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STATE OF NORTH CAROLINA v. ANTIONE DENARD ALLEN
STATE OF NORTH    CAROLINA v. MARSHALL DEWONE GILLESPIE
No.  68A00
(Filed  8 June  2001)
Criminal Law--prosecutor’s argument--credibility of hearsay
statements--communication of judge’s ruling
A prosecutor violated N.C.G.S.  §  15A-1230(a) in a first-
degree murder prosecution by traveling outside the record in his
closing argument to disclose the legal opinion of the trial court
as to the credibility of hearsay evidence where a witness had
returned to Mexico and was unavailable, the court allowed an
officer to testify as to her statements, and the prosecutor
argued that the court had found the statements to be trustworthy
and reliable.    The jurors were not entitled to hear the trial
judge’s legal findings and conclusions regarding the
admissibility of these hearsay statements, the argument clearly
conveyed an opinion as to the credibility of the evidence
attributed directly to the trial judge in his presence, and the
judge then overruled defendant’s objection.    Special care must be
taken against expressing or revealing to the jury legal rulings
which have been made by the trial court; although this court did
not convey an improper opinion in its own words, it did allow the
prosecutor to convey the court’s opinion with virtually the same
effect. Much of the State’s evidence was circumstantial and this
evidence was possibly determinative; it cannot be said that there
is no reasonable possibility of a different result without this
argument.
Appeal as of right pursuant to N.C.G.S.  §  7A-27(a) from
judgments imposing a sentence of death upon each defendant
entered by Cornelius, J., on  5 August  1999 in Superior Court,
Forsyth County, upon jury verdicts finding defendants guilty of
first-degree murder.    On  22 February  2000 and  10 April  2000, the
Supreme Court allowed defendant Gillespie’s and defendant Allen’s
respective motions to bypass the Court of Appeals as to their
appeals of additional judgments.    Heard in the Supreme Court
12 February  2001.
Roy A. Cooper, Attorney General, by Ellen B. Scouten,
Special Deputy Attorney General, for the State.
Robert K. Leonard and Teresa L. Hier for defendant-appellant




Allen.
F. Kevin Mauney and Nils E. Gerber for defendant-appellant
Gillespie.
LAKE, Chief Justice.
Defendants Antione Denard Allen and Marshall Dewone
Gillespie were indicted for the murders of Feliciano Noyola and
Esmeralda Noyola, and were tried capitally at the  12 July  1999
Criminal Session of Superior Court, Forsyth County.    The jury
found each defendant guilty of two counts of first-degree murder
under the felony murder rule.    Following a capital sentencing
proceeding, for the murder of Esmeralda Noyola, the jury
recommended a sentence of death for defendant Gillespie and life
imprisonment without parole for defendant Allen.    For the murder
of Feliciano Noyola, the jury recommended a sentence of death for
defendant Allen and life imprisonment without parole for
defendant Gillespie.    On  5 August  1999, the trial court sentenced
each defendant to one sentence of death and one sentence of life
imprisonment, in accordance with the jury’s recommendations.
After a thorough review of the issues raised on appeal and
for the reasons discussed herein, we conclude that defendants are
entitled to a new trial.
The State’s evidence at trial tended to show that the
victims resided in an apartment at  1231-B Gholson Street in
Winston-Salem, North Carolina.    At approximately  7:10 p.m. on the
evening of  27 January  1998, Officer T.G. Brown of the Winston-
Salem Police Department arrived at this apartment in response to
a reported shooting.    Officer Brown entered the apartment and




found two Hispanic women, later identified as Maria Santos and
Justina Dominguez.    Both women were crying and agitated, and
neither woman spoke English.    Ms. Santos showed Officer Brown a
child, later identified as Esmeralda Noyola, who was lying on the
floor inside one of the bedrooms.    She exhibited no signs of
life.    Officer Brown also saw the body of a man, later identified
as Feliciano Noyola, lying on the kitchen floor.    The officer
placed Ms. Santos and Ms. Dominguez in a vacant bedroom and
called for an ambulance and additional officers.
United States Secret Service Agent Rafael Barros responded
to Officer Brown’s request for additional officers.    Agent Barros
testified at trial that he was employed by the Winston-Salem
Police Department in January  1998 and that he speaks Spanish
fluently.    At approximately  7:20 p.m., he arrived at the scene of
the incident and spoke with Ms. Santos and Ms. Dominguez.    Ms.
Santos told him that she was the mother of Esmeralda Noyola.    Ms.
Santos also told him that three black males entered the apartment
through the front door, demanded money and shot Feliciano Noyola
and her daughter.    Agent Barros also testified that Ms. Santos
appeared confused and was unable to provide an accurate
description of the suspects at that time.
Ms. Dominguez told Agent Barros that she was the wife of
Feliciano Noyola.    She also told him that while she was in a
bedroom feeding her baby, a black male entered, grabbed the gold
chain she was wearing from her neck and left the room.    Ms.
Dominguez then heard people arguing and heard gunshots, but she
never left the bedroom while the intruders were in the apartment.




