Opinion
No. COA12–351.
2012-11-6
STATE Of North Carolina v. David Lee MIZELLE.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Geoffrey W. Hosford for defendant appellant.
Appeal by defendant from judgment entered 14 September 2011 by Judge Richard Doughton in Carteret County Superior Court. Heard in the Court of Appeals 22 October 2012. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Geoffrey W. Hosford for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from a judgment entered upon his conviction for aggravated felony death by vehicle. We find no error.
Evidence at trial establishes the following factual background. In the early morning hours of 18 September 2010, two Cherry Point police officers were traveling on Highway 101 when they discovered a black Corvette that had struck a tree. An EMS team, the fire department, and the Highway Patrol also responded. The car had struck the tree on its passenger side and remained embedded, with its frame bending around the tree. State Trooper Victor Lee testified that the damage to the right side of the vehicle was extremely severe. He estimated that the car struck the tree at approximately fifty miles per hour, decelerating from an initial speed of seventy miles per hour.
Law enforcement officers found the owner of the Corvette, Demetri Georgotas, inside the vehicle deceased. Mr. Georgotas' feet were in the passenger side of the floorboard, and his body was leaning over the console towards the driver's side of the car. A medical examiner testified that the cause of Mr. Georgotas' death was severe blunt force trauma to his head, that his death was instantaneous, and that acute ethanol intoxication was a contributing factor. Mr. Georgotas had a blood alcohol concentration of 0.13.
The officers found defendant unconscious approximately ten feet from the vehicle, on the side of the car opposite the tree. Defendant had an airway obstruction and a severe head injury. On the night of the accident, defendant had a blood alcohol concentration of 0.16.
The Corvette had T-tops, and therefore had openings on both sides of the roof. The car had significant damage on its right side, where it impacted the tree. Trooper Lee testified the car had split in half on the left side, with the front detaching from the back. Although the driver's side of the car had split open, the driver's side door remained in place. Law enforcement did not seek fingerprint testing on the steering wheel. Nor did they check for blood on the driver's side of the vehicle.
At the close of the State's evidence, defendant moved to dismiss the charge against him, and the trial court denied his motion. Defendant renewed his motion to dismiss at the close of all evidence, which the trial court again denied.
The State argues that defendant did not properly review his motion to dismiss and obtain a ruling at the close of all evidence. While the trial court may not have formally ruled upon defendant's motion, we find that the court's comment constitutes an implicit denial.
On 13 September 2011, a jury found defendant guilty of aggravated felony death by vehicle. The trial court sentenced defendant to an active term of 64 to 86 months' imprisonment. Defendant appeals.
Defendant first argues that the trial court erred by denying his motion to dismiss. “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
Defendant argues that the State failed to produce substantial evidence that he was the driver of the Corvette. We disagree. Two officers testified that Mr. Georgotas' feet were on the passenger side floorboard of the car and that his body was leaning towards the driver's side. Defendant was found outside the vehicle, on the side opposite the tree. Based on the positioning of defendant and Mr. Georgotas, and the fact that no one else was found at the scene of the accident, one can infer that defendant was the driver of the vehicle and that Mr. Georgotas was the passenger. Therefore, we conclude that there was substantial evidence from which a jury could conclude that defendant was the driver of the Corvette. Accordingly, we hold that the trial court did not err in denying defendant's motion to dismiss.
Next, defendant argues that the trial court erred in overruling defendant's objection to the prosecutor's closing argument. During the State's closing argument, the following exchange took place:
MR. SPENCE: Defense has all the evidence. They have our entire file. They know what the evidence is. They know what their defense is. One year to examine all that stuff to try to keep his client from being convicted. And the only person that you hear from as a witness for the defense is a member of the river gang.
MR. WALLACE: Objection, Judge.
THE COURT: Let me see the attorneys up here.
(Sidebar Conference)
THE COURT: Overruled.
MR. SPENCE: Not one witness has come forward except the woman who cannot tell you what her testimony has to do with this case whatsoever. You know. We talked about Adams Creek and the water and, you know, the barbecues and the beer drinking. That's all well and fine. And the hospital visits. And the Medicare. You know. It was a bunch of stuff. But it really was nothing about actual—what this case is about.
Defendant contends that this portion of the prosecutor's closing argument constitutes an improper comment on defendant's failure to testify.
We disagree. It is well established that “[a] prosecutor may not make any reference to or comment on a defendant's failure to testify.” State v. Mason, 315 N.C. 724, 732, 340 S.E.2d 430, 436 (1986) (citations omitted). “However, a ‘defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury's attention by the State in its closing argument.’ “ Id. (quoting State v. Jordan, 305 N.C. 274, 280, 287 S.E.2d 827, 831 (1982)).
In the instant case, the State did not directly comment on defendant's failure to testify. Nor did the State argue that defendant had a burden to prove his innocence. Rather, the State merely commented that defendant had failed to produce witnesses who could refute the State's evidence. See id. at 733,340 S.E.2d at 436. “Such statements do not constitute an impermissible comment on defendant's failure to take the stand.” Id. Accordingly, we hold that the trial court did not err in overruling defendant's objection to the prosecutor's closing argument.
No error. Judges HUNTER (ROBERT C.) and CALABRIA concur.
Report per Rule 30(e).