NO. COA 14-63
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Johnston County Nos. 10 CRS 3725, 53948 MATTHEW HAGERT SALENTINE
Appeal by Defendant from judgment entered 25 October 2012
by Judge William R. Bell in Johnston County Superior Court.
Heard in the Court of Appeals 10 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.
David L. Neal for Defendant.
STEPHENS, Judge.
Defendant Matthew Hagert Salentine was convicted in
Johnston County Superior Court of first-degree murder, first-
degree burglary, and robbery with a dangerous weapon, and was
sentenced to life imprisonment without parole for the first-
degree murder conviction, with judgment arrested on the other
two charges. Defendant appeals from the trial court’s order
denying his motion for a mistrial based on allegations of juror
misconduct, contending that the trial court erred in failing to -2- conduct a further inquiry after removing the juror in question,
and in overruling Defendant’s objections to the State’s closing
argument. After careful review, we hold that the trial court did
not abuse its discretion in denying Defendant’s motion for a
mistrial, limiting the scope of its juror misconduct inquiry, or
overruling Defendant’s objections to the State’s closing
argument.
Facts and Procedural History
The evidence at trial showed that early on the morning of
23 June 2010, Defendant broke into the home of 74-year-old
Smithfield resident Patricia Warren Stevens. Defendant later
admitted that he intended to steal money and valuables in order
to purchase crack cocaine, and that his neighbor, Mrs. Stevens,
seemed like an “easy” target because he knew she had been living
alone since her dog died several months previously. Contrary to
Defendant’s expectations, Mrs. Stevens put up a fight and began
screaming when she caught him rummaging through her purse.
Frightened by the prospect of being recognized, Defendant struck
Mrs. Stevens at least thirty-three times with a tire iron,
including at least eight blows to her head. When he realized
Mrs. Stevens was dead, Defendant attempted to conceal her body
by rolling it up in a carpet and moving furniture around. He -3- then continued to search the home for additional items to steal,
ultimately leaving with Mrs. Stevens’s Visa credit card, several
boxes of her checks, and a pillowcase stuffed with jewelry.
Defendant was arrested two days later on 25 June 2010 as he sat
in his truck after attempting to deposit into his bank account
over $2,000 in checks made payable to him and purportedly signed
by Mrs. Stevens. Defendant confessed to the killing later that
afternoon during an interview with SBI agents. Subsequent DNA
testing revealed that blood found on checkbooks and flip-flops
seized from Defendant’s vehicle and a tire iron found near the
back door of his apartment matched Mrs. Stevens’s DNA profile.
Defendant was tried capitally and pled not guilty, arguing
diminished capacity and voluntary intoxication as his defense to
the charge of premeditated and deliberate first-degree murder.
Although he admitted killing Mrs. Stevens after breaking into
her house, Defendant contended that he could not have formed the
requisite intent to commit the offense due to a combination of
crack cocaine addiction, alcohol abuse, and bipolar disorder.
During his SBI interview, Defendant claimed he “fell off the
wagon” after nearly five years of being sober and admitted to
consuming nearly $10,000 worth of crack cocaine in the weeks
preceding Mrs. Stevens’s murder, financing his binge with an -4- inheritance from the estate of his grandmother. In addition to
being strung-out on crack cocaine, Defendant also consumed a
fifth of vodka and some beers shortly before breaking into Mrs.
Stevens’s home. At trial, mental health experts for the State
and the defense diagnosed Defendant with cocaine dependence.
Defendant’s experts testified that he also suffered from bipolar
disorder, that his substance abuse represented a misguided
attempt to self-medicate his depression, and that it would be
impossible for a person to think or act rationally after
consuming so much crack cocaine and alcohol. The State’s expert
testified that although cocaine can affect one’s judgment, it
does not completely overwhelm the capacity to reason. He pointed
to Defendant’s decision to break into Mrs. Stevens’s home to
obtain money to get more crack and Defendant’s actions designed
to avoid detection in support of his conclusion that at the time
of the offense, Defendant was able to perform intentional acts
and make rational decisions. Moreover, the State’s expert
disputed the bipolar diagnosis, noting that although prolonged
cocaine use can cause what appear to be symptoms of mental
disorder, Defendant exhibited a clear pattern of functional,
stable behavior when not using drugs, thus making a personality
disorder with antisocial features the more appropriate -5- diagnosis. Nonetheless, in light of Defendant’s diminished
capacity defense, the trial court included an instruction on
second-degree murder as a lesser-included offense in its charge
to the jury.
