An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1308
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


STATE OF NORTH CAROLINA


      v.                                        Buncombe County
                                                No. 11 CRS 063119
BUDDY RAY RUSSELL



      Appeal by defendant from judgment entered 25 April 2013 by

Judge Sharon Tracey Barrett in Buncombe County Superior Court.

Heard in the Court of Appeals 19 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Barry H. Bloch, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender John F. Carella, for defendant.


      ELMORE, Judge.


      On    25   April     2013,    a    jury     found    Buddy    Ray    Russell

(defendant), guilty of robbery with a dangerous weapon.                           The

trial    court   sentenced     defendant     as    a   prior   record     level    VI

offender to 120-153 months of active imprisonment.                        Defendant

appeals.      After careful consideration, we find no prejudicial

error.
                                                -2-
                                                I. Facts

       On     9    November       2011,       defendant    entered       Capital    Bank    on

Leicester Highway in Buncombe County, approached a bank teller

at her counter, and handed her a note.                          The note read, “[i]t is

a stick up. NO! [sic] die [sic] pack . . . all 100.00 or I will

kill.       I got a gun.          Lay the money out where I can see it now.

Hurry now.”          In response, the teller retrieved a $100 bill and

gave it to defendant.                 He then asked for an additional $100

bill, and the teller handed him the demanded amount.                            The teller

then “looked at the mirror and saw [defendant] walk out the

door.”        She immediately activated the bank’s silent alarm to

notify the police and told a co-worker to lock the doors because

they    had       “just    been    robbed.”           Officer    Kevin    Calhoun    of    the

Buncombe County Sheriff’s Office heard about the robbery through

a   radio         broadcast   by     the       Sheriff’s      Office’s       Communications

Division.            He    obtained       a     description       of   the    suspect      and

encountered defendant, who matched the description, riding his

bicycle       on     Ben   Lippen     Road.           Since     defendant      matched     the

suspect’s description, he was stopped and taken into custody.

Although      defendant       was     eventually         arrested      and    charged     with

robbery with a dangerous weapon, a gun was never found.                                     At

trial, the teller testified that as soon as she read the note,
                                       -3-
she was concerned for her safety and stated, “the first thing

that just popped in my mind was my daughter’s at school, and I

just thought, ‘[d]on't shoot me in the back.’”                       Although she

never saw a gun, the teller believed that defendant would have

been able to conceal the gun in his clothes or coat.                    Defendant

testified and admitted to entering the bank, writing the note,

and obtaining the money.              However, defendant stated that he

never possessed a gun when he walked into the bank or at anytime

on 9 November 2011.

                                     II. Analysis

a.) Jury Selection

    Defendant      first    argues     that     the   trial    court    erred    in

overruling   his   objections    to     the     prosecutor’s    statements      and

questions     to   prospective         jurors     during      jury     selection.

Specifically, defendant argues that the prosecutor’s “improper

questions prejudiced [him] because they indoctrinated the jury

with a legal theory that would allow him to be convicted of

robbery with a dangerous weapon in the absence of an essential

element of the crime.”         Defendant avers that by allowing this

alleged     line   of      improper     inquiry,      he      was    denied     his

constitutional right to an impartial jury.              We disagree.
                                       -4-
    The scope of       voir dire       questions “rests largely in the

discretion of the trial court.           The exercise of such discretion

constitutes   reversible       error    only    upon    a     showing    by   the

defendant of harmful prejudice and clear abuse of discretion by

the trial court.”      State v. Jones, 347 N.C. 193, 203, 491 S.E.2d

641, 647 (1997) (citations omitted).             Our review of voir dire

questioning requires that we focus on “the entire record of the

voir dire.”      State v. Johnson, 209 N.C. App. 682, 684, 706

S.E.2d 790, 793 (2011) (citation and quotation omitted).                       The

constitutional   right    to   an   impartial    jury       “contemplates     that

each side will be allowed to make inquiry into the ability of

prospective   jurors    to   follow    the   law.   Questions     designed      to

measure a prospective juror's ability to follow the law are

proper within the context of jury selection voir dire.”                    Jones,

347 N.C. at 203, 491 S.E.2d at 647 (citation omitted).                  However:

         hypothetical questions so phrased as to be
         ambiguous   and   confusing  or  containing
         incorrect or inadequate statements of the
         law are improper and should not be allowed.
         Counsel may not pose hypothetical questions
         designed to elicit in advance what the
         juror's decision will be under a certain
         state of the evidence or upon a given state
         of facts.

