State v. Cole

556 S.E.2d 666, 147 N.C. App. 637, 2001 N.C. App. LEXIS 1257
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2001
DocketCOA00-1311
StatusPublished
Cited by10 cases

This text of 556 S.E.2d 666 (State v. Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cole, 556 S.E.2d 666, 147 N.C. App. 637, 2001 N.C. App. LEXIS 1257 (N.C. Ct. App. 2001).

Opinion

WALKER, Judge.

Defendant appeals his conviction for first degree murder under the felony murder rule. The State’s evidence presented at trial tends to show the following: On the evening of 22 May 1998, Tonya Luther (Luther), Alesia Clapp (Clapp), and Tina Clapp were visiting with Calvin Jenkins (Jenkins) in his Greensboro apartment. At approximately 9:10 p.m., Luther decided to leave and check on her nearby apartment. As she was walking out, there was a knock at the front door. Jenkins opened the door and two black males entered. One was noticeably shorter than the other. Luther said “Hi” to the men as she walked out. The men then spoke briefly with Jenkins and left.

*639 A short time later, Luther returned to Jenkins’ apartment and saw the same two men standing in the parking lot. After about ten minutes, there was another knock at the front door. Jenkins again answered and the two men entered. The three women were talking in the kitchen near the apartment’s entrance. Luther and Clapp heard one of the men say “Give me some money” and observed Jenkins raise his hands. They next heard a gun shot and saw Jenkins fall to the floor. The shorter of the two men approached the women and asked, “Where’s the money at?” The taller man began to search the kitchen. After he found “three or four bags of marijuana,” the two men left.

When the police arrived at the apartment, Luther and Clapp provided them with a description of the two men. Four days later, Luther and Clapp went to the Greensboro Police Department where they gave further descriptions. The police then entered a composite description of each man into a computerized photographic database known as the “Spillman system.” This system matched the descriptions to photographs maintained in a computer database. It then displayed approximately nineteen photographs at one time on a seventeen-inch computer screen. At this time, Luther and Clapp viewed more than one thousand photographs but did not see one which depicted either of the two men.

The next day, Luther returned to the police department and continued viewing photograph displays. After some time, she selected a photograph which she identified as depicting the shorter of the two men. She continued to view several displays but did not see a photograph of the second man. Later that evening, a Greensboro detective went to Clapp’s place of work and showed her the display from which Luther had made her identification. Clapp selected the same photograph as Luther. Defendant was the individual shown in the photograph.

At trial, both Luther and Clapp identified defendant as being the shorter man in Jenkins’ apartment on the evening of 22 May 1998. Forensic evidence also showed that Jenkins died of a single gunshot wound to the chest. From the apartment, crime scene technicians recovered 175.9 grams of marijuana, a scale which is similar to those used in weighing marijuana, approximately one thousand dollars in cash, and several boxes of pistol cartridges.

Defendant presented evidence which tended to show that he had been in Dayton, Ohio, for three to four months prior to June 1998. A *640 recording engineer also testified that he billed defendant for the use of a studio in Dayton for the same date that Jenkins was killed.

With his first assignment of error, defendant contends the trial court erred by permitting the State to ask leading questions of its witnesses and to argue facts during closing argument which were not in evidence.

Our appellate courts have consistently held that control over the course and conduct of a trial is the responsibility of the trial court and will not be disturbed absent an abuse of discretion. State v. Covington, 290 N.C. 313, 334-35, 226 S.E.2d 629, 644 (1976); State v. Davis, 77 N.C. App. 68, 74, 334 S.E.2d 509, 513 (1985); State v. Dickens, 346 N.C. 26, 44, 484 S.E.2d 553, 563 (1997)(“[r]ulings concerning the admissibility of leading questions are in the sound discretion of the trial court and should not be disturbed absent an abuse of that discretion”); State v. Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761 (1979)(“control of the arguments of counsel must be left largely to the discretion of the trial judge”). An abuse of discretion occurs only where the trial court’s ruling is “so arbitrary that it could not have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985). Even in situations where the trial court does err, a defendant is not entitled to a new trial unless such error is material and prejudicial. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983).

Defendant first asserts that he is entitled to a new trial by arguing that the trial court abused its discretion in allowing the State to ask leading questions of its witnesses. Specifically, defendant identifies thirteen questions asked of six different witnesses which he contends were leading.

After carefully reviewing each of these questions, we agree with the trial court’s conclusion that they were either not leading questions or were permissible to develop a witness’ testimony. State v. Smith, 135 N.C. App. 649, 655, 522 S.E.2d 321, 326 (1999), disc. review denied, 351 N.C. 367, 543 S.E.2d 143 (2000). Defendant has also failed to demonstrate how the trial court’s allowing these questions resulted in prejudicial error. Dickens, 346 N.C. at 44, 484 S.E.2d at 563.

Defendant next asserts that he is entitled to a new trial based on the State’s presenting to the jury facts which were not in evidence.

During his closing argument, defendant argued that Jenkins’ death was a “drug-related killing.” He maintained that Jenkins was a *641 drug dealer, that people were constantly in and out of his apartment, and that he was likely killed by a disgruntled client. Defendant also argued that he could not possibly have killed Jenkins because he was in Dayton, Ohio, on the day of the shooting.

In its argument and in response to these assertions, the State recounted for the jury the testimony of witnesses who stated that defendant smoked marijuana, was frequently seen coming and going from Jenkins’ apartment, and maintained a high life style without any known job or visible source of income. The State also noted there was testimony that defendant’s father had flown into town every couple of weeks and stayed in the exact same motel. After outlining this testimony, the State asked a number of rhetorical questions to which defendant made two objections: “[E]ver wonder what his [father’s] business might be? . . . Might common sense tell you that he might be a Jamaican drug dealer? ... Might you infer that his son is involved in his father’s business? ...

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Bluebook (online)
556 S.E.2d 666, 147 N.C. App. 637, 2001 N.C. App. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cole-ncctapp-2001.