State v. Sargent

NO. COA13-482
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Watauga County
Nos. 05 CRS 6683-85, 52810,
NEIL MATTHEW SARGENT
Appeal by defendant from judgments entered 8 November 2012
by Judge James U. Downs in Watauga County Superior Court. Heard
in the Court of Appeals 22 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
David J. Adinolfi II, for the State.
Michele Goldman for defendant-appellant.
BRYANT, Judge.
Where the prosecutor responded to defense counsel’s
endorsement of defendant’s witness as truthful by stating that
defendant’s witness did not give truthful testimony, the trial
court did not err in failing to intervene during the
prosecutor’s closing argument. Where defendant placed his
character at issue by testifying at length about his positive
military service, the prosecution was allowed to examine the
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circumstances of his general discharge from the United States
Army.
On 28 November 2005, a Watauga County grand jury indicted
defendant Neil Matthew Sargent on charges of first-degree murder
with aggravating factors, first-degree kidnapping, burning of
personal property, and robbery with a dangerous weapon stemming
from events leading to the death of Steven William Harrington.
On 5 November 2007, defendant was indicted on a second count of
robbery with a dangerous weapon.
On 24 April 2008, following a jury trial in Watauga County
Superior Court, the Honorable Ronald K. Payne, Judge presiding,
entered judgment against defendant on the charges of first-
degree murder, first-degree kidnapping, robbery with a dangerous
weapon, and burning of personal property. Defendant appealed to
this Court from the entry of these judgments. In State v.
Sargeant, 206 N.C. App. 1, 696 S.E.2d 786 (2010), this Court
granted defendant a new trial due in part to the exclusion of a
statement made by Matthew Brandon Dalrymple to law enforcement
officers on 10 September 2007. Following an appeal by the
State, our Supreme Court affirmed the decision of this Court to
grant defendant a new trial. See State v. Sargent, 365 N.C. 58,
707 S.E.2d 192 (2011) (hereinafter Sargent I).
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A new trial commenced during the 29 October 2012 session of
Watauga County Criminal Superior Court, the Honorable James U.
Downs, Judge presiding. The evidence presented at trial tended
to show that on the evening of 7 November 2005, Harrington was
assaulted, robbed, and asphyxiated in a residence located at 121
Poplar Drive in Boone, then driven to another location where his
body was doused with lighter fluid and set on fire in the trunk
of a car. Three people were present in the home at the time of
Harrington’s death and at the location of the burning car:
defendant, Kyle Triplett, and Dalrymple.
During the prosecution’s case-in-chief, the prosecutor
called Kyle Triplett, a witness who had also testified at
defendant’s first trial. Triplett testified that defendant
orchestrated an ambush of Harrington. On the evening in
question, Triplett followed defendant’s explicit instructions
whereby Triplett was to grab Harrington by the throat and hold a
gun to his head. Defendant provided Triplett with a gun.
Triplett testified that when Harrington appeared, Triplett
grabbed Harrington by the throat and choked him until his face
turned red. When Harrington dropped to the floor, defendant
began wrapping Harrington’s head in duct tape. Triplett
testified that following this, he and defendant began punching
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Harrington and then kicking him, at which point Dalrymple joined
in. After Harrington stopped moving, Dalrymple reached into
Harrington’s pants pocket and removed a softball sized box that
contained four to six ounces of cocaine. Harrington’s body was
then carried outside and placed in the trunk of Harrington’s
car. Triplett testified that he drove Harrington’s car with
defendant as a passenger and Dalrymple following in a second
vehicle. Triplett stopped Harrington’s car on a roadside along
Sleepy Hollow Lane. Triplett testified that defendant opened
the trunk, doused lighter fluid on Harrington’s body and ignited
a fire. Triplett and defendant then got into the car driven by
Dalrymple and returned to defendant’s residence.
During the presentation of defendant’s case, defendant
called Dalrymple to testify. Dalrymple testified that on the
evening of 7 November 2005, he was using the bathroom when he
heard a knock on an outside door. When Dalrymple exited the
bathroom, he observed Triplett choking a man at gunpoint.
