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Freeman, 302 N.C. 591, 596, 276 S.E.2d 450, 453 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0152-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "361 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738504 ], "year": 2007, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0550-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "year": 2005, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-67", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 } ], "analysis": { "cardinality": 1205, "char_count": 25681, "ocr_confidence": 0.754, "pagerank": { "raw": 9.344153807760152e-08, "percentile": 0.513814125842858 }, "sha256": "48e78b6afc4dfe1701cf4df9a17ec6d51ff5bdf1265882c2e8b4bce00a726758", "simhash": "1:0d4d5ab2775f14d0", "word_count": 4214 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL SCOTT KIRBY, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Michael Scott Kirby appeals from a conviction of first degree murder. On appeal, defendant primarily argues that he was denied effective assistance of counsel when his trial counsel\u2014 although having made a motion in limine \u2014 failed to object to the admissibility, under N.C. Gen. Stat. \u00a7 8-67 (2005), of testimony from defendant\u2019s wife. We hold that this testimony did not involve a confidential communication since it was made within the hearing of a third person. Therefore, this testimony was admissible, and defendant was not denied effective assistance of counsel.\nFacts\nThe State\u2019s evidence tended to show the following facts. The 54-year-old victim, Bobby Dean Kirby, also known as \u201cBuster,\u201d lived with defendant and defendant\u2019s wife, Wendy Kirby, from mid-2004 until his death on 3 February 2005. Defendant and his wife had an 18-month-old child and also cared for defendant\u2019s 15-year-old nephew, D.K. In February 2005, defendant and his wife also allowed Cecil Henson to stay with them for a few weeks.\nOn 3 February 2005, Wendy drove defendant, Cecil, and Buster in her van to pick up some of Cecil\u2019s clothes from his home. Defendant sat in the front passenger seat, while Cecil and Buster sat in the middle row behind Wendy and defendant. Each of the three men was drinking alcohol and became increasingly intoxicated as the night progressed.\nDuring the ride, defendant described an incident in which Buster had taken advantage of a woman while she was sleeping. Cecil became upset by this story, and Cecil and defendant both hit Buster. Subsequently, defendant and Cecil continued to hit Buster because he kept falling asleep and, as a result, was \u201cwastfing] good liquor.\u201d\nSometime between 4:00 and 5:00 a.m., the group returned to defendant\u2019s home. When the group arrived home, defendant\u2019s nephew, who had been watching the baby, began getting ready for school. As D.K. was leaving for school, defendant told him to \u201cft]ell Buster bye, he won\u2019t be here when you get home from school this afternoon.\u201d\nWendy took the baby into her bedroom, which was adjacent to the living room, leaving defendant, Cecil, and Buster in the living room. She heard defendant telling Buster to say his prayers and then heard \u201cgasping sounds\u201d coming from the living room. Soon after, defendant \u201cflung\u201d open the bedroom door and, standing just inside the opened door, \u201cyellfed]\u201d to Wendy, \u201cGet up, I think I\u2019ve killed him.\u201d Wendy entered the living room and found Buster lying dead on the floor. She told defendant that he should call the police, but defendant refused, stating: \u201cI can\u2019t, I\u2019ve stabbed him. I can\u2019t call the law. I\u2019ve stabbed him in the leg.\u201d\nAt this point, defendant and Cecil agreed not to call the police. Defendant threatened to harm Wendy if she called the police and told Cecil to keep an eye on her. Defendant then directed Wendy and Cecil to take Buster\u2019s body across the street and bury it in the woods. Defendant went to distract a neighbor so that they could drag the body across the street unnoticed. In accordance with the plan, Wendy and Cecil grabbed shovels, took the body across the street, and buried Buster\u2019s corpse. Defendant then instructed everyone to burn their clothing. At a later date, however, Cecil turned himself into the police and told law enforcement that defendant had killed Buster. Wendy subsequently admitted helping to bury the body.\nOn 14 February 2005, Dr. Amy Tharp conducted an autopsy of Buster\u2019s body and noted that Buster had injuries consistent with being struck by a blunt instrument, including a fist or a boot. He had also sustained bleeding and swelling of the brain and a fractured Adam\u2019s apple. In her opinion, the cause of death was due to \u201ca combination of blunt trauma to the head and the abdomen as well as strangulation injuries to the neck.