On 25 October 2012, after deliberating eleven hours over
the course of three days, the jury found Defendant guilty of
first-degree murder based on theories of malice, premeditation
and deliberation, and felony murder. On 2 November 2012, prior
to the conclusion of Defendant’s capital sentencing hearing, the
trial court received a letter from Jeffrey Saunders, a Florida
attorney whose brother-in-law, Brian Scott Lloyd, was a forty-
eight-year-old long-haul truck driver who served on Defendant’s
jury. In his letter, Mr. Saunders informed the court:
During deliberations, [Lloyd] contacted my wife complaining about one of the female jurors, because she would not agree to find the Defendant guilty. He further informed my wife that the same juror failed to disclose during voir dire that her brother was addicted to drugs. He also stated to my wife that he went online and found out certain information about the Defendant. I informed my wife to tell her brother that he was prohibited from speaking to her or anyone else regarding the case, and he must comply with the Court’s instructions. Thereafter, he called my wife on another day and told her that he and the other jurors did not know what the term “malice” meant and asked her to ask me to explain the same. I refused to provide any information to my wife and I -6- never spoke to her brother about the case.
Upon learning of these allegations of juror misconduct, the
trial court informed both parties that it intended to remove
Lloyd from the jury and that it was going to make an inquiry of
him. Defendant’s counsel noted that Lloyd had been seen smoking
cigarettes during breaks with two other jurors and stated that
inquiry of them also seemed appropriate. Defendant also moved
for a mistrial, which the trial court denied, explaining that
even if a juror had violated the court’s rules, the ultimate
inquiry was whether that violation was prejudicial to Defendant.
During the inquiry that followed, Lloyd confirmed that he
had spoken to his sister after the jury retired to its
deliberations, but could not recall the precise date of their
conversation. Lloyd initially denied discussing any details
about the case with his sister, but eventually acknowledged he
had shared with her his frustrations with another juror,
explaining, “I told her I had a rough day, we was [sic]
deliberating the case. It was getting heated in there basically.
That’s all I said. No details.” When the trial court confronted
Lloyd with the Saunders letter, he eventually confirmed that he
had told his sister the jury had been at an 11-to-1 standoff,
and that the hold-out juror was a female whose brother was -7- addicted to drugs and was “having a little trouble, crying a
lot.” Early in the inquiry, the trial court expressed
frustration with Lloyd’s initial reluctance to answer questions
candidly, stating:
THE COURT: Why do I feel like I’m having to drag this out of you?
[Lloyd]: You’re not.
THE COURT: I started out by asking you if you’d talked to anybody about this and you said no and then I’m asking you particular things that were disclosed in this letter –
[Lloyd]: I was thinking around here.
THE COURT: Let me finish. And that as I started asking you about specific things, you then remembered them.
However, as the inquiry continued, Lloyd repeatedly denied the
remaining allegations contained in the Saunders letter. Lloyd
denied conducting any online research about Defendant or the
case, and claimed that he did not know how to use a computer.
Lloyd also denied having asked his sister about “malice,” and
stated instead that he had been having trouble with the word
“mitigating” but never specifically asked her to ask Mr.
Saunders for assistance. Lloyd further denied having spoken to
any other member of the jury, including the two men he had been
seen smoking with, about any of these issues. -8- Following the inquiry, the trial court removed Lloyd from
the jury and replaced him with an alternate. Defendant again
moved for a mistrial and, alternatively, requested that the
trial court make further inquiries of the other jurors. The
court denied Defendant’s motion for a mistrial and explained
that, based on Lloyd’s answers, it did not believe there was any
need to conduct any further inquiry. Defendant’s sentencing
hearing resumed shortly thereafter, and the jury ultimately
recommended a sentence of life imprisonment without parole,
which the trial court imposed on 2 November 2012.
Juror Misconduct
Defendant first argues that the trial court abused its
discretion by denying his motion for a mistrial based on juror
misconduct and refusing Defendant’s request to make further
inquiry into whether other jurors received prejudicial outside
information from Lloyd. We disagree.
A mistrial must be declared “if there occurs during the
trial an error or legal defect in the proceedings, or conduct
inside or outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant’s case.” N.C. Gen. Stat.
§ 15A–1061 (2013). In examining a trial court’s decision to
grant or deny a motion for mistrial on the basis of juror -9- misconduct, we review for abuse of discretion. State v. Bonney,
329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991). An abuse of
discretion occurs “only upon a showing that the judge’s ruling
was so arbitrary that it could not have been the result of a
reasoned decision.” State v. Dial, 122 N.C. App. 298, 308, 470
S.E.2d 84, 91, disc. review denied, 343 N.C. 754, 473 S.E.2d 620
(1996).
