State v. Vines , 105 N.C. App. 147 ( 1992 )

412 S.E.2d 156 (1992) 105 N.C. App. 147

STATE of North Carolina
v.
Eddie Lee VINES.

No. 9012SC1170.

Court of Appeals of North Carolina.

January 21, 1992.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Jane R. Garvey, Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

WELLS, Judge.

We note at the outset that defendant fails to discuss his fourth, six, seventh, eighth, tenth, twelfth and seventeenth assignments of error. These assignments are therefore deemed abandoned. N.C.R.App.P., Rule 28. In his remaining assignments, defendant contends the trial court erred in admitting evidence of an experiment without a sufficient showing of similar circumstances, failing to give curative instructions as requested by defendant and denying defendant's motion for a mistrial.

Defendant further assigns as error the trial court's failing to instruct on the burden of proof of accident as requested by defendant and to sustain defendant's objections to the State's improper arguments to the jury. Finally, defendant assigns as error the trial court's submitting the possible verdict of second degree murder and imposing a sentence greater than the presumptive on finding the crime was heinous, atrocious or cruel when not supported by the evidence. We find no error.

Defendant first assigns as error the trial court's admitting evidence of the experiment conducted by officers investigating the death of Chaketha Vines. Specifically, defendant contends the conditions of the experiment were not similar to the conditions as they existed on 15 August 1988. Defendant further contends the thermometer used in the experiment to test the temperature of the water they ran into the tub was not shown to be accurate; therefore, the evidence should have been excluded. We disagree.

The law is well settled in this jurisdiction that experimental or demonstrative evidence is admissible when performed under circumstances substantially similar to those existing at the time of the original transaction. The conditions need not be identical, but a reasonable or substantial similarity is sufficient. State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979). The [trial court] is commonly afforded broad discretion in determining whether the conditions and circumstances of an experiment are sufficiently similar to those sought to be duplicated to render the results admissible. State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). The court's rulings thereon will not be interfered with on appeal unless an abuse of discretion is clearly shown. State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975).

There is no showing, clear or otherwise, by defendant of an abuse of discretion regarding the introduction of this evidence. The investigating officers ran only hot water in the tub just as defendant testified he did. The officers took a reading of the water temperature with a standard kitchen thermometer. The temperature was found to be approximately 145 or 146 degrees Fahrenheit. This temperature was corroborated by the temperature setting on the water heater located in the Vines' residence. Further, it was testified without objection that 145 degrees Fahrenheit is the normal setting for tap water. The trial court did not abuse its discretion in admitting this evidence; therefore, this assignment of error is overruled.

Defendant next assigns as error the trial court's failure to give curative instructions as requested by defendant. Defendant objected to certain aspects of testimony of Drs. Bauerschmidt and Peterson while on direct examination for the State. Defendant then requested the trial court issue curative instructions following the court's sustaining of defendant's objections. This request was denied by the trial court and defendant contends this allowed the jury to wrongly consider evidence prejudicial to defendant's case. We disagree.

We note the trial court issued general instructions to the jury at the outset of the trial. Among these were instructions regarding the consideration to be given evidence to which an objection had been raised and sustained. These instructions were, in pertinent part:

When the [c]ourt sustains an objection to a question, the jurors must disregard the question and the answer, if one has been given, and draw no inference from the question or speculate as to what the witness would have said if permitted to answer the question.

These instructions are sufficient to cure any prejudicial effect suffered by defendant regarding evidence to which an objection was raised and sustained. Our Supreme Court stated in State v. Franks, 300 N.C. 1, 265 S.E.2d 177 (1980) that it was not prejudicial error when a trial court issued curative instructions at the outset of a trial and failed to reissue them following a motion to strike. However, the Court noted it was the better practice to give instructions to disregard testimony immediately after a motion to strike. In the present case, defendant made no motion to strike but simply requested that the trial court reissue its curative instructions. We agree that the better practice would be to issue curative instructions immediately following a sustained objection. However, we find no prejudicial error in the trial court's failure to reissue these instructions upon defendant's request. Therefore, this assignment of error is overruled.

Defendant next assigns as error the trial court's failure to grant a mistrial on the grounds the State elicited testimony previously determined inadmissible by the trial court. Defendant moved for a mistrial following the State's attempt to question a nurse about the Vines' behavior while at the North Carolina Burn Center. The trial court had previously admonished the State from asking any questions about the Vines' behavior. Further, the State was directed not to ask any opinion of the witness comparing the Vines' behavior with other parents' behavior whose children had been burn center patients. We find no error.

N.C.Gen.Stat. § 15A-1061 states, in part, a defendant's motion for mistrial must be granted "if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." The decision as to whether prejudice has occurred is addressed to the discretion of the trial judge and is not reviewable absent a showing of gross abuse of discretion. State v. Rogers, 52 N.C.App. 676, 279 S.E.2d 881 (1981).

In the present case, it is clear the trial court did not abuse its discretion in denying defendant's motion for a mistrial. Rather, the trial court took reasonable precautions to remove any prejudice to defendant. The trial judge retired to chambers to contemplate granting a mistrial. He discussed the possibility of a mistrial with counsel. Further, the trial court issued curative instructions that the jury not consider the disputed testimony. Finally, the trial court polled the jury to determine if they could disregard the testimony and continue their duties in a fair and impartial manner. Each juror indicated in the affirmative by a show of hands. These actions by the trial court do not show any abuse of discretion; therefore, this assignment of error is overruled.

