{ "id": 11242485, "name": "STATE OF NORTH CAROLINA v. LINDA MOONEY SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1999-12-07", "docket_number": "No. COA98-1623", "first_page": "649", "last_page": "661", "citations": [ { "type": "official", "cite": "135 N.C. App. 649" } ], "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": "433 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "334 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532266 ], "year": 1993, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0575-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "15" }, { "page": "15" }, { "page": "16" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "199" }, { "page": "199" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "418" }, { "page": "418" } ], "opinion_index": 0 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "184" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0175-01" ] }, { "cite": "84 L. Ed. 2d 369", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "469 U.S. 1230", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12108826, 12108839 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/1230-01", "/us/469/1230-02" ] }, { "cite": "319 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "311 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680504 ], "year": 1984, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0489-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "354 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "521" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "319 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741888 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "336" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0332-01" ] }, { "cite": "343 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "839" }, { "page": "839" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "683" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "385 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "statement offered to corroborate testimony is not hearsay" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522307 ], "year": 1989, "pin_cites": [ { "parenthetical": "statement offered to corroborate testimony is not hearsay" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0363-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "statement offered to show basis for subsequent conduct is not hearsay" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "parenthetical": "statement offered to show basis for subsequent conduct is not hearsay" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "476 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12835 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0162-01" ] }, { "cite": "261 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574128 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0126-01" ] }, { "cite": "346 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772035 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0590-01" ] }, { "cite": "395 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "409" }, { "page": "408" }, { "page": "408" } ], "opinion_index": 0 }, { "cite": "327 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495939 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "359" }, { "page": "357" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0346-01" ] }, { "cite": "129 L. Ed. 2d 881", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "512 U.S. 1246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39440, 39192, 39593 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/1246-03", "/us/512/1246-02", "/us/512/1246-01" ] }, { "cite": "436 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "335 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531885 ], "year": 1993, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0001-01" ] }, { "cite": "430 S.E. 905", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531831 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0039-01" ] } ], "analysis": { "cardinality": 1144, "char_count": 27976, "ocr_confidence": 0.737, "pagerank": { "raw": 5.768764410925906e-08, "percentile": 0.36050518775418955 }, "sha256": "a8d7df1cedbff4608177ae617ee48dd82e4b9f634ac648e46f35d88895a34957", "simhash": "1:176b5026559fdc3b", "word_count": 4720 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HORTON and EDMUNDS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LINDA MOONEY SMITH" ], "opinions": [ { "text": "WYNN, Judge.\nBefore her death, Ina Mooney, the 81-year old grandmother of defendant Linda Mooney Smith, resided at the Brian Center Nursing Home. She suffered from Alzheimer\u2019s Disease and many other medical conditions including incontinence for which she wore adult diapers. To prevent wandering, the Brian Center staff strapped her into bed each night with a \u201croll belt,\u201d a device which tied around her abdomen and to the sides of the bed.