Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/21/2021
E.g., 10/21/2021
State v. Foust, 220 N.C. App. 63 (Apr. 17, 2012)

In a rape case, the trial court was not required to intervene ex mero motu when the State asserted in closing: “What happened . . . is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually taking what he wants, and that’s what happened here.”

In a case involving attempted murder and other charges, the prosecutor’s reference to the victims as sheep and the defendant as a “predator” did not require the trial court to intervene ex mero motu. However, the court stated that comparisons between criminal defendants and animals are strongly disfavored.

State v. Oakes, 209 N.C. App. 18 (Jan. 4, 2011)

The prosecutor’s statements during closing argument were not so grossly improper as to require the trial court to intervene ex mero motu. Although disapproving a prosecutor’s comparisons between criminal defendants and animals, the court concluded that the prosecutor’s statements equating the defendant’s actions to a hunting tiger were not grossly improper; the statements helped to explain the State’s theory of premeditated and deliberate murder.

In this first-degree murder case, the defendant, who was white, was charged with shooting through a window in his garage door and killing the victim, who was black. The victim was one of a group of about 20 people who had briefly gone to a party at a nearby house, and he was shot and killed when he ran through a portion of the defendant’s yard. The defendant admitted to the shooting, but argued that he was acting in self-defense and defense of habitation. At trial, the defendant testified that he had yelled at the group to “shut the f— up” and they yelled back “f— you; go inside; white boy.” The state’s evidence included a recorded 911 call in which the defendant reported there were “hoodlums” racing in the street (the defendant later admitted this was false) and stated that he was “going to kill him,” he was “locked and loaded,” and he would “secure the neighborhood.”

During closing arguments, the prosecutor stated that the issue of race was “the elephant in the room” since it had been raised during jury selection and alluded to during the defendant’s evidence and closing argument. The defendant objected, but the trial court overruled the objection and allowed the prosecutor to argue that if the defendant’s fear of the victim was based on the victim’s race, then it was not a reasonable fear that would support a claim of self-defense: “Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.” The defendant was convicted and appealed. Citing State v. Jones, 355 N.C. 117 (2002), the Court of Appeals held that the prosecutor’s statements regarding race were an improper appeal to bias and reversed the conviction. [Note: For further discussion of the Court of Appeals decision, see Emily Coward, “State v. Copley: Addressing Race During Closing Argument,” N.C. Criminal Law Blog (June 18, 2019).]

The North Carolina Supreme Court reversed the Court of Appeals, finding that neither the majority nor the dissent had conducted a “complete prejudice analysis” in the case. The higher court acknowledged Jones but explained that it was an inadequate basis for comparison because the challenged statements in Jones arose during the closing arguments in the sentencing phase of a death penalty case. To properly evaluate prejudice during the guilt-innocence phase of a non-capital case, the reviewing court must also consider: (i) the other evidence of the defendant’s guilt; and (ii) the remainder of the closing argument. Assuming without deciding that the challenged statements were improper, the defendant failed to establish prejudice in this case. First, viewing the comments about race “in the context of the entire closing,” the court found that the comments were only a small part of an argument that primarily focused on the defendant’s lack of credibility, the strong evidence of his guilt, and the absence of a basis for claiming self-defense, which undermined a finding of prejudice. Second, in light of all the other “compelling evidence” of the defendant’s guilt in this case (e.g., incriminating statements recorded on the 911 call, firing through a closed garage door, challenges to the defendant’s credibility, and his admission to the shooting), the defendant failed to meet his burden of demonstrating a reasonable possibility that the jury would have acquitted him in the absence of the prosecutor’s comments. The appellate court’s decision was reversed, and the case was remanded for ruling on the defendant’s remaining arguments.

Justice Earls wrote separately in concurrence to address the unresolved issue of whether the prosecutor’s comments were improper. Derogatory or inflammatory statements appealing to bias or prejudice are improper, but neutral and non-derogatory statements regarding race are permissible if they bear a material relevance to an issue in the case (such as motive). Justice Earls concluded that the prosecutor’s statements in this case were not an appeal to racial animus; instead, they addressed relevant issues of race that had arisen during jury selection and the defendant’s testimony. Therefore, it was “proper and permissible for the prosecutor to urge the jury not to allow any racial considerations or stereotypical assumptions about young black men to impact their ultimate decision about what was reasonable fear in these circumstances.”

The trial court did not err by failing to intervene ex mero motu during the State’s closing argument. At issue was the prosecutor’s reference to the defendant’s gang ties. Here, when the defendant called two codefendants as witnesses, both testified that they were gang members and one admitted that he and the defendant belonged to the same gang. The prosecutor’s statements merely commented on the evidence that had been presented. Also, the prosecutor’s argument did not center on gang involvement. The prosecutor’s only reference to gang involvement was in one paragraph of her closing argument. As such the prosecutor’s statement did not render the trial fundamentally unfair.

State v. Ricks, ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-116 (Sep 24 2021)

The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.

(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.

(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.

(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.

(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.

(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.

(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.

(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s assertions in his opening statement. Even if the prosecutor’s statements constituted an impermissible comment on the defendant’s right to remain silent, the error was harmless beyond a reasonable doubt. (2) The court rejected the defendant’s argument that the prosecutor improperly misled the jury during closing argument by asserting facts not in evidence. The defendant failed to show any gross impropriety that was likely to influence the verdict. (3) The defendant failed to show gross impropriety warranting intervention ex mero motu to when the prosecutor handled a rifle in evidence by pointing it at himself. The defendant argued that the prosecutor’s actions inflamed the jurors’ emotions and causing them to make a decision based on fear (4) Notwithstanding these conclusions, the court noted that it found the prosecutor’s words and actions “troublesome,” stating: “the prosecutor flew exceedingly close to the sun during his closing argument. Only because of the unique circumstances of this case has he returned with wings intact.” It went on to emphasize that a prosecutor “has the responsibility of the Minister of Justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict” (quotation omitted).

In this sexual assault trial, the prosecutor’s comment during closing argument was not a comment on the defendant’s failure to testify. The prosecutor stated: “There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [the victim] and the defendant.” The comment was made in the context of an acknowledgement that while the SANE nurse who examined the victim testified to abrasions and tears indicative of vaginal penetration, the nurse could not tell if the victim’s vagina was penetrated by a penis. The prosecutor went on to recount evidence that semen containing the defendant’s DNA was found on the victim’s vaginal swabs and on cuttings from her panties. The comment emphasized the limitations of the physical evidence and was not a comment on the defendant’s decision not to testify. 

State v. Foust, 220 N.C. App. 63 (Apr. 17, 2012)

The prosecutor did not improperly refer to the defendant’s failure to testify but rather properly commented on the defendant’s failure contradict or challenge the State’s evidence.

The prosecutor did not improperly comment on the defendant’s failure to testify by pointing out to the jury in closing that the defense had not put on any mental health evidence as forecasted in its opening statement; however, the court disapproved of the prosecutor’s statement that this constituted “[b]roken promises from the defense.” The prosecutor did not comment on the defendant’ failure to testify by stating in closing that there was no evidence regarding accident.