Defendant next assigns as error the trial court's failure to instruct the jury on the burden of proving Chaketha's death was an accident as requested by defendant. Defendant contends the instruction given by the trial court somehow conveys the notion that defendant's assertion of accidental death is a burden of proof upon defendant, which may be overcome by the State. However, the State contends the disputed instruction is a proper statement of law. Further, the State notes in its brief that defendant admitted at the charge conference there was no substantive difference between the instructions requested and the one given. We agree and find no error.

It is well established that if a request is made for a specific instruction which is correct in law and supported by the evidence, the trial judge must give the instruction. State v. Townsend, 99 N.C.App. 534, 393 S.E.2d 551 (1990), citing State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976). It is equally well established, however, that the trial court is not required to give a requested instruction in the exact language of the request, so long as the instruction is given in substance. Id. The instruction given by the trial court, N.C.P.I.-Crim. 307.10, is a correct statement of law and substantially conforms to the pattern instruction requested by defendant, N.C.P.I.-Crim. 206.35. Therefore, the trial court committed no error in failing to submit the instruction requested by defendant and this assignment of error is overruled.

Defendant's next four assignments of error concern alleged improper arguments to the jury by the State. These assignments, argued together in defendant's brief, will be treated together in this opinion. Defendant first contends the trial court committed reversible error when it overruled defendant's objection to the State's misstatement of law on the issue of malice. In three other assignments, defendant contends the State's closing argument was grossly improper and prejudicial to him. We note defendant failed to object at trial to all but two of the incidents of alleged improper arguments. Therefore, we will first address the incidents to which defendant objected. We will then address the question of whether the trial court should have corrected the other alleged improper arguments ex mero motu.

As to defendant's contention regarding the State's misstatement of law, we note the trial court, while overruling defendant's objection, instructed the jury to disregard the prosecutor's misstatement. The trial court further instructed the jury to rely upon it for instructions of law. These are steps the trial court would have taken if the objection had been sustained. Therefore, any error by the trial court in overruling defendant's objection was not prejudicial to defendant and this assignment of error is overruled.

Defendant contends the State's injection of personal opinion into closing arguments was grossly improper and prejudicial. It is well settled that the control of the arguments of counsel must be left largely to the sound discretion of the trial judge with wide latitude given counsel to argue all the law and the facts presented by the evidence and all reasonable inferences. State v. McCall, 289 N.C. 512, 223 S.E.2d 303 (1976). However, counsel may not employ his argument as a device to place before the jury incompetent and prejudicial matters by expressing his own knowledge, beliefs and opinions not supported by the evidence. State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988).

It should be noted that the trial court sustained defendant's objection in the one instance in which an objection was raised on the grounds of injecting personal opinion. Further, the trial court issued curative instructions for the jury not to consider an improper argument. When a trial court sustains a defendant's objection [to the State's improper argument] and instructs the jury not to consider it, the jury is presumed to have heeded the instruction and any prejudice is removed. State v. Gregory, 37 N.C.App. 693, 247 S.E.2d 19 (1978). Therefore, this assignment of error is also overruled.

Defendant's remaining assignments on the issue of improper arguments are based on portions of the State's argument in which defendant contends that the prosecutrix argued that defendant contrived a defense and procured false testimony. Defendant failed to object at trial to any of these disputed portions of the State's closing argument. Therefore, the question before this Court is whether the trial court should have corrected the alleged improper argument ex mero motu. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983). In a case where the defendant fails to object to the State's closing argument, the standard of review is one of gross impropriety. State v. Craig and State v. Anthony, 308 N.C. 446, 302 S.E.2d 740 (1983).

The prosecutrix began her "evaluation" of defendant's evidence with the testimony of Dr. Leshner, one of defendant's expert witnesses, in this fashion: "And here comes Dr. Leshner. You're right, I'm going to talk about him. You can get a doctor to say just about anything these days." In elaboration upon this theme, the prosecutrix went on to imply or suggest that Dr. Leshner's testimony was motivated by "pay." Such argument not only attacked the integrity of Dr. Leshner but also that of defense counsel. We vigorously disapprove of this improper argument and deem it to have been of such gross impropriety as to justify an ex mero motu correction. In the light of the strong and convincing case against defendant, especially the medical evidence presented by the State, we cannot say that the prosecutrix's improper comments are sufficiently prejudicial as to require a new trial. See State v. Kirkley, supra and State v. Craig and Anthony, supra.

Defendant next assigns error to the trial court's submitting second degree murder as a possible verdict, contending that due to the absence of evidence of malice, such a verdict was not supported by the evidence. Defendant contends that at most the State's evidence would show his culpable negligence, which in turn would support at most a verdict of involuntary manslaughter. We disagree.

While a person may not be convicted of second degree murder in the absence of some intentional act sufficient to show malice, which act proximately causes death, the element of malice may be found in the nature of the intentional act leading to death. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Any act evidencing "wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty and deliberately bent on mischief ..." is sufficient to supply the element of malice necessary for second degree murder. Id., quoting from Justice Sharp's dissent in State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). The evidence in this case tending to show that defendant deliberately and forcefully placed his infant daughter in a tub of scalding hot water, hot enough to cause fatal burns in as little as ten seconds, clearly meets the Wilkerson test. This assignment is therefore overruled.

In his final assignment of error, defendant contends that the trial court erred in imposing a sentence greater than the presumptive because the trial court's finding of the factor in aggravation that the crime was heinous, atrocious or cruel was not supported by the evidence. We need not dwell upon the heinous, atrocious and cruel aspect of defendant's crime to reject this argument summarily. This assignment is overruled.

For the reasons stated, we find no prejudicial error in defendant's trial.

No error.

LEWIS and WALKER, JJ., concur.