{ "id": 8956397, "name": "STATE OF NORTH CAROLINA v. ANTWAUN KYRAL SIMS", "name_abbreviation": "State v. Sims", "decision_date": "2003-11-18", "docket_number": "No. COA02-1262", "first_page": "183", "last_page": "199", "citations": [ { "type": "official", "cite": "161 N.C. App. 183" } ], "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": "321 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "\"Taken in context, the prosecutor's metaphor falls short of the direct name-calling, or vituperative hyperbole, which has been found to be reversible error in other cases.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751393, 4755683, 4752995, 4758054, 4753414 ], "year": 1984, "pin_cites": [ { "parenthetical": "\"Taken in context, the prosecutor's metaphor falls short of the direct name-calling, or vituperative hyperbole, which has been found to be reversible error in other cases.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0088-04", "/nc/312/0088-02", "/nc/312/0088-05", "/nc/312/0088-03", "/nc/312/0088-01" ] }, { "cite": "316 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "906", "parenthetical": "\"Taken in context, the prosecutor's metaphor falls short of the direct name-calling, or vituperative hyperbole, which has been found to be reversible error in other cases.\"" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 38", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525735 ], "year": 1984, "pin_cites": [ { "page": "58", "parenthetical": "\"Taken in context, the prosecutor's metaphor falls short of the direct name-calling, or vituperative hyperbole, which has been found to be reversible error in other cases.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0038-01" ] }, { "cite": "414 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "noting this phraseology has been held not to constitute prejudicial error" } ], "opinion_index": 0 }, { "cite": "331 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501123, 2502629, 2502194, 2498873, 2502586 ], "year": 1992, "pin_cites": [ { "parenthetical": "noting this phraseology has been held not to constitute prejudicial error" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0120-01", "/nc/331/0120-03", "/nc/331/0120-05", "/nc/331/0120-02", "/nc/331/0120-04" ] }, { "cite": "410 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523002 ], "year": 1991, "pin_cites": [ { "page": "573-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0558-01" ] }, { "cite": "245 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "692", "parenthetical": "noting the prosecutor's argument which included a similar statement, was \"within the recognized bounds of propriety\"" } ], "opinion_index": 0 }, { "cite": "295 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563410 ], "year": 1978, "pin_cites": [ { "page": "435-37", "parenthetical": "noting the prosecutor's argument which included a similar statement, was \"within the recognized bounds of propriety\"" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0427-01" ] }, { "cite": "420 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "167", "parenthetical": "noting that \"the district attorney was [not] characterizing [the defendant] as the devil,\" but merely \"used this phrase to illustrate the type of witnesses which were available in a case such as this one\"" } ], "opinion_index": 0 }, { "cite": "332 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506498 ], "year": 1992, "pin_cites": [ { "page": "171", "parenthetical": "noting that \"the district attorney was [not] characterizing [the defendant] as the devil,\" but merely \"used this phrase to illustrate the type of witnesses which were available in a case such as this one\"" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0151-01" ] }, { "cite": "140 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "pin_cites": [ { "parenthetical": "noting that, even though the prosecutor in effect said the defendant qualified as the devil, because of the context of the statement, \"the jury could [not] have thought the prosecutor believed the defendant was the devil\" but that he was simply a \"bad man\"" } ], "opinion_index": 0 }, { "cite": "523 U.S. 1097", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11544836, 11544616, 11544682, 11544587, 11544715, 11544364, 11544558, 11544751, 11544650, 11544402, 11544531, 11544502, 11544440, 11544795, 11544476 ], "year": 1998, "pin_cites": [ { "parenthetical": "noting that, even though the prosecutor in effect said the defendant qualified as the devil, because of the context of the statement, \"the jury could [not] have thought the prosecutor believed the defendant was the devil\" but that he was simply a \"bad man\"" } ], "opinion_index": 0, "case_paths": [ "/us/523/1097-15", "/us/523/1097-09", "/us/523/1097-11", "/us/523/1097-08", "/us/523/1097-12", "/us/523/1097-01", "/us/523/1097-07", "/us/523/1097-13", "/us/523/1097-10", "/us/523/1097-02", "/us/523/1097-06", "/us/523/1097-05", "/us/523/1097-03", "/us/523/1097-14", "/us/523/1097-04" ] }, { "cite": "491 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "347 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551277 ], "year": 1997, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0218-01" ] }, { "cite": "91 L. Ed. 2d 144", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6205694 ], "year": 1986, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "pin_cites": [ { "parenthetical": "quoting Darden v. Wainwright, All U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986)" } ], "opinion_index": 0 }, { "cite": "512 U.S. 1254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39539 ], "year": 1994, "pin_cites": [ { "parenthetical": "quoting Darden v. Wainwright, All U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986)" } ], "opinion_index": 0, "case_paths": [ "/us/512/1254-01" ] }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "152" }, { "page": "152-53" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "223-24" }, { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "329 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "678-79" }, { "page": "678-79" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525849 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "652" }, { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0647-01" ] }, { "cite": "176 