Opinion
No. COA11–1453.
2012-05-15
STATE of North Carolina v. Michael Levon BOSTIC.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State. William B. Gibson for defendant-appellant.
Appeal by defendant from judgment entered 9 August 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State. William B. Gibson for defendant-appellant.
STEELMAN, Judge.
The prosecutor's closing argument to the jury was not so grossly improper as to require the intervention of the trial court ex mero motu.
I. Factual and Procedural History
At about 11:30 p.m. on 13 September 2010, a Raleigh police officer responded to a 911 report of a man armed with a gun. The caller described the man as a bald, African–American man wearing a green and white striped shirt. When the officer arrived, he saw the caller standing in her yard and Michael Levon Bostic (defendant) sitting on her porch. Defendant was wearing a striped shirt and generally matched the caller's description of the man with the gun. The officer walked toward the porch and asked to speak to defendant, but defendant ran. The officer chased defendant across the street and around another house. The officer lost sight of defendant for about three to five seconds when defendant ran behind the house. Eventually, defendant slowed and the officer apprehended him. The officer later retraced the route of the chase with a K–9 unit and found a .25–caliber handgun near the location where defendant was apprehended.
Defendant was indicted for possession of a firearm by a felon and for being an habitual felon. At trial, the caller testified that the man sat on her porch and asked if she knew anyone who was interested in buying a gun. The man then showed her a small, black handgun and placed it on the banister. After seeing the gun, the caller, who had a young son in the house, called 911. The caller identified the gun found by the officer as the gun the man showed her that night.
On 9 August 2011, the jury found defendant guilty of possession of a firearm by a felon. Defendant subsequently pled guilty to being an habitual felon. The trial court sentenced defendant to 120 to 153 months imprisonment.
Defendant appeals.
II. Jury Argument by Prosecutor
In his only argument on appeal, defendant contends that the trial court erred by failing to intervene ex mero motu because the prosecutor improperly vouched for the caller's testimony in the argument to the jury. We disagree.
“During a closing argument to the jury an attorney may not ... express his personal belief as to the truth or falsity of the evidence[.]” N.C. Gen.Stat. § 15A–1230(a) (2011). “The control of the argument of the district attorney and counsel must be left largely to the discretion of the trial judge and his rulings thereon will not be disturbed in the absence of gross abuse of discretion.” State v. Woods, 56 N.C.App. 193, 196, 287 S.E.2d 431, 433 (1982). When, as here, the defendant fails to object to the prosecutor's argument the appellate court “must determine whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Augustine, 359 N.C. 709, 723, 616 S.E.2d 515, 526 (2005) (internal quotation marks omitted).
During closing arguments, the prosecutor told the jury, without objection, that the caller's testimony was “some of the most honest, straightforward, candid testimony you'll ever see.”
We hold that the prosecutor's arguments were not so grossly improper as to require the trial court's intervention. As defendant acknowledges in his brief, our Supreme Court has held that “prosecutors are allowed to argue that the State's witnesses are credible.” Augustine, 359 N.C. at 725, 616 S.E.2d at 528. The prosecutor's jury argument was based on the evidence, including the officer's testimony and the gun that was found. The argument was well within the bounds set by prior case law, and we find no error.
NO ERROR. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).