Opinion
No. COA12–731.
2013-03-5
STATE of North Carolina v. James Earl RICHARDSON.
Attorney General Roy Cooper, by Special Deputy Attorney General Sonya Calloway–Durham, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
Appeal by defendant from judgment entered 6 April 2011 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 28 November 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Sonya Calloway–Durham, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
CALABRIA, Judge.
James Earl Richardson (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of two counts of first-degree murder and two counts of firing a weapon into occupied property. We find no error.
I. Background
The State presented evidence that in June 2009, defendant borrowed a white 1993 BMW 525 (“the BMW”) from a friend. On 30 June 2009, defendant drove the BMW to a bar called The Other Place (“the OP”) in Greenville, North Carolina and parked in a nearby lot. Several friends accompanied defendant to the OP, including his brother, Andre Richardson (“Andre”), Cario Arrington (“Arrington”), and Latoya Boyd (“Boyd”).
After engaging in an altercation at the OP, defendant was escorted from the bar. When Arrington and Andre observed defendant leaving the bar, they followed him outside. Once outside, another fight ensued between defendant and Matt Blackmon (“Blackmon”), a co-owner of the OP.
When the fight ended, several individuals observed defendant, or someone fitting his description, jogging from the OP toward a white BMW. Rachel Burke (“Burke”) observed the person who approached the BMW remove a handgun from the trunk of the vehicle and cock the gun then enter the vehicle and drive away. Although Burke could not identify defendant as the driver of the BMW, Jeff Sealy (“Sealy”) did. Following the altercation at the OP, Sealy followed defendant, saw him remove a gun from a white BMW he was driving, enter the vehicle and drive towards the OP.
As Arrington and Andre walked to their car, Arrington observed a white vehicle, later identified as a BMW, speeding by and subsequently heard shots fired. Bystanders in the OP parking lot also observed a white BMW speeding and traveling the wrong way on a one-way street. The parking lot bystanders indicated that a portion of the shooter's arm was visible, described the arm as light-skinned and stated that the shooter held a gun. However, only one observer, Vidal Thorpe (“Thorpe”), identified defendant as the shooter. Thorpe was acquainted with defendant and saw defendant's profile as he shot the gun from the vehicle. As a result of the shots that were fired, two men were injured, Edgar Landon Blackley and Charles Andrew Kirby. Both men died as a result of gunshot wounds to their chests.
Arrington and Andre rejoined defendant at a friend's house later that morning. When Arrington arrived, he noticed the BMW was parked a few houses up the street. Arrington then observed some individuals sitting in the BMW but could not identify them. Subsequently, defendant, Arrington, Andre and Boyd traveled to Raleigh and stayed in a hotel until the next afternoon.
When the officers investigated, they recovered six spent .45 casings from the area surrounding the shooting. All the casings had been fired from the same gun and were consistent with being fired from a Highpoint brand gun. Defendant owned a Highpoint .45 semi-automatic handgun.
A few days after the shooting, defendant contacted Detective Sean Moore (“Detective Moore”), a childhood friend and inquired if the situation was “f'd up” or “did [defendant] ‘f up?’ “ Detective Moore advised defendant that the situation was “not good.” Several days later, defendant contacted Detective Moore again. This time, defendant indicated he was ready to surrender to law enforcement. Detective Moore arrested defendant.
Defendant was charged with two counts of first-degree murder and two counts of discharging a firearm into an occupied building. At trial in Pitt County Superior Court, the jury returned verdicts finding defendant guilty of all charges. The trial court sentenced defendant to consecutive sentences of life in prison without the possibility of parole for the two counts of first-degree murder, a minimum of 25 and a maximum of 39 months for one count of discharging a firearm into an occupied building and a minimum of 73 and a maximum of 97 months for the other count of discharging a firearm into an occupied building. All sentences were to be served in the North Carolina Department of Correction. Defendant appeals.