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "83 S.E. 972", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1914, "pin_cites": [ { "page": "979" }, { "page": "979" } ], "opinion_index": 0 }, { "cite": "168 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658175 ], "weight": 2, "year": 1914, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0173-01" ] }, { "cite": "143 L. Ed. 2d 1013", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11199169, 11199267, 11198885, 11198728, 11198826, 11199120, 11199313, 11199058, 11198934, 11199000, 11198777, 11199226, 11198686, 11199359 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1133-10", "/us/526/1133-12", "/us/526/1133-05", "/us/526/1133-02", "/us/526/1133-04", "/us/526/1133-09", "/us/526/1133-13", "/us/526/1133-08", "/us/526/1133-06", "/us/526/1133-07", "/us/526/1133-03", "/us/526/1133-11", "/us/526/1133-01", "/us/526/1133-14" ] }, { "cite": "506 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "349 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571701 ], "year": 1998, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0243-01" ] }, { "cite": "148 L. Ed. 2d. 775", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "pin_cites": [ { "parenthetical": "quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)" } ], "opinion_index": 0 }, { "cite": "531 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9712192, 9712065, 9712642, 9712259, 9712487, 9712011, 9712332, 9712722, 9713010, 9712562, 9712951, 9712856, 9712121, 9712795, 9712414, 9711935 ], "year": 2001, "pin_cites": [ { "parenthetical": "quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)" } ], "opinion_index": 0, "case_paths": [ "/us/531/1114-05", "/us/531/1114-03", "/us/531/1114-11", "/us/531/1114-06", "/us/531/1114-09", "/us/531/1114-02", "/us/531/1114-07", "/us/531/1114-12", "/us/531/1114-16", "/us/531/1114-10", "/us/531/1114-15", "/us/531/1114-14", "/us/531/1114-04", "/us/531/1114-13", "/us/531/1114-08", "/us/531/1114-01" ] }, { "cite": "530 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "352 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684981 ], "year": 2000, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0037-01" ] }, { "cite": "472 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "344 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867641 ], "year": 1996, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0079-01" ] }, { "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 ], "year": 2002, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "334 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "314 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685694 ], "year": 1985, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0460-01" ] }, { "cite": "419 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "331 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500856 ], "year": 1992, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0515-01" ] }, { "cite": "405 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "207", "parenthetical": "stating that \"under G.S. 15A-1443(a) a defendant must demonstrate that there is a reasonable possibility that had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises" } ], "opinion_index": 1 }, { "cite": "103 N.C. App. 195", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520061 ], "year": 1991, "pin_cites": [ { "page": "205-06", "parenthetical": "stating that \"under G.S. 15A-1443(a) a defendant must demonstrate that there is a reasonable possibility that had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises" } ], "opinion_index": 1, "case_paths": [ "/nc-app/103/0195-01" ] } ], "analysis": { "cardinality": 1301, "char_count": 39386, "ocr_confidence": 0.782, "pagerank": { "raw": 9.054730700912892e-08, "percentile": 0.5047929435268234 }, "sha256": "cdae4eab3b91a888a33258bd30330ddee4035efb036dd03567f026f9f2de3516", "simhash": "1:efebd0a2f7069de9", "word_count": 6606 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge WYNN concurs with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTWAUN KYRAL SIMS" ], "opinions": [ { "text": "McGEE, Judge.\nAntwaun Kyral Sims (defendant) was convicted of first-degree murder, first-degree kidnapping, and burning personal property on 24 August 2001. The trial court found defendant to have a prior record level II for the latter two offenses. The trial court sentenced defendant to life imprisonment without parole for the first-degree murder conviction, to a minimum term of 100 months and a maximum term of 129 months imprisonment for first-degree kidnapping, and to a minimum term of eight months and a maximum term of ten months imprisonment for burning of personal property. Defendant appeals.\nThe State\u2019s evidence at trial t\u00e9nded to show that defendant was with Chad Williams (Williams) and Chris Bell (Bell) at the traffic circle in Newton Grove, North Carolina on 3 January 2000, when Bell said that the group needed to rob someone to get a car so Bell could leave the state to avoid a probation violation hearing. Defendant agreed to assist Bell. Defendant, Bell, and Williams observed Elleze Kennedy (Ms. Kennedy), an eighty-nine-year old woman, leaving the Hardee\u2019s restaurant across from the traffic circle around 7:00 p.m. Ms. Kennedy got into her Cadillac and drove to her home a few blocks away. Defendant, Bell, and Williams ran after Ms. Kennedy\u2019s car, cutting across several yards until they reached Ms. Kennedy\u2019s home. Bell approached Ms. Kennedy in her driveway with a BB pistol and demanded Ms. Kennedy\u2019s keys. Ms. Kennedy began yelling and Bell hit her in the face with the pistol, knocking her to the ground. Bell told defendant and Williams to help him find the keys to Ms. Kennedy\u2019s Cadillac. After rifling through Ms. Kennedy\u2019s pockets, Williams found the keys on the carport and handed them to defendant who agreed to drive.\nBell told defendant and Williams to move Ms. Kennedy to the back seat of the Cadillac. When defendant and Williams attempted to do so, Ms. Kennedy bit Williams on the hand. Williams hit Ms. Kennedy in the jaw, and with defendant\u2019s help, put her in the back seat. Ms. Kennedy kept asking Bell where he was taking her. Bell responded by telling her to shut up and striking her in the face several times with the pistol. Ms. Kennedy, who was now bleeding steadily, ceased struggling.