewing for discovery violations. He specifically stated,
“This is not a discovery hearing. You made an objection.
Sustained. Motion to strike was allowed.” The issue at hand is
whether the State improperly impeached Dr. Bellard by asking him
about his handwritten notes over defense counsel's objection.
The bounds of cross-examination are limited by
two general principles: 1) the scope of the
cross-examination rests within the sound
discretion of the trial judge; and 2) thequestions must be asked in good faith. A
prosecutor's questions are presumed to be
proper unless the record shows that they were
asked in bad faith. Abuse of discretion is
generally found when a prosecutor
affirmatively places before the jury an
incompetent and prejudicial matter by
injecting his own knowledge, beliefs, or
personal opinions or facts which are either
not in evidence or not admissible
.
State v. Bronson, 333 N.C. 67, 79, 423 S.E.2d 772, 779 (1992)
(citations omitted).
Although the State was impeaching Dr. Bellard's credibility by
insinuating that he had improperly withheld evidence from the
State, the record does not reflect that the questions were asked in
bad faith.
B. Closing Argument
Defendant also argues that the prosecution continued to
“exceed[] the bounds of relevance, admissibility, and truth” during
its closing arguments, when it again attacked Dr. Bellard's
credibility by discussing his billing rate and his destruction of
a mitigation report he had created after first seeing defendant.
Again, there is no evidence of bad faith on the part of the
prosecutor during his closing comments about Dr. Bellard's
credibility.
III. Cross-Examination of Dr. Bellard Regarding His Schedule
Defendant next argues that the prosecutor engaged in
“improper, prejudicial misconduct” by cross-examining Dr. Bellard
about his schedule, thereby revealing to the jury that Dr. Bellardand the defense were responsible for a delay during the previous
two days of trial. The jury was dismissed early on 10 May 2005 and
11 May 2005 because Dr. Bellard, one of defendant's last witnesses,
was testifying at another trial. The trial judge instructed the
jury to disregard the delays, which were “[d]ue to the matters
completely unrelated to the merits of this case,” and “not to let
any of the scheduling of these matters, that is bringing in,
recessing you to affect you in the consideration of this case.”
During cross-examination of Dr. Bellard on 12 May 2005, the
prosecutor asked the following questions:
Q Now, you testify in court on behalf of
defendants frequently, do you not?
A I'm sorry. Could you repeat?
Q You testify in court on behalf of
defendants frequently, do you not?
A Frequently, no. I evaluate people very
frequently. It's a big part of what I do
for a living. Testimony is fairly
infrequent.
Q How often? Go ahead.
A This is my second appearance in court
this year.
Q Second appearance in court this year?
A Yes.
Q Matter of fact, it's your second
appearance in court this week?
A Long one, yes, sir.
Q You were in _ what is it, Caldwell County
earlier this week?
A Yes, sir.
Q Monday?
A Tuesday.
Q And Tuesday?
A And Wednesday.
Q And you finished up at what time
yesterday?
A Noon.
[DEFENSE]: Objection to that, Your Honor.
THE COURT: Sustained
Q All right.
The trial court made no limiting instructions to the jury
after sustaining defense counsel's objection, but no such
instruction was requested. Defendant submits that “[t]he
prosecutor intentionally subverted the trial court's earlier
instruction to the jury which had attempted to shield the defense
from taking blame for the trial delays.” In addition, defendant
argues that this improper questioning “[c]onsidered alone, and in
combination with the other improper questioning,” caused
“significant prejudice to the defense. As discussed above, Dr.
Bellard was the key witness on the issue of whether [defendant] was
capable of premeditation and deliberation when he stabbed Ms.
Greer, and thus whether he was guilty of first- or second-degree
murder.”
Defendant did not preserve this issue for appeal because his
objection to the final question in the colloquy was sustained and
he did not argue plain error with respect to the other questions.
This Court will not review the propriety of
questions for which the trial court sustained
a defendant's objection absent a further
request being denied by the court. No
prejudice exists, for when the trial court
sustains an objection to a question the jury
is put on notice that it is not to consider
that question. Accordingly, any error alleged
by defendant to result from these questions is
not properly before the Court . . . .
State v. Roache, 358 N.C. 243, 296, 595 S.E.2d 381, 415 (2004)
(citations omitted).
“Our Supreme Court has recently held that when a defendant
fails to '“specifically and distinctly” allege plain error as
required by North Carolina Rule of Appellate Procedure 10(c)(4),
defendant is not entitled to plain error review of this issue.'”
State v. Buff, 170 N.C. App. 374, 378, 612 S.E.2d 366, 370 (2005)
(quoting State v. Dennison, 359 N.C. 312, 312-13, 608 S.E.2d 756,
757 (2005)). Here, defendant did not allege or argue plain error
in his brief, and so we are precluded from such review.
IV. Testimony of Dr. Barkenbus
In his final argument, defendant avers that
the trial court
erred by allowing Dr. John Barkenbus, a resident psychiatrist at
UNC Hospitals, to testify as to whether personality disorder would
have prevented someone from formulating a plan or the specific
intent to kill. Dr. Barkenbus was called by the State to testify
about his treatment of April Greer for bipolar disorder, and about
bipolar disorder generally. The following exchange occurred
between the prosecutor and Dr. Barkenbus:
Q Dr. Barkenbus, there isn't anything that
you're aware of with respect to someone
having a personality disorder that would
prevent them from making and carrying out
a plan, is there?
A Repeat the question, sir.
Q There isn't anything in and of itself
about any of the personality disorders
that you're aware of that would prevent a
person from making and carrying out a
plan, is there?
[DEFENSE]: Objection.
COURT: Over-ruled.
A No.
Q Or forming the specific intent to kill,
is there?
[DEFENSE]: Objection.
COURT: Over-ruled.
A I'm sorry, what was that?
Q There's not anything about any of the
characteristics of the personality
disorders that would prevent someone from
forming a specific intent to kill, is
there?
[DEFENSE]: Objection.
COURT: Over-ruled.
A That would prevent them from?
Q Being able to form a specific intent to
kill, intent to kill someone?
A No.
[DEFENSE]: Motion to strike.
COURT: Motion denied.
Defendant failed to preserve this issue for appeal because
defense counsel made only general objections. “In order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context.” N.C.R. App. P. 10(b)(1) (2007). “In the absence of a
special request to qualify a witness as an expert, a general
objection to specific opinion testimony will not suffice to
preserve the question of the expert's qualifications, even on
ultimate issues.” State v. Hamilton, 77 N.C. App. 506, 509, 335
S.E.2d 506, 508-09 (1985) (citing State v. Hunt, 305 N.C. 238, 287
S.E.2d 818 (1982)).
Accordingly, we do not review this issue because it has not
been preserved for appeal.
For the forgoing reasons, we hold that defendant received a
trial free from error.
No error.
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).
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