{ "id": 4772035, "name": "STATE OF NORTH CAROLINA v. ROBERT LEWIS WINGARD", "name_abbreviation": "State v. Wingard", "decision_date": "1986-08-12", "docket_number": "No. 306A85", "first_page": "590", "last_page": "602", "citations": [ { "type": "official", "cite": "317 N.C. 590" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "325 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757749 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0647-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "309 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "319 S.E. 2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "311 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686205 ], "year": 1984, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0465-01" ] }, { "cite": "298 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "298 S.E. 2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "300 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565507 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0679-01" ] }, { "cite": "284 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569381 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0523-01" ] }, { "cite": "308 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "322 S.E. 2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749024 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0286-01" ] }, { "cite": "259 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "289 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "year": 1979, "opinion_index": 0 }, { "cite": "274 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "293 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "476 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12835 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0162-01" ] }, { "cite": "742 F. 2d 129", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 613235 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/742/0129-01" ] }, { "cite": "578 F. Supp. 1164", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3637107 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f-supp/578/1164-01" ] }, { "cite": "325 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "313 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "310 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402528 ], "year": 1984, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0530-01" ] }, { "cite": "275 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] } ], "analysis": { "cardinality": 980, "char_count": 26811, "ocr_confidence": 0.776, "pagerank": { "raw": 3.407091234261789e-07, "percentile": 0.877771059239361 }, "sha256": "10c36ae66729b8f127c096052b58088e637f05d86ca7914258130c58c21348dc", "simhash": "1:857bc022046d897e", "word_count": 4453 }, "last_updated": "2023-07-14T14:55:24.016055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEWIS WINGARD" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant argues eleven assignments of error on this appeal. He contends that the trial court erred in denying his motions to compel disclosure of the theory upon which the State sought to convict him, to disclose criminal records of the State\u2019s witnesses, to prohibit death qualification of the jury, and to allow individual voir dire and sequestration of prospective jurors. Defendant further alleges that the trial court erred in allowing notes to be read into evidence; testimony as to the meaning of \u201crollers\u201d; testimony concerning a statement made by an eyewitness to the shooting; and evidence that the victim was pregnant at the time of the shooting. Lastly, defendant contends that the trial court erred in failing to give a jury instruction on involuntary manslaughter, and in overruling objections to portions of the prosecutor\u2019s closing arguments. We find no reversible error.\nDefendant was charged with murder in the first degree. The State\u2019s evidence tended to show that on the evening of 31 December 1983, defendant went to Beverly Roselle Howell\u2019s apartment and loaded several guns. He placed a threatening note on the kitchen table and told Ms. Howell\u2019s twelve-year-old son to give the note to his mother when she came home. Several days earlier defendant had left another threatening note for Ms. Howell.\nSometime between the hours of 2:00 and 3:00 a.m., 1 January 1984, defendant went to an apartment in Deaverview Apartments where Ms. Howell was attending a New Year\u2019s party. With a pistol in his right hand, defendant approached Ms. Howell, grabbed her hair with his left hand, and began hitting her with his right hand. Mr. Ray, a guest at the party, attempted to break up the fight. After the parties struggled for a brief period, defendant pushed Ms. Howell to the floor, and tried to kick her in the face. She raised her hands to block the kick and defendant shot her in the head. Defendant then bent over Ms. Howell with the gun still in his hand. At this point, Mr. Ray said \u201cnot to shoot her no more because he had already killed her.