State v. Wardrett ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1418
Filed: 2 October 2018
Nash County, No. 14CRS54158
STATE OF NORTH CAROLINA
v.
CALEB E. WARDRETT, Defendant.
Appeal by Defendant from judgment entered 25 May 2017 by Judge J. Carlton
Cole in Nash County Superior Court. Heard in the Court of Appeals 23 August 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Victoria
L. Voight, for the State.
Warren D. Hynson for Defendant.
INMAN, Judge.
Caleb E. Wardrett (“Defendant”) appeals his conviction following a jury verdict
finding him guilty of possession of a firearm by a felon. After careful review of the
record and applicable law, we conclude that Defendant failed to submit an adequate
record on appeal to support his challenge to the unanimity of the jury verdict. We
also reject Defendant’s argument that the prosecutor’s comments during closing
argument were so grossly improper that the trial court should have intervened absent
objection.
Procedural and Factual Background
The evidence presented at trial tended to show the following:
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On the night of 27 September 2014, Alberta Jones (“Alberta”) hosted a party
at her house in Rocky Mount with family, friends, and neighbors attending. Shortly
before 1:00 a.m., just outside of Alberta’s house, Defendant’s cousin, Anthony Austin
(“Anthony”), and Ricky Jones (“Ricky”) engaged in an argument over whether Ricky
had given Anthony fake money. Defendant participated in the quarrel, causing Ricky
to retrieve his shotgun from his home, which was nearby, because he knew Defendant
likely had a gun. When Ricky returned with his shotgun, Defendant pointed his gun
at Ricky and ordered Ricky to drop the shotgun. Defendant then fired his own gun
in the air several times. Robert Earl Jones (“Robert”), Ricky’s uncle, urged Defendant
and Ricky to stop arguing. Alberta then called the police.
Before the police arrived, Defendant gave his gun to a friend, Ronaldo Wesson
(“Ronaldo”), who took the gun to a house across the street owned by his uncle, Joseph
“JoJo” McClain (“JoJo”), and stowed the gun under the mattress in JoJo’s bedroom.
Rocky Mount Police Officer William Spikes and Officer Judd (collectively “the
Officers”) responded to the gunshot call. Defendant left the area before the Officers
arrived. No witness was willing to say who had fired a gun. The Officers did not find
Defendant’s gun or Ricky’s shotgun, but they found gun shell casings near the area
where Defendant, Anthony, and Ricky had been quarreling.
After the Officers left, Anthony struck Ricky, who then shot and killed
Anthony. About five minutes after the Officers left from responding to the first
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gunshot call, they received another call to Alberta’s house, where they returned and
found Ricky walking on the road away from the house, shotgun in hand. The Officers
arrested Ricky.
Detectives Darius Hudgins and John Denton (collectively “the Detectives”)
arrived to investigate the homicide. Defendant, who had returned to Alberta’s house
by the time the Detectives arrived, agreed to go to the police station to give a
statement, but he never followed up.
Both Ricky and Robert told the Detectives that it was Defendant who had fired
the gun that prompted the first call to police. JoJo guided the Detectives to the gun
that was hidden under the mattress at the behest of Defendant, and Ronaldo told the
Detectives that Defendant had given him the gun to hide.
The gun the Detectives retrieved from beneath the mattress was a Smith &
Wesson 9 millimeter handgun with an extended clip. The shell casings found by the
Officers following the first call were not tested to determine whether they were from
that gun, nor were any fingerprints found on the gun. But among the 23 bullets found
within the gun—the extended clip could hold a maximum of 30—five had “the same
manufacturer, color and caliber of what was found” on the ground by Alberta’s house.
A warrant was issued for Defendant’s arrest on 27 September 2014. He was
eventually located and arrested in Norfolk, Virginia.
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At the close of the State’s evidence, defense counsel moved to dismiss the
charge, and the trial court denied the motion. Defendant did not present evidence.
The jury found Defendant guilty of possession of a firearm by a felon. The trial court
sentenced Defendant to minimum of 19 months and maximum of 32 months in prison,
with credit for time served in pre-trial custody. Defendant timely appealed.
Analysis
I. Unanimous Jury Verdict
Defendant’s first argument concerns a juror entering the courtroom during the
jury charge conference on the flight instruction. The trial transcripts reflects the
following:
MADAM COURT REPORTER: Judge, --
MR. TUCKER: -- details.
MADAM COURT REPORTER: -- there’s a juror. There’s a
juror coming in.