Dalrymple had never before seen the man being choked. Dalrymple
testified that Triplett hit the victim in the temple with the
butt of a handgun. When the victim dropped to the floor,
Triplett began kicking the victim in the ribs. Dalrymple
testified that Triplett wrapped the victim’s head in duct tape
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and taped his hands behind his back. Dalrymple testified that
when Triplett told Dalrymple that Dalrymple was to drive one of
the vehicles, Dalrymple refused, but then Triplett pointed the
gun at him. When Dalrymple headed toward a bedroom to retrieve
his clothes, he passed defendant in the hallway. Defendant
asked, “what the f**k is going on[.]” Having gotten dressed and
stepped outside, Dalrymple testified that he observed Triplett
placing the victim’s body in the trunk of a car. Triplett then
drove the car containing the victim’s body while Dalrymple
followed in a second vehicle with defendant as a passenger.
When Triplett pulled onto the roadside off of Sleepy Hollow
Lane, Dalrymple observed Triplett open the trunk of the vehicle.
Dalrymple soon saw flames. Triplett got into Dalrymple’s car,
and the three men drove off. According to Dalrymple, defendant
did not exit the vehicle in which he was riding.
Defendant testified on his own behalf, consistent with the
version of events testified to by Dalrymple.
Following the close of the evidence, the jury returned
verdicts finding defendant guilty of first-degree murder on the
bases of lying in wait, felony murder, and premeditation and
deliberation; first-degree kidnapping; robbery with a dangerous
weapon; and burning personal property. The trial court entered
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judgment in accordance with the jury verdicts. On the charge of
first-degree murder, the trial court sentenced defendant to a
term of life imprisonment without parole. On the charges of
first-degree kidnapping, robbery with a dangerous weapon, and
burning personal property, the trial court entered a separate
consolidated judgment and sentenced defendant to a term of 80 to
105 months to be served consecutive to the life sentence.
Defendant appeals.
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On appeal, defendant raises the following issues: whether
the trial court (I) erred in failing to intervene during the
prosecutor’s closing argument; and (II) committed plain error in
allowing the prosecution to introduce evidence of defendant’s
prior assault.
I
Defendant first argues that the trial court erred by
failing to intervene ex mero motu during closing arguments to
address the prosecutor’s discussion of facts not in evidence,
misstating the evidence not in evidence, and offering an opinion
on the credibility of a witness. We disagree.
“The standard of review for assessing alleged improper
closing arguments that fail to provoke timely objection from
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opposing counsel 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) (citation omitted).
Pursuant to North Carolina General Statutes, section 15A-
1230, “Limitations on argument to the jury,”
[d]uring 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. An attorney may,
however, on the basis of his analysis of the
evidence, argue any position or conclusion
with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2013); see also State v. Gladden,
315 N.C. 398, 422, 340 S.E.2d 673, 688 (1986) (“Although the
closing arguments of counsel are largely within the control and
discretion of the trial court, it is well established that
counsel is to be afforded wide latitude in the argument of
fiercely contested cases. Counsel for both sides may argue the
law and the facts in evidence, along with all reasonable
inferences to be drawn from them. Counsel may not, however,
raise incompetent and prejudicial matters nor refer to facts not
in evidence. Counsel is also prohibited from placing before the
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jury his own knowledge, beliefs, and personal opinions not
supported by the evidence.”). “Only where the prosecutor's
argument affects the right of the defendant to a fair trial will
the trial judge be required to intervene where no objection has
been made.” State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898,
911 (1987) (citation omitted). “A prosecutor's argument is not
improper where it is consistent with the record and does not
travel into the fields of conjecture or personal opinion.” Id.
a. Argument of Facts Not In Evidence
Defendant contends the State lacked evidence to support its
claims that “Dalrymple [was] [the State’s] deal with the
devil[,]” that the deal “was a mistake[,]” that the State had
“figured if we put a big enough carrot in front of [Dalrymple],
maybe [Dalrymple would] tell the truth[,]” that Dalrymple did
not tell the truth, and the State was “stuck with [Dalrymple’s]
plea.”
The State responds that the Dalrymple plea offer was in
evidence as defense exhibit #9. However, defense exhibit #9 was
actually an agreement wherein the State agreed to forego seeking
the death penalty in exchange for Dalrymple’s truthful testimony
at his own trial. The agreement provided that the truthfulness
of his testimony was to be measured against his September 2007
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statement.
Defendant contends that the State’s claim that it would not
call Dalrymple as a witness because he “would not know the truth
if it came up and slapped him in the head” was refuted by
defense exhibit #9. However, even assuming that defense exhibit
#9 does refute the State’s claim, the fact that evidence refutes
the State’s closing argument does not indicate that the State
argued facts not in evidence.