\nAfter driving to Bentonville Battleground, defendant, Bell, and Williams put Ms. Kennedy, who was unconscious at the time, in the trunk of the Cadillac. While driving around, Bell told defendant to turn up the radio so they could not hear Ms. Kennedy in the trunk. Defendant, Bell, and Williams drove to the Chicopee Trailer Park in Benson, North Carolina, arriving at Mark Snead\u2019s (Snead) trailer around 8:30 p.m. Defendant, Bell, and Williams told Snead that the Cadillac was a rental car and that the three of them were driving to Florida. Defendant, Bell, and Williams went inside Snead\u2019s trailer and all smoked marijuana. Defendant, Bell, and Williams later drove to the other side of the trailer park to visit Pop and Giovanni Surles, also telling them that the Cadillac was a rental car.\nWhile at the Chicopee Trailer Park, Williams told defendant and Bell that he was not going to travel in a stolen car to Florida with an abducted woman in the trunk. Williams got out of the Cadillac and began to walk back to Snead\u2019s trailer. Defendant and Bell drove away but later returned to Snead\u2019s trailer with the music in the Cadillac turned up very loud. Defendant and Bell told Williams that they had let Ms. Kennedy out of the trunk at a McDonald\u2019s and that Ms. Kennedy was now talking to the police. Williams then got back in the Cadillac and the three drove to defendant\u2019s brother\u2019s house. Defendant stated that he wanted to wipe up Ms. Kennedy\u2019s blood from the back seat of the Cadillac. Defendant went into his brother\u2019s house and returned with a damp rag, which he used to wipe down the backseat and backdoor where Ms. Kennedy had originally been held before she was placed in the trunk.\nDefendant drove Williams and Bell to a nearby truck stop where Bell took four dollars from Ms. Kennedy\u2019s pocketbook, which he gave to defendant to buy gasoline for the Cadillac. Bell told defendant to leave the car running. Nevertheless, defendant turned the car off. While the car was turned off, Williams heard scuffling in the trunk and confronted defendant and Bell about Ms. Kennedy; however, defendant and Bell laughed, again saying they had dropped Ms. Kennedy off at McDonald\u2019s.\nAs they drove to Fayetteville, Bell threw the BB pistol and Ms. Kennedy\u2019s credit cards out of the window of the Cadillac. Defendant, Bell, and Kennedy parked at a motel and were opening the trunk to let Ms. Kennedy out when a police car drove by. They closed the trunk, got back in the Cadillac, and drove to a nearby housing project where defendant and Bell reopened the trunk. Williams testified that it appeared Ms. Kennedy attempted to get out of the trunk but that defendant slammed the trunk back down.\nDefendant, Bell, and Williams decided to return to Newton Grove to find the scope from the BB pistol which was lost during the abduction of Ms. Kennedy. Upon arriving at Ms. Kennedy\u2019s home, Williams observed blood on the concrete slab, as well as a pair of glasses and a woman\u2019s shoe. Bell searched Ms. Kennedy\u2019s yard for the scope but did not find it; he picked up the woman\u2019s shoe and put it in the Cadillac.\nWhile discussing what to do with Ms. Kennedy, Bell told Williams that he knew a place to put her, but that defendant knew of an even better place. Defendant, Bell, and Williams drove to a field with some trees, located near defendant\u2019s brother\u2019s house. The three opened the trunk and Williams saw Ms. Kennedy moving around in the trunk and moaning. Williams asked if they could let her go, but Bell replied, \u201cMan, I ain\u2019t trying to leave no witnesses. This lady done seen my face. I ain\u2019t trying to leave no witnesses.\u201d Bell asked defendant for a lighter to burn Bell\u2019s blood-covered jacket. Defendant gave Bell his lighter and Bell set the jacket on fire and threw it into the Cadillac. Bell stayed to watch the fire, but defendant and Williams walked back to defendant\u2019s brother\u2019s house to watch television. When Bell returned to the house, he first joked that he had let Ms. Kennedy out of the car and that she had driven the Cadillac away; however, he informed defendant and Williams that he had actually just stayed to watch the jacket burn. The three slept at defendant\u2019s brother\u2019s house. The next morning Bell told defendant to go back to the car and confirm that Ms. Kennedy was dead, and that if she was not, defendant should finish burning the Cadillac. Defendant returned and told Bell and Williams that Ms. Kennedy was dead and that all of the windows in the Cadillac were smoked. Bell did not believe defendant and called Ryan Simmons (Simmons) to come and drive them to the Cadillac. Defendant and Bell wiped the car down to remove any fingerprints, and Williams, responding to an inquiry from Simmons, confirmed the Cadillac was indeed stolen.\nSimmons drove defendant, Bell, and Williams to Bell\u2019s house for a change of clothes and a few video games, and then drove the three back to defendant\u2019s brother\u2019s house. Simmons came back to pick up Bell and Williams a couple of days later; however, before leaving, Bell told Williams and defendant to lie if the police questioned them about the murder.\nMs. Kennedy\u2019s Cadillac was found by law enforcement the morning after her abduction. Investigators discovered Ms. Kennedy\u2019s body in the trunk. They made castings of footprints found in the area of the abandoned Cadillac. The castings were later compared to, and matched, shoes taken from defendant. Investigators identified fibers consistent with Ms. Kennedy\u2019s clothing on clothes seized from Williams, and identified Ms. Kennedy\u2019s blood on clothes worn by Williams and Bell and on Bell\u2019s burned jacket. Investigators recovered a red cloth from the backseat floorboard, which was later identified as the one defendant had used to wipe down the back seat of the Cadillac. Tests of the cloth showed traces of defendant\u2019s semen and Ms. Kennedy\u2019s blood. Police found two hairs in the backseat area of the Cadillac, one of which was later determined to be defendant\u2019s and the other Bell\u2019s. Police also matched latent fingerprints found on the Cadillac with prints taken from defendant and Bell.