\u201d\nOn 28 March 2005, defendant was indicted for first degree murder. Following a trial in the Rutherford County Superior Court, a jury found defendant guilty of that charge. The trial court imposed a sentence of life imprisonment without parole, and defendant timely appealed to this Court. Defendant has also filed a motion for appropriate relief in this Court, asserting a claim of ineffective assistance of counsel.\nI\nDefendant first argues that the trial court erred in admitting Wendy\u2019s testimony regarding defendant\u2019s statement to her: \u201cGet up, I think I\u2019ve killed him.\u201d Defendant contends that this testimony should have been excluded under N.C. Gen. Stat. \u00a7.8-57(c), which provides: \u201cNo husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.\u201d\nDefendant\u2019s trial counsel filed a motion in limine seeking to exclude Wendy\u2019s testimony under the marital privilege. After conducting a voir dire hearing, the trial court denied the motion. At trial, defendant did not renew his objection during Wendy\u2019s testimony regarding the challenged statement. Although the affidavit of defendant\u2019s trial counsel, filed in support of the motion for appropriate relief, indicates that counsel was relying upon amended N.C.R. Evid. 103 when not renewing his objection, this Court held. in State v. Tutt, 171 N.C. App. 518, 521, 615 S.E.2d 688, 690-91 (2005), that the amendment to Rule 103 constituted a violation of the Separation of Powers Doctrine because it conflicts with N.C.R. App. P. 10(b)(1). Our Supreme Court has recently adopted the reasoning of Tutt, with the result that the rule continues to be \u201cthat a trial court\u2019s evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial.\u201d State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007).\nDefendant acknowledges that the issue was not properly preserved and argues in his motion for appropriate relief that the failure to renew the objection constituted ineffective assistance of counsel. Alternatively, defendant asks this Court to invoke Rule 2 of the Rules of Appellate Procedure to review this issue. Defendant did not assign or argue plain error.\nIn order to prevail on an ineffective assistance of counsel claim,\n\u201cFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d\nState v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)). Because we conclude that the trial court properly admitted Wendy\u2019s testimony, defendant cannot show that he was prejudiced by trial counsel\u2019s error in failing to renew his objection.\nAs noted previously by this Court, \u201cour Supreme Court has interpreted section 8-57 to mean that a [sic] \u2018spouses shall be incompetent to testify against one another in a criminal proceeding only if the substance of the testimony concerns a \u201cconfidential communication\u201d between the marriage partners made during the duration of their marriage.\u2019 \u201d State v. Hammonds, 141 N.C. App. 152, 169-70, 541 S.E.2d 166, 179 (2000) (quoting State v. Freeman, 302 N.C. 591, 596, 276 S.E.2d 450, 453 (1981)), appeal dismissed and disc. review denied in part, 353 N.C. 529, 549 S.E.2d 860, aff\u2019d in part, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184, 122 S. Ct. 2363 (2002). This rule \u201callows marriage partners to speak freely to each other in confidence without fear of being thereafter confronted with the confession in litigation. However, by confining the spousal disqualification to testimony involving \u2018confidential communications\u2019 within the marriage, we prohibit the accused spouse from employing the common law rule solely to inhibit the administration of justice.\u201d Freeman, 302 N.C. at 596, 276 S.E.2d at 453-54.\nBecause of the requirement of confidentiality, it is well established that the marital privilege does not apply to communications made within the known hearing of a third party. See, e.g., State v. Gladden, 168 N.C. App. 548, 553, 608 S.E.2d 93, 96 (\u201c[D]efendant was informed prior to making the phone call that all calls made to outside parties were subject to recording and monitoring. Under these circumstances, the conversation between defendant and his wife was not confidential.\u201d), appeal dismissed and disc. review denied, 359 N.C. 638, 614 S.E.2d 312 (2005); State v. Carter, 156 N.C. App. 446, 457-58, 577 S.E.2d 640, 647 (2003) (\u201c \u2018The [marital] privilege is waived in criminal cases where the conversation is overheard by a third person.\u2019 \u201d (quoting State v. Harvell, 45 N.C. App. 243, 249, 262 S.E.2d 850, 854, appeal dismissed and disc. review denied, 300 N.C. 200, 269 S.E.2d 626 (1980))), cert. denied, 358 N.C. 547 (2004), cert. denied, 543 U.S. 1058, 160 L. Ed. 2d 784, 125 S. Ct. 868 (2005); State v. Setzer, 42 N.C. App. 98, 104, 256 S.E.2d 485, 489 (holding that \u201ccommunication here was not confidential, since it was made within the hearing of a third party\u201d), cert. denied, 298 N.C. 571, 261 S.E.2d 127 (1979).\nIn this case, Wendy testified that she was in her bedroom with the door closed. She described the circumstances of the communication as follows: \u201cAnd then [defendant] comes in, flings the door open and yells at me, \u2018Get up, I think I\u2019ve killed him.