{ "id": 9188605, "name": "STATE OF NORTH CAROLINA v. CARLOS MAURICE FRINK", "name_abbreviation": "State v. Frink", "decision_date": "2003-07-01", "docket_number": "No. COA02-570", "first_page": "581", "last_page": "594", "citations": [ { "type": "official", "cite": "158 N.C. App. 581" } ], "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": "262 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "329-30" }, { "page": "330" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547728 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "114-15" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0113-01" ] }, { "cite": "484 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "839", "parenthetical": "holding no prejudicial error despite prosecutor's argument" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709852 ], "year": 1997, "pin_cites": [ { "page": "268", "parenthetical": "holding no prejudicial error despite prosecutor's argument" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0262-01" ] }, { "cite": "546 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "375", "parenthetical": "holding prejudicial error because prosecutor's argument" } ], "opinion_index": 0 }, { "cite": "353 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135708 ], "year": 2001, "pin_cites": [ { "page": "509", "parenthetical": "holding prejudicial error because prosecutor's argument" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0504-01" ] }, { "cite": "357 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "357 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "weight": 3, "opinion_index": 0 }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "427 F.2d 1290", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2243514 ], "year": 1970, "pin_cites": [ { "page": "1292" } ], "opinion_index": 0, "case_paths": [ "/f2d/427/1290-01" ] }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "152", "parenthetical": "quoting United States v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "year": 1993, "pin_cites": [ { "page": "224", "parenthetical": "quoting United States v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "534 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "615", "parenthetical": "where the trial court intervened ex mero motu when the prosecutor during closing argument was agitated, approached the defense table and shouted rhetorical questions at defense counsel while brandishing the pistol introduced into evidence" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497067 ], "year": 2000, "pin_cites": [ { "page": "485", "parenthetical": "where the trial court intervened ex mero motu when the prosecutor during closing argument was agitated, approached the defense table and shouted rhetorical questions at defense counsel while brandishing the pistol introduced into evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0471-01" ] }, { "cite": "467 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "342 N.C. 772", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795994 ], "year": 1996, "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0772-01" ] }, { "cite": "153 L. Ed. 2d 791", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)" } ], "opinion_index": 0 }, { "cite": "536 U.S. 930", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254400, 1255201, 1254912, 1255398, 1255087, 1254705, 1254609, 1254996, 1254485, 1254614, 1254871, 1255094, 1254524, 1255069 ], "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)" } ], "opinion_index": 0, "case_paths": [ "/us/536/0930-02", "/us/536/0930-03", "/us/536/0930-01", "/us/536/0930-13", "/us/536/0930-08", "/us/536/0930-09", "/us/536/0930-07", "/us/536/0930-11", "/us/536/0930-14", "/us/536/0930-04", "/us/536/0930-06", "/us/536/0930-05", "/us/536/0930-10", "/us/536/0930-12" ] }, { "cite": "559 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)" } ], "opinion_index": 0 }, { "cite": "354 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138416, 138377, 138354, 138331 ], "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0575-03", "/nc/354/0575-02", "/nc/354/0575-04", "/nc/354/0575-01" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "592" }, { "page": "592" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "427" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "155 L. Ed. 2d 1074", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "135" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "131" }, { "page": "133" }, { "page": "131" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "357 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491533 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "101", "parenthetical": "quoting State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)" }, { "page": "102" }, { "page": "102-03" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0068-01" ] }, { "cite": "360 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9052 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "269" }, { "page": "1221" } ], "opinion_index": 0, "case_paths": [ "/us/360/0264-01" ] }, { "cite": "459 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "217", "parenthetical": "quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221 (1959)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793227 ], "year": 1995, "pin_cites": [ { "page": "16", "parenthetical": "quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221 (1959)" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0001-01" ] }, { "cite": "571 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511532 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0418-01" ] }, { "cite": "559 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365770 ], "year": 2002, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0310-01" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "516 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "118", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132292 ], "year": 1999, "pin_cites": [ { "page": "427", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0411-01" ] }, { "cite": "560 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "184", "parenthetical": "quoting State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987))" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367526 ], "year": 2002, "pin_cites": [ { "page": "607", "parenthetical": "quoting State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987))" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0600-01" ] }, { "cite": "273 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142780 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/us/273/0510-01" ] }, { "cite": "499 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318776 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "310" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "558 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "92", "parenthetical": "quoting Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 331 (1991)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220122 ], "year": 2002, "pin_cites": [ { "page": "142", "parenthetical": "quoting Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 331 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0136-01" ] } ], "analysis": { "cardinality": 1126, "char_count": 29491, "ocr_confidence": 0.774, "pagerank": { "raw": 6.939200857422189e-08, "percentile": 0.4209295599859297 }, "sha256": "58971eca1dd39750ba5a9d90fb1cbd29431ed87495f7e1b6d7aa7273e03de2cd", "simhash": "1:8b71506eb72d08ca", "word_count": 4742 }, "last_updated": "2023-07-14T17:16:33.883812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CARLOS MAURICE FRINK" ], "opinions": [ { "text": "CALABRIA, Judge.\nCarlos Maurice Frink (\u201cdefendant\u201d) appeals judgments entered 7 March 2001 by Judge William C. Gore, Jr. (\u201cJudge Gore\u201d) in Cumberland County Superior Court. Defendant asserts Judge Gore improperly admitted evidence of a codefendant\u2019s sentencing condition, and erred in permitting certain remarks by the prosecutor in closing argument. We find no prejudicial error.\nThe State\u2019s evidence tended to show the following facts. Defendant was a member of a gang known as the Crips. Tameika Douglas (\u201cDouglas\u201d), another gang member, testified for the State. On 17 August 1998, the gang decided to steal a car. Three newer members of the gang were sent out with instructions to return with a car and the owner in the trunk. They accosted Debra Alice Cheeseborough (\u201cCheeseborough\u201d), took her money and jewelry, put her in the trunk of the car and returned to meet the remaining gang members. Defendant searched through belongings in Cheeseborough\u2019s car. Defendant and other older members of the gang met and decided to kill Cheeseborough. Defendant, Douglas, and other members of the gang drove, with Cheeseborough in the trunk, to a secluded area. The gang formed a semicircle around Cheeseborough and let her out of the trunk. Defendant instructed another member to shoot Cheeseborough in the head. The other member repeatedly shot Cheeseborough, and the gang left.\nThe gang met and agreed to steal another car. Douglas and other members got into Cheeseborough\u2019s car and drove around searching for the car. After following a number of cars, they finally followed and blocked a car occupied by Susan Raye Home Moore (\u201cMoore\u201d) and Tracy Rose Lambert (\u201cLambert\u201d). They forced Moore and Lambert out of the car and into the trunk. Douglas took their money and jewelry. The group returned to the trailer, where defendant and other leaders were waiting. Defendant took the purses into the trailer and removed the money. The gang then drove in Moore\u2019s and Cheeseborough\u2019s cars into the country. They again circled the trunk of the car containing the victims. One member assisted Lambert out, and shut Moore in the trunk. Lambert was then taken by the arm, walked into the field, forced to her knees and shot in the head. A different member then took the gun, and helped Moore out of the car. Moore began screaming when she saw Lambert dead. This member then walked Moore in a different direction, forced her to her knees and attempted to shoot her. After the gun jammed, he took out a knife to kill her. Moore plead \u201cPlease don\u2019t cut me. If you are going to kill me, then shoot me because I don\u2019t want to suffer.\u201d The man then repeatedly attempted to fire the gun, which continued to jam; on the fourth time, the gun fired and shot Moore in the head. The gang returned to the trailer and dispersed.