\nThe police concluded that the fire was set intentionally and burned the rear of the front seats and the armrest before it extinguished from a lack of oxygen, leaving soot inside the passenger compartment as well as in the trunk.\nUpon investigating the area outside Ms. Kennedy\u2019s residence, investigators discovered a large puddle of blood in the driveway, a pair of eyeglasses, a dental partial, a blue button, a walking cane, a partial shoe impression, and blood smear marks on the driveway consistent with a dragging motion.\nForensic pathologist Dr. Falpy Carl Barr (Dr. Barr) testified that he conducted Ms. Kennedy\u2019s autopsy on 5 January 2000. Dr. Barr noted blunt force injuries to Ms. Kennedy\u2019s face, including an injury to the bridge of her nose, fractures of the small bones on either side of her nose, as well as abrasions above each eyebrow, bruises to her face, neck, and chest area, and injuries to her hands. Dr. Barr testified that Ms. Kennedy was struck multiple times with a weapon, leaving marks consistent with a pellet gun, and that the other bruising to her torso could have been the result of having been kicked. Dr. Barr also testified that Ms. Kennedy\u2019s dental bridge was missing and that several teeth were loose. Dr. Barr testified that there was no evidence of sexual assault of Ms. Kennedy. Dr. Barr testified that because of the extent of soot in her trachea and lungs he believed that she was alive and breathing at the time the fire took place in the vehicle; however, because of Ms. Kennedy\u2019s elevated carbon monoxide level, Dr. Barr came to the conclusion that Ms. Kennedy died as a result of carbon monoxide poisoning from a fire in the Cadillac.\nWilliams lied to the police about his involvement, and he claimed that defendant was not present at the initial attack on Ms. Kennedy; however, Williams ultimately confessed to his involvement and inculpated defendant and Bell. Williams pled guilty to first-degree murder, first-degree kidnapping, and assault with a deadly weapon inflicting serious injury. Williams testified at defendant\u2019s trial and was awaiting a capital sentencing hearing at the time.\nDefendant presented testimony from several alibi witnesses who said defendant was at the Chicopee Trailer Park all day until dark on 3 January 2000. Dwayne Ricks testified that he gave defendant a ride to the Chicopee Trailer Park on the morning of 3 January 2000. Giovanni Surles testified that he spent the day with defendant at the Chicopee Trailer Park. Bessie Surles testified she saw defendant with Giovanni Surles at the trailer park into the evening. Brenda Surles testified that she saw her son, Giovanni Surles, walking with defendant in the early afternoon and again in the early evening. Yolanda Peacock testified that she left the Chicopee Trailer Park at dark to go to the store to buy cigars for defendant, but that when she returned around 7:00 p.m. defendant was no longer there. Latisha Williams testified she saw defendant at the Chicopee Trailer Park in the afternoon, but that defendant left as it was getting dark. Latisha Williams further testified that Bell and Williams arrived in a Cadillac looking for defendant, and that when she saw the Cadillac again, defendant was in the Cadillac with Bell and Williams. Several of these alibi witnesses also testified that Bell and Williams arrived at the trailer park later in the evening driving a Cadillac and that defendant left with Bell and Williams in the Cadillac. Brenda Surles also testified that it takes about twenty-five to thirty minutes to drive from the Chicopee Trailer Park to the Newton Grove traffic circle.\nDefendant also presented testimony of Antowean Darden (Darden) that Bell had approached Darden about renting a car, but Darden denied that he had seen defendant, Bell, or Williams at the Newton Grove traffic circle on the night of 3 January 2000. On cross-examination, Darden admitted that he named defendant, Bell, and Williams as possible suspects in the murder at a law enforcement roadblock on 4 January 2000. Defendant\u2019s girlfriend, Krystal Elliot, testified that Williams had called her from jail to tell her that defendant was not with Williams and Bell when they abducted Ms. Kennedy from her home.\nDefendant has failed to put forth an argument in support of assignments of error one through six and twelve through twenty-two; pursuant to N.C.R. App. P. 28(b)(6) we deem those assignments of error to be abandoned.\nI.\nDefendant challenges the admission into evidence of a rag found in the back seat area of the Cadillac and the scientific analysis of this rag, which concluded that the rag contained Ms. Kennedy\u2019s blood as well as traces of defendant\u2019s semen. Defendant also contends that reference in the State\u2019s opening and closing arguments to the rag and to the traces of defendant\u2019s semen on the rag was error.\nDefendant objected at trial to the admission of the rag and its scientific analysis, arguing that under N.C. Gen. Stat. \u00a7 8C-1, Rule 403, the probative value of the evidence was substantially outweighed by its prejudicial effect, by its possibility to mislead the jury, and by the cumulativeness of the evidence. Whether to exclude relevant evidence under N.C.G.S. \u00a7 8C-1, Rule 403 is in the trial court\u2019s discretion; we review the trial court\u2019s decision for an abuse of that discretion. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). \u201cAtrial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985).\nDefendant argues that the rag and the analysis indicating the presence of defendant\u2019s semen and Ms. Kennedy\u2019s blood on the rag were duplicative evidence of defendant\u2019s presence in the Cadillac. Defendant contends the probative value of the evidence was minimal because there was testimony by Williams that defendant was in the Cadillac, as well as physical evidence of defendant\u2019s fingerprints on the outside of the Cadillac, a head hair from defendant found in the Cadillac, and castings of defendant\u2019s footprints found around the Cadillac. We disagree.