II. Expert Testimony
Defendant argues that the trial court erred by excluding expert testimony regarding factors affecting the reliability of eyewitness identifications and eyewitness statements since multiple eyewitness accounts were conflicting. Defendant contends this exclusion deprived him of his due process rights under the United States and North Carolina Constitutions. We disagree.
“[A] trial court's ruling on the ... admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (internal citations omitted). When evaluating “expert testimony regarding memory factors ... the appellate court will not intervene where the trial court properly appraises the probative and prejudicial value of the evidence under Rule 403 and the Rules of Evidence.” State v. Lee, 154 N.C.App. 410, 417, 572 S.E.2d 170, 175 (2002) (citations omitted). “Expert testimony is properly admissible when it can assist the jury to draw certain inferences from facts because the expert is better qualified.” State v. Suddreth, 105 N.C.App. 122, 134, 412 S.E.2d 126, 132 (1992) (internal quotations omitted).
The trial court's findings of fact following a voir dire hearing are binding if supported by substantial evidence in the record. Lee, 154 N.C.App. at 417, 572 S.E.2d at 175. However, conclusions of law based upon those findings are reviewable on appeal. Id.
In the instant case, defendant sought to introduce the testimony of Dr. Lori Van Wallendael (“Dr. Van Wallendael”), the associate chair of the department of psychology as well as an associate professor at the University of North Carolina at Charlotte. The trial court held a voir dire hearing to determine whether Dr. Van Wallendael's testimony would help the jury. According to Dr. Van Wallendael, her review of the case included examining eyewitness identifications and eyewitness statements, police reports and witnesses' testimony at a suppression hearing. In addition, Dr. Van Wallendael visited the crime scene at night and observed three days of the State's testimony during the trial. The purpose of her testimony was to help the jury “determine the factors that contribute to relatively accurate or relatively inaccurate eyewitness testimony....” Following the hearing, the trial court made findings of fact and conclusions of law:
[Dr. Van Wallendael] has visited the scene and reviewed the statements and has reviewed lineup materials dealing with Discovery in the case. The [c] ourt finds that she has not interviewed all of the witnesses and has not observed all of the eyewitness testimony. And the [c]ourt concludes that the probative value considered—of her testimony considered in the light most favorable to the Defendant, is outweighed by the danger that the testimony of an expert witness would confuse the jury, that it would be unduly prejudicial in the Defendant's favor and that it would not be of significant assistance to the jury. And, therefore, denies the—sustains the objection by the State.
As there is no dispute that the facts found by the trial court were supported by competent evidence, the issue is whether the trial court properly concluded that Dr. Van Wallendael's testimony would confuse the jury, be prejudicial in favor of defendant and not be of significant assistance to the jury, so that the prejudicial effect of her testimony outweighed its probative value.
“The test for admissibility is whether the jury can receive appreciable help from the expert witness. Applying this test requires balancing the probative value of the testimony against its potential for prejudice, confusion, or undue delay.” Suddreth, 105 N.C.App. at 134, 412 S.E.2d at 132 (internal quotations omitted); seeN.C. Gen.Stat. § 8C–1, Rule 403 (2011).
In State v. Cotton, the expert sought to testify regarding factors affecting eyewitness identification, including “lighting, stress, cross-racial identification, priming of memory, unconscious transfer, and loss of memory over time....” 99 N.C.App. 615, 621, 394 S.E.2d 456, 459 (1990). This Court found no abuse of discretion where the “trial court properly appraised the probative and prejudicial value of the evidence” and determined that the admission of the evidence would be “unduly prejudicial in the defendant's favor.” Id. at 621–22, 394 S.E.2d at 460. In Suddreth, the only basis for the expert's opinion regarding the reliability of eyewitness identification was his review of the transcript of the victim's testimony. 105 N.C.App. at 134, 412 S.E.2d at 133. The expert had not interviewed the victim, visited the crime scene, or observed the victim's testimony; therefore, this Court deferred to the trial court and found exclusion of the evidence proper. Id.
