{ "id": 8301734, "name": "STATE OF NORTH CAROLINA, Plaintiff v. IAN AULDEN CAMPBELL, Defendant", "name_abbreviation": "State v. Campbell", "decision_date": "2006-05-16", "docket_number": "No. COA05-942", "first_page": "520", "last_page": "531", "citations": [ { "type": "official", "cite": "177 N.C. App. 520" } ], "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": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "690-91", "parenthetical": "\"Subsequently, the trial judge properly instructed the jury concerning the weight to be accorded prior inconsistent statements and cured any possible prejudice to the defendant which may have been caused by the prosecutor's misstatement of the law.\"" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "pin_cites": [ { "page": "426", "parenthetical": "\"Subsequently, the trial judge properly instructed the jury concerning the weight to be accorded prior inconsistent statements and cured any possible prejudice to the defendant which may have been caused by the prosecutor's misstatement of the law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "225-26", "parenthetical": "prosecutor's error in defining the term \"reasonable doubt\" was cured because the trial court's instruction, \"which followed the complained-of statement by the prosecutor, remedied the error, if any, in the prosecutor's closing argument\"" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "197", "parenthetical": "prosecutor's error in defining the term \"reasonable doubt\" was cured because the trial court's instruction, \"which followed the complained-of statement by the prosecutor, remedied the error, if any, in the prosecutor's closing argument\"" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "366 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "322 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514399 ], "year": 1988, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0022-01" ] }, { "cite": "476 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "323-24", "parenthetical": "citing State v. Anderson, 322 N.C. 22, 38, 366 S.E.2d 459, 468 (1988)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867525 ], "year": 1996, "pin_cites": [ { "page": "594", "parenthetical": "citing State v. Anderson, 322 N.C. 22, 38, 366 S.E.2d 459, 468 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0583-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "472 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "875", "parenthetical": "citing State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867641 ], "year": 1996, "pin_cites": [ { "page": "90", "parenthetical": "citing State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)" } ], "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" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "131" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "423 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "333 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546001 ], "year": 1992, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0067-01" ] }, { "cite": "584 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "357 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491499 ], "year": 2003, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0316-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "247-48", "parenthetical": "expressly adopting the Strickland v. Washington test" }, { "page": "248" }, { "page": "248-49" }, { "page": "248-49" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "561-63", "parenthetical": "expressly adopting the Strickland v. Washington test" }, { "page": "563" }, { "page": "563" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 13, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "694" }, { "page": "698" }, { "page": "693" }, { "page": "689-90" }, { "page": "694-95", "parenthetical": "citations omitted" }, { "page": "690" }, { "page": "695" }, { "page": "689-90" }, { "page": "694-95" }, { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] } ], "analysis": { "cardinality": 985, "char_count": 24048, "ocr_confidence": 0.75, "pagerank": { "raw": 2.2712204889869807e-07, "percentile": 0.783779672096713 }, "sha256": "a202182bd028a077aa4766ccd7d6bf718f7cd543790b3089507cce2a917da70f", "simhash": "1:114bd532bff1174f", "word_count": 3916 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. IAN AULDEN CAMPBELL, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nIan Aulden Campbell (\u201cdefendant\u201d) appeals from a judgment entered on a jury verdict finding him guilty of first degree murder. Defendant was sentenced to life imprisonment without parole. On appeal, defendant makes two arguments. First, defendant claims he received ineffective assistance of counsel at trial because his attorney informed the jury that defendant had initially lied to everyone, including his attorneys, regarding his involvement in the victim\u2019s death. Second, defendant argues the prosecution impermissibly shifted the burden of proof to defendant during closing arguments. We find no error.\nThe facts of this case are not in dispute, and we provide only those facts pertinent to resolution of the issues on appeal. Defendant killed his fianc\u00e9e, Heather Domenie, on the night of 25 July 2002. Defendant had been having an affair with another woman, and he argued with Domenie about his affair on the night of her death. The fight escalated, and defendant grabbed the towel around her neck and strangled her. According to the medical examiners, Domenie died from asphyxia due to strangulation.