Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 04/22/2024
E.g., 04/22/2024

In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.

Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.

Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.

Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.

Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.

Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.

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.

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