An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-194
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    5 August 2014

STATE OF NORTH CAROLINA

      v.                                       Guilford County
                                               Nos. 12 CRS 24828,92661
GEORGE DAVID JOLLY



      Appeal by defendant from judgment entered 6 June 2013 by

Judge Ronald E. Spivey in Guilford County Superior Court.                      Heard

in the Court of Appeals 4 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Lisa K. Bradley, for the State.

      Appellate  Defender           Staples     S.    Hughes,   by  Assistant
      Appellate  Defender           Jillian     C.    Katz,   for  defendant-
      appellant.


      McCULLOUGH, Judge.


      Defendant appeals from judgment entered upon a jury verdict

finding him guilty of assault with a deadly weapon inflicting

serious injury and his guilty plea to attaining the status of an

habitual     felon.        For    the   following      reasons,      we   find     no

prejudicial error.

                                  I. Background
                                          -2-
       As a result of an altercation on 19 October 2012, on 10

December 2012, a Guilford County Grand Jury returned indictments

against defendant for assault with a deadly weapon inflicting

serious injury and attaining the status of an habitual felon.

Following a pretrial hearing on 3 June 2013, defendant’s case

was called for jury trial in Guilford County Superior Court on 4

June 2013, the Honorable Ronald E. Spivey, Judge presiding.

       The    evidence    presented        at     trial   tended   to    show       that

defendant was present at a residence shared by Richard Roscoe

and   Philip    Culbreth    at     1523    North     O’Henry    Boulevard      on   the

evening of 19 October 2012.               Roscoe and Culbreth testified that

defendant showed up unannounced while they were playing video

games and drinking.         They claim defendant was intoxicated when

he arrived and became belligerent                  and started to argue with

Roscoe when he lost a video game.                 Defendant, on the other hand,

testified that he spoke with Roscoe and arranged to do laundry

at    the    residence,    which    was     not    unusual     given    that    Roscoe

allowed defendant to store a washer and dryer, as well as other

miscellaneous items, at the residence.                    Defendant claims that

while he was doing laundry, Roscoe accused him of taking liquor

and they began to argue.           Despite the differing accounts, it is
                                      -3-
undisputed that defendant got into an argument with Roscoe.                      As

a result of that argument, Culbreth called the police.

      By the time the police arrived, defendant had left the

residence.      Defendant,    however,       returned    shortly       after    the

police left to retrieve his belongings.                 Defendant’s wife and

daughter returned with defendant but remained in the car parked

in front of the residence while defendant entered the house.

      Upon defendant’s return, the argument between defendant and

Roscoe    resumed    and     quickly        escalated     into     a      physical

altercation,    during    which   defendant     cut     Culbreth    across      the

abdomen with a box cutter.         Roscoe and Culbreth testified that

defendant was not provoked and defendant was the aggressor in

the   altercation.       Defendant,    however,    testified       that    he   cut

Culbreth in self-defense after Roscoe and Culbreth attacked him.

Testimony    from    defendant’s       daughter,        who   witnessed         the

altercation through the glass front door from the rear seat of

the car parked in front of the house, corroborated defendant’s

testimony.     Defendant’s wife, who had the better view from the

front seat of the car, was not called as a witness at trial.

      During the altercation, Roscoe escaped the residence and

called police from a neighbor’s house.             Roscoe returned shortly

thereafter as police were arriving at the scene.                 Together, they
                                              -4-
found    Culbreth      in    the       backyard     with   a   serious         wound   to   his

abdomen.       Defendant had fled the house.                    Yet, defendant later

turned himself in on 22 October 2012 after spending several days

in Asheboro to avoid the police.

    On     5    June    2013,          the   jury    returned       a    verdict       finding

defendant      guilty       of   assault      with    a    deadly       weapon    inflicting

serious injury.             Defendant then pled guilty to attaining the

status of an habitual felon and the trial court entered judgment

on 6 June 2013 sentencing defendant to a term of 77 to 105

months    imprisonment           and    ordering     the    payment       of    restitution.

Defendant gave notice of appeal in open court.