\u201d Defendant yelled, \u201cHell, yes, the bitch is dead,\u201d and turned to Juanita Taylor, the deceased\u2019s friend, and said, \u201cYou too, Puddin\u2019. You\u2019re next.\u201d Defendant went outside the apartment and fired the gun several times into the air.\nMs. Howell died on 10 March 1984 of bronchopneumonia. Dr. George Lacy, the pathologist who performed the autopsy, testified that the initiating cause of Ms. Howell\u2019s death was a gunshot wound to the head. Defendant offered no evidence.\nThe jury returned a verdict of guilty of murder in the first degree. At the sentencing hearing the jury found one aggravating circumstance and five mitigating circumstances and also found that the mitigating circumstances were insufficient to outweigh the aggravating circumstance found by the jury. Nevertheless the jury failed to find beyond a reasonable doubt that the aggravating circumstance found by the jury was sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances found by it. Following the unanimous recommendation of the jury, defendant was sentenced to life imprisonment.\nI.\nDefendant contends that the trial court erred in denying his motion to compel the State to disclose prior to trial the theory on which it sought to convict him of murder in the first degree.\nIt is well established that \u201cthe State is not generally required to elect between legal theories in a murder prosecution prior to trial.\u201d State v. Silhan, 302 N.C. 223, 235, 275 S.E. 2d 450, 462 (1981). \u201cWhere the factual basis for the prosecution is sufficiently pleaded, defendant must be prepared to defend against any and all theories which these facts support.\u201d Id. Defendant did not file a motion for a bill of particulars nor does he now challenge the sufficiency of the indictment. After examining the record, we conclude that the murder indictment set out sufficient factual information to enable defendant to understand the basis of the State\u2019s case against him. Defendant has not shown how an election between legal theories would have aided his trial preparation, nor has he shown any other prejudice. The trial judge did not err in denying defendant\u2019s motion.\nII.\nDefendant contends that the trial court erred in denying his motion to compel the State to disclose the criminal records of its witnesses in the case against him on the grounds that such information would have aided him in his defense.\nThe pertinent statute, N.C.G.S. \u00a7 15A-903, \u201cdoes not grant the defendant the right to discover the names and addresses, let alone the criminal records, of the State\u2019s witness.\u201d State v. Robinson, 310 N.C. 530, 536, 313 S.E. 2d 571, 575 (1984). Therefore, defendant\u2019s motion was properly denied.\nWe note that the record shows that defendant was given considerable information about the State\u2019s witnesses and the evidence against him. Defendant in arguing his motion to compel discovery stated that the prosecutor had \u201copened his files\u201d to him. The evidence discloses that the district attorney gave defendant copies of the contents of his file in this case. Defendant\u2019s assignment of error is without merit.\nIII.\nDefendant next contends that the trial court erred in denying his motion to prohibit \u201cdeath qualification\u201d of the jury prior to the guilt-innocence phase of the trial. Defendant asks this Court to reconsider its holding in State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985), in light of \u201coriginal\u201d arguments presented in Keeten v. Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984), rev'd, 742 F. 2d 129 (4th Cir. 1984).\nIn a recent United States Supreme Court decision, Lockhart v. McCree, 476 U.S. 162, 90 L.Ed. 2d 137 (1986), the Court held that \u201cdeath qualification\u201d of the jury in capital cases does not violate the federal constitution. The trial judge properly denied defendant\u2019s motion.\nIV.\nDefendant contends that the trial judge erred in overruling his motion for individual voir dire and sequestration of prospective jurors on the grounds that N.C.G.S. \u00a7 15A-1214(j) provides for such procedure and the denial of the motion denied him a fair trial. By this assignment, defendant asks this Court to reconsider our decisions holding that it is within the trial judge\u2019s discretion to allow a motion for individual voir dire and sequestration of prospective jurors, and his rulings thereon will not be reversed absent a showing of abuse of that discretion. See State v. Brown, 306 N.C. 151, 293 S.E. 2d 569 (1982); State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Barfield, 289 N.C. 306, 259 S.E. 2d 510 (1979). Defendant has neither alleged nor shown any abuse of discretion by the trial judge in the instant case. Nor does defendant advance any argument showing how the denial of the motion prejudiced him. We decline to reconsider our previous holdings on this issue.\nV.