{ "id": 11916386, "name": "STATE OF NORTH CAROLINA v. MICHAEL ANDERSON THOMPSON", "name_abbreviation": "State v. Thompson", "decision_date": "1995-02-21", "docket_number": "No. 9318SC1062", "first_page": "33", "last_page": "44", "citations": [ { "type": "official", "cite": "118 N.C. App. 33" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "88 ALR4th 8", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "24 ALR3d 1093", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "40 L. Ed. 2d 886", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "130 L. Ed. 2d 429", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "pin_cites": [ { "parenthetical": "calling defendant \"liar\" nonprejudicial error due to overwhelming evidence of guilt" } ], "opinion_index": 0 }, { "cite": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "903", "parenthetical": "calling defendant \"liar\" nonprejudicial error due to overwhelming evidence of guilt" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "year": 1994, "pin_cites": [ { "page": "363", "parenthetical": "calling defendant \"liar\" nonprejudicial error due to overwhelming evidence of guilt" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "262 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "330", "parenthetical": "prosecutor's statement calling defendant \"S.O.B.\" is error" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547728 ], "year": 1980, "pin_cites": [ { "page": "115", "parenthetical": "prosecutor's statement calling defendant \"S.O.B.\" is error" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0113-01" ] }, { "cite": "276 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571234, 8571204, 8571271, 8571306, 8571166 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0723-03", "/nc/301/0723-02", "/nc/301/0723-04", "/nc/301/0723-05", "/nc/301/0723-01" ] }, { "cite": "271 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521450 ], "year": 1980, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0377-01" ] }, { "cite": "263 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "774" } ], "opinion_index": 0 }, { "cite": "299 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575737 ], "year": 1980, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0671-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "74 L. Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "pin_cites": [ { "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969)" } ], "opinion_index": 0 }, { "cite": "259 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "year": 1982, "pin_cites": [ { "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969)" } ], "opinion_index": 0 }, { "cite": "293 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "578", "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969)" }, { "page": "578" } ], "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "164", "parenthetical": "citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969)" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "212 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "286 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568917 ], "year": 1975, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0472-01" ] }, { "cite": "434 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "197" }, { "page": "198" }, { "page": "197" }, { "page": "198" } ], "opinion_index": 0 }, { "cite": "334 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530846 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "556" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0551-01" ] }, { "cite": "354 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "319 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739806 ], "year": 1987, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0340-01" ] }, { "cite": "39 L. Ed. 2d 112", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "414 U.S. 1160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11856320, 11856386, 11856584, 11856425, 11856267, 11855982, 11856527, 11856081, 11856148, 11856215, 11856475, 11856028, 11856637 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/414/1160-07", "/us/414/1160-08", "/us/414/1160-12", "/us/414/1160-09", "/us/414/1160-06", "/us/414/1160-01", "/us/414/1160-11", "/us/414/1160-03", "/us/414/1160-04", "/us/414/1160-05", "/us/414/1160-10", "/us/414/1160-02", "/us/414/1160-13" ] }, { "cite": "187 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573842 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0100-01" ] }, { "cite": "185 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "280 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569839 ], "year": 1971, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0074-01" ] }, { "cite": "453 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "861" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481839 ], "year": 1983, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0522-01" ] }, { "cite": "934 F.2d 270", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538061 ], "year": 1991, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/f2d/934/0270-01" ] }, { "cite": "928 F.2d 