\nOn 11 February 1997, Ms. Smith visited her grandmother at the Brian Center. But Mrs. Mooney did not recognize her, prompting Ms. Smith to yell at her. And when Ms. Smith tried to take her grandmother back to her room, Mrs. Mooney resisted until a nurse came to their assistance. Ms. Smith again yelled at her grandmother for cooperating with the staff but not with her.\nLater while Ms. Smith fed her grandmother, staff members overheard her say \u201cShut your damn mouth. I want you to eat this. Eat this pudding or I\u2019ll shove it down your damn throat.\u201d The conversation stopped when the two employees entered Mrs. Mooney\u2019s room. Later, another employee heard Ms. Smith tell her grandmother to \u201cOpen your damn mouth and eat this damn food,\u201d and then saw Ms. Smith grab Mrs. Mooney by the collar and jerk her back and forth in her wheelchair. Ms. Smith left the Brian Center at about 5:30 pm and returned at about 8:30 pm.\nAround this time, the staff dressed Mrs. Mooney for bed in a nightgown and an adult diaper called a \u201cpromise pad.\u201d Since Mrs. Mooney would not stand up straight while the staff dressed her, the connecting tape on the promise pad was askew. The staff then put Mrs. Mooney into bed and attached the roll belt, which was clean from a recent wash. There were no bruises on her face. After the nurses left, Ms. Smith stayed with her grandmother, sitting in the geri-chair next to the bed.\nAt around 11:15 pm, Nurse Akon Eyo went into Mrs. Mooney\u2019s room where she found her alive and awake. Ms. Smith was still in the geri-chair. The nurse left to attend to another patient.\nAround midnight, staff member Alice Henderson went to Mrs. Mooney\u2019s room to change the promise pad but Ms. Smith told her that she had already changed the promise pad because Mrs. Mooney had a bowel movement. The room was dark and the bed curtain was closed. Ms. Henderson could not see Mrs. Mooney clearly \u2014 she could only see that Mrs. Mooney\u2019s head was not on the pillow, but was propped up against the headboard.\nMs. Smith left the room at about 12:05 am. On her way out, she told some other Brian Center employees that Mrs. Mooney was awake, talking, and laughing. A few minutes later, an alarm went off, signaling that someone had opened an outside door. Ms. Smith appeared and said that she had propped the door open while she had gone out to smoke and move her car. She also stated that she had seen four teenagers looking into the windows of the Brian Center. The Center called the police, but they found no trespassers. In the meantime, Ms. Smith returned to her grandmother\u2019s room.\nAlmost immediately, Ms. Smith came out of the room, covering her face with her hands and shaking. The staff members hurried in the room and found Mrs. Mooney dead. Her hair was messed up, her face was bruised, and blood came out of her ears and pooled under her eyes. The pillow was propped behind Mrs. Mooney\u2019s head, and her blood was smeared on the roll belt, which was loose on the side of the bed near where Ms. Smith had been sitting. The promise pad was still in place, and the nurses noted that its tape was askew, indicating that it was the same pad they had put on Mrs. Mooney themselves \u2014 not a new clean pad. In fact, no soiled pads were found in the room, despite Ms. Smith\u2019s claim that she had changed a dirty pad.\nAn autopsy revealed that Mrs. Mooney had died from asphyxiation. The bruising on her face was petechia \u2014 burst blood vessels\u2014 which create spots which are generally associated with asphyxiation deaths. Several areas on Mrs. Mooney\u2019s nose, right cheek, and chin did not have petechia \u2014 a phenomenon consistent with pressure being applied at those points. Her tongue and the area behind her ear were bruised. The bruising to the tongue was consistent with an object being crammed into Mrs. Mooney\u2019s mouth to stop the airway. The pathologist ruled out death by natural means, and opined that the victim was suffocated, choked and strangled, and one of those means or their combination resulted in her death.\nWithin days of Mrs. Mooney\u2019s death, Ms. Smith stated to her aunt that, \u201cI heard that it was a mercy killing, but there is no mercy to it because I don\u2019t believe in God. They say grandma\u2019s happy now, but I know that\u2019s not true because they will put her in the ground and the worms will eat her.\u201d\nMs. Smith was charged and tried for capital murder. A jury found her guilty of second degree murder and the court sentenced her to a term of not less than 189 months nor more than 236 months. She timely filed this appeal.