State v. Sargent

NO. COA13-482

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Watauga County
Nos. 05 CRS 6683-85, 52810,
NEIL MATTHEW SARGENT

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.

Attorney General Roy Cooper, by Special Deputy Attorney
David J. Adinolfi II, for the State.

Michele Goldman for defendant-appellant.

BRYANT, Judge.

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
 -2-
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. Sargent, 365 N.C. 58,

707 S.E.2d 192 (2011) (hereinafter Sargent I).
 -3-
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
 -4-
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
 -5-
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
 -6-
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 prosecution to introduce evidence of defendant’s

prior assault.

I

Defendant first argues that the trial court erred by

failing to intervene ex mero motu during closing arguments to

address the prosecutor’s discussion of facts not in evidence,

misstating the evidence not in evidence, and offering an opinion

on the credibility of a witness. We disagree.

“The standard of review for assessing alleged improper

closing arguments that fail to provoke timely objection from
 -7-
opposing counsel is whether the remarks were so grossly improper

that the trial court committed reversible error by failing to

intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558

S.E.2d 97, 107 (2002) (citation omitted).

Pursuant to North Carolina General Statutes, section 15A-

1230, “Limitations on argument to the jury,”

[d]uring a closing argument to the jury an
attorney may not become abusive, inject his
personal experiences, express his personal
belief as to the truth or falsity of the
evidence or as to the guilt or innocence of
the defendant, or make arguments on the
basis of matters outside the record except
for matters concerning which the court may
take judicial notice. An attorney may,
however, on the basis of his analysis of the
evidence, argue any position or conclusion
with respect to a matter in issue.

N.C. Gen. Stat. § 15A-1230(a) (2013); see also State v. Gladden,

315 N.C. 398, 422, 340 S.E.2d 673, 688 (1986) (“Although the

closing arguments of counsel are largely within the control and

discretion of the trial court, it is well established that

counsel is to be afforded wide latitude in the argument of

fiercely contested cases. Counsel for both sides may argue the

law and the facts in evidence, along with all reasonable

inferences to be drawn from them. Counsel may not, however,

raise incompetent and prejudicial matters nor refer to facts not

in evidence. Counsel is also prohibited from placing before the
 -8-
jury his own knowledge, beliefs, and personal opinions not

supported by the evidence.”). “Only where the prosecutor's

argument affects the right of the defendant to a fair trial will

the trial judge be required to intervene where no objection has

been made.” State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898,

911 (1987) (citation omitted). “A prosecutor's argument is not

improper where it is consistent with the record and does not

travel into the fields of conjecture or personal opinion.” Id.

a. Argument of Facts Not In Evidence

Defendant contends the State lacked evidence to support its

claims that “Dalrymple [was] [the State’s] deal with the

devil[,]” that the deal “was a mistake[,]” that the State had

“figured if we put a big enough carrot in front of [Dalrymple],

maybe [Dalrymple would] tell the truth[,]” that Dalrymple did

not tell the truth, and the State was “stuck with [Dalrymple’s]

plea.”

The State responds that the Dalrymple plea offer was in

evidence as defense exhibit #9. However, defense exhibit #9 was

actually an agreement wherein the State agreed to forego seeking

the death penalty in exchange for Dalrymple’s truthful testimony

at his own trial. The agreement provided that the truthfulness

of his testimony was to be measured against his September 2007
 -9-
statement.

Defendant contends that the State’s claim that it would not

call Dalrymple as a witness because he “would not know the truth

if it came up and slapped him in the head” was refuted by

defense exhibit #9. However, even assuming that defense exhibit

#9 does refute the State’s claim, the fact that evidence refutes

the State’s closing argument does not indicate that the State

argued facts not in evidence.

Defendant further challenges the State’s remarks that the

Dalrymple plea was a mistake “because that man was just as

guilty of first-degree murder [and] kidnapping as every other

defendant here.” Defendant contends that the remarks were

improper because, by “offering unchallenged testimony to the

jury during its closing, the State was able to strike an unfair

blow against [defendant’s] most crucial witness.” However, the

State’s remarks are supported by evidence presented at trial

that Dalrymple played an active role in the murder of Harrington

as discussed earlier in this opinion. Defendant has not shown

error on this basis and his argument is overruled.

b. Offered A Personal Opinion On Witness Credibility

Defendant also argues that the State’s claim that “it would

not call Dalrymple to testify because Dalrymple ‘would not know
 -10-
the truth if it came up and slapped him on the head’ offered a

personal opinion” as to witness credibility. Defendant cites

State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986), in

which two doctors were improperly permitted to testify “that in

their opinion the child had testified truthfully.” Id. at 587,

347 S.E.2d at 73. The present case is distinguishable from

Holloway because the prosecutor was not giving an opinion as to

witness credibility in the form of sworn testimony.

