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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.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2008
STATE OF NORTH CAROLINA
No. 06 CRS 054866
TRACY BRAXTON LAWSON
Appeal by defendant from judgment entered 13 June 2007 by
Judge James C. Spencer, Jr., in Alamance County Superior Court.
Heard in the Court of Appeals 19 August 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Sofie W. Hosford for defendant appellant.
On 13 June 2007, a jury convicted Tracy Braxton Lawson
(defendant) of first-degree murder for killing her husband, Andy
Lawson. On appeal, defendant contends that the trial court erred
by (1) allowing the prosecutor to make improper statements during
the State's opening statement and closing argument, (2) failing to
exclude defendant's records with the Board of Nursing and her use
of prescribed pain medications, (3) failing to instruct the jury
with the complete pattern jury instruction on self-defense, (4)
denying defendant's request for a directed verdict of not guilty,
and (5) allowing a fatally defective indictment. We will also
address defendant's motion to strike the State's statement of factscontained in its appellate brief. After careful review, we deny
defendant's motion and find no prejudicial error in her trial.
I. Defendant's Motion to Strike
We begin by addressing defendant's motion to strike the
State's statement of facts section in its appellate brief.
Defendant argues that many of the alleged facts contained in the
State's brief are unsupported by the evidence at trial and are
argumentative in nature in violation of Rule 28(b)(5) of the North
Carolina Rules of Appellate Procedure. Rule 28(b)(5) requires that
an appellant's brief contain a nonargumentative summary of all
material facts underlying the matter in controversy[.] N.C. R.
App. P. 28(b)(5) (2008). We deny defendant's motion and note that
none of the contested facts are relevant in our determination of
the matters being appealed.
On 17 July 2006, defendant was indicted for first-degree
murder by an Alamance County Jury for the 11 June 2006 killing of
her husband, Andy Lawson. Defendant was tried at the 4 June 2007
Criminal Session of Alamance County Superior Court, the Honorable
James C. Spencer, Jr., presiding. On 13 June 2007, a jury found
defendant guilty of first-degree murder and defendant was sentenced
to life imprisonment without parole.
The State's evidence at trial tended to show the following:
On 11 June 2006, the Alamance County Sheriff's Department responded
to a disturbance call at 3110 Newlin Road in Snow Camp (the Lawson
home). The police arrived at the Lawson home at 4:20 a.m. andfound Mr. Lawson, who was later determined to be dead, lying at the
top of the stairs with wounds to his head. Mr. Lawson's right hand
and head were partially in the hallway and the rest of his body was
in the master bedroom.
In the master bedroom, the police found a small table
overturned and a telephone lying on the floor. The bedding was
balled up and there was a bloodstain at the top of the bed. There
was a loaded .357 revolver in the dresser and there were five
rifles, most of which were antiques, in the closet.
In the adjacent bedroom, police found a post driver, with a
red sweater wrapped around it. The police also found clothes that
defendant had worn that night with bloodstains.
An autopsy revealed that Mr. Lawson had died as a result of
blunt force trauma and at least two blows to his head. It was later
determined that the abrasions on Mr. Lawson's head were consistent
with the woven pattern of the red sweater that was wrapped around
the post driver.
Subsequent testing revealed that there was no blood on the
post driver but that the blood on the red sweater wrapped around it
belonged to Mr. Lawson. The blood on one of defendant's shirts
matched defendant's and to a lesser degree, Mr. Lawson's.
At the time of Mr. Lawson's death, he and defendant
(collectively the Lawsons) had been married for approximately
seven years and had a four-year-old daughter. Defendant suffered
from arthritis, spinal stenosis, and chronic back pain. Defendant's physician prescribed her medications to alleviate her
The State offered several witnesses who testified that the
Lawsons had been experiencing financial problems. The Lawsons had
declared bankruptcy in April 2002. After defendant's nursing
license was suspended in January of 2006, her income from her job
at Wal-Mart was significantly less than her previous income as a
Upon Mr. Lawson's death, defendant was the beneficiary of his
retirement and life insurance benefits, which were provided through
his employer. His retirement benefits were worth nearly $40,000.00
and his life insurance benefits were about $57,000.00. Three or
four weeks before Mr. Lawson's death, in the wake of a family
member's hospitalization, the Lawsons discussed life insurance.
Mr. Lawson's brother testified that Mr. Lawson said that he had
good life insurance and that defendant and their daughter would be
taken care of if anything ever happened to him. Defendant then
told Mr. Lawson, you better hope and pray nothing ever happens to
[you.] Mr. Lawson's brother testified that defendant sounded
halfway joking when she made the statement.
