An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1281
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                      Union County
                                              No. 10 CRS 51012
LAMATE SHERRON ANDERSON



      Appeal by Defendant from judgment entered 7 March 2013 by

Judge W. David Lee in Superior Court, Union County.                      Heard in

the Court of Appeals 6 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Daniel P. O’Brien, for the State.

      Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.


      McGEE, Judge.


      Lamate Sherron Anderson (“Defendant”) stabbed Yolanda Simon

(“Ms. Simon”) multiple times in the throat, arms, and torso on

28 February 2010.           Ms. Simon died from these wounds.                  Some

months earlier, Defendant had briefly dated Ms. Simon’s cousin.

Defendant lived in a house across the street from where Ms.

Simon lived with her fiancé and their six-year-old daughter.

Ms. Simon’s cousin also lived with them.                 Ms. Simon’s daughter
                                        -2-
witnessed the killing and, shortly after the attack, the police

apprehended Defendant at his house.

       Defendant      admitted   to   killing     Ms.    Simon,   but    at   trial

argued he was legally insane at the time of the attack or, in

the    alternative,      was     operating      under    diminished      capacity.

Defendant      was      interviewed     by      Monroe      Police      Department

investigators on 28 February 2010, and agreed to talk with the

investigators        after   having   waived    his     Miranda   rights.      When

Defendant was asked why he had killed Ms. Simon, he stated he

had been hearing voices in his head since 2008, “[a]nd it was

just    all    the    pressure    and    I     guess    . . . frustration       and

aggravation of the world and everything going on around me and

then I’m hearing the voices.”                 Defendant stated he knew that

what the voices were telling him was wrong, and that he was

trying to avoid “anything that would hurt me or my family or

anything to give them [the voices] satisfaction of me you know

doing the wrong thing.           I was trying to avoid it.”              Defendant

stated that when the voices would say things to him, he

              knew it was a lie. The first time they [the
              voices] told me [that something bad was
              going to happen to my family] you know I uh,
              just to be natural I worried about it. You
              know, I got home it . . . wasn’t what [the
              voices] said it was so I stopped worrying.
                                      -3-
Defendant would hear voices like “the devil was under [his] bed”

or in the closet, but he thought “well the devil ain’t under my

bed or in the closet so I ain’t gonna worry about it[.]”

      After a while, the voices began telling Defendant he was

either “gonna be gay” or was going to “be a killer.”                    When asked

what made him go over to Ms. Simon’s house on 28 February 2010,

Defendant said:

           Nothing in particular about her.     It was
           just you know . . . . I was trying to teach
           them a lesson.    I hopefully trying to do
           something spiritual warfare. . . . . I was
           like hopefully, I was like, I was saying if
           I did this to her, not just her, but anybody
           in particular, it . . . it’s just random
           man.   . . . Maybe they would stop talking
           to me or leave me alone.

Defendant said he had “thought about going to the doctor.                        I

thought maybe something might of crawled into my ear or might

have been eating on my brain and I was just hearing voices in my

head because of that fact.         But I never did.”

      Defendant   went    across    the    street   to    Ms.    Simon’s    house,

holding a pocket knife that already had the blade open.                    He said

the voices had been challenging him to kill someone to prove

that he was a man.        When he got to Ms. Simon’s house, he rang

the   doorbell.    When    Ms.     Simon    answered     the    door,    Defendant

stabbed her immediately in the throat, then stabbed her more

times in her side and neck, and then went home.                 While Defendant
                                         -4-
was stabbing Ms. Simon, he asked her “why she let her cousin

play in my head in the dark.”               When Ms. Simon asked Defendant

“when,” Defendant told Ms. Simon to “shut up” and kept stabbing

her.     Defendant stated that he “was praying for the best even

though    [he]     knew   [he]     did     the      wrong      thing.”        When       an

investigator said to Defendant, “so you know what you did was

wrong[,]” Defendant said that he did.                Defendant was also asked,

“when you went over there did you plan on stabbing her when you

went in there?        Did you go over there with the intention of

stabbing her?”        Defendant answered: “Yeah, I went over there

with the knife flipped out.”             Defendant said he wasn’t sure if

he would have killed Ms. Simon’s daughter had she opened the

door, but that he would have stabbed Ms. Simon’s cousin.

       When   Defendant    returned      home,      he   put    his   shirt    in    the

washing machine, “[b]ecause [he] knew [he] had . . .                          blood on

it.” Defendant also washed the blood off the knife and took a

shower. Defendant told the investigators: “I know it’s not okay.

I know it will never be okay again for me or her family.                          I know

it   won’t.”       Defendant     stated:    “I      don’t   think     I’m   crazy        or

insane, but I don’t think I had full control over . . . my

actions.”

       Defendant    was   found    guilty      of   first-degree         murder     on    7

March 2013.      Defendant appeals.
                                              -5-
                                              I.

    In Defendant’s first argument, he contends the trial court

erred in allowing the State’s expert witness to testify “that

the term diminished capacity was misleading and then allowing

him to define the criteria for it in a manner that was legally

incorrect.”        We disagree.

