An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1250
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              No. 10 CRS 3417
SEVERN LEE WILLIAMS


      Appeal by defendant from judgment entered 21 February 2013

by   Judge   G.   Wayne    Abernathy     in   Wake   County      Superior   Court.

Heard in the Court of Appeals 18 March 2014.


      Roy Cooper, Attorney General, by Daniel D. Addison, Special
      Deputy Attorney General, for the State.

      Law Offices of John R. Mills NPC, by John R. Mills, for
      defendant-appellant.


      STEELMAN, Judge.


      Where defendant failed to preserve Constitutional error,

his argument on appeal is dismissed.                  Where the trial court

found that a statement defendant contended was an inconsistent

statement of a State’s witness was actually the statement of

defendant,     the    trial    court    did    not    err   in    excluding     the

statement.     Where the State’s closing arguments were not grossly
                                     -2-
improper, the trial court did not err in failing to intervene ex

mero motu.



                 I. Factual and Procedural Background

    On 16 October 2009, after midnight, the phone of Severn Lee

Williams    (defendant)    was    used   to   call   Excel    Taxicab   (Excel)

dispatch.     Friday Asoburuenwu (Friday), a taxi driver employed

by Excel, responded to the call, and proceeded to Hoyle Drive in

Raleigh.     Friday arrived, and took on his passenger, a black man

wearing a toboggan.       The passenger pulled out a gun, threatened

and shot Friday, and ordered him to drive.               Upon reaching his

destination, as the passenger started to leave the taxi, Friday

was able to grab and retain his toboggan.               The passenger then

fled to a black four-door car.                Friday called 911, received

medical treatment, and gave a statement to police.                   Friday was

able to identify defendant’s picture from a photographic lineup.

    Police     called     the    telephone    number   that    had    requested

Friday’s taxi, and defendant answered.               Defendant claimed that

he had gone to a Circle K that night to purchase beer, and had

driven his brother’s vehicle to the store.             Police then met with

defendant, and defendant told them that he had allowed a friend

to use his cellular telephone to call a cab.             However, defendant
                                        -3-
could   not   provide   a   name    of      any    person       who   had   used   his

telephone,    instead   providing       a   vague       description.        Defendant

claimed that he didn’t know where the man lived or where he went

after using defendant’s telephone.                     Police asked defendant to

identify the Circle K.           Defendant then said that he did not

actually go into the store, because a friend named Spook called

him and offered him beer near the store.                      Defendant told police

that he didn’t meet Spook in the parking lot, but in apartments

located behind Circle K.         When police asked in which apartment

Spook lived, defendant responded that he didn’t know, that he

didn’t actually go to an apartment, that he and Spook hung out

in the parking lot drinking, and it was at that point that the

unknown man borrowed defendant’s telephone.                         Police asked for

Spook’s telephone number, but defendant said that he did not

know it, that he did not have it in his address book, that his

telephone erases telephone numbers, and that he had cleared his

cell-phone history.      Defendant claimed that he did not know how

Spook had his telephone number.                When asked how defendant knew

Spook, defendant claimed that they had been introduced by a

mutual friend named Dwight, but that defendant did not know

Dwight’s   telephone    number     or    how      to    get    in   touch   with   him.

Police checked defendant’s cellular telephone records, and found
                                             -4-
that only two calls went to defendant’s telephone that night:

one from his aunt, and one from a female friend.                           There were no

calls received from or made to anyone named Dwight or Spook.

       Defendant was indicted for assault with a deadly weapon

with   intent       to   kill     inflicting       serious    injury,       first-degree

kidnapping,        attempted       robbery    with    a    dangerous           weapon,    and

possession of a firearm by a felon.                       Defendant was found not

guilty      of    assault   with    a   deadly     weapon     and       possession       of   a

firearm by a felon, but guilty of first-degree kidnapping and

attempted robbery with a firearm.                     The trial court sentenced

defendant to an active term of imprisonment of 93-120 months for

attempted        robbery,    and    arrested       judgment       on     the    kidnapping

charge.

       Defendant appeals.

                 II. Exclusion of Prior Inconsistent Statement

       In    his    first   argument,        defendant       contends      that     he    was

denied his right to confront the witnesses against him as a

result      of    the    trial    court’s     exclusion      of     a    witness’    prior

inconsistent statement.             We disagree.

                                 A. Standard of Review

                 “It is well established that appellate
                 courts will not ordinarily pass on a
                 constitutional question unless the question
                 was raised in and passed upon by the trial
                               -5-
           court.” State v. Muncy, 79 N.C. App. 356,
           364, 339 S.E.2d 466, 471, disc. review
           denied, 316 N.C. 736, 345 S.E.2d 396 (1986).

State v. Mobley, 200 N.C. App. 570, 572, 684 S.E.2d 508, 510

(2009).    “Constitutional issues not raised and passed upon at

trial will not be considered for the first time on appeal[.]”

State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001)

(quoting State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607

(2001)).

