State v. Torres , 77 N.C. App. 345 ( 1985 )

335 S.E.2d 34 (1985)

STATE of North Carolina
v.
Felix TORRES and Timothy Wayne Forsyth.

No. 8414SC1167.

Court of Appeals of North Carolina.

October 15, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Arthur Vann, Durham, for defendant-appellant Forsyth.

R. Marie Sides, Durham, for defendant-appellant Torres.

PARKER, Judge.

In their first and second assignments of error defendants argue that the trial court abused its discretion and committed prejudicial error in denying their motions in limine which sought to prevent introduction into evidence of rings purchased by defendant Torres after the incident and in admitting the rings into evidence at trial. We disagree.

"Generally, a motion in limine seeks to secure in advance of trial the exclusion of prejudicial matter.... In those jurisdictions which recognize the motion ... the uniform rule appears to be that the decision whether to grant the motion is addressed to the trial judge's discretion." State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979).

In this case, we discern no prejudice resulting from the trial judge's failure to grant defendant's motion in limine. Additionally, defendants failed to object when the rings were introduced into evidence at trial. See, State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976), holding that notwithstanding a pretrial motion to suppress objectionable evidence, the failure to object in apt time at trial to objectionable testimony results in a waiver of the objection so that admission of the evidence will not be reviewed on appeal. These assignments of error are overruled.

Next, defendants assert the trial court erred in permitting cross-examination of defendants concerning their prior convictions. Having failed to object to these questions at trial, defendants are precluded from raising the issue on appeal. Rule 10, Rules of Appellate Procedure.

Next, defendant Forsyth contends that the trial court erred in allowing the prosecutor over defense objections to hold a pellet gun up to view to the jury during his closing arguments and to make occasional references to the gun when the gun had not been admitted into evidence. We agree the court erred in this regard, but we do not believe this error constituted prejudical error.

Although it is well-established that "[a] prosecutor in a criminal case is entitled to argue vigorously all of the facts in evidence, any reasonable inference that can be drawn from those facts and the law that is relevant to the issues raised by the testimony," State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984), it is equally well-established that he may not argue facts not present in the record, State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), or facts not in evidence. State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984).

A review of the transcript reveals the jury was excused from the courtroom so the court could hear arguments and rule on defendant Forsyth's motion "to not have them [the State] put the gun in evidence." After argument, the court overruled the objection, and brought the jury back into the courtroom. The transcript reveals the following during examination of Akers:

Gun is marked State's Exhibit No. 1.

Mr. Stephens: It is a BB gun.

Court: It is a fake gun.

Q. Let me show you what has been marked previously State's Exhibit No. 1 and ask you if this looks in all respects like the weapon you saw that day?

A. Yes, sir, it does.

Q. Can you describe the manner in which it was held or being used?

OBJECTION BY MR. VANN; OVERRULED.

Q. Can I go ahead?

Q. Yes, Sir.

A. It was pointed at me like a regular gun would be pointed at me.

At the close of the State's evidence, the following transpired:

Mr. Stephens: That is going to be the evidence for the State. I believe all the exhibits that we intended to introduce are in, and the State will rest.

Mr. Vann: Objection to No. 1.

Mr. Stephens: We never officially—we would not offer that.

Court: My notes show that No. 1 was not offered, therefore, it is not in evidence, and my notes indicate that the others were.

Because State's Exhibit No. 1, the gun, was neither offered nor admitted into evidence, we believe it was error to allow the prosecutor to present this gun to the jury during his closing arguments. However, we do not believe that this constituted prejudicial error because defendant was charged with using "metal, raised-design rings on his fingers, deadly weapons, to assault and inflict serious injury...." Defendant Forsyth was not charged with assault through the use of a firearm. In our view, whether defendant Forsyth possessed a firearm during this transaction would not affect the jury's deliberations on whether defendant Forsyth assaulted Thurman with deadly metal rings. The assignment of error is overruled.

In defendants' fifth assignment of error, defendant Forsyth contends that the trial court erred in entering judgment on the verdict for the reason that the evidence did not support a verdict that the rings worn at the time of the fight were deadly weapons. After the jury returned its verdict, defendant moved to set aside the verdict as contrary to the weight of the evidence; this motion was denied. This motion was in essence a motion for appropriate relief under G.S. 15A-1414(b)(2). A motion to set aside the verdict is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Jacobs, 51 N.C.App. 324, 276 S.E.2d 482 (1981); State v. Watkins, 45 N.C.App. 661, 263 S.E.2d 846, cert. denied, 300 N.C. 561, 270 S.E.2d 115 (1980). We find no such abuse and this assignment of error is overruled.

Defendant Torres next assigns error to the trial judge's admonishment to defendant Torres' attorney: "Your comments, Mrs. Sides, your comments are not necessary. Keep them to yourself." Counsel for defendant had been improperly remarking on the witness' testimony, rather than asking a question, and the trial judge was properly exercising his control over the cross-examination of the witness.

In their seventh assignment of error defendants argue that the trial judge erred in failing to consider and find as a factor in mitigation that defendants' mental condition significantly reduced their culpability because they had been drinking before the incident. Defendants did not, however, request that the trial judge find, as a factor in mitigation, that they were suffering from "a mental or physical condition that was insufficient to constitute a defense but significantly reduced [their] culpability for the offense." G.S. 15A-1340.4(a)(2)(d). The trial judge only has a duty to find a statutory mitigating factor that was not submitted by defendant when the evidence offered at the sentencing hearing in support of the factor in mitigation is both uncontradicted and manifestly credible. State v. Gardner, 312 N.C. 70, 320 S.E.2d 688 (1984). In addition to their evidence that they were intoxicated, defendants must also satisfy the trial judge by the preponderance of the evidence that their mental or physical condition, i.e., intoxication, significantly reduced their culpability for the offense. In describing his physical condition at the time of the incident, defendant Torres testified that he was "feeling sick already because [he] had been high like three days and didn't have much to eat." Defendant Forsyth testified that he was drunk and "high" and did not remember exactly what he was doing. There was no showing that defendants' condition reduced their culpability or that this evidence was manifestly credible. We hold that the trial judge did not err in failing to find that defendants' intoxication reduced their culpability.

Finally, in the last assignment of error defendant Torres asserts that the trial judge erred in failing to find as a statutory mitigating factor that defendant Torres' immaturity or limited mental capacity significantly reduced his culpability. The basis for this assignment is defense counsel's statement to the court that defendant Torres was a "Willie M child" who never received treatment. However, there was no sworn testimony as to defendant Torres' condition and no showing that this condition reduced defendant Torres' culpability. On the authority of Gardner, supra, this assignment of error is overruled.

We have carefully considered all defendants' assignments of error and find

No Error.

JOHNSON and EAGLES, JJ., concur.