State v. Copley

IN THE SUPREME COURT OF NORTH CAROLINA

No.195A19

Filed 3 April 2020

STATE OF NORTH CAROLINA

v.
CHAD CAMERON COPLEY

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 828 S.E.2d 35 (2019), vacating the judgment entered on 23

February 2018 by Judge Michael J. O’Foghludha in Superior Court, Wake County,

and remanding for a new trial. Heard in the Supreme Court on 9 December 2019.

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.

Massengale & Ozer, by Marilyn G. Ozer, for defendant.

HUDSON, Justice.

Here we must determine whether the Court of Appeals erred by holding that

the trial court abused its discretion when it overruled defendant’s objections during

the prosecutor’s closing argument. Because we conclude that the trial court rulings

did not constitute prejudicial error, we reverse and remand.

I. Factual and Procedural Background

On 6 August 2016, Jalen Lewis threw a party while his parents were out of

town. Lewis lived in Neuse Crossing, a quiet neighborhood in Raleigh with no
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Opinion of the Court

sidewalks. Defendant lived on the same street, two or three houses down on the same

side of the road.

Around midnight, the victim, Kourey Thomas, arrived at Lewis’s party with

two friends, David Walker and Chris Malone, and parked at the end of the street.

Thomas was wearing a red NC State hat and a red shirt.

Some time later, a group of about twenty people arrived at the party. The hosts

did not know them and asked them to leave. The group walked uneventfully back to

their cars which were parked in front of defendant’s house. They stood on the curb

discussing where to go next. According to the State’s witnesses, no one was being loud

or disruptive.

Defendant testified that he was upset from having a bad day. He heard people

arguing outside and yelled at them from his window. He yelled, “keep it the f--- down.”

The group yelled back, “shut the f--- up; f--- you; go inside, white boy.” Defendant

testified that he saw multiple people in the group with guns. Other witnesses testified

that they did not see anyone with a gun at the party. Defendant’s two young

daughters were in the house.

Defendant called 911. Before the operator answered, defendant was recorded

saying “I’m going to kill him.” In his testimony, defendant admitted to having falsely

reported there were “hoodlums racing up and down the street.” He said he was “locked

and loaded” and going to “secure the neighborhood.” Defendant was not a police officer

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Opinion of the Court

and there was no neighborhood watch. After the 911 call ended, defendant loaded his

gun.

Defendant believed his son was part of the rowdy group outside and went to

get him. When he got to his garage, which was furnished like a den, he found his son

there. From his garage defendant yelled at the group to “leave the premises.”

According to witnesses who were at the scene that night, Kourey Thomas and

his friends saw police blue lights from an unrelated traffic stop down the street.

Thomas had a weed grinder on his person and did not want any trouble with the

police, so he ran from Lewis’s house back to his friend’s car. 1 He cut across a small

part of defendant’s yard on the way. Defendant saw a man running in his yard.

Thomas was shot before he made it to his car. The force from the shot caused him to

fall on the curb next to defendant’s mailbox. Someone screamed, “he just shot him

through the window!” Defendant’s house was dark, his garage was closed, and one of

the garage windows was broken. Thomas was African American. Defendant is white.

When Deputy Barry Carroll arrived, he saw a group of ten to fifteen people in

the street. He saw broken glass in defendant’s driveway from the broken garage door

window. When the deputy approached the house, he shined a flashlight into the

garage and saw defendant step into the garage from the house. The deputy asked

defendant if he shot someone and defendant said he had. The deputy asked where

1 A weed grinder is a hand-held device used to grind cannabis into small bits.

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Opinion of the Court

the gun was, and defendant indicated that it was in the house. Defendant let the

deputy into his house where the deputy observed a shotgun leaning against a

stairwell banister. Defendant indicated it that was the gun he had fired.

Thomas died at the hospital from the gunshot wound. The bullet went through

his right arm and entered his right side just below the rib cage.