At trial, defendant claimed that she killed Mr. Lawson
completely in self-defense. She testified that Mr. Lawson was
physically abusive and described an incident within six months of
his death where he hit her in the face with his elbow. A few
months prior to Mr. Lawson's murder, defendant began telling some
of her coworkers at Wal-Mart about the physical abuse. Defendantsaid that Mr. Lawson kept several loaded guns in their home and
also provided testimony from his ex-wife that he was violent.
Defendant claimed that she was not aware of Mr. Lawson's life
On 10 June 2006, defendant discovered the post driver in her
dining area after it had fallen onto the floor near her daughter's
doll house. She carried the post driver upstairs with a pile of
clothes in order to keep it away from her daughter. She placed the
post driver near the doorway in the spare bedroom and wrapped her
red sweater around it to cover the rough edges .
Around midnight that evening, she and Mr. Lawson went to bed
in the master bedroom with their daughter. After a while, defendant
became uncomfortable and went downstairs to watch television. Mr.
Lawson later came downstairs and told defendant that she needed to
come to bed. After having further difficulty sleeping, defendant
returned downstairs. Mr. Lawson came downstairs again accusing
defendant of talking on the telephone and slapped her on the back
of her head. He started cursing and shoved her against the wall as
she tried to go upstairs. Mr. Lawson's eyes became red and the
veins in forehead and neck were bulging out.
When Mr. Lawson walked up the stairs, he told defendant he was
going to put her out of her misery and she believed that he was
going to kill her. Mr. Lawson walked towards the dresser in the
master bedroom which contained a handgun. In response, defendant
grabbed the first thing she could see which was the post driver
lying in the doorway. As Mr. Lawson reached for the dresserdrawer, defendant struck him in the back of the head with the post
driver. Mr. Lawson then pushed defendant to the foot of the bed
and a struggle ensued causing the Lawsons to roll onto the floor.
When Mr. Lawson began to reach towards defendant, she grabbed the
post driver and hit him in the back of the head again. After Mr.
Lawson collapsed, defendant called 911 and told the dispatcher that
her husband was trying to kill her, she had hit him, and was unsure
if he was dead. Defendant took her daughter and drove to her
sister's house, leaving Mr. Lawson lying face down on the floor.
At trial, the State asserted that the substantial decrease in
defendant's income, which resulted from her dependency to pain
medications and loss of her nursing license, related to her
financial motive to kill Mr. Lawson. Defendant objected to
introduction of her records with the Board of Nursing, which the
trial court denied. Jean Carter, a registered nurse and
administrator at White Oak Manor testified that she employed
defendant in June of 2005 and that defendant was compensated
between $22.00 to $25.00 an hour. During this time, defendant was
being prescribed Vicoprofen and Alprazolam for her pain. Her
physician directed her to take one to two Vicoprofen tablets every
six hours as needed and prescribed her 100 pills with three
Ms. Carter testified that on one occasion she felt that
defendant appeared drugged or something. As a condition of
defendant's employment, defendant submitted to a drug test and told
her employer that she expected the drug test to be positive due toher prescription medications. Because the drug testing facility
did not have information verifying defendant's prescriptions, it
reported to defendant's employer that she had tested positive for
drugs. As a result, Ms. Carter filed a complaint with the North
Carolina Board of Nursing on 10 August 2005. Defendant did not
attempt to clear her drug test or apply for a restricted license.
On 19 August 2005, defendant wrote a letter to the Board of
Nursing surrendering her nursing license due to need for treatment
of chemical dependency and requested to be evaluated and
considered for the alternative program that may assist me in
treatment and recovery of this disease. Defendant enrolled in an
alternative program for chemical dependency with the Board of
Nursing on 14 September 2005. The trial court allowed the State to
introduce documents that defendant had completed through this
program in which defendant admitted to abusing pain medications.
In one of the documents, defendant stated that the following
incidents had resulted from her addiction: Lost nursing license,
lost job, financial difficulties. Defendant continued to work
with the alternative program until she contacted the Board of
Nursing on 4 January 2006 and requested to terminate her contract
with the program because of financial problems. As a result,
defendant would not be permitted to regain her nursing license
without completing a year-long reinstatement process and paying
anywhere from $750.00 to $1,400.00 for the costs of the program
Kay McMullan, the Director of Investigations and Monitoring
Department at the North Carolina Board of Nursing, testified thatdefendant's nursing license was suspended on 10 January 2006.
Defendant started working at the Wal-Mart in Mebane on 3 January
2006 and earned between $7.40 and $7.80 an hour.
