State v. Tyler6/6/1997
record and the mode of its preparation, and show that the entries were made at or near to the time of the act, condition or event recorded, that they were made by persons having knowledge of the data set forth, and that they were made ante litem motam. The court should exclude from jury consideration matters in the record which are immaterial and irrelevant to the inquiry, and entries which amount to hearsay on hearsay.
Sims, 257 N.C. at 35, 125 S.E.2d at 328 .
In the instant case, the records detailed the victim's treatment, progress, deterioration, and death. Rosenfeld testified that she was a registered nurse working in the burn-trauma unit of Sentara Norfolk General Hospital, that she was familiar with Fleetwood's medical records, that the records were made during Fleetwood's stay at Sentara Norfolk General Hospital, that the records were kept contemporaneously with Fleetwood's care, and that the records were kept by the hospital in the regular course of the hospital's business. Thus, the State laid a proper foundation for the introduction into evidence of Fleetwood's medical records. Accordingly, we reject these assignments of error.
By two assignments of error, defendant argues that the trial court erred by permitting a prosecutor to make grossly improper statements during closing argument. Defendant objected to only one of these allegedly improper statements.
The arguments of counsel are left largely to the control and discretion of the trial Judge, and counsel will be granted wide latitude in the argument of hotly contested cases. State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992). "Counsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom." State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). Where a defendant does not object at trial, "review is limited to an examination of whether the argument was so grossly improper that the trial Judge abused his discretion in failing to intervene ex mero motu." State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166, 107 S. Ct. 241 (1986). Therefore, this Court's duty is limited as follows:
Where defendant fails to object to an alleged impropriety in the State's argument and so flag the error for the trial court, "the impropriety . . . must be gross indeed in order for this court to hold that a trial Judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it."
State v. Abraham, 338 N.C. 315, 338, 451 S.E.2d 131, 143 (1994) (quoting State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979)) (alteration in original). In determining whether the prosecutor's argument was grossly improper, this Court must examine the argument in the context in which it was given and in light of the overall factual circumstances to which it refers. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, U.S. , 134 L. Ed. 2d 100, 116 S. Ct. 1021 (1996).
In the instant case, during his closing argument, the prosecutor stated, "And I submit to you that if that child had seen her mother's face and started going off in there, who knows what would have happened to them. That's what the evidence shows." Defendant did not object to this argument at trial. However, on appeal, defendant maintains that this argument is entirely speculative, with no basis in the record. Defendant further argues that there is no evidence to support an inference that the victim concealed her face from her children to prevent a scene in which defendant might assault h
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