State v. Davis12/21/2000
timony of Colin Wilmont that defendant would make a positive impact on society in prison, thereby violating the rules of evidence and the United States and North Carolina Constitutions. We disagree.
The admissibility of mitigating evidence during the sentencing phase is not constrained by the rules of evidence. N.C.G.S. § 8C-1, Rule 1101(b)(3). However, the trial judge must determine the admissibility of such evidence subject to general rules excluding evidence that is repetitive or unreliable, or lacks an adequate foundation. Simpson, 341 N.C. at 350, 462 S.E.2d at 211; see also State v. Strickland, 346 N.C. 443, 462, 488 S.E.2d 194, 205 (1997) (the trial court did not err in excluding testimony during a capital sentencing proceeding because of the "undependable nature of the evidence, its limited mitigating value, and its potential to distract the jury"), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998).
In the instant case, defendant proffered Wilmont, defendant's seventeen-year-old friend, to testify that defendant would have a positive impact by talking to and counseling young people who visited prison. Defendant contends that the evidence was relevant to mitigating circumstances including age and to the catchall, and to serve as a basis for a sentence less than death. Defendant also contends that this evidence was sufficient rebuttal to the State's evidence that defendant would not be useful to society in prison and would be a danger to unarmed civilians in prison.
We conclude, however, that this testimony by defendant's friend tending to suggest that defendant would have had a positive impact on young people visiting prison was purely speculative. As such, the trial court did not commit prejudicial error or abuse its discretion by excluding this evidence.
Assuming arguendo that the court's ruling was erroneous, the record shows that the trial court admitted evidence that defendant was "like a . . . leader" to Wilmont and had a positive impact on people on and off the football field. Thus, the jury had an opportunity to consider the positive influence defendant had on others for purposes of the catchall mitigating circumstance. As such, any error was harmless beyond a reasonable doubt. See N.C.G.S. § 15A-1443(b).
In his fourteenth argument, defendant assigns error to closing arguments made by the prosecution. Defendant argues that the State's improper arguments violated rules of evidence as well as defendant's constitutional rights, and that the trial court's failure to intervene ex mero motu amounted to plain error.
First, defendant contends that the prosecutor made improper biblical arguments. As a general rule, prosecutors have wide latitude in the scope of their argument "to argue the law, the facts, and reasonable inferences supported thereby." State v. Frye, 341 N.C. 470, 498, 461 S.E.2d 664, 678 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996). Furthermore, this Court "`has found biblical arguments to fall within permissible margins more often than not.'" State v. Walls, 342 N.C. 1, 61, 463 S.E.2d 738, 770 (1995) (quoting State v. Artis, 325 N.C. 278, 331, 384 S.E.2d 470, 500 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). While this Court has disapproved of arguments that the Bible does not prohibit the death penalty, it has held that such arguments are not so improper as to require intervention ex mero motu by the trial court. Williams, 350 N.C. at 27, 510 S.E.2d at 643. "We caution all counsel that they should base their jury arguments solely upon the secular law and the facts." Id.
We have reviewed the
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