Opinion
No. COA09-1507
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgments entered 10 November 2008 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant.
Mecklenburg County No. 07 CRS 208926-27.
A jury convicted Melvin Gene Ferguson, Jr. (defendant), of first-degree murder and robbery with a dangerous weapon. Defendant now appeals. We hold that defendant received a fair trial, free from prejudicial error. However, we hold that the trial court erred by ordering defendant to pay restitution to the victim's family because the State offered no evidence to support the restitution order; we reverse the restitution order and remand to the trial court for further proceedings.
I. Background
On the afternoon of 23 February 2007, William Ray (Mr. Ray) heard arguing and fighting coming from the apartment above, which belonged to Mark Bivens (Bivens or the victim). After Mr. Ray heard one of the combatants say, "[y]ou are trying to kill me. You are trying to kill me. You are hurting me," he called 911. About thirty minutes after the argument began, Mr. Ray observed a light skinned, black male drive off in a Jeep belonging to Bivens. Mr. Ray subsequently identified defendant as the person who drove off in the Jeep. The Jeep was later found abandoned at a car wash.
The Charlotte-Mecklenburg Police Department responded to the 911 call, arriving at 1:44 p.m. They found blood on the door knob to the apartment and bloody footprints leading from the bedroom. The bathroom was covered in blood. Police found Bivens dead in a half-filled bathtub; he had been stabbed seventy-nine times. Crime scene investigators recovered a knife handle without a blade but found no evidence of a wallet, money, or credit cards in the apartment.
Police officers, who heard the homicide dispatch to Bivens's apartment, later received a report of a man being treated at the Presbyterian Hospital Emergency Room for cuts on his hands. Officers found defendant in the emergency room waiting room with bandages on his hands. Police questioned defendant at the hospital. Defendant gave police five false names before giving Detective Osorio his real name.
Initially, defendant said he cut his hands while moving glass for a friend. Defendant then said that a person named "Ray-ray" had stabbed Bivens, that defendant had been injured when he tried to intervene, and that after Ray-ray ran out of the apartment, defendant panicked and took Bivens's Jeep.
Police took defendant into custody after learning of a warrant for his arrest in Virginia and after defendant attempted to flee from the hospital on foot. At the Law Enforcement Center, defendant gave his first recorded statement, in which he reiterated his earlier story involving Ray-ray. In later statements, defendant changed his story. In his second recorded statement, defendant admitted that he had quarreled with Bivens over money defendant owed Bivens for drugs. Defendant asserted that Bivens had attacked him with a knife. A struggle had ensued, and defendant gained control of the knife and stabbed Bivens multiple times. In his third recorded statement, defendant discussed the warrant for his arrest arising out of an alleged 2005 murder in Dunwoody County, Virginia. In this statement, defendant admitted to shooting a man over drugs and money in self-defense. Defendant later told forensic psychiatrist, Dr. George Corbin (Dr. Corbin), that the Virginia victim had attacked and overpowered him, and defendant had shot the victim in self-defense. Defendant did not mention any sexual advance by Bivens in any of his statements to police. Defendant was indicted for first degree murder and robbery with a dangerous weapon.
Defendant testified at trial that he regularly sold marijuana for Bivens and that he owed Bivens several hundred dollars after some of the drugs had been stolen. Defendant stated that after meeting at a store where Bivens cashed a check, they drove to Bivens's apartment. At the apartment, the two argued while defendant prepared to smoke marijuana and Bivens paced between the bedroom and kitchen and prepared a bath. The argument became heated when Bivens accused defendant of being involved in the theft of the drugs, and both men began yelling and cursing.
At some point, Bivens approached defendant and slapped him on the face. Defendant became angry and followed Bivens into his bedroom. Defendant testified that Bivens, an open homosexual, told defendant that he would forgive defendant's debt in exchange for sex. When defendant refused, Bivens drew a kitchen knife, cutting defendant's hand. Defendant testified that he gained control of the knife and began stabbing Bivens, and that he lost control and "didn't see nothing but red and black." Defendant testified that he took the knife blade, which had broken from the handle, and left in Bivens's Jeep, abandoning it at a car wash. Defendant then went to a friend's house, where he got a change of clothes, and threw the knife, car keys, his bloody clothes, and some money into a ditch. After defendant arrived at his girlfriend's house, she called 911 and they drove to the hospital.
Dr. Corbin testified that defendant told him about Bivens's alleged sexual proposition on 10 June 2008, one month before trial. This was the first documented instance of defendant asserting that Bivens made sexual advances on 23 February 2007. Dr. Corbin testified that Bivens's sexual proposition triggered a traumatic reaction caused by defendant having been sexually abused as a child.
On 10 November 2008, a jury found defendant guilty of first-degree murder based upon premeditation and deliberation and felony murder, and guilty of robbery with a dangerous weapon. For the murder, defendant was sentenced to life imprisonment without the possibility of parole, and for the robbery with a dangerous weapon, defendant was sentenced to a consecutive active sentence of sixty-four to eight-six months' imprisonment.
