Opinion
No. COA09-1575
Filed 3 August 2010 This case not for publication
Appeal by defendant from judgment entered 29 July 2009 by Judge James F. Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Lucas Ellis, PLLC, by Anna S. Lucas, for defendant-appellant.
Cumberland County No. 08 CRS 64728.
Veronte Montedious White ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of common law robbery and possession of a firearm by a felon. We find no error.
I. Background
In the early morning hours of 28 September 2008, Kendra Burch ("Ms. Burch") had just returned home from dancing at a private party. Ms. Burch was sitting in a parked car in her mother's yard on Bravo Street with three male friends. She was carrying $250.00 dollars that she had earned earlier that evening. Ms. Burch hadplaced $100.00 in her pants pocket and the remainder in her bra.
Later, defendant and Ms. Mary Womack ("Ms. Womack") drove up in a car not far from where Ms. Burch was sitting. Ms. Burch and defendant had previously been involved in a relationship that ended just prior to 28 September 2008. Ms. Burch stepped out of the car she was sitting in while her friends drove away. After her friends left, Ms. Burch walked over to defendant and they began to argue in her aunt's yard. Ms. Burch's mother, Sylvia Burch, and her aunt, Linda Dawson ("Ms. Dawson"), watched the argument a short distance from Ms. Dawson's porch. Ms. Burch stated that defendant placed a gun up to her side and her mother witnessed the same occurrence from Ms. Dawson's porch. The argument between Ms. Burch and defendant continued for about fifteen minutes until Ms. Dawson asked defendant to leave. Ms. Burch proceeded to leave the argument and her aunt's property first. She walked a few blocks down the road.
Defendant and Ms. Womack returned to their car and followed Ms. Burch down the road where she was walking. Defendant once again exited the car, approached Ms. Burch and struck her on the head with the gun. Ms. Womack, who accompanied defendant in the car, took the $100.00 from Ms. Burch's pocket while she was lying on the ground from the force of the defendant's blow.
Once defendant and Ms. Womack left, Ms. Burch called law enforcement and provided them with the address of the incident. A deputy from the Cumberland County Sheriff's Department soon arrived at the scene and began to take Ms. Burch's report of the incident that had transpired between her and defendant. A warrant was issued for defendant's arrest and he was taken into custody the following day at his mother's residence.
Defendant was indicted for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, possession of firearm by felon, and attaining the status of an habitual felon. All charges were joined for trial, which commenced on 27 July 2009 in Cumberland County Superior Court. After all evidence was presented, defendant and the State each made their respective closing arguments to the jury. The State's closing argument included a statement from the State's attorney in which he indicated his distaste for "people who hit women" and a discussion of defendant's "Thug" tattoo, during which the State recited both the definition and etymology of the word "thug" from Webster's Dictionary.
After closing arguments, the trial court proceeded to instruct the jury on the charges of conspiracy to commit robbery with a dangerous weapon, robbery with a dangerous weapon or the lesser included of common law robbery, and possession of a firearm by a felon. The trial court declined defendant's request to instruct the jury on the lesser included charge of larceny. On 29 July 2009, the jury returned verdicts of guilty of common law robbery and guilty of possession of a firearm by a felon. The jury returned a verdict of not guilty to the remaining charge of conspiracy to commit robbery with a dangerous weapon. Defendant stipulated to attaining the status of an habitual felon.
The trial court sentenced defendant to a minimum term of 80 months to a maximum term of 105 months in the North Carolina Department of Correction. Defendant appeals.
II. State's Closing Argument
Defendant argues that the trial court erred in failing to sustain the defendant's objection during the State's closing argument. We disagree.