                                       II. Discussion

    The sole issue raised on appeal is whether the trial court

erred by failing to intervene ex mero motu during the State’s

closing argument when the State mentioned defendant’s failure to

produce his wife as a witness.                    Yet, before reaching the merits

of the appeal, we address whether the issue was preserved for

review.

    In the portion of the State’s closing argument at issue,

the State attempted to cast doubt on defendant’s self-defense

argument by emphasizing the inconsistencies between a written
                               -5-
statement he provided to police and the testimony he provided at

trial.   Specifically, the State argued the following:

          And he'll say, you know what.       Well, my
          wife, helped me write this and helped me
          write that, and that's why I wrote it.
          Well, you know what. His wife is here, and
          if that was the case, you could always call
          her and have her get up on the stand and let
          us know that.   But she's here.   And if you
          recall, [defendant’s daughter] said, you
          know, look, I'm in the back seat, and mom's
          up in the front, you know. She had a better
          vantage point than I did.    She can see it
          better.    Well, she's here, and she ain't
          testified.

          So you can make your own inference about
          that, if she supposedly saw this incident
          and the way it happened.      Here you are
          facing a felony, facing this potential of
          jail time. And then I've got my wife, who's
          seated in the front seat, who supposedly had
          the best view of what has taken place this
          night.   And I'm sitting here before a jury
          of 12.   And I'm not going to call her.   So
          you have to decide why that decision was
          made. Of course, I'd argue to you, because
          the facts as they're giving them to you is
          [sic] not true.

Defendant did not object to the State’s argument and the trial

court did not intervene.

    Generally, “[i]n 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
                                          -6-
grounds were not apparent from the context.”                 N.C. R. App. P.

10(a)(1) (2014).

    In      the    present      case,   defendant   made   no   such    request,

objection,        or   motion    during    the   State’s   closing     argument.

Defendant, however, citing State v. Braxton, 352 N.C. 158, 177,

531 S.E.2d 428, 439 (2000) and State v. Lawrence, 352 N.C. 1,

13, 530 S.E.2d 807, 815 (2000), contends his right to appeal was

preserved because the trial court acted contrary to a statutory

mandate.     In response, the State contends that defendant failed

to preserve the issue for appeal.

    Upon review, we find the statute at issue in this case,

N.C. Gen. Stat. § 8-57(a), distinguishable from N.C. Gen. Stat.

§ 15A-1214, the jury selection statute at issue in Braxton and

Lawrence.     Unlike N.C. Gen. Stat. § 15A-1214, N.C. Gen. Stat. §

8-57(a) does not direct the court to do anything in particular;

it simply directs that “the failure of the defendant to call [a]

spouse as a witness shall not be used against him.”                    N.C. Gen.

Stat. § 8-57(a) (2013).            Thus, we distinguish the present case

from Braxton and Lawrence.

    Nevertheless, we reach the merits of defendant’s appeal.

This Court has long addressed arguments that the trial court
                                      -7-
erred by failing to intervene in closing arguments ex mero motu.

As stated by our Supreme Court,

           [t]he 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.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)

(citation omitted).

       In full, N.C. Gen. Stat. § 8-57(a) provides, “[t]he spouse

of the defendant shall be a competent witness for the defendant

in all criminal actions, but the failure of the defendant to

call such spouse as a witness shall not be used against him.

Such    spouse    is   subject   to   cross-examination   as   are   other

witnesses.”      (Emphasis added).

       Upon review of the record in this case, we hold the State’s

comments during closing arguments regarding defendant’s failure

to call his wife as a witness were improper under N.C. Gen.

Stat. § 8-57(a).       Yet, given the evidence against defendant, we
                                       -8-
find a different         result is     unlikely absent the comments and

therefore hold defendant is not entitled to a new trial.

    In support of his contention that the trial court failed to

intervene ex mero motu, defendant cites two 1976 decisions by

our Supreme Court, State v. McCall, 289 N.C. 570, 223 S.E.2d 334

(1976)   and     State   v.   Thompson,   290    N.C.    431,   226   S.E.2d   487

(1976), and argues for the same result in the present case.