Id. at 202, 491 S.E.2d at 647 (citation and quotation omitted).
                                        -5-
           In    the      case   at   bar,    the    prosecutor     stated,   over

defendant’s objection, during voir dire:

            [T]he law in North Carolina says that if you
            threaten the use of a deadly weapon and it
            is reasonable that the victim believe that,
            that you can [be] found guilty of armed
            robbery. . . . [I]f the judge instructs you
            that in North Carolina you don’t have to
            have a gun in your possession but if you
            just threaten the use of one, you can be
            found   guilty    of   armed   robbery,  does
            everybody   think    they  can   follow  that
            instruction? Does everybody think they can
            follow what the judge tells them the law is?

    Even        if   we    assume     arguendo      that   1.)    the   prosecutor

misstated the relevant law during jury selection and 2.) the

trial court erred in overruling objections to the prosecutor’s

statements to the jury, defendant has failed to show that the

trial court’s alleged error prejudiced him.                      Before voir dire

began, the trial court told the prospective jurors that

            I will instruct you as to all of the law
            that you are to apply to the evidence in
            this case. It is your duty to apply the law
            as I will give it to you, and not as you
            think the law is, or as you might like it to
            be. . . .       At this point you are not
            expected to know the law.     Counsel should
            not question you about the law except to ask
            whether you will accept and follow the law
            as given by the court.

    After defendant objected to the prosecutor’s statements of

law, the trial court reiterated to the jurors:
                                   -6-
         As jurors, you may not let your present
         opinion   or   information  influence   your
         decision in a case or let it prevent you
         from rendering any proper verdict required
         by the facts and the law.      The test for
         qualification for jury service is not the
         private feelings of a juror, rather it is
         whether the juror can honestly set aside any
         such feelings, fairly consider the law and
         evidence, and impartially determine the
         issues[.]


    A review of the voir dire questioning indicates that in

addition to the two examples above, the trial court made other

reminders to prospective jurors to only follow the trial court’s

instruction of the law, despite what the prosecutor told them.

In addition, an entire reading of the prosecutor’s voir dire

shows that he told the jurors to adhere to the trial court’s

instructions.     Moreover, all selected jurors said they would

accept the law as given by the trial court, and proper jury

instructions were given after closing statements.             Accordingly,

defendant has failed to show that the prosecutor’s misstatements

of law resulted in harmful prejudice.            See Johnson, 209 N.C.

App. at 691, 706 S.E.2d at 796-97 (holding that any error during

voir dire was not prejudicial to defendant when the trial court

subsequently    stated   the   correct   law   for   the   jury   and   asked

jurors if they could follow its instructions).

b.) Excusal of Prospective Juror #6
                                         -7-


    Defendant also argues that the trial court’s excusal of

prospective juror #6 deprived defendant of his constitutional

right to an impartial jury because it signaled the trial court’s

endorsement     of    the    prosecutor’s        misstatements    of     law.         We

disagree.

    “[W]e      must    defer    to   the   trial       court’s   judgment       as   to

whether the prospective juror could impartially follow the law.”

State v. Bowman, 349 N.C. 459, 471, 509 S.E.2d 428, 436 (1998),

cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999).                               The

trial court’s decision “as to whether this prospective juror’s

beliefs would affect her performance as a juror” will be upheld

on appeal “[a]bsent an abuse of discretion[.]”                     Id. (citation

omitted).

    After      the    prosecutor        told     the   prospective      jurors       his

version   of    the    applicable       law,     he    collectively     asked    them

whether     they     could     follow     that     instruction     on    the     law.

Prospective juror #6 answered, “No, my conscious [sic] won’t let

me do that. I’m sorry.”          The trial court then specifically asked

prospective juror #6:

            TRIAL COURT: [A]t the appropriate time, the
            court will be giving the jury in this case
            the instructions about what the law is that
            they are to apply to the facts as the jury
            finds the facts to be. I want to follow up
                                            -8-
            with you on the issue that was discussed
            about whether you would be able to set aside
            your   personal   views  or   your  personal
            feelings and follow the law as I give it to
            you.   In light of the reminders that I’ve
            just read and the question I’m asking, will
            you be able to set aside your personal views
            and follow the law as the court gives it to
            you, or do you think in all honesty you
            would not be able to do that?