\nAfter some time passed, defendant called the 911 emergency center, claiming his fianc\u00e9e had choked herself with a tea towel and was not breathing. When the first responders arrived, he told them Domenie apparently had choked while he had been on an errand to the store. Shortly thereafter, defendant called two friends, and when they arrived, he told them Domenie had choked herself with a tea towel.\nDefendant continued to give this account of Domenie\u2019s death to everyone with whom he spoke about the matter, including the emergency room doctor, the police, his life insurance agent, his family, the woman with whom he was having an affair, and his attorneys.\nThe police arrested defendant on 16 August 2002. He was indicted for first degree murder, and the charge was prosecuted capitally.\nIn April 2003, defendant admitted to his attorneys that he had strangled Domenie. At the start of the trial, on 19 May 2003, defendant filed a declaration with the court admitting \u201che assaulted Heather Anne Domenie on July 25, 2002 and that his assault upon her proximately caused her death.\u201d The declaration indicated a defense strategy claiming defendant was not guilty of first degree murder,- but rather a lesser-included homicide with a correspondingly less culpable mens rea:\nThe Defendant consents to his trial counsel pursuing, at trial, a course of defense which admits his assault upon Heather Anne Domenie, and plans to present evidence, including testifying in his own defense, and offering other evidence which he and his trial counsel contend will dispute the State\u2019s contention that he is guilty of First Degree Murder, but which will establish that he is guilty of a lesser-included offense of homicide other than First Degree Murder.\nAt trial, the defendant\u2019s counsel began his opening statement by acknowledging defendant had killed Domenie. Counsel then laid out the central issue in the case, claiming defendant did not kill Domenie \u201cwith malice or premeditation or deliberation\u201d as the State contended, but instead had killed her \u201cas a situational crime\u201d without planning in advance. The defense theory of the case argued the killing \u201cwas a situational crime which resulted from a domestic situation which Ian had created, and that, as it evolved, it happened so swiftly and with such unexpected and explosive suddenness that all of his reason was suspended when he killed her.\u201d According to defense counsel, defendant\u2019s alibi was so unbelievable it demonstrated defendant had not premeditated or deliberated the killing:\nWell, Ian Campbell \u2014 and I\u2019ll give you the litany in a minute \u2014 the evidence is going to show that what he constructed to avoid getting caught and avoid getting detected and to avoid responsibility for what he had done will be, we\u2019re convinced, in your opinion, the most pathetic, miserable construct of an alibi in the history of criminal law.\nCounsel then explained defendant\u2019s alibi that Domenie had \u201cgone and choked herself with a tea towel\u201d while he was running an errand, and told the jury that as it considered the evidence in the case they should \u201ckeep in mind how miserable it is, and pathetic, and consider that when you\u2019re deciding whether this thing was premeditated and deliberated upon, whether this killing was thought out in advance and planned.\u201d\nNext, defense counsel previewed the evidence showing defendant lied to the first responders, to the police, and to his brother. Defendant kept telling the same lie, and he was \u201clying to everybody. Everybody. Well, it goes on for months, months and months.\u201d \u201cEverybody\u201d included his attorneys. Five weeks before the trial started, however, defendant broke down \u201cunder enormous pressure from his family and from his lawyers and everybody else that cares anything.about him,\u201d and finally \u201c[told] us what he did and what happened.\u201d The \u201cpathetic\u201d lie defendant kept telling pertained to whether defendant had the mental state for first degree murder:\nAnd you\u2019ll be able to judge his credibility and make a decision about whether you think that this was all the work of a planning, determined, master-mind or someone who was covering for something that \u2014 something terrible had happened to him and the pathetic efforts he made to cover it up. That will be your decision.\nAnd based on your determination of that will be a lead-in into your consideration of what offense of homicide Ian Campbell\u2019s guilty of.\nAccording to the defense theory, defendant\u2019s \u201cpathetic\u201d lie indicated his killing of Domenie was not premeditated or deliberated, and therefore defendant was guilty of a lesser crime than first degree murder.\nDuring the trial, defendant testified in his own defense. During direct examination, defendant admitted he had repeatedly lied:\nQ: Well, Ian, can you tell the Court and jury how you began to and why you began to pursue the matter of the correspondence and discussions with the life insurance company about Heather\u2019s policy?\nA: I was telling everybody the same lie, and my family and lawyers and people around me were believing me,....\nOn cross examination, defendant again admitted lying to his attorneys:\nQ: You lied to all the folks from the Cary Police Department that you have talked to, right?\nA: Yes, sir, I lied to everybody that night and every time after that fact that I was questioned about that event.\nQ: Okay.\nA: I lied to my family, my lawyers and everybody.