The prosecutor’s comments during closing did not constitute a reference to the defendant’s failure to testify; the comments responded to direct attacks on the State’s witnesses and pertained to the defendant’s failure to produce witnesses or exculpatory evidence.

In this felony death by vehicle case the prosecutor did not improperly appeal to the jury’s passion and prejudice requiring the trial court to intervene ex mero motu. The prosecutor asserted that the jury “can send a message” with its verdict and told the jury that it was “the moral voice and conscience of this community.” Neither of these arguments are improper.

The defendant was convicted of attempted first-degree murder for shooting a law enforcement officer who was attempting to serve a warrant for the defendant’s arrest for violating probation. During closing argument, the prosecutor stated:

[You m]ight ask why would [defendant] plead not guilty? I contend to you that the defendant is just continuing to do what he’s done all along, refuse to take responsibility for any of his actions. That’s what he does. He believes the rules do not apply to him.

. . .

[Defendant’s] not taking responsibility today. There’s nothing magical about a not guilty plea to attempted murder. He’s got to admit to all the other charges. You see them all on video. The only thing that’s not on video is what’s in his head. He also knows that those other charges carry less time. There’s the magic.

Slip op. at ¶ 8.

The defendant did not object to the State’s closing argument, and he was convicted of attempted murder and other charges. On appeal, the defendant argued that the trial court’s failure to intervene during the State’s improper argument was reversible error. The majority of the Court of Appeals panel agreed, holding that the prosecutor’s commentary on defendant’s decision to plead not guilty was so unfair it violated defendant’s due process rights and ordering a new trial. The dissenting judge would have required a showing of prejudice by defendant because he failed to object at trial. Based on the record, the dissenting judge would have held that the State’s closing argument was improper, but that defendant was not prejudiced by the error. The State appealed on the basis of the dissenting opinion, conceding that the argument was improper but arguing that it was not prejudicial.

On appeal, the Supreme Court held that the Court of Appeals erred by failing to analyze prejudice. The high court undertook this review considering the entirety of the closing argument, the evidence, and the jury instructions. The Court noted that the prosecutor made the improper remarks in the context of explaining the intent required for attempted first-degree murder and after emphasizing the deliberate nature of the shooting. The Court characterized the improper argument as a “small portion” of the State’s closing argument and not the “primary” or “major focus.” Slip op. at ¶ 14. The Court noted that the State presented evidence that the defendant told his relatives that he would rather kill himself or be killed by law enforcement than go back to jail. Witnesses testified that the defendant’s gun was loaded with bullets designed to cause more serious injuries. After the officer identified himself, the defendant turned around and fired at the officer. The shootout between the defendant and the officer was captured on hotel surveillance video, which was played for the jury at trial. The Court reasoned that between the video and testimony from eyewitnesses who corroborated the State’s account of events, “‘virtually uncontested’” evidence of the defendant’s guilt was submitted to the jury. Slip op. at ¶ 15. In addition, the trial court instructed the jury that the defendant’s decision to plead not guilty could not be taken as evidence of his guilt, that the defendant was presumed innocent, and that the State was required to prove the defendant’s guilt beyond a reasonable doubt. Finally, the jury asked to re-watch the surveillance video of the shooting during its closing argument. The Court stated that this tended “to show that the jury based its decision on the evidence rather than on passion or prejudice resulting from the prosecutor’s improper argument.” Slip op. at ¶ 16. For these reasons, the Court concluded that the defendant was not prejudiced by the prosecutor’s “undeniably improper” closing argument. Slip. op. at ¶ 17. The Supreme Court reversed the Court of Appeals and remanded for consideration of remaining issues.

State v. Ricks [Duplicated], ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-116 (Sep 24 2021)

The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.

(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.

(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.

(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.

(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.

(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.

(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.

In this drug trafficking case, the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s closing argument. During those arguments, the prosecutor, without objection, made references to the defendant’s right to a jury trial and noted that the defendant had exercised that right despite “[a]ll of the evidence” being against him. The defendant has a constitutional right to plead not guilty and be tried by a jury. Reference by the State to a defendant’s failure to plead guilty violates the defendant’s constitutional right to a jury trial. Here, the prosecutor’s comments were improper. The court stated: “Counsel is admonished for minimalizing and referring to Defendant’s exercise of his right to a trial by jury in a condescending manner.” However, because the evidence of guilt was overwhelming the defendant failed to show that the comments were so prejudicial as to render the trial fundamentally unfair.

(1) On discretionary review of a unanimous, unpublished decision of the Court of Appeals in this sexual exploitation of a minor case, the court held that although statements in the prosecutor’s final jury argument were improper, they were not prejudicial. The defendant claimed that the images at issue depicting his penis near the child’s mouth did not show actual conduct and instead had been digitally manipulated to depict the conduct. In closing argument to the jury, the prosecutor argued that the crime of sexual exploitation of a minor could occur if the image was altered or manipulated to show a person engaged in a sexual act with a child. The prosecutor argued that the child does not have to actually be involved in the sexual act itself. The defendant was convicted and he appealed. The court held that the prosecutor’s argument was improper. According to the plain language of the statute, the minor is required to have engaged in sexual activity. When the minor depicted in an image appears to have been shown as engaged in sexual activity as a result of digital manipulation, the defendant has not committed the offense of first-degree sexual exploitation of a minor. Thus, the prosecutor’s argument misstated the applicable law. However, the court went on to hold that although the trial court erred by sustaining the defendant’s objection to the challenge argument, the error did not justify a new trial. It reasoned that when, as here, a misstatement of the law during jury argument is cured by correct jury instructions, no prejudice occurs. Here, the trial court’s instructions to the jury explicitly stated that to find the defendant guilty the jury had to find that the defendant used, induced, coerced, encouraged or facilitated the child victim’s involvement in sexual activity.

(2) In this first-degree sexual exploitation of a minor case, the trial court did not err by denying the defendant’s request that the jury be instructed that the “oral intercourse” element of the offense requires penetration. The court determined that whether the term “oral intercourse” as used in the statute proscribing this crime requires penetration presents an issue of first impression. The court concluded that the General Assembly intended the relevant statutory language to be construed broadly to provide minors with the maximum reasonably available protection from sexual exploitation. The court went on to hold that the term “oral intercourse” was intended as a gender-neutral reference to cunnilingus and fellatio, neither of which require penetration. Thus, the trial court did not err by refusing to instruct the jury in accordance with the defendant’s request.

 

In this felony death by vehicle case, the prosecution did not incorrectly state the standard for impairment in jury argument. The defendant asserted that the prosecutor’s statements suggested that the jury could find the defendant guilty merely if impairing substances were in his blood. The court disagreed finding that the when viewed in totality, the prosecutor’s statements made clear that the defendant could only be convicted if he was, in fact, legally impaired.