III. Prosecutor's Statements
In her first argument on appeal, defendant claims that the
trial court erred in allowing the prosecutor to make improper and
unethical statements to the jury during his opening statement and
closing argument. After careful review, we do not find prejudicial
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). This
Court will only find an abuse of discretion if we determine that
the trial court's ruling could not have been the result of a
reasoned decision. State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d
867, 875 (1996).
When a defendant fails to object during the State's closing
argument, 'our review is limited to whether the argument was so
grossly improper as to warrant the trial court's intervention ex
mero motu.' State v. Nicholson, 355 N.C. 1, 41, 558 S.E.2d 109,
137 (citation omitted), remanded, 355 N.C. 209, 560 S.E.2d 355,
cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002), cert. denied,
359 N.C. 855, 619 S.E.2d 859 (2005). Such action is required of
the trial court only if the State's 'argument strays so far from
the bounds of propriety as to impede defendant's right to a fairtrial.' State v. Smith, 351 N.C. 251, 269, 524 S.E.2d 28, 41
(1999)(citation omitted), cert. denied, 531 U.S. 862, 148 L. Ed. 2d
[C]ounsel are given wide latitude in arguments to the jury
and are permitted to argue the evidence that has been presented and
all reasonable inferences that can be drawn from that evidence.
State v. Richardson, 342 N.C. 772, 792-93, 467 S.E.2d 685, 697,
cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). However,
[a] prosecutor should refrain from making characterizations
relating to a defendant which are calculated to cause prejudice
before the jury 'when there is no evidence from which such
characterizations may legitimately be inferred.' State v.
Thompson, 118 N.C. App. 33, 43, 454 S.E.2d 271, 277 (quoting State
v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975)), disc.
review denied, 340 N.C. 262, 456 S.E.2d 827 (1995).
Defendant first assigns error to a remark made by the
prosecutor in the State's opening statement. Defendant asserts
that the State attempted to shift the burden to defendant when the
prosecutor said, Use your reason and your common sense because for
everything that I've put forth, for every detail, for every fact
the State puts forth, [defendant's] got to answer for or she will
attempt to answer for. Defendant provided a timely objection at
trial, which the trial court overruled. In context, it appears
that the prosecutor was simply trying to explain to the jury that
defendant was going to try to rebut the State's evidence.
Furthermore, the record indicates that the trial court correctlyinstructed the jury that the State had the burden of proof and
therefore, we cannot find an abuse of discretion.
Defendant also assigns error to several statements made by the
prosecutor during the State's closing argument, claiming that the
prosecutor improperly commented on defendant's character and
veracity, expressed his personal beliefs, appealed to the jury's
sympathies, and argued facts outside the record.
Defendant assigns error to the prosecutor's statement about
witness Sherman Betts when he stated, [t]he fact that Sherman
Betts thought that much of Andy Lawson, I believe he probably can
see a little bit beyond what somebody presents in their exterior.
When the prosecutor pointed out that defendant's attorney did not
have some of defendant's clothing tested, defendant asserts that it
was improper for the prosecutor to say [t]he reason he didn't have
it tested is because he knows what he's going to find.
Additionally, defendant assigns error to the following statement:
You let her get go now, she's untouchable,
untouchable. All she's got to do is get past
you, ladies and gentlemen. You're like the
goalie in hockey. If she can get the puck
past you, she's home free. And not only is
she home free, it's up to you as to whether or
not she collects $98,000 in addition to being
'Fair consideration must be given to the context in which the
remarks were made and to the overall factual circumstances to which
they referred.' State v. Gibbs, 335 N.C. 1, 64, 436 S.E.2d 321,
357 (1993) (citations omitted), cert. denied, 512 U.S. 1246, 129 L.
Ed. 2d 881 (1994). In the context of the entire argument, we donot believe that any statements in the closing argument had an
unduly prejudicial effect as to require a new trial.
Defendant also assigns error to several additional statements
made by the prosecutor, which defendant did not object to during
trial. Defendant contends that the prosecutor improperly stated
his personal opinion on defendant's credibility when referring to
defendant's testimony when he said that [y]ou ain't ever seen a
work of fiction sit that long since Gone With the Wind. He also
compared defendant's version of the events to the Friday the 13th
movies stating that:
Do you really using your common sense believe
that [Mr. Lawson] appeared to be a threat to
[defendant] when he received that hematoma and
the four by six-inch bruise to his skull?
To believe that, you would have to pretty
much believe in all of the Friday the 13th
movies where the man goes from looking dead to
springing right back up and into action, and
that's just not the case.