    Dr.   Charles             Vance    (Dr.   Vance),      a    forensic   psychiatrist

called   by       the    State    to     testify     as    an    expert    witness,   was

questioned        by    the    State    concerning        his   understanding    of   the

terms “insanity” and “diminished capacity” from a psychiatric

perspective.           The following colloquy occurred:

              Q [The State] - Doctor Vance, would you be
              able to explain to the jury, as a – from a
              forensic clinician’s standpoint the terms
              insanity and diminished capacity as they
              relate to your evaluation process?

              MR. CULLER              [Defendant’s        attorney]:      Well
              objection.

              THE COURT:         I’m going to sustain that.

              Q   Doctor, you used the two terms insanity
              and diminished capacity a few moments ago.
              Is that correct?

              A    Yes, I did.

              Q    What do you mean by those terms?

              MR. CULLER:         Objection.

              THE COURT:    That’s sustained.                   Let me see
              counsel here just a minute.
                                        -6-
            (Conference at the bench.)

            Q Doctor, you mentioned the term diminished
            capacity; do you recall that?

            A     Yes, I do.

            Q Could you explain as a -- from a forensic
            standpoint what that term means to you sir?

            A     Yes.     Diminished   capacity  as  --
            diminished capacity as we assess it is an
            attempt to understand whether the person’s
            mental health conditions or mental state may
            have been so wrought as to render that
            person unable to really think about their
            actions prior to undertaking them.    I -- I
            view the term diminished capacity as --
            personally I feel it’s a misleading term.

            MR. CULLER:        Objection.

            THE COURT:       Overruled; go ahead.          (Emphasis
            added).

    It appears from the context that Defendant’s initial two

objections were to the form of the questions, not the content.

The State posed the same question twice in compound form, and

the trial court sustained Defendant’s objections thereto.                        The

trial court then called the attorneys to the bench for a private

conference.       Upon return, the State posed the same question with

the only difference being that Dr. Vance was asked only about

diminished      capacity    and   was   not   asked     about    both     diminished

capacity    and    insanity.       Defendant      did     not    object    to   this

question,    which    was    no   longer      compound.         Defendant’s     next

objection followed Dr. Vance’s statement that he viewed the term
                                     -7-
diminished capacity to be misleading.           Defendant’s objection to

this statement was overruled.         Defendant did not give any basis

for his objections.

    Dr. Vance resumed his testimony with the following:

            Because it’s suggested that if they are
            diminished in their ability to think about
            their actions, they might meet criteria.
            They might meet criteria for this -- for
            diminished capacity. But if you think about
            it, anybody who’s had a drink, couple of
            drinks and might be a little bit tipsy, or
            anybody who’s angry or scared is impaired to
            some degree in their ability to think about
            their actions.      You know, people when
            they’re mad, people when they’re drunk, do
            stupid things. So I’m not looking for just
            that they’re impaired in their ability; it’s
            not just that it’s diminished.       When I
            assess this, I try to look for evidence that
            it’s negated; this ability is completely
            negated, that they cannot think about their
            actions prior to undertaking them. And this
            is a state that’s not perhaps unique to
            people with mental health diagnoses.       I
            think anybody if in the right mental frame
            might be pushed to the point that they’re
            not able to think about their actions. But
            mental    health     conditions,   certainly
            significant mental health conditions might
            add fuel to that fire and might make it even
            more likely that a person might reach that
            stage.

    Defendant did not object to any portion of this testimony,

but now contends for the first time on appeal that the testimony

should   have   been    excluded     because   it     contained    a   legally

incorrect   statement    of   what   is    required   to   prove   diminished
                                     -8-
capacity.     Because Defendant failed to preserve this issue at

trial, we do not reach the merits of Defendant’s argument.

             “Generally speaking, the appellate courts of
             this state will not review a trial court's
             decision to admit evidence unless there has
             been a timely objection.” To be timely, the
             objection “must be contemporaneous with the
             time   such   testimony   is   offered   into
             evidence.” “Moreover, [a] defendant los[es]
             his remaining opportunity for appellate
             review when he fail[s] to argue in the Court
             of Appeals that the trial court's admission
             of [the evidence] amounted to plain error.”

State   v.   Brent,__   N.C.   __,   __,   743   S.E.2d       152,   154   (2013)

(citations omitted).      Because Defendant does not argue on appeal

that any error in allowing Dr. Vance’s testimony amounted to

plain error, Defendant has abandoned plain error analysis as

well.   Id. This argument is dismissed.

                                     II.

    In Defendant’s second argument, he contends the trial court

erred   in    denying   Defendant’s    motion    for      a    mistrial.       We

disagree.

    Our Supreme Court has held:

             The trial court is required to declare a
             mistrial upon a defendant's motion “if there
             occurs during the trial . . . conduct inside
             or outside the courtroom, resulting in
             substantial and irreparable prejudice to the
             defendant's case.”   It is well settled that
             a   motion   for    a   mistrial    and   the
             determination of whether defendant's case
             has   been  irreparably   and   substantially
             prejudiced is within the trial court's sound
                                    -9-
         discretion.   The trial court's decision in
         this   regard  is   to    be   afforded   great
         deference since the trial court is in a far
         better position than an appellate court to
         determine whether the degree of influence on
         the jury was irreparable.     Further, “[w]hen
         the   trial   court    withdraws    incompetent
         evidence and instructs the jury not to
         consider it, any prejudice is ordinarily
         cured.”