Defendant was charged with first-degree murder. His case went to trial in

February 2018. During closing arguments at trial, the prosecutor made the following

statements which are at issue here:

MR. LATOUR [prosecutor]: I have at every turn attempted
to not make this what this case is about. And at every turn,
jury selection, arguments, evidence, closing argument,
there’s been this undercurrent, right? What’s the
undercurrent? The undercurrent that the defendant
brought up to you in his closing argument is what did he
mean by hoodlums? I never told you what he meant by
hoodlums. I told you he meant the people outside. They
presented the evidence that he’s scared of these black
males. And let’s call it what it is. Let’s talk about the
elephant in the room.

MR. POLK [defense counsel]: Objection.

THE COURT: Overruled.

MR. LATOUR: Let’s talk about the elephant in the room.
If they want to go there, consider it. And why is it relevant
for you? Because we talked about that self-defense issue,
right, and reasonable fear. What is a reasonable fear? You
get to determine what’s reasonable. Ask yourself if Kourey
Thomas and these people outside were a bunch of young,
white males walking around wearing N.C. State hats, is he
laying dead bleeding in that yard?

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Opinion of the Court

MR. POLK: Objection.

THE COURT: Overruled.

MR. LATOUR: Think about it. I’m not saying that’s why he
shot him, but it might’ve been a factor he was considering.
You can decide that for yourself. You’ve heard all the
evidence. Is it reasonable that he’s afraid of them because
they’re a black male outside wearing a baseball cap that
happens to be red? They want to make it a gang thing. The
only evidence in this case about gangs is that nobody knows
if anybody was in a gang. That’s the evidence. They can
paint it however they want to paint it, but you all swore
and raised your hand when I asked you in jury selection if
you would decide this case based on the evidence that you
hear in the case, and that’s the evidence. Now,
reasonableness and that fear, a fear based out of hatred or
a fear based out of race is not a reasonable fear, I would
submit to you. That’s just hatred. And I’m not saying that’s
what it is here, but you can consider that. And if that’s
what you think it was, then maybe it’s not a reasonable
fear.
The prosecutor continued his closing argument for several more minutes and then

the trial judge instructed the jury on the applicable law.

In less than two hours the jury found defendant guilty of first-degree murder

by premeditation and deliberation and/or by lying in wait. Defendant appealed his

conviction.

Defendant argued that the trial court abused its discretion by failing to sustain

his objections to the prosecutor’s comments about race during closing argument. The

Court of Appeals held that the trial court committed prejudicial error by overruling

defendant’s objections and by failing to instruct the jury to disregard the prosecutor’s

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Opinion of the Court

comments or to declare a mistrial. The Court of Appeals awarded defendant a new

trial. The dissenting judge would have held that the trial court did not abuse its

discretion in overruling defendant’s objections to the prosecutor’s comments in closing

argument.

The State now appeals. The issue before us is whether the trial court abused

its discretion by overruling defendant’s objections to the State’s closing argument. We

hold that the trial court did not commit prejudicial error and that the Court of

Appeals erred by awarding defendant a new trial.

II. Analysis

“A challenge to the trial court’s failure to sustain a defendant’s objection to a

comment made during the State’s closing argument is reviewed for an abuse of

discretion . . . .” State v. Fletcher, 370 N.C. 313, 320, 807 S.E.2d 528, 534 (2017) (citing

State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364, cert. denied, 540 U.S. 971,

124 S.Ct. 442, 157 L.Ed. 2d 320 (2003)). “In order to assess whether a trial court has

abused its discretion when deciding a particular matter, this Court must determine

if the ruling ‘could not have been the result of a reasoned decision.’ ” State v. Jones,

355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (quoting State v. Burrus, 344 N.C. 79,

90, 472 S.E.2d 867, 875 (1996)).

