              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1300

                                Filed: 17 October 2017

Wake County, No. 13CRS214536

STATE OF NORTH CAROLINA

             v.

JOANNA ROBERTA MADONNA, Defendant.


      Appeal by Defendant from judgment entered 28 September 2015 by Judge

Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals

10 August 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Sandra
      Wallace-Smith, for the State.

      George B. Currin for the Defendant.


      DILLON, Judge.


      Joanna Roberta Madonna (“Defendant”) appeals from judgment entered upon

a jury verdict finding her guilty of first-degree murder.

                                    I. Background

      Defendant and Jose Perez (“Mr. Perez”) met in 2008 and were married in 2009.

In June 2013, Mr. Perez was killed during an altercation with Defendant. At trial,

Defendant proceeded on a theory of self-defense.
                                 STATE V. MADONNA

                                  Opinion of the Court



      Mr. Perez and Defendant were the only individuals at the scene of the

altercation. Because Mr. Perez did not live to tell his version of events, Defendant’s

account of the altercation was the only direct evidence available at trial. Defendant

testified to her version of events as follows: While driving in a car with Mr. Perez,

Defendant told Mr. Perez that she wanted a divorce. Mr. Perez responded by saying

that he would kill himself if she left him. Mr. Perez then clutched his chest, claimed

that he was going to have a heart attack, and asked Defendant to pull over. After

Defendant pulled the car over, she got out of the car to help Mr. Perez, but before she

was able to reach the passenger door of the car, she heard a gunshot. Mr. Perez

pointed the gun at Defendant and himself, and when Defendant attempted to take

the gun from Mr. Perez, it went off and shot him in the face. Defendant dropped the

gun, got back in the car, and began driving toward the VA hospital. Mr. Perez again

started clutching his chest and asking Defendant to pull over. When she again got

out of the car to check on him, Mr. Perez jumped out of the car and knocked Defendant

over, crushing her with his body weight. Defendant became concerned that Mr. Perez

was going to choke her to death. Defendant saw a knife on the ground and “started

swinging at [Mr. Perez]” until he was no longer holding her down. Defendant testified

that at that point, she thought Mr. Perez would still be able to get up, so Defendant

threw the knife in the woods, removed Mr. Perez’s shoes so he could not chase her,

and left the scene.



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      The State presented considerable circumstantial evidence which tended to

contradict Defendant’s version of events. Following the trial, the jury convicted

Defendant of first-degree murder. Defendant timely appealed.

                                     II. Analysis

      On appeal, Defendant contends that the trial court erred in (1) denying her

motions to dismiss, (2) denying her motion for mistrial and failing to intervene ex

mero motu where the prosecutor made grossly improper remarks during closing

argument, and (3) allowing inadmissible and prejudicial witness testimony. We

address each argument in turn.

                                A. Motions to Dismiss

      Defendant first argues that the trial court erred in denying her motions to

dismiss at the close of the State’s evidence and the close of all evidence. On appeal,

Defendant contends that (1) the State failed to present substantial evidence of

premeditation and deliberation, and (2) the State failed to present substantial

evidence from which the jury could reasonably conclude that Defendant did not act

in self-defense.

      We review the trial court’s denial of a motion to dismiss for insufficiency of the

evidence de novo. State v. Barnett, 368 N.C. 710, 713, 782 S.E.2d 885, 888 (2016).

             When considering a motion to dismiss for insufficiency of
             evidence, the court is concerned only with the legal
             sufficiency of the evidence to support a verdict, not its
             weight, which is a matter for the jury. The evidence must


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                                   Opinion of the Court



             be considered in the light most favorable to the state; all
             contradictions and discrepancies therein must be resolved
             in the state’s favor; and the state must be given the benefit
             of every reasonable inference to be drawn in its favor from
             the evidence. There must be substantial evidence of all
             elements of the crime charged, and that the defendant was
             the perpetrator of the crime.