It is generally recognized that "counsel will be allowed wide latitude" in their arguments and that counsel "may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom[.]" State v. Huffstetler, 312 N.C. 92, 112, 322 S.E.2d 110, 123 (1984). In determining if an argument is improper, courts "must examine the argument in the context in which it was given and in light of the overall factual circumstances to which it refers." State v. Hipps, 348 N.C. 377, 411, 501 S.E.2d 625, 645 (1998). Remarks within closing arguments should be looked at in the context of and the entirety of the argument. See State v. Hardy, 353 N.C. 122, 137, 540 S.E.2d 334, 345 (2000). "A prosecutor's argument is not improper when it is consistent with the record and does not travel into the fields of conjecture or personal opinion." State v. Small, 328 N.C. 175, 185, 400 S.E.2d 413, 418 (1991) (internal quotations omitted).
Additionally, the North Carolina General Assembly has set parameters for closing arguments in the North Carolina General Statutes as follows:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2009).
When opposing counsel timely objects to closing arguments, the court's standard of review for improper closing arguments "is whether the trial court abused its discretion by failing to sustain the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). Jones established a two-part test for applying the abuse of discretion standard to closing arguments. First, we must determine if the remarks were improper, such as "statements of personal opinion, personal conclusions, name-calling, and references to events and circumstances outside the evidence[.]" Id. Second, if the remarks were in fact improper, we must determine "if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." Id.
A. First Statement
The first challenged remark by the State, to which the trial court overruled defendant's objection, was a reference to the "Thug" tattoo on the defendant's arm, followed by a continued discussion on the meaning of the word thug. The relevant portions of the State's argument are as follows:
[THE STATE]: All right. Now, ladies and gentlemen, let me talk about the case itself. We got a young man sitting over there that's got the word thug tattooed on his arm. I took the time before I came in here to look up the word thug.
MS. MILLER: Objection.
[THE STATE]: I'm just curious.
THE COURT: Overruled.
[THE STATE]: I'm just curious what thug means. You know what thug means. You know what Webster's dictionary says about thug? Let's see. Where is it? Thug, brutal ruffian or assassin. That's what a thug is. He's got it tattooed on his arm. Why ya'll think he's got it tattooed on his arm? You think he's got it tattooed because he goes to Sunday school every Sunday or church every Sunday? Why you think he's got it tattooed on his arm? He got it tattooed on his arm, ladies and gentlemen of the jury, because he is a thug from the word go. That's all to it.
It also says there's a word that derives from thug. It's called thuggery and that means the practice of murder and robbery by thugs. . . . It stems from a time in which the folks would rob a caravan and they — they start calling them thugs. That's where that word comes from. Now, why someone would tattoo that on his arm, come in this courtroom charged with robbery, I don't know. And I frankly don't care why he's got it up there but consider that, ladies and gentlemen of the jury. He got thug tattooed right on your right arm. Thug tattooed right on his right arm.
. . . .
[THE STATE]: And if he had any sense, he would have gone on home. After pulling the gun out one time, go home.
But no, being a thug, okay, he decided to take it a little further.1. Outside the Record
First, defendant argues that the State's commentary on the definition and origin of the word thug alluded to matters outside the record and was meant "to appeal to the prejudices of the jury." We disagree.
Defendant states in his brief that "[t]here was no evidence before the jury that [defendant] does in fact have a tattoo that says `thug.'" To the contrary, testimony from multiple witnesses was presented at trial which indicated both that defendant had a "Thug" tattoo on his arm and that "Thug" was a name by which defendant was commonly identified in his community:
[THE STATE]: Okay. And what did your aunt do after she got tired of it?
[MS. BURCH]: She just told — she just said, Thug, why don't you just get in your car. Why don't you just go your way, basically leave her alone.
[THE STATE]: She called him a thug?
[MS. BURCH]: That's his street name, Thug.
. . . .
[THE STATE]: You never seen — now why has he got the name Thug written on his arm?
[MS. WOMACK]: I don't know.
[THE STATE]: Why you think he call himself thug?
[MS. WOMACK]: Everybody want to be a thug. When Tupac die, everybody started calling themself a thug.
[THE STATE]: Okay. Including the defendant?