\nDefendant next contends that the trial judge erred in allowing two \u201cnotes\u201d written by him to the victim to be read into evidence over his objections.\nSeveral days prior to the shooting, defendant left the following note for the victim:\nI\u2019ve just heard you were up town running your Up. And other things. Your ass is mine. Lewis\nOn the night of the shooting defendant left another note for the victim at her apartment as follows:\nNow lady I knew this was coming down \u2014 that\u2019s why I said go by yourself. You are dumb. Yeah. Girl you have just put you and your partner in the hospital. Pray that I can\u2019t find you. Lewis. Your Executioner. P.S. Ain\u2019t no way you can get out of this. If you call the rollers I will get out. So you are in Big Trouble. You better Hide. Their [sic] is no way you can hide.\nThe victim\u2019s son gave the notes to the police when they came to his mother\u2019s apartment investigating the shooting. At the trial, the boy identified State\u2019s exhibits #1 and #2 as the notes written by defendant. Lieutenant Foster, Asheville Police Department, testified that exhibits #1 and #2 were the notes given to him by the boy on the night of the shooting. Shortly after receiving the notes, Foster went to police headquarters and gave the notes to Detective Lambert. Detective Lambert, Asheville Police Department, testified that State\u2019s exhibits #1 and #2 were the notes given to him by Lieutenant Foster on the night of the shooting and that the notes had been in his custody and control since that time. Over defendant\u2019s objection Detective Lambert was allowed to read the notes. The State\u2019s request to have the notes introduced into evidence was granted and the notes were examined by the jurors. Defendant\u2019s argument is that the trial judge circumvented the Best Evidence Rule by allowing the notes to be read to the jury prior to being introduced into evidence.\nN.C.G.S. \u00a7 8C-1, Rule 1002, the Best Evidence Rule, provides that \u201cto prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.\u201d During the witnesses\u2019 testimony concerning the contents of the notes, the original notes were in the courtroom and in the hands of the persons testifying about them. Thereafter, the notes were introduced into evidence and examined by the jurors. In view of the fact that the State produced the original notes in proving the contents of the notes, there was no violation of the Best Evidence Rule. The order in which the notes were read and introduced as exhibits has no bearing on whether the writing itself violates the Best Evidence Rule. Defendant\u2019s assignment of error is without merit.\nVI.\nDefendant contends that the trial court erred in allowing witness Taylor to testify as to the meaning of the term \u201crollers\u201d used in one of the notes written by defendant on the grounds that such evidence was irrelevant in the case against him.\nIn the note left by defendant on the night of the shooting, defendant wrote: \u201cIf you call the rollers I will get out.\u201d On direct examination, the prosecutor asked witness Taylor if she knew what the term \u201crollers\u201d meant. Over defendant\u2019s objection, she was allowed to testify that she had heard defendant use \u201crollers\u201d when referring to the police. Defendant contends that such testimony was irrelevant to the issues in this case, and therefore was inadmissible evidence.\nRelevant evidence is \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (Cum. Supp. 1985). Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. State v. Hannah, 312 N.C. 286, 322 S.E. 2d 148 (1984); State v. Bates, 309 N.C. 528, 308 S.E. 2d 258 (1980). The note left at the victim\u2019s apartment on the night of the shooting was unquestionably relevant in this case since it showed defendant\u2019s unrelenting desire and intent to locate the victim and to do her physical harm. The definition of terms used in the note unlikely to be familiar to the jurors would also appear to be relevant. Assuming, arguendo, that the relevance of this evidence is too attenuated for it to have been properly admitted, defendant has not demonstrated how it was prejudicial to his interests. See N.C.G.S. \u00a7 15A-1443(a) (1983).\nVIL\nDefendant contends that the trial court erred in allowing witness Bryant to testify that after defendant shot Ms. Howell, Mr. Ray, a bystander, told defendant \u201cnot to shoot her no more because he had already killed her.\u201d Defendant argues that the statement was hearsay which does not fall within any recognized exception to the hearsay rule.\nEvidence is hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness who is testifying at the hearing or trial and is offered in evidence to prove the matter asserted therein. N.C.G.S. \u00a7 8C-1, Rule 801(c) (Cum. Supp. 1985); 1 Brandis on North Carolina Evidence \u00a7 138 (Supp. 1983). Hearsay evidence is inadmissible unless an exception is applicable. Commentary, N.C.G.S. \u00a7 8C-1, Rule 802 (Cum. Supp. 1985).