1006", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1138340 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/f2d/928/1006-01" ] }, { "cite": "380 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485509 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0539-01" ] }, { "cite": "65 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "233 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615889 ], "year": 1951, "pin_cites": [ { "page": "689-90" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0683-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "14 L. Ed. 2d 730", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "381 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6260112, 6259548, 6259837 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/381/0837-03", "/us/381/0837-01", "/us/381/0837-02" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "446 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "6", "parenthetical": "citing Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, reh'g denied, 381 U.S. 957, 14 L. Ed. 2d 730 (1965)" }, { "page": "6" }, { "page": "6" }, { "page": "6", "parenthetical": "in view of conflicting medical evidence, Court could not conclude error was harmless beyond a reasonable doubt" } ], "opinion_index": 0 }, { "cite": "336 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535590 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "758", "parenthetical": "citing Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, reh'g denied, 381 U.S. 957, 14 L. Ed. 2d 730 (1965)" }, { "page": "758" }, { "page": "758" }, { "page": "758-59" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0748-01" ] }, { "cite": "411 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 793", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524348 ], "year": 1991, "pin_cites": [ { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0793-01" ] }, { "cite": "378 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485479, 2484238, 2488057, 2483321, 2485051 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0338-03", "/nc/324/0338-05", "/nc/324/0338-02", "/nc/324/0338-01", "/nc/324/0338-04" ] }, { "cite": "376 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "467" }, { "page": "467" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527839 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0079-01" ] }, { "cite": "448 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "798", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 772", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549683 ], "year": 1994, "pin_cites": [ { "page": "777-78", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0772-01" ] }, { "cite": "337 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719442, 4715923, 4718900, 4718013, 4716574 ], "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0189-02", "/nc/315/0189-04", "/nc/315/0189-01", "/nc/315/0189-05", "/nc/315/0189-03" ] }, { "cite": "334 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "792", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520388 ], "year": 1985, "pin_cites": [ { "page": "52", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0045-01" ] }, { "cite": "436 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "924", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523918 ], "year": 1993, "pin_cites": [ { "page": "773", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0770-01" ] }, { "cite": "231 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "291 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559009 ], "year": 1977, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0700-01" ] }, { "cite": "7 L. Ed. 2d 49", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "368 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6239458, 6239078, 6237688, 6238379, 6238738, 6238037, 6236789, 6237080 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/us/368/0851-08", "/us/368/0851-07", "/us/368/0851-03", "/us/368/0851-05", "/us/368/0851-06", "/us/368/0851-04", "/us/368/0851-01", "/us/368/0851-02" ] }, { "cite": "118 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "254 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624570 ], "year": 1961, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0101-01" ] } ], "analysis": { "cardinality": 1212, "char_count": 25678, "ocr_confidence": 0.72, "pagerank": { "raw": 4.008759936860454e-07, "percentile": 0.9060943321405998 }, "sha256": "c19a40369fc5fc2f826c118a169f0f3cae81f1f32f71cde376b9b807b2778730", "simhash": "1:c5b249a13fbebc44", "word_count": 4264 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and McCRODDEN concur.", "Judge McCRODDEN concurred prior to 15 December 1994." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ANDERSON THOMPSON" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals convictions of assault with a deadly weapon inflicting serious injury and of misdemeanor assault with a deadly weapon. He contends the trial court erred by: (1) refusing to instruct the jury on the defense of accident and (2) overruling his objections to certain statements of the prosecutor during closing argument. We determine the trial court committed no prejudicial error.