Id. (citations omitted). Substantial evidence is “relevant evidence that a reasonable

mind might accept as sufficient to support a conclusion.” State v. Allen, 346 N.C. 731,

739, 488 S.E.2d 188, 192 (1997).

                          1. Premeditation and Deliberation

      To establish the offense of first-degree murder, the State must show that the

defendant unlawfully killed the victim with malice, premeditation, and deliberation.

State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991). Premeditation is defined

as “thought [] beforehand for some length of time, however short[.]” State v. Robbins,

275 N.C. 537, 542, 169 S.E.2d 858, 861-62 (1969). Deliberation means that the act is

done “in a cool state of the blood in furtherance of some fixed design.” State v. Buffkin,

209 N.C. 117, 125, 183 S.E. 543, 548 (1936). “The question as to whether or not there

has been deliberation is not ordinarily capable of actual proof, but must be

determined by the jury from the circumstances.” Id. at 125, 183 S.E. at 547. Factors

to be considered in determining whether the defendant committed the crime after

premeditation and deliberation include:

             (1) [W]ant of provocation on the part of the deceased; (2)
             the conduct and statements of the defendant before and


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                                  Opinion of the Court



             after the killing; (3) threats and declarations of the
             defendant before and during the course of the occurrence
             giving rise to the death of the deceased; (4) ill-will or
             previous difficulty between the parties; (5) the dealing of
             lethal blows after the deceased has been felled and
             rendered helpless; and (6) evidence that the killing was
             done in a brutal manner.

State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984).

      The following evidence relevant to the issue of premeditation and deliberation

was presented at trial:

      Mr. Perez suffered from a heart condition and other ailments. In the months

leading up to the June 2013 death of Mr. Perez, Defendant and Mr. Perez began

arguing, mostly about financial issues. Defendant had begun a romantic relationship

with her therapist and planned to ask Mr. Perez for a divorce.

      Pursuant to a search of a home computer, law enforcement discovered internet

searches from March 2013 including “upon death of a veteran,” “can tasers kill

people,” “can tasers kill people with a heart condition,” “what is the best handgun for

under $200,” “death in absentia USA,” and “declare someone dead if missing 3 years.”

      On the day Mr. Perez was killed, Defendant visited her nephew, who was a

gun enthusiast. While visiting, Defendant expressed concerns about her personal

safety due to break-ins in her neighborhood, and her nephew gave her a gun and a

knife. Shortly after being given these weapons, Defendant returned home and asked

Mr. Perez to go on a drive with her so that she could ask him for a divorce. Defendant



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                                   Opinion of the Court



took both the gun and the knife with her in the car and used the weapons to kill Mr.

Perez, shooting him and then stabbing him approximately twelve (12) times.

      Later in the day, after killing Mr. Perez, Defendant texted her therapist “it’s

almost done” and “it got ugly.” Following Mr. Perez’s death, Defendant disposed of

her bloodstained clothing, threw away Mr. Perez’s medications and identification,

and maintained that Mr. Perez had either gone to Florida or was at a rehabilitation

center.

      We hold that this evidence was relevant and constitutes substantial evidence

that the killing of Mr. Perez was premeditated and deliberate. See id. at 170, 321

S.E.2d at 843.

                                    2. Self-Defense

      When there is some evidence of self-defense, “[t]he burden is upon the State to

prove beyond a reasonable doubt that the defendant did not act in self-defense[.]”

