IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 17 March 2015

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA Filed: 17 March 2015 Wayne County, No. 12 CRS STATE OF NORTH CAROLINA v. LEONARD EUGENE JOYNER Appeal by defendant from judgments entered 31 March 2014 by Judge Arnold O. Jones II in Wayne County Superior Court. Heard in the Court of Appeals 3 December Attorney General Roy Cooper, by Special Deputy Attorney General L. Michael Dodd, for the State. Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant. DIETZ, Judge. Defendant Leonard Eugene Joyner appeals from convictions of first degree murder and first degree kidnapping stemming from a drug buy gone wrong that resulted in the brutal murder of a young man. Joyner and two of his friends arranged to buy marijuana from the victim. When the victim arrived, he got into a car with Joyner and his friends. A fight broke out in the car, and the victim was shot twice with his own gun. Joyner drove the victim and his friends to a secluded, wooded area. The victim was still alive and making grunting noises, so Joyner repeatedly hit the victim in the head with a shovel. Joyner and his friends then poured gasoline on the

2 victim s body, set it on fire, and covered it up. After an extensive investigation of the victim s disappearance, police arrested Joyner and his friends. At trial, a jury convicted Joyner of one count of first degree murder and one count of first degree kidnapping. On appeal, Joyner challenges statements the prosecutor made during closing argument and voir dire, argues there was insufficient evidence to support a first degree murder conviction, and contends that the trial court should have granted a mistrial. For the reasons discussed below, we reject Joyner s arguments. The trial court did not abuse its discretion in permitting the prosecutor s statements at closing argument and voir dire. There was substantial evidence from which a jury could find both premeditation and deliberation in this case. And the trial court was well within its discretion not to declare a mistrial on its own initiative based on a disturbance witnessed by jurors in the courthouse parking lot. Accordingly, we find no error. Facts and Procedural History On 9 September 2012, Joyner was hanging out with three of his friends, Curtis Etheridge, Kevin Smith, and Jerome Butts. Joyner called Antonio Mel King to arrange to buy some marijuana. King instructed them to come to Bain Street in Goldsboro and to call him when they arrived. Butts got his car and drove Joyner and Etheridge to the arranged location; Smith did not go with them

3 King sent 16-year-old Kennedy McLaurin, Jr., to deliver the marijuana to Joyner and his friends. McLaurin got into the back seat of Butts s car. Joyner, Etheridge, and Butts testified that McLaurin pulled out a gun and attempted to rob them. King testified that McLaurin did not have any weapons and was not instructed to rob anyone. A fight ensued inside Butts s car over control of a gun. Butts jumped out of the car during the struggle. After wrestling with McLaurin, Etheridge also got out of the car. The fight over the gun continued between Joyner and McLaurin. Joyner grabbed McLaurin, pulled him into the front seat, and yelled, Y all come help me to Butts and Etheridge. Joyner was now in the driver s seat and McLaurin was in the front passenger s seat. In response to Joyner s request for help, Butts went around to the passenger side, opened the door, and grabbed McLaurin from behind with both hands. Butts got into a squatting position with his knees on the upper part of McLaurin s back. At this point in the struggle, McLaurin was shot once. Joyner, Etheridge, and Butts testified that McLaurin shot himself, exclaiming I shot myself after doing so. After McLaurin was shot once, he yelled for help. Joyner asked Butts for the keys and told Etheridge to get back in the car. Joyner then drove off with one hand still on the gun. As they drove away, McLaurin was shot a second time. Butts testified that McLaurin again shot himself

4 As Joyner drove away with the wounded McLaurin in the car, he called Kevin Smith and told him [s]omebody just tried to rob us and to get a shovel. They picked up Smith, and he got in the car with a shovel. Joyner then drove the group out to a more remote location, telling them that they were going there to bury McLaurin. Joyner drove down a small path away from the road and stopped the car. Joyner and Smith got out of the car and started digging a hole. Smith and Butts then pulled McLaurin out of the car and Joyner hit him in the head with the shovel one time. Smith and Butts put McLaurin in the hole and then Smith hit him with the shovel 10 to 15 times. Joyner then hit him a couple more times, and finally Smith hit him once again. After repeatedly being hit with the shovel, McLaurin sat up, made a grunting noise, and then fell back in the hole. Smith hit McLaurin with the shovel one more time and McLaurin did not move or make noise after that time. Joyner then shot McLaurin while he was slumped over in the hole. Joyner and Smith covered McLaurin s body in leaves and attempted to set it on fire, but the fire only burned for 2-3 minutes. Joyner and Smith instructed Butts and Etheridge to take Butts s car and go get some gas. They returned 10 minutes later with the gas. Joyner and Smith poured the gas on McLaurin and set the body on fire again. Then all four men covered up the body with debris and left in Butts s car