Although the prosecutor improperly argued to the jury in this armed robbery case that it did not matter whether a shotgun in question was loaded for purposes of determining whether it was a dangerous weapon, the defendant was not prejudiced by this argument where the trial judge properly instructed the jury on this element.

Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:

Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made. 

In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial--a “drastic remedy”--on grounds of the prosecutor’s improper statements. The prosecutor’s statements that the defendant had lied to the jury while testifying at trial were clearly improper, as was the prosecutor’s statement referring to the defendant as a narcissist. However, considering the overwhelming evidence of guilt, the prosecutor’s remarks did not render the trial and conviction fundamentally unfair and thus the trial court did not err by failing to intervene ex mero motu.

Where the defendant opened the door to the credibility of a defense witness, the prosecutor’s possibly improper comments regarding the witness’s credibility were not so grossly improper as to require intervention by the trial court ex mero motu. Among other things, the prosecutor stated: “that man would not know the truth if it came up and slapped him in the head.”

Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’s argument was undignified and solely intended to inflame the passions of the jury. The court noted that had the trial court not issued a curative instruction to the jury, it would have been compelled to order a new trial on this basis.

The prosecutor’s characterization of the defendant’s statements as lies, while “clearly improper,” did not require reversal. The court noted that the trial court’s admonition to the prosecutor not to so characterize the defendant’s statements neutralized the improper argument.

The trial court did not err by failing to intervene ex mero motu when, in closing argument, the prosecutor suggested that the defendant was lying. The comments were not so grossly improper as to constitute reversible error.

Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:

Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made. 

State v. Hembree, 368 N.C. 2 (Apr. 10, 2015)

During closing arguments at the guilt-innocence phase of this capital murder trial, the State improperly accused defense counsel of suborning perjury. The prosecutor argued in part: “Two years later, after [the defendant] gives all these confessions to the police and says exactly how he killed [the victims] . . . the defense starts. The defendant, along with his two attorneys, come together to try and create some sort of story.” Although the trial court sustained the defendant’s objection to this statement it gave no curative instruction to the jury. The prosecutor went to argue that the defendant lied on the stand in cooperation with defense counsel. These latter statements were grossly improper and the trial court erred by failing to intervene ex mero motu.

Prosecutor’s comment during jury argument was improper. The comment attacked the integrity of defense counsel and was based on speculation that the defendant changed his story after speaking with his lawyer.

State v. Dalton, 369 N.C. 311 (Dec. 1, 2016)

Affirming the Court of Appeals in this murder case, the court held that the prosecutor’s closing argument exaggerating the defendant’s likelihood of being released from civil commitment upon a finding of not guilty by reason of insanity and constituted prejudicial error requiring a new trial. At trial the defendant asserted the insanity defense. At the charge conference, the prosecutor asked the trial court if he could comment on the civil commitment procedures that would apply if the defendant was found not guilty by reason of insanity. The trial court agreed to permit the comment, but cautioned the prosecutor not to exaggerate the defendant’s chance of being released after 50 days. During closing arguments the prosecutor stated that it was “very possible that in 50 days, if she shows by a preponderance of the evidence that she is not a threat to anyone else or herself, she will be back home.” The defendant unsuccessfully objected to this comment and the prosecutor continued, arguing “She very well could be back home in less than two months.” The court began by rejecting the State’s argument that because the defendant failed to object to the prosecutor’s second statement, that statement should be reviewed under a stricter standard of review. The court concluded that the second statement was not separate and distinct from the first. Turning to the propriety of the prosecutor’s argument, it noted that if the jury finds a defendant not guilty by reason of insanity, the trial court must order the defendant civilly committed. Within 50 days of commitment, the trial court must provide the defendant with a hearing. If at that time the defendant shows by a preponderance of the evidence that she no longer has a mental illness or is dangerous to others the court will release the defendant. Clear, cogent and convincing evidence that an individual has committed homicide in the relevant past is prima facie evidence of dangerousness to others. Here, the evidence did not support the prosecutor’s assertion that if the defendant was found not guilty by reason of insanity it is “very possible” that she would be released in 50 days. Instead, it demonstrated that the defendant will suffer from mental illness and addiction “for the rest of her life” and that her “risk of recidivism would significantly increase if she were untreated and resumed her highly unstable lifestyle.” Additionally, the homicide for which she was convicted is prima facie evidence of dangerousness to others. Therefore the only reasonable inference from the evidence is that it is highly unlikely that the defendant would be able to demonstrate by a preponderance of the evidence within 50 days that she no longer is dangerous to others.

In this capital case, the court rejected the defendant’s argument that the trial court abused its discretion by denying his requests for a mistrial because of two statements made by the State during closing arguments at the guilt phase of the trial. During the investigation of the case, the defendant authorized defense counsel to reveal the location of the victim’s body, in hopes of receiving a plea offer or perhaps the possibility of arguing for mitigating circumstances at a possible later capital trial. The defendant and the lawyers agreed that the information would be conveyed to the police but that its source would not be disclosed. The lawyers carried out this agreement in making their disclosure to law enforcement. During closing argument at trial, the prosecutor noted in part that the victim’s body was found “where the defendant’s lawyer said he put the body.” Later, the prosecutor asserted, “And his defense attorney telling law enforcement where to look for the body puts him there.” The court found that the second statement was not improper. Evidence that the information of the victim’s location was conveyed to law enforcement by defense counsel was properly admitted by the trial court and this evidence permitted reasonable inferences to be drawn that were incriminating to the defendant, specifically that the defendant was the source of the information and had been to the location. The prosecutor’s first statement however was improper. This statement was couched as an assertion of fact which was not an accurate reflection of the evidence. However, the statement did not require a mistrial. The court stated: “this sole misstatement of that evidence did not run far afield of what was permissible.”

In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.

     The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.

     Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.

     Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”

     The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.

     The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.

     The court concluded with this note:

While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.

In this DWI case the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu to statements made by the prosecutor in closing argument. The court found the defendant’s argument to be “meritless at best,” noting that the statements at issue were consistent with the evidence presented and did not delve into conjecture or personal opinion. Even if the remarks were improper, the defendant failed to show prejudice.

The trial court abused its discretion when it allowed the prosecutor, in closing argument and over the defendant’s objection, to compare the defendant’s impaired driving case to a previous impaired driving case litigated by the prosecutor. The prosecutor discussed the facts of the case, indicated that the jury had returned a guilty verdict, and quoted from the appellate decision finding no reversible error. Reversed for a new trial.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor asserted that defense counsel’s mitigation case was a “lie” based on “half-truths” and omitted information.

State v. Huey, 370 N.C. 174 (Sept. 29, 2017)

Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:

Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made. 

State v. Phillips, 365 N.C. 103 (June 16, 2011)

The court rejected the capital defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s argument in the guilt-innocence phase. The defendant argued that the trial court should have intervened when the prosecutor commented about a defense expert on diminished capacity. Although the court found the prosecutor’s statement that the expert’s testimony was “wholly unbelievable” to be error, that error was not so egregious as to warrant intervention on the court’s own motion. Similarly, the prosecutor’s comment about the “convenience” of the expert’s testimony (she opined that the defendant suffered from diminished capacity for a portion of time that coincided with when the crime occurred), was not so grossly improper as to require intervention ex mero motu.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor used the words “laugh, laugh” when impeaching the credibility of a defense expert.