THE COURT: Thank you, Madam Court Reporter. I saw
her. I [sic] didn’t even dawn on me. You may continue.
Defendant contends that, because the juror entered the courtroom during the charge
conference and possibly became privy to information outside the presence of the other
jurors, Defendant’s right to a unanimous jury verdict, pursuant to N.C. Const. Art. I,
§ 24, was violated. We will not consider this issue because Defendant did not provide
a sufficient record to allow meaningful appellate review.
“It is the appellant’s responsibility to make sure that the record on appeal is
complete and in proper form.” Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467,
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468 (1988). When a defendant is faced with an incomplete transcript, he can
reconstruct the relevant portions through a written narrative. See N.C. R. App. P.
9(c)(1) (“Parties shall use [narrative] form or combination of forms best calculated
under the circumstances to present the true sense of the required testimonial
evidence concisely and at a minimum expense to the litigants.”); id. 9(a)(3)(e) (“The
record on appeal in criminal actions shall contain: so much of the litigation, set out
in the form provided in Rule 9(c)(1), as is necessary for an understanding of all issues
presented on appeal . . . .”). Here, the transcript is devoid of any information beyond
the lone juror’s entrance into the courtroom during the charge conference. The record
is silent as to whether the juror proceeded past the courtroom door. The trial court’s
statement “You may continue” suggests that the juror immediately exited the
courtroom. After this statement by the trial court, defense counsel continued with
her argument, rather than objecting, which also suggests that the juror did not
remain in the courtroom. Defendant relies solely on the transcript portion above and
has not submitted a supplemental narrative to provide context for the alleged error.
Review of this matter would require speculation as to the length of time the juror was
in the courtroom and information he or she might have overheard.
There is a “longstanding rule [] that there is a presumption in favor of
regularity and correctness in proceedings in the trial court, with the burden on the
appellant to show error.” L. Harvey & Son Co. v. Jarman, 76 N.C. App. 191, 195-96,
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333 S.E.2d 47, 50 (1985). When “the appellant presents evidence to rebut such a
presumption, [we] will not turn a deaf ear to that evidence.” Coppley v. Coppley, 128
N.C. App. 658, 663, 496 S.E.2d 611, 616 (1998). Defendant has not produced any
evidence overcoming that presumption. The transcript indicates only that the
courtroom clerk noticed that a juror was entering the courtroom during the charge
conference, that the trial court took notice, and that the trial court then instructed
counsel to proceed with the charge conference. Defendant has failed to show that the
juror remained in the courtroom or that the trial court erred with respect to that
juror.
The short dialogue during the charge conference is insufficient for us to review
this issue. Because Defendant “has made no attempt to reconstruct the evidence,” In
re Bradshaw, 160 N.C. App. 677, 681, 587 S.E.2d 83, 86 (2003), and has not
demonstrated that he did not have the means to compile such a narration, In re Clark,
159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003), we dismiss this issue.
II. Prosecutor’s Closing Argument
Next, Defendant argues that the trial court should have intervened ex mero
motu during closing arguments because the prosecutor’s statements were grossly
improper. Although some of the prosecutor’s statements were improper, we conclude
they were not so improper as to deprive Defendant of a fundamentally fair trial.
North Carolina General Statute § 15A-1230(a) provides:
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During a closing argument to the jury an attorney may not
become abusive, inject his personal experiences, express
his personal belief as to the truth or falsity of the evidence
or as to the guilt or innocence of the defendant, or make
arguments on the basis of matters outside the record
except for matters concerning which the court may take
judicial notice.
N.C. Gen. Stat. § 15A-1230(a) (2015). The standard of review for alleged improper
closing arguments absent timely objection “is 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). Our review
employs a two-step test: “(1) whether the argument was improper; and, if so, (2)
whether the argument was so grossly improper as to impede the defendant’s right to
a fair trial.” State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464, 469 (2017). The burden
is on the appellant to show a “reasonable possibility that, had the error[s] in question
not been committed, a different result would have been reached at trial.” Id. at 185,
804 S.E.2d at 473 (quoting N.C. Gen. Stat. § 15A-1443(a) (2015)). When determining
“whether the prosecutor’s remarks are grossly 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).