Defendant further challenges the State’s remarks that the
Dalrymple plea was a mistake “because that man was just as
guilty of first-degree murder [and] kidnapping as every other
defendant here.” Defendant contends that the remarks were
improper because, by “offering unchallenged testimony to the
jury during its closing, the State was able to strike an unfair
blow against [defendant’s] most crucial witness.” However, the
State’s remarks are supported by evidence presented at trial
that Dalrymple played an active role in the murder of Harrington
as discussed earlier in this opinion. Defendant has not shown
error on this basis and his argument is overruled.
b. Offered A Personal Opinion On Witness Credibility
Defendant also argues that the State’s claim that “it would
not call Dalrymple to testify because Dalrymple ‘would not know
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the truth if it came up and slapped him on the head’ offered a
personal opinion” as to witness credibility. Defendant cites
State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986), in
which two doctors were improperly permitted to testify “that in
their opinion the child had testified truthfully.” Id. at 587,
347 S.E.2d at 73. The present case is distinguishable from
Holloway because the prosecutor was not giving an opinion as to
witness credibility in the form of sworn testimony.
Defendant’s argument emphasizes the significance of any
improprieties in this case where the jury’s verdict “hinged on
its determination of Triplett’s, Dalrymple’s, and [Defendant’s]
credibility[.]” Similarly, our Supreme Court noted that the
first trial indicated that “the objective facts of what happened
the night the victim was killed are elusive.” Sargeant I, 365
N.C. at 67, 707 S.E.2d at 198. The Supreme Court further noted
that “the reason for the State’s decision to jettison Dalrymple
in favor of Triplett is not in the record.” Id.
In the present case, Defendant made the following
statements in his closing argument to the jury:
Just as Mr. Dalrymple’s agreement states, he
will testify truthfully if called upon by
the State to do so. Why didn’t the State
call him at this trial? Why not? It’s in
black and white. Don’t take my word for it.
Look at this. They never called him. I had
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to call him, and he gave truthful testimony.
He has been pretty much consistent
throughout.
In its closing, the State made the following statements to
the jury regarding Dalrymple:
You darn right we’re not going to put him
up, because that man would not know the
truth if it came up and slapped him in the
head. But they want you to believe that
version of truth or what they believe the
truth was.
The challenged portion of the prosecutor’s argument seems to
answer the very question that the Supreme Court noted was not in
the record of the first trial. As to the question of why the
State jettisoned Dalrymple in favor of Triplett, the prosecutor
stated:
Dalrymple is our deal with the devil. It
was a mistake . . . . We’re stuck with that
plea. The plea was a mistake and should
never have happened . . . because that man
was just as guilty of first-degree murder
[and] kidnapping as every other defendant
here.
Evidence that Dalrymple entered into a plea agreement with the
State does not tell why the State “jettison[ed] Dalrymple in
favor of Triplett” at this trial. Id. The prosecutor informed
the jury, by way of closing argument, of her opinion and belief
as to the credibility of the various defendants and that the
prosecution had made a mistake by entering into the plea
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agreement with Dalrymple. This statement, made in response to
defendant’s closing argument, seems to venture close to the area
of “conjecture or personal opinion.” Zuniga, 320 N.C. at 253,
357 S.E.2d at 911. However, our Supreme Court has found no
error in a credibility argument based on personal opinion from
the State where the defendant “opened the door” to the argument.
State v. Gladden, 315 N.C. 398, 423, 340 S.E.2d 673, 689 (1986).
In Gladden, the defendant stated that a State’s witness “could
not possibly remember . . . every detail in this case” and
“insinuated that [the witness’s] testimony had not been
truthful.” Id. The State, in its closing, argued that its
witness was “one of the finest Sheriffs that [the prosecutor
had] ever met[.]” Id. at 423, 340 S.E.2d at 688. Our Supreme
Court held that the “expression of personal opinion by the
prosecutor, while improper, was not, however, so grossly
improper as to require the trial court to intervene ex mero
motu.” Id. at 423, 340 S.E.2d at 688-89.
The State’s remarks appear to be in response to defendant’s
attempt to bolster Dalrymple’s credibility. As in Gladden,
defendant’s statements in closing opened the door to the State’s
response. Therefore, while the State’s remarks may have been
improper, they were “not, however, so grossly improper as to
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require the trial court to intervene ex mero motu.” Id. at 423,
340 S.E.2d at 689. Defendant’s argument is overruled.
II
Next, defendant argues that the State’s evidence of a prior
assault constituted evidence of a propensity for violence and
amounted to plain error. We disagree.