The defendant was charged with first degree burglary after she was found inside the victims’ home in the early morning hours, having taken items from their cars and placed them inside a purse belonging to one of the homeowners. The defendant appeared to be impaired at the time she was arrested. She claimed during the encounter that, alternatively, she was an emergency medical worker, someone had chased her inside the house, and someone had invited her to the house.

(1) Before making an opening statement, defense counsel notified the court that he would be admitting all of the elements of the charged offense besides intent. The trial court asked the defendant whether she understood and agreed with this decision. She said she did. While defense counsel’s express or implied admission of the defendant’s guilt of a charged offense to the jury without the defendant’s consent is per se ineffective assistance of counsel, such an admission may be made with the defendant’s consent. Here, the trial court had an exchange with the defendant where she expressed her understanding and agreed to admit the elements of felony breaking and entering other than intent. Therefore, even assuming, without deciding, that defense counsel impliedly admitted that defendant was guilty of misdemeanor breaking and entering, that admission was consensual and did not constitute ineffective assistance of counsel.

(2) An expert in forensic psychology testified for the defendant that she had diagnosed the defendant with post-traumatic stress disorder, severe alcohol use disorder, severe amphetamine use disorder, and a personality disorder. The expert testified that the defendant admitted to using methamphetamine daily and that such use can result in a methamphetamine-associated psychosis which presents with delusions, paranoia, and hallucinations. The expert characterized the defendant’s symptoms as congruent with this condition.

During closing argument, the prosecutor attacked the expert’s credibility, stating that “‘psychosis is quite convenient as an excuse’” and that the defendant “‘had Dr. James come and testify . . . with the end in mind.’” Slip op. at 14. The prosecutor argued to the jury that the expert was “‘paid by the defense, for the defense, to give good stuff for the defense’” and that “‘[y]ou get what you put out. What you put in, you get out.’” Id. After questioning the utility of Dr. James’s diagnoses of the defendant, the prosecutor remarked to the jury, “‘So I ask you to take that for what it is. At the end of the day, hired by the defense, for the defense, to say good things for the defense . . . .’” Id. The defendant did not object to the remarks. The court of appeals held that the prosecutor’s remarks were improper because they went beyond arguing that the expert witness was potentially biased, which is permissible. Instead, the prosecution impermissibly suggested to the jury that the defendant’s expert was paid to fabricate an excuse for her conduct and acts, regardless of the truth. The court explained:

By arguing that psychosis was an “excuse,” Dr. James testified with an end in mind, Dr. James was paid “to give good stuff for the defense,” and Dr. James was hired “to say good things for the defense,” the prosecutor inappropriately suggested that Dr. James “should not be believed because [s]he would give untruthful or inaccurate testimony in exchange for pay.”

 Slip op. at 14 (quoting, in last clause of last sentence, State v. Huey, 370 N.C. 174, 183 (2017)).

While these remarks were improper, the court of appeals held that in the absence of an objection by the defendant, they were not so grossly improper as to impede the defendant’s right to a fair trial. The court noted that similar remarks had been held not to amount to prejudicial error. Moreover, the court said it could not conclude that the remarks were so prejudicial as to merit a new trial considering the substantial amount of evidence tending to show that the defendant had the requisite intent for first-degree burglary.

(3) The Court vacated the civil judgment for attorney’s fees and remanded the matter to the trial court for a waiver by the defendant or a hearing on the issue. Although at trial the defendant stated she had no objection to the entry of a civil judgment, she did not know at that time the number of hours her appointed counsel planned to submit or what amount she would owe. She was, therefore, deprived of a meaningful opportunity to be heard before the judgment was entered.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

(1) No gross impropriety occurred in closing argument in the guilt-innocence phase of a capital trial when the prosecutor (a) improperly expressed his personal belief that there was overwhelming evidence of guilt; (b) improperly injected his personal opinion that a stab wound to the victim’s neck showed intent. (2) The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor improperly injected his personal beliefs, repeatedly using the words, “I think” and “I believe.” (3) The collective impact of these arguments did not constitute reversible error.

The defendant was convicted of taking indecent liberties with a minor, charges that arose from sexual assaults against his daughters. During closing argument, the prosecutor said that the defendant’s excuse for possibly touching his daughters’ breasts—that he lacked feeling in his hands and fingers—was “ridiculous.” (Slip op. at ¶ 10). He explained that the defendant could adjust a microphone and open candy wrappers, which defendant demonstrated during the trial. The prosecutor also stated that the fight between the defendant and one of his daughters over her phone occurred because “he wanted to get in, and I guess see what was in there, what those pictures were, what those text messages were.” Id. He explained, “it makes a lot more sense when you put it in the context of a father who has a sexual attraction to his daughters.” Id. The defendant (who did not object to these statements when they were made) argued on appeal that the trial court erred by failing to intervene on its own motion to correct these statements.

The Court of Appeals rejected the defendant’s argument. The Court characterized the “ridiculous excuse” statements as a small part of an otherwise proper argument that the jury should not believe the defendant’s claim that a lack of feeling in his fingers prevented him from knowing if he had touched his daughters’ breasts. Additionally, the Court noted that the prosecutor used the word “ridiculous” only twice in his lengthy closing argument. The Court said that although the prosecutor should not have expressed his personal belief that the defendant’s testimony was false, his remarks were not so grossly improper as to render the proceeding fundamentally unfair.

The Court further determined that it was not improper for the prosecutor to argue that the defendant wanted to access his daughter’s phone to look at inappropriate photos. This was a reasonable inference based upon the evidence introduced at trial. Because the argument was not improper, the trial court was not required to intervene.

State v. Ricks [Duplicated], ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-116 (Sep 24 2021)

The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.

(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.

(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.

(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.

(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.

(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.

(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.

In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.

     The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.

     Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.

     Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”

     The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.

     The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.

     The court concluded with this note:

While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.

State v. Mumma [Duplicated], ___ N.C. App. ___, 811 S.E.2d 215 (Feb. 6, 2018) modified and affirmed on other grounds, ___ N.C. ___, ___ S.E.2d ___ (May 10 2018)

In this murder case, the trial court did not err by failing to intervene ex mero motu during the State’s closing argument. The defendant argued that the prosecutor’s closing arguments injected the prosecutor’s personal beliefs, appealed to the jury’s passion, and led the jury away from the evidence. The court determined that the challenged portions of the argument, when taken in context, draw reasonable inferences based on the defendant’s inconsistent statements and point out inconsistencies in his testimony. The court determined that statements like “give me a break” and “come on” do not reflect the prosecutor’s personal opinion but rather point out inconsistencies in the defendant’s testimony. With respect to the prosecutor’s statement that he would “respectfully disagree” with the jury if they decided to find that the defendant killed the victim in self-defense, even if this argument was improper, it was not grossly so as to warrant the trial court’s intervention ex mero motu.