State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979). Thus, the test on a

motion to dismiss is “whether the State has presented substantial evidence which,

when taken in the light most favorable to the State, would be sufficient to convince a

rational trier of fact that the defendant did not act in self-defense.” State v. Presson,

229 N.C. App. 325, 329, 747 S.E.2d 651, 655 (2013) (emphasis added).

      In addition to the evidence recounted above, the State presented the following

evidence which tended to contradict Defendant’s claim of self-defense: Mr. Perez was



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                                   Opinion of the Court



diabetic, had coronary heart disease, was a lung cancer survivor, and suffered from

numerous physical disabilities, including nerve damage and atrophied hands that

made it difficult for him to grasp objects. Doctors testified that it would be difficult

for Mr. Perez to use a gun or grasp a knife, and that he was “relatively frail” and

“moved slowly.” The VA had approved a plan to equip Mr. Perez and Defendant’s

home with a wheelchair lift, ramps, a bathroom modification, and special doorknobs

in order to accommodate Mr. Perez’s disabilities.         In contrast, Defendant was

physically active, sang in a band, and worked as a house cleaner and in a law office

doing filing. Defendant had superficial injuries inconsistent with her account of a

violent struggle. Defendant’s therapist testified that Defendant showed him “knife

wounds” on her arms that in fact looked like scratches, not cuts.

      Further, when viewed in the light most favorable to the State, the evidence

tends to show that even after Mr. Perez had been wounded twice by gunshots,

Defendant stabbed him twelve (12) times. And Defendant suffered minimal injuries

compared to the nature and severity of the injuries sustained by Mr. Perez. See id.

at 330, 747 S.E.2d at 656.

      In conclusion, regardless of whether Defendant may have presented evidence

which tended to contradict the State’s evidence on the issue of self-defense, we

conclude that the State presented substantial evidence that Defendant did not act in




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                                   Opinion of the Court



self-defense. Accordingly, we conclude that the trial court did not err in denying

Defendant’s motion to dismiss the charge of first-degree murder.

                                 B. Closing Argument

      Defendant’s second set of arguments relates to statements made by the

prosecutor during closing argument.

      Counsel is generally allowed wide latitude in argument to the jury. State v.

Huffstetler, 312 N.C. 92, 112, 322 S.E.2d 110, 123 (1984). Counsel for both sides is

permitted to argue to the jury “the facts in evidence and all reasonable inferences to

be drawn therefrom together with the relevant law so as to present his or her side of

the case.” Id. However, during a closing argument, an attorney may not “become

abusive, inject his personal experiences, [or] express his personal belief as to the truth

or falsity of the evidence or as to the guilt or innocence of the defendant[.]” N.C. Gen.

Stat. § 15A-1230(a) (2015).

      Defendant first contends that the prosecutor was abusive in her closing

argument when she stated that Defendant “can’t keep her knees together or her

mouth shut.” Defendant moved for a mistrial immediately following the prosecutor’s

closing argument on the grounds that this statement was inappropriate and violated

Defendant’s due process rights. The trial court noted Defendant’s objection for the

record but denied the motion for mistrial.




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                                   Opinion of the Court



      We review a trial court’s denial of a motion for mistrial for abuse of discretion.

State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995). The grant of a mistrial

is a “drastic remedy, warranted only for such serious improprieties as would make it

impossible to attain a fair and impartial verdict.” State v. Stocks, 319 N.C. 437, 441,

355 S.E.2d 492, 494 (1987).

      We conclude that the prosecutor’s statement that Defendant “can’t keep her

knees together or her mouth shut” was improperly abusive. See N.C. Gen. Stat. §

15A-1230(a). However, we do not believe this comment alone – or even this comment

coupled with the other comments by the prosecutor discussed below – made it

impossible for Defendant to obtain a fair trial and impartial verdict, and thus did not

require that the trial court impose the “drastic remedy” of granting Defendant’s

motion for mistrial.

      Defendant also contends that during her closing argument, the prosecutor

repeatedly made inappropriate comments that Defendant was a liar, had lied on the

stand, was promiscuous, had previously had abortions, and currently abused drugs.

      Control of counsel’s arguments is left largely to the discretion of the trial court.