[MS. WOMACK]: I guess including Mr. White.
A review of the transcript indicates that the word thug was mentioned several times during the trial in reference to defendant and the "Thug" tattoo on his arm. Thus, the State's identification of defendant as "Thug" during closing arguments cannot be said to have extended beyond the facts presented at trial.
Additionally, as previously noted, N.C. Gen. Stat. § 15A-1230(a) makes clear that "a closing argument to the jury . . . may not . . . make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice." N.C. Gen. Stat. § 15A-1230(a) (emphasis added). "[A] court may take judicial notice, . . . at any stage of the proceeding, of facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." Addison v. Moss, 122 N.C. App. 569, 571, 471 S.E.2d 89, 90 (1996). Judicial notice may be taken of "[t]he laws of nature; human impulses, habits, functions and capabilities; the prevalence of a certain surname; . . . the facts of history; important current events; general economic and social conditions; . . . the meaning of words and abbreviations; and the results of mathematical computations." Hinkle v. Hartsell, 131 N.C. App. 833, 836, 509 S.E.2d 455, 457-58 (1998) (internal quotations omitted) (emphasis added).
In the instant case, the State's recitation of the definition of the word thug from Webster's dictionary and the etymology of the word thug, also obtained from Webster's, are matters about which a court may properly take judicial notice. Consequently, the State's remarks about the meaning and history of the word thug fall within the clear exception in N.C. Gen. Stat. § 15A-1230(a) for matters concerning which the court may take judicial notice.
The State's "thug" references in its closing arguments were based upon evidence presented at trial, and they did not violate N.C. Gen. Stat. § 15A-1230(a) because they did not reference matters outside the record other than matters concerning which the court may take judicial notice, which are explicitly excluded by the statute. This assignment of error is overruled.
2. Name Calling
Defendant also contends that the State's reference to defendant as a thug was an example of improper name-calling that placed a "highly prejudicial inference in front of the jury." We disagree.
Our Supreme Court has made clear that bald-faced name-calling by the State during closing arguments is improper. See State v. Matthews, 358 N.C. 102, 111, 591 S.E.2d 535, 542 (2004) (holding that characterizing the defendant as a "monster," "demon," "devil," and "a man without morals" was improper because these remarks were not based on evidence); State v. Wyatt, 254 N.C. 220, 222, 118 S.E.2d 420, 421 (1961) (holding that prosecutor referring to defendants as "two of the slickest confidence men we have had in this court for a long time" was improper); State v. Correll, 229 N.C. 640, 643, 50 S.E.2d 717, 719 (1948) (holding that prosecutor referring to defendant as a "small time racketeering gangster" was improper).
In contrast to this line of cases, the State's references to defendant as a thug in its closing argument in the instant case did not amount to name-calling. As previously noted, the State presented evidence that defendant was commonly known by the name "Thug." The word thug was also heard several times by the jury during trial in reference to defendant. Thus, the State's usage of thug cannot be said to reflect its personal opinion regarding the defendant and did not constitute improper name-calling. While referring to a defendant as a thug without a proper foundation may typically be considered improper name-calling, the usage of "thug" in the State's closing argument in the instant case had evidentiary support and was therefore permissible.
B. Second Statement
Defendant also argues that the trial court erred by overruling his objection when the State's attorney mentioned his dislike for people who hit women. The pertinent portion of the State's closing argument is as follows:
[THE STATE]: And I'm the one that yells and bangs on the table and all of that stuff. I do that. That's how I feel about these cases. I don't like people hitting women.
MS. MILLER: Objection.
THE COURT: Overruled.
Defendant argues that the State's remark about a dislike for people that hit women was the district attorney "improperly interject[ing] his personal opinion." (Appellant's B p. 10)
However, the State's reference to violence towards women was clearly consistent with the evidence presented at trial. The State provided evidence that defendant acted violently towards Ms. Burch; specifically, that he had struck her in the side of her face. Moreover, this statement constituted only a one-sentence comment out of twenty-six transcript pages of closing argument. When examined in the entirety of the closing argument, we determine that this statement was not improper. This assignment of error is overruled.
