State v. Martinez ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1288
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 10 CRS 004710
MIGUEL ANGEL MARTINEZ,
Defendant.
Appeal by defendant from judgment entered 29 January 2013
by Judge Paul C. Ridgeway in Wake County Superior Court. Heard
in the Court of Appeals 17 March 2014.
Roy Cooper, Attorney General, by G. Mark Teague, Assistant
Attorney General, and Joseph L. Hyde, Assistant Attorney
General, for the State.
Staples S. Hughes, Appellate Defender, by Jason Christopher
Yoder, Assistant Appellate Defender, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant Miguel Angel Martinez appeals by writ of
certiorari from a judgment entered upon a jury verdict finding
him guilty of assault with a deadly weapon inflicting serious
injury. For the reasons stated herein, we find no error in
defendant’s trial.
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On 26 April 2010, Amy Alperstine was working as a
correctional officer in Unit 1 of Central Prison where defendant
was an inmate. Inmates assigned to Unit 1, the lockup unit,
were given an hour of recreational time in an indoor
recreational cell each day. When an inmate’s recreational time
was over, the inmate was required to turn around and place his
hands behind him through a small passageway in the cell while an
officer handcuffed him. Once the inmate was restrained, the
recreational cell would then be opened and the inmate would be
escorted back to his cell. Alperstine approached defendant’s
recreational cell to escort him back to his cell. As Alperstine
reached out to handcuff defendant, defendant suddenly struck
Alperstine’s left forearm with a razor blade.
Correctional Officer Jeffrey Thayer testified that he was
standing approximately ten feet away when he heard Alperstine
yell that she had been cut. When Officer Thayer went to see
what had happened and saw that Alperstine’s forearm was
bleeding, he told her to leave and seek medical attention.
Correctional Sergeant Kimberly Ross was in the control station
approximately ten to twelve feet away from Alperstine when the
incident occurred. Sergeant Ross testified that after
witnessing the attack and the blood on Alperstine’s arm, she
radioed for assistance and unlocked the door to allow Alperstine
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to leave the block.
Alperstine testified that “[t]here was a lot of blood” and
described the injury as a laceration five centimeters in length
and deep enough to expose the muscle. Following the attack,
Alperstine immediately went to the nurse’s station where a
pressure bandage was applied to the injury to stop the bleeding.
Alperstine was then sent to the emergency room where the
laceration was closed with sixteen stitches and she was tested
for HIV and other blood borne illnesses, given a tetanus shot,
and prescribed pain medication and antibiotics. Although she
was advised not to return to work, Alperstine chose to return to
work the next day and was placed on light duty for the following
two weeks. In the weeks following the attack, Alperstine could
not move or lift anything with her left arm as a result of the
injury, and she testified that, nearly three years later, she
still had a “pretty big scar” on her forearm and experienced
lingering numbness from the scar down to her forefinger and
thumb.
At trial, the razor blade recovered from the recreational
cell as well as photographs of the injury, both before it was
stitched and after the stitches were removed, were introduced
into evidence. On 29 January 2013, the jury convicted defendant
of assault with a deadly weapon inflicting serious injury and he
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was sentenced to a term of thirty-six to fifty-three months
imprisonment to be served consecutively to his preexisting
sentences. Defendant appeals.
_________________________
Defendant’s written notice of appeal fails to fully comply
with the requirements of Rule 4 of the North Carolina Rules of
Appellate Procedure. Cognizant of the defect in his notice of
appeal, defendant seeks review by petition for writ of
certiorari. In the interest of justice, we exercise our
discretion to allow defendant’s petition for writ of certiorari
pursuant to Rule 21(a)(1) of the North Carolina Rules of
Appellate Procedure. See State v. Hammonds, __ N.C. App. __,
__, 720 S.E.2d 820, 823 (2012) (allowing petition for certiorari
where the defendant lost his direct appeal through no fault of
his own, but rather as result of sloppy drafting of his notice
of appeal by counsel and failure to grant certiorari would be
“manifestly unjust”).
On appeal, defendant argues the trial court erred by: (I)
admitting lay opinion testimony as to the seriousness of
Alperstine’s injury; (II) denying defendant’s motion to dismiss
the charge; and (III) failing to intervene ex mero motu during
the State’s closing arguments.
I.
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Defendant first asserts that the trial court abused its
discretion by allowing the admission of the following testimony
by Sergeant Ross over defense counsel’s objection: “Once I saw
the blood on Ms. Alperstine’s hand, I knew it had to be
serious.” Defendant contends the testimony was improper lay
opinion testimony and prejudicial because it embraced an
ultimate issue in the case and thus supplanted the jury’s role
in determining the seriousness of the injury. We disagree.
