State v. Kornegay

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-1011
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Johnston County
Nos. 10 CRS 53554
ALEXANDER KORNEGAY, JR. 11 CRS 3596
Appeal by defendant from judgment filed 21 February 2013 by
Judge Lucy N. Inman in Johnston County Superior Court. Heard in
the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph E. Herrin, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Mary Cook, for defendant-appellant.
ELMORE, Judge.
Alexander Kornegay Jr., (defendant) was convicted of
obtaining property by false pretenses. Defendant pled guilty to
having attained habitual felon status, and the trial court
sentenced him to 96 to 125 months imprisonment. Defendant
appeals. After careful consideration, we hold that defendant
received a trial free from error.
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I. Background
The State’s evidence tended to show that defendant
purchased a 2006 Dodge Ram truck for $13,995 from Rock City Auto
Sales (Rock City) on 3 April 2010. After defendant tendered a
check for $2,000 as a down payment and financed the balance
through a lender, defendant took possession of the truck.
Defendant’s $2,000 check, however, was returned for being
drafted on a closed account. Rock City attempted to contact
defendant several times before employees found the truck parked
outside of the dealership. The truck was damaged and had
thousands of additional miles on the odometer.
II. Analysis
Defendant contends that the trial court erred by failing to
intervene ex mero motu in response to the prosecutor’s remarks
during closing arguments. We disagree.
Where, as here, the defendant failed to object to a
prosecutor’s allegedly improper arguments at trial, the standard
of review on appeal is whether the remarks were so grossly
improper that the trial court committed reversible error by not
intervening ex mero motu. State v. McNeill, 360 N.C. 231, 244,
624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d
281 (2006). Under this standard, the remarks must be “so
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prejudicial and grossly improper as to interfere with [the]
defendant’s right to a fair trial.” State v. Alford, 339 N.C.
562, 571, 453 S.E.2d 512, 516 (1995). In evaluating a
prosecutor’s statements, an appellate court must consider them
in the context in which they were made. State v. Lloyd, 354
N.C. 76, 113, 552 S.E.2d 596, 622 (2001).
Defendant takes issue with two comments made by the
prosecutor during closing arguments. First, defendant argues
that the prosecutor inflamed the jury by comparing defendant’s
alleged crime to “somebody walk[ing] into a bank and put[ting] a
gun to him and sa[ying] give me your money.” Second, defendant
argues that the prosecutor made disparaging remarks about
defense counsel by referring to defense counsel’s questions as
“Blah, blah, blah” and by commenting “[i]t’s almost like [the
defense] tried to blame [the victims].”
Even if improper, defendant has not shown that these
remarks infected the trial with unfairness rendering defendant’s
conviction fundamentally unfair. The remarks were brief when
compared to the closing argument as a whole, and the prosecutor
made the comments in the context of a proper argument—
highlighting the credibility of the State’s witnesses, which
included the Rock City Auto Sales co-owner and sales person.
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See State v. Fletcher, 354 N.C. 455, 484-85, 555 S.E.2d 534, 552
(2001) (reasoning that when “[t]he offending comment was not
only brief, but its overall significance to the entire closing
argument was minimal[] and the comment was made in the context
of a proper [] argument[,]” it was not grossly improper). Based
upon the brevity of the statements and their context within a
proper argument, we cannot say that the trial court committed
reversible error by failing to intervene ex mero motu.
Therefore, we hold that the trial court did not err in failing
to intervene during the prosecutor’s closing argument.
Accordingly, we conclude that defendant received a trial free
from error.
No error.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).