           [T]he plain error rule ... is always to be
           applied   cautiously   and    only   in  the
           exceptional case where, after reviewing the
           entire record, it can be said the claimed
           error is a “fundamental error, something so
           basic, so prejudicial, so lacking in its
           elements that justice cannot have been
           done,” or “where [the error] is grave error
           which amounts to a denial of a fundamental
           right of the accused,” or the error has
           “‘resulted in a miscarriage of justice or in
           the denial to appellant of a fair trial’” or
           where the error is such as to “seriously
           affect the fairness, integrity or public
           reputation of judicial proceedings” or where
           it can be fairly said “the instructional
           mistake had a probable impact on the jury's
           finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

                           B. Analysis
                                              -6-
    In the instant case, the State presented testimony from

Charles Bostic (Bostic), a jailhouse informant, who testified

about what defendant told him concerning plans to commit the

robbery of the taxi.               After the State’s direct examination of

Bostic,   defendant         sought       to   introduce      a   letter,       written   by

defendant but signed by Bostic, which stated that defendant was

not aware of or involved with the alleged crimes.                                Defendant

sought    to    introduce         this    evidence      as   a   prior        inconsistent

statement      for   purposes       of    impeachment.           After    a     voir    dire

hearing   regarding         the    letter,      the    trial     court    excluded       it.

Defendant did not except to its exclusion at trial.                            On appeal,

defendant contends that this was error or, in the alternative,

plain error, and that its exclusion violated defendant’s rights

under the Confrontation Clause of the United States and North

Carolina Constitutions.

    Defendant        made    no     Constitutional        argument       at    trial,    and

thus did not properly preserve this issue for appellate review.

Constitutional issues not addressed by the trial court will not

be addressed for the first time on appeal.                         Mobley, 200 N.C.

App. at 572, 684 S.E.2d at 510.                     Further, plain error review is

limited to evidentiary and jury instruction issues.                             See State
                                    -7-
v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).                     This

argument is dismissed.

    Even     assuming   arguendo       that   this    Court     could      review

defendant’s arguments for plain error, we hold that defendant

has failed to show the necessary prejudice.             Defendant contends

that the two statements, Bostic’s testimony at trial and his

adopted statement in the letter, were inconsistent, and that

Bostic’s testimony was vital to the State’s case.                       However,

Bostic’s testimony is hardly the only evidence tying defendant

to the crimes charged.         Evidence was presented of defendant’s

inconsistent     statements,      of      Friday’s     identification          of

defendant, and of the presence of the black car.

    Further, Bostic’s voir dire testimony clearly showed that

the letter was defendant’s statement, not that of Bostic.                    Had

defendant testified at trial,          the trial court held that              the

statement would have been admissible to corroborate defendant’s

testimony.     However, defendant did not testify at trial, nor did

he present any evidence.

    Even     assuming   arguendo       that   defendant       was    improperly

prevented    from   impeaching     Bostic,    we     hold     that   any     such

exclusion did not have a probable impact on the jury’s finding

that defendant was guilty.
                               -8-
    This argument is dismissed.

                 III. Improper Closing Arguments

    In his second argument, defendant contends that the trial

court erred in failing to intervene ex mero motu during the

State’s closing arguments.   We disagree.

                      A. Standard of Review

         The 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 determining whether argument was grossly
         improper, this Court considers “the context
         in which the remarks were made,” State v.
         Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41,
         cert. denied, 513 U.S. 1046 (1994), as well
         as their brevity relative to the closing
         argument as a whole, see State v. Fletcher,
         354 N.C. 455, 484–85, 555 S.E.2d 534, 552
         (2001) (reasoning that when “[t]he offending
         comment was not only brief, but ... was made
                                -9-
         in the context of a proper ... argument,” it
         was not grossly improper), cert. denied, 537
         U.S. 846 (2002).

State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239, 259 (2008).

                             B. Analysis

    During the closing arguments, the State made the following

statements:

         He [defense counsel] is an advocate for
         Severn Williams. That's his job. I'm not an
         advocate for anybody. I have no client. I
         have the facts and I have the law.

    Defendant contends that this remark was grossly improper,

as it was “a distortion of the prosecutor’s role and undermines

the adversarial process.”

    We note that the portion of the State’s argument complained

of on appeal is an exceptionally small portion of the State’s

closing argument that covered nearly twenty pages of transcript.

In State v. Taylor, our Supreme Court held that we must consider

the context and brevity of the remarks made.     Taylor, 362 N.C.

at 536, 669 S.E.2d at 259.     In the instant case, the context of

the remarks complained of on appeal was that of a rhetorical

flourish; they were a brief portion of the State’s arguments,

and were insignificant and tangential when compared with the

thrust of the arguments which followed.     The remarks themselves

cast no aspersions on defendant or defense counsel; they are not
                              -10-
ad hominem attacks, which are frowned upon by our courts, but

merely a form of litigative puffery.   Accordingly, we hold that

these remarks were not so grossly improper as to require the

trial court to have intervened ex mero motu.

     The trial court did not err in failing to intervene ex mero

motu.

     NO ERROR.

     Judges HUNTER, Robert C., and BRYANT concur.

     Report per Rule 30(e).