Defendant now appeals. This Court granted his motion to file an over-sized brief.
II. Discussion
A. Sufficiency of the Evidence
Defendant first argues that the trial court erred by denying his motions to dismiss for insufficient evidence the charges of robbery with a dangerous weapon, felony murder based upon the robbery conviction, and first-degree murder. We disagree.
Our review of the trial court's denial of a motion to dismiss is well understood. [W]here the sufficiency of the evidence . . . is challenged, we consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard defendant's evidence except to the extent it favors or clarifies the State's case. When a defendant moves for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.
State v. Hinkle, 189 N.C. App. 762, 766, 659 S.E.2d 34, 36-37 (2008) (quotations and citation omitted; alteration in original).
1. Robbery with a Dangerous Weapon and Felony Murder
Defendant argues that the State did not present sufficient evidence to support the charge of robbery with a dangerous weapon, which itself supported the charge of felony murder. The elements of robbery with a dangerous weapon are: "(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened." State v. Beaty, 306 N.C. 491, 496, 293 S.E. 2d 760, 764 (1982); N.C. Gen. Stat. § 14-87 (2009).
All that is required is that the elements of armed robbery occur under circumstances and in a time frame that can be perceived as a single transaction. When . . . the death and the taking are so connected as to form a continuous chain of events, a taking from the body of the dead victim is a taking "from the person."
State v. Fields, 315 N.C. 191, 201-02, 337 S.E.2d 518, 524-25 (1985).
Our Supreme Court rejected the "afterthought" argument in Fields, explaining that "mixed motives do not negate actions that point undeniably to a taking inconsistent with the owner's possessory rights." Id. at 202, 337 S.E.2d at 525. Here, the State presented sufficient evidence to show that defendant killed Bivens and took Bivens's car as part of one continuous transaction.
Moreover, the resolution of any conflicting evidence as to defendant's intent to permanently deprive Bivens of the vehicle because he was confused or panicked was a "dilemma for the jury." Id. at 203, 337 S.E.2d at 525. "[I]t makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force can be perceived by the jury as constituting a single transaction." Id. Indeed, "the abandonment of a vehicle, regardless of how near the abandonment is to the scene of the crime," is sufficient evidence of intent to permanently deprive the owner of the vehicle. State v. Kemmerlin, 356 N.C. 446, 474, 573 S.E.2d 870, 889-90 (2002). Here, defendant abandoned Bivens's car at a car wash; that Bivens was dead or nearly so at the time defendant abandoned the car does not change the analysis. Accordingly, we hold that the State presented sufficient evidence of each element of robbery with a dangerous weapon, and the trial court did not err by denying defendant's motion to dismiss the robbery and felony murder charges for insufficiency of the evidence.
2. First-Degree Murder Based on Premeditation and Deliberation
Defendant next argues that the trial court erred by denying his motion to dismiss for insufficiency of the evidence the charge of first-degree murder based on premeditation and deliberation.
Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.
State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83 (1990) (citations omitted).
Here, the State's evidence of premeditation and deliberation was circumstantial. Circumstances from which premeditation and deliberation may be inferred include:
(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
State v. Laws, 345 N.C. 585, 593-94, 481 S.E.2d 641, 645 (1997) (quotations and citations omitted).
Evidence of the last three listed factors is sufficient evidence to overcome a motion to dismiss for insufficiency of the evidence. See State v. Vause, 328 N.C. 231, 239, 400 S.E.2d 57, 62 (1991). Here, defendant stabbed Bivens seventy-nine times, which supports the last three listed factors. In addition, the State presented evidence that defendant and Bivens had prior disputes about money and defendant immediately attempted to conceal evidence by disposing of his bloody clothes and stealing Bivens's car. Accordingly, we hold that the State presented sufficient evidence of defendant's premeditation and deliberation to support the first-degree murder charge and the trial court properly denied defendant's motion to dismiss for insufficient evidence.
C. Alleged Evidentiary Errors
Defendant next alleges five evidentiary errors, any of which should entitle defendant to a new trial. We disagree.
1. Exclusion of Evidence of Victim's Sexual Conduct and Character
Defendant argues that the trial court erred by excluding evidence about Bivens's prior sexual conduct and character. At trial — and on appeal — defendant's theory of the case is that defendant killed Bivens in self-defense and heat of passion after "Bivens made aggressive homosexual advances toward him in the bedroom and offered to forgive his debt in exchange for homosexual sex." Defendant argues that witness testimony that "Bivens sought homosexual sex with vulnerable heterosexual men and offered favors in return for sex" and "actively sought sex with heterosexual men and offered benefits as inducement for sex" was admissible under Rule 404(a)(2) as character evidence, Rule 404(b) as non-character evidence of motive, and to corroborate defendant's trial testimony. We disagree.