In the instant case, witnesses for the State and defendant provided conflicting testimony regarding the identification of the shooter. While several of the witnesses described the shooter as having characteristics matching those of defendant, the descriptions were not identical. Only one witness, Thorpe, indicated that he saw defendant's profile in the car and identified him as the shooter. Dr. Van Wallendael visited the scene, reviewed witness statements and lineup materials and observed some of the in-court testimony. However, she did not interview the witnesses and did not hear all of the in-court testimony, particularly the testimony of the defense witnesses and Thorpe's testimony. Defendant indicates that he only intended to question Dr. Van Wallendael regarding the testimony of the witnesses whose testimony she did observe. However, since she did not hear the testimony of the defense witnesses, she would have only testified about the reliability of the State's witnesses' identification. Therefore, the trial court did not abuse its discretion by concluding that the testimony would have been unfairly prejudicial and was more prejudicial than probative.
III. Prior Out–of–Court Statements
Defendant contends that the trial court committed reversible error by admitting Arrington's prior out-of-court statements to Detective Connie Elks (“Detective Elks”), arguing that while the State offered the statements for corroborative purposes, the statements were not corroborative because they included significant factual differences from his in-court testimony. We disagree.
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen.Stat. § 8C–1, Rule 801(c) (2011). When statements are admitted “for the purpose of substantiating the witness' credibility[,]” they are not hearsay because they are “not offered for their substantive truth.” State v. Levan, 326 N.C. 155, 167, 388 S.E.2d 429, 435 (1990).
Corroborative statements of a witness “may be admitted to corroborate the witness's” testimony in court. State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991).
Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. Prior statements admitted for corroborative purposes are not to be received as substantive evidence. If the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible.
Id. at 681–82, 403 S.E.2d at 303–04 (internal quotation marks, modifications, and citations omitted). “A prior consistent statement may be admissible as non-hearsay even when it contains new or additional information when such information tends to strengthen or add credibility to the testimony which it corroborates.” Levan, 326 N.C. at 167, 388 S.E.2d at 435. However, “prior contradictory statements may not be admitted under the guise of corroborating [ ] testimony.” State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986). It is the jury's responsibility to determine if “the proffered testimony does, in fact, corroborate the testimony of another witness.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). “We review de novo a trial court's determination of whether an out-of-court statement is admissible.” State v. Gabriel, 207 N.C.App. 440, 445, 700 S.E .2d 127, 130 (2010).
In Levan, a law enforcement officer's testimony regarding the prior statement of one of the witnesses contained variations from the witness's in-court testimony, including who initiated the situation that left the defendant and the victim alone together, who disposed of the murder weapon and details about the defendant's drug business. 326 N.C. at 165–66, 388 S.E.2d at 434. The Court held that these variations were slight and therefore the testimony was properly admitted. Id. at 167, 388 S.E.2d at 435;see also Ramey, 318 N.C. at 468–69, 349 S.E.2d at 573 (where the Court held that although the detective's testimony included additional facts, the testimony strengthened and added credibility to the victim's testimony and thus it was properly admitted as corroborating evidence). However, in State v. McCree, where the victim's prior statement indicated he had been struck by a gun, but his testimony at trial was that he was struck by a fist, the Court held the admission of the allegedly corroborative evidence constituted prejudicial error, despite the existence of evidence that would have supported an inference that the victim had been struck by a gun. 160 N.C.App. 200, 207–08, 584 S.E.2d 861, 866 (2003); see also State v. Burton, 322 N.C. 447, 450–51, 368 S.E.2d 630, 632–33 (1988) (holding that a statement which contradicted a witness's trial testimony concerning a hotly contested fact which was crucial to the defense was not admissible for corroborative purposes).
In the instant case, Arrington testified that after defendant ran towards the vehicle, Arrington remained at the OP for a few minutes and did not see the BMW drive by until he walked away from the OP. In addition, Arrington testified that he could not see who was in the vehicle, could not see how many people were in the car and could not see who was driving. When asked if he saw more than one person in the car, he answered “[n]o, I—no, I think I didn't.” At this point, the State made a motion to admit Arrington's prior statement and defendant objected, claiming that portions of the interview were not corroborative of Arrington's testimony. The trial court redacted some of the statement but allowed the State to introduce the remainder of the statement into evidence. During the interview, Arrington indicated that defendant was alone in the BMW at the time of the shooting:
Ms. Elks: Who else was in the car with James when he left for that parking—that one-way parking space?
