                                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
                                              -4-
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
                                   -5-
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.