Defendant also makes a Sixth Amendment argument. However, because he raises this constitutional issue for the first time on appeal, it is not preserved for our review, and we do not review it. See State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998) ("Initially, we note that defendant failed to raise any constitutional claims at trial, and thus, is barred from raising them for the first time on appeal to this Court.") (citation omitted).
We review a trial court's admission of evidence under Rule 404 of the North Carolina Rules of Evidence for an abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.
State v. Brockett, 185 N.C. App. 18, 21-22, 647 S.E.2d 628, 632 (2007) (quotations and citations omitted). In addition, "[t]he abuse of discretion standard applies to decisions by a trial court that a statement is admissible for corroboration." State v. Tellez, 200 N.C. App. 517, ___, 684 S.E.2d 733, 739 (2009) (citation omitted).
"When a defendant argues that he acted in self-defense, the victim's character is admissible for two purposes, to show defendant's fear or apprehension was reasonable or to show the victim was the aggressor." Laws, 345 N.C. at 596, 481 S.E.2d at 647; see N.C. Gen. Stat. § 8C-1, Rule 404(a)(2) (2009) ("Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case [is admissible] to rebut evidence that the victim was the first aggressor[.]").
Here, defendant averred that he "carefully explained" to the trial court that "he was not offering evidence of mere homosexuality to prove Bivens was the aggressor in the fight[.]" Instead, defendant posits that Bivens's "aggressive solicitation . . . made it more likely defendant reacted in the heat of passion and imperfect self-defense[.]" We take this to mean that defendant sought to present this evidence to the jury to show that his "fear or apprehension was reasonable." Although the trial court excluded any evidence of "other homosexual acts[] on the part of the victim or other homosexual contacts with the victim[,]" it allowed defendant to make an offer of proof for the record. Four witnesses testified that they knew that Bivens was openly gay, and several of them testified that they knew that Bivens had consensual sex with other men. One witness testified that Bivens sometimes exchanged money or drugs for sex. However, none of the testimony could even raise the inference that Bivens had sexually assaulted or even "aggressively propositioned" anybody, much less that defendant knew of such a history. Defendant cannot demonstrate that his fear or apprehension of Bivens was reasonable, and the trial court properly excluded defendant's evidence that Bivens engaged in homosexual acts.
Our Supreme Court has unequivocally explained that "[a] victim's homosexuality has no more tendency to prove that he would be likely to sexually assault a male than would a victim's heterosexuality show that he would be likely to sexually assault a female." Laws, 345 N.C. at 597, 481 S.E.2d at 647.
Defendant's Rule 404(b) argument fails for the same reason: Evidence of Bivens's consensual homosexual acts is not "plainly probative to prove common scheme or plan, intent, and motive for Bivens to seek homosexual sex with defendant with the favor of debt-forgiveness[.]" Moreover, "Rule 404(b) has been interpreted as applicable only to parties and, in a criminal case, would usually be applicable only to a defendant." State v. Morgan, 315 N.C. 626, 636, 340 S.E.2d 84, 91 (1986). Similarly, we cannot say that the trial court abused its discretion by excluding this evidence as inadmissible to corroborate defendant's trial testimony about Bivens's alleged "homosexual proposition."
Accordingly, we hold that the trial court did not abuse its discretion by excluding evidence of Bivens's sexual history.
2. Cross-Examination of Defendant's Psychiatrist
In his next argument, defendant conflates two alleged errors by the trial court: (1) the trial court allowed the State to cross-examine Dr. George Corbin about a 2005 Virginia murder allegedly committed by defendant, and (2) the trial court denied defendant's motion for a mistrial based upon the admission of Dr. Corbin's testimony about the 2005 Virginia murder. We first address the propriety of the cross-examination.
At a pretrial hearing, the State indicated that it had evidence that defendant had murdered a man in Virginia in 2005. Defendant had not been tried for or convicted of this crime. The trial court ruled that this evidence was not admissible under either Rule 404(b) or Rule 608(b) of the Rules of Evidence. The State did not present evidence of this crime in its case in chief, nor did the State cross-examine defendant concerning this crime.
Defendant called Dr. George Corbin, a forensic psychiatrist, as an expert witness. On direct examination, Dr. Corbin opined that, based on defendant's version of the events, Bivens's alleged sexual proposition triggered a traumatic reaction in defendant and it was improbable that defendant intentionally planned to murder Bivens. On cross-examination, the State sought to cast doubt upon Dr. Corbin's opinions and the bases of his opinions. In particular, the State sought to examine Dr. Corbin concerning the 2005 homicide in Virginia and why that murder was committed without the traumatic reaction that Dr. Corbin stated was caused by Bivens's conduct. During voir dire, the State argued that its proposed cross-examination was proper pursuant to Rules 403 and 705.
