NO. COA13-925
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Alamance County
No. 11 CRS 54814
THORNE OLIVER WATLINGTON
Appeal by Defendant from judgments entered 30 November 2012
by Judge Henry W. Hight, Jr. in Superior Court, Alamance County.
Heard in the Court of Appeals 4 February 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders John F. Carella and Benjamin Dowling-Sendor, for
Defendant.
McGEE, Judge.
Keith LaMay, Sr. (“LaMay, Sr.”) and Keith LaMay, Jr.
(“LaMay, Jr.”) were robbed at gunpoint in the parking lot of an
Arby’s restaurant in Burlington at approximately 1:30 a.m. on 30
July 2011. Thorne Oliver Watlington (“Defendant”) was tried on
six charges related to that robbery at the 25 September 2012
criminal session of Superior Court, Alamance County, along with
charges related to other incidents. A jury convicted Defendant
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of charges unrelated to the Arby’s incident on 5 October 2012,
found Defendant not guilty of three charges related to the
Arby’s incident, but was unable to reach a unanimous verdict on
three additional charges related to the Arby’s incident. The
trial court declared a mistrial on the last three charges: two
counts of robbery with a firearm and one count of attempted
robbery with a firearm. Defendant appealed from the 5 October
2012 judgments, and that appeal is decided in State v.
Watlington, ___ N.C. App. ___, ___ S.E.2d ___ (2014)
(“Watlington I”) (COA13-661, filed on the same date as this
opinion). Defendant was re-tried on the three remaining charges
and was found guilty on all three charges on 30 November 2012.
Defendant appeals. A full factual recitation may be found in
this Court’s opinion in Watlington I.
I.
Defendant contends in his first argument that the trial
court erred in refusing to give the jury a requested
instruction. We disagree.
Defendant made this same argument in Watlington I. In
Watlington I, this Court found no error in the trial court’s
decision not to give the instruction Defendant requested.
Defendant’s argument presents the same issue already decided
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against Defendant in Watlington I. Therefore, in the present
case, we must also find no error as related to this issue.
II.
Defendant contends in his second argument that the trial
court erred by allowing the State’s fingerprint expert to
testify, “because her proffered method of proof was an
unreliable and untested system[.]” This argument has not been
preserved for appellate review.
Lori Oxendine (“Oxendine”), a civilian employee of the
Burlington Police Department testified as an expert in
fingerprint identification. At trial, Defendant moved to
exclude Oxendine’s testimony. Defendant’s attorney engaged in
the following relevant colloquy with the trial court:
MR. CHAMPION: Your Honor, at this time I'd
like to renew my motion that I had filed
back before the first trial in this action,
involving these cases, in which I objected
to the scientific basis or reliability of
fingerprint testimony.
THE COURT: I've -- you've passed up an
article which was reviewed. If you've got
any other evidence you would like to show,
I'll be more than happy to hear it. I [am]
assuming you have some person who's going to
get up here and testify that it's not
reliable.
MR. CHAMPION: No, sir.
THE COURT: Well, you can cite me to
somebody who says it's not reliable and has
not been held so in any court in North
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Carolina or the Fourth District.
MR. CHAMPION: No, Your Honor, I'm just
making[‒]
THE COURT: I understand that. I just want
it to be clear for the record what it is.
MR. CHAMPION: No, sir, other than what I've
already handed up for the court to review.
I just wanted --
THE COURT: And I want you to know that I'll
give you any opportunity you want to put on
any person who would challenge that here in
front of this [c]ourt, so that we can make a
record.
MR. CHAMPION: Yes, sir. I do not have
anyone to present.
THE COURT: Okay.
MR. CHAMPION: Out of an abundance of
caution, I would be objecting to her
qualifications as an expert in fingerprint
comparison or identification. I don't know
if the Court would want to bring the jury
back in to go through preliminaries and then
--
THE COURT: Okay. And based upon, if you
want to challenge her qualifications now,
I'll be more than happy to [do] that in the
absence of the jury, you know, give you an
opportunity to do that. Although, she's
testified in front of us on something
earlier, this is a different trial. So I'll
be glad to hear you.
Mr. Champion then commenced voir dire of Oxendine, and
concluded by stating: “No more questions on qualifications.”
The State then questioned Oxendine, and Mr. Champion declined to
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question her further. Mr. Champion argued his motion to the
trial court, and the trial court responded, as follows:
THE COURT: Okay. I'll be glad to hear you
now, but I mean, from what I recall is based
upon her 24 years of training and experience
or 24 years of experience daily in
fingerprint comparison and identification,
her prior training, she would appear to
qualify to have knowledge to make a
comparison and a determination. If you've
got something different.
