State v. Golphin8/25/2000
not err in admitting Dr. Johnson's report into evidence, and the cross-examination of Dr. Warren about Dr. Johnson's report did not prejudice Kevin. Therefore, these assignments of error are overruled.
In assignments of error, Tilmon and Kevin argue the trial court erred by failing to instruct the jury that unless the aggravating circumstances outweighed the mitigating circumstances, a life sentence should be imposed. Defendants claim the trial court's use of the pattern jury instructions resulted in confusion and may have led to imposition of a death sentence on less than complete jury unanimity. Defendants also argue the trial court's instructions called for imposition of the death penalty if the jury found the mitigating circumstances and aggravating circumstances to be in "equipoise," which means a state of equilibrium.
The trial court instructed the jury, pursuant to the pattern instruction, as follows: "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?" This instruction is entirely consistent with N.C.G.S. § 15A-2000(c)(3), which provides that the jury may recommend a death sentence if it finds " hat the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found." This Court has previously denied the same argument. See State v. Keel, 337 N.C. 469, 493-94, 447 S.E.2d 748, 761-62 (1994), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995); State v. Hunt, 323 N.C. 407, 433, 373 S.E.2d 400, 416-17 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990); State v. McDougall, 308 N.C. 1, 26, 301 S.E.2d 308, 326, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983). Defendants request that we reconsider these holdings. We decline to do so and reaffirm our prior decisions with respect to this issue. These assignments of error are overruled.
By assignments of error, Tilmon and Kevin contend the trial court erred by failing to intervene ex mero motu during the State's sentencing proceeding arguments. Neither defendant objected to the State's argument. Specifically, both defendants claim the State improperly argued general deterrence. In addition, Tilmon contends the State improperly argued community sentiment, and Kevin claims Tilmon's Rastafarian beliefs were wrongly attributed to him. Defendants insist these arguments were improper and warranted the trial court's intervention ex mero motu. We disagree.
Prosecutors are given wide latitude during jury arguments and may argue "the facts in evidence and all reasonable inferences that may be drawn therefrom." State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988). When a defendant does not object to an allegedly improper argument, the trial court should intervene ex mero motu if the argument rises to the level of gross impropriety. See Trull, 349 N.C. at 451, 509 S.E.2d at 193. "It is well established that ` ontrol of closing arguments is in the discretion of the trial court.'" State v. Barrett, 343 N.C. 164, 181, 469 S.E.2d 888, 898 (quoting State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994)), cert. denied, 519 U.S. 953, 136 L. Ed. 2d 259 (1996). As previously stated, "`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 Covington, 290 N.C. at 328, 226 S.E.2d at 640).
We first address defendants' argumen
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