\nI.\nMs. Smith first contends that the trial court erred by denying her motion to rehabilitate jurors excused for cause based on their views of the death penalty. We disagree.\nAs a general matter, a trial judge may not automatically deny the defendant\u2019s request for an opportunity to rehabilitate jurors. See State v. Brogden, 334 N.C. 39, 430 S.E. 905 (1993). However, \u201cwhere the record shows the challenge is supported by the prospective juror\u2019s answers to the prosecutor\u2019s and court\u2019s questions, absent a showing that further questioning would have elicited different answers, the court does not err by refusing to permit the defendant to propound questions about the same matter.\u201d State v. Gibbs, 335 N.C. 1, 35, 436 S.E.2d 321, 340 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994).\nAfter reviewing the record, we find that every prospective juror who was dismissed had made their opposition to the death penalty clear. The trial judge did not abuse his discretion by not allowing Ms. Smith to rehabilitate prospective jurors.\nIn any case, any error as to this point is harmless since Ms. Smith was convicted of second degree murder and therefore did not face the death penalty. Issues concerning \u201cdeath qualification\u201d go only to sentencing when the penalty is death. See State v. Robinson, 327 N.C. 346, 359, 395 S.E.2d 402, 409 (1990). Furthermore, both the United States Supreme Court and the Supreme Court of North Carolina have rejected the assertion that death qualification results in an unfair trial or a partial jury. See State v. Wingard, 317 N.C. 590, 346 S.E.2d 639 (1986); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137 (1986).\nII.\nMs. Smith next argues that the trial court erred by permitting various witnesses to offer a variety of speculative testimony. We disagree.\nA witness must testify to matters within his personal knowledge. N.C.R. Evid. 602 (1992). However, when a defendant \u201copens the door\u201d on cross-examination by asking certain questions, testimony that might otherwise be inadmissible is allowed. See State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984).\nIn this case, all of the evidence challenged by the defendant was either within the personal knowledge of the witness or was permitted due to Ms. Smith having opened the door to the subject on cross-examination.\nFor instance, Ms. Smith complains about testimony given by Lisa Hodge on re-direct examination concerning chart notations made by Nurse Durette. However, Ms. Smith herself first asked Ms. Hodge about the notations, opening the door for the prosecutor\u2019s follow-up questions.\nMs. Smith also objects to Alice Henderson\u2019s testimony in which she guessed the thoughts of Mary Onwuroh when she said \u201cI can\u2019t believe that is a family member.\u201d Ms. Onwuroh had already testified as to this incident. Ms. Henderson\u2019s speculation about the comment merely confirmed what Ms. Onwuroh had stated \u2014 that she was surprised to hear a family member speaking in harsh tones to a patient.\nFinally, Ms. Smith complains that Nurse Durette was allowed to testify that she was not sure, but she thought that Nurse Eyo said to her that Mrs. Mooney was awake at 11:00 pm. This evidence simply corroborated Ms. Eyo\u2019s earlier testimony, and in fact, the trial judge gave instructions to the jury that it was to be used only to corroborate Ms. Eyo\u2019s testimony. Under these circumstances, Nurse Durette\u2019s uncertainty would only have served to dilute the corroborative effect and therefore help the defendant.\nIII.\nMs. Smith next argues that the trial court erred in allowing the district attorney to ask leading questions to multiple witnesses. We disagree.\nLeading questions should not be used on direct examination of a \u25a0witness except as necessary to develop his testimony. N.C.R. Evid. 611(c) (1992). A leading question is one which, by its form or substance, suggests the answer. While leading questions ordinarily should not be allowed, the trial court has discretion to permit some leading questions, and we will reverse a ruling on the admissibility of a leading question only upon a showing of abuse of discretion. See State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).\nIn this case, there is no showing that the trial judge abused his discretion. The record shows that the questions that Ms. Smith objected to during trial were not so much \u201cleading\u201d as they were \u201cbridges\u201d or summaries of testimony. In general, the questions did not suggest a particular answer. The few questions that bordered on suggestion did so only to direct the attention of the witness to earlier statements. In any case, the responses went beyond a mere agreement with the question asked, but instead gave a reasoned explanation. As Ms. Smith recognizes, this case was long and complicated. Several witnesses testified to a variety of topics. Allowing the prosecutor to direct the witness\u2019s attention to a certain topic through the use of leading questions was not an abuse of discretion.