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State v. Helms11/15/2005
the prosecutor's statement, in listing the charges against defendant for the jury, that it was "just by the grace of God [that Beachum is] not dead, too, and you don't have two second- degree murder charges." Defendant suggests that the prosecutor's remark implied that he "already received lenient treatment" and further "depreciated the gravity of the case and lessened the jury's sense of responsibility." Because defendant raised a timely objection to the prosecutor's statement, we review the trial court's ruling for abuse of discretion. See State v. Augustine, 359 N.C. 709, 734, 616 S.E.2d 515, 533 (2005). In conducting ourreview, we must determine whether the prosecutor's remarks were improper, and if so, whether they "'were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.'" Id. (quoting State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 103, 106 (2002)). The trial court's failure to sustain defendant's objection will be reversed "'only upon a showing that its ruling could not have been the result of a reasoned decision.'" Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)).
During closing arguments, counsel is permitted to argue both the facts in evidence and any reasonable inference drawn therefrom. State v. Brown, 39 N.C. App. 548, 553, 251 S.E.2d 706, 710, cert. denied, 297 N.C. 302, 254 S.E.2d 923 (1979). " counsel must be allowed wide latitude in the argument of hotly contested cases." Id.(citing State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960)). This latitude does not allow a prosecutor to "'travel outside of the record' or inject into his argument facts of his own knowledge or other facts not included in the evidence." Id. at 553-54, 251 S.E.2d at 711 (quoting State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954)); see also N.C. Gen. Stat. § 15A-1230 (2003). Nor may he resort to "statements of personal opinion, personal conclusions, name-calling[.]" Jones, 355 N.C. at 131, 558 S.E.2d at 106.
We find nothing improper about the prosecutor's observation that defendant could very well have been facing a second charge of second degree murder if Beachum had not survived the accident. Defendant was charged with second degree murder for Padron's death. The evidence showed that Beachum was in the car with Padron. Moreover, Dr. Hewlitt testified that Beachum's life was "in serious danger" when she arrived at the emergency room, due to the internal injuries and bleeding she sustained in the collisions. Beachum's son testified that she was hospitalized for twelve days and that " t was two or three days that they didn't know whether she was going to survive or not." The evidence supports both a finding that the accident placed Beachum at real risk of death and a reasonable inference that defendant would have been charged with a second count of second degree murder if Beachum had not survived. Defendant's assignment of error is overruled.
VI. Conclusion
The trial court did not err in instructing the jury on the charge of malice. In light of the unrebutted testimony by Dr. Hewlitt on Beachum's injuries, any error related to the testimony of Beachum's son was not prejudicial. The trial court did not err in allowing the prosecutor's closing arguments and defendant has not shown any abuse of discretion by the trial court. Defendant received a fair trial free from the errors he assigned and argued.
No error.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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