\nThe State presented evidence tending to show the following: On the evening of 23 November 1991, Cindy Lou Howard (Howard), Alphonso Santiago (Santiago), and Tracy Sturdivant (Sturdivant) were patrons at the Esquire Lounge. Around 2:00 a.m., Sturdivant engaged in a verbal altercation with another woman named Alma. Howard, Santiago, and Sturdivant subsequently left and drove to Santiago\u2019s apartment. They noticed that two automobiles and a truck had followed them. Howard testified the occupants began \u201crunning out and wanting to fight and everything.\u201d Alma was in the group and resumed the dispute with Sturdivant.\nAs that argument intensified, defendant, who had driven one of the three vehicles, pulled a knife on Howard as she exited her automobile. Santiago stepped between them and fought with defendant. Howard was hit during the struggle and fell to the cement. After defendant was struck in the jaw and the fight subsided, he returned to his vehicle while Santiago walked in the direction of his residence. Howard then heard a motor cranking and decided to run towards the apartment building. At that point Howard and Santiago were alongside the apartment, approximately one foot away from the building\u2019s brick wall. Defendant then drove his station wagon directly towards the two, striking both Howard and Santiago before colliding with the building. Defendant was unable to restart the vehicle and left the area on foot. As a result of being struck, Howard suffered a compound fracture of her left leg which subsequently required amputation.\nDefendant was apprehended by police shortly thereafter in a nearby wooded area and transported back to the scene. He was subsequently identified to law enforcement officers as the individual operating the station wagon at the time it struck Howard and Santiago. Officers then searched defendant and found keys which fit the station wagon in his coat pocket. Upon being detained by officers, defendant gave a false name. Howard, Santiago, and Sturdivant named defendant in court as the assailant.\nDefendant presented no evidence. Upon his convictions, he was sentenced to a total of twelve years imprisonment.\nI.\nDefendant first contends the trial court erred by failing to instruct the jury on the defense of accident. See N.C.P.I., Crim. 307.11. We disagree.\nWhere an alleged assault is unintentional and the perpetrator acted without wrongful purpose in the course of lawful conduct and without culpable negligence, a resultant injury will be excused as accidental. See State v. Faust, 254 N.C. 101, 112, 118 S.E.2d 769, 776, cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49 (1961). Culpable negligence is such gross negligence or carelessness as \u201cimports a thoughtless disregard of the consequences\u201d or a \u201cheedless indifference to the rights and safety of others.\u201d State v. Everhart, 291 N.C. 700, 702, 231 S.E.2d 604, 606 (1977).\n\u201cIt is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance.\u201d State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993) (citations omitted). If a requested instruction is refused, defendant on appeal must show the proposed instruction was \u201cnot given in substance, and that substantial evidence supported the omitted instruction.\u201d State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985) (citations omitted). \u201c \u2018Substantial evidence\u2019 is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Gray, 337 N.C. 772, 777-78, 448 S.E.2d 794, 798 (1994) (citation omitted).\nThe trial court in the case sub judice declined to charge the jury on the defense of accident, and our review of the record discloses the requested instruction was not supported by substantial evidence. Defendant relies almost exclusively upon the following testimony by Howard, offered over defendant\u2019s objection:\nQ: After [defendant] was arrested did you go to see him in the jail?\nA: Yes, I did.\nQ: Did you ask him about what happened at that time?\nA: No, I didn\u2019t have \u2014 I asked him \u2014 I walked up to the window and I seen him, and I told him, I asked him if he knew who I was, and he said no, and I backed up to where he could see. We was looking through this little window and I backed up to where he could see my leg, and he knew then who I was, and he told me that he was sorry that\u2014 ... He told me that he was sorry, that he didn\u2019t mean to hurt me and if he could he would take his leg off and give it to me, and that he just didn\u2019t mean to do it.\nDefendant also notes the third-hand hearsay testimony of investigating officer Kim Soben who talked with a Ms. Robs who had spoken with a passenger in the station wagon. Robs reported to Soben that the passenger had stated defendant said he had \u201caccidentally\u201d run over Howard and Santiago. The evidence relied upon by defendant is attenuated at best and therefore insufficient to warrant submission to the jury of an instruction on accident.