Mr. Arrington: Nobody, he was by hisself.
Ms. Elks: Are you positive that you weren't with him or you didn't get in the car with him?
Mr. Arrington: I'm positive, a thousand percent, that nobody go [sic] in that car with James.
Ms. Elks: Not Andre, not the girl or anybody?
Mr. Arrington: Nobody.
In seeking to persuade us that the admission of Arrington's out-of-court statement constituted reversible error, defendant points to the fact that, while Arrington told investigating officers that defendant was by himself in the BMW, he testified that he did not know who was driving or how many people were in the car. In addition, defendant contends that any error was magnified when the trial court allowed the jury to review Arrington's out-of-court statements during its deliberations. The jury requested that they wanted to review Arrington's testimony. Since the trial transcript was not prepared, the trial court gave the jury Arrington's out-of-court statements, despite defendant's objection.
However, even if the trial court erred by admitting Arrington's out-of-court statements, defendant has not shown that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached” at trial. N .C. Gen.Stat. § 15A–1443(a) (2011). Although Arrington refused to explicitly state that defendant was driving the BMW and did not have any passengers, that fact could be readily inferred from his trial testimony. In view of the additional evidence tending to show that defendant was driving the BMW at the time of the shootings and that he was alone at that time, which consisted of the testimony of several other witnesses to that effect, and the fact that the “new facts” contained in the challenged statement can be reasonably inferred from Arrington's trial testimony, we conclude that the trial court did not commit reversible error by refusing to sustain defendant's objection to the admission of this evidence.
IV. Behavior of Mother and Brother
Defendant next contends that the trial court committed reversible error in admitting evidence of the behavior of defendant's mother and brother in that it “was not related to guilt or innocence and encouraged improper speculation by the jury.” We disagree.
“The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (2000) (internal citation and quotation marks omitted).
Although the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court's ruling on relevancy pursuant to Rule 401 is not as deferential as the ‘abuse of discretion’ standard which applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C.App. 259, 266, 591 S.E.2d 11, 17 (2004) (internal citation and quotation marks omitted). “We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
In the instant case, Detective Alvaro Elias (“Detective Elias”), a detective with the Greenville Police Department, and Detective Elks both testified regarding their attempts to speak with Andre during the course of the investigation. When they attempted to speak to Andre, defendant's mother blocked the detectives from getting to Andre's car and stalled them until he could leave.
Defendant contends his family's conduct was irrelevant to his own conduct, and therefore was inadmissible. The State contends that the evidence was relevant in that Andre was present when the shooting happened, and had been identified as somewhat resembling his brother and wearing the same white shirt that many of the witnesses had said defendant was wearing. The jury, it argues, would have wondered why no testimony had been given by Andre.
Even assuming, arguendo, that the testimony was admitted in error, defendant has failed to show that absent the error, there is a reasonable possibility that a different result would have been reached at trial. The State's evidence demonstrated that defendant engaged in two altercations at the OP, threatened the patrons outside the OP as he retreated to his vehicle, retrieved a handgun from the trunk of the BMW, sat in the driver's seat, drove past the OP and fired shots. While the defendant did offer evidence that might have suggested another individual could have been the shooter, we do not find that the officers' testimony regarding the actions of members of defendant's family prejudiced defendant.
V. Closing Arguments
Defendant contends that the trial court committed reversible error by not sustaining defendant's objections to the State's closing arguments or by not intervening ex mero motu to stop portions of the State's argument. We disagree.
When a defendant makes a timely objection to an improper closing argument, this Court must determine “whether the trial court abused its discretion by failing to sustain the objection. In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citations and quotation marks omitted). However, when the defendant fails to object, the standard of review is “whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” Id. at 133, 558 S.E.2d at 107.