A. Name-Calling
Defendant argues that the trial court should have intervened when the
prosecutor referred to Defendant as a “fool.” The prosecutor, after reminding jurors
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that Ricky had been prosecuted and convicted for killing Anthony, argued as follows:
“But one of the problems we’ve got is this, and you all know it, is these fools on the
streets with guns. One of the fools was on the street that night. We’ve got one fool
left. I’m asking you, are you going to handle this unfinished business for me?”
Because defense counsel did not object at trial, Defendant cannot obtain relief
unless he demonstrates that the prosecutor’s words were improper and “extreme and
calculated to prejudice the jury.” State v. Thompson, 188 N.C. App. 102, 110, 654
S.E.2d 814, 820 (2008). Considering the context of the argument, we conclude that
the prosecutor’s use of the term “fool” was not improper.
In State v. Nance, 157 N.C. App. 434, 442-43, 579 S.E.2d 456, 461-62 (2003),
we held that it was improper for the prosecutor to call the defendant a “liar.” In State
v. Hamlet, 312 N.C. 162, 173, 321 S.E.2d 837, 845 (1984), our Supreme Court held
that it was improper for the prosecutor to call the defendant an “animal” and his
neighborhood a “jungle.” In each case, the defendant failed to prove that the
prosecutors’ statements were prejudicial. Nance, 157 N.C. App. at 442-43, 579 S.E.2d
at 462; Hamlet, 312 N.C. at 173, 321 S.E.2d at 845.
In State v. Jones, 355 N.C. 117, 133-34, 558 S.E.2d 97, 107-08 (2002), our
Supreme Court reversed the defendant’s conviction and death sentence and ordered
a new trial because a prosecutor repeatedly called the defendant a “quitter,” “loser,”
and “lower than the dirt on a snake’s belly.” The argument was so grossly improper,
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the Supreme Court held, that the trial court deprived the defendant of a fair trial by
not intervening, even in the absence of an objection by defense counsel. Id. at 134,
558 S.E.2d at 108. The Court reasoned that the argument “improperly [led] the jury
to base its decision not on the evidence relating to the issues submitted, but on
misleading characterizations, crafted by counsel, that are intended to undermine
reason in favor of visceral appeal.” Id. at 134, 558 S.E.2d at 108.
Here, unlike in Jones, the prosecutor’s remarks related to the gun fight that
had occurred and did not single out Defendant as a “fool,” but compared him to other
“fools” who behave recklessly with firearms. The prosecutor did not make repeated
ad hominem attacks on Defendant like the prosecutor in Jones.
Reviewing the closing argument as a whole, the prosecutor’s reference to
Defendant as a “fool” was not “calculated to lead the jury astray,” but was simply a
fair commentary based upon the evidence. Id. at 133, 558 S.E.2d at 108. It was not
improper for the prosecutor to declare Defendant a “fool” based on evidence that he
intervened in an argument between two other people, pointed a loaded firearm at
Ricky, discharged the firearm, and enlisted help to hide the firearm, all while being
a convicted felon. In contrast to the terms used in Nance, Hamlet, and Jones, while
calling someone a “fool” is not a compliment, it was not abusive or otherwise improper
in the context of the evidence presented in this case. Though one might disagree with
the prosecutor’s phrasing, it does not render his argument improper.
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B. Personal Belief of the Evidence
Defendant next argues that the trial court should have intervened because
the prosecutor expressed his belief as to the veracity of the witnesses. Defendant
points to the following italicized portions of the State’s closing argument:
First off, he tried to suggest to you that these people that
the State presented to you are not telling the truth. Ask
yourself what reason there might be for that. You watched
them all testify. This person is like family to them, this
Defendant. What reason would they have to falsely come in
here, falsely come in here, and say that he committed this
offense. Was any of that suggested to you while they were
being cross-examined? I didn’t hear it.
....
The other reason that I’m telling you that these witnesses
are telling the truth about it is think about the one thing
that Ricky Jones and Robert Earl Jones mentioned about
the gun. The two of them said one distinguishing
characteristic about is that it had a long clip in it.
Remember them saying that? Well, when this clip is in this
gun you can see right here it will extend from that gun
while it’s loaded. It will be obvious even while you’re
holding it like you’re going to fire it that it has a long clip
in it. . . . Now, at the time Ricky Jones said that and
Robert Earl Jones said that to -- to law enforcement about
it, they couldn’t possibly have known that that very gun
was going to [be] pulled out of JoJo’s house. So, how did
they know that gun had a long clip in it unless they really
saw the Defendant with it? They’re telling the truth about
it, because they saw it happen and because the Defendant
frankly did it. Period, the end.