\nDefendant cites State v. Garrett, 93 N.C. App. 79, 376 S.E.2d 465, disc. rev. denied, 324 N.C. 338, 378 S.E.2d 802-03 (1989), in support of his contention. In Garrett, this Court awarded a new trial upon concluding the trial court erred by not instructing the jury on the defense of accident. Id. at 82, 376 S.E.2d at 467.\nIn Garrett, the testimony of both the mother and sister of the defendant that he didn\u2019t mean to shoot his brother was elicited by the State, \u201capparently in an effort to show defendant actually shot his brother . . . .\u201d Garrett, 93 N.C. App. at 82, 376 S.E.2d at 467. Yet, Garrett is distinguishable in that the prosecution therein offered no eyewitness testimony and presented evidence largely circumstantial. Id.\nIn the case sub judice, on the other hand, the State offered substantial uncontradicted testimony of three eyewitnesses that defendant acted intentionally in driving the station wagon directly towards the two victims, with headlights on, as they ran along the side of an apartment building. Upon striking Howard and Santiago, the vehicle struck the building with such force as to crack the wall, smash a gas meter and drain pipe, and leave the automobile inoperable. The first police officer on the scene further testified he observed no skid marks or other signs indicating defendant had attempted to brake the vehicle, and no evidence suggested the brakes on the automobile failed or that it suffered some other mechanical defect.\nContrary to Garrett, therefore, no substantial evidence in the case sub judice supports submission of the defense of accident to the jury. Rather, all the evidence demonstrates defendant\u2019s act in striking Howard and Santiago with his automobile at the very least involved culpable negligence and, save for the minimal hearsay testimony defendant didn\u2019t \u201cmean\u201d to injure Howard, all the evidence indicated an intentional act. Therefore, the defense of accident was not a \u201csubstantial factor\u201d in the case and the trial court acted within its discretion in refusing to give the instruction. State v. Barbour, 104 N.C. App. 793, 797, 411 S.E.2d 411, 413 (1991).\nAccordingly, we reject this assignment of error.\nII.\nDefendant next alleges the trial court erred by overruling his objections to statements of the Assistant District Attorney during closing argument which defendant maintains impermissibly criticized his exercise of the right to a jury trial and commented upon his failure to testify. Additionally, defendant insists the remarks improperly assailed his character which was not in issue. For the reasons which follow, we find no prejudicial error.\nDefendant highlights the following prosecutorial assertions as error:\nWhy are we having to hear this case? If it was anything else, if there was anything else amiss, if he wasn\u2019t really driving or something else like that there would be some questions\u2014\nAll the evidence you heard in this case came from the State. So why do you have to hear it? Everybody in the State in North Carolina that\u2019s charged with a crime has a right to a jury trial and they are innocent until proven guilty. Every person who is charged with any crime, whether it be murder, rape, robbery, whatever, is entitled to have twelve people hear their case. They can plead not guilty. Anyone can plead not guilty.\nIt is up to the District Attorney\u2019s office to prove to twelve people that don\u2019t know anything about [the] case beyond a reasonable doubt that the man did what they\u2019re charging him with. And that will always be the law and nobody wants to change that. Because see, those two things are great. They protect everybody in this State. It\u2019s like this pen right here. You know, this is a great idea right here. It writes and draws and whatever you want to do with it. If I take it and stick it in somebody\u2019s eye it\u2019s a bad thing. Ladies and gentlemen, if you let the law be like this pen, if a guilty person hides behind that law it\u2019s like sticking the law in somebody\u2019s eye.\nOnly, ladies and gentlemen, the only way that people can plead not guilty are is if there\u2019s some mistake about it or you can plead not guilty and say all right, Mr. D.A., put your witnesses up there and prove it to these twelve people. But just because you plead not guilty doesn\u2019t mean you didn\u2019t do it. You can plead not guilty and say State, prove it. Well, ladies and gentlemen, we\u2019ve proved it. The point about that is if you allow a guilty person like that man there to hide behind the law and use it\u2014\n\u2014it\u2019s like a coward\u2019s way out. It\u2019s like a person who says well, you know, maybe I did it, but who cares, maybe a jury won\u2019t convict me. Don\u2019t let that man take the coward\u2019s way out.\nA.\nDefendant\u2019s first two contentions regarding the foregoing statements allege violations of constitutional dimension, that is, impermissible commentary upon a criminal defendant\u2019s exercise of his right to a jury trial and upon his failure to testify.\nProceeding in reverse order, we note our Supreme Court has recently reiterated the well settled principle that a criminal defendant may not be compelled to testify, and that \u201cany reference by the State regarding his failure to testify is violative of his constitutional right to remain silent.