{ "id": 11656213, "name": "STATE OF NORTH CAROLINA v. GARY LEONARD SHOPE, Defendant", "name_abbreviation": "State v. Shope", "decision_date": "1998-02-17", "docket_number": "No. COA97-61", "first_page": "611", "last_page": "616", "citations": [ { "type": "official", "cite": "128 N.C. App. 611" } ], "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": "314 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527021 ], "year": 1984, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0272-01" ] }, { "cite": "423 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "498", "parenthetical": "quoting State v. Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984)" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524137 ], "year": 1992, "pin_cites": [ { "page": "333", "parenthetical": "quoting State v. Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0330-01" ] }, { "cite": "312 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525705 ], "year": 1984, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0600-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "786" }, { "page": "787" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "476 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867525 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0583-01" ] }, { "cite": "372 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "323 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564109 ], "year": 1988, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0208-01" ] }, { "cite": "112 L. Ed. 2d 782", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "498 U.S. 1051", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6557120, 6556992, 6557378, 6557190, 6557223, 6557256, 6557095, 6557032, 6557292, 6556976, 6557076, 6556952, 6557051 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/498/1051-08", "/us/498/1051-03", "/us/498/1051-13", "/us/498/1051-09", "/us/498/1051-10", "/us/498/1051-11", "/us/498/1051-07", "/us/498/1051-04", "/us/498/1051-12", "/us/498/1051-02", "/us/498/1051-06", "/us/498/1051-01", "/us/498/1051-05" ] }, { "cite": "395 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "327 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495160 ], "year": 1990, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0319-01" ] }, { "cite": "476 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "399", "parenthetical": "citing State v. Sanders, 327 N.C. 319, 342, 395 S.E.2d 412, 427 (1990), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991)" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888742 ], "year": 1996, "pin_cites": [ { "page": "142", "parenthetical": "citing State v. Sanders, 327 N.C. 319, 342, 395 S.E.2d 412, 427 (1990), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0136-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "291", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "page": "711", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "410", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "481", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] } ], "analysis": { "cardinality": 788, "char_count": 13498, "ocr_confidence": 0.745, "pagerank": { "raw": 5.7179550411197275e-08, "percentile": 0.3587630012406129 }, "sha256": "5a6d98c0df59bafafd9e89b59fd0e8aef05b3fab22c15b5fbc3d95b6543879b7", "simhash": "1:a3768f2ee1479971", "word_count": 2153 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY LEONARD SHOPE, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDefendant Gary Leonard Shope appeals from a judgment entered upon a jury verdict convicting him of voluntary manslaughter in the 5 September 1991 beating death of Lillian Turpin Porter (hereinafter \u201cPorter\u201d). At trial, the State presented the following evidence: In the weeks before her murder, Porter lived with defendant, her boyfriend of two years, at a campsite by Lake Santeelah in Graham County, North Carolina. On the afternoon of 5 September 1991, defendant returned to the campground after visiting with his nephew to find Porter at the neighboring campsite of Jeffrey Sanford and Lewis Griggs. She had been drinking, and she accused defendant of stealing her car. The couple argued heatedly for several minutes, but the argument eventually died down, and the couple remained at the Sanford-Griggs campsite, talking and drinking whisky. Later that evening, Griggs passed out, so defendant, Porter, and Sanford moved the party to the couple\u2019s campsite. Once again, defendant and Porter began to quarrel. However, when Sanford threatened to shoot defendant if he did not leave, defendant complied.\nAfter defendant left, Porter told Sanford that defendant had been beating her for a week and showed him a wound on her shoulder that she claimed defendant had inflicted. Then, Sanford kissed Porter, and defendant witnessed this, having returned to the campsite without their knowledge. When Porter discovered defendant\u2019s presence, she insisted that Sanford go back to his campsite to check on Griggs. He did, and moments later, he heard Porter cry out, \u201cGod, don\u2019t kill me! You\u2019ve got me killed now!\u201d Porter continued to scream as Sanford ran back to the couple\u2019s campsite. When he reached the campsite, he found Porter lying face down in a pool of blood. Defendant was gone.\nThe police arrived at the campsite shortly after Sanford summoned help. At the scene, the investigating officers discovered a bloody tree branch, approximately three and one-half to four feet long, broken into three pieces and lying near Porter\u2019s body. In addition, they found a bloody towel, dentures, bone fragments, and teeth. Dr. William Selby, the pathologist who performed the autopsy on Porter\u2019s body, determined that she had suffered massive trauma to her face, neck, and head. Dr. Selby listed the cause of death as multiple blunt trauma to the head, but noted that suffocation could also have caused Porter\u2019s death, due to blood in her airway or swelling of her windpipe.