\nThe evidence to which defendant objects is clearly hearsay. Its probative value depended on the competency and credibility of a person other than the witness testifying. In fact, Mr. Ray, the person to whom the statement was attributed, was not called by either party to testify at trial. Therefore, if we assume that the evidence was offered to prove the matter asserted therein, the propriety of the trial court\u2019s ruling depends on whether the evidence falls within an exception to the hearsay rule.\nN.C.G.S. \u00a7 8C-1, Rule 803, lists twenty-four exceptions to the hearsay rule where the availability of the declarant at trial is immaterial. The \u201cexcited utterance\u201d exception, Rule 803(2), is applicable in the case at hand. An excited utterance is a \u201cstatement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\u201d N.C.G.S. \u00a7 8C-1, Rule 803(2) (Cum. Supp. 1985). This statutory exception is the codification of the common-law exception, spontaneous utterance. See State v. Murvin, 304 N.C. 523, 284 S.E. 2d 289 (1981). The rationale for the admissibility of an excited utterance is its trustworthiness. \u201cCircumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.\u201d Commentary, N.C.G.S. \u00a7 8C-1, Rule 803 (Cum. Supp. 1985).\nIn the instant case, the statement to which defendant objects was made by a person standing near the spot where the victim was shot. The statement was made immediately after defendant shot the victim and bent over her with the gun still in his hand. It was clearly a statement relating to the startling attack and shooting while the declarant was under the stress of excitement caused by the event. As such, it is an excited utterance within the meaning of Rule 803(2) and admissible into evidence notwithstanding its hearsay character.\nWe also note that defendant waived his objection to the testimony concerning the statement made by Mr. Ray after the shooting. After witness Bryant testified on direct examination as to Mr. Ray\u2019s statement, defense counsel, on cross-examination, elicited the same testimony to which no objection was made. It is a well-settled rule that \u201cif a party objects to the admission of certain evidence and the same or like evidence is later admitted without objection, the party has waived the objection to the earlier evidence.\u201d 1 Brandis on North Carolina Evidence \u00a7 30 (1982); State v. Tysor, 307 N.C. 679, 300 S.E. 2d 366 (1983). Therefore, witness Bryant\u2019s testimony on cross-examination as to what Mr. Ray said after the shooting operated as a waiver of defendant\u2019s objection to her testimony on direct examination.\nVIII.\nDefendant argues that the trial court erred in denying his motion in limine and in allowing the pathologist\u2019s testimony that the victim was pregnant at the time of the shooting. Defendant contends that this evidence was irrelevant, and even if relevant, its prejudicial effect outweighed its probative value. According to the State, evidence of the pregnancy is a collateral issue but relevant since it relates to the ability of the victim to protect herself in the struggle with defendant.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (Cum. Supp. 1985). In light of the fact that defendant did not assert self-defense as a defense to the crime, we agree with defendant\u2019s contention that evidence that the victim was pregnant at the time of the shooting was irrelevant, at least during the guilt-innocence phase of the trial. Nevertheless, the admission of irrelevant evidence is generally considered harmless error and not reversible error unless it is of such a nature as to mislead the jury. State v. Alston, 307 N.C. 321, 298 S.E. 2d 631 (1983). Defendant has the burden of showing that he was prejudiced by the admission of the evidence. Id. Defendant has clearly failed to show that he was prejudiced by the admission of the irrelevant evidence. N.C.G.S. \u00a7 15A-1443(a) (1983).\nIX.\nDefendant argues that the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter. It is defendant\u2019s contention that since there was evidence of a \u201cstruggle\u201d or \u201cscuffle\u201d between him and the victim, an inference can be drawn that he unintentionally killed the victim by means of a culpably negligent act.\nThe trial court is not required to charge the jury on the question of defendant\u2019s guilt of lesser degrees of the crime charged in the indictment where there is no evidence to sustain a verdict of such lesser degrees. State v. Strickland, 307 N.C. 274, 298 S.E. 2d 645 (1983). We must, therefore, determine whether there was evidence at trial to support a verdict of involuntary manslaughter.\nInvoluntary manslaughter is \u201cthe unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\u201d State v. Hill, 311 N.C. 465, 471, 319 S.E. 2d 163, 167 (1984).