We review a trial court’s ruling regarding the
admissibility of lay opinion testimony for an abuse of
discretion. State v. Washington, 141 N.C. App. 354, 362,
540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396,
547 S.E.2d 427 (2001). “[A] lay witness may testify in the form
of an opinion, despite the fact that his opinion may embrace an
ultimate issue to be decided by the jury.” State v. Owen,
130 N.C. App. 505, 515, 503 S.E.2d 426, 432, appeal dismissed
and disc. review denied, 349 N.C. 372, 525 S.E.2d 187–88 (1998);
accord N.C. Gen. Stat. § 8C-1, Rule 704 (2013). Rule 701 of the
North Carolina Rules of Evidence permits lay opinion testimony
where the opinion is rationally based on the witness’s
perception and is helpful to the jury. N.C. Gen. Stat. § 8C-1,
Rule 701 (2013). Admissible lay opinion testimony under this
rule includes shorthand statements of fact. N.C. Gen. Stat.
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§ 8C-1, Rule 701 official commentary. Our Supreme Court has
defined shorthand statements of fact as “‘instantaneous
conclusions of the mind as to the appearance, condition, or
mental or physical state of persons, animals, and things,
derived from observation of a variety of facts presented to the
senses at one and the same time.’” State v. Braxton, 352 N.C.
158, 187, 531 S.E.2d 428, 445 (2000) (quoting State v.
Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975),
vacated in part on other grounds, 428 U.S. 904, 49 L. Ed. 2d
1210 (1976)), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797(2001).
Sergeant Ross’s testimony amounted to nothing more than a
shorthand statement of fact based on her observation of the
attack. See id. (characterizing “testimony that the victim’s
screaming sounded like somebody fearing for his life and that
the crime scene was worse than a hog killing” as admissible
shorthand statements of fact). Furthermore, contrary to
defendant’s assertion, it is of no consequence that Sergeant
Ross’s description of the injury as “serious” embraced an
ultimate issue to be decided by the jury. See Owen, 130 N.C.
App. at 515, 503 S.E.2d at 432. We therefore conclude that the
trial court did not abuse its discretion by admitting this
testimony.
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II.
Defendant next argues the trial court erred in denying his
motion to dismiss the assault with a deadly weapon inflicting
serious injury charge because there was insufficient evidence to
show that the assault inflicted a serious injury. We disagree.
We review a 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), appeal after remand, 197 N.C. App. 403, 677 S.E.2d 14(2009) (unpublished). A defendant’s motion to dismiss a charge
on the basis of insufficiency of the evidence should be denied
if “‘there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator
of the offense.’” State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (quoting State v. Crawford, 344 N.C.
65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, 543 U.S.
1156, 161 L. Ed. 2d 122 (2005). “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). The evidence is to be considered
“in the light most favorable to the State, and the State
receives the benefit of every reasonable inference supported by
that evidence.” Garcia, 358 N.C. at 412–13, 597 S.E.2d at 746.
The essential elements of assault with a deadly weapon
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inflicting serious injury are “(1) an assault (2) with a deadly
weapon (3) inflicting serious injury (4) not resulting in
death.” State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43,
47 (1990); accord N.C. Gen. Stat. § 13-32(b) (2013). “Cases
that have addressed the issue of the sufficiency of evidence of
serious injury appear to stand for the proposition that as long
as the State presents evidence that the victim sustained a
physical injury as a result of an assault by the defendant, it
is for the jury to determine the question of whether the injury
was serious.” State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d
83, 87 (1994). “Substantial evidence of a serious injury that
is sufficient to survive a motion to dismiss includes, but is
not limited to, evidence of ‘hospitalization, pain, blood loss,
and time lost at work.’” State v. Bagley, 183 N.C. App. 514,
526, 644 S.E.2d 615, 623 (2007) (quoting State v. Woods,
126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997)).
Here, the State presented evidence showing that defendant
assaulted Alperstine with a razor blade and that Alperstine
suffered an injury resulting in blood loss and requiring
immediate medical attention at the emergency room. Although
Alperstine made the personal decision to return to work the day
after the assault, she was required to be on light duty for the
following two weeks. In the weeks following the assault,
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Alperstine could not move or lift anything with her left arm as
a result of the injury, and, nearly three years later, she still
had a scar on her forearm and experienced lingering numbness
from the scar down to her forefinger and thumb. Viewing this
evidence in the light most favorable to the State, we conclude
that there was substantial evidence of serious injury sufficient
to withstand defendant’s motion to dismiss. The trial court,
therefore, did not err in denying defendant’s motion to dismiss
the assault with a deadly weapon inflicting serious injury
charge.
III.
Finally, defendant argues that portions of the State’s
closing argument were grossly improper. As a result, defendant
contends, the trial court’s failure to intervene ex mero motu to
address the allegedly improper closing remarks constituted
reversible error. We disagree.
Because defendant failed to raise timely objections to the
allegedly improper closing remarks challenged on appeal, our
review is limited to determining “whether the remarks were so
grossly improper that the trial court committed reversible error
by failing to intervene ex mero motu.” State v. Jones, 355 N.C.