\nFollowing an extensive search, the police located and arrested defendant on 10 September 1991. Defendant admitted that he struck Porter in the face and mouth with a stick and that he wiped off the blood with a towel. Defendant stated that he then grabbed two pints of liquor, some blankets, and Porter\u2019s purse and fled into the woods.\nAt trial, the jury found defendant guilty of voluntary manslaughter. During sentencing, the trial court found both aggravating and mitigating factors. The court, however, determined that the aggravating factors outweighed the mitigating factors and sentenced defendant to imprisonment for twenty years, a term exceeding the six-year presumptive sentence. Defendant appeals.\nDefendant first asserts that the trial court erred in failing to intervene ex mero motu to prohibit the prosecutor\u2019s repeated insinuations during closing argument that defendant\u2019s own attorney doubted the credibility of his testimony. Defendant contends that despite his failure to object at trial, the prosecutor\u2019s comments were so grossly improper that the court\u2019s lack of intervention resulted in a violation of defendant\u2019s due process rights under the United States and North Carolina Constitutions. We cannot agree.\n\u201cIt is well settled that the arguments of counsel are left largely to the control and discretion of the trial judge and that counsel will be granted wide latitude in the argument of hotly contested cases.\u201d State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (citations omitted). To that end, counsel are permitted to argue the evidence presented and all inferences reasonably drawn therefrom. Id. (citations omitted). \u201cEven so, counsel may not, by argument . . ., place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs, and personal opinions not supported by the evidence.\u201d State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975) (citations omitted).\nDefense counsel must object, and thereby, call the court\u2019s attention to any improper comments made by the prosecutor during his or her closing argument to the jury. State v. Wilder, 124 N.C. App. 136, 142, 476 S.E.2d 394, 399 (1996) (citing State v. Sanders, 327 N.C. 319, 342, 395 S.E.2d 412, 427 (1990), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991)). Absent such an objection, our review is limited to a determination of whether, in light of all the circumstances, the prosecutor\u2019s argument was \u201c \u2018so grossly improper that the trial court abused its discretion in failing to intervene ex mero motu to correct the error.\u2019 \u201d Id. (quoting State v. Allen, 323 N.C. 208, 226, 372 S.E.2d 855, 865 (1988)). In any case, where the trial court\u2019s instructions to the jury cure the prosecutor\u2019s alleged improper arguments, the court\u2019s failure to correct the arguments ex mero mo tu will not constitute prejudicial error. See id.; State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996).\nIn the case before us, defendant takes issue with several statements made by the prosecutor during his closing argument. For instance, regarding an alibi offered by defense counsel in his closing, the prosecutor said,\n[Defense counsel] is saying just don\u2019t believe anything [defendant] says, believe me, [defense counsel], when I stand up and testify as a witness telling you about Plan C.\nDefendant also points to three additional remarks made by the prosecutor which suggested that defendant\u2019s attorney did not believe his testimony to be credible. Assuming, without deciding, that these comments were beyond the scope of proper argument, the trial court\u2019s instructions to the jury remedied any error potentially resulting from the comments. The court specifically advised the jury that they \u201c[we]re the sole judges of the credibility of each witness\u201d and that they were to \u201cdecide for [them]selves whether to believe the testimony of any witness.\u201d We are, therefore, satisfied that the jury was adequately instructed against looking to anyone but themselves in judging whether to believe defendant\u2019s testimony. Thus, as we discern no abuse of discretion resulting in prejudice to the defendant, this argument is overruled.\nSecondly, defendant contends that the trial court erred in finding as an aggravating sentencing factor that the offense was especially heinous, atrocious, or cruel under North Carolina General Statutes section 15A-1340.4(a)(l)(f). Defendant maintains that because Porter was intoxicated when she was killed and because she \u201ccould have died in as little as five minutes,\u201d the court\u2019s finding had no basis in law or fact. Again, we disagree.\nOur Supreme Court, in State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983), set forth the standard for determining whether an offense is especially heinous, atrocious, or cruel under section 15A-1340.4(a)(1)(f) of the General Statutes. The Court held that, in cases decided under section 15A-1340.4(a)(1)(f), \u201cthe focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.\u201d Id. at 414, 306 S.E.2d at 786. Moreover, the Court stated that it \u201c[did] not consider it inappropriate in any case to measure the brutality of the crime by the extent of the physical mutilation of the body of the deceased.\u201d Id. at 415, 306 S.E.2d at 787.