    In McCall, our Supreme Court granted the defendant a new

trial    where    the    prosecution   commented    on    the   fact   that    the

defendant’s wife did not testify.               McCall, 289 N.C. at 577-78,

223 S.E.2d at 338.        The Court reasoned,

            [t]he provisions of [N.C. Gen. Stat. §] 8-
            57, and decisions of this Court interpreting
            and applying them, impel the conclusion that
            where evidence is rendered incompetent by
            statute, it is the duty of the trial judge
            to exclude it, and his failure to do so is
            reversible   error,   whether  objection   is
            interposed and exception noted or not.     In
            such case it is the duty of the judge to act
            on his own motion.     The rule applies with
            equal force to the argument of counsel when
            evidence    forbidden     by   statute     is
            argumentatively placed before the jury and
            used to the prejudice of the defense.    When
            this occurs it is the duty of the judge ex
            mero motu to intervene and promptly instruct
            the jury that the wife's failure to testify
            and the improper argument concerning that
            fact must be disregarded and under no
            circumstances used to the prejudice of the
            defendant.

Id. (Citations omitted).
                                    -9-
    Similarly, in Thompson, the Court granted the defendant a

new trial where the prosecution commented on the defendant’s

failure to call his wife to provide an alibi.             Thompson, 290

N.C. at 446-47, 226 S.E.2d at 496-97.         Relying on its decision

in McCall, the Court noted the prosecution’s comment “violate[d]

both the letter and the spirit of [N.C. Gen. Stat.] § 8-57.”

Id. at 447, 226 S.E.2d at 497.        The Court then pointed out that

the primary error was not the judge’s, but the prosecution’s

“flagrant disregard of a mandatory rule which has been well-

known statutory law in this State for over a hundred years.”

Id. at 448, 226 S.E.2d at 497.

         By highlighting to the jury the fact that
         she   was  not   a   witness,  the  district
         attorney, in violation of [N.C. Gen. Stat.]
         § 8—57, used the failure of the wife to
         testify for her husband to the prejudice of
         defendant.   Notwithstanding the failure of
         the defendant's counsel to object to the
         argument it was incumbent upon the trial
         judge, on his own initiative, to intervene
         and to instruct the jury to disregard the
         solicitor's argument.

Id. at 447-48, 226 S.E.2d at 497.

    However,   as   our   Supreme    Court   recognized   in   State   v.

Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149 (2002), the year

after the McCall and Thompson decisions were announced, N.C.

Gen. Stat. § 15A-1443 was enacted.        “Pursuant to N.C. Gen. Stat.

§ 15A–1443(a), defendant has the burden of showing there is a
                                        -10-
reasonable possibility that a different result would have been

reached at trial had the trial court's error not occurred.”

State v. Peterson, 179 N.C. App. 437, 470, 634 S.E.2d 594, 618

(2006).    Specifically, the statute provides in pertinent part:

            A defendant is prejudiced by errors relating
            to rights arising other than under the
            Constitution of the United States when there
            is a reasonable possibility that, had the
            error in question not been committed, a
            different result would have been reached at
            the trial out of which the appeal arises.
            The burden of showing such prejudice under
            this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2013).

       Although defendant does not address N.C. Gen. Stat. § 15A-

1443    directly,    defendant      does       make    a    prejudice       argument.

Defendant    contends      the    State’s       argument       was     “undoubtedly

calculated to show that [defendant] was lying as to the ultimate

question of who was the aggressor” and “was the last thing the

jury heard prior to the jury instructions, where they were asked

to decide if [defendant] acted in self-defense or if he cut Mr.

Culbreth with no justification for his actions.”                     While this may

be,    considering   all   the    evidence      in    the   record,    we    are    not

convinced    that    there   is     a    reasonable         possibility      that    a

different result would have been reached absent the improper

comments during the State’s closing argument.                        Therefore, we

hold defendant has failed to meet his burden to show prejudice
                                -11-
and the State’s closing argument, although improper, does not

warrant a new trial.

                         III. Conclusion

    For the reasons discussed above, we find no prejudicial

error warranting a new trial.

    No prejudicial error.

    Judges STEPHENS and STROUD concur.

    Report per Rule 30(e).