As the State argued at trial, our Supreme Court addressed this question in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000). In Wallace, the defendant was convicted of the first-degree murders of nine women, in addition to a multitude of sex offenses and other crimes. Id. at 487, 528 S.E.2d at 331. He also confessed to two other, unrelated murders, for which he was not being tried. Id. at 521-22, 528 S.E.2d at 351. During the guilt-innocence phase of the trial, the defendant offered the testimony of two expert witnesses, Colonel Robert K. Ressler, and Dr. Ann W. Burgess. Id. at 522, 528 S.E.2d at 351-52. Colonel Ressler testified about "a classification system he used in studying serial offenders in which crimes and offenders were categorized as organized, disorganized, or mixed." Id., 528 S.E.2d at 352. According to Colonel Ressler, "[d]isorganized offenders tend to exhibit characteristics of actual mental illness." Id. During direct examination, defense counsel "highlighted the disorganized characteristics in the nine murders" for which the defendant was being tried "in an effort to prove [the] defendant's diminished mental capacity or mental illness." Id. However, on cross-examination, the State elicited testimony from Colonel Ressler that the nine murders, as well as the two other murders that defendant had confessed to, "displayed signs of organization, which would point to a lack of mental illness." Id. Dr. Burgess also testified about the two other murders during cross-examination. Id. Dr. Burgess mentioned the two other victims when discussing whether the defendant had "exercised control over the victims" by choking them. Id. During both experts' cross-examination, the trial court instructed the jury to limit its "consideration of the evidence solely to the basis for the experts' opinions." Id. at 523, 528 S.E.2d at 353.
On appeal, the defendant argued that "the cross-examination was improper under Rule 403 because it was prejudicial and had no probative value as impeachment under Rule 705." Id. at 522-23, 528 S.E.2d at 352. The Supreme Court disagreed, explaining:
In the instant case, both experts testified that they were able to classify or diagnose defendant, in part, by studying the acts to which he confessed. Col. Ressler and Dr. Burgess reviewed information about the two uncharged murders in formulating their opinions. Under the broad scope of Rule 705, cross-examination relating to the two murders was permissible to probe the basis for the experts' opinions.
Id. at 523, 528 S.E.2d at 352 (citation omitted); see also N.C. Gen. Stat. § 8C-1, Rule 705 (2009) ("The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination. There shall be no requirement that expert testimony be in response to a hypothetical question.").
Here, as in Wallace, Dr. Corbin reviewed information about an uncharged murder in formulating his opinion about defendant's mental capacity. Dr. Corbin asserted that defendant had borderline intellectual functioning. The prosecutor questioned how a person of borderline intellectual functioning was able to move freely up and down the east coast of the United States and not be apprehended from 2005 until 2007, when he was arrested for the murder of Bivens. Dr. Corbin was also examined as to why defendant had a very clear recollection of the events of the 2005 murder and virtually no memory of the 2007 murder. Finally, Dr. Corbin was examined as to how the outstanding arrest warrants from Virginia impacted defendant's multiple stories to the police. Dr. Corbin included numerous references to the Virginia murder in his original report, which the trial court reviewed; the jury received a redacted version that omitted all references to the Virginia murder.
We conclude that the prosecutor's questions pertained to the bases of the expert's opinion and were not solely designed to place the 2005 Virginia murder before the jury. The trial court's initial exclusion of the murder charges demonstrates that the judge was keenly aware of the potential danger of undue prejudice to defendant. This is significant because, "under Rule 403, the determination of whether relevant evidence should be excluded is a matter left to the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion." Wallace, 351 N.C. at 523, 528 S.E.2d at 352-53 (citation omitted). Here, the trial court explicitly considered the potential prejudicial effect of this evidence and, following the example set by the trial court in Wallace, gave the following limiting instruction to the jury:
The instruction pertains to the evidence that you are about to hear from Dr. Corbin.
The Court instructs you that this evidence is received for a limited purpose. You may consider this evidence only for this limited purpose.
You may consider this evidence only as evidence of the basis of Dr. Corbin's opinions, as he has testified before you. You may not consider this evidence for any other purpose.
It is not evidence of the defendant's guilt of the offenses that he is on trial for.
If all of you are able to follow the instruction that I have just given you, please indicate by raising your hands.
(Unanimous indication given.)
The record will reflect that all 12 jurors have raised their hands in the affirmative.
Accordingly, we hold that the trial court did not abuse its discretion by allowing the State to cross-examine Dr. Corbin as to the 2005 Virginia murder.
For the same reasons, we also hold that the trial court did not err by denying defendant's motion for a mistrial based upon the admission of Dr. Corbin's testimony about the 2005 Virginia murder. See State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992) ("It is well settled that the decision of whether to grant a mistrial rests in the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of discretion.") (quotations and citation omitted).
3. Impeachment of Defendant
Defendant next argues that the trial court erred by allowing the prosecutor to impeach him with evidence that he exercised his right to counsel in violation of Rules 608(b) and 611(b) of our Rules of Evidence.
