State v. Parker, ___ N.C. ___, 2021-NCSC-64 (Jun. 11, 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.