\nThe next day, upon learning that Cheeseborough was alive, defendant, Douglas and other members of the gang took Cheeseborough\u2019s car and drove to Myrtle Beach. The police subsequently apprehended the group at a motel in Myrtle Beach.\nDefendant was arrested, charged and convicted of numerous crimes including, inter alia, attempted first-degree murder, first-degree murder, first-degree kidnapping and conspiracy charges. Defendant was sentenced to a total of 1,570 months to 1,997 months and two terms of life imprisonment without parole. His sentences were imposed consecutively.\nDefendant appeals asserting the trial court erred by: (I) admitting \u201cevidence regarding the plea agreement codefendant Douglas had with the trial court[;]\u201d and (II) permitting certain comments in the State\u2019s closing argument.\nI. Douglas\u2019 Sentencing Condition\nState\u2019s Exhibit 171 is a transcript of Douglas\u2019 open plea with the court, wherein after Douglas pled guilty to all the charges, the court consolidated them \u201con condition that the defendant give truthful testimony in any proceedings if called upon to do so by the State of North Carolina.\u201d The court then sentenced Douglas to concurrent sentences for her crimes, including two terms of life imprisonment without parole. Regarding the condition, Douglas testified at defendant\u2019s trial:\nState: All right. Then over on the back, on the top of the back side of that page, would you tell us, please, ma\u2019am, what question 14 reads?\nDouglas: \u2018The prosecutor and your lawyer have informed the Court that these are all the terms and conditions of your plea.\u2019 Do you want me to read the answer?\nState: Yes, ma\u2019am.\nDouglas: The defendant agrees to plead guilty as charged to all counts in 99 CRS 1543 plus 99 CRS 2708 and has\u2019 now plea agreed\u2014\nState: And has what?\nDouglas: \u2018No plea agreement with the State of North Carolina.\u2019 State: Okay. Go ahead.\nDouglas: \u2018The Court will consolidate all counts in 99 CRS 1543 plus 99 CRS 2708 plus sentencing on condition that the defendant give truthful testimony in any proceedings if called upon to do so by the State of North Carolina.\u2019\nState: Okay. And did you have a plea agreement with the state at all?\nDouglas: No, ma\u2019am.\nState: Okay. Now, Ms. Douglas, as you sit before this jury right now, do you now have or have you ever had any sort of plea agreement with Mr. Grannis, with Mr. Scott, with me, with anyone from the district attorney\u2019s office?\nDouglas: No, ma\u2019am.\nState: And so you\u2019re testifying why?\nDouglas: Testifying for the part of this transcript that the judge has signed that I testify truthfully if called upon by the state.\nDefendant asserts the admission of the Exhibit 171 and Douglas\u2019 testimony that she was present pursuant to an agreement with the trial court, and not with the State, constitutes structural and plain error. Defendant further asserts the trial court committed plain error in its instruction to the jury regarding Douglas\u2019 sentencing condition.\n\u201c \u2018[Structural error\u2019 is a \u2018defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.\u2019 \u201d State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 331 (1991)). However, our Supreme Court has recognized the rarity of structural error, and noted the United States Supreme Court has found it in only a limited number of cases wherein the essential structure of our justice system was implicated. Id. Structural error may arise by the absence of an impartial judge. Id., (citing Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927)).\nAlternatively, defendant asserts the trial court\u2019s admission of the exhibit and testimony constituted plain error. Since defendant failed to object to the admission of this evidence at trial, defendant correctly asserts appellate review is limited to plain error. N.C. R. App. 10(c)(4) (2003). \u201cPlain error is error \u2018 \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d \u2019 \u201d State v. Parks, 148 N.C. App. 600, 607, 560 S.E.2d 179, 184 (2002) (quoting State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987))).\nA. Impartial Tribunal\nDefendant asserts his right to be tried by an impartial tribunal was violated because Judge Gore expressed his opinion of Douglas\u2019 testimony. Defendant argues the court expressed to the jury that it trusted Douglas to comply with the sentencing condition. Defendant explains that by sentencing Douglas before she complied with the condition, the court would have had no recourse had Douglas failed to testify. Therefore, defendant asserts, Judge Gore\u2019s trust of Douglas was apparent and improperly conveyed to the jury.\nIt is well established that \u201c[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d N.C. Gen. Stat. \u00a7 15A-1222 (2001). Our Court considers the totality of the circumstances to determine whether the judge has expressed an impermissible opinion. State v. Wilkerson, 148 N.C. App. 310, 317, 559 S.E.2d 5, 10, rev\u2019d on other grounds, 356 N.C. 418, 571 S.E.2d 583 (2002).