State v. Phillips, 365 N.C. 103 (Jun. 16, 2011)

The court rejected the capital defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s argument in the guilt-innocence phase. The defendant argued that the trial court should have intervened when the prosecutor commented about a defense expert on diminished capacity. Although the court found the prosecutor’s statement that the expert’s testimony was “wholly unbelievable” to be error, that error was not so egregious as to warrant intervention on the court’s own motion. Similarly, the prosecutor’s comment about the “convenience” of the expert’s testimony (she opined that the defendant suffered from diminished capacity for a portion of time that coincided with when the crime occurred), was not so grossly improper as to require intervention ex mero motu.