We conduct a two-part analysis to determine whether the trial court committed

prejudicial error in overruling defendant’s timely objection to the prosecutor’s

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Opinion of the Court

reference to race during the State’s closing argument. See, e.g., Fletcher, 370 N.C. at

320, 807 S.E.2d at 534; Jones, 355 N.C. at 131, 558 S.E.2d at 106. We “‘first determine

if the remarks were improper’ and then ‘determine if the remarks were of such a

magnitude that their inclusion prejudiced [the] defendant.’ ” Fletcher, 370 N.C. at

320, 807 S.E.2d at 534 (quoting Walters, 357 N.C. at 101, 588 S.E.2d at 364)

(alteration in original). “Assuming that the trial court’s refusal to sustain the

defendant’s objection was erroneous, the defendant must show that there is a

reasonable possibility that the jury would have acquitted him had the challenged

argument not been permitted.” Fletcher, 370 N.C. at 320, 807 S.E.2d at 534 (citing

State v. Ratliff, 341 N.C. 610, 617, 461 S.E.2d 325, 329 (1995)).

Here, we need not conduct the two-part analysis in its entirety. Because we

determine that the analysis of prejudice is ultimately dispositive, we focus our

attention there. See State v. Murrell, 362 N.C. 375, 392, 665 S.E.2d 61, 73 (2008)

(“Even assuming, arguendo, the impropriety of the prosecutor's reference to Dr.

Kramer, defendant has failed to demonstrate prejudice.”). See also State v. Peterson,

361 N.C. 587, 606–07, 652 S.E.2d 216, 229 (2007) (“Because we assume the argument

was improper, we must determine whether the argument prejudiced defendant to the

degree that he is entitled to a new trial.”).2 Thus, we assume without deciding that

the prosecutor’s comments about race were improper.

2 In Peterson, the State conceded that the Assistant District Attorney’s arguments
were “excessive and inappropriate.” 361 N.C. at 607, 652 S.E.2d at 229. Thus, the Court

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Opinion of the Court

Neither the majority nor the dissenting opinion from the Court of Appeals

conducted a complete prejudice analysis. The majority held that the trial court

committed prejudicial error by overruling defendant’s objections and by failing to

instruct the jury to disregard the prosecutor’s comments or to declare a mistrial. On

that basis, the majority awarded defendant a new trial. The dissenting judge

disagreed and would have held that the trial court did not abuse its discretion in

overruling defendant’s objections to the prosecutor’s comments in closing argument;

thus, there was no need to address the prejudice issue in the dissent.

The Court of Appeals majority stated the proper standard for review of the

closing argument and employed the two-part analysis. However, the prejudice

analysis was incomplete. The majority concluded that “[t]he offensive nature of the

prosecutor’s comments exceeded language that our Supreme Court in Jones noted

was held to be prejudicial error warranting new trials in past cases.” State v. Copley,

828 S.E.2d 35, 43 (N.C. Ct. App. 2019).

We conclude that Jones did not provide an adequate basis for the Court of

Appeals’ decision on the prejudice issue. Because the challenged argument in Jones

took place during the State’s closing arguments in the sentencing phase of a death

penalty case, we consider it inapposite. In Jones, we emphasized:

in determining prejudice in a capital case, such as the one

assumed the statements were improper. Id. Here, although the State has not conceded the
statements were improper, the prejudice prong is still dispositive.

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Opinion of the Court

before us, special attention must be focused on the
particular state of the trial. Improper argument at the
guilt-innocence phase . . . may not be prejudicial where the
evidence of defendant’s guilt is virtually uncontested.
However, at the sentencing proceeding, a similar argument
may in many instances prove prejudicial by its tendency to
influence the jury’s decision to recommend life
imprisonment or death.

355 N.C. at 134, 555 S.E.2d at 108. Here, in the guilt-innocence phase of a non-capital

trial, the court must look to the evidence of defendant’s guilt as well as to the

remainder of the closing argument to determine whether the argument was

prejudicial. The context of the argument in Jones differs so significantly from the

context in which the argument here was made that we conclude it was an improper

anchor for the prejudice analysis conducted by the majority below.