\nDefendant\u2019s theory at trial was that although he was in the Cadillac, he joined Bell and Williams only after Ms. Kennedy had been kidnapped, that he was unaware of her kidnapping, and that he simply went along for the ride. Defendant\u2019s hair and fingerprints were found in the Cadillac and he stipulated that he was in the vehicle. This evidence is consistent with both defendant\u2019s theory that he just went along for the ride and with the State\u2019s theory that defendant actively participated. However, Williams\u2019 testimony indicated that defendant was an active participant in the events. Defendant attempted to discredit Williams\u2019 testimony. Williams testified that defendant went into defendant\u2019s brother\u2019s house and returned with a damp rag to wipe down the back seat because Ms. Kennedy\u2019s blood was on the seat. The fact that a rag, covered with Ms. Kennedy\u2019s blood, was found in the Cadillac is evidence that the seat was indeed wiped down with a rag. The traces of defendant\u2019s semen on the rag further corroborate Williams\u2019 testimony, because defendant\u2019s DNA in his semen tends to identify defendant as the person who obtained and used the rag to wipe away Ms. Kennedy\u2019s blood. Defendant\u2019s use of the rag to wipe down the backseat also tends to show defendant had knowledge of the kidnapping and, by helping to cover up the kidnapping, he was an active participant in the series of events. Thus we find there was indeed probative value to the evidence, and that it was not simply duplicative of the other evidence placing defendant in the Cadillac.\nDefendant also argues that despite any probative value the evidence may have had, it was substantially outweighed by the prejudice it created because of the inference that a sexual assault of Ms. Kennedy may have occurred due to the presence of semen on the rag. However, as the trial court stated several times, there was no evidence of sexual assault in the record, and the trial court instructed the jury that the rag was not to be used as evidence of a sexual assault given the fact that there was no other evidence that any such sexual assault occurred. Despite the fact that the State, out of the presence of the jury, contested the trial court\u2019s admonishment not to argue that the rag was evidence of a sexual assault, the State never made any such argument to the jury. We find that in the present case the probative value of the rag and the scientific analysis of the rag was not substantially outweighed by the danger of undue prejudice or misleading the jury. The trial court did not err in exercising its discretion in admitting the rag and the scientific analysis of the rag, which indicated the presence of defendant\u2019s semen.\nDefendant also cites as error the trial court\u2019s failure to sustain defendant\u2019s objection to the State\u2019s use of, in its closing argument, the evidence of the rag and the scientific analysis of the rag revealing the presence of defendant\u2019s semen and Ms. Kennedy\u2019s blood. \u201cThe standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection.\u201d State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). In order to show an abuse of discretion, defendant must show that the trial court\u2019s failure to sustain defendant\u2019s objection \u201c \u2018could not have been the result of a reasoned decision.\u2019 \u201d Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)). \u201c \u2018Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom.\u2019 \u201d State v. Hyde, 352 N.C. 37, 56, 530 S.E.2d 281, 294 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d. 775 (2001) (quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)).\nAs discussed above, the rag and the scientific analysis of the rag were properly admitted into evidence. The State used this evidence in its closing argument to argue only that defendant knew Ms. Kennedy had been kidnapped and that he participated in the events. Additionally, as discussed above, the trial court instructed the jury not to consider the evidence of the presence of semen on the rag as evidence of sexual assault. The trial court did not abuse its discretion by allowing the State in its closing argument to comment on the rag and the scientific analysis of the rag, including the presence of defendant\u2019s semen.\nDefendant also challenges the trial court\u2019s failure to sustain defendant\u2019s objection to the mention of the semen in the State\u2019s opening statement. The district attorney, in the pertinent portion of the State\u2019s opening statement, said as follows:\nThe evidence will show, members of the jury, that at least five types of evidence will prove that [defendant] and Bell were, in fact, in Ms. Kennedy\u2019s car. Number one, you will have fingerprints; two, foot tracks; three, hair; four, you will have blood evidence; five, semen.\nDefendant objected to this statement and the trial court overruled the objection. The district attorney continued, \u201cDNA evidence will prove the red washcloth \u2014 found in the backseat of Ms. Kennedy\u2019s car had [defendant\u2019s] semen on it,\u201d to which defendant objected and was overruled.\nDefendant has not shown how it was error to allow the State to make these statements concerning the rag and the semen found on the rag in its opening statement. Defendant argues that the State promised not to mention the rag in its opening statement; however, the transcript reveals this contention to be incorrect. The State simply stated that as to the rag, the State would refer to it as a factual matter, not in an argumentative fashion, in its opening statement. Since the evidence of the rag and the scientific analysis of the rag was properly admitted by the trial court, it was not improper for the State to refer to the rag in a factual manner as it did during its opening statement. The trial court did not err in overruling defendant\u2019s objections to the mention of the rag in the State\u2019s opening statement. We overrule defendant\u2019s first argument.\nII.\nDefendant assigns error to the following portion of the State\u2019s closing argument:\nHe who hunts with the pack is responsible for the kill. Each of you have seen those nature shows: Discovery Channel, Animal Planet. You\u2019ve seen where a pack of wild dogs or hyenas in a group attack a herd of wildebeests, and they do it as a group.