\nIn his closing argument, defense counsel returned to the theme of defendant\u2019s implausible lie. Counsel argued:\nAnd while we\u2019re talking about that and your determination of whether this was a premeditated and deliberated killing with motive, consider this, from a guy who is supposed to be smart and a planner and all that: If you were going to do something and plan on doing it very carefully, all the way back to buying insurance and everything else, why in the world would you put yourself in the house with your intended victim, screen every call that came in, admit no one to the house and then set yourself up as the only possible suspect? And then after all that careful planning and execution of this careful plan to eliminate this person in a premeditated and a deliberate way, then the best you could do after thinking on it all the way back to June with Ron Keever and everything else, come up with that 9-1-1 call. And the \u2014 I think we\u2019ve just used the word before \u2014 pathetic explanation for what happened and the persistence afterwards, all the way up to almost the beginning of the trial, in denying that you had anything to do with this or trying to create evidence to show that you just couldn\u2019t have done it, if it was so well planned.\nCounsel summarized this theme: \u201cIf it had been premeditated, don\u2019t you know the story would have been better?\u201d\nThe jury found defendant guilty of first degree murder on 13 June 2003, and he was sentenced to life imprisonment without parole. Defendant appealed.\nI. Ineffective assistance of counsel\nDefendant argues he received ineffective assistance of counsel because his attorney told the jury that defendant had repeatedly lied to his attorneys. Our review of ineffective assistance of counsel claims \u201cwill be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Here, the cold record from the trial transcript shows no further investigation is required for our review.\nWhen making an ineffective assistance of counsel claim, defendant must show (1) counsel\u2019s performance was deficient, with errors so serious that the attorney was not functioning as \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment, and (2) the deficient performance prejudiced the defense to the extent there is a reasonable probability that, but for counsel\u2019s errors, the result of the proceeding would have been different and defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 247-48 (1985) (expressly adopting the Strickland v. Washington test). \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698; accord Braswell, 312 N.C. at 563, 324 S.E.2d at 248. \u201cUnless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.\u201d Id. at 687, 80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49.\nThe United States Supreme Court requires our restraint in second-guessing strategic decisions made by attorneys:\nJudicial scrutiny of counsel\u2019s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel\u2019s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel\u2019s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel\u2019s challenged conduct, and to evaluate the conduct from counsel\u2019s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action \u201cmight be considered sound trial strategy.\u201d There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.\nStrickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95 (citations omitted). \u201cThus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel\u2019s challenged conduct on the facts of the particular case, viewed as of the time of counsel\u2019s conduct.\u201d Id. at 690, 80 L. Ed. 2d at 695.\nDefendant argues his counsel was deficient because his attorney shared with the jury the fact he lied to his defense counsel. He claims \u201cno possible trial strategy could be served\u201d by telling the jury he lied to his attorneys, and there was \u201csimply no tactical reason that would justify an attorney affirmatively putting before a jury in a criminal case evidence that a client had lied to the attorney repeatedly about his guilt or about his version of the events.\u201d We disagree.\nIn our \u201chighly deferential\u201d review of defense counsel\u2019s conduct in this case, Strickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95, we view counsel\u2019s decision to address defendant\u2019s repeated lies as a prudent step in pulling the sting from damaging evidence. Defendant had lied to everyone, including family, friends, the police, and medical personnel. His claim that the victim had strangled herself was suspicious from the start. Such a lie, repeated to everyone, indicated defendant sought to protect himself from liability, and therefore his lies about the circumstances of her death further incriminated him in the murder of Domenie. Any prosecution of defendant would include his lies as incriminating evidence, including their use as evidence against his truthfulness.\nSince defense counsel knew defendant\u2019s lies would be an issue at trial, counsel attempted to turn defendant\u2019s lies into a favorable fact. Defense counsel was seeking to have defendant acquitted of first degree murder, and instead have defendant found guilty of a lesser-included crime such as second degree murder or voluntary manslaughter. Their hope of doing so relied on showing defendant had a less culpable mental state than premeditation or deliberation, a strategy apparent as early as defendant\u2019s 19 May 2003 declaration before trial admitting he had killed Domenie. Hence, defense counsel argued that if defendant had premeditated or deliberated Domenie\u2019s murder, he would have produced a more credible alibi than the \u201cpathetic\u201d one he continually provided. As counsel summarized in closing argument, \u201cIf it had been premeditated, don\u2019t you know the story would have been better?