State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242 (1996)

(citations omitted).

    Defendant   objected   to   a   portion   of   the   State’s   closing

argument, and argues on appeal that “the prosecutor told the

jury that Defendant . . . attempted to ‘hightail it out the back

door’ in an effort to avoid arrest.”          The offending portion of

the State’s argument is italicized below:

         [MR. PHILLIPS (prosecutor)]:    Wrongfulness;
         he closed the door behind him to hide the
         stabbing. He washed his clothes to get rid
         of the blood.     He then tried to exit the
         back door in an effort to evade arrest.
         Taking together all these behaviors indicate
         he knew what he had done is wrong. Now, let
         me remind you of something. You heard that
         he was making a sandwich and watching TV.
         Now, what makes more sense, because that’s
         what he said he was doing; and we know he
         exaggerates.   Does that make more sense, or
         does it make sense you know it takes time to
         clean up.    He did a pretty good job of
         cleaning up.    He cleaned up this knife so
         good the SBI agent who testified had to get
         the DNA from underneath this clip right
         here.   He washed his clothes, and then he
         was getting ready to hightail it out the
         back door, and did go out the back door –
                                  -10-
         MR. CULLER [Defendant’s          attorney]:      Your
         Honor, may we approach?

         THE COURT:    No, keep your seat.   Keep your
         seat.   Ladies and gentlemen, you’ll recall
         the evidence that has come before you.
         Again, as I’ve instructed you earlier to the
         extent   that    your  recollection   of  the
         evidence differs from that of either of
         these -- any of these lawyers, you’re to be
         guided exclusively by your recollection of
         the evidence. I caution you to stay within
         the record and the evidence as best you can.

         MR.   PHILLIPS:   Thank you, Your Honor.    So
         was   he making a sandwich and watching TV, or
         was   he covering up his crime and walking out
         the   back door?

         . . . .

         MR. PHILLIPS:    . . . . That’s what he was
         doing right there.      Diminished capacity;
         what does [an expert witness] say?    Again,
         not so impaired as to disrupt his ability to
         form a plan and act to accomplish the plan.
         He had the specific intent of killing Ms.
         Simon by cutting her throat.        All his
         behaviors were directed toward that goal. I
         view [that] Mr. Anderson had the ability to
         think ahead, plan, and act in a coherent and
         concerted effort to put that plan into
         effect.    Well, we know what happened; he
         succeeded.

    Following the State’s closing argument, Defendant moved for

a mistrial.    Defendant argues that, by suggesting Defendant had

“hightailed    it”   out   the   back    door,   the   State   improperly

suggested facts not in evidence that suggested Defendant was

acting to cover up his crime and escape capture, and was not

laboring under any diminished capacity.          Defendant argues there
                                       -11-
were multiple videos from police cruiser dashboard cameras that

show   Defendant     standing    on   his     back    porch     smoking     when   the

police arrived to arrest him, and that the State had seen those

videos and knew Defendant had not attempted to flee.                        The jury

never saw those videos because the trial court, as a sanction

for a discovery rules violation, did not allow the State to use

them at trial.        Defendant does not include those videos as a

part of the record, so we cannot verify their contents, but we

assume,     arguendo,     that      those     videos     show     what      Defendant

contends.

       Assuming     the     State     was     aware     of      evidence      clearly

establishing       that   Defendant     did    not     attempt       to   flee,    the

“hightail    it”    comment     was   improper.         Even    if    the   evidence

submitted at trial could have supported an inference of flight,

the State may not make that argument if it knows that argument

to be untrue.        State v. Smith, 352 N.C. 531, 560, 532 S.E.2d

773, 791-92 (2000) (citations omitted) (“The trial court has a

duty, upon objection, to censor remarks not warranted by either

the evidence or the law, or remarks                   calculated to mislead or

prejudice the jury.”).          If the videos showed that Defendant did

not attempt to flee, the trial court should have censored the

State’s   remark     upon     Defendant’s      objection.         Id.        However,

assuming this error occurred, Defendant fails to show that the
                                    -12-
trial court abused its discretion in denying Defendant’s motion

for a mistrial.     “‘[R]emarks are to be viewed in the context in

which they are made and the overall factual circumstances to

which   they   referred.’”       Id.    at   562,   532    S.E.2d   at   792-93

(citations omitted).

      When we view the offending remark in the context of the

entire closing argument, and the evidence admitted at trial, we

do   not   find   that   the   remark    resulted    “in    substantial        and

irreparable prejudice to [] [D]efendant's case.”              King, 343 N.C.

at 44, 468 S.E.2d at 242 (citation omitted).                Though the trial

court did not censor the remark, Id., it did instruct the jurors

to rely on their own recollections of the evidence and not the

arguments of the State.        We find no abuse of discretion.           Id.

      No error.

      Judges HUNTER, Robert C. and ELMORE concur.

      Report per Rule 30(e).