The majority below also references the cases we cited in Jones as examples of

prejudicial closing argument language that we have held warranted new trials in the

past. We are not persuaded by the logic of the majority’s conclusion that the

prosecutor here “exceeded” language we have found to be prejudicial in past cases.

The specific language held to have been prejudicial in prior cases does not necessarily

define prejudice in the case before us.

We recognize that in Jones we did look to language deemed prejudicial in other

cases to determine whether the language in Jones was prejudicial. In the sentencing

phase of a death penalty case, where the jury must determine whether to sentence a

defendant to life or death, it may be more appropriate to look to language from other

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Opinion of the Court

cases. Because the sentencing issues in one capital case may be similar to the

sentencing issues in other capital cases, prior determinations of prejudice may be

more informative by comparison than they are to the issues here.

However, when analyzing prejudice in the guilt-innocence phase of this trial,

we view prejudicial comments from other cases as having less bearing on our

prejudice analysis than a comparison with the evidence and context here. Prejudice

is not a quantifiable commodity; statements cannot be assigned a number on a scale

from which we can determine whether one statement here is more or less prejudicial

than one in another case. Rather, the purpose of a prejudice analysis is to determine

whether there is a reasonable possibility that the jury would have acquitted

defendant had his objection to the State’s argument been sustained. It is defendant’s

burden to show this. Fletcher, 370 N.C. at 320, 807 S.E.2d at 534 (citing Ratliff, 341

N.C. at 617, 461 S.E.2d at 329).

The Court of Appeals majority below did not analyze whether defendant

carried his burden of showing the likelihood that the jury would have reached a

different verdict in light of the evidence and other arguments the jury heard. We

conclude that the majority’s analysis is inadequate to resolve the issue.

In order to determine whether defendant was prejudiced by the prosecutor’s

language in closing argument, we assess the likely impact of any improper argument

in the context of the entire closing. State v. Thompson, 359 N.C. 77, 110, 604 S.E.2d

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Opinion of the Court

850, 873 (2004) (“[S]tatements contained in closing arguments to the jury are not to

be placed in isolation or taken out of context on appeal. Instead, on appeal we must

give consideration to the context in which the remarks were made and the overall

factual circumstances to which they referred.”) (quoting State v. Green, 336 N.C. 142,

188, 443 S.E.2d 14, 41, cert. denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d 547

(1994)), cert. denied, 546 U.S. 830, 126 S.Ct. 48, 163 L.Ed.2d 80 (2005)).

The primary dispute at trial was over defendant’s intent and the validity of his

explanation of events on the fateful evening and his statements to investigators

thereafter. Defendant himself admitted statement-by-statement on cross-

examination that he had not been truthful with investigators. The prosecutor focused

on defendant’s admitted false statements to investigators in his closing argument.

Looking at the closing argument as a whole, the allegedly improper argument was a

small part of the prosecutor’s much more extensive argument that defendant was not

a credible witness, that the State had proven his guilt beyond a reasonable doubt,

and that defendant had not acted in self-defense.

We must also look to the evidence presented by the State to determine whether

there is a reasonable possibility the jury would have acquitted defendant if the

prosecutor’s remarks had been excluded. See State v. Jones, 355 N.C. at 134, 558

S.E.2d at 108 (“Improper argument at the guilt-innocence phase . . . may not

be prejudicial where the evidence of defendant's guilt is virtually uncontested.”); see

also State v. Murillo, 349 N.C. 573, 606, 509 S.E.2d 752, 771 (1998) (“[E]ven

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Opinion of the Court

assuming arguendo that this portion of the argument was improper, it was not

prejudicial to defendant in light of the substantial evidence of his guilt.”) (citing State

v. Campbell, 340 N.C. 612, 631, 460 S.E.2d 144, 154 (1995), cert. denied, 516 U.S.

1128, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996)).

The trial here extended over two full weeks during which time the jury was

selected, listened to testimony from numerous witnesses including defendant himself,

and received numerous exhibits. Among the exhibits were photographs of the scene,

photographs of the victim’s body, and the recording of the defendant’s voice on the

911 call.

