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State v. Gaines4/11/1997
hether the allegedly improper argument was so prejudicial and grossly improper as to interfere with defendant's right to a fair trial." State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995). In view of the wide latitude accorded counsel in closing argument and the substantial evidence against defendant, we cannot conclude that the argument at issue meets this test. These assignments of error are overruled.
Defendant Gaines next contends the prosecutor "improperly attacked defense counsels['s] integrity and credibility" during the State's closing argument. Defendant contends the argument violated settled rules of court as well as defendant's state and federal constitutional right to the effective assistance of counsel.
Defendant specifically points to three arguments for which he contends the trial court erred in failing to intervene ex mero motu. First, defendant contends the prosecutor emphasized the fact that defense counsel vigorously cross-examined the motel clerk, Kevin Penegar, regarding his testimony that he had seen defendants and Coleman at the motel earlier the
night of the shooting when the defense evidence had established the same fact. The prosecutor argued:
So why cross examine Kevin Penegar like that if they knew that was true? You know why they did that? To confuse you. That's why. To confuse you. That's what they're doing. That's what they're up to.
Defendant next points to a portion of the closing argument where the prosecutor responded to an argument made by the defense, wherein defense counsel had argued that shotgun wadding, which was found three feet from the door, was found in that position because it had bounced off the victim, who was headed toward defendant at the door. In response to the argument, the prosecutor argued that the evidence showed that the wadding was found there because paramedic Keller had taken it out of the victim's chest and put it on the floor. The prosecutor then argued:
So if you believe that [Keller] removed that wadding from inside the wound, then what Mr. Cooney said to you cannot be true. And when you decide which lawyer you're going to follow, you think about that. Because he sat there and he heard Mr. Keller testify. But now he's making stuff up. Making stuff up. Don't believe it. Don't believe it. It stumbles and it falls.
Finally, defendant takes issue with the prosecutor's argument that "the physical evidence does not lie in this case. Defendant Gaines' lawyers are trying to show you that it lies, but it doesn't."
Prosecutors are given wide latitude in the scope of their argument. State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d 118, 144, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341, 114 S. Ct. 392 (1993). In addition, the arguments of counsel are left largely to the control and discretion of the trial Judge. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). In the instant case defendant did not object to the above arguments at trial. Thus, "the standard we employ is whether the statements amounted to such gross impropriety as to require the trial Judge to act ex mero motu." Oliver, 309 N.C. 326 at 356, 307 S.E.2d 304 at 324. The prosecutor is entitled to argue any reasonable inference to be drawn from the evidence and to rebut defense counsel's argument. After reviewing the challenged statements in their context, we conclude that they were not grossly improper. This assignment of error is overruled.
Finally, defendant Gaines contends that the trial court erroneously used the word "victim" when referring to Griffin throughout its jury instructions and erroneously instructed the jury that Griffin was "the victim." Defe
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