(emphasis added). Looking at the statements in context and through the totality of
the circumstances, the prosecutor’s statements, while improper, were not grossly
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improper and do not merit reversal of Defendant’s conviction.
Prosecutors cannot personally vouch for their witnesses, but can “argue that
the State’s witnesses are credible.” State v. Augustine, 359 N.C. 709, 725, 616 S.E.2d
515, 528 (2005). The current factual background is akin to facts reviewed by our
Supreme Court in State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002) and State v.
Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009). In Wiley, the defendant argued that,
because the prosecutor’s case leaned heavily on witness testimony, his comments
regarding the witnesses’ truthfulness were grossly improper. Wiley, 355 N.C. at 622,
565 S.E.2d at 43. The Supreme Court held the comments were not improper because,
rather than expressing his personal opinion, the prosecutor was merely “giving the
jury reasons to believe the state’s witnesses who had given prior inconsistent
statements and were previously unwilling to cooperate with investigators.” Id. at
622, 565 S.E.2d at 43.
In Wilkerson, the prosecutor impermissibly told the jury that a witness was
telling the truth. Wilkerson, 363 N.C. at 425-26, 683 S.E.2d at 200. The Supreme
Court held that the comment violated N.C. Gen. Stat. § 5A-1230(a), but that it was
not grossly improper. Id. at 425, 683 S.E.2d at 200.
In this case, the prosecutor was attempting to bolster the credibility of the
witnesses by showing the relationship they had with Defendant and how they tended
to corroborate with one another. The prosecutor pointed out that the witnesses knew
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Defendant “to the level of family,” which would make their testimony all the more
credible. The prosecutor also noted that Ricky and Robert both testified as to the
extended clip attached to the gun that Defendant possessed. Their testimony, the
prosecutor argued, was all the more credible because Ricky and Robert did not know
that the same gun was given to Ronaldo and hidden under JoJo’s mattress. The
prosecutor went too far when he asserted that the witnesses were “telling the truth
about it, because they saw it happen and because the Defendant frankly did it.”
However, while the prosecutor’s statements were improper because they expressly
vouched for the truthfulness of the witnesses, they were not so grossly improper to
warrant a new trial.
C. Personal Belief of Defendant’s Guilt
Defendant contends that the court failed to intervene when the prosecutor
proclaimed that Defendant was “absolutely guilty of the crime he’s charged with” and
that “[t]here’s just no question about it.” The prosecutor’s statements were improper,
but we conclude that they did not deprive Defendant of his right to a fair trial.
In State v. Waring, 364 N.C. 443, 500, 701 S.E.2d 615, 651 (2010), the
defendant argued that the prosecutor injected his own personal opinion as to the
defendant’s guilt by stating “I believe the evidence is overwhelming that the
defendant is guilty of first-degree felony murder.” Our Supreme Court rejected that
argument and held that it is not grossly improper to discuss a defendant’s culpability
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when the prosecutor’s argument relates “the strength of the evidence to the theories
under which [the] defendant [is] prosecuted” and in verdict sheets presented to the
jury. Id. at 500, 701 S.E.2d at 651.
In this case, the prosecutor declared Defendant guilty, but only after reviewing
the elements of felony gun possession and the evidence presented by the State. The
prosecutor focused on the issues that were in question and what defense counsel
would likely argue. The prosecutor’s statement that Defendant was guilty followed
his assessment of the strength of the State’s witnesses, and did not suggest perceived
personal knowledge. Thus, as stated in Waring, though the prosecutor’s statements
were “obviously improper,” they did not rise to the level that required the trial court
to intervene independently. Id. at 500, 701 S.E.2d at 651.
D. Matters Unsupported by the Evidence
Defendant posits that the prosecutor made arguments on matters outside the
record and unsupported by the evidence when he remarked that Defendant told
Ronaldo to “man, get rid of this”—this being the gun. The prosecutor’s statement in
this regard was not improper.
Prosecutors are “given wide latitude in the scope of their argument,” State v.
Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (citation omitted), and may argue
any “inference[] that reasonably can be drawn from the evidence presented.” State v.
Anderson, 175 N.C. App 444, 453, 624 S.E.2d 393, 400 (2006). So long as the
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argument is “consistent with the record and does not travel into the fields of
conjecture or personal opinion,” the argument is not improper. State v. Madonna, __
N.C. App. __, __, 806 S.E.2d 356, 362 (2017) (quoting State v. Small, 328 N.C. 175,
184-85, 400 S.E.2d 413, 419 (1991)).