\nWhen they take that wildebeest, one of them might be the one that chases after it and grabs the leg of the wildebeest, slows them down. Another one might be out fending off the wildebeests that are coming and making their counterattacks. You have another that will be the one that actually grasps its jaws about the throat of the wildebeest, ultimately, crushing the throat and taking the very life out of that animal.\nHe who hunts with the pack is responsible for the kill. Each and every one of those animals are responsible for that kill. Each and every one of those animals will feast on the spoils of that kill. He who hunts with the pack is responsible for the kill.\nJust like the predators of the African plane [sic], Chad Williams, [defendant], and Christopher Bell stalked their prey. They chased after their prey. They attacked their prey. Ultimately, they fell their prey.\nJust like the predators of the African\u2014\nAt that point in the State\u2019s closing argument defendant objected and asked to approach the bench. After discussion outside the presence of the jury, the trial court overruled defendant\u2019s objection that the State was referring to defendant as a hyena and an animal of the African plain; however, the trial court admonished the State to be very careful not to refer to defendant as an animal or to make any such inference. The State then continued its closing argument:\nJust like the animals in the African plane [sic], after having felled their victim, they dragged their victim away; and, finally, they killed their victim.\nYou know, in the wild kingdom, there is always an animal, just like human beings \u2014 think about it. You get a group of people together; there is always one person that makes the decision. We\u2019re going to go to this place. This is the one that decides what to do. You have the leader.. . .\nThe same way in the animal world. Its called the alpha male, the dominant male. You all know that. You\u2019ve seen that.\nChad Williams was not the alpha male. Chad Williams was not and is not the dominant male. Do you know what? It doesn\u2019t matter. When you run with the pack, you are responsible for the kill.\n[Defendant] ran with the pack. He acted in concert with Christopher Bell and Chad Williams; and as a result, he ... is guilty of these crimes.\nThe State argues that the use of the phrase, \u201che who hunts with the pack is responsible for the kill,\u201d is a long accepted explanation of the theory of acting in concert. The State cites State v. Knotts, 168 N.C. 173, 187, 83 S.E. 972, 979 (1914), where our Supreme Court used the phrase to help illustrate just such a legal theory. Then, in State v. Lee, our Supreme Court again addressed the use of this phraseology stating,\n[t]he isolated phraseology \u201c[h]e who hunts with the pack is responsible for the kill,\u201d objected to by defendant, was intended as an illustrative statement of the law of conspiracy. It is highly unlikely that the statement was considered by the jury as anything other than an illustration of the law. When considered in the context in which it was used it had no prejudicial effect on the result of the trial and was therefore harmless.\nLee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970).\nIn State v. Cogdell, 74 N.C. App. 647, 652, 329 S.E.2d 675, 678-79 (1985), this Court confronted the same language in the context of jury instructions. This Court held, basing our decision on Lee, 277 N.C. 205, 176 S.E.2d 765, that the defendant\u2019s counsel in that case did not act in an incompetent manner by failing to object to the phrase included in the jury instructions; and further held, with little discussion, that it was not reversible error for the trial court to give such an instruction. Gogdell, 74 N.C. App. at 652, 329 S.E.2d at 678-79.\nAs discussed above, in isolation the statement, \u201che who hunts with the pack is responsible for the kill,\u201d has been held not to be reversible error. Further, in at least one case, our Supreme Court has used almost identical language as an explanation for the theory of acting in concert. Knotts, 168 N.C. at 187, 83 S.E. at 979. However, the district attorney in the present case went beyond simply making an isolated statement using the \u201che who hunts with the pack\u201d analogy. In the present case, although the district attorney did not specifically call defendant, Williams, and Bell \u201cwild dogs or hyenas\u201d hunting on the \u201cAfrican plain,\u201d the association was sufficiently close to lead to such an inference. This is especially true, given the fact that defendant is African-American, and in light of multiple references to hunting on the \u201cAfrican plain,\u201d even after the trial court warned the district attorney to be careful in his references. The district attorney\u2019s further references to Bell as the \u201calpha male\u201d and his references to defendant and Williams as followers in the pack, continued this close association with the animal kingdom, moving beyond a simple analogy to help explain the theory of acting in concert.\nIn the present case, we find these arguments by the district attorney to be improper. However, in order for defendant to be entitled to a new trial, the district attorney\u2019s statements must have \u201c \u2018so infected the trial with unfairness as to make the resulting conviction a denial of due process.\u2019 \u201d State v. McCollum, 334 N.C. 208, 223-24, 433 S.E.2d 144, 152 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994) (quoting Darden v. Wainwright, All U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986)). In McCollum, our Supreme Court found that improper statements made during the State\u2019s closing arguments did not deny the defendant due process, stating:\nThe prosecutor\u2019s arguments here did not manipulate or misstate the evidence, nor did they implicate other specific rights of the accused such as the right to counsel or the right to remain silent. The trial court instructed the jurors that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. Moreover, the weight of the evidence against the defendant . . . submitted to the jury was heavy .... All of these factors reduced the likelihood that the jury\u2019s decision was influenced by these portions of the prosecutor\u2019s closing argument. Therefore, the prosecutor\u2019s closing argument did not deny the defendant due process.