In the case sub judice, it was permissible for the prosecutor to
argue to the jury as to why it should not believe defendant. See
State v. Bunning, 338 N.C. 483, 489-90, 450 S.E.2d 462, 464-65
(1994) (holding no error when the prosecutor asked the jury to
conclude the defendant was lying). Even when a prosecutor's
remarks are clearly improper, defendant carries the heavy burden
of showing that the trial court erred in not intervening on his
behalf. See State v. Nance, 157 N.C. App. 434, 442-43, 579 S.E.2d
456, 461-62 (2003) (finding that although the prosecutor should
not have called the defendant a liar, it did not result insufficient prejudice to warrant a new trial). It appears that the
prosecutor was just giving reasons to the jury, in his closing
argument as to why it should believe the State's evidence over
defendant's testimony. None of these statements, individually or
collectively, are so grossly improper that defendant was denied due
process of law; therefore, we cannot find that the trial court
erred in failing to intervene ex mero motu.
IV. Failure to Exclude Evidence
In her second argument on appeal, defendant argues that the
trial court erred by failing to exclude certain evidence.
Specifically, defendant contends that allowing her records with the
Board of Nursing and her use of prescription pain medications into
evidence was unduly prejudicial. After careful review of the
record, we do not find an abuse of discretion.
Rule 403 of this State's Rules of Evidence excludes relevant
evidence if its probative value is substantially outweighed by the
danger of unfair prejudice. N.C. Gen. Stat. § 8C-1, Rule 403
(2007). Whether or not to exclude evidence under Rule 403 of the
Rules of Evidence is a matter within the sound discretion of the
trial court and its decision will not be disturbed on appeal absent
a showing of an abuse of discretion. State v. McCray, 342 N.C.
123, 131, 463 S.E.2d 176, 181 (1995). [T]he trial court's ruling
should not be overturned on appeal unless the ruling was
'manifestly unsupported by reason or [was] so arbitrary that it
could not have been the result of a reasoned decision.' State v.Goode, 350 N.C. 247, 258, 512 S.E.2d 414, 421 (1999) (citation
Over defendant's objection, the trial court accepted into
evidence approximately ten exhibits, as well as defendant's
testimony about the suspension of her nursing license and her prior
abuse of pain medications. Defendant argues that the prejudicial
nature of this evidence exceeded its probative value as the State
attempted to portray defendant as a desperate drug addict.
At trial, the State asserted that defendant's loss of
employment, surrender of her nursing license, and financial
problems were all probative of her motive to kill Mr. Lawson for
his retirement and life insurance money. Before admitting this
evidence, the jury was excused and the trial court carefully
considered the State's evidence and allowed both parties to speak
on the matter. The trial court reviewed approximately 90 pages of
documentary evidence and heard in voir dire the potential testimony
of Kay McMullan. The trial court excluded much of the evidence
presented by the State, but explained its reasons for allowing
portions of defendant's records with the Board of Nursing and her
history of using prescription pain medications when it stated the
[T]he Court believes that that evidence
[regarding] the reason for the loss of
[defendant's] job, the reason for the result
of the loss of nursing license and consequence
of her inability to secure a comparable job
. . . is evidence [of] defendant's need for
money, which would be admissible to show
motive as well as possible intent and to rebutthe claim of self-defense in as far as the
need for money is concerned.
The trial court permitted the State to introduce defendant's self-
report that she had completed after enrolling in the alternative
program. The trial court found it relevant that in her self-
report, she disclosed that her history of prescription drug abuse
resulted in the loss of her job and financial problems. She also
disclosed that her family and financial issues/relationships
[were] strained but slowly improving and that her support system
was strained due to two immediate family members with acute health
problems but that her [s]pouse [was] more supportive. The State
asserts that this evidence was admissible to show that defendant
did not report Mr. Lawson's alleged abuse and that contrary to her
testimony, she referred to Mr. Lawson as supportive. Due to the
trial court's explanation that this evidence demonstrated motive as
well as the extensive consideration that it gave each exhibit, we
cannot hold that the trial court's ruling was not the result of a
reasoned decision. We overrule this assignment of error.
III. Jury Instructions
Defendant contends that, because the trial court abused its
discretion by failing to provide the complete requested pattern
jury instruction on self-defense, defendant argues that as a result
of this error, she was denied a fair trial and due process of law.
Assuming arguendo that this assignment of error is properly before
this Court, we find no error. As defendant failed to object to the alleged instructional
error at trial, this Court's review is limited to whether the trial
court's instructions amounted to plain error. See N.C. R. App. P.
10(c)(4). In deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt. State v. Odom,
307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).