\nIV.\nMs. Smith next argues that the trial court erred by not allowing her to ask nine different witnesses a variety of questions on cross-examination. We disagree.\nMs. Smith\u2019s arguments on this point are numerous; but, since we find no error in the trial court\u2019s rulings, we dismiss her claims with a blanket recitation as to why her proposed questions were improper. In most instances, her questions had either already been answered by the witness or were irrelevant to the issues before the jury. In other instances, the questions were confusing and/or argumentative. A few questions lacked sufficient basis. In one instance, the defense attorney incorrectly summarized the witness\u2019 testimony. Even taken all together, the exclusion of all of these questions did little to stymie Ms. Smith\u2019s ability to cross-examine witnesses.\nV.\nMs. Smith next presents a list of evidentiary rulings with which she disagreed. She generally asserts that most of these rulings violated the hearsay rule. She also argues that some demonstrative evidence was inaccurate. We disagree with all of her assertions.\nAn out-of-court statement offered in evidence to prove the truth of the matter asserted is not admissible. N.C.R. Evid. 801(c) (1992). Statements offered for other purposes are not hearsay. See, e.g., State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990) (statement offered to show basis for subsequent conduct is not hearsay); State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 825 (1989) (statement offered to corroborate testimony is not hearsay).\nMs. Smith objects to a number of statements offered by witnesses during the State\u2019s direct examination. However, nearly all of these statements explained subsequent conduct or corroborated prior testimony \u2014 they were not offered to prove the truth of the matter asserted. Therefore, the statements were all admissible. In addition, the trial court specifically limited the evidence by instructing the jury that the statements were not being offered to prove the matter asserted, but only to show the basis for the subsequent conduct or corroboration.\nMs. Smith also objects to a police officer\u2019s testimony that the time on his dispatch computer was accurate. The officer testified as to routine matters normally conducted in the regular course of his business. Although the State did not quite lay a proper foundation to show that the computer times were indeed accurate, this error was harmless and does not require reversal. Furthermore, Ms. Smith corrected this error by offering the same information during the officer\u2019s cross-examination.\nMs. Smith also complains of the introduction of her statement to the police which contained remarks she attributed to Mrs. Mooney. Her statement to the police was an admission of a party opponent, and therefore admissible under N.C.R. Evid. 801(d) (1992). The remarks made by Mrs. Mooney were not hearsay in that they were not spoken or offered to prove the truth of the matter asserted.\nFinally, Ms. Smith argues that the timeline used throughout the trial by the prosecutor inaccurately reflected the evidence and created a danger of unfair prejudice. However, she fails to show that the \u201cinaccuracies\u201d in the timeline were in any way prejudicial. Furthermore, the listed facts in the timeline were verified by each witness as that witness testified. Small changes in the way a phrase was written as compared to the way the witness spoke the phrase did not alter the substance of the evidence offered.\nThe trial court properly admitted all of the evidence.\nVI.\nMs. Smith\u2019s next argument encompasses three separate complaints as to the trial court\u2019s treatment of a statement made by her to her aunt on the telephone. We hold that none of these matters requires reversal.\nMs. Smith first challenges the admission of her statement: \u201cI heard it was a mercy killing, but there is no mercy to it because I don\u2019t believe in God. They say grandma\u2019s happy now, but I know that\u2019s not true because they will put her in the ground and the worms will eat her.\u201d Although Ms. Smith believes that this was the most damaging piece of evidence against her, and even refers to it as a \u201cconfession,\u201d we cannot say that it is any more inculpatory than any other evidence offered. In fact, arguably, the statement could be viewed as exculpatory.