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., 09/22/2021
E.g., 09/22/2021

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On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App.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.

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. He also argued that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM constitutes a reasonable search under the Fourth Amendment.

(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.

(2) Over a dissent, the Court of Appeals granted certiorari review of the trial court’s order imposing lifetime SBM and invoked Rule 2 of the Rules of Appellate Procedure to consider the defendant’s constitutional claim, which was not raised before the trial court.

The trial court determined at sentencing that the defendant was convicted of reportable convictions pursuant to G.S. 14-208.6(4) and that statutory rape of a child by an adult and statutory sex offense were sexually violent offenses and aggravated offenses involving the sexual abuse of a minor. Pursuant to these findings, the court ordered that the defendant enroll in lifetime SBM upon his release from imprisonment.

The trial court did not, however, conduct a hearing to determine the constitutionality of ordering the defendant to enroll in SBM, as required by State v. Grady, 259 N.C. App. 664 (2018), aff’d as modified, 372 N.C. 509 (2019), and the State did not present any evidence regarding the reasonableness of an SBM search, which would be carried out following the defendant’s release from prison in 25 to 35 years.

The Court of Appeals held that the trial court’s failure to hold a hearing to determine the reasonableness of lifetime SBM for the defendant rendered the SBM order unconstitutional. The court thus vacated the imposition of lifetime SMB without prejudice to the State’s ability to file a subsequent SBM application.

A dissenting judge would have dismissed the defendant’s petition for certiorari review of the SBM order based on his failure to raise the constitutional challenge before the trial court.

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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