\u201d Even the State acknowledges on appeal these arguments by defense counsel reflected a reasonable and shrewd defense strategy.\nAlthough defense counsel noted in opening argument that defendant had lied to his attorneys, just as he had lied to everyone else, under the facts of this case we do not hold such an admission to be deficient performance by counsel. The theme counsel was arguing indic\u00e1ted defendant had a pattern of lying to everyone about the circumstances of Domenie\u2019s death, and acknowledging that \u201ceveryone\u201d included his'attorneys did not exacerbate the incriminating aspect of defendant seeking to escape liability via his lies. Defense counsel\u2019s mention in the opening statement that defendant had lied to his attorneys was incidental to this theme; if anything, it merely served to further illustrate counsel\u2019s intended theme. When defendant took the stand and admitted, in both direct and cross-examination, he had lied to his attorneys, defendant himself explicitly participated in this defense strategy, and thereafter cannot complain that defense counsel utilized the strategy in closing argument.\nThough it is possible other counsel may have proceeded with a different strategy, we cannot conclude the strategy employed by defendant\u2019s counsel was unreasonable nor, in our highly deferential review, deficient. Because we hold defense counsel\u2019s performance was not deficient, we need not address whether such performance prejudiced the defense and deprived defendant of a fair trial. Id. at 687, 80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49. Accordingly, we hold defendant did not receive ineffective assistance of counsel.\nDefendant also argues defense counsel breached attorney-client privilege by telling the jury he had lied to his attorneys. According to defendant, the lies defendant told his counsel were confidential communications, and those communications were \u201cprivileged and may not be disclosed.\u201d In re Investigation of the Death of Miller, 357 N.C. 316, 328, 584 S.E.2d 772, 782 (2003). But the privilege \u201cbelongs to the defendant, and may be waived by him.\u201d State v. Bronson, 333 N.C. 67, 76, 423 S.E.2d 772, 777 (1992). Since defendant admitted he lied to his attorneys in both his direct examination and cross-examination at trial, he therefore waived this privilege.\nII. Burden of proof\nDefendant claims a portion of the prosecutor\u2019s closing argument improperly shifted the burden of proof to defendant. At the end of the argument, the prosecutor said:\nThe defendant has tried real hard when he testified to make his story \u2014 to make what he offered to you to fit the State\u2019s evidence that he knew we would present. He had months to do that. He is an engineer.\nHe knows what the State reports are. He knows what those are. He has months to do that and to come in here and be able to tell you the little things that he thinks will make his story fit.\nBut he wants to tell you a couple of other things, and that is that he actually did administer CPR on her. Think about whether or not that is the truth and compare that to the rest of everything that he said. Think about whether when he says when he is standing face to face to her, face to face, toe to toe, and that he does-n\u2019t remember what happened after he pulled that towel tight, that he doesn\u2019t remember that. Is that the truth? Is that really the truth? Because Dr. Radisch said that it would take more, in this case was not a four-minute thing. It was hands and a towel. The evidence shows you that it could be from behind because of the way the hairs were found on the towel and because of the way the marks are on her body and the lack of marks on his.\nYou will have four options: First-degree murder, second-degree murder, voluntary manslaughter and the verdict form as perhaps required by law has to have not guilty on the bottom of it.\nIn order for you to find the defendant guilty of voluntary manslaughter, you have to say that the emotions that were going on were so high.\nIn order for you to find him guilty of second-degree murder, you have to say that he did not premeditate and deliberate.\nWhat I say to you this afternoon is that for you to find him guilty of anything less than first-degree murder, you will have to have decided for yourself individually and collectively that he has been telling the truth about what happened.\nDefendant objected, which the trial court overruled. The jury was excused for lunch, and defendant renewed his objection, contending the prosecutor\u2019s argument was improper and impermissibly shifted the burden of proof from the State onto the defendant. Defendant asked the trial court to instruct the jury to that effect when they returned from lunch. The trial court declined to do so, stating it would instruct the jury regarding the burden of proof pursuant to the proposed jury instructions.\nDuring the jury instructions, the trial court instructed the jury:\nThe defendant in this case has entered a plea of not guilty. The fact that he has been charged is no evidence of guilt. Under our system of justice, when a defendant pleads not guilty he is not required to prove his innocence. He is presumed to be innocent.