The State presented the following evidence of first-degree murder by

premeditation and deliberation and/or by lying in wait: defendant was recorded

saying “I’m going to kill him”; defendant told the 911 operator he was “locked and

loaded” and was going to “secure the neighborhood”; defendant loaded his gun and

went into his dark, closed garage; Thomas ran through a portion of defendant’s yard;

Thomas was unarmed, non-threatening, and had no interaction with defendant;

defendant fired a shot through the closed garage door; defendant admitted to a deputy

that he shot someone and that the gun was his; the shot caused Thomas’s death. We

conclude all of this was compelling evidence of defendant’s guilt of first-degree

murder and that the credibility of defendant’s contention to the contrary—i.e. that he

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Opinion of the Court

acted in self-defense—was substantially impaired.3

It is then defendant’s burden to show that he was prejudiced by the

prosecutor’s challenged argument. Fletcher, 370 N.C. at 320, 807 S.E.2d at 534 (citing

Ratliff, 341 N.C. at 617, 461 S.E.2d at 329.). But defendant has failed to provide a

persuasive argument that there was a reasonable possibility the jury would have

acquitted him in the absence of the prosecutor’s comments about race.

Given that the jury found beyond a reasonable doubt that defendant was guilty

of first-degree murder based on the evidence it heard, and given defendant’s failure

to argue persuasively that there is a reasonable possibility that the jury would have

acquitted him absent the prosecutor’s challenged remarks, we cannot conclude that

the inclusion of the remarks prejudiced defendant. Therefore, we are unable to

conclude that he is entitled to a new trial.

III. Conclusion

In conclusion, we find that the trial court did not commit prejudicial error by

overruling defense counsel’s objection during the State’s closing argument. Assuming

without deciding that the prosecutor’s comments about race were improper, we

3 Indeed, the jury convicted defendant of first-degree murder on two theories,
premeditation and lying in wait. Although defendant argued to the Court of Appeals that
there was insufficient evidence to instruct the jury on the State’s theory of lying in wait, this
issue is not before us. The dissenting judge would have found that there was sufficient
evidence for the jury to convict defendant on the lying in wait theory, but the majority did
not reach this issue. On remand, defendant is not precluded from making this argument
again.

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Opinion of the Court

cannot conclude that defendant was prejudiced, given the context of the challenged

argument, and the extensive evidence of defendant’s guilt. Accordingly, we reverse

the Court of Appeals’ decision to award a new trial and remand to the Court of

Appeals to rule on defendant’s remaining arguments on appeal.

REVERSED AND REMANDED.

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 Justice EARLS concurring.

The trial court did not abuse its discretion in overruling defense counsel’s two

objections to the prosecution’s statements regarding race and reasonable fear as it

relates to defendant’s claim of self-defense in this case. I write separately to address

the issue that the majority “assumes without deciding” because it is an issue of

importance to our criminal justice system, controlled by our precedent and squarely

presented by the facts of this case.

We should not assume a statement is improper when the propriety of the

statement is the very heart of what matters to the administration of criminal justice

and the jurisprudence of this State. The majority below thought the prosecutor’s

statements were a “prejudicial appeal to race and the jurors’ ‘sense of passion and

prejudice.’ ” State v. Copley, 828 S.E.2d 35, 45 (N.C. Ct. App. 2019) (quoting State v.

Jones, 355 N.C. 117, 132, 558 S.E.2d 97, 107 (2002)). The dissent concluded the

prosecutor’s statements were not an appeal to racial animosity. Id. at 46 (Arrowood,

J., dissenting). We should decide which view is correct under the law of North

Carolina.