Defendant also argues that his Sixth and Fourteenth Amendment rights to counsel and due process were violated. However, because he raises these constitutional issues for the first time on appeal, they are not preserved for our review, and we do not review them. See State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998) ("Initially, we note that defendant failed to raise any constitutional claims at trial, and thus, is barred from raising them for the first time on appeal to this Court.") (citation omitted).
At trial, the prosecutor cross-examined defendant concerning whether he had talked to his attorneys, how many times he talked with his attorneys, whether they discussed his trial testimony, whether they discussed the strengths and weaknesses of his case, whether defendant changed his story after learning the difference in punishment for voluntary manslaughter and murder, and whether he understood the felony murder rule. The focus of the challenged testimony was to show that defendant changed his account of the events of 23 February 2007 in order to avoid the most serious consequences of his actions. Defense counsel objected to the first question in this line of questioning, but did not lodge further objections. The objection was a general objection, and it was not based upon attorney-client privilege or constitutional grounds.
In the absence of a specific objection raising attorney-client privilege, or a constitutional objection, the trial court did not abuse its discretion in overruling defendant's objection. See State v. Hammett, 361 N.C. 92, 97-98, 637 S.E.2d 518, 522 (2006) (refusing to consider the defendant's argument on appeal when no specific objection was made at trial). Even assuming, arguendo, that the trial court erred in overruling defendant's objection, defendant can demonstrate no prejudice. The various versions of defendant's account of the events culminating in the death of Bivens were before the jury. See N.C. Gen. Stat. § 15A-1443(a) (2009).
4. Character Evidence about the Victim
Defendant next argues that the trial court erred by permitting the victim's sister, Mary Cureton, to testify about the victim's character and impact of his death. We disagree.
During direct examination by the State, Cureton made the following statements to which defendant did not object:
A Mark was a very, very athletic person. He was outspoken for his class. Mark run cross-country. He won all kinds of title as it relates to medals first place, second place.
He represented his school well. He received trophies. He was a very good basketball player. He won most school spirit for his class in the senior year. He just really liked to play sports.
Q Within your family, who was Mark to the family?
A Mark was the love of my life. Mark was the link that kept us together. When Mark entered the room, it was like sunshine. He brought sunshine to our family. He was that person that no matter what, he loved his family and we loved him.
Now that he is gone, there is not going to be any peace in our family. It's so hard. Holidays, he was that person. Just loved his family.
Just went out of his way to make sure his family had during Christmas. Mark would not come to the family gatherings unless he had everybody something. That meant if he had to go into his apartment and dust something off, you had a gift. That is how he was.
Also, Mark was a person that took pride in everything he did. I can remember growing up when Mark was a little boy. My parents would give him some shoes and Mark would race everybody in the whole neighborhood.
By the time they got to the finishline, Mark was already there. He was just an outstanding person that everyone would just love. If he was to walk in the room right now, you would say, "That is an outstanding young man."
* * *
Mark was, always had been a neat individual. Very, very, very neat. Always wanted stuff together; always wanted stuff in place. He wasn't the type of person that you would catch his place out of order at no time. It was just clean.
Even growing up he was the same way. We all had certain chores growing up. You could be assured that Mark's work was going to be done, and it was going to be done right.
Because defendant failed to object to Cureton's testimony at trial and he argues plain error on appeal, we review this testimony for plain error. Under plain error review, defendant must prove "not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009) (quotations and citations omitted). Plain error must be so fundamental, basic, and prejudicial that "justice cannot have been done." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotations and citation omitted).
Though the admission of Cureton's testimony during the guilt-innocence phase of the trial was likely in error, it did not rise to the level of plain error. Id. at 660, 300 S.E.2d at 378. Defendant cannot demonstrate that, but for this evidence, the jury would have reached a different result.
Defendant also argues that the trial court erred by permitting the prosecutor to reference Cureton's testimony in her closing arguments without intervening ex mero motu. We disagree.
"[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence." State v. Jones, 355 N.C. 117, 128-29, 558 S.E.2d 97, 105 (2002) (quotations and citation omitted). Because the admission of Cureton's testimony did not constitute plain error, we hold that the prosecutor's reference to this testimony in closing arguments was not so grossly improper as to warrant the trial court's intervention ex mero motu.
5. Cross-Examination of Defendant
Defendant next argues that it was plain error for the trial court to permit the State to cross-examine defendant by allegedly posing questions regarding facts that were not in evidence, interjecting her opinion that defendant lied, and misleadingly referring to defendant's sentencing range, which had not yet been determined. Defendant argues that this cross-examination caused the jury to find defendant guilty of first-degree murder rather than manslaughter. We disagree.