In this DWI case the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu to statements made by the prosecutor in closing argument. The court found the defendant’s argument to be “meritless at best,” noting that the statements at issue were consistent with the evidence presented and did not delve into conjecture or personal opinion. Even if the remarks were improper, the defendant failed to show prejudice.

(1) The prosecutor’s statement, which was clarified after objection, was not in violation of the law or calculated to mislead or prejudice the jury. After the trial court sustained defense counsel’s objection to the prosecutor’s statement about the victim, “I think she is telling the truth,” the prosecutor clarified: “I’m just arguing they should think she’s telling the truth. I’m sorry, Judge, I misstated. You should be able to say, after watching her testify, that you think she is telling the truth.” (2) The court rejected the defendant’s argument that the trial court erred by failing to give a curative instruction to the jury after sustaining defense counsel’s objection, where the defendant had not asked for such an instruction. Additionally, the trial court had instructed the jury at the outset of the trial that when the court sustains an objection to a question, the jury must disregard the question and e answer. (3) The trial court did not err by failing to intervene ex mero motu when the prosecutor made his clarifying statement.

In this murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s closing argument. Although the prosecutor’s remarked that the case was one of “the most gruesome and violent murders this community has ever seen,” the comment related directly to the State’s theory of the case--that the defendant acted intentionally and with premeditation and deliberation.

The trial court did not err by failing to intervene ex mero motu when, in a triple homicide case, the prosecutor argued, among other things, “If that . . . isn’t murder, I don’t know what is” and “I know when to ask for the death penalty and when not to. This isn’t the first case, it’s the ten thousandth for me.”

Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:

Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made. 

In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.

     The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.

     Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.

     Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”

     The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.

     The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.

     The court concluded with this note:

While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.

In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial--a “drastic remedy”--on grounds of the prosecutor’s improper statements. The prosecutor’s statements that the defendant had lied to the jury while testifying at trial were clearly improper, as was the prosecutor’s statement referring to the defendant as a narcissist. However, considering the overwhelming evidence of guilt, the prosecutor’s remarks did not render the trial and conviction fundamentally unfair and thus the trial court did not err by failing to intervene ex mero motu.

In a drug trafficking case, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s closing argument. The prosecutor asserted: “Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that [the defendant] was in that world. He’s an admitted drug dealer and admitted drug user.” Citing State v. Willis, 332 N.C. 151, 171 (1992), the court concluded that the prosecutor was not characterizing the defendant as the devil but rather was using this phrase to illustrate the type of witnesses which were available in this type of case.

Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’s argument was undignified and solely intended to inflame the passions of the jury. The court noted that had the trial court not issued a curative instruction to the jury, it would have been compelled to order a new trial on this basis.

The trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the defendant as a con man, liar, and parasite. The defendant was charged with obtaining property by false pretenses, an offense committed by deceiving or lying to win the confidence of victims. Given that the defendant lied to a church congregation in order to convince them to give him money, there was no impropriety in the State’s reference to the defendant as a liar and con man; the terms accurately characterize the charged offense and the evidence presented at trial. As for the term “parasite,” the court concluded: “this name-calling by the State was unnecessary and unprofessional, but does not rise to the level of gross impropriety.”

While the prosecutor would have been better advised to have refrained from making comments that might have encouraged the jury to lend an ear to the community and engage in general deterrence, any impropriety did not render the trial fundamentally unfair.

In this felony death by vehicle case the prosecutor did not improperly appeal to the jury’s passion and prejudice requiring the trial court to intervene ex mero motu. The prosecutor asserted that the jury “can send a message” with its verdict and told the jury that it was “the moral voice and conscience of this community.” Neither of these arguments are improper.

In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.

     The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.

     Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.

     Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”

     The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.

     The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.

     The court concluded with this note:

While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.

While the prosecutor would have been better advised to have refrained from making comments that might have encouraged the jury to lend an ear to the community and engage in general deterrence, any impropriety did not render the trial fundamentally unfair.

In this first-degree murder case, the defendant, who was white, was charged with shooting through a window in his garage door and killing the victim, who was black. The victim was one of a group of about 20 people who had briefly gone to a party at a nearby house, and he was shot and killed when he ran through a portion of the defendant’s yard. The defendant admitted to the shooting, but argued that he was acting in self-defense and defense of habitation. At trial, the defendant testified that he had yelled at the group to “shut the f— up” and they yelled back “f— you; go inside; white boy.” The state’s evidence included a recorded 911 call in which the defendant reported there were “hoodlums” racing in the street (the defendant later admitted this was false) and stated that he was “going to kill him,” he was “locked and loaded,” and he would “secure the neighborhood.”

During closing arguments, the prosecutor stated that the issue of race was “the elephant in the room” since it had been raised during jury selection and alluded to during the defendant’s evidence and closing argument. The defendant objected, but the trial court overruled the objection and allowed the prosecutor to argue that if the defendant’s fear of the victim was based on the victim’s race, then it was not a reasonable fear that would support a claim of self-defense: “Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.” The defendant was convicted and appealed. Citing State v. Jones, 355 N.C. 117 (2002), the Court of Appeals held that the prosecutor’s statements regarding race were an improper appeal to bias and reversed the conviction. [Note: For further discussion of the Court of Appeals decision, see Emily Coward, “State v. Copley: Addressing Race During Closing Argument,” N.C. Criminal Law Blog (June 18, 2019).]

The North Carolina Supreme Court reversed the Court of Appeals, finding that neither the majority nor the dissent had conducted a “complete prejudice analysis” in the case. The higher court acknowledged Jones but explained that it was an inadequate basis for comparison because the challenged statements in Jones arose during the closing arguments in the sentencing phase of a death penalty case. To properly evaluate prejudice during the guilt-innocence phase of a non-capital case, the reviewing court must also consider: (i) the other evidence of the defendant’s guilt; and (ii) the remainder of the closing argument. Assuming without deciding that the challenged statements were improper, the defendant failed to establish prejudice in this case. First, viewing the comments about race “in the context of the entire closing,” the court found that the comments were only a small part of an argument that primarily focused on the defendant’s lack of credibility, the strong evidence of his guilt, and the absence of a basis for claiming self-defense, which undermined a finding of prejudice. Second, in light of all the other “compelling evidence” of the defendant’s guilt in this case (e.g., incriminating statements recorded on the 911 call, firing through a closed garage door, challenges to the defendant’s credibility, and his admission to the shooting), the defendant failed to meet his burden of demonstrating a reasonable possibility that the jury would have acquitted him in the absence of the prosecutor’s comments. The appellate court’s decision was reversed, and the case was remanded for ruling on the defendant’s remaining arguments.