The essential question is: was it improper, in light of the evidence in this case,

for the prosecutor to argue to the jury that a fear based on race would not be a

reasonable fear? That argument was proper in this case for two reasons. First, it

was not an appeal to racial animosity. Second, statements made by jurors during

jury selection, the evidence here concerning race-based statements made by
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Earls, J., concurring

individuals at the scene, and defendant’s assertion of self-defense all combine to

suggest that jurors potentially might have been swayed by their own conscious or

unconscious racial biases instead of the evidence in the case. In these circumstances

the prosecutor properly argued that it would not be reasonable for defendant to fear

Kourey Thomas, the victim in this case, if that fear was based on the fact that Kourey

Thomas was black.

Explicit appeals by a prosecutor to inflame jurors’ racial biases are improper.

State v. Williams, 339 N.C. 1, 24, 452 S.E.2d 345, 259 (1994) (citing United States ex

rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973); State v. Wilson, 404 So. 2d

968 (La. 1981)). “Official guidelines for prosecutors speak often and decisively against

racist appeals. With doctrinal roots in the Constitution and professional ethics, the

rule against prosecutorial summoning of ‘that thirteenth juror, prejudice’ has

surfaced in nearly every jurisdiction and has occasioned numerous reversals.”

Elizabeth L. Earle, Note, Banishing the Thirteenth Juror: An Approach to the

Identification of Prosecutorial Racism, 92 Colum. L. Rev. 1212, 1213 (1992) (quoting

United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d Cir.) (Frank, J.,

dissenting), cert. denied, 329 U.S. 742 (1946)). The archetypal appeal to racial bias

involves a prosecutor using racial slurs, invoking race-based stereotypes, and

referring to black defendants in derogatory racial terms. See, e.g., Bennett v. Stirling,

842 F.3d 319, 324 (4th Cir. 2016) (holding improper appeal to racial prejudice

occurred where prosecutor’s closing argument in case involving a black defendant

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Earls, J., concurring

“alternated between characterizing [defendant] as a primitive, subhuman species and

a wild, vicious animal”); Wilson, 404 So. 2d at 970–71 (reversing first-degree murder

convictions where prosecutor's closing argument, including referring to the black

defendants as animals, was filled with direct and indirect appeals to the racial

prejudices of the all-white jury); State v. Monday, 171 Wn.2d 667, 678–81, 257 P.3d

551, 557–58 (2011) (reversing conviction where prosecutor questioned witness

credibility by arguing to the jury that “black folk don't testify against black folk”).

In Miller v. North Carolina, the prosecutor in closing argument “ultimately

argued that a defense based on consent was inherently untenable because no white

woman would ever consent to having sexual relations with a black.” 583 F.2d 701,

704 (4th Cir. 1978). This Court affirmed the convictions on the ground that even if

the statement was improper, the error was harmless because the evidence against

the defendants was overwhelming. Id. at 704–05. Noting that “an appeal to racial

prejudice impugns the concept of equal protection of the laws,” the Fourth Circuit

reversed the convictions, holding that “there was prejudicial error of sufficient

magnitude that even after a curative instruction there would remain doubt as to

whether the prejudice was removed.” Id. at 706–07. Whether direct racial slurs, or

indirect appeals to racial prejudice, when a prosecutor seeks to invoke a jury’s racial

biases to obtain a conviction, such statements are improper. See, e.g., Monday, 171

Wn.2d at 678, 257 P.3d at 557 (“Like wolves in sheep's clothing, a careful word here

and there can trigger racial bias.”).

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Earls, J., concurring

Equally well established is the principle, followed by this Court in Williams,

that “[n]onderogatory references to race are permissible, however, if material to

issues in the trial and sufficiently justified to warrant ‘the risks inevitably taken

when racial matters are injected into any important decision-making.’ ” Williams,

339 N.C. at 24, 452 S.E.2d at 259, (quoting McFarland v. Smith, 611 F.2d 414, 419

(2nd Cir. 1979)). Indeed, courts routinely endorse a prosecutor’s statements inquiring

of prospective jurors whether they can fairly judge a black defendant in a case

involving a white victim without reference to their own racial biases. See, e.g.,