When juror misconduct is alleged, it is the trial court’s
responsibility “to make such investigations as may be
appropriate, including examination of jurors when warranted, to
determine whether misconduct has occurred and, if so, whether
such conduct has resulted in prejudice to the defendant.” State
v. Aldridge, 139 N.C. App. 706, 712, 534 S.E.2d 629, 634, appeal
dismissed and disc. review denied, 353 N.C. 269, 546 S.E.2d 114
(2000). “Misconduct is determined by the facts and circumstances
in each case,” State v. Drake, 31 N.C. App. 187, 190, 229 S.E.2d
51, 54 (1976), and this Court has held that “[n]ot every
violation of a trial court's instruction to jurors is such
prejudicial misconduct as to require a mistrial.” State v. Wood,
168 N.C. App. 581, 584, 608 S.E.2d 368, 370 (citation omitted),
disc. review denied, 359 N.C. 642, 614 S.E.2d 923 (2005). The
trial court is vested with the “discretion to determine the -10- procedure and scope of the inquiry.” State v. Burke, 343 N.C.
129, 149, 469 S.E.2d 901, 910 (1996). On appeal, we give great
weight to its determinations whether juror misconduct has
occurred and, if so, whether to declare a mistrial. State v.
Boyd, 207 N.C. App. 632, 640, 701 S.E.2d 255, 260 (2010). Its
decision “should only be overturned where the error is so
serious that it substantially and irreparably prejudiced the
defendant, making a fair and impartial verdict impossible.”
State v. Gurkin, __ N.C. App. __, __, 758 S.E.2d 450, 454
(2014)(quoting Bonney, 329 N.C. at 73, 405 S.E.2d at 152).
In the present case, Defendant contends that the
combination of the Saunders letter, Lloyd’s initial reluctance
to testify candidly, and the possibility of a hold-out juror
provides substantial reason to believe that prejudicial outside
information was brought into the jury’s deliberations. This
means that, according to Defendant’s interpretation of our
Supreme Court’s decision in State v. Black, 328 N.C. 191, 400
S.E.2d 398 (1991), the trial court was required to either
declare a mistrial or continue its inquiry by questioning the
entire jury to determine whether the other jurors were exposed
to outside prejudicial information. Therefore, Defendant argues,
the trial court abused its discretion by accepting “at face -11- value” Lloyd’s denials of Mr. Saunders’s allegations that he
conducted online research and asked for clarification about the
meaning of “malice.” As a result, Defendant claims his
fundamental constitutional right to an impartial jury was
denied.
At the outset, we note it is well established that “a
constitutional question which is not raised and passed upon in
the trial court will not ordinarily be considered on appeal.”
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)
(citation omitted), overruled in part on other grounds by State
v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004). Thus, because
Defendant did not raise his constitutional arguments at trial,
we lack jurisdiction to consider them now as they have not been
preserved for appellate review.
Defendant’s argument that the trial court abused its
discretion in denying his motion for a mistrial and declining to
conduct further inquiry essentially revolves around questioning
the credibility of Lloyd’s testimony. This argument ignores the
broad deference we are compelled to apply when reviewing the
trial court’s credibility determinations. As this Court has
repeatedly recognized in the context of juror misconduct
inquiries, “[t]he trial judge is in a better position to -12- investigate any allegations of misconduct, question witnesses
and observe their demeanor, and make appropriate findings.”
State v. Harris, 145 N.C. App. 570, 576, 551 S.E.2d 499, 503
(2001) (quoting Drake, 31 N.C. App. at 190, 229 S.E.2d at 54).
