State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

(1) No gross impropriety occurred in closing argument in the guilt-innocence phase of a capital trial when the prosecutor (a) asserted that a mark on the victim’s forehead was caused by the defendant’s shoe and evidence supported the statement; (b) suggested that the defendant’s accomplice committed burglary at the victim’s home; the comment only referred the accomplice, neither the defendant nor the accomplice were charged with burglary, and the trial court did not instruct the jury to consider burglary; or (c) suggested that the victim was killed to eliminate her as a witness when the argument was a reasonable extrapolation of the evidence made in the context of explaining mental state. (2) The trial court did not err by failing to intervene ex mero motu during the State’s opening statement during the sentencing phase of a capital trial when the prosecutor stated that the “victim and the victim’s loved ones would not be heard from.” According to the defendant, the statement inflamed and misled the jury. The prosecutor’s statement described the nature of the proceeding and provided the jury a forecast of what to expect. (3) The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor (a) made statements regarding evidence of aggravating circumstances; the court rejected the argument that the prosecutor asked the jury to use the same evidence to find more than one aggravating circumstance; (b) properly used a neighbor’s experience to convey the victim’s suffering and nature of the crime; (c) offered a hypothetical conversation with the victim’s father; (d) referred to “gang life” to indicate lawlessness and unstrained behavior, and not as a reference to the defendant being in a gang or that the killing was gang-related; also the prosecutor’s statements were supported by evidence about the defendant’s connection to gangs.