State v. Sargent

755 S.E.2d 91

STATE of North Carolina

v.Neil Matthew SARGENT.

No. COA13–482.

Court of Appeals of North Carolina.

March 18, 2014.

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 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. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011) (hereinafter Sargeant I).

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 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 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 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 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 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 ...