\u2019 \u201d She described her husband\u2019s tone of voice as \u201ca loud one.\u201d She testified that because defendant was \u201cthat loud,\u201d someone in the living room could have heard defendant. She specified that \u201c[h]e yelled loud enough to where anyone in the house could have heard him.\u201d It is undisputed that Cecil Henson was in the living room at the time of the statement. Wendy confirmed that Cecil was in a position to have heard the statement.\nAlthough defendant states that \u201cit is clear that [he] intended to speak to his wife in confidence,\u201d we find this assertion untenable in light of the evidence that defendant \u201cyell[ed]\u201d or \u201chollered\u201d the statement while standing in the bedroom\u2019s open doorway right next to the living room. Defendant\u2019s volume in conjunction with his undisputed knowledge that Cecil was within easy hearing distance establishes a lack of confidentiality that supports the trial court\u2019s determination that the communication was not privileged. See State v. McMorrow, 314 N.W.2d 287, 292 (N.D. 1982) (holding that trial court properly concluded that marital privilege did not apply when it determined that defendant \u201ccould not have reasonably believed that the conversation between his wife and himself would not be overheard by [the third party]\u201d given that statement was made in a voice that could be easily heard by third party, and defendant had knowledge of third party\u2019s presence).\nDefendant further argues, however, that only the third party\u2014 Cecil Henson \u2014 and not the spouse could testify as to the statement. Defendant\u2019s sole authority for this proposition are cases decided in 1918 and 1929 \u2014 decisions rendered at a time when spouses were deemed incompetent to testify against each other in a criminal proceeding. Freeman, decided in 1981, modified the common law rule so that \u201cspouses shall be incompetent to testify against one another in a criminal proceeding only i/the substance of the testimony concerns a \u2018confidential communication\u2019 between the marriage partners made during the duration of their marriage.\u201d Freeman, 302 N.C. at 596, 276 S.E.2d at 453 (emphasis added). Indeed, Freeman specifically held that testimony by the spouse regarding communications made in the presence of the spouse\u2019s brother involved \u201cno confidential communication which would render [the testimony] incompetent under the rule established in this case.\u201d Id. at 598, 276 S.E.2d at 454-55. Based on Freeman, Wendy was competent to testify regarding defendant\u2019s statement since it was not made confidentially. Compare State v. Holmes, 330 N.C. 826, 835, 412 S.E.2d 660, 665 (1992) (holding that trial court erred in allowing wife to testify as to defendant\u2019s intent to kill victim when evidence \u2014 that defendant instructed two other men with him to go outside the house because he wanted to talk to his wife \u2014 showed that defendant\u2019s statements, \u201cmade only in the presence of his wife, were induced by the confidence of the martial relationship\u201d).\nWe, therefore, hold that the trial court did not err in admitting Wendy\u2019s testimony regarding defendant\u2019s statement made in the bedroom doorway. Because there was no error, any failure to object by trial counsel did not prejudice defendant and, as a result, he was not denied effective assistance of counsel. See State v. Brewton, 173 N.C. App. 323, 333, 618 S.E.2d 850, 858 (\u201c[Bjecause we find no error in the instructions, defendant\u2019s claim for ineffective assistance of counsel [based on counsel\u2019s failure to object to the instructions] must also be rejected.\u201d), disc. review denied, 360 N.C. 177 (2005), cert. denied,N.C. \u2014 , 636 S.E.2d 812 (2006).\nII\nDefendant next argues that the trial court erred in denying his motion to dismiss because the State presented insufficient evidence to support a finding that defendant had the specific intent to kill. In ruling on a defendant\u2019s motion to dismiss, the trial court must determine whether the State presented substantial evidence (1) of each essential element of the offense and (2) of the defendant\u2019s being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). When deciding a motion to dismiss, the trial court must view all of the evidence presented \u201cin the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).\nOur Supreme Court has observed that \u201c[sjpecific intent to kill is an essential element of first degree murder, but it is also a necessary constituent of the elements of premeditation and deliberation.\u201d State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838 (1981). As a result, proof of premeditation and deliberation is also proof of intent to kill. State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005). Premeditation and deliberation ordinarily must be proven by circumstantial evidence: State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994) (internal quotation marks omitted), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147, 115 S. Ct. 1270 (1995).