State v. Huey

370 N.C. 174

804 S.E.2d 464

STATE of North Carolina

v.Derrick Aundra HUEY

No. 355PA15

Supreme Court of North Carolina.

Filed September 29, 2017

Joshua H. Stein, Attorney General, by Alvin W. Keller, Jr., Assistant Attorney General, and Derrick C. Mertz, Special Deputy Attorney General, for the State-appellant.

Sarah Holladay, for defendant-appellee.

BEASLEY, Justice.

In this appeal we consider whether statements made by the prosecutor in his closing argument were improper and prejudicial, such that the trial court should have intervened ex mero motu . The Court of Appeals concluded that the prosecutor’s insinuations that defendant was a liar and lied on the stand in cahoots with defense counsel and his expert witness were improper, and had the cumulative effect of resulting in unfair prejudice to defendant. The unanimous panel of the Court of Appeals vacated the conviction and ordered a new trial. We hold that while the prosecutor’s arguments were improper, the prosecutor’s arguments did not amount to prejudicial error in light of the evidence against defendant. Accordingly, we reverse the decision of the Court of Appeals.

On 24 October 2011, defendant was indicted for first-degree murder. Defendant pleaded not guilty, and his trial commenced on 7 July 2014 before Judge Eric L. Levinson in Superior Court, Mecklenburg County. At trial the State’s evidence tended to show that on 13 October 2011, at approximately 11:00 p.m., defendant Derrick Aundra Huey retrieved his gun from his truck, put the gun in his pocket, and told an unidentified person to ask James Love to come outside and talk about an earlier disagreement. Defendant then shot Love while they stood in the street. After the shooting defendant called 911 and, without identifying himself, stated, "I shot the motherfucker." A neighbor saw defendant’s truck leave the scene after the shooting, but then returned shortly thereafter. Defendant initially denied shooting Love and told the police an unidentified man shot the victim. After listening to the 911 call, defendant admitted that he shot Love. Before trial defendant changed his account of the events in question numerous times. Then four months preceding trial, after communications with his attorney and expert witness, psychiatrist George Patrick Corvin, M.D., defendant changed his story once again and decided to admit to shooting Love, arguing that Love was shot in self-defense.

Defendant’s evidence tended to show defendant and the victim had a history of prior altercations. Defendant testified that on the night in question, the victim threatened defendant. According to defendant, he was attempting to purchase drugs from an unidentified man when Love approached. Love hit defendant in the head and threatened him with what defendant believed to be a knife. While Love continued to threaten defendant, the unidentified man drew a handgun. Defendant grabbed the unidentified man’s weapon and fired a warning shot. When Love did not stop his aggressive actions towards defendant, defendant fired another shot, which killed Love. The unidentified man then took the gun and ran away. The defendant’s evidence also showed the victim was known to carry a box cutter, and a box cutter was found near the victim’s body. Further, the defense presented evidence that defendant has an intelligence quotient (I.Q.) of 61 and suffers from head trauma caused by an attempted suicide by automobile crash. Defendant’s expert witness testified that his I.Q. and head trauma affected defendant’s decision-making processes. Defendant also suffers from hallucinations, which have been treated with antipsychotic and antidepressant medications.

During closing arguments, the assistant district attorney opened by saying, "Innocent men don’t lie." Over the course of his argument, the prosecutor used some variation of the verb "to lie" at least thirteen times. Referring to defendant, the prosecutor said:

The defendant is not going to give you the truth. He’s spent years planning to come in here to tell you he didn’t do it, and then in the past four months he’s come up with another story, and he’s decided to go with that instead. But he’s going to stick to that story, that story that he developed after he sat down with his attorney and his defense experts and decided on what he wanted to tell you. You’re not going to find the truth there.

The prosecutor continued:

[Dr. Corvin] sat down with Mr. Smith and the defendant and made sure the defendant understood the law, understood what he was charged with, what the elements were, and understood the defenses and what they meant and the law about the defenses. As he sits there on the stand, as he sits there right now, it has been explained to the defendant you’re supposed to consider the fierceness of the assault that he was victim to. So isn’t it interesting that four months ago it went from a grab to it went to a punch, a slash, a hack, not just at me but at everybody. All of a sudden a grab went to a wild-armed (phonetic) handle. Now that the law has been explained to him, now that he’s been talked out of claiming I didn’t do it.