Furthermore, a careful review of the record does not
support Defendant’s assertion that the trial court simply
accepted Lloyd’s testimony “at face value.” In order to cast
doubt on Lloyd’s testimony and, by extension, the trial court’s
decision to believe it, Defendant emphasizes Lloyd’s initial
reluctance to admit that he had discussed the case with his
sister, and selectively highlights a quote from the bench
expressing frustration with having to “drag” the truth out of
Lloyd. But viewed in its full context, the trial court’s
frustration with Lloyd actually shows that it engaged in a
searching, skeptical inquiry. Rather than blindly accepting
Lloyd’s answers, the trial court pushed back repeatedly to
demand further clarification. Nevertheless, Lloyd did not waver
in denying that he conducted online research, asked about
“malice,” and discussed outside information with other jurors,
and the trial court was ultimately satisfied that no prejudice
resulted from his misconduct. -13- Apart from the Saunders letter, there was no evidence that
Lloyd obtained any outside information about the case. Moreover,
this Court’s prior decisions indicate that, even if taken as
true, the allegations in the Saunders letter would not amount to
prejudicial misconduct. On the one hand, the Saunders letter
does not allege that either Mr. Saunders or his wife provided
Lloyd with any information about “malice,” whereas Lloyd
testified that he actually asked about the definition of
“mitigating,” but denied finding any outside information about
either term. In any event, this Court has previously held that
the definitions of legal terms do not constitute outside
prejudicial information. See State v. Patino, 207 N.C. App. 322,
329–30, 699 S.E.2d 678, 684 (2010). On the other hand, the vague
allegation that Lloyd “conducted online research about
Defendant” is not sufficient to support a claim that prejudicial
juror misconduct occurred. In Aldridge, this Court held that the
trial court did not abuse its discretion in failing to hold an
inquiry into allegations of juror misconduct based solely on
hearsay from an anonymous telephone call. 139 N.C. App. at 713,
534 S.E.2d at 635. In State v. Rollins, we held that the trial
court did not abuse its discretion when it declined to hold an
inquiry based on allegations that a juror had been exposed to -14- prejudicial outside information by watching an unidentified
television newscast. __ N.C. App. __, 734 S.E.2d 634 (2012),
affirmed per curiam, 367 N.C. 114, 748 S.E.2d 146 (2013).
In the present case, the Saunders letter is itself hearsay,
given that it describes what Mr. Saunders said his wife said
Lloyd told her, and is similarly vague insofar as it does not
identify any specific source for Defendant’s online research.
Lloyd repeatedly denied conducting any online research about
Defendant, and testified that he did not know how to use a
computer. Although Defendant complains this is simply
unbelievable four decades after the advent of the personal
computer, we give the trial court’s determinations great
deference on appeal and, based on the record before us, we do
not believe its decision to credit the testimony of a live
witness over vague, partially substantiated hearsay was “so
arbitrary that it could not have been the result of a reasoned
decision.” See Dial, 122 N.C. App. at 308, 470 S.E.2d at 91. We
therefore hold that the trial court did not abuse its discretion
when it denied Defendant’s motion for a mistrial.
Defendant also puts great emphasis on Lloyd’s testimony
that there had been a hold-out juror, and contends the trial
court abused its discretion in failing to question the other -15- jurors as to whether they were exposed to prejudicial outside
information. In support of this argument, Defendant relies on
Black, where our Supreme Court held that, “[w]hen there is
substantial reason to fear that the jury has become aware of
improper and prejudicial matters, the trial court must question
the jury as to whether such exposure has occurred and, if so,
whether the exposure was prejudicial.” 328 N.C. at 196, 400
S.E.2d at 401 (citation omitted). Thus, in the present case,
Defendant argues the trial court violated an absolute duty to
conduct a further inquiry.
However, Defendant’s reliance on Black is misplaced. First,
it ignores the fact that, in Black, our Supreme Court upheld the
trial court despite the court’s failure to conduct any sort of
inquiry into the allegations of juror misconduct before it,
explaining that the trial court has “broad discretion to see
that a competent, fair and impartial jury is impaneled and
rulings in this regard will not be reversed absent a showing of
abuse of discretion.” Id. (citation and internal quotation marks
omitted). Moreover, Defendant’s argument appears to be based on
a common misunderstanding that this Court recently addressed in
Gurkin. As in the present case, the defendant in Gurkin
selectively cited our prior holdings to argue that any -16- allegation of juror misconduct creates an absolute duty for the
trial court to investigate. However, as we explained, “there is
no absolute rule that a court must hold a hearing to investigate
juror misconduct upon an allegation.” __ N.C. App. at __, 758
S.E.2d at 454 (quoting Harris, 145 N.C. App. at 576–77, 551
S.E.2d at 503). While affirming the trial court’s duty to
conduct an inquiry where there is substantial reason to fear
prejudicial misconduct, Gurkin made clear that “[a]n examination
of the juror involved in alleged misconduct is not always
required, especially where the allegation is nebulous.” Id.
(quoting Harris, 145 N.C. App. at 577, 551 S.E.2d at 503). As
this Court previously explained,
[t]he circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely [a] matter of suspicion, it is purely a matter in the discretion of the presiding judge.