In defendant's first recorded statement to police, he stated that a man named Ray-ray killed Bivens and then stole Bivens's drugs. Defendant later recanted this statement, and stated that Ray-ray was never there. His description of Ray-ray's appearance and clothing exactly matched defendant's appearance and clothing on 23 February 2007. At trial, defendant testified that he met Bivens at a store where Bivens was cashing a check. After the two met, they drove to Bivens's apartment, where defendant prepared to smoke marijuana. A detective at the scene of the crime testified that the police found "no wallet, no credit cards, no money, [and] no driver's license . . . in Mr. Bivens' apartment."
The prosecutor questioned defendant about his conflicting statements regarding the cash Bivens received from cashing the check and the drugs defendant testified to handling at Bivens's apartment. Defendant argues that because there was no evidence that defendant stole Bivens's wallet, money, and drugs, the prosecution improperly questioned defendant on these items. The following colloquy, to which defendant did not object, occurred:
Q How about the quarter-pound of weed that you took from him. Was it your intent to give it back to him?
A I wasn't thinking about other stuff. I was just thinking about my hands.
Q You thought about it enough to pick it up and take it with you, didn't you?
A I wasn't thinking about any of those things.
Q When you took that car and when you took that weed, you still had the knife that you had used to kill Mr. Bivens with, didn't you?
A Yeah. I picked up the blade and put it in my pocket. . . .
Q You also stole Mr. Biven[s's] money and wallet, didn't you?
A No. I did not steal his money and wallet. The keys that I took had a strap to it. Like a little pouch you put your Social Security card inside. It was connected to his keys. I didn't intend to steal his license. It was connected to the car keys. I did take that. I wasn't thinking of taking it off or anything. I just grabbed it, and I took the car.
* * *
Q It all got thrown away with everything else, didn't it?
A Car keys, knife, even the identification, including the money that I offered him.
Q And his wallet and his credit cards and the money you stole from him, they were all there together?
A I didn't steal his car.
* * *
Q Now, you told the police that he gave you the marijuana and let you cut it. He was letting you cut it?
A Rolling it up.
Q You weren't cutting it and breaking it up?
A Yeah. Rolling up a little blunt. That's nothing. Just a little bit.
Q Just a little bit. How about is a quarter-pound or a quarter-ounce?
A I don't know. Maybe four ounces.
Q Can you show us in quantity how much marijuana that would be?
A You know what an ounce is. Just four ounces. Real small. Nothing big. Nothing major.
Q Do you sell four ounces at a time or cut it up and break it up into smaller portions?
A At the time I wasn't breaking up anything. I was breaking up some weed to roll up. We never discussed the part of that.
As our Supreme Court has explained,
it is an unquestioned truism that the cross-examination of a witness may be pursued by counsel as a matter of right so long as it relates to facts in issue or relevant facts which were the subject of his examination-in-chief. When, however, it is sought to go beyond the scope of the examination-in-chief, for purposes of determining the interest or bias of the witness and to impeach his credibility, the method and duration of the cross-examination for these purposes rest largely in the discretion of the trial court. . . . [T]he tendency of modern decisions is to allow almost any question to be put to a witness, and to require him to answer it, unless it should subject him to a criminal prosecution.
State v. Beal, 199 N.C. 278, 298, 154 S.E. 604, 616 (1930) (quotations and citations omitted).
Defendant admitted in his statements that he met Bivens at a store where Bivens intended to cash a check and that he had been preparing to smoke marijuana during his argument with Bivens. The prosecutor's cross-examination properly questioned defendant about his actions on 23 February 2007 and his prior inconsistent statements.
Defendant next argues that the prosecutor improperly asserted her opinion that defendant was a liar during cross-examination of defendant. During direct examination of defendant, counsel asked him about his conversations with police at the hospital. Defendant admitted that he lied to the police, and stated that he repeatedly told the officers "sort of truth" or "almost the truth" because he was "just not good with a lie." On cross-examination, the State asked defendant, "How many people on the 23rd alone did you lie to, Mr. Ferguson?" Defendant replied, "I lied to the police officers and to the ambulance people. Detective Osorio, I know I lied to him. I don't know many people it was, but I know it was officers." The prosecutor then asked defendant if he had lied to the medics, nurses, doctors, and other police officers, naming many of them individually. Defense counsel did not object to any of the questions, and defendant answered each time in the affirmative.
Defendant relies on State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978), to support his argument that the prosecution improperly asserted that defendant was a liar during his cross-examination. In Locklear, the prosecutor questioned defendant regarding a drug purchase:
Q. Give me the names of a few that were in the pool room when you made this purchase. Sir?
A. I don't know. I just know them by the nicknames.
Q. Give me the nicknames, then. Sir? Give me the nicknames. Who are they? Clarence, you are lying through your teeth and you know you are playing with a perjury count; don't you?
