An unpublished opinion of the North Carolina Court of Appeals does not constitute 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.

NO. COA14-194

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Guilford County

Nos. 12 CRS 24828,92661

GEORGE DAVID JOLLY

Appeal by defendant from judgment entered 6 June 2013 by 

Judge Ronald E. Spivey in Guilford County Superior Court. Heard 

in the Court of Appeals 4 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Lisa K. Bradley, for the State.

Appellate Defender Staples S. Hughes, by Assistant 

Appellate Defender Jillian C. Katz, for defendantappellant.

McCULLOUGH, Judge.

Defendant appeals from judgment entered upon a jury verdict 

finding him guilty of assault with a deadly weapon inflicting 

serious injury and his guilty plea to attaining the status of an 

habitual felon. For the following reasons, we find no 

prejudicial error.

I. Background
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As a result of an altercation on 19 October 2012, on 10 

December 2012, a Guilford County Grand Jury returned indictments 

against defendant for assault with a deadly weapon inflicting 

serious injury and attaining the status of an habitual felon. 

Following a pretrial hearing on 3 June 2013, defendant’s case 

was called for jury trial in Guilford County Superior Court on 4 

June 2013, the Honorable Ronald E. Spivey, Judge presiding.

The evidence presented at trial tended to show that 

defendant was present at a residence shared by Richard Roscoe 

and Philip Culbreth at 1523 North O’Henry Boulevard on the 

evening of 19 October 2012. Roscoe and Culbreth testified that 

defendant showed up unannounced while they were playing video 

games and drinking. They claim defendant was intoxicated when 

he arrived and became belligerent and started to argue with 

Roscoe when he lost a video game. Defendant, on the other hand, 

testified that he spoke with Roscoe and arranged to do laundry 

at the residence, which was not unusual given that Roscoe 

allowed defendant to store a washer and dryer, as well as other 

miscellaneous items, at the residence. Defendant claims that 

while he was doing laundry, Roscoe accused him of taking liquor 

and they began to argue. Despite the differing accounts, it is 
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undisputed that defendant got into an argument with Roscoe. As 

a result of that argument, Culbreth called the police.

By the time the police arrived, defendant had left the 

residence. Defendant, however, returned shortly after the 

police left to retrieve his belongings. Defendant’s wife and 

daughter returned with defendant but remained in the car parked 

in front of the residence while defendant entered the house.

Upon defendant’s return, the argument between defendant and 

Roscoe resumed and quickly escalated into a physical 

altercation, during which defendant cut Culbreth across the 

abdomen with a box cutter. Roscoe and Culbreth testified that 

defendant was not provoked and defendant was the aggressor in 

the altercation. Defendant, however, testified that he cut 

Culbreth in self-defense after Roscoe and Culbreth attacked him. 

Testimony from defendant’s daughter, who witnessed the 

altercation through the glass front door from the rear seat of 

the car parked in front of the house, corroborated defendant’s 

testimony. Defendant’s wife, who had the better view from the 

front seat of the car, was not called as a witness at trial.

During the altercation, Roscoe escaped the residence and 

called police from a neighbor’s house. Roscoe returned shortly 

thereafter as police were arriving at the scene. Together, they 
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found Culbreth in the backyard with a serious wound to his 

abdomen. Defendant had fled the house. Yet, defendant later 

turned himself in on 22 October 2012 after spending several days

in Asheboro to avoid the police.

On 5 June 2013, the jury returned a verdict finding 

defendant guilty of assault with a deadly weapon inflicting 

serious injury. Defendant then pled guilty to attaining the 

status of an habitual felon and the trial court entered judgment 

on 6 June 2013 sentencing defendant to a term of 77 to 105 

months imprisonment and ordering the payment of restitution. 

Defendant gave notice of appeal in open court.

II. Discussion

The sole issue raised on appeal is whether the trial court 

erred by failing to intervene ex mero motu during the State’s 

closing argument when the State mentioned defendant’s failure to 

produce his wife as a witness. Yet, before reaching the merits 

of the appeal, we address whether the issue was preserved for 

review.

