State v. Salentine

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
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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
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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.