5 Joyner went to Joshua Carter s house, told him something had happened, but denied that he was involved, and asked to stay the night. The next day, Joyner told Carter about what had happened with McLaurin, his involvement, and asked Carter to provide an alibi for him. After extensive investigation into McLaurin s disappearance, Goldsboro Police Detective Dwayne Bevell discovered McLaurin s body and arrested Joyner, Etheridge, Butts, and Smith. On 7 October 2013, Joyner was indicted on one count of first degree murder and one count of first degree kidnapping. The State announced that the case would be non-capital and Joyner would not be subject to the death penalty. The case went to trial on 18 March During jury voir dire, the prosecutor explained that the State s theory of the case involved issues of witness credibility and questioned potential jurors about their ability to weigh witness credibility. Joyner s counsel objected to part of the prosecutor s statements. Butts, Smith, and Etheridge pleaded guilty and testified at trial. Carter also testified. The medical examiner testified that, in her opinion, McLaurin died of multiple blunt force trauma to the head in conjunction with two gunshot wounds to the chest. Joyner testified at trial claiming self-defense. During a lunch recess from the trial, some jurors witnessed a disturbance in the parking lot involving folks interested in [the] case. The trial court then informed - 5 -

6 the jurors that increased security measures would be implemented to prevent members of the public from approaching or speaking to the jurors during the remainder of the trial. Joyner s counsel did not raise an objection or request a mistrial. Joyner s counsel moved to dismiss the first degree murder charge both at the close of the State s evidence and again at the close of all evidence. The trial court denied both motions. During the State s closing arguments, the prosecutor urged the jury not to believe particular portions of the testimony of Joyner, Butts, Smith, and Etheridge because they were not credible. Joyner s counsel did not object to this argument. Referencing the three men involved who took plea agreements, the prosecutor stated, So what s to be done? You send three people to prison for life? And let one go? Just let him go back to 111 [sic] and sell marijuana? Is that fair? Joyner s counsel objected to this statement and asked the trial court to strike it because it was not correct that the others involved received life sentences. The trial court did not strike the statement, but gave a corrective instruction to the jury stating that sentencing is the purview of the judge and not an issue for the jury. The jury found Joyner guilty of first degree murder and first degree kidnapping. The trial court sentenced Joyner to months for first degree kidnapping and to life in prison without parole for first degree murder. Joyner s counsel gave notice of appeal at the close of the sentencing hearing

7 Analysis I. Prosecutor s Statements During Closing Arguments Joyner first argues that he is entitled to a new trial because the trial court erred in denying his objections or failing to intervene ex mero motu regarding alleged improper statements made by the prosecutor during the State s closing arguments. We disagree. A closing argument must: (1) be devoid of counsel s 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. State v. Jones, 355 N.C. 117, 135, 558 S.E.2d 97, 108 (2002). 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. Gen. Stat. 15A-1230(a) (2013). It is well-settled that [t]rial counsel are allowed wide latitude in jury arguments and are permitted to argue the facts based on evidence which has been presented as well as reasonable inferences which can be drawn therefrom. State v. Fisher, 336 N.C. 684, 699, 445 S.E.2d 866, 874 (1994). [C]ontrol of counsel s argument is largely left to the trial court s discretion. Id. (internal quotation marks omitted). If defendant s counsel timely objects, the standard of review for improper closing arguments is whether the trial court abused its discretion by failing to - 7 -