\nNonetheless, Ms. Smith argues that the trial court erred by denying her motion to have the jurors questioned concerning whether they had read about the statement in the local newspaper. After a voir dire hearing, the court decided to allow the statement into evidence. After the hearing, but before the statement was admitted, a local newspaper published the details of the hearing on the front page. The trial court denied Ms. Smith\u2019s motion to inquire if any jurors had read or heard about the publication. We hold that the trial court did not err.\nWhen there is a substantial reason to fear that the jury has become aware of improper and prejudicial matters, the trial court must question the jury as to whether such exposure has occurred and, if so, whether the exposure was prejudicial. See State v. Barts, 316 N.C. 666, 683, 343 S.E.2d 828, 839 (1986). However, other than the fact that the statement was in the paper, there is no basis to think that the jury had become aware of it. See State v. Langford, 319 N.C. 332, 336, 354 S.E.2d 518, 521 (1987); Barts, 316 N.C at 683, 343 S.E.2d at 839. Throughout the trial, consistent with the requirements of N.C. Gen. Stat. \u00a7 15A-1236(4) (1997), the judge repeatedly warned the jurors to avoid reading, watching, or listening to accounts of the trial. Absent a clearer suspicion that the jury was aware of the publication, the trial court did not err in refusing to question the jury about it. In fact, questioning the jury about whether they read the article may have done nothing more than alert them to a statement of which they were previously unaware. In any case, since the statement was thereafter admitted into evidence, there was no prejudice to Ms. Smith even if the jury had read the newspaper publication. See Langford, 319 N.C. at 336, 354 S.E.2d at 521.\nMs. Smith next argues that the trial court erred by not declaring a mistrial due to an alleged discovery violation. N.C. Gen. Stat. \u00a7 15A-903(a)(2) (1997) requires a prosecutor to disclose to the defendant the substance of any relevant statements made by the defendant, in possession of the State, and the existence of which is known to the prosecutor.\nIn the case at bar, the prosecutor knew about the statement before the trial, but did not divulge it until after the trial was underway. Instead of granting a mistrial, the trial court ordered all witnesses who had already testified to be recalled for further examination.\nA trial court is not required to impose sanctions for late discovery. Instead, it is a matter of discretion for the trial judge. N.C. Gen. Stat. \u00a7 15A-910 (1997); State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988). Sanctions will not be reversed on appeal absent a showing of abuse of discretion. See State v. Gardner, 311 N.C. 489, 506, 319 S.E.2d 591, 603 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985).\nIn the case at bar, the trial court allowed Ms. Smith to recall witnesses in light of the new evidence. The court noted that she had possession of the statement for at least four days prior to its introduction, and under those circumstances, it enacted a less drastic sanction than a mistrial or the exclusion of evidence. Furthermore, there is no showing that this late revelation upset her trial strategy or that she was otherwise prejudiced by the late discovery. In fact, Ms. Smith used the statement in her closing argument to her advantage. The trial court did not abuse its discretion in not declaring a mistrial.\nVII.\nMs. Smith next argues that the trial court erred by admitting two photographs of the grandmother\u2019s tongue after it had been removed from the head and sliced in half. Since these photographs were relevant to the cause of death, the trial court did not err in admitting them.\nDetermining the admissibility of a photograph is in the sound discretion of the trial court. See Robinson, 327 N.C. at 357, 395 S.E.2d at 408. The fact that a photograph is gruesome will not preclude its admission so long as it is used for illustrative purposes and so long as it is not so excessive or repetitive as to be aimed solely at unfairly prejudicing the jury. See id., 327 N.C. at 356, 395 S.E.2d at 408.\nIn the case at bar, the probative value of the photographs of the tongue outweighed any prejudicial effect. The State used the photos to help prove that the grandmother had something crammed down her throat. The bruising on the tongue helped show that Mrs. Mooney\u2019s death was caused by violent means and also helped illustrate the testimony of the pathologist who had explained how she died. The trial judge reviewed the photos before admitting them to the jury. There was no abuse of discretion as to the photographs.