\nIn the instant case, defendant did not testify or put on any evidence. The State's evidence tended to show that on the night of the shooting defendant went to the victim\u2019s apartment, loaded several guns, left a threatening note for the victim, and left, taking the guns with him. Later that night, defendant went to an apartment where the victim was attending a party, grabbed her by her hair, and began hitting her. He threw her to the floor, tried to kick her in the face, and then shot her in the head. Defendant yelled, \u201cHell, yes, the bitch is dead,\u201d and then said to Juanita Taylor, a friend of the deceased, \u201cYou, too, Puddin\u2019. You\u2019re next.\u201d The State\u2019s evidence, if believed, tends to show an intentional killing. There was no evidence presented from which the jury might infer that there was an unintentional discharge of the weapon. See State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983). Therefore, the trial judge did not err in failing to instruct on involuntary manslaughter.\nX.\nWe now consider defendant\u2019s assignments of error X and XI, both dealing with statements made by the prosecutor in his closing argument to the jury. Defendant contends that the trial court erred in overruling his objections to the prosecutor\u2019s argument that defendant was \u201chunting\u201d the victim, and the argument that \u201cLadies and gentlemen, the State of North Carolina deserves a verdict of guilty to first degree murder, and as spokesman for the State I demand that verdict and . . . .\u201d\nThis Court has consistently stated that \u201cargument of counsel must be left largely to the control and discretion of the presiding judge and that counsel must be allowed wide latitude in the argument of hotly contested cases.\u201d State v. Monk, 286 N.C. 509, 515, 212 S.E. 2d 125, 131 (1975). Counsel for both sides are entitled to argue before the jury law and facts in evidence and all reasonable inferences to be drawn therefrom. Id. However, \u201ccounsel may not place before the jury incompetent and prejudicial matters, and may not \u2018travel outside the record\u2019 by injecting into his argument facts of his own knowledge or other facts not included in the evidence. Nor may counsel argue principles of law not relevant to the case.\u201d Id. It is the duty of the trial court, upon objection, to censor remarks not warranted by either the evidence or the law or remarks calculated to mislead or prejudice the jury. Id. \u201cIf the impropriety is gross it is proper for the court even in the absence of objection to correct the abuse ex mero motu.\u201d Id.\nDefendant contends that in arguing that he was \u201chunting\u201d the victim, the prosecutor traveled outside the record and injected facts not in evidence. It is clear in this case that the prosecutor\u2019s argument was a reasonable inference to be drawn from the evidence. On the night of the shooting, defendant left the victim a note stating, \u201cPray that I can\u2019t find you.\u201d Defendant left Ms. Howell\u2019s apartment, carrying a loaded weapon, and later arrived at an apartment where she was attending a party. Defendant immediately attacked and shot her. A reasonable inference from this evidence is that defendant was vigorously searching for Ms. Howell. Therefore, the prosecutor\u2019s use of the term \u201chunting\u201d when describing defendant\u2019s actions was compatible with the evidence in the case. The trial judge acted properly in overruling defendant\u2019s objection.\nDefendant next contends that the trial judge erred in overruling his objection to the prosecutor's statement that the State of North Carolina deserved a verdict of guilty of first degree murder, and as spokesman for the State he demanded such a verdict. Defendant argues that in making this argument, the prosecutor placed before the jury incompetent and prejudicial matters. We disagree with defendant\u2019s contention. When the prosecutor\u2019s jury argument is considered as a whole, as it must be, we find that the statement to which defendant objects was nothing more than an assertion that the evidence at trial warranted a conviction for the charged crime. See State v. Payne, 312 N.C. 647, 325 S.E. 2d 205 (1985). This is a permissible argument. The trial judge properly overruled defendant\u2019s objection.\nDefendant\u2019s trial was free from prejudicial error.\nNo error.\n. Defendant has expressly abandoned his objection to the introduction of the notes.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.", "J. Robert Hufstader, Public Defender, and John Byrd, Assistant Public Defender, for the Twenty-Eighth Judicial District, for defendant-appe llant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEWIS WINGARD\nNo. 306A85\n(Filed 12 August 1986)\n1. Indictment and Warrant \u00a7 8.4\u2014 murder \u2014 election between theories \u2014 not required\nThe trial court did not err in a first degree murder prosecution by denying defendant\u2019s motion to compel the State to disclose prior to trial the theory on which it sought to convict him where the indictment set out sufficient factual information to enable defendant to understand the basis of the State\u2019s case against him and defendant did not show how an election between legal theories would have aided his trial preparation or show any other prejudice.