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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-908

NORTH CAROLINA COURT OF APPEALS

Filed: 21 August 2007

STATE OF NORTH CAROLINA

v .                         Alamance County
                            No. 03 CRS 53654
JERRY LYNN STUART, JR.

    Appeal by defendant from judgment entered 24 May 2005 by Judge W. Osmond Smith III in Alamance County Superior Court. Heard in the Court of Appeals 10 April 2007.

    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).


Footnote: 1
     The case was declared capital at a Rule 24 hearing on 23 June 2003, but the jury recommended a life sentence without parole rather than execution.

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