\nIn the instant case, the evidence overwhelmingly showed that Porter endured a savage and merciless beating at the hands of defendant. Dr. Selby testified that Porter\u2019s skull was fractured in places too numerous to count; that her brain was bruised so severely that it bled into her spinal fluid; that both of her cheekbones were broken; that her nose was broken and almost completely severed from her face; that her jawbone was broken and exposed through tom facial tissue in the lower part of her mouth; and that her hyoid bone and larynx were broken, which indicated especially severe trauma. Dr. Selby opined that the injuries inflicted to Porter\u2019s face would have been very painful and that it could have taken anywhere between five and thirty minutes for her to die. He testified further that it seemed unlikely that Porter was knocked unconscious by the first blow, because the defensive wounds to her arms, hands, and fingers \u201creflect[ed] a fairly high level of consciousness\u201d and confirmed that she fought to save her life.\nSanford\u2019s testimony also showed that Porter was conscious during the beating and that she was aware of her impending death. He stated that he heard Porter scream for several minutes and that she cried out, \u201cGod, don\u2019t kill me! You\u2019ve got me killed now!\u201d This evidence, viewed in the light most favorable to the State, establishes excessive brutality and physical pain not usually present in a case of voluntary manslaughter. Therefore, the court properly found that the offense was especially heinous, atrocious, or cruel. Defendant\u2019s argument, then, is unpersuasive.\nIn his final argument, defendant alleges that the trial court erred in failing to find that his relationship with Porter was an extenuating circ\u00famstance warranting mitigation of his sentence. Defendant argues that because he found Porter in another man\u2019s arms \u201conly moments before the killing,\u201d part of the blame for her death morally falls on her. We reject this argument, as it is wholly without merit.\nThe Fair Sentencing Act provides for a factor mitigating a defendant\u2019s sentence where, \u201cthe relationship between the defendant and the victim was .. . extenuating.\u201d N.C. Gen. Stat. \u00a7 15A-1340.4(a)(2)(i) (1988). This Court, however, has specifically interpreted this factor so as to exclude killings \u201cmotivated by jealousy or rage.\u201d State v. Puckett, 66 N.C. App. 600, 606, 312 S.E.2d 207, 211 (1984). Indeed, we have held that \u201c[t]he statute was meant to apply under \u2018circumstances that morally shift part of the fault for a crime from the criminal to the victim\u2019 but not \u2018to make homicides of spouses or relatives . . . less deserving of punishment than those of others.\u2019 \u201d State v. Neville, 108 N.C. App. 330, 333, 423 S.E.2d 496, 498 (1992) (quoting State v. Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984)).\nIn the case sub judice, defendant submits that in killing Porter, he acted out of jealousy. Still, he contends that the facts of this case compelled the court to find an extenuating circumstance, since defendant discovered Porter in the arms of another man \u201conly moments before the killing.\u201d Truly, defendant proposes a distinction without a difference, and we hold that the fatal beating in this case falls squarely within the \u201cjealous rage\u201d exclusion set forth in Puckett. Therefore, the trial court did not err in failing to find that defendant\u2019s relationship with Porter was a mitigating factor.\nWe note that defendant asserted twelve additional assignments of error that he declined to bring forth in his brief. Hence, they are considered to be abandoned. N.C.R. App. P. 28(b)(5).\nFor the foregoing reasons, we hold that defendant received a fair trial, free of prejudicial error.\nNo error.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Assistant Attorney General K. D. Sturgis, for the State.", "Appellate Defender Malcolm R. Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY LEONARD SHOPE, Defendant\nNo. COA97-61\n(Filed 17 February 1998)\n1. Criminal Law \u00a7 444 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 defendant\u2019s credibility \u2014 curative instructions\nThere was no abuse of discretion prejudicial to defendant in a manslaughter prosecution where the trial court did not intervene ex mero moto when the prosecution argued that defendant\u2019s own attorney doubted defendant\u2019s credibility. Assuming that these comments were beyond the scope of proper argument, the court\u2019s instructions that the jury were the sole judges of credibility remedies any error.\n2. Homicide \u00a7 760 (NCI4th)\u2014 manslaughter \u2014 Fair Sentencing Act \u2014 aggravating factor \u2014 heinous, atrocious or cruel\nThe trial court properly found as an aggravating factor when sentencing defendant for manslaughter that the killing of the victim was especially heinous, atrocious, or cruel where the evidence established excessive brutality and physical pain not usually present in a case of voluntary manslaughter. N.C.G.S. \u00a7 15A-1340.4(a)(l)(f).\n3. Homicide \u00a7 760 (NCI4th)\u2014 voluntary manslaughter \u2014 Fair Sentencing Act \u2014 jealous rage \u2014 not mitigating circumstances\nThe trial court did not err in a manslaughter prosecution by rejecting defendant\u2019s claim that his relationship with the victim constituted an extenuating circumstance warranting mitigation of his sentence where he claimed his killing of the victim resulted from finding her in the arms of another man moments before the killing. N.C.G.S. \u00a7 15A-1340.4(a)(2)(i).\nAppeal by defendant from judgment entered 28 June 1996 by Judge Claude S. Sitton in Graham County Superior Court. Heard in the Court of Appeals 8 October 1997.\nAttorney General Michael F Easley, by Assistant Attorney General K. D. Sturgis, for the State.\nAppellate Defender Malcolm R. Hunter, Jr., by Assistant Appellate Defender Constance H. Everhart, for defendant-appellant." }, "file_name": "0611-01", "first_page_order": 647, "last_page_order": 652 }