\nMcCollum, 334 N.C. at 224-25, 433 S.E.2d at 152-53. This analysis is similarly applicable to the present case. The State did not misstate the evidence or the law in making its argument. The trial court similarly instructed the jury that closing arguments are not evidence. In addition, there was an abundance of evidence, both physical and testimonial, that defendant was guilty of the crimes charged. We find that, although improper, the district attorney\u2019s comments did not deny defendant due process entitling him to a new trial. This assignment of error is overruled.\nIII.\nDefendant also assigns error to the district attorney\u2019s statement during closing argument that, \u201cIf you are going to try the devil, you have to go to hell to get your witnesses.\u201d This assignment of error is without merit. Our Supreme Court, as well as this Court, have held that practically the same exact statement made during the State\u2019s closing argument was not reversible error. See State v. Sidden, 347 N.C. 218, 229, 491 S.E.2d 225, 230 (1997), cert. denied, 523 U.S. 1097, 140 L. Ed. 2d 797 (1998) (noting that, even though the prosecutor in effect said the defendant qualified as the devil, because of the context of the statement, \u201cthe jury could [not] have thought the prosecutor believed the defendant was the devil\u201d but that he was simply a \u201cbad man\u201d); State v. Willis, 332 N.C. 151, 171, 420 S.E.2d 158, 167 (1992) (noting that \u201cthe district attorney was [not] characterizing [the defendant] as the devil,\u201d but merely \u201cused this phrase to illustrate the type of witnesses which were available in a case such as this one\u201d); State v. Hudson, 295 N.C. 427, 435-37, 245 S.E.2d 686, 692 (1978) (noting the prosecutor\u2019s argument which included a similar statement, was \u201cwithin the recognized bounds of propriety\u201d); State v. Joyce, 104 N.C. App. 558, 573-74, 410 S.E.2d 516, 525 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992) (noting this phraseology has been held not to constitute prejudicial error); State v. Rozier, 69 N.C. App. 38, 58, 316 S.E.2d 893, 906, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984) (\u201cTaken in context, the prosecutor\u2019s metaphor falls short of the direct name-calling, or vituperative hyperbole, which has been found to be reversible error in other cases.\u201d) (citations omitted). Despite the fact that in some contexts such a statement by a district attorney may be inappropriate, given the overwhelming evidence of defendant\u2019s guilt, defendant has not shown how the district attorney\u2019s statement constituted prejudicial error meriting a new trial. This assignment of error is overruled.\nNo error in part; no prejudicial error in part.\nJudge HUDSON concurs.\nJudge WYNN concurs with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "WYNN, Judge\nconcurring.\nI agree with the majority\u2019s holding that no prejudicial error occurred in the proceedings below; however, I write separately because I believe the trial court abused its discretion in admitting evidence regarding the presence of semen on a rag.\nUnder N.C. Gen. Stat. \u00a7 8C-1, Rule 403, Defendant objected to the admittance of any evidence regarding the semen and its DNA analysis and to the mentioning of said evidence in the opening and closing statements. Rule 403 allows discretionary exclusion of relevant evidence \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d\nDefendant contends the probative value of the rag and the analysis indicating the presence of Defendant\u2019s semen was minimal, was substantially outweighed by unfair prejudice, and constituted duplicative evidence of his presence in the car. The majority opinion holds that even though Defendant stipulated to his presence in the vehicle, the presence of semen on the rag tended to indicate that Defendant was the person who used the rag to wipe down the backseat and was therefore an active participant in the kidnapping and murder. Therefore, according to the majority, the admittance of this evidence was not an abuse of discretion. I respectfully disagree.\nThe pertinent facts indicate Christopher Bell, Chad Williams, and Defendant kidnapped Ms. Kennedy, stole her car, drove the car to a place designated by Bell, caused Ms. Kennedy to bleed by pistol-whipping her, and placed her in the trunk. Sometime thereafter, the State\u2019s evidence also tended to show Defendant drove to his brother\u2019s home, obtained a rag, and wiped Ms. Kennedy\u2019s blood from the back seat.\nScientific analysis revealed the rag contained Ms. Kennedy\u2019s blood and semen belonging to either Defendant or Defendant\u2019s brother, who was not a party to this crime. The tests did not indicate how long the semen had been present on the rag. No evidence of semen was located on Ms. Kennedy\u2019s clothing or her person and there was no evidence of a sexual assault.\nThe State argued that the presence of Defendant\u2019s semen on the rag indicated Defendant wiped up the blood and was therefore an active participant in the kidnapping and murder. However, under these facts, the presentation of any semen evidence was unnecessary as there was more than sufficient evidence of Defendant\u2019s presence and active participation in this crime. Indeed, Defendant stipulated to his presence in the car. Moreover, other evidence indicates that Defendant drove the car, chose the abandonment location near his brother\u2019s home, obtained the rag used to wipe up the blood, and returned to the scene of the crime in order to cover up his fingerprints. The evidence also indicates the three men spent the night of the kidnapping and murder and several days thereafter at Defendant\u2019s brother\u2019s home. The day after the murder, the three men returned to the abandoned car in order to cover up any evidence of their crime. Under the facts of this case, the probative value of the semen evidence was minimal.