State v. Phillips, 365 N.C. 103 (Jun. 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.