\nConsidering the totality of the circumstances, we find no indication that Judge Gore\u2019s sentencing of Douglas prior to trial expressed an opinion to the jury. Defendant\u2019s assertion that the jury could or would deduce an implied opinion is unconvincing. The enforceability of the condition was not discussed before the jury or raised before the trial court. Moreover, Judge Gore\u2019s only comment regarding Douglas\u2019 veracity was in the jury instruction. There, Judge Gore told the jury to examine Douglas\u2019 testimony \u201cwith great care and caution in deciding whether or not to believe it\u201d because she was testifying as a condition of her sentence. Accordingly, we find Judge Gore did not express an improper opinion and find neither structural nor plain error.\nDefendant also asserts his right to be tried by an impartial tribunal was violated because \u201cthe trial court wanted the jury to validate his prior sentencing of Douglas.\u201d Defendant asserts the trial court\u2019s interest can be implied by the fact Judge Gore presided over both Douglas\u2019 open plea and defendant\u2019s trial. We find no support for this proposition, and accordingly hold there is no merit to defendant\u2019s argument that Judge Gore was not impartial, and overrule this assignment of error.\nWe note defendant correctly asserts that our system is structured such that the judge remains impartial. With regard to plea bargains, the judge\u2019s role is limited to acceptance or rejection of the bargain negotiated between defendant and the State. While our system permits the trial court judge to impose sentencing conditions, it does not permit this power to be utilized in substitution for the plea bargaining process. We expressly disapprove of such a practice. However, in the case at bar, we do not find the admission of evidence of Douglas\u2019 sentencing condition rises to the level of structural error.\nB. False Evidence\nDefendant asserts, alternatively, the court committed structural and plain error because the evidence constituted false evidence. Defendant explains the evidence was false since the sentencing condition was unenforcable under N.C. Gen. Stat. \u00a7 15A-1021, which governs plea bargains. Defendant asserts Judge Gore participated in misleading the jury by characterizing the sentencing condition as an agreement in his jury instruction. We disagree.\n\u201c \u2018[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.\u2019 \u201d State v. Williams, 341 N.C. 1, 16, 459 S.E.2d 208, 217 (1995) (quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221 (1959)). The evidence presented was entirely true. Douglas\u2019 guilty plea was an open plea of guilty, and not a plea agreement with the State. Douglas never had a plea agreement with the State. The court, in its discretion, consolidated her sentences to a single life sentence on the condition that she testify truthfully if called upon by the State. Defendant\u2019s argument regarding the knowing use of false evidence is based solely upon the assertion that the State and Judge Gore presented to the jury that the sentencing condition was enforceable, while defendant asserts it was not. However, there is no evidence that the enforceability of the condition was discussed at trial at all, nor, more importantly, before the jury. Accordingly, even assuming arguendo the condition is not enforceable, we cannot find either the State or Judge Gore knew it was not and purposefully implied to the jury it was. Therefore, defendant\u2019s assertion is without merit, and we cannot find the actions of the Judge and the State constituted presentation of known false evidence in violation of defendant\u2019s due process rights. Accordingly, we find neither structural nor plain error, and bverrule this assignment of error.\nC. Jury Instructions\nDefendant asserts the court committed plain error by instructing the jury to carefully consider Douglas\u2019 credibility in light of her agreement with the court. Defendant\u2019s assertion relied upon finding the court improperly admitted evidence of her sentencing condition, and in accordance with our decision, this assignment of error is overruled.\nII. State\u2019s Closing Argument\nDefendant asserts the trial court erred by permitting the State to make improper statements during closing argument during the guilt-innocence phase of the trial.\nOur standard of review of the prosecutor\u2019s statements depends on whether defendant objected at trial. If defendant objected, \u201cthis Court must determine whether \u2018the trial court abused its discretion by failing to sustain the objection.\u2019 \u201d State v. Walters, 357 N.C. 68, 101, - S.E.2d -, - (2003) (quoting State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)). \u201cWhen defendant fails to object to an argument, this Court must determine if the argument was \u2018so grossly improper that the trial court erred in failing to intervene ex mero motu.\u2019 \u201d Id., (quoting State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert. denied, - U.S. \u2014, 155 L. Ed. 2d 1074 (2003)).\nA. Failure to Intervene\nWe first address those statements to which defendant did not object. Under these circumstances, \u201c \u2018[o]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u2019 \u201d State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001), cert. denied, 354 N.C. 575, 559 S.E.2d 184, cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996)). The test for our Court is \u201c \u2018whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord. . . .