Aldridge, 139 N.C. App. at 713, 534 S.E.2d at 634. In the
present case, the trial court did not issue written findings.
This Court has held, however, that “[a] denial of motions made
because of alleged juror misconduct is equivalent to a finding
that no prejudicial misconduct has been shown.” Id. Furthermore,
the record supports such a finding. There was no evidence that -17- Lloyd ever discussed outside information with other jurors:
Lloyd testified that he did not, and the Saunders letter does
not allege otherwise. If the trial court was satisfied, based
upon Lloyd’s responses and its own observations, that there was
no substantial reason to fear that the jury was exposed to
prejudicial outside information, then it was well within the
trial court’s discretion to end its inquiry and proceed to
sentencing. See Burke, 343 N.C. at 149, 469 S.E.2d at 910. Thus,
Defendant’s argument fails.
Finally, Defendant urges this Court to consider the harm
that juror misconduct threatens to the judicial system as a
whole, citing as support our decision in Drake. While it is true
that, in Drake, we recognized that “[b]asic principles of proper
juror conduct should not be ignored by the trial court” and that
“[r]eversible error may include not only error prejudicial to a
party but also error harmful to the judicial system,” the
present case is easily distinguishable. 31 N.C. App. at 192–93,
229 S.E.2d at 55. In Drake, we held that the trial court abused
its discretion where it neither questioned the juror who
allegedly engaged in misconduct, nor made any other
investigation into the claim of juror misconduct. Here, by
contrast, the trial court conducted an investigation and -18- determined after questioning Lloyd that there was no danger of
prejudicial misconduct to Defendant. As we do not believe the
trial court abused its discretion in reaching this
determination, we do not agree that Lloyd’s misconduct harmed
the judicial system as a whole. Defendant’s arguments based upon
juror misconduct are overruled.
Closing Argument
Defendant next argues that the trial court improperly
overruled his objections to three portions of the State’s
closing argument, which he contends were prejudicial.
The standard of review for assessing an alleged improper
closing argument where opposing counsel lodged a timely
objection is whether the trial court abused its discretion by
failing to sustain the objection. State v. Murrell, 362 N.C.
375, 392, 665 S.E.2d 61, 73 (2008), cert. denied, 556 U.S. 1190,
173 L. Ed. 2d 1099 (2009). When applying the abuse of discretion
standard in this context, we determine first whether the
challenged remarks were improper, and, if so, whether they were
“of such a magnitude that their inclusion prejudiced defendant,
and thus should have been excluded by the trial court.” State v.
Peterson, 361 N.C. 587, 607, 652 S.E.2d 216, 229 (2007), cert.
denied, 552 U.S. 1271, 170 L. Ed. 2d 377 (2008). -19- Here, Defendant argues that the trial court abused its
discretion by allowing the prosecutor to repeatedly emphasize
the crime’s brutality and characterize it as one of the most
“brutal” and “gruesome” murder cases in the history of the
community. Defendant’s first objection came near the beginning
of the State’s closing argument. After insisting that the case
was about the decisions and choices Defendant made, the
prosecutor argued:
[Defendant’s] acts and his decisions resulted in the murder of Patricia Stevens, 74-year[-] old woman of dignity and grace who was absolutely vulnerable and his acts caused one of the most gruesome and violent murders this community has ever seen.
After the trial court overruled Defendant’s objection, the
prosecutor reiterated that this case was about the decisions and
choices Defendant made. Defendant objected again as the
prosecutor was arguing that the facts showed Defendant acted
with premeditation and deliberation. Specifically, regarding
Defendant’s use of grossly excessive force and the infliction of
wounds even after the victim was felled, the prosecutor argued:
Use of grossly excessive force. Let’s just stop on that one for a second and think about it. I want that to sink in — use of grossly excessive force. Infliction of lethal wound after the victim is felled. Think about that. These are the circumstances that you can infer -20- premeditation and deliberation specifically.
You heard what — even he said that he got on top of her and beat her in the back of the head with that tire iron until she stopped. He crushed her skull. Brutal or vicious circumstances of the killing. This is one of the most brutal murders this community has seen.
