State v. Autery
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-348 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Guilford County Nos. 12 CRS 76503-04 12 CRS 24406 JONATHAN LEE AUTERY Appeal by defendant from judgment entered 27 November 2012 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 14 October 2013. Attorney General Roy Cooper, by Special Deputy General Charles G. Whitehead, for the State. Attorney John L. Wait, for defendant-appellant. CALABRIA, Judge. Jonathan Lee Autery ( defendant ) appeals from a judgment entered upon a jury verdict finding him guilty of malicious conduct by a prisoner and habitual misdemeanor assault. We find no error. On 2 May 2012, Officer Culbreath Mounce ( Officer Mounce ) was attempting to escort defendant from his Guilford County Jail cell to the nurse s station. Officer Mounce restrained -2defendant with handcuffs, ankle shackles, and a belly chain. After he was secured, defendant began to walk away. Mounce ordered comply. defendant to return, but defendant Officer failed to Officer Mounce then pushed defendant against the wall. Defendant reacted by cursing, spitting, hollering, stating he was going to F [Officer Officer Mounce s face. Mounce] up, and spit directly in Officer Mounce received assistance from additional officers. Officer James Blakely ( Officer Blakely ) escorted defendant, who continued yelling and cursing, to the elevator. Officer Blakely pushed defendant to the corner of the elevator, where defendant began to struggle. Defendant grabbed Officer Blakely s pinky finger and bent it backward toward the officer s wrist. Officer Blakely instructed defendant to release his finger, and defendant then bit Officer Blakely on the forearm. Officers subsequently transported defendant to a holding cell. Defendant was indicted for malicious conduct by a prisoner, assault on assault. a government official, and misdemeanor Beginning 14 November 2012, defendant was tried by a jury in Guilford County Superior Court. testified habitual on altercations his own differed behalf. from that At trial, defendant Defendant s of the account officers. of his Defendant -3claimed that Officer Mounce did not loosen his shackles when he told him they officers were orders; too that tight; when that he Officer complied Mounce with grabbed the him, defendant got tangled in his shackles and stumbled; and that Officer Blakely Defendant biting denied Officer However, tried to spitting Blakely defendant choke at while Officer during admitted him their that in Mounce and respective he had the been elevator. also denied altercations. convicted of [a]bout four or five prior assault offenses. On 15 November 2012, the jury returned verdicts finding defendant guilty of all charges. The trial court arrested judgment on the assault on a government official conviction, consolidated the remaining two convictions, and sentenced defendant to a minimum of 25 months to a maximum of 39 months in the North Carolina Division of Adult Correction. Defendant appeals. Defendant argues that the trial court erred by failing to intervene ex mero motu in response to the prosecutor s remarks during closing prosecutor: (1) arguments. interjected Specifically, his personal he claims opinion that the that the State s witnesses were believable ; (2) asserted his personal opinion by saying defendant was lying;(3) offered his opinion -4that [defendant] was guilty of the crimes alleged ; and (4) referred to defendant as the king of the assaults. Essentially, defendant contends that the prosecution s closing statement improperly bolstered the State s witnesses while at the same time improperly disparaging defendant. We disagree. During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, [or] express his personal belief evidence[.] defendant Court improper to the truth or falsity N.C. Gen. Stat. § 15A-1230(a) (2011). fails must as to object determine that the to whether trial court the prosecutor s the remarks committed failing to intervene ex mero motu. of When the argument were the so reversible this grossly error by State v. Augustine, 359 N.C. 709, 723, 616 S.E.2d 515, 526 (2005) (internal quotations omitted). [O]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken. State v. Mann, 355 N.C. 294, 307, 560 S.E.2d 776, 785 (2002)(internal quotations and citations omitted). A prosecutor acts with extreme impropriety when the prosecutor s remarks must have perverted -5or contaminated the trial such proceedings fundamentally unfair. that they rendered the Id. at 307-08, 560 S.E.2d at 785. Although the prosecutor may not express his personal belief as to the truth or falsity of the evidence under N.C. Gen. Stat. § 15A-1230(a), prosecutors are allowed to argue that the State s witnesses are credible. 725, 616 S.E.2d at 528. arguments must be Augustine, 359 N.C. at All statements made during closing considered in the context in which the remarks were made and the overall factual circumstances to which they referred. Id. at 725-26, 616 S.E.2d at 528 (internal quotations and citation omitted). In the argument instant was that case, the the theme State s of the version State s of closing events was significantly more believable than defendant s version and thus would support implication a of guilty the verdict. prosecutor s Read in argument this was context, not that the the State s evidence was inherently true, as defendant suggests, but rather that, based on the evidence, version of events were more credible. State s argument was proper. the State s witnesses Thus, this portion of the -6Likewise, the State s argument did disparage defendant or his credibility. not impermissibly Our Supreme Court has stated that while it is improper for a lawyer to assert his opinion that a witness is lying, a lawyer may argue to the jury that they should not believe a witness. State v. Davis, 291 N.C. 1, 12, 229 S.E.2d 285, 293 (1976). As noted above, the theme of the State s argument was that defendant s version of events was highly improbable and that the State s version was much more likely to be true. In this context, the statements highlighted by defendant are properly considered a challenge to the credibility of the defendant as a witness, rather than an impermissible statement that defendant was a liar. Finally, defendant contends that the prosecutor improperly characterized him as the king of the assaults. However, the prosecutor was referring to defendant s own testimony in which he admitted that he had been convicted of at least four or five assaults, as well as the fact that defendant was charged with two additional assaults in the instant case. prosecutor s reference to defendant as the king Thus, the of the assaults, which was based upon the evidence at trial, was not improper. Compare State v. Twitty, 212 N.C. App. 100, 104, 710 S.E.2d 421, 426 (2011) ( [W]e see no impropriety in the State s -7reference to Defendant as a liar and con man, as those terms accurately characterize the offense with which he was charged and the evidence presented at trial. ). When taken in its entirety, there was nothing impermissible in the prosecutor s closing argument. Defendant s argument is overruled. Since the trial court did not err in failing to intervene during the prosecutor s closing argument, defendant received a fair trial, free from error. No error. Judges STEELMAN and STROUD concur. Report per Rule 30(e).
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