State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995). “When no objections

are made at trial . . . the prosecutor’s argument is subject to limited appellate review

for gross improprieties which make it plain that the trial court abused its discretion

in failing to correct the prejudicial matters ex mero motu.” Id. Our review requires



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                                   Opinion of the Court



a two-step inquiry: “(1) whether the argument was improper; and, if so, (2) whether

the argument was so grossly improper as to impede the defendant’s right to a fair

trial.” State v. Huey, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2017).

      In order to determine whether a prosecutor’s remarks are grossly improper,

“the remarks must be viewed in context and in light of the overall factual

circumstances to which they refer.” Id. An argument is not improper “when it is

consistent with the record and does not travel into the fields of conjecture or personal

opinion.” State v. Small, 328 N.C. 175, 184-85, 400 S.E.2d 413, 419 (1991).

      An attorney may not express any “personal belief as to the truth or falsity of

the evidence” during closing argument. N.C. Gen. Stat. § 15A-1230(a). Our Supreme

Court has held that it is improper for an attorney to assert during argument to the

jury that a witness is lying on the stand or is a liar. State v. Sexton, 336 N.C. 321,

363, 444 S.E.2d 879, 903 (1994) (“It is improper for the district attorney, and defense

counsel as well, to assert in his argument that a witness is lying. He can argue to the

jury that they should not believe a witness, but he should not call him a liar. State v.

McKenna, 289 N.C. 668, 686, 224 S.E.2d 537, 550 (1976)[.]”); see also Huey, ___ N.C.

at ___, ___ S.E.2d at ___ (“A prosecutor is not permitted to insult a defendant or assert

the defendant is a liar.”). Our Supreme Court has recently held that it was improper

for a prosecutor, when referring to the defendant, to state that “innocent men don’t

lie,” and to assert that when the defendant “was given a chance to just tell [the jury]



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the truth, he decided he’s going to tell you[, the jury,] whatever version he thought

would get you to vote not guilty.” Huey, ___ N.C. at ___, ___ S.E.2d at ___.

      However, an attorney may “argue to the jury that they should not believe a

witness[.]” Id. “The question of whether a witness is telling the truth is a question

of credibility and is a matter for the jury alone.” State v. Solomon, 340 N.C. 212, 221,

456 S.E.2d 778, 784 (1995).

      Here, Defendant contends that the prosecutor made numerous inappropriate

statements to the jury, including:

             This defendant talks and talks and out comes falsehood,
             deception, distortion, and fabrication. She stood before you
             and put her hand on the bible, and she swore to tell the
             truth, . . . [a]nd then she sat in that chair and testified, []
             and every time her lips moved another monstrous lie came
             out.

             She has been untruthful to you.

             She was dishonest then, and she’s been dishonest now.

             How could she think you could possibly believe any of the
             evil fairytale she has told you?

      Although Defendant did admit on the stand that she had lied numerous times

in the past, we are compelled by Supreme Court precedent to conclude that these

statements, in which the prosecutor specifically stated that Defendant lied to the jury

while testifying at trial, were clearly improper. See Huey, ___ N.C. at ___, ___ S.E.2d

at ___; Couch v. Private Diagnostic Clinic, 351 N.C. 92, 93, 520 S.E.2d 785, 785 (1999)



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                                   Opinion of the Court



(holding that counsel engaged in grossly improper jury argument where the

argument included “at least nineteen explicit characterizations of the defense

witnesses and opposing counsel as liars”); State v. Locklear, 294 N.C. 210, 217, 241

S.E.2d 65, 70 (1978) (“It is improper for a lawyer to assert his opinion that a witness

is lying.”); see also R. Prof. Conduct N.C. St. B. 3.4(e) (providing that a lawyer shall

not “state a personal opinion as to the . . . credibility of a witness”). The prosecutor

also improperly referred to Defendant as a “narcissist.” See State v. Matthews, 358

N.C. 102, 111, 591 S.E.2d 535, 541-42 (2004) (holding that it was improper for the

prosecutor to engage in “name-calling”).