\u2019 \u201d Walters, 357 N.C. at 102, - S.E.2d at \u2014 (quoting Jones, 355 N.C. at 133, 558 S.E.2d at 107). Defendant assigns error to the following argument:\nThere are some things I don\u2019t think you and I can explain. Why in the world \u2014 (walked over in front of defense table) \u2014 Mr. Frink, would a civilized man do this to a fellow human being? What joy and fun do civilized men find in doing these things, Mr. Frink? Why wouldn\u2019t one of these civilized human beings, Mr. Frink, have tried to protect Debra Cheeseborough and saved her from this barbaric attack? Why wouldn\u2019t one of them have gone back and offered her aid and help, Mr. Frink? You were there. (Walked back to podium.)\nDefendant argues these rhetorical questions were posed \u201cfor the purpose of irritating or provoking the defendant\u201d and accordingly the trial court should have intervened. We disagree, and do not find these rhetorical questions asked of defendant \u201cstrayed far enough from the parameters of propriety\u201d that the trial court abused its discretion by not intervening of its own accord. State v. Hill, 139 N.C. App. 471, 485, 534 S.E.2d 606, 615 (2000) (where the trial court intervened ex mero motu when the prosecutor during closing argument was agitated, approached the defense table and shouted rhetorical questions at defense counsel while brandishing the pistol introduced into evidence).\nDefendant also asserts it was error for the trial court not to intervene ex mero motu into the following argument:\nBut you need to think about what happened to these three ladies as they\u2019re in the trunk of the car. You need to think about what they went through as they ride around in the trunk of the car. Not knowing what\u2019s going to happen to them. And then, of course, the ultimate bad happening to them. Think about the suffering. Think about the torture. Think about the mental anguish. Think about it.\nGenerally, \u201c[a]n argument \u2018asking the jurors to put themselves in place of the victims will not be condoned. . . \u201d State v. McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993) (quoting United States v. Pichnarcik, 427 F.2d 1290, 1292 (9th Cir. 1970)). However, \u201c \u2018this Court has consistently allowed arguments where the prosecution has asked the jury to imagine the emotions and fear of a victim. . . .\u2019 \u201d Anthony, 354 N.C. at 428, 555 S.E.2d at 592 (quoting State v. Wallace, 351 N.C. 481, 529, 528 S.E.2d 326, 356 (2000)). Since this argument focused on the suffering and mental torture of the victims, we hold the trial court did not err by failing to intervene ex mero motu.\nB. Failure to Sustain the Objection\nWe next address those statements to which defendant objected at trial. Our standard of review is abuse of discretion. Walters, 357 N.C. at 102-03, \u2014 S.E.2d at -. \u201cApplication of the abuse of discretion standard to closing argument requires this Court to first determine if the remarks were improper.\u201d Id., 357 N.C. 101, \u2014 S.E.2d at \u2014. \u201c \u2018[I]mproper remarks include statements of personal opinion, personal conclusions, name-calling, and references to events and circumstances outside the evidence, such as the infamous acts of others.\u2019 \u201d Id., 357 N.C. 105, - S.E.2d at - (quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). Upon finding improper remarks were made, \u201c \u2018we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.\u2019 \u201d Id., 357 N.C. 101, - S.E.2d at - (quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). \u201cIn order to demonstrate prejudicial error, a defendant must show that there is a reasonable possibility a different result would have been reached had the error not occurred.\u201d State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375 (2001) (holding prejudicial error because prosecutor\u2019s argument); State v. Little, 126 N.C. App. 262, 268, 484 S.E.2d 835, 839 (1997) (holding no prejudicial error despite prosecutor\u2019s argument).\nDefendant assigns error to the prosecutor\u2019s reading of album titles seized from the stolen vehicles, wherein the prosecutor said: \u201c \u2018Mama Raised Me.\u2019 You heard a shred of evidence about any mama \u2014 anybody\u2019s mama raising \u2019em, amongst this group of people right here, including that defendant (indicating)?\u201d Defendant objected at trial, and asserts on appeal that the prosecutor implied that defendant was not raised by his mother, and \u201c[t]his comment is analogous to the State calling a defendant a \u2018mean S.O.B.\u2019 \u201d and is reversible error under State v. Davis, 45 N.C. App. 113, 114-15, 262 S.E.2d 329, 329-30 (1980). We find this remark was an improper remark. However, we do not find this remark was prejudicial error. The implication that defendant was raised by someone other than his mother is irrelevant, and is not inherently \u201cdegrading and disrespectful. . ..\u201d Davis, 45 N.C. App. at 115, 262 S.E.2d at 330. Considering the plethora of evidence against defendant, we cannot conclude this comment was prejudicial.