Williams, 339 N.C. at 23–25, 452 S.E.2d at 259–60 (legitimate to make nonderogatory

references to race to ensure that racially biased prospective jurors were not seated on

the jury); see also Turner v. Murray, 476 U.S. 28, 35–36 (1986) (inquiry into racial

bias of jurors important because it is possible “for racial prejudice to operate but

remain undetected,” particularly in capital trials); Debra T. Landis, Annotation,

Prosecutor's Appeal in Criminal Case to Racial, National, or Religious Prejudice as

Ground for Mistrial, New Trial, Reversal, or Vacation of Sentence -- Modern Cases,

70 A.L.R.4th 664 (1991) (collecting cases). Cf. Cynthia Lee, Making Race Salient:

Trayvon Martin and Implicit bias in a Not Yet Post-Racial Society, 91 N.C. L. Rev.

1555, 1563 (2013) (stating that studies indicate “making race salient or calling

attention to the operation of racial stereotypes encourages individuals to suppress

what would otherwise be automatic, stereotype-congruent responses and instead act

in a more egalitarian manner. … [W]hen race is made salient, individuals tend to

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Earls, J., concurring

treat White and Black defendants the same.”); Gary Blasi, Advocacy Against the

Stereotype: Lessons From Cognitive Social Psychology, 49 UCLA L. Rev. 1241, 1277

(2002) (stating that studies “suggest that there is good reason explicitly to instruct

juries in every case, stereotype-salient or not, about the specific potential stereotypes

at work in the case”).

Also permissible is a prosecutor’s argument that the defendant or perpetrator

acted out of racial motivations, particularly where a racially-motivated hate crime is

at issue but generally in any case where there is some evidence to suggest that race-

based animus was a motive or factor in the crime. See State v. Diehl, 353 N.C. 433,

436, 545 S.E.2d 185, 187 (2001) (“Although it is improper gratuitously to interject

race into a jury argument where race is otherwise irrelevant to the case being tried,

argument acknowledging race as a motive or factor in a crime may be entirely

appropriate.”); State v. Moose, 310 N.C. 482, 492, 313 S.E.2d 507, 515 (1984) (white

defendant's reference to African-American victim as a “damn nigger,” and evidence

that victim was driving through a white community, sufficient to support prosecutor’s

jury argument that murder was, in part, racially motivated).

Therefore, our caselaw has a two-part standard for evaluating the propriety of

a prosecutor’s statements referencing race. The first part of the inquiry is whether

the statements are directly or indirectly an appeal based on derogatory racial

stereotypes that seeks to encourage a jury to make a decision based on their own

racial biases. If so, the statements are improper.

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Earls, J., concurring

If the statements are not an appeal to racial animus in some form, blatant or

subtle, the second part of the inquiry is whether a neutral or non-derogatory reference

to race bears any material relevance to the facts of the case being tried. Such

statements may be relevant because of the facts and circumstances of the crime, or

because of facts that suggest a racial motivation on the part of the defendant, or both.

If a prosecutor’s statements are ultimately found to be improper, the question

remains whether the error in allowing those statements was harmless.

In addition to cases like Williams, where it was held to be permissible for a

prosecutor to refer to race when seeking to ensure that jurors will not allow racial

biases to infect their consideration of the evidence, an example of a non-derogatory

reference to race that is not related to motive but nonetheless permissible is found in

State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002). In Barden, this Court held that

it was proper for a prosecutor to refer to a victim’s race in a non-derogatory fashion

during closing argument. We held there that the prosecutor’s references to the

victim’s race and national origin were permissible because they “were not designed

to generate an issue of race in the trial. Instead, the prosecutor sought to remind the

jury of the victim's humanity and to point out that, despite the victim's unexalted

social status and modest economic means, his murder was as consequential as the

killing of any other mortal.” Barden, 356 N.C. at 365, 572 S.E.2d at 139 (citation

omitted). See also State v. Robinson, 336 N.C. 78, 130, 443 S.E.2d 306, 332 (1994)

(permissible for prosecutor in closing to argue that being black and poor was not the

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Earls, J., concurring

cause of defendant’s criminal behavior and should not serve as an excuse). An

example of permissible references to race related to defendant’s motive is found in

Moose, where this Court held that the prosecutor’s repeated references to the victim

as an “old black gentleman” and a “black man” were proper because the evidence was

sufficient to raise an inference that his murder was, in part, racially motivated.