\nVIII.\nMs. Smith next argues that the trial court erred by allowing the prosecutor to argue, in closing argument, that she had big hands, was left-handed, was strong, and failed to react with tears for her grandmother. We disagree.\nThe prosecutor has wide latitude in the scope of his closing argument. See State v. Small, 328 N.C. 175, 184, 400 S.E.2d 413, 418 (1991). He must remain consistent with the record, but otherwise, the arguments of counsel are largely within the control of the trial court\u2019s discretion. See id., 328 N.C. at 185, 400 S.E.2d at 418. However, evidence includes not only what the jury hears from the stand, but what it observes in the courtroom. See State v. Brown, 320 N.C. 179, 199, 358 S.E.2d 1, 15, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nIn the case at bar, the prosecutor pointed out that Ms. Smith wrote with her left hand. He also told them that when they consider the circumstances of this case, they should consider the size of Ms. Smith\u2019s hands. He added, \u201cShe\u2019s 29 years old. She\u2019s young and she\u2019s strong.\u201d He elaborated no further on her strength, and given the context of his closing argument, the jury could reasonably have interpreted this to mean only that she was strong in relation to her 81-year-old grandmother. The prosecutor also drew attention to Ms. Smith\u2019s lack of reaction upon seeing the autopsy photographs. This too was a fact already \"observed by the jury \u2014 -the prosecutor merely reminded them of her behavior. All of the prosecutor\u2019s remarks were related to matters observable in the courtroom, something which is appropriate for the jury to consider. See Brown, 320 N.C. at 199, 358 S.E.2d at 15.\nMs. Smith also argues that the prosecutor\u2019s remarks about her hands and strength, etc., drew a negative inference for the jury regarding her failure not to take the witness stand in violation of her right to remain silent. A review of the record shows no hint that the prosecutor improperly mentioned Ms. Smith\u2019s failure to take the stand, nor do the references to her appearance suggest that the prosecutor improperly referred to her refusal to take the stand. Calling attention to her demeanor and appearance did not infringe upon her right not to testify because they were not directed at her failure to take the stand. See Brown, 320 N.C. at 200, 358 S.E.2d at 16.\nIX.\nMs. Smith lastly presents a catch-all type argument contending that the individual errors made during the course of the trial amount and rise to the level of reversible error when seen as a whole or on balance of this case. We disagree.\nHaving failed to point out any specific instance of error requiring reversal, Ms. Smith incorporates by reference, but does not specify, the numerous assignments of error included in the record. She urges this court to grant a new trial because the trial was full of errors so basic, so fundamental, and so lacking in fairness that justice was not done. See State v. Potts, 334 N.C. 575, 583, 433 S.E.2d 736, 740 (1993).\nAside from the fact that we will not review assignments of error that are not argued in the brief on appeal, Ms. Smith\u2019s last argument fails on its merits. We have found no instance of error in her case that is so basic, so fundamental, and so lacking in fairness that justice was not done.\nNo error.\nJudges HORTON and EDMUNDS concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Joan Herre Erwin, Assistant Attorney General, for the State.", "Davis Law Firm, by James A. Davis, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LINDA MOONEY SMITH\nNo. COA98-1623\n(Filed 7 December 1999)\n1. Jury\u2014 selection \u2014 death penalty \u2014 rehabilitation\nThe trial court did not abuse its discretion in a capital murder prosecution by refusing to allow defendant to rehabilitate jurors excused for cause based on their views of the death penalty where they had made their opposition clear. Absent a showing that further questioning would have elicited different answers, the court does not err by refusing to permit defendant to ask about the same matter. Moreover, the defendant here was convicted of second-degree murder.\n2. Evidence\u2014 cross-examination \u2014 door opened\nThe trial court did not err in a murder prosecution where defendant contended that the court had permitted speculative testimony, but all of the evidence was either within the personal knowledge of the witness or was permitted due to defendant having opened the door on cross-examination.\n3. Evidence\u2014 leading questions \u2014 directing witness\u2019s attention\nThe trial court did not abuse its discretion in a murder prosecution by allowing the district attorney to ask leading questions where the case was long and complicated and the questions either were \u201cbridges\u201d or summaries of testimony or were directing the attention of the witness to earlier statements.