\u201d State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994) (citing Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, reh\u2019g denied, 381 U.S. 957, 14 L. Ed. 2d 730 (1965)). See also N.C. Const. art. I, \u00a7 23 and N.C. Gen. Stat. \u00a7 8-54 (1986). The purpose behind this rule is that reference by the prosecution would nullify the policy that failure to testify should create no presumption against a defendant. State v. Bovender, 233 N.C. 683, 689-90, 65 S.E.2d 323, 329 (1951), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989). \u201cTo permit counsel ... to comment upon or offer explanation of the defendant\u2019s failure to testify would open the door for the prosecution and create a situation the statute was intended to prevent.\u201d Id.\nHowever, prejudicial commentary upon a criminal defendant\u2019s exercise of his right to a jury trial has not previously been addressed in this jurisdiction. The question was considered by the federal court in Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991). In that case, the prosecutor at trial had made the following statements during closing argument:\n[I]t\u2019s offensive to me to sit here and I don\u2019t say this for any personal reason, but to be in this courtroom having asked for recesses to get my body in shape to try a case for several days, when a man sits up here and tries to mislead you first of all, into believing he\u2019s not guilty. That\u2019s offensive, to me. That\u2019s trifling with the processes of this court. I personally dislike that, and I don\u2019t mind publicly saying it, and I will say it next time I feel it. This system we have is too precious. It took too many lives to bring it here, to let somebody come in here and take his chances on killing a man, robbing a man, trying to escape and then beg and ask the jury, not him himself, but through cross-examination and casting reflections and dispersions on witnesses.... The case here, Ladies and Gentlemen of the Jury, is, \u201cFind me guilty first, and then I\u2019ll take the stand and beg you to save my life.\u201d\nHe\u2019s had a trial of people in Lincoln County, . . . he\u2019s had the right to have witnesses face. He\u2019s had the right to cross-examination. He\u2019s had the right to have His Honor charge the jury correctly. He\u2019s had every right afforded a human being, although sometimes I wonder if they\u2019re really entitled to it.\nId. at 1019 n.22, 23.\nThe Cunningham court observed the prosecutor\u2019s comments, inter alia, improperly implied the defendant had in some way abused the judicial system by exercising his Sixth Amendment right to a jury trial. Id. at 1020. However, the court resolved the issue by determining these comments were violative of a prosecutor\u2019s obligation not to \u201cmake an appeal to the jury that is directed to passion or prejudice rather than to reason and to an understanding of the law.\u201d Id. See also U.S. v. Smith, 934 F.2d 270, 275 (11th Cir. 1991) (prosecutor\u2019s argument that defendant had \u201c \u2018not taken responsibility for his actions\u2019 \u201d because he refused to plead guilty like co-defendants was \u201cimproper, but . . . the error was harmless\u201d when curative instruction immediately given and there \u201cwas ample evidence to convict [defendant]\u201d), and People v. Guyon, 117 Ill. App. 3d 522, 536, 453 N.E.2d 849, 861 (1983) (prosecutor\u2019s argument that presumption of innocence is ripped off \u201clike any shroud that cowards hide behind\u201d upon the case against defendant being proven implies the presumption is \u201ca shield or refuge for the guilty\u201d; such argument \u201cdemeans our criminal justice system\u201d and is \u201can affront to the law\u201d not to be tolerated).\nIn this context, we observe the right to a jury trial is not only guaranteed by the Sixth Amendment to the United States Constitution, but under our North Carolina Constitution the right also can not be waived by a defendant who pleads not guilty. See N.C. Const, art. I, \u00a7 24; State v. Hudson, 280 N.C. 74, 80, 185 S.E.2d 189, 193 (1971), appeal after remand, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. denied, 414 U.S. 1160, 39 L. Ed. 2d 112 (1974). Further, a criminal defendant possesses an absolute constitutional right to plead not guilty and be tried before a jury, and \u201cshould not and [can] not be punished for exercising that right.\u201d State v. Langford, 319 N.C. 340, 345, 354 S.E.2d 523, 526 (1987).\nThe exercise of the right to a jury trial is thus considered no less fundamental in our jurisprudence than reliance upon the right to remain silent. Accordingly, prosecutorial argument complaining a criminal defendant has failed to plead guilty and thereby put the State to its burden of proof is no less impermissible than an argument commenting upon a defendant\u2019s failure to testify. Indeed, we discern no distinction between the two in terms of intrusion upon a criminal defendant\u2019s constitutional rights. We therefore hold that reference by the State to a defendant\u2019s failure to plead guilty is violative of his Sixth Amendment right to a jury trial.