MR. CHAMPION: Your Honor, I, several of the
agencies that are, that qualify and certify
people, she does not have the
qualifications. She's not even aware of
their qualifications. She understands that
they have some agencies that qualify even
including bachelor degrees and some science
degree level work. This is considered
scientific type evidence, more so than,
okay, that's a green shirt versus a green
shirt. This is actually looking at
microscopic level work, and we just don't
feel like she has the, the training and
educational experience to qualify her as an
expert in fingerprint analysis and
comparisons.
THE COURT: Thank you, sir. Noted for the
record. If she's appropriately qualified in
front of the jury, I will accept her.
Although Defendant may have handed some materials to the
trial court regarding “the reliability of fingerprint
testimony,” Defendant did not directly challenge the reliability
of fingerprint testimony in general, or more particularly, the
reliability of the methods used by Oxendine. Defendant
challenged Oxendine’s qualifications to testify as an expert in
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fingerprint analysis, and the trial court made a ruling only on
that challenge.
In order to preserve an issue for appellate
review, a party must have presented to the
trial court a timely request, objection, or
motion, stating the specific grounds for the
ruling the party desired the court to make
if the specific grounds were not apparent
from the context. It is also necessary for
the complaining party to obtain a ruling
upon the party's request, objection, or
motion.
N.C.R. App. P. 10(a)(1). “The appellate courts will not
consider arguments based upon matters not presented to or
adjudicated by the trial tribunal.” State v. Washington, 134
N.C. App. 479, 485, 518 S.E.2d 14, 17 (1999) (citation omitted).
Because Defendant failed to properly move for exclusion of
Oxendine’s testimony on the basis that the methods used by
Oxendine were not reliable, and because the trial court never
ruled on any such motion, that issue is not properly before us.
Id. This argument is dismissed.
III.
Defendant contends in his third argument that the trial
court committed reversible error in overruling Defendant’s
objections during the State’s closing argument. We disagree.
Our Supreme Court has stated:
Counsel is given wide latitude to argue the
facts and all reasonable inferences which
may be drawn therefrom, together with the
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relevant law, in presenting the case to the
jury. The trial court is required, upon
objection, to censor remarks either not
warranted by the law or facts or made only
to prejudice or mislead the jury. The
conduct of the arguments of counsel is left
to the sound discretion of the trial judge.
In order for defendant to be granted a new
trial, the error must be sufficiently grave
that it is prejudicial. Ordinarily, an
objection to the arguments by counsel must
be made before verdict, since only when the
impropriety is gross is the trial court
required to correct the abuse ex mero motu.
State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977)
(citations omitted). The portion of the State’s closing at
issue was as follows:
Ladies and gentlemen, again, Andre
McLaughlin [who was also charged in the
Arby’s incident] has a lot to answer for,
but on the, that one incidence, rifle had 14
rounds in it, one for each, actually each
one each of you jurors, and –
MR. CHAMPION: Objection.
MR. THOMPSON: -- one to spare.
THE COURT: Go on.
MR. THOMPSON: If [Defendant] had gotten hold
of this rifle, this might have been an
entirely different kind of case. But be
that as it may, he didn't get the rifle, but
he did commit a robbery.
I'm not sure if I've been talking 30
minutes or so. I'm not going to take up the
whole time.
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Mr. Thompson then concluded his closing argument with a few
additional statements.
We hold that the remarks by the State were improper, and
should have been precluded by the trial court. The trial court
then should have given a curative instruction. There was no
basis for the State’s implication that, had Defendant had the
rifle, “this might have been an entirely different kind of
case.” Furthermore, stating that there was a round for each
member of the jury and “one to spare” was clearly inappropriate.
Defendant properly objected to the comment concerning “14
rounds,” but failed to object to the comment concerning what
might have occurred had Defendant had the rifle. There are
different standards of review, depending on whether Defendant
objected to the argument at trial.
The standard of review for improper closing
arguments that provoke timely objection from
opposing counsel is whether the trial court
abused its discretion by failing to sustain
the objection. See, e.g., State v.
Huffstetler, 312 N.C. 92, 111, 322 S.E.2d
110, 122 (1984) (holding that appellate
courts will review the exercise of such
discretion when counsel's remarks are
extreme and calculated to prejudice the
jury)[.]