\n4. Evidence\u2014 cross-examination \u2014 questions proper\nThe trial court did not err in a murder prosecution by not allowing defendant to ask certain questions on cross-examination where the questions had already been answered, were irrelevant, were confusing or argumentative, lacked sufficient basis, or incorrectly summarized the witness\u2019s testimony.\n5. Evidence\u2014 hearsay \u2014 not offered to prove the truth of the matter asserted\nThere was no error in a murder prosecution where most of the statements objected to by defendant as hearsay explained subsequent conduct or corroborated prior testimony and so were not offered to prove the truth of the matter asserted. Additionally, the trial court gave a limiting instruction.\n6. Evidence\u2014 regular course of business \u2014 officer\u2019s dispatch time\nThere was no error in a murder prosecution where defendant objected to an officer\u2019s testimony that the time on his dispatch computer was accurate. Although the State did not quite lay a proper foundation, the error was harmless; furthermore, defendant offered the same information during the officer\u2019s cross-examination.\n7. Evidence\u2014 admission of party opponent \u2014 admissible\nThe trial court did not err in a murder prosecution by admitting defendant\u2019s statement to police, which contained remarks defendant attributed to the victim. Defendant\u2019s statement was an admission of a party opponent and the remarks by the victim were not spoken or offered to prove the truth of the matter asserted.\n8. Evidence\u2014 time line \u2014 accuracy\nThere was no prejudice in a murder prosecution where defendant argued that a time line used by the prosecution was inaccurate but the facts listed on the time line were verified by each witness as that witness testified and defendant failed to show that \u201cinaccuracies\u201d were in any way prejudicial. Small changes in the way a phrase was written as compared to the way the witness spoke the phrase did not alter the substance.\n9. Evidence\u2014 inculpatory statement \u2014 newspaper publication \u2014 no prejudice\nThere was no prejudice in a murder prosecution where the court held a voir dire concerning a statement by defendant to an aunt that she had heard that this was a mercy killing, the court decided to allow the statement, and a local newspaper published the details of the hearing before the statement was admitted. Assuming that the statement was inculpatory, there was no basis to think that the jury became aware of its publication in the local newspaper and it was subsequently admitted into evidence.\n10.Discovery\u2014 sanctions \u2014 witnesses recalled \u2014 no abuse of discretion\nThere was no abuse of discretion in a murder prosecution where the State did not divulge a statement by defendant before the trial; the court noted that defendant was in possession of the statement for at least four days prior to its introduction; and, rather than granting a mistrial, the court ordered all witnesses who had testified to be recalled for further examination. There was no showing that the late revelation upset defendant\u2019s trial strategy or that she was otherwise prejudiced.\n11. Evidence\u2014 photographs \u2014 murder victim\nThe trial court did not abuse its discretion in a murder prosecution by admitting two photographs of the victim\u2019s tongue after it had been removed from her head and sliced in half. The photographs were relevant to the cause of death and the probative value outweighed any prejudicial effect.\n12. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 defendant\u2019s appearance and demeanor\nThe trial court did not err in a murder prosecution by allowing the prosecutor to argue in closing that defendant had big hands, was left-handed, was strong, and failed to react with tears for her murdered grandmother. All of the prosecutor\u2019s remarks were related to matters observable in the courtroom and, despite defendant\u2019s contention, calling attention to defendant\u2019s demeanor and appearance did not infringe upon her right not to testify because they were not directed at her failure to take the stand.\nAppeal by defendant from judgment entered 17 December 1997 by Judge Thomas W. Seay, Jr. in Superior Court, Rowan County. Heard in the Court of Appeals 21 October 1999.\nMichael F. Easley, Attorney General, by Joan Herre Erwin, Assistant Attorney General, for the State.\nDavis Law Firm, by James A. Davis, for the defendant." }, "file_name": "0649-01", "first_page_order": 683, "last_page_order": 695 }