8 sustain the objection. Jones, 355 N.C. at 131, 558 S.E.2d at 106. A trial court has abused its discretion if the ruling could not have been the result of a reasoned decision. Id. (internal quotation marks omitted). This Court must first determine if the remarks were improper, and then determine if the remarks... prejudiced defendant. State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003) (internal quotation marks omitted). Where no objection is made, the standard of review is whether the prosecutor s arguments were so grossly improper that the trial court erred in failing to intervene ex mero motu. State v. Murrell, 362 N.C. 375, 391, 665 S.E.2d 61, 73 (2008) (internal quotation marks omitted). A trial court is only required to intervene if the argument strays so far from the bounds of propriety as to impede defendant s right to a fair trial. State v. Atkins, 349 N.C. 62, 84, 505 S.E.2d 97, 111 (1998). Moreover, the comments must be viewed in the context in which they were made and in light of the overall factual circumstances to which they referred. State v. Miller, 357 N.C. 583, 589, 357 S.E.2d 857, 862 (2003) (internal quotation marks omitted). Here, Joyner challenges three separate arguments or statements made by the prosecutor. First, he asserts that the prosecutor s closing argument regarding the credibility of witnesses was improper. Specifically, he challenges the following statements: We take the three people who were there, Curtis, Jerome and Smith, and we take what they say and we throw out - 8 -

9 everything they say that points the finger at somebody else. Just throw it out. Can t believe it.... What does Curtis say? And this is what he admits. It doesn t matter, anything else he said. Take five or six pages in your little notebook of Curtis Etheridge s testimony and just rip it out and throw it in the trash can; it doesn t matter, other than this.... Ooh, I shot myself. I don t care how many people in this case say that he said I shot myself. Do you find that believable? That s just ridiculous. That s just stupid. Joyner concedes that he did not object to these statements. We therefore review them to determine if they were so grossly improper that they deprived Joyner of his right to a fair trial, thus compelling the trial court to intervene ex mero motu. The comments at issue here do not rise to the level of gross impropriety. When viewed in context, the prosecutor was urging the jury to focus on the credibility of key portions of the witnesses testimony and to question testimony that was patently selfserving. For example, the prosecutor s statement that the jury should take five or six pages in your little notebook of Curtis Etheridge s testimony and just rip it out and throw it in the trash can, in context, was a reference to the fact that Etheridge (and the other witnesses) relied on what the prosecutor contended was a deeply implausible explanation for how the victim was shot. As the prosecutor explained, Etheridge and the other witnesses expected the jury to believe that the victim shot himself with his own gun and then remarked, Oh, I shot myself

10 A prosecutor may argue to the jury in closing that they should not believe a witness. State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967). Thus, we hold that the prosecutor s statements, viewed in context, were not grossly improper. Next, Joyner argues that the prosecutor s reference to his refusal to tell the police about his involvement in McLaurin s death was an impermissible comment on his silence in violation of his constitutional right to remain silent. At closing, the prosecutor stated: Why would they plead guilty to something that they didn t do? Is that human nature? And all three of them? And do you know why they talked and Leonard didn t? I m -- I m telling you. Human nature. Yeah, what I did was bad, it was god-awful bad, but it wasn t worse. I wasn t in charge; I wasn t the leader. (emphasis added) This constitutional argument was not raised below and is therefore waived on appeal. This Court and our Supreme Court repeatedly have held that [c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error. State v. Gobal, 186 N.C. App. 308, 320, 651 S.E.2d 279, 287 (2007), aff d, 362 N.C. 342, 661 S.E.2d 732 (2008) (citation omitted). Because Joyner did not raise this constitutional claim at trial, he waived his right to raise it on direct appeal. Finally, Joyner argues that the trial court should have sustained his objection or granted his motion to strike the prosecutor s comment on the sentences that would

