Opinion
No. COA12–111.
2012-10-2
STATE of North Carolina v. Jessica Elona Marie JOHNSON.
Attorney General Roy Cooper, by Special Deputy Attorney General David B. Efird, for the State. Jarvis John Edgerton, IV for Defendant.
Appeal by Defendant from judgments entered 12 August 2011 by Judge Phyllis M. Gorham in Onslow County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Special Deputy Attorney General David B. Efird, for the State. Jarvis John Edgerton, IV for Defendant.
BEASLEY, Judge.
Jessica Elona Marie Johnson (Defendant) appeals from judgment entered 12 August 2011 on her convictions for assault with a deadly weapon and carrying a concealed weapon. For the following reasons, we find no error.
On 15 April 2009, Defendant attended a concert at Hooligans Restaurant, Pub & Music Hall in Jacksonville, North Carolina. Defendant was accompanied by her live-in boyfriend, Scott Smith, her neighbor, Alyssa Wing, Wing's husband, Jeffrey Mitchell, and Wing's close friend, Jody Pammaskah. While at Hooligans a dispute arose between Defendant and Wing, and the two women engaged in a physical altercation which resulted in their expulsion from the bar. Defendant testified that she was washing dishes in her home later that evening when her dog escaped, and she and Smith left the house to search for the dog. Defendant claimed that because she was washing a steak knife when the dog escaped, she inadvertently carried the knife when venturing out to find the dog. Defendant also testified that she heard her dog barking and its name being called from inside Wing's home. However, Wing testified that she saw Defendant walking her dog outside and that the dog then ran into Wing's house without a collar on.
By both parties' accounts, Defendant and Smith approached Wing's door to retrieve their dog. Although the evidence is conflicting with regard to which party started the fight, the record shows that Defendant and Wing began wrestling, throwing punches, and pulling each other's hair. During the altercation, Defendant stabbed Wing multiple times. As the injured Wing ran back into her home, Pammaskah emerged from the house and began fighting with Defendant. Pammaskah was also stabbed multiple times. As a result of her injuries, Wing underwent surgery and was hospitalized for several days.
Defendant was charged with two counts of assault with a deadly weapon with intent to kill and inflicting serious injury, and two counts of carrying a concealed deadly weapon. At trial, the prosecutor's closing argument included the following:
Now, her [H]onor will give you the law with regard to self-defense, and she will tell you, self-defense does not apply if one of these things is present: First, the defendant did not reasonably believe that the assault was necessary or appeared to be necessary to protect the defendant from death or serious bodily injury.
Well, ladies and gentlemen, we would submit, when you go to a cat fight with a girl, and its hair pulling and scratching and wrestling on the ground, it is not reasonable to believe that you are going to die or you're going to have serious bodily injury. And serious bodily injury is extremely serious; comas, loss of limbs, disfigurement. How is someone that is unarmed going to put you in a coma or cause disfigurement or loss of limb?
By verdict entered 12 August 2011, Defendant was found guilty of one count of assault with a deadly weapon inflicting serious injury and one count of carrying a concealed weapon. Defendant gave notice of appeal in open court that same day.
On appeal, Defendant argues that while she failed to object to the State's closing argument, the trial court erred by failing to intervene ex mero motu when the prosecutor made improper comments during the argument.
The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord[.]
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (internal citations omitted). “To establish such an abuse, defendant must show the prosecutor's comments so infected the trial with unfairness that it rendered the conviction fundamentally unfair .” State v. Walters, 357 N.C. 68, 110, 588 S.E.2d 344, 369 (2003) (citations and internal quotation marks omitted).
Defendant's allegations regarding the impropriety of the State's closing arguments are based on two separate remarks made by the prosecutor. First, Defendant contends that the prosecutor misstated the law by using the term “serious bodily injury” instead of “great bodily harm” when referring to the reasonable fear that Defendant must have had to be justified in employing deadly force in self-defense. Defendant argues that, while “serious bodily injury” was properly characterized as “comas, loss of limbs, disfigurement,” the “great bodily harm” standard could be satisfied by less serious injuries. Therefore, Defendant contends that the prosecutor's use of the term “serious bodily injury” held her to a higher standard regarding the level of injury she had to fear from Wing and Pammaskah in order to be justified in stabbing them in self-defense.
Our Supreme Court has held that “[a] trial court is not required to intervene ex mero motu where a prosecutor makes comments during closing argument which are substantially correct shorthand summaries of the law, even if slightly slanted toward the State's perspective.” State v. Taylor, 362 N.C. 514, 546, 669 S.E.2d 239, 265 (2008) (citation and internal quotation marks omitted). In Taylor, our Supreme Court determined that a prosecutor's closing remarks were not grossly improper, although the remarks could be interpreted as a slight misstatement of the law, where “the prosecutor told the jurors they should look to the trial court for explanation and instruction” and the trial judge properly instructed the jury on the issue in question. Id. at 546, 669 S .E.2d at 266.
Here, the prosecutor told the jury that the trial court would instruct them on the law of self-defense and, following the State's closing argument, the jury was given proper instructions which correctly employed the phrase “great bodily harm.” Therefore, even if the prosecutor's use of the phrase “serious bodily injury” is a slight misstatement of the law, it does not amount to a grossly improper statement where the prosecutor also told the jury to look to the trial court for the instruction on self-defense and the trial court then gave the jury the proper instructions.
Defendant also takes issue with the prosecutor posing the rhetorical question “[h]ow is someone that is unarmed going to put you in a coma or cause disfigurement or loss of limb?” to the jury. Defendant argues that through that question the prosecutor implied that such reasonable fear is impossible as a matter of law when one's attacker is unarmed, even though this Court has found justifiable deadly force where a defendant is assaulted by an unarmed attacker.
While the use of a deadly weapon is generally not justified to repel a simple assault, that principle does not apply “where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm[.]” State v. Pearson, 288 N.C. 34, 40, 215 S.E.2d 598, 603 (1975) (internal quotation marks omitted). Regardless, “[t]he State is entitled to comment during closing argument on any contradictory evidence as the basis for the jury's disbelief of the defendant's story.” State v. Golphin, 352 N.C. 364, 454, 533 S.E.2d 168, 227 (2000). Defendant testified that she feared for her life during the altercations with Wing and Pammaskah, and the record indicates that Wing and Pammaskah are considerably larger than Defendant. However, Defendant was armed with a knife while Wing and Pammaskah were unarmed. The prosecutor was entitled to make an argument to the jury that there was a contradiction between Defendant's account of her fear and the fact that those she stabbed were unarmed.
Based on the foregoing, we do not find that the prosecutor's remarks during the State's closing argument were so grossly improper as to require the trial court to intervene ex meru moto.
No Error. Judges HUNTER, ROBERT C. and GEER concur.
Report per Rule 30(e).