In the case sub judice, the trial court gave the pattern jury
instruction, which defendant requested, but omitted the last
paragraph which provided the following:
And finally, if the State has failed to
satisfy you beyond a reasonable doubt that the
defendant did not act in self-defense then the
defendant's action would be justified by self-
defense; therefore, you would return a verdict
of not guilty.
N.C.P.I. Crim. 206.10. If a request for a special instruction is
made and is supported by the evidence, the court is not required to
give the requested instruction verbatim; rather, it suffices if the
requested instruction is given in substance. State v. Dodd, 330
N.C. 747, 753, 412 S.E.2d 46, 49 (1992). In this case, the trial
court properly instructed the jury on elements of self-defense and
that the State had the burden to prove each element. Specifically,
the trial court conveyed the substance of the omitted instruction
when it told the jury that defendant would not be guilty of any
murder or manslaughter, if she acted in self-defense as I've just
defined it to be[.] We hold that there was no error in theomission of the specified language and overrule this assignment of
IV. Failing to Enter Directed Verdict
Defendant asserts that the trial court erred in denying her
request for a directed verdict of not guilty. She argues that the
State was unable to present sufficient evidence that she did not
act in self-defense. We disagree.
The standard of review for a motion for a directed verdict is
the same as that for a motion to dismiss. See State v. Ingle, 336
N.C. 617, 630, 445 S.E.2d 880, 886 (1994) (stating that it is well
settled that a motion to dismiss and a motion for a directed
verdict have the same effect), cert. denied, 514 U.S. 1020, 131 L.
Ed. 2d 222 (1995). A trial court should deny a motion to dismiss
if, considering the evidence in the light most favorable to the
State and giving the State the benefit of every reasonable
inference, there is substantial evidence of each essential element
of the offense charged and of the defendant being the perpetrator
of the offense. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d
920, 925 (1996). Substantial evidence is relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion. Id. [T]he rule for determining the sufficiency of
evidence is the same whether the evidence is completely
circumstantial, completely direct, or both. State v. Wright, 302
N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
The elements required for conviction of first-degree murder
are (1) the unlawful killing of another human being, (2) withmalice, and (3) with premeditation and deliberation. State v.
Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001).
The intentional use of a deadly weapon gives rise to a presumption
that the killing was unlawful and that it was done with malice.
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984).
A killing is premeditated if the defendant formed the specific
intent to kill the victim some period of time, however short,
before the actual killing. State v. Bonney, 329 N.C. 61, 77, 405
S.E.2d 145, 154 (1991). 'Deliberation' means an intent to kill
executed by the defendant in a cool state of blood, in furtherance
of a fixed design for revenge or to accomplish an unlawful purpose
and not under the influence of a violent passion, suddenly aroused
by lawful or just cause or legal provocation. Id.
The evidence, when looked at in the light most favorable to
the State, is sufficient. Evidence of malice could be inferred
from the fact that defendant admitted to killing Mr. Lawson by
hitting him in the back of the head with a post driver. The fact
that defendant had brought the post driver upstairs earlier in the
day could support an inference of premeditation and deliberation.
The State also put forth evidence that the Lawsons had been
experiencing financial problems and that defendant was aware that
she was the beneficiary to Mr. Lawson's retirement and life
insurance benefits. This evidence was sufficient to allow a jury
to decide whether defendant was guilty of first-degree murder. As
such, the trial court acted properly in denying defendant's motion,
and we overrule this assignment of error.
V. Short-Form Indictment
Defendant contends that the short-form indictment charging her
with first-degree murder is fatally defective. The indictment at
issue alleges that defendant unlawfully, willfully and feloniously
and of malice aforethought did kill and murder ANDY LAWSON[.]
This indictment properly complies with N.C. Gen. Stat. § 15-144,
the statute authorizing the use of short-form indictments for
murder, which provides that it is sufficient in describing murder
to allege that the accused person feloniously, willfully, and of
his malice aforethought, did kill and murder (naming the person
killed)[.] N.C. Gen. Stat. § 15-144 (2007). Our Supreme Court
has consistently held that indictments for murder based on the
short-form indictment statute are in compliance with both the North
Carolina and United States Constitutions. See State v. Braxton,
352 N.C. 158, 174-75, 531 S.E.2d 428, 437 (2000), cert. denied, 531
U.S. 1130, 148 L. Ed. 2d 797 (2001); State v. Wallace, 351 N.C.
481, 504-05, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148
L. Ed. 2d 498 (2000), cert. denied, 360 N.C. 76 (2005); State v.
Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624, 628 (1996).
Therefore, this assignment of error is overruled.
Based on the aforementioned reasons, we find no error in
Judges McGEE and STROUD concur.
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