State v. Golphin8/25/2000
ater, the prosecutor described that another witness observed Deputy Hathcock backing away from Tilmon. In explaining why the deputy might have been backing away, the prosecutor again displayed the rifle in the direction of the same juror.
Defendants argue the trial court's failure to intervene when the prosecutor displayed the rifle in the direction of a juror was prejudicial and entitles them to new trials. Defendants, however, failed to object to the allegedly improper closing argument. Therefore, "the standard of review is whether the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu." Roseboro, 351 N.C. at 546, 528 S.E.2d at 8; see also State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, ___ U.S. ___, 145 L. Ed. 2d 80 (1999). A "`trial court is not required to intervene ex mero motu unless the argument strays so far from the bounds of propriety as to impede defendant's right to a fair trial.'" State v. Smith, 351 N.C. 251, 269, 524 S.E.2d 28, 41 (2000) (quoting State v. Atkins, 349 N.C. 62, 84, 505 S.E.2d 97, 111 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)). Prosecutors, in capital cases, have wide latitude during jury arguments and must vigorously present arguments for the sentence of death using every legitimate method. See Roseboro, 351 N.C. at 546, 528 S.E.2d at 8; Warren, 348 N.C. at 124, 499 S.E.2d at 456; Daniels, 337 N.C. at 277, 446 S.E.2d at 319. Whether a prosecutor "`abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.'" Smith, 351 N.C. at 270, 524 S.E.2d at 41 (quoting State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629, 640 (1976)).
In State v. Oliver, 302 N.C. 28, 274 S.E.2d 183, the prosecutor waved a gun which had been offered into evidence during closing argument. Id. at 42, 274 S.E.2d at 193. Later, the prosecutor made reference to the gun while displaying it to the jury. Id. The defendants objected, but the trial court overruled their objections. Id. This Court held the record revealed no improper use of the weapon in the prosecutor's closing argument because the gun was in evidence and because it "was not improper for the prosecutor to utilize it in his summation so long as he did not attempt to draw inferences from the weapon which were not supported by the evidence or to frighten or intimidate the jury with it." Id. This Court then emphasized that prosecutors may argue "`the facts in evidence and all reasonable inferences to be drawn therefrom.'" Id. (quoting Covington, 290 N.C. at 327-28, 226 S.E.2d at 640).
In the instant case, the trial court did not err by failing to intervene ex mero motu. We note that we are unable to determine from the transcript exactly how the prosecutor used the rifle during closing arguments. While the court reporter made references during transcription, it is mere speculation as to the exact nature of the use of the rifle. The court reporter did not provide details and did not note any reaction from the juror or any courtroom personnel. Four seasoned defense attorneys and an able trial judge were present, and no objection was made to the prosecutor's actions. That being said, the record does not reveal that the prosecutor used the rifle to attempt to draw inferences from the weapon which were not supported by the evidence. See id. In addition, the record does not reveal that the juror was frightened or intimidated by the prosecutor's actions. See id. Based on the testimony of numerous witnesses, the prosecutor was simply explaining Tilm
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