11 be received by the others involved in McLaurin s murder. We review the trial court s decision to overrule Joyner s objection for abuse of discretion and prejudice. See Jones, 355 N.C. at 131, 558 S.E.2d at 106. At closing argument, the prosecutor stated: So what s to be done? You send three people to prison for life? And let one go? Just let him go back to 111 [sic] and sell marijuana? Is that fair? Is that fair? Joyner objected to this statement after the prosecutor finished his argument and requested that the statement be stricken because it was an incorrect characterization of the sentences that would be received by the other men involved in McLaurin s murder. The trial court and the prosecutor both agreed that the statement was incorrect. In response, the trial court instructed the jury: Any argument made by either of the attorneys, if any were made, regarding sentencing, not only of this Defendant, but of any other codefendant, is not within your purview, nor for your consideration. That consideration will be the consideration of this Court. Is that understood by all of you? In light of the trial court s corrective instruction, we hold that the trial court did not abuse its discretion in overruling Joyner s objection and denying his motion to strike. Accordingly, we find no error in the prosecutor s statements during closing argument. II. Prosecutor s Statements During Jury Selection

12 Joyner next argues that the trial court erred in denying his objections or failing to intervene ex mero motu when the prosecutor made allegedly improper statements during jury selection. We disagree. During jury selection, [c]ounsel should not fish for answers to legal questions, argue the case in any way, or engage in efforts to indoctrinate... jurors. State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980). Jurors should not be asked what kind of verdict they would render under certain named circumstances. Id. The regulation of the manner and the extent of the inquiry rests largely in the trial judge s discretion. State v. Cummings, 361 N.C. 438, 464, 648 S.E.2d 788, 804 (2007) (internal quotation marks omitted). If an objection is made during voir dire, on appeal a defendant must show that the trial court abused its discretion in overruling defendant s objection and that prejudice resulted. State v. Roache, 358 N.C. 243, 271, 595 S.E.2d 381, 400 (2004). If a defendant fails make an objection, he must demonstrate on appeal that the remarks were so grossly improper that the trial court abused its discretion by failing to intervene. State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001) (internal quotation marks omitted). To carry this burden, defendant must show that the prosecutor s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair. Id. (internal quotation marks omitted). Appellate review of voir dire inquiries requires this Court to focus on the entire record of the

13 voir dire, rather than isolated questions. State v. Jones, 347 N.C. 193, 203, 491 S.E.2d 641, 647 (1997). Here, Joyner challenges statements made by the prosecutor that he argues were used to indoctrinate prospective jurors on the righteousness of the State s case and begin coaching the jurors on the prosecutor s theory that his own witnesses were not credible. The prosecutor began jury selection by stating: Cases get presented to juries a lot of different ways. Sometimes that s fact driven. It is in this case. Let me sum it up: I m going to try this case old school. Do you know what that means? Old school, like the way they ve been trying murder cases for a thousand years, based on eyewitnesses, based on ear witnesses. He continued with: You got three new [sic] defendants who are going to testify, and you got a fourth person who was involved after the fact that s going to testify. And that s what this case is about. That s the evidence that the State has. And you re going to hear that all four of these people have either gotten a plea deal or they re not going to get charged. You re going to hear that. You re going to hear it, because I m telling you right now, and you got to factor that in as to what you believe. Somebody s getting a deal, do you believe everything they say? You re cocking an eye. Of course, that s human nature, to weigh and balance what somebody s telling you. Okay, you re going to have to consider that. The people who do testify, they may -- perhaps all their statements don t add up all together within their open statements. Maybe they don t match up

14 Let me ask you, if there s anybody in the jury who has never told an untruth, would you raise your hand? Any of you? Never told somebody an untruth. All of you understand, that s part of the human experience. Would you agree with me on that?... Let me ask you this: Is there anybody on the jury who s known anybody who s told something that s not true just to make themselves look worse? If that s been part of your life experience, would you raise your hand and let me know that? Although Joyner objected to at least some of these statements during voir dire, it is unclear from the transcript which particular statements were the subject of his objection. Even if we assume that Joyner properly objected to each statement he now challenges on appeal, we do not believe the trial court abused its discretion in permitting these statements. Joyner first argues that the prosecutor s statements that he would try the case [o]ld school, like the way they ve been trying murder cases for a thousand years, was inaccurate and misleading because criminal trials one thousand years ago were drastically different from modern criminal trials today. Read in context, this statement was part of the prosecutor s explanation that the case would involve conflicting witness testimony and that it would be necessary for the jurors to weigh and balance what somebody s telling you and decide what you believe. We hold that the trial court was within its discretion to permit these statements