\n2. Constitutional Law \u00a7 30\u2014 State not required to disclose criminal records of witnesses \u2014 no prejudice\nThe trial court in a first degree murder prosecution did not err by denying defendant\u2019s motion to compel the State to disclose the criminal records of its witnesses because N.C.G.S. \u00a7 15A-903 does not give the defendant the right to the names of the State\u2019s witnesses, let alone their criminal records, and because defendant was given considerable information about the State\u2019s witnesses and the evidence against him.\n3. Constitutional Law \u00a7 63\u2014 death qualified jury constitutional\nThe trial court did not err in a first degree murder prosecution by denying defendant\u2019s motion to prohibit death qualification of the jury.\n4. Jury \u00a7 6\u2014 first degree murder \u2014 individual voir dire and sequestration denied \u2014no error\nThe trial court did not err in a first degree murder prosecution by overruling defendant\u2019s motion for individual voir dire and sequestration of prospective jurors where defendant neither alleged nor showed any abuse of discretion by the trial judge and did not advance any argument showing how the denial of the motion prejudiced him. N.C.G.S. \u00a7 15A-1214(j).\n5. Criminal Law \u00a7 81\u2014 best evidence rule \u2014 order in which document read and introduced\nThe trial court did not err in a first degree murder prosecution by allowing two threatening notes to the victim to be read into evidence where the State later produced the original notes in proving the contents of those notes. The order in which the notes were read and introduced as exhibits has no bearing on whether the notes violated the best evidence rule. N.C.G.S. \u00a7 8C-1, Rule 1002.\n6. Homicide \u00a7 15\u2014 threatening notes \u2014 definition of word \u2014 relevant\nThe trial court did not err in a prosecution for first degree murder by allowing a witness to define \u201crollers\u201d as used in a threatening note from defendant to his victim where the witness had heard defendant use \u201crollers\u201d when referring to the police; the note was unquestionably relevant since it showed defendant\u2019s unrelenting desire and intent to locate the victim and do her physical harm; defining terms in the note unlikely to be familiar to jurors would appear to be relevant; and defendant did not demonstrate how it was prejudicial to his interests. N.C.G.S. \u00a7 8C-1, Rule 401 (Cum. Supp. 1985); N.C.G.S. \u00a7 15A-1443(a) (1983).\n7. Criminal Law 88 73.4, 162\u2014 murder \u2014 statement of bystander \u2014 excited utterance\nThe trial court did not err in a first degree murder prosecution by admitting testimony that a bystander told defendant not to shoot his victim any more because he had already killed her where the statement was an excited utterance within the meaning of N.C.G.S. \u00a7 8C-1, Rule 803(2); moreover, defendant waived his objection by eliciting the same testimony on cross-examination.\n8. Homicide 8 15\u2014 first degree murder \u2014 testimony that victim pregnant \u2014 no prejudice\nDefendant failed to show in a first degree murder prosecution that he was prejudiced by the admission of irrelevant testimony that the victim was pregnant. N.C.G.S. \u00a7 15A-1443(a) (1983).\n9. Homicide 8 30.3\u2014 first degree murder \u2014 failure to instruct on involuntary manslaughter \u2014 no error\nThe trial judge did not err in a first degree murder prosecution by failing to instruct the jury on involuntary manslaughter where there was no evidence from which the jury might infer that there was an unintentional discharge of the weapon.\n10.Criminal Law 8 102.6\u2014 first degree murder \u2014 argument of prosecutor \u2014 no error\nThe trial court did not err in a first degree murder prosecution by overruling defendant\u2019s objections to statements in the prosecutor\u2019s closing argument that defendant was hunting the victim, that the State of North Carolina deserved a guilty verdict, and that as spokesman for the State, he demanded such a verdict.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment entered by Ferrell, J., at the 21 January 1985 Criminal Session of Superior Court, Buncombe County, imposing life imprisonment upon a jury verdict of guilty of murder in the first degree. Heard in the Supreme Court 15 April 1986.\nLacy H. Thornburg, Attorney General, by Dennis P. Myers, Assistant Attorney General, for the State.\nJ. Robert Hufstader, Public Defender, and John Byrd, Assistant Public Defender, for the Twenty-Eighth Judicial District, for defendant-appe llant." }, "file_name": "0590-01", "first_page_order": 626, "last_page_order": 638 }