On  28 January  1998, Agent Barros showed a photographic
lineup to Ms. Santos and Ms. Dominguez.    Agent Barros testified
that Ms. Santos identified the picture of defendant Gillespie as
the man who shot her daughter, but he also stated that she was
not positive in her selection.    Ms. Dominguez did not identify
defendant Gillespie.    Neither woman identified defendant Allen.
Both women subsequently returned to Mexico.    Agent Barros
testified that he attempted to persuade them to return to the
United States for trial.    He told the two women that he would
travel to Mexico and assist them in returning to the United
States, including entering the country legally for the trial.    He
informed them that transportation and accommodations would be
arranged and paid for by a governmental agency, and that child-
care assistance would be provided.    Despite these efforts, both
women refused to return for the trial.    Ms. Santos told Agent
Barros that she could not return because she had to care for her
sick mother.    Ms. Dominguez stated that she could not return
because she had to care for her three children.    Subpoenas were
issued for both Ms. Santos and Ms. Dominguez, but they were
returned unserved.
Stephon Hairston and Kenyon Grooms also testified as
witnesses for the State.    Hairston admitted his involvement in
the robbery.    He testified that five men, including Grooms, the
two defendants and himself, proceeded to Gholson Street to commit
the robbery on the evening of  27 January.    He also stated that
defendant Gillespie carried a nine-millimeter semiautomatic
pistol the night of the murders.    Both Hairston and Grooms




testified that defendant Allen carried an assault rifle before he
entered the apartment.
On  28 January  1998, Dr. Patrick E. Lantz, a forensic
pathologist, performed autopsies on both victims.    Dr. Lantz
found entrance and exit gunshot wounds and multiple projectile
fragments in the abdomen area of Feliciano Noyola.    Dr. Lantz
stated that the bullet entered on the right side of the abdomen
and hit the liver, right kidney and spine, where it fragmented
and hit the aorta and left kidney, and exited at the hipbone.
The wounds to Feliciano Noyola and bullet fragmentation found in
his body were characteristic of a high-powered rifle.    Dr. Lantz
also found an entrance gunshot wound over the left shoulder blade
and an exit wound on the right side of the neck of Esmeralda
Noyola.    The wounds were consistent with having been caused by a
nine-millimeter bullet.
On appeal, defendants contend that the trial court committed
reversible error in allowing the prosecutor to improperly convey
to the jury a ruling made by the trial court concerning the
admissibility of Ms. Santos’ statements, in violation of N.C.G.S.
§  15A-1230.    Specifically, the trial court ruled on voir dire
that the first statements made by Ms. Santos and Ms. Dominguez to
the officer at the scene on the evening of  27 January  1998 were
admissible, through the testimony of Agent Barros, under Rules
803(1) and  803(2) of the North Carolina Rules of Evidence, which
establish the admissibility of hearsay evidence conveying
present-sense impressions and excited utterances, respectively.
N.C.G.S.  §  8C-1, Rules  803(1)-(2)  (1999).    The trial court also