A. Credibility of Witnesses
In the instant case, defendant contends that the State improperly vouched for the verity of its witnesses by indicating that the “State is under an ethical obligation to only produce credible witnesses ...” and that the witnesses “had to be credible, or we would not have put them up, and that's the same in every case.” Defendant failed to object to the prosecutor's argument, so we must determine if the trial court erred by failing to intervene ex mero motu. We do not believe that ex mero motu intervention was required here.
“During a closing argument to the jury an attorney may not ... express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant[.]” N.C. Gen.Stat. § 15A–1230(a) (2011). However, a prosecutor is “allowed to argue that the State's witnesses are credible.” State v. Augustine, 359 N.C. 709, 725, 616 S.E.2d 515, 528 (2005); see also State v. Wiley, 355 N.C. 592, 622, 565 S.E.2d 22, 43 (2002) (finding the State did not improperly vouch for its witnesses when the prosecutor merely gave “the jury reasons to believe the [S]tate's witnesses....”). Even assuming, arguendo, that the prosecutor's argument did constitute improper vouching, the argument was not so grossly improper as to require the court to intervene ex mero motu given the State's ability to argue in support of the credibility of its witnesses, defendant's challenge to their credibility in this case, and the substantial evidence of defendant's guilt.
B. Defendant's Character
Defendant next argues the trial court erred in not intervening when the State, it contends, improperly attacked defendant's character:
I want to tell you what went wrong this night. The Defendant was trying to be the man. He was trying to be the tough guy—[Boyd] said, carrying a big old gun, down at the clubs, drinking.
You know, a real man would have come into town, taken his kids to a movie, taken his kids to Chi–fil–A, [sic] maybe gone and watched them play in a baseball game. A real man might have taken his mom to dinner.
When defendant objected to this argument, the trial court sustained the objection and stated “[l]adies and gentlemen, we are to argue the evidence and to argue the law.” Following the trial court's instruction, the prosecutor finished her argument by stating, “[a]nd had he done that, ladies and gentlemen, these boys would still be alive. Thank you.”
The State argues that the trial court's intervention and instruction cured the error. While it is clear that the court sustained the objection, there was no curative instruction given. However, “a trial court does not commit reversible error when it fails to give a curative jury instruction absent a request by defendant.” State v. Hunter, 208 N.C.App. 506, 517, 703 S.E.2d 776, 784 (2010) (citations omitted) (where the trial court sustained the defendant's objections and admonished the prosecutor, this Court held that the admonition “neutralized the improper statements” and found no error).
In the instant case, defendant did not request a curative instruction from the trial court; therefore, the trial court was not required to give such an instruction. See id. Furthermore, the trial court admonished the prosecutor and instructed her to “argue the evidence and ... the law.” Just as in Hunter, the trial court's admonition “neutralized the improper statements,” so we find no error. Id.
C. Failure of Defendant's Brother to Testify
Defendant also contends that the trial court erred by allowing the prosecutor's comments regarding the fact that Andre did not testify and the inferences that he encouraged the jury to draw from Andre's silence. We disagree.
While prosecutors are afforded wide latitude in presenting closing arguments to the jury, the Supreme Court has determined closing arguments must “(1) be devoid of counsel's personal opinion; (2) avoid name-calling and/or references to matters beyond the record; (3) be premised on logical deductions, not on appeals to passion or prejudice; and (4) be constructed from fair inferences drawn only from evidence properly admitted at trial.” State v. Jones, 355 N.C. 117, 135, 558 S.E.2d 97, 108 (2002). A prosecutor “may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict” the State's evidence. State v.. Barden, 356 N.C. 316, 355, 359, 572 S.E.2d 108, 133, 135–36 (2002) (citation omitted) (holding prosecutor's argument that defendant's testimony that he had been struck and his tooth hurt was undermined by his failure to call a dentist was proper).