Id. at 214-15, 241 S.E.2d at 68. Locklear is distinguishable from this case. In Locklear, the Court held that it was "improper for a lawyer to assert his opinion that a witness is lying." Id. at 217, 241 S.E.2d at 70. Here, the prosecutor did not call defendant a liar or state that he was lying to the court or jury. Defendant had admitted to lying during direct examination. The prosecutor examined defendant concerning this prior testimony and questioned defendant regarding his various descriptions of the events of 23 February 2007. The prosecutor permissibly impeached defendant with his prior inconsistent statements to demonstrate to the jury defendant's tendency to be untruthful. See State v. Chapman, 359 N.C. 328, 371, 611 S.E.2d 794, 825 (2005).
Defendant next argues that the prosecutor misleadingly indicated potential sentencing ranges during cross-examination. The prosecutor stated that:
Q As a matter of fact, you could get as little as 38 months in jail for voluntary manslaughter.
A I am not sure.
Q About three years?
A I'm not sure.
Q Did they tell you what you could get if you were convicted of second-degree murder?
A To my knowledge, it's not first degree. I am not sure of the time but, I know it's not a life sentence.
Q Did they tell you it was 96 months, less than eight years?
A They didn't [tell] me the specific time. I know it's not a life sentence.
Q Isn't it true after getting a trial date and facing a charge of first-degree murder, that is when you came up with this story about Mark [Bivens], isn't it?
A No.
Q Let's talk about some other thing that you never told any of the experts, other than Dr. Corbin, after you found out you were going to trial.
Defendant relies on State v. Lopez, 363 N.C. 535, 681 S.E.2d 271 (2009), to support his argument that the prosecutor improperly addressed possible ranges of sentences during cross-examination. In Lopez, the Supreme Court held that a prosecutor improperly argued to a jury about the merger of two offenses and the effect of the jury finding an aggravating factor in the portion of the trial dealing with the aggravating factor. Id. at 537-39, 681 S.E.2d at 272-74. Because of the many variables that go into calculating an appropriate sentence Under Structured Sentencing, including whether multiple sentences run concurrently or consecutively, "counsels' jury arguments forecasting the sentence are usually no better than educated estimates." Lopez, 363 N.C. at 540, 681 S.E.2d at 274; see generally, N.C. Gen. Stat. Chap. 15A, Art. 81B, Part 2 (2009) (Under Structured Sentencing, before the appropriate sentence can be determined, the trial court must first determine the class of the offense, the defendant's prior record level and whether there exists any aggravating or mitigating factors). As a result, "even a well-intentioned argument purporting to forecast a sentence under Structured Sentencing will almost invariably be misleading." Lopez, 363 N.C. at 541, 681 S.E.2d at 275. However, the Supreme Court went on to state that,
consistent with section 7A-97, parties may explain to a jury the reasons why it is being asked to consider aggravating factors and may discuss and illustrate the general effect that finding such factors may have, such as the fact that a finding of an aggravating factor may allow the court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence.
Id. at 541-42, 681 S.E.2d at 275 (citation omitted).
In Lopez, although the prosecutor's line of questioning likely misled the jury and was error, the Supreme Court held the defendant failed to meet his "burden of establishing that, but for the error, there [was] a reasonable possibility that the jury would have reached a different result." Id. at 542, 681 S.E.2d at 276.
Here, as in Lopez, defendant failed to meet his burden on appeal. However, defendant's burden here is even higher than Lopez's because he must show that "the jury probably would have reached a different result" but for the error. See Garcell, 363 N.C. at 35, 678 S.E.2d at 634 (emphasis added). Accordingly, we hold that it was not plain error for the trial court to permit the State to question defendant about his sentence during cross-examination.
D. Closing Arguments
Defendant next argues that the trial court erred in failing to intervene ex mero motu during the prosecutor's closing arguments. We disagree.
We review the State's closing argument, which was not objected to at trial, for ex mero motu error under State v. Lawson. 194 N.C. App. 267, 273-74, 669 S.E.2d 768, 773-74 (2008) ("When a defendant fails to object during the State's closing argument, our review is limited to whether the argument was so grossly improper as to warrant the trial court's intervention ex mero motu. Such action is required of the trial court only if the State's argument strays so far from the bounds of propriety as to impede [the] defendant's right to a fair trial.") (quotations and citations omitted).
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).
"[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence." Jones, 355 N.C. at 128-29, 558 S.E.2d at 105 (citation omitted).
Defendant argues that the prosecutor misrepresented the evidence by stating that defendant was the aggressor who got the knife, stabbed Bivens, and then took Bivens's keys, wallet, money, and car as he fled. Defendant assigns error to the following statements taken from the State's closing argument:
His first story to the police about the Ray-ray killing Mark Bivens is what happened. The only difference is he was Ray-ray. In that story there was no provocation by Mark Bivens.
He only told you on the stand on cross-examination he admitted that he had just flipped himself and Ray-ray.
* * *
What else is very important about this Ray-ray story, [M]ark Bivens never picked up Melvin Ferguson on February 23. He can't even tell you where he was picked up.
Because he was waiting at Mr. Bivens' apartment, just like he claimed Ray-ray was.