            PROSPECTIVE JUROR NUMBER 6: I will do the
            best I could, but this is a serious thing
            and you have to live with your conscious
            [sic] and [sic] I don’t believe that I could
            -- I don’t believe I could do it. I really
            don’t.   I’ll do my best to, but I don’t
            think I can.

    Again,     even    if     we    assume        arguendo    that    the    prosecutor

misstated    the    law,    the     trial    court’s        excusal   of     prospective

juror #6 did not amount to endorsing the prosecutor’s version of

the law.     The trial court made clear that the applicable law had

not yet been given to the jury, irrespective of the prosecutor’s

statements.        It specifically asked prospective juror #6 if he

could follow the law as instructed by the trial court at the

appropriate time, and he indicated that he could not.                                Thus,

prospective    juror       #6’s    answer    provided        the   trial     court    with

sufficient    grounds       to     excuse    him     from    the     jury.      See    id.

(holding that the trial court did not abuse its discretion in

excusing prospective juror in death penalty case when she stated

that “her personal beliefs might affect her consideration of the
                                         -9-
death penalty for defendant”); see also N.C. Gen. Stat. § 15A-

1212 (2013) (providing that a challenge for cause can be made

based upon prospective juror’s inability to “render a verdict

with respect to the charge in accordance with the law of North

Carolina”).

c.) Misstatement of Law During Closing Argument

       Next,       defendant   argues    that    the   trial   court   erred    in

overruling his objections during the State’s closing argument

because      the    prosecutor   misstated       the   law   pertaining    to   the

charge of robbery with a firearm.               We disagree.

               The standard of review for improper closing
               arguments that provoke timely objection from
               opposing counsel is whether the trial court
               abused its discretion by failing to sustain
               the objection. In order to assess whether a
               trial court has abused its discretion when
               deciding a particular matter, this Court
               must determine if the ruling could not have
               been the result of a reasoned decision.

State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)

(citations and quotation marks omitted).                An incorrect statement

of law made by the prosecutor during closing arguments requires

the trial court, upon timely objection, to instruct “the jury

that   the     State’s    argument      was   improper.      The   trial   court’s

failure to sustain defendant’s objection and instruct the jury

to disregard the statement [is] error.”                   State v. Ratliff, 341
                                      -10-
N.C.   610,    616-17,    461    S.E.2d    325,   328-29    (1995)   (citation

omitted).       This Court shall order a new trial if “defendant

shows on appeal that this error was material and prejudicial.”

State v. Harris, 290 N.C. 681, 695, 228 S.E.2d 437, 445 (1976)

(citation omitted).        However, the prejudicial effect of such an

error can be cured by a trial court’s proper instruction to the

jury on the relevant law.           State v. Anderson, 322 N.C. 22, 38,

366 S.E.2d 459, 469 (1988).

       Here, defendant specifically argues that the prosecutor’s

statements     during    his    closing   argument   were   improper   because

“armed robbery requires proof that the defendant did in fact

possess a deadly weapon[,]” but the prosecutor “contended that

the statutes . . . did not require the jury to find or infer the

presence of a dangerous weapon to convict [defendant].”                   The

relevant portions of the prosecutor’s closing statement relating

to the presence of a firearm state:

              When you came into this courthouse back on
              Monday, you may have had the belief that if
              an individual robs a bank with a gun versus
              the threatened use of a gun, that they
              should be punished differently. If that was
              your opinion, you have to set that aside
              because   that’s  not  the   law  in  North
              Carolina. . . . North Carolina doesn’t make
              a distinction between an individual who has
              a gun and an individual who doesn’t have a
              gun.
                                        -11-
    The prosecutor also read a quotation from State v. Jarrett,

167 N.C. App. 336, 607 S.E.2d 661 (2004), during the State’s

closing argument.       The prosecutor stated:


           And this is the holding of Jarrett. This is
           what the Court of Appeals said: This court
           has explicitly held proof of armed robbery
           requires that the victim reasonably believed
           that the defendant possessed or used or
           threatened   to  use   a    firearm   in the
           perpetration of a crime.      The State need
           only prove that the defendant represented
           that   he  had  a   firearm    and  that the
           circumstances led the victim to reasonably
           believe that the defendant had a firearm or
           might use it.