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)
(citation omitted). If we find the argument was improper, “we
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[next] determine if the remarks were of such a magnitude that
their inclusion prejudiced defendant[.]” Id.
However, the standard of review when no objection has been
made requires an elevated showing of impropriety.
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. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.
Id. at 133, 558 S.E.2d at 107 (citations omitted).
Although we find that these comments were improper, we do
not find, pursuant to either appropriate standard, that error
requiring a new trial resulted from these comments in the
State’s closing argument. LaMay, Sr. and LaMay, Jr. both
returned to the Arby’s parking lot early 30 July 2011,
approximately eight hours after the robbery. T306-07 LaMay,
Jr. found an identification card in the woods near the Arby’s
parking lot, and showed it to LaMay, Sr., who said: “That’s the
guy that robbed us.” That identification card belonged to
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Defendant. Law enforcement officers located Defendant in
Apartment F of Forestdale Apartments in Burlington, immediately
after other individuals involved in the robbery were arrested as
they exited Apartment F. When officers knocked on the door of
Apartment F, Defendant opened the door, then immediately closed
it upon seeing the officers. Defendant has failed in his burden
of showing prejudice resulted from the improper statements made
by the State in its closing argument.
IV.
Defendant contends in his final argument that the trial
court erred in increasing his sentence based upon his
convictions for charges that had been joined for trial with the
charges currently before us. We agree.
Before Defendant’s first trial, the State moved to join all
charges: felonious breaking or entering, felonious larceny, two
counts of felonious possession of stolen goods, breaking or
entering into a motor vehicle, assault by pointing a gun,
possession of a firearm by a felon, two counts of robbery with a
firearm, two counts of attempted robbery with a firearm, and
possession of a stolen motor vehicle. The first trial concluded
on 5 October 2012. Defendant was found guilty on six charges
unrelated to the Arby’s incident, not guilty on three charges
that were related to the Arby’s incident, but the jury could not
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reach a unanimous verdict on three additional charges related to
the Arby’s incident: two counts of robbery with a firearm and
one count of attempted robbery with a firearm. A mistrial was
declared on those charges. Defendant was retried, and found
guilty on all three charges on 30 November 2012. Defendant’s
prior record level was calculated using the judgments entered 5
October 2012, and Defendant was sentenced, based upon the trial
court’s finding him to be a prior record level III.
In the present case, Defendant argues it was improper for
the trial court to use the 5 October 2012 convictions in
calculating his prior record level because those charges had
been consolidated with the charges that resulted in the 30
November 2012 convictions, and the only reason Defendant ended
up being convicted on those charges on a different day was the
inability of the first jury to reach a unanimous verdict.
It is clear that, had the jury in the first trial reached
guilty verdicts on these three charges as well, none of the 5
October convictions could have been used when calculating
Defendant’s prior record level. N.C. Gen. Stat. § 15A-
1340.14(d) states: “Multiple Prior Convictions Obtained in One
Court Week.‒‒ For purposes of determining the prior record
level, if an offender is convicted of more than one offense in a
single superior court during one calendar week, only the
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conviction for the offense with the highest point total is
used.” N.C. Gen. Stat. § 15A-1340.14(d) (2013). We have noted:
Nothing within the Sentencing Act
specifically addresses the effect of joined
charges when calculating previous
convictions to arrive at prior record
levels. We agree . . . that the assessment
of a defendant's prior record level using
joined convictions would be unjust and in
contravention of the intent of the General
Assembly. See State v. Jones, 353 N.C. 159,
170, 538 S.E.2d 917, 926 (indicating that
“[w]hen interpreting statutes, this Court
presumes that the legislature did not intend
an unjust result”).
Further, “the ‘rule of lenity’ forbids a
court to interpret a statute so as to
increase the penalty that it places on an
individual when the Legislature has not
clearly stated such an intention.”
State v. West, 180 N.C. App. 664, 669-70, 638 S.E.2d 508, 512
(2006) (citations omitted). It would be unjust to punish a
defendant more harshly simply because, in his first trial, the
jury could not reach a unanimous verdict on some charges, but in
a subsequent trial, a different jury convicted that defendant on
some of those same charges. There is no policy reason that
would support such a result and, because the General Assembly
has not clearly stated an intention to allow for harsher
punishments in such situations, we hold the “rule of lenity”
forbids such a construction of the sentencing statutes. Id. We
reverse and remand for resentencing consistent with our holding.
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No error in part, dismissed in part, reversed and remanded
in part.
Judges STEELMAN and ERVIN concur.