15 Joyner also objects to the prosecutor s statements to the potential jurors that you are the judges of the facts, that you ll be judging the witnesses as they speak to you, that the judge will instruct you about the legal definition of credibility of the witnesses, and that [i]t s up to you as a juror, based on your reason and your common sense, to reach a verdict. Again, we hold that the trial court was within its discretion to permit these statements, which accurately addressed the jurors role in the proceeding. Finally, Joyner challenges the prosecutor s statements and questions to individual potential jurors. But those statements did not misinform the jurors, try to convince the jurors of anything, or mention any specific testimony that would be presented at trial. The prosecutor sought to determine if the potential jurors understood what their responsibilities would be with respect to evaluating witness credibility. We again hold that the trial court did not abuse its discretion in permitting these statements and questions. See N.C. Gen. Stat. 15A-1214(c) (2013); State v. Fletcher, 348 N.C. 292, 308, 500 S.E.2d 668, 677 (1998). The cases on which Joyner relies are readily distinguishable. In each of those cases, the prosecutor asked jurors how they would decide the case on particular facts, or otherwise fished for information about the jurors views. State v. Jaynes, 353 N.C. 534, 550, 549 S.E.2d 179, 192 (2001); State v. Mitchell, 353 N.C. 309, 319, 543 S.E.2d 830, 837 (2001); Phillips, 300 N.C. at 682, 268 S.E.2d at 455. That is not what

16 the prosecutor did here. Accordingly, we reject Joyner s argument concerning the prosecutor s statements and questions to the jurors. Joyner also contends that it was improper for the prosecutor to describe Detective Dwayne Bevell to the jurors as the one who solved this case. He argues that in making this statement, the prosecutor vouched for his own case, and that the statement that the case had been solved was incorrect. Again, viewed in context, we cannot conclude that the trial court abused its discretion in permitting this statement. The prosecutor made this remark as he was going through a list of the State s key witnesses to determine whether the potential jurors knew those witnesses or had relationships with them. The prosecutor was not directing his remarks to the merits of the case. It is certainly a better practice for prosecutors not to suggest to jurors that a case is solved, regardless of the context in which that statement is made. But in this case, the prosecutor s other statements to the jurors, together with those of the court and defense counsel, made clear that the jurors ultimately were responsible for determining guilt. Thus, when viewed in context, we hold that the trial court did not abuse its discretion in overruling Joyner s objection to that statement (assuming, again, that an objection was made to this statement). Accordingly, we find no error in the prosecutor s statements during voir dire

17 III. Motion to Dismiss First Degree Murder Charge Joyner next argues that his first degree murder conviction should be vacated because the trial court erred in denying his motions to dismiss that charge. He contends that there was insufficient evidence of premeditation and deliberation, two of the required elements of first degree murder. We disagree. When a defendant makes a motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. (internal quotation marks omitted). The court must view the evidence in the light most favorable to the state, giving the state the benefit of every reasonable inference that might be drawn therefrom. State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987). [C]ontradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). This Court reviews the trial court s denial of a motion to dismiss de novo. Smith, 186 N.C. App. at 62, 650 S.E.2d at 33. First degree murder requires premeditation and deliberation. See N.C. Gen. Stat (a) (2013). The element of premeditation requires that the defendant formed the specific intent to kill the victim for some length of time, however short,

18 before the murderous act. State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995) (internal quotation marks omitted). Deliberation requires that the defendant formed the intent to kill in a cool state of blood and not as a result of a violent passion due to sufficient provocation. Id. Premeditation and deliberation are generally proven by actions and circumstances surrounding the killing. State v. Joyner, 329 N.C. 211, 215, 404 S.E.2d 653, 655 (1991). Circumstances from which premeditation and deliberation can be inferred include: the conduct and statements of the defendant before and after the killing, the dealing of lethal blows after the deceased has been felled and rendered helpless, evidence that the killing was done in a brutal manner, and the nature and number of the victim s wounds. State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991). In State v. Weathers, our Supreme Court held that defendant s great lengths to conceal the murder provided evidence of premeditation and deliberation. 339 N.C. 441, 452, 451 S.E.2d 266, 272 (1994). Additionally, the act of killing the victim and then dumping the victim s body showed an uncaring attitude about the victim and could be considered by the jury in finding premeditation and deliberation. Id. Here, Joyner argues that the State s evidence of premeditation and deliberation failed to rise above suspicion and conjecture. However, we find that the State presented sufficient evidence of these elements to survive the motion to dismiss