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where [the error] is grave error which
amounts to a denial of a fundamental right
of the accused, or the error has resulted in
a miscarriage of justice or in the denial to
appellant of a fair trial or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
proceedings or where it can be fairly said
the instructional mistake had a probable
impact on the jury's finding that the
defendant was guilty.
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333
(2012) (citation and quotations omitted).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty. Moreover,
because plain error is to be applied
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cautiously and only in the exceptional case
the error will often be one that seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings.
Id. at 518, 723 S.E.2d at 334 (citations and quotations
omitted).
Pursuant to General Statutes, section 8C-404,
Evidence of a person's character or a trait
of his character is not admissible for the
purpose of proving that he acted in
conformity therewith on a particular
occasion, except . . . [e]vidence of a
pertinent trait of his character offered by
an accused, or by the prosecution to rebut
the same[.]
N.C. Gen. Stat. ' 8C-1, Rule 404(a)(1) (2013); see also State v.
Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A
criminal defendant is entitled to introduce evidence of his good
character, thereby placing his character at issue. The State in
rebuttal can then introduce evidence of defendant's bad
character. See State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d
654, 658 (1987). Such evidence offered by the defendant or the
prosecution in rebuttal must be ‘a pertinent trait of his
character.’ N.C.G.S. § 8C–1, Rule 404(a)(1) (1999).”).
Before this Court, defendant challenges the prosecution’s
cross-examination of him as to his use of cocaine and prior
accusation of assaultive behavior while a member of the United
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States Army. In response, the State argues that on direct
examination, defendant placed his character at issue by
testifying about his military service. On direct examination,
defendant testified at length about his positive military
service: serving in the United States Army from September 1999
to January 2003, defendant worked with a field artillery unit in
both Kosovo and Afghanistan; also, he was awarded the United
Nations Kosovo Liberation Medal, Army Service Ribbon, and a
National Defense bar. Defendant’s Kosovo Liberation medal was
admitted into evidence. Defendant engaged in the following
examination on direct examination:
Q Now, Mr. Sargent, when did you get
discharged from the US Army?
A I believe the exact date was January
3rd, 2003.
Q And do you remember, do you recall what
the character of your discharge was?
A It was on, on other than honorable
conditions.
Q What they call general?
A General.
. . .
Q Who were you living with?
A Well, when I initially got out of the
Army I was having some substance abuse
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problems with alcohol and marijuana so
my aunt and uncle that I lived with
before I went in the Army they thought
it would be a good idea if I came back
and was in a better environment . . . .
On cross-examination, the prosecutor focused on the
circumstances of defendant’s discharge from the military. We
look to the following exchange, which took place in the absence
of any objection by defendant:
Q . . . [I]n fact, when you were talking
about all of your military
accomplishments, you didn't tell the
jury [about your] less than honorable
circumstances for using cocaine, did
you?
A I said I was discharged for other than
honorable conditions, I said that.
Q Did you tell the jury that you were
discharged for other than honorable
conditions you were discharged . . . on
11 December, 2002 for using cocaine and
for assault, is that right?
A That is correct.
Q And in fact, it was so bad, sir, that
the commander there at Fort Bragg . . .
requested that you be barred from Fort
Bragg pending your hearing because of
your assault and use of cocaine, didn't
he?
A That's correct.
Q You didn't tell the jury that, did you?
A I wasn't asked.
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Q Well, sir, you told the jury all about
all the fine things you had done in the
military, and all the honors, I believe
you held up a certificate here about
service overseas and the battalions you
were in, and how you supported the
artillery, supported people over in
the, the Vulcans and all of that, but
you didn't tell them about being
dishonorably discharged, did you?
A I just answered the questions my lawyer
asked me.
. . .
Q You tried to mislead the jury into
believing you were a wonderful fine
soldier serving your country when in
fact you were dishonorably discharged
for the use of cocaine and for assault?
. . .
And that is exactly what you're here
today for is using cocaine and murder,
isn't it?
A That's correct.
Because defendant placed his character at issue by
testifying at length about his positive military service record
and acknowledging that he received a general discharge from the
United States Army, the State was entitled to examine the
circumstances that led to defendant’s discharge. See Roseboro,
351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A criminal
defendant is entitled to introduce evidence of his good
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character, thereby placing his character at issue. The State in
rebuttal can then introduce evidence of defendant's bad
character.”). Therefore, we hold there was no error in the
admission of this evidence. Defendant’s argument is overruled.
No error.
Judges McGEE and STROUD concur.