\nIn the case sub judice, defendant contends the prosecutor imper-missibly commented upon his failure to plead guilty as well as upon his failure to testify. Because both allegations involve constitutional error, our decision whether to award a new trial involves an identical inquiry in either event. N.C. Gen. Stat. \u00a7 15A-1443(b) (1988).\nWe obviously must first determine whether the State in actuality commented improperly upon the defendant\u2019s exercise of a constitutional right; if so, constitutional error has occurred. Baymon, 336 N.C. at 758, 446 S.E.2d at 6. The error is not cured by later instruction in the court\u2019s jury charge upon the rights impermissibly referred to. State v. Reid, 334 N.C. 551, 556, 434 S.E.2d 193, 197 (1993). However, the error may be cured by \u201c \u2018withdrawal pf the remark or by a[n immediate] statement from the court that it was improper, followed by an instruction to the jury not to consider [it]\u2019 \u201d. Id. (quoting State v. McCall, 286 N.C. 472, 487, 212 S.E.2d 132, 141 (1975)). Absent effective remedial measures, automatic reversal is not necessarily mandated, but the State must demonstrate to the appellate court that the error is harmless beyond a reasonable doubt. Id. at 557, 434 S.E.2d at 198; G.S. \u00a7 15A-1443(b). Overwhelming evidence of guilt may render constitutional error harmless. State v. Brown, 306 N.C. 151, 164, 293 S.E.2d 569, 578, cert. denied, 259 U.S. 1080, 74 L. Ed. 2d 642 (1982) (citing Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284 (1969)).\nWe begin by observing that the prosecutor\u2019s comments asserting defendant was \u201chiding behind the law\u201d and \u201csticking the law in somebody\u2019s eye,\u201d even construed in the light most favorable to the State, Baymon, 336 N.C. at 758, 446 S.E.2d at 6, may only be interpreted as referring directly either to defendant\u2019s exercise of his right to a jury trial or to his failure to testify, or indeed to both. Upon defendant\u2019s objections to the portions of the Assistant District Attorney\u2019s argument quoted above, the trial court overruled each objection and offered no curative instruction (although later in its jury charge instructed upon both the presumption of innocence and the defendant\u2019s privilege not to testify). By failing to take the required curative measures at the time of the remarks and the objection thereto, the trial court committed error violating defendant\u2019s constitutional rights. Reid, 334 N.C. at 557, 434 S.E.2d at 197.\nWe therefore examine whether the State has met its burden of showing the error was harmless beyond a reasonable doubt. Defendant asserts a new trial is required under Reid (Court unable to conclude the error \u201chad no bearing on the jury\u2019s inference of the requisite intent for the felony\u201d charged). Id. at 558, 434 S.E.2d at 198; see also Baymon, 336 N.C. at 758-59, 446 S.E.2d at 6 (in view of conflicting medical evidence, Court could not conclude error was harmless beyond a reasonable doubt). The State counters that the evidence of defendant\u2019s guilt was overwhelming.\nOur reading of the record in the case sub judice leaves no doubt the trial court\u2019s error was harmless, Brown, 306 N.C. at 164, 293 S.E.2d at 578, in that the evidence against defendant was substantial, cumulative and compelling. As previously noted, three witnesses provided a detailed description of defendant\u2019s actions in striking the two victims with his automobile. We reiterate the evidence showed that defendant, immediately following an altercation with Santiago, drove directly at Howard and Santiago as they proceeded no more than a foot away from an apartment building wall. After hitting the two, defendant\u2019s station wagon struck the building with such force as to crack the brick wall, crush the drain pipe and gas meter, and to render the vehicle inoperable despite defendant\u2019s attempts to restart it. He then left the scene without inquiring of the victims or seeking assistance for them, was located by police officers standing in some woods a half mile from the scene, possessed the keys to the station wagon, and gave a false name to investigating officers.\nIn summary, although the trial court erred by overruling defendant\u2019s objections to the prosecutor\u2019s arguments and by failing immediately thereon to give curative instructions to the jury, the error was harmless beyond any reasonable doubt given the overwhelming evidence of defendant\u2019s guilt.\nB.\nDefendant\u2019s final contention is that the Assistant District Attorney inappropriately commented upon defendant\u2019s character which was not in issue in this case.\nA prosecutor should refrain from making characterizations relating to a defendant which are calculated to cause prejudice before the jury \u201cwhen there is no evidence from which such characterizations may legitimately be inferred.