19 The evidence at trial established multiple grounds to find premeditation and deliberation under the Supreme Court case law cited above: Joyner killed McLaurin in a brutal manner; Joyner dealt the lethal blow after McLaurin already was incapacitated; Joyner inflicted a significant number of wounds to McLaurin before killing him; and Joyner went to great lengths to conceal the murder. Specifically, the State presented testimony that McLaurin was shot while fighting with Joyner, and sufficient circumstantial evidence for the jury to infer that Joyner or one of his friends shot McLaurin. After McLaurin was shot, Joyner drove him to a secluded area to bury him. On the way to the eventual burial site, Joyner picked up Smith and told him to bring a shovel. Joyner dug a hole in which to put McLaurin s body and hit McLaurin on the head with the shovel repeatedly after he had been rendered helpless by the gunshot wounds. Joyner s friends testified that McLaurin was still breathing, making noises, and moving at the time he was hit with the shovel. Joyner then shot McLaurin again after dumping his body in the newly dug hole. Joyner went to great lengths to conceal his actions: he buried McLaurin in a secluded area, sent his friends to get gas, poured gas on the body, set it on fire, covered it over with debris, and lied to police when questioned about his involvement. Viewing this evidence in the light most favorable to the State, and giving the State the benefit of every reasonable inference, there was substantial evidence from

20 which a jury could infer the elements of premeditation and deliberation in this case. See Weathers, 339 N.C. at 452, 451 S.E.2d at 272; Vause, 328 N.C. at 238, 400 S.E.2d at 62. Accordingly, the trial court did not err in denying Joyner s motions to dismiss. IV. Failure to Declare Mistrial Finally, Joyner argues that the trial court should have declared a mistrial after some jurors saw a disturbance in the parking lot during a lunch recess involving folks interested in this case. We disagree. It is well-settled that the decision to declare a mistrial lies within the sound discretion of the trial court and is entitled to great deference because the trial court is in the best position to evaluate any potential effect on the jury. State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008) (internal quotation marks omitted). Where the defendant failed to request a mistrial from the trial court, our review is limited to whether the court s failure to declare a mistrial constituted plain error. State v. Hinton, 155 N.C. App. 561, 564, 573 S.E.2d 609, 612 (2002). Here, Joyner argues that seeing the disturbance in the parking lot in light of the testimony of Etheridge and Joyner that McLaurin s friends were dangerous must have alerted [the jurors] to potential danger if the verdict did not go the way McLaurin s friends wished. In other words, Joyner argues on appeal that the jurors might have feared for their safety if they failed to return a conviction

21 Nothing in the record supports this speculation. First, there is no indication in the record that the disturbance was violent, or involved threats of violence, or even that McLaurin s friends were involved. Indeed, the record contains virtually no information about what precisely occurred in the parking lot. Second, there is no indication in the record that any of the jurors felt threatened or raised any concerns about their safety to the court after witnessing the disturbance. Finally, the trial court addressed the disturbance by informing counsel of what had occurred and implementing increased security measures to prevent members of the public from approaching or speaking to the jurors. After this time, neither counsel nor the jurors voiced any concerns to the trial court regarding their safety. In short, even if Joyner had preserved this issue with a timely request for a mistrial, we would affirm the trial court s decision to let the trial proceed a decision that lies within the sound discretion of the trial court and is entitled to great deference. Taylor, 362 N.C. at 538, 669 S.E.2d at 260 (internal quotation marks omitted). But Joyner did not request a mistrial, and thus we review for plain error, an even more exacting standard of review. Under the plain error standard, we find Joyner s argument meritless. Conclusion For the reasons discussed above, we hold that the trial court did not err in denying Joyner s objections or failing to intervene ex mero motu during closing

22 argument and voir dire. We also hold that the trial court did not err in denying Joyner s motions to dismiss the first degree murder charge or in failing ex mero motu to declare a mistrial. NO ERROR. Judges BRYANT and DILLON concur. Report per Rule 30(e)