Opinion
No. COA04-1175
Filed 5 April 2005 This case not for publication
Appeal by defendant from judgment entered 9 March 2004 by Judge Ed G. Wilson, Jr., in Forsyth County Court. Heard in the Court of Appeals 4 April 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State. Russell J. Hollers, III, for defendant-appellant.
Forsyth County Nos. 03 CRS 7132, 51760.
Noble O. Miller (defendant) was charged with possession with intent to sell and deliver cocaine. By a separate bill of indictment, defendant was charged with attaining habitual felon status. The State's evidence tended to show that on 18 February 2003, officers of the Winston-Salem Police Department were conducting surveillance of the 1401 Pleasant Street residence. The officers parked their vehicles about three houses away from the residence. At approximately 4:00 p.m., police observed a gray Pontiac Grand Am park in front of the residence. Defendant exited the vehicle and entered the residence through the side door. Defendant left the residence four minutes later and returned to his vehicle.
Defendant drove a short distance east on Pleasant Street, made a U-turn and headed in the direction of the surveillance vehicles. As defendant drove passed the surveillance vehicles, defendant made eye contact with Officer Mike Cardwell. Defendant then drove one more block, made a U-turn and parked in front of 1401 Pleasant Street. Defendant hurriedly entered the residence. When the police officers approached the residence, defendant came out and shut the door behind him.
Officer Mike Cardwell identified himself and advised defendant that he and his fellow officers were conducting an investigation of the location. Officer Cardwell smelled an odor of burnt marijuana coming from defendant and asked defendant if he had been smoking marijuana. Defendant responded that he had smoked marijuana earlier that day. Officer Cardwell then asked defendant if his vehicle contained marijuana. Defendant stated that there was a "blunt" in his vehicle. Upon a search of defendant's vehicle, Officer Cardwell found a plastic bag of marijuana and a burnt marijuana cigarette. Officer Cardwell also found a black jacket containing defendant's driver's license and two small plastic bags of cocaine. The officers arrested defendant and conducted a search of defendant's person, which yielded a total of $623.00 dollars and a hand-held metal scale. In response to routine booking questions, defendant indicated he was unemployed.
A jury found defendant guilty of the lesser included offense of possession of cocaine and of attaining habitual felon status. The trial court sentenced defendant to 70 to 93 months imprisonment. Defendant appeals.
Defendant contends the trial court erred by permitting the State to make improper statements during closing argument. Defendant failed to object to the closing arguments at trial, therefore, this Court must determine if the argument was "so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). Under these circumstances, "only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken." State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996). The test for our Court is "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).
Defendant challenges the following excerpts of the closing argument:
And first, we find the cocaine. And don't be fooled because it's small. It's like nuclear waste. It's deadly, tearing apart our society. And even though it's small, it's very valuable. That's why people sell it.
. . .
If this was the first time he'd ever been in that car, if that wasn't his coat, could have brought somebody to say, "That's not his coat, never seen him wear it before. That's not his car. This is the first time he's ever had the car. He's never been in that car."
. . .
[T]he only logical explanation for how he obtained that money is this — poisoning the community. . . . There is no explanation for that, except . . . ruining the lives of the members of Forsyth County to fulfill his greed.
Defendant argues that "the prosecutor argued facts outside the record, placed incompetent and prejudicial matters before the jury, and referred to Mr. Miller's decision not to put on any evidence."
We disagree, and do not find these arguments "strayed far enough from the parameters of propriety" that the trial court abused its discretion by not intervening of its own accord. Jones, 355 N.C. at 133, 558 S.E.2d at 107. Here, the prosecutor's comments regarding the drug trade's effect on the community and society are logical deductions or fair inferences from the evidence admitted at trial. See State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988) ("[c]ounsel may argue the facts in evidence and all reasonable inferences that may be drawn therefrom together with the relevant law in presenting the case."), cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988). When the prosecutor's statement about the lack of evidence is considered in its proper context, it is apparent that the prosecutor did not comment on defendant's failure to testify. In fact, the prosecutor himself informed the jury that "defendant has no obligation to put on any evidence" before making his comment. Moreover, after closing arguments, the court instructed the jury that defendant has the privilege not to testify. Finally, even assuming that any portion of the challenged remarks were impermissible, we find no probability that the outcome at trial was affected. Given the evidence in the present case, defendant has not carried the burden of establishing that the impropriety resulted in prejudice such that his conviction was a denial of due process. Accordingly, the trial court did not err in failing to intervene ex mero motu.
Defendant also contends, and the State agrees, his case should be remanded to the trial court to correct clerical errors in his judgment and commitment form. See State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) ("a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein."). Because the record clearly reflects these clerical errors, we agree, and remand the case to the trial court for the following corrections to the written judgments and commitment entered 9 March 2004: (1) the lead file number should reflect the predicate offense file number 03 CRS 051760, instead of the habitual felon indictment number 03 CRS 007132; (2) the offense for file number 03 CRS 051760, should state possession of cocaine and its offense class should state "I", instead of possession with intent to sell and deliver and class "H"; (3) the punishment class of offense for file number 03 CRS 051760 should reflect enhancement of Class "C"; and (4) block 5 should be checked to reflect that the possession of cocaine convictions are subject to an enhanced punishment based upon defendant's status as an habitual felon.
No error in the trial. Remanded for corrections.
Judges BRYANT and GEER concur.
Report per Rule 30(e).