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., 10/18/2021
E.g., 10/18/2021

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.

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