Justice Earls wrote separately in concurrence to address the unresolved issue of whether the prosecutor’s comments were improper. Derogatory or inflammatory statements appealing to bias or prejudice are improper, but neutral and non-derogatory statements regarding race are permissible if they bear a material relevance to an issue in the case (such as motive). Justice Earls concluded that the prosecutor’s statements in this case were not an appeal to racial animus; instead, they addressed relevant issues of race that had arisen during jury selection and the defendant’s testimony. Therefore, it was “proper and permissible for the prosecutor to urge the jury not to allow any racial considerations or stereotypical assumptions about young black men to impact their ultimate decision about what was reasonable fear in these circumstances.”

State v. Lopez, 363 N.C. 535 (Aug. 28, 2009)

The trial judge abused her discretion in overruling a defense objection to the State’s jury argument regarding the effect of an aggravating factor on the sentence. Although the jury’s understanding of aggravating factors is relevant to sentencing, the prosecutor’s argument introduced error because it was inaccurate and misleading. The court indicated that consistent with G.S. 7A-97, parties may explain to a jury the reasons why it is being asked to consider aggravating factors and may discuss and illustrate the general effect of finding such factors, such as the fact that a finding of an aggravating factor may allow the trial court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence.

In this child sex case, the trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the complainants as “victims.” 

The trial court did not err by denying the defendant final closing arguments in this DWI case. Rule 10 of the General Rules of Practice for the Superior and District Courts provides that “if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.” Here, the defendant did not call any witnesses or put on evidence but did cross-examine the State’s only witness and sought to play a video of the entire traffic stop recorded by the officer’s in-car camera during cross-examination. At issue on appeal was whether admitting the video of the stop during cross-examination constituted introducing evidence. Although the officer provided testimony describing the stop shown in the video, the video went beyond the officer’s testimony and “is different in nature from evidence presented in other cases that was determined not to be substantive.” Playing the video allowed the jury to hear exculpatory statements by the defendant to the police beyond those testified to by the officer and introduced evidence of flashing police lights that was not otherwise in evidence to attack the reliability of the HGN test. The video was not merely illustrative. It allowed the jury to make its own determinations concerning the defendant’s impairment apart from the officer’s testimony and therefore was substantive evidence. 

The trial court committed reversible error by denying the defendant the right to the final argument based on its ruling that he had “introduced” evidence within the meaning of Rule 10 of the General Rules of Practice for the Superior and District Courts during his cross-examination of the victim. During that cross defense counsel read aloud several portions of the victim’s earlier statement to an officer, in what appears to have been an attempt to point out inconsistencies between the victim’s trial testimony and his prior statement; defense counsel also asked the victim questions, including whether he had told the officer everything that happened when he provided his statement. The statements read and referenced by defense counsel directly related to the victim’s testimony on direct examination. Furthermore, defense counsel never formally introduced the statement into evidence. Thus, the defendant never “introduced” evidence within the meaning of Rule 10.  

Because the defendant did not present any evidence at trial, the trial court committed reversible error by denying the defendant final closing argument. Defense counsel cross-examined an officer who responded to a call about the break-in and identified defense Exhibit 2, a report made by that officer following his investigation. During cross defense counsel elicited the officer’s confirmation that, after viewing video surveillance footage, a man named Basil King was identified as a possible suspect. The trial court denied the defendant's motion to make the final closing argument because it believed this cross-examination constituted the introduction of evidence pursuant to Rule 10 of the General Rules of Practice for the Superior and District Courts. Although the defendant introduced for the first time evidence in the officer’s report that Basil King was a suspect, the defendant did not introduce the officer’s actual report into evidence, nor did he have the officer read the report to the jury. Furthermore, this evidence was relevant to the investigation and was contained in the officer’s own report. It was the State, the court noted, that first introduced testimony by the officer and other witnesses concerning the investigation and the evidence leading the police to identify the defendant as a suspect. It concluded: “We cannot say that the identification of other suspects by the police constituted new evidence that was not relevant to any issue in the case." (quotation omitted). Therefore, this testimony cannot be considered the introduction of evidence pursuant to Rule 10. 

The trial judge erred in denying the defendant final jury argument. The defendant did not introduce evidence under Rule 10 of the General Rules of Practice when cross-examining an officer. Defense counsel referred to the contents of the officer’s report when cross-examining the officer. However, the officer’s testimony on cross-examination did not present “new matter” to the jury when considered with the state’s direct examination of the officer.

In this DWI case, the trial court did not err by failing to intervene ex mero motu when the prosecutor speculated in closing argument about what the defendant’s breathalyzer test would have been an hour before she was actually tested. The court found that the argument at issue was not so grossly improper as to require the trial court to intervene ex mero motu.

The trial court did not err by failing to intervene ex mero motu during that State’s closing argument. Even if the prosecutor misstated the evidence, the trial court’s jury instruction cured any defect. The trial court instructed the jury that if their “recollection of the evidence differs from that of the attorneys, you are to rely solely upon your recollection of the evidence.” 

The defendant was convicted of possession of firearm by a felon for his involvement in a drug transaction in which one of the would-be-drug-buyers was shot and killed. Witnesses described the defendant, who they said pulled out a revolver and moved toward the car where the victim was sitting, as having a tattoo on his cheek.  At trial, the State introduced a photograph of the defendant that showed a tattoo on his chest. During closing argument, the prosecutor stated that the men who saw the defendant draw his revolver identified him as having a tattoo on his chest. In fact, those witnesses had testified that the man had a tattoo on his cheek. The defendant did not contemporaneously object to these misstatements. The defendant appealed, and the Court of Appeals found no error, concluding that the prosecutor’s statements during closing argument were not grossly improper. The Supreme Court granted discretionary review and affirmed.

The Supreme Court characterized the misstatements as mistakes that were not intentional and were not extreme or grossly improper. The Court noted that the trial court explicitly instructed jurors that they were to be guided exclusively by their own recollection of the evidence any time their recollection differed from that of the attorneys. Stating that “[t]rials are not carefully scripted productions,” the Court reasoned that absent gross impropriety in an argument “a judge should not be thrust into the role of an advocate based on a perceived misstatement regarding an evidentiary fact when counsel is silent.” Slip op. at ¶ 26. Accepting the defendant’s argument, the Court stated, would allow attorneys to “sit back in silence during closing arguments” and then claim error on appeal if the trial court failed to correct a misstatement of the evidence. Slip op. at ¶ 26. Thus, the Court concluded that the trial court did not abuse its discretion when it declined to intervene ex mero motu.

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court held that the prosecutor’s remarks during closing argument in this first-degree murder case were not so grossly improper as to require the trial court to intervene ex mero motu. In the first challenged comments, the prosecutor told the jury that the defendant’s mental health history was ripe with examples of violence, homicidal ideations, and the desire and intent to kill other people. The prosecutor argued that any mental illness that the defendant had did not prevent him from forming the specific intent to kill. The prosecutor continued: “He had the specific intent to kill many people, over a 20-year period of time.” These statements were premised on matters in the record and were not otherwise improper.