In the portion of the State’s closing argument at issue, 

the State attempted to cast doubt on defendant’s self-defense 

argument by emphasizing the inconsistencies between a written 
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statement he provided to police and the testimony he provided at 

trial. Specifically, the State argued the following:

And he'll say, you know what. Well, my 

wife, helped me write this and helped me 

write that, and that's why I wrote it. 

Well, you know what. His wife is here, and 

if that was the case, you could always call 

her and have her get up on the stand and let 

us know that. But she's here. And if you 

recall, [defendant’s daughter] said, you 

know, look, I'm in the back seat, and mom's 

up in the front, you know. She had a better 

vantage point than I did. She can see it 

better. Well, she's here, and she ain't 

testified.

So you can make your own inference about 

that, if she supposedly saw this incident 

and the way it happened. Here you are 

facing a felony, facing this potential of 

jail time. And then I've got my wife, who's 

seated in the front seat, who supposedly had 

the best view of what has taken place this 

night. And I'm sitting here before a jury 

of 12. And I'm not going to call her. So 

you have to decide why that decision was 

made. Of course, I'd argue to you, because 

the facts as they're giving them to you is 

[sic] not true.

Defendant did not object to the State’s argument and the trial 

court did not intervene.

Generally, “[i]n order to preserve an issue for appellate 

review, a party must have presented to the trial court a timely 

request, objection, or motion, stating the specific grounds for 

the ruling the party desired the court to make if the specific 
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grounds were not apparent from the context.” N.C. R. App. P. 

10(a)(1) (2014).

In the present case, defendant made no such request, 

objection, or motion during the State’s closing argument. 

Defendant, however, citing State v. Braxton, 352 N.C. 158, 177, 

531 S.E.2d 428, 439 (2000) and State v. Lawrence, 352 N.C. 1, 

13, 530 S.E.2d 807, 815 (2000), contends his right to appeal was

preserved because the trial court acted contrary to a statutory 

mandate. In response, the State contends that defendant failed 

to preserve the issue for appeal.

Upon review, we find the statute at issue in this case, 

N.C. Gen. Stat. § 8-57(a), distinguishable from N.C. Gen. Stat. 

§ 15A-1214, the jury selection statute at issue in Braxton and 

Lawrence. Unlike N.C. Gen. Stat. § 15A-1214, N.C. Gen. Stat. §

8-57(a) does not direct the court to do anything in particular;

it simply directs that “the failure of the defendant to call [a] 

spouse as a witness shall not be used against him.” N.C. Gen. 

Stat. § 8-57(a) (2013). Thus, we distinguish the present case 

from Braxton and Lawrence.

Nevertheless, we reach the merits of defendant’s appeal. 

This Court has long addressed arguments that the trial court 
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erred by failing to intervene in closing arguments ex mero motu. 

As stated by our Supreme Court,

[t]he standard of review for assessing 

alleged improper closing arguments that fail 

to provoke timely objection from opposing 

counsel is whether the remarks were so 

grossly improper that the trial court 

committed reversible error by failing to 

intervene ex mero motu. In other words, the 

reviewing court must determine whether the 

argument in question strayed 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 

and: (1) precluded other similar remarks 

from the offending attorney; and/or (2) 

instructed the jury to disregard the 

improper comments already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) 

(citation omitted).

In full, N.C. Gen. Stat. § 8-57(a) provides, “[t]he spouse 

of the defendant shall be a competent witness for the defendant 

in all criminal actions, but the failure of the defendant to 

call such spouse as a witness shall not be used against him. 

Such spouse is subject to cross-examination as are other 

witnesses.” (Emphasis added).

Upon review of the record in this case, we hold the State’s 

comments during closing arguments regarding defendant’s failure 

to call his wife as a witness were improper under N.C. Gen. 

Stat. § 8-57(a). Yet, given the evidence against defendant, we 
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find a different result is unlikely absent the comments and 

therefore hold defendant is not entitled to a new trial.

In support of his contention that the trial court failed to 

intervene ex mero motu, defendant cites two 1976 decisions by 

our Supreme Court, State v. McCall, 289 N.C. 570, 223 S.E.2d 334 

(1976) and State v. Thompson, 290 N.C. 431, 226 S.E.2d 487

(1976), and argues for the same result in the present case.