In her closing argument, the prosecutor did not stray so far from the bounds of propriety to infringe on defendant's right to a fair trial. The prosecutor argued a reasonable inference that defendant committed the crime in the same manner that he attributed to "Ray-ray" in his first statement. In his first recorded statement, defendant told police that a man named "Ray-ray" took a knife from Bivens's kitchen, followed Bivens into his bathroom, and brutally murdered him. The prosecutor argued that defendant had created Ray-ray, a fictional character who murdered Bivens in the same manner that defendant actually did. The basis for this argument was that defendant's description of Ray-ray's clothing exactly matched the clothing that defendant had been wearing on 23 February 2007. The prosecutor drew a reasonable inference that defendant likely described the conduct of the fictional Ray-ray in killing Bivens by using his own conduct as a basis. See Lawson, 194 N.C. App. at 275, 669 S.E.2d at 773. The trial court did not err in failing to intervene ex mero motu.
Defendant next argues that it was improper for the prosecutor to call defendant a liar in the closing argument. State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994). Here, the prosecutor did not call defendant a liar. The prosecutor merely asked the jury to conclude that defendant was lying because he had lied several times about his name and had given multiple, inconsistent accounts of the events surrounding Bivens's killing. Id. at 489, 450 S.E.2d at 465. "This was evidence from which the prosecuting attorney could argue that the defendant had not told the truth on several occasions and the jury could find from this that he had not told the truth at his trial." Id.
Defendant next argues that the prosecutor's statement that "you have got [defendant] who from age six was assaulting people, bullying people. Sexually making passes at people, pulling down their pants" amounted to character assassination that prejudiced defendant.
During the direct and cross-examination of defense witness Dr. Jeanne Murrone, a psychologist, the elementary school records of defendant were discussed. They revealed that defendant had bullied other children, and had engaged in sexually inappropriate behavior towards other children, including pulling down his pants.
Counsel "are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence." Jones, 355 N.C. at 128-29, 558 S.E.2d at 105 (citation omitted). Evidence of the incidents referenced by the prosecutor in her closing argument was in fact presented at trial. We hold that this argument was not improper.
Defendant next argues that the prosecutor's closing argument that, "[i]f you are convicted of voluntary manslaughter, you can get as little as 38 months in the jail" was improper because it asserted a sentencing range before one had been determined. We agree that this argument was improper under the rationale of State v. Lopez, supra. However, defendant cannot meet his burden of proof that it was so grossly improper that it impeded the defendant's right to a fair trial.
E. Jury Instructions
Defendant next argues that the trial court erred in instructing the jury how to consider defendant's confession in accordance with North Carolina Criminal Pattern Jury Instruction 104.70. We disagree.
The trial court gave the following jury instruction, which is identical to the pattern jury instruction: "If you find from the evidence that defendant has confessed that the defendant committed the crime charged in this case, then you should consider all the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it."
Our Supreme Court considered this instruction in State v. Duke, explaining that the instruction is proper "[w]hen evidence is introduced which would support a finding that the defendant in fact has made a statement admitting his guilt of the crime charged[.]" 360 N.C. 110, 123-24, 623 S.E.2d 11, 20 (2005) (quotations and citation omitted). In Duke, the defendant had admitted to police that he had killed the victims by hitting them multiple times with a fire extinguisher and described in detail the events surrounding the killings. Id. at 124, 623 S.E.2d at 20-21. The Court explained that these admissions supported the instruction, which "left it to the jury to conclude whether the confession occurred and what weight to give it." Id. at 124, 623 S.E.2d at 21.
Here, defendant told police that he had stabbed Bivens and described in detail how the altercation had occurred. This was sufficient to support the confession instruction, which allowed the jury to conclude whether the confession had actually occurred and, if so, what weight to give it. Accordingly, the trial court did not err by giving the instruction.
F. Restitution
In his final argument, defendant contends that the trial court erred by ordering him to pay $1,213.12 in restitution to Bivens's family because the order was not supported by any evidence. The State does not contest this error. We agree that the restitution order was not supported by the evidence and reverse it.
At the sentencing hearing, the State tendered to the court a Restitution Worksheet, Notice and Order on AOC form CR-611. The State submitted no evidence in support of its restitution request.
"[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing." State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (quotations and citation omitted). A prosecutor's unsworn statements "[do] not constitute evidence and cannot support the amount of restitution recommended." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992) (citations omitted). "[E]ven where a defendant does not specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18)." State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (quotations and citation omitted).
We reverse the order of restitution and the portion of the judgment pertaining thereto and remand for a new hearing on the amount of restitution.
III. Conclusion
We hold that defendant received a fair trial, free from prejudicial error. However, we reverse the restitution order and remand this case to the trial court for a new sentencing hearing, limited to the amount of restitution.
No prejudicial error. Remanded for new sentencing hearing on restitution.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).