\nThe State must prove to you that the defendant is guilty beyond a reasonable doubt.\nWhen instructing the jury on first degree murder, second degree murder, and voluntary manslaughter, the trial court repeatedly told the jury that the State bore the burden of proof to prove each element necessary for conviction of this crime charged and each lesser offense about which the jury was instructed.\nWhen counsel makes a timely objection at trial, the standard of review for improper closing arguments is whether the trial court abused its discretion by failing to sustain the objection. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). We should reverse a trial court and find an abuse of discretion, however, \u201conly upon a showing that its ruling could not have been the result of a reasoned decision.\u201d State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996) (citing State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). When applying the abuse of discretion standard to closing arguments, we first determine whether the \u201cremarks were improper,\u201d and if so, whether the \u201cremarks were of such a magnitude that their inclusion prejudiced defendant.\u201d Jones, 355 N.C. at 131, 558 S.E.2d at 106.\nWe need not make this determination, however, if the trial court\u2019s correct jury instructions on the law cured any mistakes made in the prosecutor\u2019s closing argument. \u201cIf the alleged misstatement of law was made, it was cured by the trial court\u2019s correct jury instructions on the relevant law.\u201d State v. Price, 344 N.C. 583, 594, 476 S.E.2d 317, 323-24 (1996) (citing State v. Anderson, 322 N.C. 22, 38, 366 S.E.2d 459, 468 (1988)); see also State v. Rose, 339 N.C. 172, 197, 451 S.E.2d 211, 225-26 (1994) (prosecutor\u2019s error in defining the term \u201creasonable doubt\u201d was cured because the trial court\u2019s instruction, \u201cwhich followed the complained-of statement by the prosecutor, remedied the error, if any, in the prosecutor\u2019s closing argument\u201d), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995); State v. Gladden, 315 N.C. 398, 426, 340 S.E.2d 673, 690-91 (1986) (\u201cSubsequently, the trial judge properly instructed the jury concerning the weight to be accorded prior inconsistent statements and cured any possible prejudice to the defendant which may have been caused by the prosecutor\u2019s misstatement of the law.\u201d), cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986).\nNo error.\nJudges HUDSON and BRYANT concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.", "Glover & Petersen, P.A., by Ann B. Petersen, for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. IAN AULDEN CAMPBELL, Defendant\nNo. COA05-942\n(Filed 16 May 2006)\n1. Constitutional Law\u2014 effective assistance of counsel \u2014 trial strategy \u2014 telling jury defendant repeatedly lied to his attorneys\nDefendant did not receive ineffective assistance of counsel in a first-degree murder case based on his attorney telling the jury that defendant had repeatedly lied to his attorneys, because: (1) counsel\u2019s decision to address defendant\u2019s repeated lies was a prudent step in pulling the sting from damaging evidence; (2) any prosecution of defendant would include his lies as incriminating evidence, including their use as evidence against his truthfulness; (3) defense counsel was attempting to turn defendant\u2019s lies into a favorable fact by showing that he was merely guilty of a lesser-included crime without premeditation or deliberation; (4) when defendant took the stand and admitted, in both direct and cross-examination, that he had lied to his attorneys, defendant himself participated in this defense strategy and thus cannot complain that defense counsel utilized the strategy in closing argument; and (5) although it is possible other counsel may have proceeded with a different strategy, it cannot be concluded that the strategy employed by defendant\u2019s counsel was unreasonable or deficient.\n2. Evidence\u2014 privileged communications \u2014 attorney-client privilege \u2014 waiver\nAlthough defendant contends defense counsel breached the attorney-client privilege in a first-degree murder case by telling the jury that defendant had lied to his attorneys, he waived any such privilege because he admitted he lied to his attorneys in both his direct and cross-examination at trial.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 alleged improper shift of burden of proof to defendant\nThe trial court did not abuse its discretion in a first-degree murder case by concluding that the prosecutor did not improperly shift the burden of proof to defendant during closing arguments, because: (1) the determination of whether the remarks were improper during closing arguments is not reached if the trial court\u2019s correct jury instructions on the law cured any mistakes made in the prosecutor\u2019s closing argument; and (2) when instructing the jury on first-degree murder, second-degree murder, and voluntary manslaughter, the trial court repeatedly told the jury that the State bore the burden of proof to prove each element necessary for conviction of the crime charged and each lesser offense.\nAppeal by defendant from judgment entered 13 June 2003 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 10 April 2006.\nRoy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for Defendant-Appellant." }, "file_name": "0520-01", "first_page_order": 554, "last_page_order": 565 }