State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1250
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 10 CRS 3417
SEVERN LEE WILLIAMS
Appeal by defendant from judgment entered 21 February 2013
by Judge G. Wayne Abernathy in Wake County Superior Court.
Heard in the Court of Appeals 18 March 2014.
Roy Cooper, Attorney General, by Daniel D. Addison, Special
Deputy Attorney General, for the State.
Law Offices of John R. Mills NPC, by John R. Mills, for
defendant-appellant.
STEELMAN, Judge.
Where defendant failed to preserve Constitutional error,
his argument on appeal is dismissed. Where the trial court
found that a statement defendant contended was an inconsistent
statement of a State’s witness was actually the statement of
defendant, the trial court did not err in excluding the
statement. Where the State’s closing arguments were not grossly
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improper, the trial court did not err in failing to intervene ex
mero motu.
I. Factual and Procedural Background
On 16 October 2009, after midnight, the phone of Severn Lee
Williams (defendant) was used to call Excel Taxicab (Excel)
dispatch. Friday Asoburuenwu (Friday), a taxi driver employed
by Excel, responded to the call, and proceeded to Hoyle Drive in
Raleigh. Friday arrived, and took on his passenger, a black man
wearing a toboggan. The passenger pulled out a gun, threatened
and shot Friday, and ordered him to drive. Upon reaching his
destination, as the passenger started to leave the taxi, Friday
was able to grab and retain his toboggan. The passenger then
fled to a black four-door car. Friday called 911, received
medical treatment, and gave a statement to police. Friday was
able to identify defendant’s picture from a photographic lineup.
Police called the telephone number that had requested
Friday’s taxi, and defendant answered. Defendant claimed that
he had gone to a Circle K that night to purchase beer, and had
driven his brother’s vehicle to the store. Police then met with
defendant, and defendant told them that he had allowed a friend
to use his cellular telephone to call a cab. However, defendant
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could not provide a name of any person who had used his
telephone, instead providing a vague description. Defendant
claimed that he didn’t know where the man lived or where he went
after using defendant’s telephone. Police asked defendant to
identify the Circle K. Defendant then said that he did not
actually go into the store, because a friend named Spook called
him and offered him beer near the store. Defendant told police
that he didn’t meet Spook in the parking lot, but in apartments
located behind Circle K. When police asked in which apartment
Spook lived, defendant responded that he didn’t know, that he
didn’t actually go to an apartment, that he and Spook hung out
in the parking lot drinking, and it was at that point that the
unknown man borrowed defendant’s telephone. Police asked for
Spook’s telephone number, but defendant said that he did not
know it, that he did not have it in his address book, that his
telephone erases telephone numbers, and that he had cleared his
cell-phone history. Defendant claimed that he did not know how
Spook had his telephone number. When asked how defendant knew
Spook, defendant claimed that they had been introduced by a
mutual friend named Dwight, but that defendant did not know
Dwight’s telephone number or how to get in touch with him.
Police checked defendant’s cellular telephone records, and found
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that only two calls went to defendant’s telephone that night:
one from his aunt, and one from a female friend. There were no
calls received from or made to anyone named Dwight or Spook.
Defendant was indicted for assault with a deadly weapon
with intent to kill inflicting serious injury, first-degree
kidnapping, attempted robbery with a dangerous weapon, and
possession of a firearm by a felon. Defendant was found not
guilty of assault with a deadly weapon and possession of a
firearm by a felon, but guilty of first-degree kidnapping and
attempted robbery with a firearm. The trial court sentenced
defendant to an active term of imprisonment of 93-120 months for
attempted robbery, and arrested judgment on the kidnapping
charge.
Defendant appeals.
II. Exclusion of Prior Inconsistent Statement
In his first argument, defendant contends that he was
denied his right to confront the witnesses against him as a
result of the trial court’s exclusion of a witness’ prior
inconsistent statement. We disagree.
A. Standard of Review
“It is well established that appellate
courts will not ordinarily pass on a
constitutional question unless the question
was raised in and passed upon by the trial
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court.” State v. Muncy, 79 N.C. App. 356,
364, 339 S.E.2d 466, 471, disc. review
denied, 316 N.C. 736, 345 S.E.2d 396 (1986).
State v. Mobley, 200 N.C. App. 570, 572, 684 S.E.2d 508, 510
(2009). “Constitutional issues not raised and passed upon at
trial will not be considered for the first time on appeal[.]”