\nAmong other circumstances from which premeditation and deliberation may be inferred are (1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim\u2019s wounds.\nIn this case, the State offered evidence relating to most of these circumstances. Wendy testified to a history of defendant\u2019s beating Buster. On the morning Buster was killed, defendant, without provocation, again began hitting Buster while they were driving in the van. When they returned home, defendant told his nephew to tell Buster good-bye because Buster would not be there when the nephew returned from school. Before the nephew left for school, he witnessed defendant again hitting and kicking Buster. Wendy then heard defendant tell Buster to \u201csay [his] prayers,\u201d which was immediately followed by gasping noises. According to the medical examiner, Buster\u2019s cause of death was a combination of strangulation injuries to the neck, as well as blunt trauma to the head and abdomen. After the killing, defendant orchestrated a scheme to conceal Buster\u2019s body and evidence related to his killing.\nWhen this evidence is viewed in the light most favorable to the State, it 4s sufficient to allow a jury to conclude that defendant had the specific intent to kill the victim. See State v. Dawkins, 162 N.C. App. 231, 240, 590 S.E.2d 324, 331 (sufficient evidence of premeditation and deliberation existed when State presented evidence of prior fighting and conflict between defendant and victim; prior to victim\u2019s death, defendant threatened to kill the victim; and following the killing, defendant engaged in an \u201celaborate process of concealing the body\u201d), disc. review denied, 358 N.C. 237, 595 S.E.2d 439 (2004). The trial court, therefore, properly denied defendant\u2019s motion to dismiss.\nIll\nFinally, defendant argues that the prosecutor made two sets of improper statements in his closing argument. Because defendant did not object, the standard of review is whether the argument was \u201cso grossly improper that the trial court erred in failing to intervene ex mero motu.\u201d State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). The question this Court must answer is whether the State\u2019s argument \u201cstrayed 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 . . . .\u201d State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).\nDefendant first challenges the following assertion by the prosecutor:\nRemember, Cecil is not on trial here. Cecil may have a trial. It\u2019s not today and it\u2019s not with you as the jury. His trial is down the road somewhere. So don\u2019t go back there and say we have to do this because of Cecil. No. Cecil\u2019s trial is for another day. Cecil needs to be held just as responsible as the defendant.\nIn contending that the prosecutor\u2019s argument was improper because he knew that Cecil would not be held just as accountable as defendant, defendant points to the indictment of Cecil Henson for accessory after the fact to murder.\nAlthough the record on appeal contains a copy of Cecil Henson\u2019s indictment dated 28 March 2005, our review of the record does not indicate that the indictment was ever provided to the court. Inclusion of the indictment in the record on appeal, therefore, violated the Rules of Appellate Procedure. See N.C.R. App. P. 9(a)(3) and 11(c). \u201cThe role of an appellate court is to review the rulings of the lower court, not to consider new evidence or matters that were not before the trial court.\u201d Citifinancial, Inc. v. Messer, 167 N.C. App. 742, 748, 606 S.E.2d 453, 457 (Steelman, J., concurring), appeal dismissed and disc. review denied, 359 N.C. 410, 612 S.E.2d 317 (2005).\nNevertheless, immediately prior to Cecil Henson\u2019s being called by defendant as a witness, the trial court asked whether the charges against Henson were the same or different from those against defendant. The prosecutor responded: \u201cAt this point it\u2019s accessory after the fact of murder.\u201d (Emphasis added.) Based on that pending charge, the prosecutor\u2019s statements in the closing argument regarding Henson\u2019s going to trial were not inaccurate. With respect to the assertion that \u201cCecil needs to be held just as accountable as the defendant,\u201d the record contains no indication \u2014 and defendant does not argue on appeal \u2014 that the State was in any way precluded from seeking an indictment against Henson for additional charges. As the prosecutor\u2019s answer to the trial court indicated, the charge of accessory after the fact was simply the only charge pending at that point. We do not, therefore, believe that the prosecutor\u2019s statement was so grossly improper as to require the court to intervene ex mero mo tu.\nDefendant also asserts that the trial court should have intervened during the following portions of the State\u2019s closing argument:\nOne thing to remember in all of this is that the Defense is trying to make Cecil stand out. And as I said Cecil\u2019s trial is another day. It\u2019s not today. But they are trying to make Cecil look like really the bad guy. Well, you saw Cecil when he walked up here. You saw Cecil when he was back at the back the first day when he was asleep in the back. And he is trying to say that Cecil is the ring leader of this and Cecil is the real problem.