            The defendant also pointed to statements by the prosecutor that the jury could ensure that a “homicidal, manipulative, sociopath is not unleashed, yet again, onto our streets.” The defendant argued that the term “unleashed” was inflammatory and prejudicial. The court disagreed, concluding that this statement “falls within the realm of permissible hyperbole.”

            Finally, the defendant challenged the prosecutor’s reference to the defendant’s potentially delusional, but factually plausible, motives for stabbing the victim. Again, the court found no gross impropriety with respect to these comments.

(1) The court rejected the defendant’s argument that the trial court erred by denying his motion under the Racial Justice Act to prohibit the State from seeking the death penalty without holding an evidentiary hearing. Assuming arguendo that any version of the RJA applies to the defendant, the defendant failed to follow the provisions of that statute which mandate that the claim shall be raised by the defendant at the Rule 24 conference. Here, the defendant did not raise a RJA claim at the Rule 24 conference, despite being twice asked by the trial court whether he wanted to be heard. The court concluded: “Defendant cannot complain of the trial court’s failure to strictly adhere to the RJA’s pretrial statutory procedures where he himself failed to follow those procedures.” The court noted that its ruling was without prejudice to the defendant’s ability to raise an RJA claim in post-conviction proceedings.

(2) The court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s closing argument during the sentencing phase of the trial. On appeal the defendant pointed to two statements made by prosecutors during the State’s closing arguments which refer to the defendant’s decision not to present mitigating evidence or closing statements. The court found no gross impropriety in the prosecutor’s remarks, noting in part that it is not impermissible for prosecutors to comment on the defendant’s lack of mitigating evidence.

(3) The court found that the defendant’s sentencing survived proportionality review, noting in part that the defendant kidnapped a five-year-old child from her home and sexually assaulted her before strangling her and discarding her body under a log in a remote area used for field dressing deer carcasses.

In case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. The case involved the drowning of a child under the defendant’s supervision. Over a dissent, a majority of the Court of Appeals held that the State’s jury argument regarding 404(b) evidence involving the drowning of another child in the defendant’s care “amounted to plain error.” The dissenting judge rejected the contention that the trial court erred by failing to intervene ex mero motu to this argument, arguing that plain error was not the appropriate standard of review with respect to jury argument that fails to provoke a timely objection. Applying the gross impropriety standard, the dissenting judge found no error.

State v. Phillips, 365 N.C. 103 (June 16, 2011)

(1) The court rejected the capital defendant’s argument that the trial court erred by failing to intervene ex mero motu at several points during the State’s argument in the guilt-innocence phase. The defendant argued that the trial judge should have intervened when the prosecutor mischaracterized defense counsel’s statements. Although the prosecutor overstated the extent of defense counsel’s concessions, the statements constituted a lapsus linguae that were neither calculated to mislead nor prejudicial. The defendant argued that the trial court should have intervened when the prosecutor remarked about the defendant’s failure to introduce evidence supporting his diminished capacity defense. The court concluded that the State is free to point out the defendant’s failure to produce evidence to refute the State’s case. Furthermore, it rejected the defendant’s contention that the prosecutor’s statements misstated the law on diminished capacity. The defendant argued that the prosecutor’s statement about diminished capacity misled the jury into believing that the defense was not established because the defense failed to prove remorse or efforts to help the victims. Any impropriety in this argument, the court concluded, was cured by the trial court’s correct instructions on the defense. The defendant argued that the prosecutor misstated the law as to the intent required for first-degree murder. However, the prosecutor’s statement was not improper. In sum, the court concluded that the prosecutor’s statements, both individually and cumulatively, were not so grossly improper as to have required the trial court to intervene ex mero motu. (2) The court rejected the defendant’s argument that during the State’s closing argument in the sentencing phase the prosecutor erroneously called upon the jury to disregard mercy altogether. The court found that the arguments in question, cautioning jurors against reaching a decision on the basis of their “feelings” or “hearts,” did not foreclose considerations of mercy or sympathy; instead, the prosecutor asked the jury not to impose a sentence based on emotions divorced from the facts presented in the case. 

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

(1) No gross impropriety occurred in closing argument in the guilt-innocence phase of a capital trial when the prosecutor (a) asserted that a mark on the victim’s forehead was caused by the defendant’s shoe and evidence supported the statement; (b) suggested that the defendant’s accomplice committed burglary at the victim’s home; the comment only referred the accomplice, neither the defendant nor the accomplice were charged with burglary, and the trial court did not instruct the jury to consider burglary; or (c) suggested that the victim was killed to eliminate her as a witness when the argument was a reasonable extrapolation of the evidence made in the context of explaining mental state. (2) The trial court did not err by failing to intervene ex mero motu during the State’s opening statement during the sentencing phase of a capital trial when the prosecutor stated that the “victim and the victim’s loved ones would not be heard from.” According to the defendant, the statement inflamed and misled the jury. The prosecutor’s statement described the nature of the proceeding and provided the jury a forecast of what to expect. (3) The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor (a) made statements regarding evidence of aggravating circumstances; the court rejected the argument that the prosecutor asked the jury to use the same evidence to find more than one aggravating circumstance; (b) properly used a neighbor’s experience to convey the victim’s suffering and nature of the crime; (c) offered a hypothetical conversation with the victim’s father; (d) referred to “gang life” to indicate lawlessness and unstrained behavior, and not as a reference to the defendant being in a gang or that the killing was gang-related; also the prosecutor’s statements were supported by evidence about the defendant’s connection to gangs. 

On remand from the North Carolina Supreme Court’s decision (summary here) that there was no prejudicial error in the prosecutor’s closing argument with respect to race in this murder trial, the Court of Appeals considered the defendant’s remaining arguments regarding jury argument and jury instructions.  Largely based on its view that the prosecutor’s jury argument was made in the context of self-defense rather than, as the defendant maintained, the habitation defense, the court disagreed with the defendant’s argument that the trial court erred by failing to intervene to correct an alleged incorrect statement of law regarding the aggressor doctrine in the prosecutor’s closing argument to which the defendant did not object.  The court went on to decline to reach the defendant’s argument that the trial court plainly erred with respect to jury instructions on the aggressor doctrine in the context of the defense of habitation, finding the argument waived by the defendant’s active participation in the formulation of the jury instructions during the charge conference and failure to object at trial.  Finally, the court held that the trial court did not err by instructing the jury on murder by lying in wait because the instruction was supported by sufficient evidence even if it was assumed that the defendant offered evidence of a conflicting theory of defense of habitation.  The court noted with respect to lying in wait that the State’s evidence showed that the defendant concealed himself in his darkened garage with a suppressed shotgun and fired through a garage window, bewildering unwarned bystanders.

Judge Tyson dissented, expressing the view that the trial court erred with respect to instructing the jury on murder by lying in wait given that the defendant was wholly inside his home with his family as an armed intruder approached the home and given shortcomings in the trial court’s instructions regarding the State’s burden of disproving the defendant’s assertion of self-defense and the jury’s responsibility to evaluate evidence and inferences on that issue in the light most favorable to the defendant.