State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001)
(quoting State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607
(2001)).
[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) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)).
B. Analysis
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In the instant case, the State presented testimony from
Charles Bostic (Bostic), a jailhouse informant, who testified
about what defendant told him concerning plans to commit the
robbery of the taxi. After the State’s direct examination of
Bostic, defendant sought to introduce a letter, written by
defendant but signed by Bostic, which stated that defendant was
not aware of or involved with the alleged crimes. Defendant
sought to introduce this evidence as a prior inconsistent
statement for purposes of impeachment. After a voir dire
hearing regarding the letter, the trial court excluded it.
Defendant did not except to its exclusion at trial. On appeal,
defendant contends that this was error or, in the alternative,
plain error, and that its exclusion violated defendant’s rights
under the Confrontation Clause of the United States and North
Carolina Constitutions.
Defendant made no Constitutional argument at trial, and
thus did not properly preserve this issue for appellate review.
Constitutional issues not addressed by the trial court will not
be addressed for the first time on appeal. Mobley, 200 N.C.
App. at 572, 684 S.E.2d at 510. Further, plain error review is
limited to evidentiary and jury instruction issues. See State
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v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). This
argument is dismissed.
Even assuming arguendo that this Court could review
defendant’s arguments for plain error, we hold that defendant
has failed to show the necessary prejudice. Defendant contends
that the two statements, Bostic’s testimony at trial and his
adopted statement in the letter, were inconsistent, and that
Bostic’s testimony was vital to the State’s case. However,
Bostic’s testimony is hardly the only evidence tying defendant
to the crimes charged. Evidence was presented of defendant’s
inconsistent statements, of Friday’s identification of
defendant, and of the presence of the black car.
Further, Bostic’s voir dire testimony clearly showed that
the letter was defendant’s statement, not that of Bostic. Had
defendant testified at trial, the trial court held that the
statement would have been admissible to corroborate defendant’s
testimony. However, defendant did not testify at trial, nor did
he present any evidence.
Even assuming arguendo that defendant was improperly
prevented from impeaching Bostic, we hold that any such
exclusion did not have a probable impact on the jury’s finding
that defendant was guilty.
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This argument is dismissed.
III. Improper Closing Arguments
In his second argument, defendant contends that the trial
court erred in failing to intervene ex mero motu during the
State’s closing arguments. We disagree.
A. Standard of Review
The standard of review for assessing alleged
improper closing arguments that fail to
provoke timely objection from opposing
counsel is whether the remarks were so
grossly improper that the trial court
committed reversible error by failing to
intervene ex mero motu. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)
(citation omitted).
In determining whether argument was grossly
improper, this Court considers “the context
in which the remarks were made,” State v.
Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41,
cert. denied, 513 U.S. 1046 (1994), as well
as their brevity relative to the closing
argument as a whole, 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 ... was made
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in the context of a proper ... argument,” it
was not grossly improper), cert. denied, 537
U.S. 846 (2002).
State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239, 259 (2008).
B. Analysis
During the closing arguments, the State made the following
statements:
He [defense counsel] is an advocate for
Severn Williams. That's his job. I'm not an
advocate for anybody. I have no client. I
have the facts and I have the law.
Defendant contends that this remark was grossly improper,
as it was “a distortion of the prosecutor’s role and undermines
the adversarial process.”
We note that the portion of the State’s argument complained
of on appeal is an exceptionally small portion of the State’s
closing argument that covered nearly twenty pages of transcript.
In State v. Taylor, our Supreme Court held that we must consider
the context and brevity of the remarks made. Taylor, 362 N.C.
at 536, 669 S.E.2d at 259. In the instant case, the context of
the remarks complained of on appeal was that of a rhetorical
flourish; they were a brief portion of the State’s arguments,
and were insignificant and tangential when compared with the
thrust of the arguments which followed. The remarks themselves
cast no aspersions on defendant or defense counsel; they are not
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ad hominem attacks, which are frowned upon by our courts, but
merely a form of litigative puffery. Accordingly, we hold that
these remarks were not so grossly improper as to require the
trial court to have intervened ex mero motu.
The trial court did not err in failing to intervene ex mero
motu.
NO ERROR.
Judges HUNTER, Robert C., and BRYANT concur.
Report per Rule 30(e).