State v. Wardrett, ___ N.C. App. ___, 821 S.E.2d 188 (Oct. 2, 2018)

In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.

     The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.

     Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.

     Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”

     The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.

     The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.

     The court concluded with this note:

While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.