\u201d State v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975). However, whether counsel has abused the wide latitude accorded closing argument is a matter ordinarily left to the sound discretion of the trial judge. State v. Myers, 299 N.C. 671, 680, 263 S.E.2d 768, 774 (1980). The exercise of this discretion will not be reviewed on appeal \u201cunless there be such gross impropriety in the argument as would likely influence the verdict of the jury,\u201d id., and a new trial will be awarded only in cases of extreme abuse. State v. Bailey, 49 N.C. App. 377, 384, 271 S.E.2d 752, 756 (1980), disc. review denied, 301 N.C. 723, 276 S.E.2d 288 (1981).\nIn the case sub judice, defendant points out the assistant district attorney referred to him as a \u201ccoward.\u201d Assuming arguendo this characterization was not based upon any evidence introduced at trial, it constituted error. See State v. Davis, 45 N.C. App. 113, 115, 262 S.E.2d 329, 330 (1980) (prosecutor\u2019s statement calling defendant \u201cS.O.B.\u201d is error). However, in view of the substantial evidence of defendant\u2019s guilt reviewed above and given the isolated nature of this remark, we conclude the effect could only have been de minimis. State v. Sexton, 336 N.C. 321, 363, 444 S.E.2d 879, 903, cert. denied, - U.S. \u2014 , 130 L. Ed. 2d 429 (1994) (calling defendant \u201cliar\u201d nonprejudicial error due to overwhelming evidence of guilt). This assignment of error therefore fails.\nNo error.\nJudges GREENE and McCRODDEN concur.\nJudge McCRODDEN concurred prior to 15 December 1994.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Robin W. Smith, for the State.", "Assistant Public Defender Stanley Hammer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ANDERSON THOMPSON\nNo. 9318SC1062\n(Filed 21 February 1995)\n1. Assault and Battery \u00a7 112 (NCI4th)\u2014 aggravated and misdemeanor assaults with vehicle \u2014 defendant\u2019s hearsay statements \u2014 instruction on accident not required\nHearsay statements by defendant, who struck the victims with his vehicle as they ran along the side of an apartment building, that he didn\u2019t \u201cmean\u201d to injure the victims and that he \u201caccidentally\u201d ran over them did not constitute substantial evidence that required the trial court to instruct the jury on the defense of accident where the State offered uncontradicted evidence that defendant intentionally drove his vehicle directly toward the victims; after striking them, the vehicle struck the building with such force as to leave it inoperable; and there were no skid marks or other signs indicating that defendant attempted to brake the vehicle and no evidence that the vehicle suffered some mechanical defect.\nAm Jur 2d, Trial \u00a7 1259.\n2. Criminal Law \u00a7 468 (NCI4th)\u2014 closing argument \u2014 defendant\u2019s failure to plead guilty \u2014 improper comment on exercise of right to jury trial\nThe prosecutor\u2019s argument that a criminal defendant has failed to plead guilty and thereby put the State to its burden of proof constitutes an improper comment on the defendant\u2019s exercise of his Sixth Amendment right to a jury trial.\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n3. Criminal Law \u00a7\u00a7 427, 468 (NCX4tli)\u2014 closing argument\u2014 exercise of right to jury trial \u2014 failure to testify \u2014 improper comments \u2014 absence of curative actions \u2014 harmless error\nThe prosecutor\u2019s comments during his closing argument that defendant was \u201chiding behind the law\u201d and that he was \u201csticking the law in somebody\u2019s eye\u201d were improper references to defendant\u2019s exercise of his right to a jury trial, defendant\u2019s failure to testify, or both, and the trial court committed error violating defendant\u2019s constitutional rights by failing to take curative measures at the time of the remarks and defendant\u2019s objection thereto. HowAver, this error was harmless beyond \u00e1 reasonable doubt in light of the overwhelming evidence of defendant\u2019s guilt.\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq., 577 et seq.\nViolation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused\u2019s failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n4. Criminal Law \u00a7 431 (NCI4th)\u2014 closing argument \u2014 reference to defendant as coward \u2014 harmless error\nAssuming that the prosecutor\u2019s reference to defendant as a \u201ccoward\u201d in his closing argument was not based upon any evidence introduced at trial, it was improper, but the effect of the remark was de minimis in light of the overwhelming evidence of defendant\u2019s guilt and the isolated nature of the remark.\nAm Jur 2d, Trial \u00a7\u00a7 681, 682.\nNegative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial \u2014 modern cases. 88 ALR4th 8.\nAppeal by defendant from judgments entered 8 July 1993 by Judge Russell G. Walker in Guilford County Superior Court. Heard in the Court of Appeals 23 August 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General Robin W. Smith, for the State.\nAssistant Public Defender Stanley Hammer for defendant-appellant." }, "file_name": "0033-01", "first_page_order": 65, "last_page_order": 76 }