      However, our Supreme Court has noted that where there is overwhelming

evidence against a defendant, statements that are improper may not, in every case,

amount to prejudice and reversible error. Huey, ___ N.C. at ___, ___ S.E.2d at ___

(citing Sexton, 336 N.C. at 363-64, 444 S.E.2d at 903). “To demonstrate prejudice,

defendant has the burden to show a ‘reasonable possibility that, had the error[s] in

question not been committed, a different result would have been reached at the trial.’”

Huey, ___ N.C. at ___; ___ S.E.2d at ___; N.C. Gen. Stat. § 15A-1443(a)(2015).

      In this case, considering the overwhelming evidence of Defendant’s guilt, we

hold that although some of the prosecutor’s remarks were certainly improper, they

did not render the trial and conviction fundamentally unfair. See Huey, ___ N.C. at

___, ___ S.E.2d at ___ (stating that in order for an appellate court to order a new trial,



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                                   Opinion of the Court



the prosecutor’s comments must have “so infected the trial with unfairness as to make

the resulting conviction a denial of due process”) (internal marks omitted); see also

State v. Garcell, 363 N.C. 10, 61, 678 S.E.2d 618, 650 (2009). Therefore, the trial

court did not err in failing to intervene ex mero motu. See State v. Campbell, 359 N.C.

644, 679, 617 S.E.2d 1, 23 (2005) (noting that, even if the prosecutor’s comments in

closing argument were improper, “the jury instructions informed the jury not to rely

on the closing arguments as their guide in evaluating the evidence[,]” and “when

viewed as a whole . . . the prosecutor’s challenged arguments did not so infuse the

proceeding with impropriety as to impede defendant’s right to a fair trial”).

      As our Supreme Court has stated:

             The power and effectiveness of a closing argument is a vital
             part of the adversarial process that forms the basis of our
             justice system. A well-reasoned, well-articulated closing
             argument can be a critical part of winning a case. Yet,
             arguments, no matter how effective, must avoid base
             tactics such as . . . comments dominated by counsel's
             personal opinion; [and] . . . name-calling[.] . . . Our holding
             here, and other similar holdings finding no prejudice in
             various closing arguments, must not be taken as an
             invitation to try similar arguments again. We, once again,
             instruct trial judges to be prepared to intervene ex mero
             motu when improper arguments are made.

Huey, ___ N.C. at ___, ___ S.E.2d at ____ (internal marks and citation omitted).

                                C. Witness Testimony

      In her final argument, Defendant contends that the trial court erred when it

allowed improper witness testimony. The decision to admit or exclude evidence is


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                                    Opinion of the Court



within the inherent authority of the trial court, and is thus reviewed under the abuse

of discretion standard. See State v. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 808-

09 (2015).

       First, Defendant contends that the trial court should not have allowed evidence

of a statement she made to police when they came to her residence to investigate Mr.

Perez’s death.    Specifically, Defendant argues that her statement that she had

already contacted an attorney was constitutionally protected. See State v. Erickson,

181 N.C. App. 479, 487, 640 S.E.2d 761, 768 (2007) (noting that it is improper for the

prosecutor to elicit “testimony regarding the defendant’s invocation of his

constitutional rights”). On appeal, Defendant points to the prosecutor’s question

regarding this statement during cross-examination of Defendant; however, this

evidence was also admitted without objection earlier in the trial during the testimony

of a detective. Accordingly, Defendant failed to preserve this objection for appellate

review. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 566 (1984) (“[W]here

evidence is admitted over objection, and the same evidence has been previously

admitted . . . without objection, the benefit of the objection is lost.”).

       Defendant also contends that the trial court abused its discretion in overruling

defense counsel’s objection to the prosecutor’s question regarding whether Defendant

had terminated two pregnancies.         However, Defendant later admitted, without

objection, that she had written a letter to a Catholic priest during her time in jail



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                                  Opinion of the Court



which included the phrase “I got pregnant twice and had two abortions.” Therefore,

Defendant has waived her right to challenge the admission of this evidence on appeal.