... But when the defendant was given a chance to just tell you the truth, he decided he’s going to tell you whatever version he thought would get you to vote not guilty.

Referring to defense counsel, the prosecutor said:

Mr. Smith tells you all we’re trying to hide from this. All the evidence shows the box cutter was involved, the box cutter was involved, all the evidence. Do you know who’s not a witness in this case? Mr. Smith. He wasn’t there. He’s paid to defend the defendant.

Referring to the defense’s expert witness, Dr. Corvin, the prosecutor stated:

Now, I want to talk a little bit about Dr. Corvin, some of his opinions. But before we do that, we’ve got to make something clear. Make no mistake. Dr. Corvin has a client here. He works for the defendant. He is not an impartial mental-health expert.... Dr. Corvin is a part of the defense team, he has a specific purpose, and he’s paid for it. You heard Dr. Corvin makes over $300,000 a year just working for criminal defendants. He is not impartial. In fact, I’d suggest to you he’s just a $6,000 excuse man. That’s what he is.... Dr. Corvin came in here and did exactly what he was paid to do[.]

The prosecutor repeated the theme of "innocent men don’t lie" once more in the opening of his rebuttal argument, stating: "I’m going to say this again, innocent men don’t lie, they simply don’t have to. The truth shall set you free unless, of course, you’re on trial for a murder that you committed." Defense counsel did not object at any of these points during the prosecutor’s closing arguments. The trial court did not intervene ex meru moto at any time during the prosecutor’s closing arguments.

On 18 July 2014, the jury found defendant guilty of voluntary manslaughter. Defendant appealed the conviction to the Court of Appeals, arguing "the trial court erred by failing to intervene ex mero motu when the State made improper statements during closing arguments."¹

State v. Huey, ––– N.C.App. ––––, ––––, 777 S.E.2d 303, 305 (2015). The Court of Appeals agreed with defendant, relying heavily on State v. Hembree , in which this Court held the prosecutor’s statements in closing argument were grossly improper and the trial court erred by failing to intervene ex mero motu , but did not address whether this error, which was one of three identified by the defendant, was prejudicial in isolation. 368 N.C. 2, 20, 770 S.E.2d 77, 89 (2015). In this case the Court of Appeals summarily determined that defendant’s entire defense was predicated on his credibility and the credibility of his expert witness; therefore, the panel concluded that the trial court’s error in failing to intervene ex mero motu in the prosecutor’s improper closing argument could not be deemed harmless. Huey , ––– N.C.App. at ––––, 777 S.E.2d at 308. The court vacated defendant’s conviction and sentence and remanded the case for a new trial. Id . at ––––, 777 S.E.2d at 308.

In an attempt to strike a balance between allowing attorneys appropriate latitude to argue heated cases and enforcing proper boundaries to maintain professionalism, this Court has considered prosecutors’ closing arguments at length.

The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord....

State v. Jones , 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citing State v. Trull , 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied , 528 U.S. 835, 120 S.Ct. 95, 145 L.Ed.2d 80 (1999) ). Thus, when defense counsel fails to object to the prosecutor’s improper argument and the trial court fails to intervene, the standard of review requires a two-step analytical inquiry: (1) whether the argument was improper; and, if so, (2) whether the argument was so grossly improper as to impede the defendant’s right to a fair trial. See Darden v. Wainwright , 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144, 157 (1986) ; see also Jones, 355 N.C. at 133-34, 558 S.E.2d at 107-08. Only when it finds both an improper argument and prejudice will this Court conclude that the error merits appropriate relief. See Jones , 355 N.C. at 134-35, 558 S.E.2d at 108-09 (ordering a new sentencing hearing because the prejudicial arguments were made during the sentencing phase of the defendant’s capital trial).

First, although control of jury argument is left to the discretion of the trial judge, trial counsel must nevertheless conduct themselves within certain...