Because the State's remarks were not improper, it is unnecessary to determine if the remarks were of such a magnitude that their inclusion prejudiced defendant.
III. Lesser Included Offenses
Defendant argues that the trial court erred in failing to provide a jury instruction on the lesser included offense of larceny. We disagree.
It is well-settled that "the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense." But when the State's evidence is positive as to each element of the crime charged and there is no conflicting evidence relating to any element, the submission of a lesser included offense is not required. "The mere contention that the jury might accept the State's evidence in part and might reject it in part is not sufficient to require submission to the jury of a lesser offense."
State v. Porter, ___ N.C. App. ___, ___, 679 S.E.2d 167, 171 (2009) (citations omitted).
"Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270 (1982). The only difference between common law robbery and larceny is that common law robbery has the additional element violence and intimidation and "[a]bsent the elements of violence or intimidation, the offense becomes larceny." State v. Bailey, 4 N.C. App. 407, 411, 167 S.E.2d 24, 26 (1969).
In robbery cases, force may be actual or constructive so long as "the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property[.]" State v. White, 142 N.C. App. 201, 205, 542 S.E.2d 265, 268 (2001) (internal quotations omitted). When considering the time relationship between the elements of violence and taking, our Supreme Court has held that the element of violence "must precede or be concomitant with taking in order for the crime of robbery to be committed." State v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986). Our Supreme Court has also held that "the exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction amounting to armed robbery with the elements of violence and of taking so joined in time and circumstances as to be inseparable." State v. Hope, 317 N.C. 302, 305-06, 345 S.E.2d 361, 363-64 (1986) (internal quotations omitted).
Defendant argues that because there is conflicting evidence over whether or not defendant had a gun, the jury should have received an instruction on larceny. The State's evidence unequivocally demonstrates that the element of violence was satisfied and the only conflict in evidence is whether the defendant had a gun. However, the determination of the presence of the gun is immaterial since the principal determination is the presence of violence or force accompanying the taking of property.
In the instant case, Ms. Burch and her mother testified that defendant used physical force by putting his arm up to Ms. Burch. Defendant followed Ms. Burch down the street in his car after Ms. Burch walked away from their ensuing argument. Upon reaching Ms. Burch in his car, defendant exited the car and began arguing with her. Soon after, defendant struck a blow to the side of Ms. Burch's head. Ms. Burch fell to the ground and this prevented her from resisting Ms. Womack taking her money from her pocket. Thus, there was evidence presented at trial of actual physical violence against Ms. Burch. Additionally, defendant admits that there was evidence of violence at trial.
Defendant also contends that the State's evidence did not sufficiently demonstrate that the violence was used in connection with inducing Ms. Burch to part with her money, and therefore the jury should have received an instruction on larceny. To the contrary, the State presented evidence that the physical blow to Ms. Burch's head immediately preceded the taking of the money from her pocket by Ms. Womack. Ms. Burch testified that she was knocked to the ground by the force of the blow and while on the ground arguing with defendant, her money was taken from her person. Thus, the taking of the money from Ms. Burch's pocket and the violence directed towards Ms. Burch were sufficiently connected in time to be part of one continuous transaction.
Therefore, the trial court did not err when it denied giving the jury instruction on the lesser included offense of larceny. The court's decision was based on the presentation of uncontroverted evidence by the State as to the elements of the charged crime of common law robbery.
IV. Conclusion
The trial court did not err by overruling defendant's objection during closing argument because the remarks were not improper. The State presented uncontroverted evidence to establish the charged crime of common law robbery, and the trial court did not err in failing to give the jury instruction of the lesser included offense of misdemeanor larceny. Defendant received a fair trial, free from error.
No error.
Judges WYNN and HUNTER, Robert C. concur.
Report per Rule 30(e).