See State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 554-55 (1986) (“[W]hen

evidence is admitted over objection but the same evidence is thereafter admitted

without objection, the benefit of the objection ordinarily is lost.”). During cross-

examination, Defendant admitted that she had written the letter and that it

contained the statement regarding the abortions. See e.g., id.

      Finally, Defendant contends that it was error for the trial court to allow

testimony from her therapist and a detective about a statement made by her therapist

that Defendant told him she had married Mr. Perez because he had cancer and would

be dying soon. Even assuming that it was an abuse of discretion to admit this

evidence, Defendant has failed to establish that she was prejudiced by its admission

in light of other overwhelming evidence of Defendant’s guilt of the crime of first-

degree   murder.     See   N.C.   Gen.     Stat.   §     15A-1443(a)   (“A   defendant   is

prejudiced . . . when there is a reasonable possibility that, had the error in question

not been committed, a different result would have been reached at trial[.]”).

Accordingly, this argument is overruled.

      NO PREJUDICIAL ERROR.

      Judge ZACHARY concurs.

      Judge BERGER concurs by separate opinion.



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 No. COA16-1300 – State v. Madonna


         BERGER, Judge, concurring in separate opinion.


         I fully concur with the majority opinion, but write separately to address the

prosecutor’s statements regarding Defendant’s “evil fairytale” and other conjured

facts.

         Pursuant to N.C. Gen. Stat. § 15A-1230, an attorney is not permitted to

               express his personal belief as to the truth or falsity of the
               evidence or as to the guilt or innocence of the defendant,
               . . . [but a]n attorney may, however, on the basis of his
               analysis of the evidence, argue any position or conclusion
               with respect to a matter in issue.

N.C. Gen. Stat. § 15A-1230(a) (2015).

         While on the stand, Defendant testified as follows:

               I made up -- I lied to [my daughter]. I lied to [my daughter].
               I lied to [my daughter]. And I believe that I said that
               yesterday. I told [my daughter] whatever I needed to tell
               her to get her to be quiet. Yes, I lied to [my daughter].

                      ....

               And I did lie to [my defense attorney]. I did not give him
               all the information either. . . . Yes, I did. I lied to him and
               told him that the gun was at the same place where Jose
               was.

                      ....

               Yes. That was a lie. I told everybody that lie. [Answer to
               question concerning Jose’s whereabouts after she killed
               him].

                      ....
                                        STATE V. MADONNA

                                       BERGER, J., concurring



                No. I had lied and said I was going to a meeting, and I sat
                there in [his] living room while he was watching golf and -
                - I'm sorry.

                        ....

                I lied to the police.        I lied to my children.         I lied to
                everybody.

        In a letter written from jail, Defendant admitted, “I lied to everyone around

me. I lied to my children . . . . I lied to my friends about money. . . . I lied to fellow

inmates.” Further, in summarizing the evidence against his client, defense counsel

made the following statements in closing, “She did -- took some stupid actions to lie

to people. She took some stupid actions to lie to people. . . . She's just lying.”

        What do you call someone who testifies that they have lied “to everybody”? It

is difficult for me to conclude that an attorney should be precluded from asserting

that a defendant has been untruthful when the defendant testifies she “lied to

everybody” and her defense attorney acknowledges that truth.1

        There will certainly be more murders.                 Just as certainly, there will be

defendants who manufacture stories in an effort to conceal their involvement in

criminal activity. And, while it is permissible to label those defendants as “killers,”

prosecutors are forbidden from asserting they are dishonest.




        1 Interestingly, defense counsel argued to the jury that the victim in this case was a liar, not
only asserting that he was untruthful, but stating, “She knew what kind of lies [Jose] was telling,” and
“It wasn't -- it was the final straw to separate her from that relationship, not just to show you that
Jose was lying about stuff but just where her mindset was.”

                                                   2