\nOn the other hand, the prejudicial effect of the semen evidence was significant. The presence of semen on the rag indicates sexual activity occurred at some point. However, when such activity, by whom such activity, and with whom such activity occurred is uncertain. No semen was found on Ms. Kennedy\u2019s person or clothing and there was no other evidence of sexual assault. The rag belonged to Defendant\u2019s brother and was obtained from Defendant\u2019s brother\u2019s home. The DNA analysis could not exclude Defendant\u2019s brother as the source of the semen and the analysis could not indicate how long the semen had been present on the rag. Nevertheless, the State argued several times to the Court that the jury should be allowed to infer the men kidnapped Ms. Kennedy for the purpose of sexual gratification. In the absence of any evidence of sexual assault and given the overwhelming evidence of Defendant\u2019s presence in the car and active participation in this crime, the probative value of the semen evidence was substantially outweighed by unfair prejudice and constituted duplicative evidence. Accordingly, I conclude the trial court abused its discretion in admitting the semen evidence and allowing the State to mention said evidence in its opening and closing arguments.\nHowever, the overwhelming evidence of Defendant\u2019s presence in the car and active participation in the crime renders the trial court\u2019s abuse of discretion non-prejudicial. See State v. Patterson, 103 N.C. App. 195, 205-06, 405 S.E.2d 200, 207 (1991) (stating that \u201cunder G.S. 15A-1443(a) a defendant must demonstrate that there is a reasonable possibility that had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises). Moreover, the trial court gave a curative instruction limiting jury consideration of the evidence to that of identification of the perpetrator and corroboration of the State\u2019s evidence and specifically prohibited the use of such evidence as proof of sexual assault of the victim. Accordingly, I would hold the trial court committed non-prejudicial error.", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.", "Mary March Exumfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTWAUN KYRAL SIMS\nNo. COA02-1262\n(Filed 18 November 2003)\n1. Evidence\u2014 rag with victim\u2019s blood and defendant\u2019s semen \u2014 knowledge\u2014active participant in crime\nThe trial court did not abuse its discretion in a first-degree murder, first-degree kidnapping, and burning personal property case by admitting into evidence a rag found in the back seat area of the victim\u2019s Cadillac and the scientific analysis of that rag which concluded that the rag contained the victim\u2019s blood as well as traces of defendant\u2019s semen, because: (1) the evidence was not duplicative of the other evidence placing defendant in the Cadillac when it was used to show that defendant used the rag to wipe down the backseat of the car to wipe away the victim\u2019s blood, that defendant had knowledge of the kidnapping and helped cover it up, and that defendant was an active participant in the series of events; and (2) the evidence was not unfairly prejudicial when the trial court instructed the jury that the rag was not to be used as evidence of a sexual assault when there was no evidence of sexual assault.\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 rag contained victim\u2019s blood and traces of defendant\u2019s semen\nThe trial court did not abuse its discretion in a first-degree murder, first-degree kidnapping, and burning personal property case by failing to sustain defendant\u2019s objection to the State\u2019s reference during its opening and closing arguments to evidence of a rag found in the back seat area of the victim\u2019s Cadillac and the scientific analysis of that rag which concluded that the rag contained the victim\u2019s blood as well as traces of defendant\u2019s semen, because: (1) the State used the evidence only to argue that defendant knew the victim had been kidnapped and that he participated in the events; (2) the trial court instructed the jury not to consider the evidence of the presence of semen on the rag as evidence of sexual assault; and (3) the State referred to the rag merely in a factual manner during opening statements.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 comparing defendant to an animal \u2014 acting in concert theory\nAlthough the trial court erred in a first-degree murder, first-degree kidnapping, and burning personal property case by allowing the State during closing arguments to improperly compare defendant to a hyena and an animal of the African plain and to state that \u201che who hunts with the pack is responsible for the kill\u201d when the reference went beyond a simple analogy to help explain the theory of acting in concert, the improper statements did not deny defendant due process and entitled him to a new trial because: (1) the State did not misstate the evidence or the law in making its argument; (2) the trial court instructed the jury that closing arguments are not evidence; and (3) there was an abundance of evidence, both physical and testimonial, that defendant was guilty of the crimes charged.\n4. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant a devil\nThe trial court did not commit prejudical error in a first-degree murder, first-degree kidnapping, and burning personal property case by allowing the State to contend during closing arguments that \u201cif you are going to try the devil, you have to go to hell to get your witnesses,\u201d because: (1) the Court of Appeals and our Supreme Court have already concluded that almost exactly this same statement was not reversible error; and (2) although in some contexts such a statement by the prosecutor may be inappropriate, defendant is not entitled to a new trial given the overwhelming evidence of defendant\u2019s guilt.\nJudge Wynn concurring.\nAppeal by defendant from judgments entered 24 August 2001 by Judge Jay D. Hockenbury in Superior Court, Onslow County. Heard in the Court of Appeals 19 August 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.\nMary March Exumfor defendant-appellant." }, "file_name": "0183-01", "first_page_order": 213, "last_page_order": 229 }