State v. Cole6/13/1996
ecutor's closing argument. In this portion, the prosecutor argued that the jury should discredit Dr. Grover's testimony. After examination of this portion of the prosecutor's argument, we conclude that it was not improper and, therefore, certainly was not so improper as to require the Judge to intervene ex mero motu. As we stated in State v. Solomon, 340 N.C. 212, 456 S.E.2d 778, cert. denied, U.S. , 133 L. Ed. 2d 438 (1995), " prosecutor may properly argue to the jury that it should not believe a witness." Id. at 220, 456 S.E.2d at 784. Accordingly, defendant's sixth argument is rejected.
As his seventh argument, defendant contends that the trial court committed plain error by permitting the State to elicit irrelevant and prejudicial testimony about defendant's brother, Prince Cole. Defendant called Captain W.O. Leary of the Elizabeth City Police Department as a character witness. On direct examination, Leary testified that he knew defendant and that he had been to defendant's home when defendant lived in Elizabeth City. Leary also testified that he knew defendant's mother and brother, who had lived with defendant in Elizabeth City. On cross-examination, the State elicited testimony that Leary knew defendant's brother, Prince, because he had arrested him on a number of occasions.
Defendant did not object to this line of questioning at trial and now asks this Court to order a new trial under the plain error rule. As we have stated previously,
the plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that Justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "'resulted in a miscarriage of Justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the . . . mistake 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) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)), quoted in State v. Weathers, 339 N.C. 441, 450, 451 S.E.2d 266, 271 (1994). This is not the exceptional case where, after reviewing the entire record, we can say that the claimed error is so fundamental that Justice could not have been done. Accordingly, we reject defendant's seventh argument.
Defendant contends in his eighth argument that the trial court erred by submitting as an aggravating circumstance that the capital murder was part of a violent course of conduct that included defendant's commission of another crime of violence against another person. Defendant first contends that there was insufficient evidence of the other crime of violence. Because we have already found that there was sufficient evidence of the other crime of violence against another, to wit, involuntary manslaughter with regard to Hattie Graham, we reject this contention. Defendant also contends that the assault on Hattie Graham was not part of a single course of conduct involving the capital murder. We disagree.
Submission of the course of conduct aggravating circumstance is proper when there is evidence that the victim's murder and other violent crimes were part of a pattern of intentional acts establishing that there existed in defendant's mind a plan, scheme, or design invo
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 North Carolina DUI Attorneys
DUI Lawyers
|