Defendant’s argument emphasizes the significance of any

improprieties in this case where the jury’s verdict “hinged on

its determination of Triplett’s, Dalrymple’s, and [Defendant’s]

credibility[.]” Similarly, our Supreme Court noted that the

first trial indicated that “the objective facts of what happened

the night the victim was killed are elusive.” Sargeant I, 365

N.C. at 67, 707 S.E.2d at 198. The Supreme Court further noted

that “the reason for the State’s decision to jettison Dalrymple

in favor of Triplett is not in the record.” Id.

In the present case, Defendant made the following

statements in his closing argument to the jury:

Just as Mr. Dalrymple’s agreement states, he
will testify truthfully if called upon by
the State to do so. Why didn’t the State
call him at this trial? Why not? It’s in
black and white. Don’t take my word for it.
Look at this. They never called him. I had
 -11-
to call him, and he gave truthful testimony.
He has been pretty much consistent
throughout.

In its closing, the State made the following statements to

the jury regarding Dalrymple:

You darn right we’re not going to put him
up, because that man would not know the
truth if it came up and slapped him in the
head. But they want you to believe that
version of truth or what they believe the
truth was.

The challenged portion of the prosecutor’s argument seems to

answer the very question that the Supreme Court noted was not in

the record of the first trial. As to the question of why the

State jettisoned Dalrymple in favor of Triplett, the prosecutor

stated:

Dalrymple is our deal with the devil. It
was a mistake . . . . We’re stuck with that
plea. The plea was a mistake and should
never have happened . . . because that man
was just as guilty of first-degree murder
[and] kidnapping as every other defendant
here.

Evidence that Dalrymple entered into a plea agreement with the

State does not tell why the State “jettison[ed] Dalrymple in

favor of Triplett” at this trial. Id. The prosecutor informed

the jury, by way of closing argument, of her opinion and belief

as to the credibility of the various defendants and that the

prosecution had made a mistake by entering into the plea
 -12-
agreement with Dalrymple. This statement, made in response to

defendant’s closing argument, seems to venture close to the area

of “conjecture or personal opinion.” Zuniga, 320 N.C. at 253,

357 S.E.2d at 911. However, our Supreme Court has found no

error in a credibility argument based on personal opinion from

the State where the defendant “opened the door” to the argument.

State v. Gladden, 315 N.C. 398, 423, 340 S.E.2d 673, 689 (1986).

In Gladden, the defendant stated that a State’s witness “could

not possibly remember . . . every detail in this case” and

“insinuated that [the witness’s] testimony had not been

truthful.” Id. The State, in its closing, argued that its

witness was “one of the finest Sheriffs that [the prosecutor

had] ever met[.]” Id. at 423, 340 S.E.2d at 688. Our Supreme

Court held that the “expression of personal opinion by the

prosecutor, while improper, was not, however, so grossly

improper as to require the trial court to intervene ex mero

motu.” Id. at 423, 340 S.E.2d at 688-89.

The State’s remarks appear to be in response to defendant’s

attempt to bolster Dalrymple’s credibility. As in Gladden,

defendant’s statements in closing opened the door to the State’s

response. Therefore, while the State’s remarks may have been

improper, they were “not, however, so grossly improper as to
 -13-
require the trial court to intervene ex mero motu.” Id. at 423,

340 S.E.2d at 689. Defendant’s argument is overruled.

II

Next, defendant argues that the State’s evidence of a prior

assault constituted evidence of a propensity for violence and

amounted to plain error. We disagree.

[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where [the error] is grave error which
amounts to a denial of a fundamental right
of the accused, or the error has resulted in
a miscarriage of justice or in the denial to
appellant of a fair trial or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
proceedings or where it can be fairly said
the instructional mistake had a probable
impact on the jury's finding that the
defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (citation and quotations omitted).

