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North Carolina v. Robinson10/3/1991
State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980).
The State argues that there was no evidence showing a lack of premeditation, deliberation and intent to kill; thus, there was
no requirement to submit a second-degree murder verdict. We agree. In State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983), overruled in part on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986), this Court held:
If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
307 N.C. at 293, 298 S.E.2d at 658. Defendant presented no evidence to negate premeditation, deliberation and intent to kill. The State's evidence showed that defendant robbed a restaurant at night, ordered the victims to lie down and then methodically aimed and shot them. This evidence is sufficient to show premeditation and deliberation. See State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985); State v. Bray, 321 N.C. 663, 365 S.E.2d 571 (1988). There was no credible evidence to the contrary. Defendant's defenses were alibi, misidentification by the eyewitnesses, and lying by co-defendant Woods. Under these circumstances, we reject defendant's argument that the trial court erred by not instructing the jury on second degree murder.
Next, defendant contends that the trial court committed prejudicial error by refusing to intervene ex mero motu during the prosecutors' arguments to the jury at the guilt-innocence phase of the trial and to preclude prosecutors from making arguments to the jury which were contrary to the evidence, abusive, misstated the applicable law, and infringed upon defendant's constitutional rights. Defendant argues that the prosecutors' arguments made repeated references to Page's suffering and went beyond permissible reminder of the rights of victims. Defendant further argues that the prosecutors repeatedly stepped outside their role as representatives of the State and asserted that they were, in fact, representing Page and other victims of crimes. Defendant also contends that the prosecutors improperly attacked his character.
The State calls attention to the fact that defendant did not object to the arguments about which he now complains. The State contends that all of the prosecutors' arguments were fully grounded in the evidence, that there was no impropriety in the arguments
by the prosecutors, and certainly no gross impropriety which would warrant a new trial.
Trial counsel is given wide latitude in the argument of hotly contested cases and they are permitted to argue the facts and evidence, all reasonable inferences from those facts, and the relevant law. Control of counsel's argument is largely left to the trial court's discretion. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Whisenant, 308 N.C. 791, 303 S.E.2d 784 (1983). "Where a defendant does not object at trial to an allegedly improper jury argument, it is only r
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