\nDefendant assigns error to the following closing arguments:\nProsecutor: Now, the state didn\u2019t just go out \u2014 walk out in the street \u2014 now, that\u2019s something defense counsel like to do. They like to come up and tell you all\u2014\nDefense Counsel: Objection.\nThe Court: Overruled.\nProsecutor: \u2014that the police botched it. Why don\u2019t we have the deaf guy? Where is lone Black?\nProsecutor: I know this has been a long ordeal for y\u2019all. And I don\u2019t want to just go on and on, (indicating) but when the defense counsel gets up here\u2014\nDefense Counsel: Objection.\nThe Court: Overruled.\nProsecutor: \u2014and tries to tell \u2014 put a spin on what you saw with your own eyes, I ask you the question that Groucho Marx asked one time, \u2018You going to believe me or your lying eyes?\u2019 You see? So you believe your own eyes, ladies and gentlemen of the jury.\nDefendant asserts these remarks were improper, and made with the intent to disparage defense counsel. The State asserts this argument was proper and merely countered defendant\u2019s contention that the State failed to meet its burden of proof. We need not determine the impropriety of these arguments since we cannot find a reasonable possibility exists that without these comments another result would have been reached. Accordingly, we find no prejudicial error.\nDefendant assigns error to improper comments by the prosecutor during closing argument referencing Hitler and the Nazis. The prosecutor made the following arguments:\nProsecutor: And he wants you to think that he\u2019s sitting over there fresh out of college with a tie on, a haircut, cleaned up. He would deceive you, ladies and gentlemen of the jury. Evil doesn\u2019t necessarily have a bad or dirty or whatever kind of face you want to put on it. Ordinary people could be evil. Did you know a man named Heinrich Himmler that was responsible for the slaughter of\u2014\nDefense Counsel: #1: Objection.\nDefense Counsel: #2: Objection.\nProsecutor: \u2014the Jews?\nThe Court: Overruled.\nProsecutor: Did you know he was a chicken farmer? The man raised chickens, but he went to a meeting called the Wannsee Conference, and he sat down with a bunch of other people and planned to slaughter six million people or more. This defendant (walked over to defense table, indicating) was sitting right at 1386 Davis Street with his friends (walked over in front of easel), planning to slaughter somebody. Didn\u2019t know who. Didn\u2019t know it was going to be Debra Cheeseborough. Didn\u2019t know it was going to be Susan Moore. (Moved over in front of DA\u2019s table.) Didn\u2019t know it was going to be Tracy Lambert. But they knew they were gonna slaughter somebody. Isn\u2019t that wicked? Isn\u2019t that vile?\nProsecutor: Now, let me \u2014 let me jump back to Nazi Germany right quick.\nDefense Counsel: Objection, your Honor.\nThe Court: Overruled.\nProsecutor: The reason Telford Taylor and those men that tried the Nuremberg criminals at the Nuremberg trials were able to find out so much is because the Germans put it in writing, the Nazis put it in writing, (held up exhibit) just like them (indicating defense table), put it in writing.\nProsecutor: This was found in their gang headquarters. (Indicating easel.) End of the World War II, that\u2019s where those folks \u2014 that\u2019s where our soldiers got all that information from when they went in the bunker and went in Bertchesgaden, found all that stuff that belonged to Hitler and their gang. They put it in writing. Unbelievable, but they put it in writing. These people put their intent in writing. (Indicating, holding exhibit.)\nWe agree with defendant that these arguments were improper. Although our courts \u201cdo not completely restrict closing arguments to matters that are only within the province of the record, to the exclusion of any historical references. . . . [We] will not allow such arguments designed to inflame the jury, either directly or indirectly, by making inappropriate comparisons or analogies.\u201d Walters, 357 N.C. at 105, - S.E.2d -. Moreover, \u201cusing Hitler as the basis for the example has the inherent potential to inflame and to invoke passion in the jury, particularly when defendant is compared to Hitler in the context of being evil.\u201d Walters, 357 N.C. at 105, \u2022-S.E.2d at-. We find prosecutor\u2019s comments comparing defendant to Himmler also has the inherent potential to improperly impassion the jury and such statements are improper. We find prosecutor\u2019s comments comparing the Crips\u2019 writings demonstrating their intent to the Nazi writings are also improper as they needlessly reference infamous acts that may improperly affect the jury.\nHowever, we find the requisite prejudice was not demonstrated. In the present case, we find no support for the assertion that without these comments by the prosecutor a reasonable possibility exists a different result would have occurred.\nDefendant neither briefed nor argued his remaining assignments of error and accordingly they are deemed abandoned. N.C. R. App. 28(b)(6) (2003).\nNo error.