    Even     if   we   assume    arguendo      that   the    prosecutor’s       above

statements of law and reference to Jarrett were inaccurate and

improper, they were not prejudicial to defendant.                        During the

State’s   closing      argument,   the    prosecutor        told   the   jury   that

“[t]his judge is going to instruct you on the law here in a

little bit” and “[y]our role as a juror in North Carolina is

strictly to apply the law as it’s given to you.”                    After closing

arguments,    the      trial    court    provided     the    jury    with    proper

instructions on the applicable law and stated, “[y]ou must []

apply the law which I am about to give you to those facts. It is

absolutely necessary that you understand and apply the law as I

give it to you, and not as you think it is, or as you might like
                                     -12-
it to be.”       Shortly thereafter, the trial court instructed that

the State must prove: “Sixth, that the defendant had a firearm

in his possession at the time he obtained the property or that

it reasonably appeared to the victim that a firearm was being

used, in which case you may infer that the said instrument was

what the defendant’s conduct represented it to be.”                   Thus, the

prosecutor’s deference to the trial court coupled with the trial

court’s     correct    jury   instructions       vanquished     any   prejudice

stemming    from   the   prosecutor’s      alleged   misstatement       of   law.

Anderson, supra.

d.) Jury Requests

    In his final argument on appeal, defendant contends that

the trial court erred in failing to provide an instruction that

the “jury instructions were the sole source of law they should

apply.”     The basis for defendant’s argument stems from the trial

court’s denial of the jury’s request to “have copies or view the

two statutes” relating to common law robbery and robbery with a

dangerous    weapon.        Defendant   argues    that   the    trial   court’s

failure     to   instruct     the   jury    to   consider      only   the    jury

instructions as the sole legal authority confused the jury as to

the applicable law.      We disagree.
                                     -13-
      “[Arguments]     challenging         the    trial   court’s     decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009).   “The prime purpose of a court’s charge to the jury is

the   clarification    of   issues,     the      elimination    of   extraneous

matters, and a declaration and an application of the law arising

on the evidence.”       State v. Cameron, 284 N.C. 165, 171, 200

S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d

1153 (1974).       “As to the issue of jury instructions, we note

that choice of instructions is a matter within the trial court’s

discretion and will not be overturned absent a showing of abuse

of discretion.” State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d

109, 152, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002).

The trial court is best positioned to decide whether “additional

instruction will aid or confuse the jury in its deliberations,

or if further instruction will prevent or cause in itself an

undue   emphasis    being   placed    on    a    particular    portion   of   the

court’s instructions.”        State v. Prevette, 317 N.C. 148, 164,

345 S.E.2d 159, 169 (1986).          The law      presumes that “jurors . .

. attend closely the particular language of the trial court’s

instructions in a criminal case and strive to understand, make

sense of, and follow the instructions given them.”
                                   -14-
State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993)

(citation and quotation omitted).

    Here, the trial court did not give a specific instruction

to only consider the jury instructions once it denied the jury’s

request to view the statutes.       However, the trial court properly

eliminated   extraneous    legal   sources    by   refusing    to   give   the

jurors access to the statutes and providing them with printed

copies of the full jury instructions.         Moreover, the trial court

told the jury to follow its instructions:

          You must [] apply the law which I am about
          to give you to those facts. It is absolutely
          necessary that you understand and apply the
          law as I give it to you, and not as you
          think it is, or as you might like it to be.
          . . .      I caution you to consider the
          instructions as a whole and not to pick one
          part of the instructions out and disregard
          the other instructions.

Thus, defendant has failed to show how the trial court’s actions

confused the jury or led the jury to consider matters outside

the jury instructions.      Accordingly, we overrule this issue on

appeal.

                            III. Conclusion

    In sum, we expressly decline to address whether or not the

prosecutor misstated the law during jury selection or closing

arguments.     Even   if   the   prosecutor    misstated      the   law,   his
                                 -15-
statements   did   not   prejudice    defendant   due   to   the   curative

actions by the trial court.          Furthermore, the trial court did

not err in excusing prospective juror #6 because he indicated

that he could not follow the law as instructed by the trial

court.   Finally, the trial court’s failure to instruct the jury

to consider the jury instructions as the sole legal authority

was free of error as defendant failed to show how the trial

court’s omission confused the jury as to the applicable law.

    No prejudicial error.

    Judges McCULLOUGH and DAVIS concur.

    Report per Rule 30(e).
