State v. McNeill, ___ N.C. ___, 813 S.E.2d 797 (Jun. 8, 2018)

(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.