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State v. Gaines4/11/1997
e that the "gasp" was what drew Penegar's attention to the victim. Second, defendant points to the prosecutor's arguments that after the victim was shot, the victim looked out the window and saw defendant Harris and Coleman leaving their lookout positions. Defendant argues that there was no evidence to support the inference that the victim saw Harris and Coleman coming out of positions of hiding or that Harris and Coleman were lookouts. Third, defendant points to the prosecutor's argument that Gaines fled with the shotgun stuck up under his coat, hiding the gun, and that Coleman and Harris came out of their "look-out" positions and ran out of the parking lot. Fourth, defendant points to the argument that the three men went to the fence near the La Quinta Inn as quickly as possible to get to their getaway vehicle. Fifth, defendant points to the prosecutor's argument that "something put it into Officer Griffin's mind" that these three men were dangerous, as evidenced by the fact that Griffin got their license-tag number. Sixth, and finally, defendant argues that the prosecutor misstated the law by arguing that when defendant took the gun and hid it, that constituted acting in concert, aiding and abetting, and first-degree murder.
We first note that defense counsel did not object to these six arguments at trial. Counsel is given wide latitude in the argument of hotly contested cases and may argue all the facts in evidence and any reasonable inferences that can be drawn therefrom. Williams, 317 N.C. 474, 346 S.E.2d 405. In the absence of any objection at trial to a jury argument, the standard of review to determine if the trial court erred by not intervening ex mero motu is whether the prosecutor's argument was so grossly improper that it interfered with defendant's right to a fair trial. State v. Sexton, 336 N.C. 321, 362, 444 S.E.2d 879, 902, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994). In the instant case a review of the arguments in context reveals that the prosecutor's arguments were not so grossly improper as to require the trial court to intervene ex mero motu. This assignment of error is overruled.
Defendant next contends the trial court erred in denying defendant Gaines' motion for a jury view, which defendant Harris joined. This contention is without merit. The decision to grant a motion for a jury view is within the discretion of the trial court. State v. Simpson, 327 N.C. 178, 393 S.E.2d 771 (1990). In the instant case the trial court denied the motion on the grounds that the photographs and the measurements submitted by the parties were sufficient to enable the jury to reconstruct the scene and circumstances of the crime. The trial Judge did not abuse his discretion by denying the request for a jury view, and this assignment of error is overruled.
Defendant next argues that the trial court erred in instructing the jury that defendant had confessed to some of the acts charged. The trial court instructed the jury, over defendant's objection, as follows:
There is evidence which tends to show that the Defendant Gaines and/or the Defendant Harris made a statement that purports to confess to some of the acts or the acts charged in these cases. And if you find that the Defendant Gaines and/or the Defendant Harris made a statement or a confession, if you find it to be that, to that extent, or to the extent that some of the acts have been confessed to that they are charged, each and/or both of them are charged with in these cases, then you should consider all the circumstances under which those statements were made in determining whether or not they were truthful confessions as they apply to those two defendants individually and respectively, and the weight that
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