Heard in the Court of Appeals October 22, 2013.
Counsel Amended, March 18, 2014.
Watauga County. Nos. 05 CRS 6683-85, 52810. James U. Downs, Judge.
Attorney General Roy Cooper, by Special Deputy Attorney David J. Adinolfi II, for the State.
Michele Goldman for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Mr. David J. Adinolfi II, for the State.
Ms. Michele Goldman, Attorney at Law, for defendant-appellant.
BRYANT, Judge. Judges McGEE and STROUD concur.
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.
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 Sargent 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.
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 ...