ruled that the statements and photographic identification made by
Ms. Santos on  28 January  1998 were admissible, through the
agent’s testimony, under Rule  804(b)(5) of the North Carolina
Rules of Evidence, which establishes the residual exception to
the prohibition of hearsay evidence.    N.C.G.S.  §  8C-1, Rule
804(b)(5)  (1999).    The trial court made these rulings outside the
presence of the jury.
We note the assignments of error brought forward on appeal
by defendants with respect to these rulings themselves, and while
we have some reservation as to the rationales proffered by the
trial court for the underlying admissibility of several of the
hearsay statements given to Agent Barros, we conclude these
issues are not dispositive and, in any event, will be unlikely to
arise at retrial.    We therefore address the more fundamental
issue of undue prejudicial error in the prosecutor’s closing
argument concerning these same statements.
During closing arguments in the guilt-innocence phase of the
trial, the prosecutor stated, in part:
We told you in the beginning we didn’t have an
eyewitness, but we do have an eyewitness, we have Maria
Santos.    She’s an eyewitness in this case and she spoke
through you--to you through the words of Rafael Barros
who talked to her that night.    She described what she
saw, how many people entered her house.    And you heard
her words through Officer Barros, because the Court let
you hear it, because the Court found they were
trustworthy and reliable.  .  .                                        .    If there had been
anything wrong with that evidence, you would not have
heard that.
Counsel for defendant Gillespie objected to this portion of the
argument, and the trial court overruled the objection.
Defendants now contend that the prosecutor’s argument




impermissibly traveled outside the record, and the trial court’s
ruling in allowing this argument to go forward over objection was
error.    We agree.
We have repeatedly stated that  “[i]n both the guilt-
innocence and the sentencing phases of a capital trial, counsel
is permitted wide latitude in his argument to the jury.    He may
argue the facts in evidence and all reasonable inferences
therefrom as well as the relevant law.”    State v. Sanderson,  336
N.C.  1,  15,  442 S.E.2d  33,  42  (1994)  (citations omitted).
“‘Counsel may not, however, place before the jury incompetent and
prejudicial matter by expressing personal knowledge, beliefs, and
opinions not supported by evidence.’”    State v. Wilson,  335 N.C.
220,  225,  436 S.E.2d  831,  834  (1993)  (quoting State v. Anderson,
322 N.C.  22,  37,  366 S.E.2d  459,  468, cert. denied,  488 U.S.  975,
102 L. Ed.  2d  548  (1988)).    The determination of  “‘[w]hether
counsel has abused this right is a matter ordinarily left to the
sound discretion of the trial court.’”    Id.  (quoting Anderson,
322 N.C. at  37,  366 S.E.2d at  468).    Upon objection, however,
“‘the trial court has the duty to censor remarks not warranted by
the evidence or law.’”    Id.  (quoting Anderson,  322 N.C. at  37,
366 S.E.2d at  468).
Specifically, N.C.G.S.  §  15A-1230(a) provides as follows:
During a closing argument to the jury an attorney may
not become abusive, inject his personal experiences,
express his personal belief as to the truth or falsity
of the evidence or as to the guilt or innocence of the
defendant, or make arguments on the basis of matters
outside the record except for matters concerning which
the court may take judicial notice.    An attorney may,
however, on the basis of his analysis of the evidence,
argue any position or conclusion with respect to a
matter in issue.




N.C.G.S.  §  15A-1230(a)  (1999).    In this regard, this Court has
repeatedly stressed that counsel may not  “travel outside the
record” by arguing facts or matters not included in the evidence
of record.    State v. Smith,  352 N.C.  531,  560,  532 S.E.2d  773,
791-92  (2000), cert. denied,  ___ U.S.  ___,  ___ L. Ed.  2d  ___  69
U.S.L.W.  3629  (2001); Sanderson,  336 N.C. at  15-16,  442 S.E.2d at
42; Wilson,  335 N.C. at  224-25,  436 S.E.2d at  834; Anderson,  322
N.C. at  37,  366 S.E.2d at  468; State v. Covington,  317 N.C.  127,
130-31,  343 S.E.2d  524,  526-27  (1986); State v. Williams,  314
N.C.  337,  358,  333 S.E.2d  708,  722  (1985); State v. Monk,  286
N.C.  509,  515,  212 S.E.2d  125,  131  (1975).
In order to demonstrate prejudicial error, a defendant must
show that there is a reasonable possibility a different result
would have been reached had the error not occurred.    N.C.G.S.  §
15A-1443(a)  (1999); State v. Rosier,  322 N.C.  826,  829,  370
S.E.2d  359,  361  (1988).    During closing arguments in the instant
case, the prosecutor traveled well beyond the record when he
stated to the jury that not only had the trial court let the jury
hear these statements, but also that the court had  “found” the
statements of Ms. Santos  “trustworthy and reliable.”    This
portion of the argument was not part of the evidence presented to
the jurors.    Rather, it was a second-hand statement or revelation
of the trial judge’s legal determination or opinion on the
evidence made during a hearing properly held outside the jury’s
presence.    The jurors were not entitled to hear the trial judge’s
legal findings and conclusions regarding the admissibility of
these hearsay statements.    This argument clearly conveyed an