In McCall, our Supreme Court granted the defendant a new 

trial where the prosecution commented on the fact that the 

defendant’s wife did not testify. McCall, 289 N.C. at 577-78, 

223 S.E.2d at 338. The Court reasoned,

[t]he provisions of [N.C. Gen. Stat. §] 8-

57, and decisions of this Court interpreting 

and applying them, impel the conclusion that 

where evidence is rendered incompetent by 

statute, it is the duty of the trial judge 

to exclude it, and his failure to do so is 

reversible error, whether objection is 

interposed and exception noted or not. In 

such case it is the duty of the judge to act 

on his own motion. The rule applies with 

equal force to the argument of counsel when 

evidence forbidden by statute is 

argumentatively placed before the jury and 

used to the prejudice of the defense. When 

this occurs it is the duty of the judge ex 

mero motu to intervene and promptly instruct 

the jury that the wife's failure to testify 

and the improper argument concerning that 

fact must be disregarded and under no 

circumstances used to the prejudice of the 

defendant.

Id. (Citations omitted).
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Similarly, in Thompson, the Court granted the defendant a 

new trial where the prosecution commented on the defendant’s 

failure to call his wife to provide an alibi. Thompson, 290 

N.C. at 446-47, 226 S.E.2d at 496-97. Relying on its decision 

in McCall, the Court noted the prosecution’s comment “violate[d] 

both the letter and the spirit of [N.C. Gen. Stat.] § 8-57.” 

Id. at 447, 226 S.E.2d at 497. The Court then pointed out that 

the primary error was not the judge’s, but the prosecution’s 

“flagrant disregard of a mandatory rule which has been wellknown statutory law in this State for over a hundred years.” 

Id. at 448, 226 S.E.2d at 497.

By highlighting to the jury the fact that 

she was not a witness, the district 

attorney, in violation of [N.C. Gen. Stat.]

§ 8—57, used the failure of the wife to 

testify for her husband to the prejudice of 

defendant. Notwithstanding the failure of 

the defendant's counsel to object to the 

argument it was incumbent upon the trial 

judge, on his own initiative, to intervene 

and to instruct the jury to disregard the 

solicitor's argument.

Id. at 447-48, 226 S.E.2d at 497.

However, as our Supreme Court recognized in State v. 

Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149 (2002), the year 

after the McCall and Thompson decisions were announced, N.C. 

Gen. Stat. § 15A-1443 was enacted. “Pursuant to N.C. Gen. Stat. 

§ 15A–1443(a), defendant has the burden of showing there is a 
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reasonable possibility that a different result would have been 

reached at trial had the trial court's error not occurred.” 

State v. Peterson, 179 N.C. App. 437, 470, 634 S.E.2d 594, 618 

(2006). Specifically, the statute provides in pertinent part:

A defendant is prejudiced by errors relating 

to rights arising other than under the 

Constitution of the United States when there 

is a reasonable possibility that, had the 

error in question not been committed, a 

different result would have been reached at 

the trial out of which the appeal arises. 

The burden of showing such prejudice under 

this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2013).

Although defendant does not address N.C. Gen. Stat. § 15A1443 directly, defendant does make a prejudice argument. 

Defendant contends the State’s argument was “undoubtedly 

calculated to show that [defendant] was lying as to the ultimate 

question of who was the aggressor” and “was the last thing the 

jury heard prior to the jury instructions, where they were asked 

to decide if [defendant] acted in self-defense or if he cut Mr. 

Culbreth with no justification for his actions.” While this may 

be, considering all the evidence in the record, we are not 

convinced that there is a reasonable possibility that a 

different result would have been reached absent the improper 

comments during the State’s closing argument. Therefore, we 

hold defendant has failed to meet his burden to show prejudice
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and the State’s closing argument, although improper, does not 

warrant a new trial.

III. Conclusion

For the reasons discussed above, we find no prejudicial

error warranting a new trial.

No prejudicial error.

Judges STEPHENS and STROUD concur.

Report per Rule 30(e).