Ronaldo testified that Defendant gave him the gun and Detective Hudgins
testified that Ronaldo told police that Defendant gave him the gun. Though Ronaldo
did not say that Defendant expressly stated “man, get rid of this,” the prosecutor’s
assertion fairly summarized the evidence and argued a reasonable inference arising
from the testimony.
E. Accountability to Community
Defendant’s last argument is that the prosecutor impermissibly advocated that
the jury’s accountability to its community should compel a guilty verdict. Defendant
takes issue with the following italicized portion of the State’s closing argument:
What I really represent is people. . . . These people are --
some of them are known to you, your friends, your
neighbors, your employers, co-workers, that kind of
thing. . . . The reason I represent them is because they
have a right to know that when things like this happen, that
the right thing happens in this courtroom. . . .
This kind of behavior that the Defendant exhibited on this
particular night is dangerous. . . . It causes people to have
negative conclusions about this place in which we all live.
It could possibly potentially hurt or kill someone. . . .
But he did do it himself and it is important for that reason
to my clients if you will, which is the State of North
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Carolina for what they are, living, breathing people. The
people who live here. . . . This case matters to them.
Therefore, I hope it matters to you. . . .
I’m asking you, are you going to handle this unfinished
business for me?
(emphasis added). The above statements were not improper.
A prosecutor can argue that a jury is the “voice and conscience of the
community,” State v. Brown, 320 N.C. 179, 204, 358 S.E.2d 1, 18 (1987), and “may
also ask the jury to ‘send a message’ to the community regarding justice.” State v.
Barden, 356 N.C. 316, 367, 572 S.E.2d 108, 140 (2002). A prosecutor must not ask or
embolden the jury to “lend an ear to the community,” such that the jury is speaking
for the community or acting for the community’s desires. Id. at 367, 572 S.E.2d at
140.
The statements here were standard opinions and assertions of fact that did not
suggest the jury would be held accountable to the community. In State v. Rogers, 323
N.C. 658, 662-63, 374 S.E.2d 852, 855-56 (1989), our Supreme Court held there was
no error in the prosecutor’s argument that the community deserved to be safe, drug-
free, and that young people should be warned about drug abuse. The Court concluded
that such public policy opinions are widely held and are not improper. Id. at 663, 374
S.E.2d at 856. Here, the prosecutor stated he represented North Carolina and that
the people of the State were essentially his clients. Defendant’s alleged conduct
adversely affected the community at large. The prosecutor argued that people in the
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community deserve to have justice occur in the courtroom. He argued that he hoped
this case mattered enough to the jury to render a just conclusion. These remarks by
the prosecutor were proper because they involved commonly held beliefs and merely
attempted to motivate the jury to come to an appropriate conclusion, rather than to
achieve a result based on the community’s demands.
We are equally unpersuaded that the prosecutor’s statement regarding
“unfinished business” unfairly pressured the jury to curb a societal ill. In Barden,
the prosecutor argued—over defense counsel’s objection—that the jury would be
doing a “disservice” to the community if the defendant was not sentenced to death.
Barden, 356 N.C. at 367-68, 572 S.E.2d at 140-41. Our Supreme Court concluded
that “the prosecutor did not contend that the community demanded defendant’s
execution,” but instead asked the jury not to do a disservice to the community and
concluded that the trial court did not abuse its discretion. Id. at 368, 572 S.E.2d at
141.
The same holds true in this case. The prosecutor did not urge that society or
the community wanted Defendant punished, but requested, based on the evidence,
the jury make an appropriate decision. Even assuming that the statement was
improper, it was not grossly improper. Unlike in Barden, defense counsel in this case
did not object at trial. Defendant cannot show a reasonable possibility that the result
would have been different had the prosecutor not made the statement.
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Conclusion
While we reject Defendant’s arguments, we do not condone remarks by
prosecutors that exceed statutory and ethical limitations. Derogatory comments,
epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness
reflect poorly on the propriety of prosecutors and on the criminal justice system as a
whole. Prosecutors are given a wide berth of discretion to perform an important role
for the State, and it is unfortunate that universal compliance with “seemingly simple
requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’
with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because
Defendant has failed to overcome the high burden to prove that these missteps
violated his due process rights, he is not entitled to relief.
NO ERROR.
Judges TYSON and BERGER concur.
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