opinion as to the credibility of evidence that was before the
jury.    This opinion was attributed directly to the trial judge in
his presence, and he then overruled defendant’s objection to this
revelation.
Parties in a trial must take special care against expressing
or revealing to the jury legal rulings which have been made by
the trial court, as any such disclosures will have the potential
for special influence with the jurors.    See N.C.G.S.  §  15A-1222
(1999)  (stating that  “[t]he judge may not express during any
stage of the trial, any opinion in the presence of the jury on
any question of fact to be decided by the jury”).    As we have
stated:                                                                “‘The trial judge occupies an exalted station.    Jurors
entertain great respect for his opinion, and are easily
influenced by any suggestion coming from him.    As a consequence,
he must abstain from conduct or language which tends to discredit
or prejudice the accused or his cause with the jury.’”    State v.
Belk,  268 N.C.  320,  324,  150 S.E.2d  481,  484  (1966)  (quoting
State v. Carter,  233 N.C.  581,  583,  65 S.E.2d  9,  10  (1951));
accord McNeill v. Durham County ABC Bd.,  322 N.C.  425,  429,  368
S.E.2d  619,  622  (1988).
“In State v. Simpson,  233 N.C.  438,  442,  64 S.E.2d
568,  [571  (1951)], this Court said:                                  “It can make no
difference in what way or manner or when the opinion of
the judge is conveyed to the jury, whether directly or
indirectly, by comment on the testimony of a witness,
by arraying the evidence unequally in the charge, by
imbalancing the contentions of the parties, by the
choice of language in stating the contentions, or by
the general tone and tenor of the trial.  .  .                         ‘The
slightest intimation from a judge as to the strength of
the evidence or as to the credibility of a witness will
always have great weight with the jury, and, therefore,
we must be careful to see that neither party is unduly
prejudiced by an expression from the bench which is




likely to prevent a fair and impartial trial.’--Walker,
J. in  [State] v. Ownby,  146 N.C.  677,  [678-79,]  61 S.E.
630[,  630  (1908)].”
State v. Williamson,  250 N.C.  204,  207,  108 S.E.2d  443,  445
(1959).
The prosecutor’s argument in the instant case spoke to and
disclosed a legal opinion of the trial court on the admissibility
and credibility of evidence, an opinion which was specifically
outside the record.    This argument may not be characterized as a
reasonable  “analysis of the evidence” or as argument for  “any
position or conclusion with respect to a matter in issue.”
N.C.G.S.  §  15A-1230(a).    As this Court stated in State v.
Williamson, it does not matter  “in what way or manner” an opinion
of the trial court is conveyed to the jury,  “whether directly or
indirectly.”    Williamson,  250 N.C. at  207,  108 S.E.2d at  445.
The potential for prejudicial influence remains, even if the
opinion is conveyed indirectly through a party’s closing argument
to the jury.    Although the trial court in the instant case did
not convey, through its own words, an improper opinion to the
jury, it did allow the prosecutor to convey the court’s opinion,
with virtually the same effect.
In view of the foregoing, we cannot say that there is or can
be no reasonable possibility that a different result would have
been reached had this argument not occurred.    Much of the State’s
evidence in the trial of these cases was circumstantial and
placed both defendants at the scene of the crimes.    Ms. Santos’
statements to Agent Barros provided eyewitness evidence about the
perpetrators and the events that transpired inside the apartment




on the night of the murders.    Although her credibility was at
issue, particularly as to the identity of the perpetrators, her
statements were possibly determinative of the verdicts in this
trial as to both defendants.
We therefore conclude that the prosecutor violated N.C.G.S.
§  15A-1230(a) by traveling outside the record during his closing
argument and in so doing disclosing the legal opinion of the
trial court as to the credibility of the evidence before the
jury.    For the reasons stated, the trial court’s allowance of the
prosecutor’s argument, over objection, was error.    Defendants are
entitled to and must be awarded a new trial.
NEW TRIAL.

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