In the instant case, the prosecutor commented on Boyd's actions and the fact that Andre did not testify:
Well, I guess [Boyd] would know. She didn't say anything. Of course, Andre would know. Andre, he would know. But, you know, we're sitting here, and we're waiting for the—for the defense to say—Judge, we've got one more witness. Andre Richardson, come on in here and testify. Did you ever hear that?
MR. MOORE: Object, Your Honor.
THE COURT: Overruled.
MR. EVERETT: Did you ever hear it? Now, they don't have to put on one bit of evidence, folks. None. They can sit quietly. But they did. They put up Dearl Powell; they put up Nick Golden; they put up Brian Richards. Why didn't they put up the guy who was there? Now, we know he didn't do it. He's not the one that did it. [Boyd] told you that. [Arrington] told you that. He's not the shooter. Why didn't they call him? We tried to find him. We tried to get him. You heard it, several times. Even found him one night. We couldn't talk to him. It's his brother, his brother. That speaks absolute volumes, when your own brother won't come and testify for you.
MR. MOORE: Objection, Your Honor.
THE COURT: Overruled.
MR. EVERETT: Well, he didn't. Think about your brother or your sister. How many folks would it take to hold you back? How many? And you can consider that, folks. You can consider it, because it is common sense. It is how the world is. It is a—it is what we all—family is what we all have, and there is a reason, because he could not help him.
The prosecutor argued, without objection, that Boyd did not want to be in court and made implications regarding the reasons she did not come forward.
Defendant concedes that a prosecutor “may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict” the State's evidence. See Barden, 356 N.C. at 355, 572 S.E.2d at 133. However, defendant contends that in the instant case, it was improper for the prosecutor to invite the jury to speculate as to what Andre and Boyd knew without any basis in the evidence.
In State v. Phillips, the defendant's mother was present at the trial, but did not testify and the prosecutor mentioned this fact during his closing argument, stating “[h]is own mother. If she had those things [regarding his mental capacity on the day of the murder] to tell you when her son is on trial, don't you think she would.” 365 N.C. 103, 137, 711 S.E.2d 122, 147 (2011)cert. denied,––– U.S. ––––, 182 L.Ed.2d 176 (2012). The Court held that the prosecutor's observation that the defendant's mother did not testify was proper because his “argument merely pointed out that a witness was available who could have corroborated defendant's defense, if that defense were valid.” Id. at 138,711 S.E.2d at 147. Defendant points to several cases where the Court found error when a prosecutor argued a prejudicial inference based on mere speculation. See State v. Forney, 310 N.C. 126, 132, 310 S.E.2d 20, 24 (1984) (prosecutor's argument which included a detailed account of the night when victim was killed despite those details having never been introduced into evidence held improper); State v.. Sparks, 307 N.C. 71, 78, 296 S.E.2d 451, 455 (1982) (holding prosecutor's argument that the defendant had been exposed to consensual anal intercourse while in prison was improper as there was no evidence to support it); State v. Monk, 286 N.C. 509, 516–17, 212 S.E.2d 125, 131–32 (1975) (holding prosecutor's argument pointing out that defendant had not testified to be improper).
We find that the instant case is more closely aligned with Phillips than the cases cited by defendant. Andre and Boyd were with defendant on the night of the incident and could have supported his theory of the case that he was not the shooter. As in Phillips, the prosecutor's argument merely pointed out that there were other individuals who could have corroborated defendant's claims. As the prosecutor's argument was not improper, the trial court did not err by not sustaining defendant's objection or intervening ex mero motu.
VI. Conclusion
The trial court did not abuse its discretion by excluding Dr. Van Wallendael's expert testimony. In addition, the trial court did not commit prejudicial error by allowing Arrington's out-of-court statement or by allowing the detectives to testify regarding the activities of defendant's family. Furthermore, the trial court did not err in not sustaining some of the prosecutor's statements, or by not intervening ex mero motu during closing arguments.
No error. Judges BRYANT and ERVIN concur.
Report per Rule 30(e).