Moose, 310 N.C. at 492, 313 S.E.2d at 515.

The record in this case shows that the prosecutor’s references to race in his

closing argument were non-derogatory, and that they were intended to ensure that

the jury did not allow implicit stereotypes about the dangerousness of young black

men to infect their determination of whether defendant established that he had a

reasonable fear and acted lawfully in self-defense. In these circumstances, the

statements were proper.

The majority details the statements made by the prosecutor that defendant

objected to at trial. Those statements do not involve racial slurs nor do they attempt

to inflame the jurors’ passions or prejudices against black males. Equally, those

statements are not derogatory towards white males like defendant in this case. The

prosecutor did not use references to animals or animalistic behavior on anyone’s part,

and, unlike State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002), relied on by the

majority in the Court of Appeals, the prosecutor did not refer to other high-profile

cases with analogous facts. The prosecutor did not attempt to link this case to the

Trayvon Martin case or any other tragic case involving white men who have killed

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Earls, J., concurring

unarmed young black men. The prosecutor’s argument did not involve derogatory

references to race intended to invoke or inflame race-based animus in order to secure

a conviction.

The remaining inquiry under our precedents is whether the statements were

relevant to the facts of the case. In this case, the prosecutor’s statements were

relevant because jurors themselves had raised the issue of race during jury selection,

defendant testified that the men outside his house had used racially charged

language, and defendant asserted self-defense. The very first mention of any race-

related aspect of this case came during jury selection when defendant’s counsel asked

a prospective juror “do you remember anything about comparisons to the famous

George Zimmerman case in Florida?” At that point the prosecutor objected and the

trial court sustained the objection.

Later during defense counsel’s questioning of another prospective juror,1 the

prospective juror remarked that defense counsel had earlier “mentioned Zimmerman”

and “the Trayvon Martin situation” and asked if this case involves race, to which

defense counsel ambiguously replied “yeah.” Defense counsel inquired further as to

whether the prospective juror followed the case. When counsel asked what opinions

the prospective juror had formed regarding our legal system in the aftermath of that

1 This prospective juror, Mr. Thompson, was later excused by defendant. However,
six jurors who did serve on the jury were seated and present at the time of the most extensive
discussion.

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Earls, J., concurring

case, the prosecutor objected and the trial court sustained the objection. Later during

voir dire, the same prospective juror again brought up the Trayvon Martin case, its

similarity to this case, and his feeling that justice did not prevail in that case. Thus,

during jury selection, defense counsel and a prospective juror raised the “elephant in

the room” relating to how attitudes about race and self-defense might impact the

jury’s deliberations in this case.

Defendant testified that after he yelled out his upstairs window to the group

below, they yelled back at him, saying “go inside, white boy,” and “things of that

nature”. The defense in this case turned on whether defendant was justified in

shooting Kourey Thomas. Therefore, defendant’s claim of self-defense required the

jury to determine the reasonableness of defendant’s fear that his life was in danger.

It was proper and permissible for the prosecutor to urge the jury not to allow any

racial considerations or stereotypical assumptions about young black men to impact

their ultimate decision about what was reasonable fear in these circumstances.

Indeed, the prosecutor was trying to make sure the jury would make their decision

based only on the evidence in the case.

The prosecutor’s statements regarding race in his closing argument were not

derogatory. Because the statements were relevant to the evidence in the case and

the central issue of self-defense, they were proper. I concur in the majority’s

conclusion that this matter should be remanded for further consideration of the other

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Earls, J., concurring

errors raised by defendant that were addressed by the dissent below but not by the

majority.

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