\nCecil doesn\u2019t have the personality to be the real problem in this. This defendant does, not Cecil. Cecil is an old man. You saw him walk up there. And he is the man that they are trying to say is responsible for this. No. The defendant is a young man. The defendant could have stopped it at any point.\nAccording to defendant, these statements amounted to the prosecutor\u2019s personal opinion and were not based on evidence that was properly admitted at trial. We disagree.\nA prosecutor\u2019s closing argument must \u201c(1) be devoid of counsel\u2019s personal opinion; (2) avoid name-calling and/or references to matters beyond the record; (3) be premised on logical deductions, not on appeals to passion or prejudice; and (4) be constructed from fair inferences drawn only from evidence properly admitted at trial.\u201d Jones, 355 N.C. at 135, 558 S.E.2d at 108. Here, the prosecutor was not interjecting his personal opinion or relying upon matters outside the evidence.\nThe jurors had an opportunity to observe both Cecil Henson and defendant. In the closing argument, the prosecutor simply asked the jurors to take into account those observations regarding physical characteristics and courtroom behavior in determining the credibility of defendant\u2019s contention that Cecil Henson was the ring leader. Observing the parties and the witnesses in order to assess credibility and determine the weight to give to the evidence is part of the jury\u2019s responsibility. See State v. Allen, 360 N.C. 297, 307-08, 626 S.E.2d 271, 281 (holding that prosecutor could properly argue that it \u201cwould be hard to imagine\u201d third person shooting the victim because of her size), cert. denied, - U.S. -, 166 L. Ed. 2d 116, 127 S. Ct. 164 (2006); State v. Brown, 320 N.C. 179, 199, 358 S.E.2d 1, 15 (\u201cUrging the jurors to observe defendant\u2019s demeanor for themselves does not inject the prosecutor\u2019s own opinions into his argument, but calls to the jurors\u2019 attention the fact that evidence is not only what they hear on the stand but what they witness in the courtroom.\u201d), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). We, therefore, hold that the trial court did not err in failing to intervene as to this portion of the State\u2019s closing argument.\nNo error.\nJudges CALABRIA and JACKSON concur.\n. Rule 103(a)(2) states: \u201cOnce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.", "Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT KIRBY, Defendant\nNo. COA06-1593\n(Filed 4 December 2007)\n1. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to renew objection\nThe defendant in a first-degree murder prosecution could not show ineffective assistance of counsel from his counsel\u2019s failure to renew his objection to inculpatory testimony from his wife after his motion in limine was denied. The testimony was admissible in that it related a statement made by defendant in the presence of a third party and was thus not a confidential statement.\n2. Homicide\u2014 sufficiency of evidence \u2014 specific intent to kill\nThe trial court did not err by denying defendant\u2019s motion to dismiss a first-degree murder charge for insufficient evidence of the specific intent to kill. Proof of premeditation and deliberation is also proof of intent to kill, and the State presented evidence of most of the circumstances for proving premeditation and deliberation by circumstantial evidence.\n3. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 charges against accessory \u2014 argument accurate\nThere was no plain error in a prosecution for first-degree murder where the trial court did not intervene during the State\u2019s closing argument that an alleged accessory would be tried on another day and needed to be held just as responsible as defendant. The statements in the argument were accurate.\n4. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 testimony from accessory \u2014 not personal opinion\nThere was no plain error in a first-degree murder prosecution where the trial court did not intervene in the prosecutor\u2019s closing argument concerning an accessory. Although defendant contended that the prosecutor\u2019s statements amounted to personal opinion, the prosecutor simply asked the jurors to take into account their observations of the physical characteristics and courtroom behavior of defendant and the accessory in determining the credibility of defendant\u2019s contention that the accessory was the ringleader.\nAppeal by defendant from judgment entered 7 June 2006 by Judge C. Phillip Ginn in Rutherford County Superior Court. Heard in the Court of Appeals 22 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.\nMassengale & Ozer, by Marilyn G. Ozer, for defendant-appellant." }, "file_name": "0367-01", "first_page_order": 397, "last_page_order": 408 }