117, 133, 558 S.E.2d 97, 107 (2002). “A prosecutor must be
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allowed wide latitude in the argument of hotly contested cases
and may argue all the facts in evidence and any reasonable
inferences that can be drawn therefrom.” State v. Alford,
339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995). “[I]n order to
constitute reversible error, [a] prosecutor’s remarks must be
both improper and prejudicial.” Jones, 355 N.C. at 133,
558 S.E.2d at 107–08. In determining whether a prosecutor’s
closing remarks were improper, “the remarks must be viewed in
context and in light of the overall factual circumstances to
which they refer.” State v. Alston, 341 N.C. 198, 239,
461 S.E.2d 687, 709 (1995), cert. denied, 516 U.S. 1148,
134 L. Ed. 2d 100, mandamus denied, 472 S.E.2d 334 (1996).
Defendant first contends the prosecutor grossly exaggerated
the extent of Alperstine’s injury and thus made statements
unsupported by the evidence. Defendant takes particular issue
with the prosecutor’s assertion that all of the correctional
officers that testified described Alperstine’s injury as
“bleeding profusely.” We must, however, view the remark in
context. See id. It is evident from the record that the
prosecutor was providing the jury with a summation of the
evidence presented. Immediately before the statement defendant
finds objectionable, the prosecutor asked the jury: “What did
Amy tell you?” In describing her injury, Alperstine testified
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as follows:
There was a lot of blood. When I finally
got to the emergency room at Wake Tech -- or
at WakeMed, it -- the sides had curled up
away, and I mean, it was gap and you could
see the muscle and everything underneath.
So it was very deep.
Furthermore, while the other officers that testified did not
specifically state that Alperstine’s forearm was bleeding
profusely, they all testified that it was bleeding. The
prosecutor’s remark, therefore, was based on reasonable
inferences drawn from the evidence, and the trial court did not
err by failing to intervene ex mero motu.
Defendant also takes exception to the prosecutor’s remark
describing the injury as “a five-inch laceration,” arguing that
the evidence at trial indicated that the laceration was five
centimeters, not inches, in length. Aside from this one
misstatement, the prosecutor correctly described the injury as
being five centimeters in length several times throughout her
closing remarks. Therefore, when viewed in context of the
prosecutor’s closing argument as a whole, the reference to
inches was an isolated misstatement that did not descend to the
level of gross impropriety as to demand intervention by the
trial court ex mero motu. See Braxton, 352 N.C. at 204,
531 S.E.2d at 455 (“[T]he prosecutor’s one-time description of
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defendant as ‘that thing’ was not so improper as to require
action by the trial court ex mero motu.”).
Defendant next contends the prosecutor improperly referred
to injuries not suffered by Alperstine, thereby distorting the
evidence and the seriousness of the injury in the following
remarks:
It doesn’t matter that Amy Alperstine wasn’t
killed, or that she didn’t almost die, the
way [defendant] used [the razor blade] could
certainly have caused that kind of thing to
happen. . . . Had he been able to get
closer to her, had some other part of her
body somehow come in contact with him before
her hand, he could have cut her somewhere
else. Had that razor blade gone a bit
deeper, or say, you know, as she approached,
she had her hand out like this, you know,
with the back of her hand facing up. But
say she had reached through the other way,
and she had reached out to him palm up, that
same place on the underside of her arm could
have caused far, far more damage. . . .
Luckily, she was not hurt worse. Luckily,
she didn’t -- it wasn’t the inside of her
wrist and she didn’t almost die. . . .
Clearly, as we’ve discussed already, it
could have been a lot worse. Had her arm
been turned over and that razor blade caught
her down to the muscle as deep as it went on
the top through the bottom, obviously this
could have been much worse.
Defendant, however, fails again to understand the prosecutor’s
argument in its proper context. The remarks defendant
challenges were made in the context of the prosecutor explaining
to the jury that the razor blade was a deadly weapon because of
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the way it was employed by defendant. We therefore conclude
that the remarks stayed within the parameters of a proper
closing argument, because the prosecutor merely sought to
convince the jury that the State had proven all of the elements
of its case against defendant.
Finally, defendant asserts that the prosecutor made
derogatory comments about defense counsel that undermined
defendant’s right to a fair trial. While it is well-settled
that a prosecutor “may not make uncomplimentary comments about
opposing counsel,” State v. Sanderson, 336 N.C. 1, 10,
442 S.E.2d 33, 39 (1994), appeal after remand, 346 N.C. 669,
488 S.E.2d 133 (1997), the prosecutor in this case did no such
thing. Considered in context, the prosecutor’s remarks were
not, as defendant contends, a direct attack on defense counsel,
but rather an attempt to rebut the closing arguments the
prosecutor anticipated defense counsel would make. As a result,
the remarks were well within the bounds of permissible closing
argument and the trial court did not have an obligation to
intervene ex mero motu. See State v. Roache, 358 N.C. 243, 301,
595 S.E.2d 381, 418 (2004) (holding that the trial court did not
err by failing to intervene ex mero motu where the prosecutor
made “shorthand commentary on the arguments presented by defense
counsel during closing statement”).
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No Error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).