Defendant objected but was once again overruled. Taken together,
Defendant claims, these challenged remarks amounted to an
improper infusion of the prosecutor’s personal opinion, driven
by reference to matters outside the record to appeal to the
jury’s passion and prejudice. This, Defendant contends, is
reversible error in light of State v. Small, 328 N.C. 175, 400
S.E.2d 413 (1991), where our Supreme Court recognized it was
improper for a prosecutor to describe the crime as “a first
degree murder of one of the most heinous kind I have ever come
into contact with.” Id. at 186, 400 S.E.2d at 419. While
acknowledging that the Small Court ultimately concluded that the
statement at issue was not so grossly improper as to require a
new trial, Defendant contends that a different result is
warranted here because, unlike the defendant in Small, he timely
objected to these remarks at trial and thus the more rigorous ex
mero motu standard applied in Small is inapplicable. -21- Defendant is correct that the ex mero motu standard does
not apply here. Nevertheless, this does not automatically mean
that the trial court’s ruling “could not have been the result of
a reasoned decision.” See Dial, 122 N.C. App. at 308, 470 S.E.2d
at 91. In the present case, based on the record before us and in
light of our prior decisions, we do not believe that the trial
court abused its discretion when it overruled Defendant’s
objections.
First, as our Supreme Court has recognized, “prosecutors
are given wide latitude in the scope of their argument” and may
“argue to the jury the law, the facts in evidence, and all
reasonable inferences drawn therefrom.” State v. Goss, 361 N.C.
610, 626, 651 S.E.2d 867, 877 (2007) (citation and internal
quotation marks omitted), cert. denied, 555 U.S. 835, 172 L. Ed.
2d 58 (2008). Furthermore, “[s]tatements or remarks in closing
argument must be viewed in context and in light of the overall
factual circumstances to which they refer.” Id. (citation and
internal quotation marks omitted). Our Supreme Court has also
held that “hyperbolic language is acceptable in jury argument so
long as it is not inflammatory or grossly improper.” State v.
Lloyd, 354 N.C. 76, 115, 552 S.E.2d 596, 623 (2001) (citation
omitted). -22- Here, the full context of the prosecutor’s closing argument
demonstrates that the challenged remarks were supported by the
evidence and had a proper purpose. Indeed, the evidence
introduced at trial supported the prosecutor’s assertion that
this murder of a 74-year-old woman by tire iron was, in fact,
brutal. See Small, 328 N.C. at 186, 400 S.E.2d at 419 (ruling
that prosecutor’s description of the murder as “a first degree
murder of one of the most heinous kind I have ever come into
contact with” was not so grossly improper as to require a new
trial, in part because the evidence in the record supported the
characterization of the murder as “heinous”). Further, these
challenged remarks related to the State’s theory of the case —
that Defendant acted intentionally and with premeditation and
deliberation — which Defendant put directly at issue by claiming
he lacked capacity. As our Supreme Court has recognized, the
brutality of the crime and the infliction of blows after the
victim was felled are both circumstances to consider regarding
issues of premeditation and deliberation. See State v. Smith,
357 N.C. 604, 616, 588 S.E.2d 453, 461 (2003). Thus, we hold the
trial court acted within its discretion in overruling
Defendant’s first two objections. -23- Finally, Defendant argues the trial court abused its
discretion by overruling his objection during the State’s
closing argument when the prosecutor argued:
At a minimum, 30 blows to Patricia Stevens and he’s aiming for her head and she’s trying to fend him off. And then at least eight blows to the head, and you saw the pictures, he was on top of her and he crushed her skull in. And he wants to come in and say, “I’m sorry, I didn’t mean it, it was an accident”? That’s an insult to the law, it’s an insult to these family members, it’s an insult to your intelligence.
On appeal, Defendant argues that this remark improperly
commented on his decision not to testify and, by using the word
“accident,” attributes to him a defense he did not raise. We
note first that while it is indeed improper for a prosecutor to
comment on a defendant’s decision not to testify, it is
difficult to discern how this remark could be construed as such.
Further, our prior decisions make clear that, as a general
matter, “a trial court cures any prejudice resulting from a
prosecutor’s misstatements of law by giving a proper instruction
to the jury.” Goss, 361 N.C. at 626, 651 S.E.2d at 877.
However, we need not reach the merits of Defendant’s claims
because this issue has not been properly preserved for appellate
review. The record shows that at trial, Defendant’s counsel
explained that the basis for his objection to this remark was -24- the reference to the “insult to the family.” Since “[t]he theory
upon which a case is tried in the lower court must control in
construing the record and determining the validity of the
exceptions,” Defendant cannot now change the basis of his
objection and assert a new theory for the first time on appeal.
Benson, 323 N.C. at 322, 372 S.E.2d at 535. Defendant’s
challenges based upon the prosecutor’s closing argument are
overruled.
We hold that Defendant received a fair trial free from
reversible error.
NO ERROR.
Judges CALABRIA and ELMORE concur.