\nChief Judge EAGLES and Judge HUNTER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.", "Margaret Creasy Ciardella, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARLOS MAURICE FRINK\nNo. COA02-570\n(Filed 1 July 2003)\n1. Evidence\u2014 plea agreement of codefendant \u2014 no expression of opinion by trial court\nThe trial court did not commit structural or plain error in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by admitting evidence that the trial court had consolidated charges against a codefendant for sentencing on the condition that she give truthful testimony in proceedings related to the victim, because: (1) considering the totality of circumstances, there is no indication that the judge\u2019s sentencing of the codefendant prior to trial expressed an opinion to the jury; and (2) there is no evidence to support the proposition that the judge was impartial merely because he presided over both the codefendant\u2019s open plea and defendant\u2019s trial.\n2. Criminal Law\u2014 sentencing condition \u2014 enforceability\u2014not presentation of false evidence\nThe trial court did not commit structural or plain error in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by allegedly presenting false evidence based on defendant\u2019s contention that a codefen-dant\u2019s sentencing condition was unenforceable under N.C.G.S. \u00a7 15A-1021 which governs plea bargains, because: (1) the code-fendant\u2019s guilty plea was an open plea of guilty and not a plea agreement with the State, and the trial court consolidated the codefendant\u2019s sentences to a single life sentence on the condition that she testify truthfully if called upon by the State; (2) there is no evidence that the enforceability of the condition was discussed at trial at all nor before the jury; and (3) even assuming the condition was unenforceable, it cannot be said that either the State or the trial court knew it was not and purposefully implied to the jury that it was.\n3. Evidence\u2014 codefendant\u2019s credibility \u2014 sentencing condition\nAlthough defendant contends the trial court committed plain error in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by instructing the jury to carefully consider a codefendant\u2019s credibility in light of her agreement with the trial court, defendant\u2019s assertion relied upon a finding that the trial court improperly admitted evidence of her sentencing condition which the Court of Appeals concluded was not error.\n4. Criminal Law\u2014 prosecutor\u2019s argument \u2014 asking defendant rhetorical questions\nThe trial court did not err in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by failing to intervene ex mero motu when the State asked defendant rhetorical questions during closing arguments, because the questions did not stray far enough from the parameters of propriety that the trial court abused its discretion by not intervening on its own accord.\n5. Criminal Law\u2014 prosecutor\u2019s argument \u2014 suffering and mental torture of victims\nThe trial court did not err in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by failing to intervene ex mero motu when the State asked the jurors during closing argument to think about what happened to the three victims as they were in their car trunk not knowing what was going to happen to them, because the argument focused on the suffering and mental torture of the victims.\n6. Criminal Law\u2014 prosecutor\u2019s argument \u2014 implication defendant not raised by his mother\nThe trial court did not abuse its discretion in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by allowing the prosecutor during closing argument to read album titles seized from the stolen vehicles to implicate that defendant was not raised by his mother, because: (1) the implication that defendant was raised by someone other than his mother is irrelevant and is not inherently degrading and disrespectful; and (2) considering the plethora of evidence against defendant, it cannot be concluded that the comment was prejudicial.\n7. Criminal Law\u2014 prosecutor\u2019s argument \u2014 disparaging comments about defense counsel\nAlthough defendant contends the trial court abused its discretion in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by allowing the prosecutor during closing argument to make comments allegedly disparaging defense counsel, there is no reasonable possibility that without these comments another result would have been reached.\n8. Criminal Law\u2014 prosecutor\u2019s argument \u2014 comparison of Crips gang\u2019s writings to Nazi writings\nAlthough the trial court abused its discretion in an attempted first-degree murder, first-degree murder, first-degree kidnapping, and conspiracy case by allowing the prosecutor during closing argument to compare the Crips gang\u2019s writings demonstrating their intent to the Nazi writings since they needlessly reference infamous acts that may improperly affect the jury, the requisite prejudice was not demonstrated to show that a reasonable possibility exists that a different result would have occurred.\nAppeal by defendant from judgments entered 7 March 2001 by Judge William C. Gore, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 14 April 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.\nMargaret Creasy Ciardella, for defendant-appellant." }, "file_name": "0581-01", "first_page_order": 611, "last_page_order": 624 }