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty. Moreover,
because plain error is to be applied
 -14-
cautiously and only in the exceptional case
the error will often be one that seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings.

Id. at 518, 723 S.E.2d at 334 (citations and quotations

omitted).

Pursuant to General Statutes, section 8C-404,

Evidence of a person's character or a trait
of his character is not admissible for the
purpose of proving that he acted in
conformity therewith on a particular
occasion, except . . . [e]vidence of a
pertinent trait of his character offered by
an accused, or by the prosecution to rebut
the same[.]

N.C. Gen. Stat. ' 8C-1, Rule 404(a)(1) (2013); see also State v.

Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A

criminal defendant is entitled to introduce evidence of his good

character, thereby placing his character at issue. The State in

rebuttal can then introduce evidence of defendant's bad

character. See State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d

654, 658 (1987). Such evidence offered by the defendant or the

prosecution in rebuttal must be ‘a pertinent trait of his

character.’ N.C.G.S. § 8C–1, Rule 404(a)(1) (1999).”).

Before this Court, defendant challenges the prosecution’s

cross-examination of him as to his use of cocaine and prior

accusation of assaultive behavior while a member of the United
 -15-
States Army. In response, the State argues that on direct

examination, defendant placed his character at issue by

testifying about his military service. On direct examination,

defendant testified at length about his positive military

service: serving in the United States Army from September 1999

to January 2003, defendant worked with a field artillery unit in

both Kosovo and Afghanistan; also, he was awarded the United

Nations Kosovo Liberation Medal, Army Service Ribbon, and a

National Defense bar. Defendant’s Kosovo Liberation medal was

admitted into evidence. Defendant engaged in the following

examination on direct examination:

Q Now, Mr. Sargent, when did you get
discharged from the US Army?

A I believe the exact date was January
3rd, 2003.

Q And do you remember, do you recall what
the character of your discharge was?

A It was on, on other than honorable
conditions.

Q What they call general?

A General.

. . .

Q Who were you living with?

A Well, when I initially got out of the
Army I was having some substance abuse
 -16-
problems with alcohol and marijuana so
my aunt and uncle that I lived with
before I went in the Army they thought
it would be a good idea if I came back
and was in a better environment . . . .

On cross-examination, the prosecutor focused on the

circumstances of defendant’s discharge from the military. We

look to the following exchange, which took place in the absence

of any objection by defendant:

Q . . . [I]n fact, when you were talking
about all of your military
accomplishments, you didn't tell the
jury [about your] less than honorable
circumstances for using cocaine, did
you?

A I said I was discharged for other than
honorable conditions, I said that.

Q Did you tell the jury that you were
discharged for other than honorable
conditions you were discharged . . . on
11 December, 2002 for using cocaine and
for assault, is that right?

A That is correct.

Q And in fact, it was so bad, sir, that
the commander there at Fort Bragg . . .
requested that you be barred from Fort
Bragg pending your hearing because of
your assault and use of cocaine, didn't
he?

A That's correct.

Q You didn't tell the jury that, did you?

A I wasn't asked.
 -17-

Q Well, sir, you told the jury all about
all the fine things you had done in the
military, and all the honors, I believe
you held up a certificate here about
service overseas and the battalions you
were in, and how you supported the
artillery, supported people over in
the, the Vulcans and all of that, but
you didn't tell them about being
dishonorably discharged, did you?

A I just answered the questions my lawyer
asked me.

. . .

Q You tried to mislead the jury into
believing you were a wonderful fine
soldier serving your country when in
fact you were dishonorably discharged
for the use of cocaine and for assault?

. . .

And that is exactly what you're here
today for is using cocaine and murder,
isn't it?

A That's correct.

Because defendant placed his character at issue by

testifying at length about his positive military service record

and acknowledging that he received a general discharge from the

United States Army, the State was entitled to examine the

circumstances that led to defendant’s discharge. See Roseboro,

351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A criminal

defendant is entitled to introduce evidence of his good
 -18-
character, thereby placing his character at issue. The State in

rebuttal can then introduce evidence of defendant's bad

character.”). Therefore, we hold there was no error in the

admission of this evidence. Defendant’s argument is overruled.

No error.

Judges McGEE and STROUD concur.