State v. Ricks [Duplicated], ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-116 (Sep 24 2021)

The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.

(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.

(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.

(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.

(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.

(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.

(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.

The trial court did not err in this murder case by failing to intervene ex mero motu to strike prosecutor’s comments during closing arguments. Citing case precedent, the court held that neither the prosecutor’s characterization of the defendant as “evil” nor a brief reference to the defense experts as “hacks” were so grossly improper that the judge erred by failing to intervene ex mero motu during the closing argument.

State v. Mumma, ___ N.C. App. ___, 811 S.E.2d 215 (Feb. 6, 2018) modified and affirmed on other grounds, ___ N.C. ___, ___ S.E.2d ___ (May 10 2018)

In this murder case, the trial court did not err by failing to intervene ex mero motu during the State’s closing argument. The defendant argued that the prosecutor’s closing arguments injected the prosecutor’s personal beliefs, appealed to the jury’s passion, and led the jury away from the evidence. The court determined that the challenged portions of the argument, when taken in context, draw reasonable inferences based on the defendant’s inconsistent statements and point out inconsistencies in his testimony. The court determined that statements like “give me a break” and “come on” do not reflect the prosecutor’s personal opinion but rather point out inconsistencies in the defendant’s testimony. With respect to the prosecutor’s statement that he would “respectfully disagree” with the jury if they decided to find that the defendant killed the victim in self-defense, even if this argument was improper, it was not grossly so as to warrant the trial court’s intervention ex mero motu.

(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s assertions in his opening statement. Even if the prosecutor’s statements constituted an impermissible comment on the defendant’s right to remain silent, the error was harmless beyond a reasonable doubt. (2) The court rejected the defendant’s argument that the prosecutor improperly misled the jury during closing argument by asserting facts not in evidence. The defendant failed to show any gross impropriety that was likely to influence the verdict. (3) The defendant failed to show gross impropriety warranting intervention ex mero motu to when the prosecutor handled a rifle in evidence by pointing it at himself. The defendant argued that the prosecutor’s actions inflamed the jurors’ emotions and causing them to make a decision based on fear (4) Notwithstanding these conclusions, the court noted that it found the prosecutor’s words and actions “troublesome,” stating: “the prosecutor flew exceedingly close to the sun during his closing argument. Only because of the unique circumstances of this case has he returned with wings intact.” It went on to emphasize that a prosecutor “has the responsibility of the Minister of Justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict” (quotation omitted).

The trial court did not err by failing to intervene sua sponte during the prosecutor’s closing argument. Here, the prosecutor argued facts in evidence regarding a prior assault by the defendant and the trial court gave an appropriate limiting instruction regarding the defendant’s prior conviction. Thus, the prosecutor’s reference to this incident and his comment suggesting that the defendant was a “cold person” were not so grossly improper that the trial court was required to intervene on its own motion.

State v. Carvalho, 243 N.C. App. 394 (Oct. 6, 2015) aff’d per curiam, 369 N.C. 309 (Dec 21 2016)

The State’s closing arguments did not require the trial court to intervene ex mero moto. With respect to comments regarding 404(b) evidence, the State did not ask the jury to use the evidence for an improper purpose. To the extent that the State referred to any improper evidence, the references were not so grossly improper that the trial court should have intervened on its own motion. 

The court held, in this burning of personal property case, that although some of the prosecutor’s comments regarding the credibility of certain witness testimony during closing arguments may have been objectionable, they did not rise to the level of requiring the trial court to intervene ex mero motu. The court noted as objectionable the prosecutor’s statement that the victim’s testimony was “extraordinarily credible.”

In this DWI case, the court rejected the defendant’s argument that comments made during the prosecutor’s final argument and detailed in the court’s opinion were so grossly improper that the trial court should have intervened ex mero motu. Among the challenged comments were those relating to the defendant’s status as an alcoholic and the extent to which he had developed a tolerance for alcoholic beverages. Finding that “the prosecutor might have been better advised to refrain from making some of the challenged comments,” the court declined to find that the arguments were so grossly improper that the trial court should have intervened ex mero motu.

In a case where the defendant was convicted of sexual battery and contributing to the abuse or neglect of a juvenile, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s final argument to the jury. The defendant challenged the prosecutor’s statement that he had ruined the victim’s childhood and that if it failed to find the victim’s testimony credible, it would be sending a message that she would need to be hurt, raped, or murdered before an alleged abuser could be convicted.

(No. COA13-925). Although the prosecutor’s statements during closing argument in a robbery case were improper, a new trial was not required. The prosecutor argued that if the defendant “had gotten hold” of a rifle loaded with 14 rounds, “one each for you jurors,” “this might have been an entirely different case.” The court held that “the remarks by the State were improper, and should have been precluded by the trial court.” However, under the appropriate standards of review, a new trial was not required.

In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy; tended to shift the burden of proof to the defendant; and indicated that the defendant’s witnesses were hypocrites and liars. Without discussing the specific remarks, the court held that “although the State pushed the bounds of impropriety” the remarks were not so grossly improper as to require intervention ex mero motu. 

In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy; tended to shift the burden of proof to the defendant; and indicated that the defendant’s witnesses were hypocrites and liars. Without discussing the specific remarks, the court held that “although the State pushed the bounds of impropriety” the remarks were not so grossly improper as to require intervention ex mero motu. 

In a murder case, the trial court was not required to intervene ex mero motu when the prosecutor argued to the jury that depression might make you suicidal but it “doesn’t make you homicidal.” The defendant’s witness had testified that depression can make a person suicidal. In context, the prosecutor’s argument attacked the relevance, weight, and credibility of that testimony.

The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.

In a child sex case, the court rejected the defendant’s argument that the trial court erred by ruling that the defendant could not argue that his nephew or someone else had assaulted the victim. It concluded: “Although defendant argues that he was improperly prevented from arguing that someone else raped the victim, defendant is unable to point to specific portions of his closing argument which were limited by the trial court’s ruling, as closing arguments in this case were not recorded. Therefore, defendant has not met his burden of establishing the trial court’s alleged error within the record on appeal. This court will not ‘assume error by the trial judge when none appears on the record before [it].’”

The court rejected the defendant’s argument that plain error occurred when the prosecutor misrepresented the results of the SBI Crime Lab phenolphthalein blood tests. At trial, a SBI agent explained that a positive test result would provide an indication that blood could be present. On cross-examination, he noted that certain plant and commercially produced chemicals may give a positive result. The defendant argued that the prosecutor misrepresented the results of the phenolphthalein blood tests during closing argument by stating that the agent tested the clothes and they tested positive for blood. Based on the agent’s testimony, this argument was proper.

The trial court did not abuse its discretion by denying the defendant’s mistrial motion based on the prosecutor’s closing statement. During closing arguments in this murder case, defense counsel stated that “a murder occurred” at the scene in question. In his own closing, the prosecutor stated that he agreed with this statement by defense counsel. Although finding no abuse of discretion, the court “remind[ed] the prosecutor that the State’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

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