State v. Huey

IN THE SUPREME COURT OF NORTH CAROLINA

No. 355PA15

Filed 29 September 2017

STATE OF NORTH CAROLINA
v.
DERRICK AUNDRA HUEY

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 303 (2015), finding prejudicial

error after appeal from a judgment entered on 18 July 2014 by Judge Eric L. Levinson

in Superior Court, Mecklenburg County, and ordering that defendant receive a new

trial. Heard in the Supreme Court on 29 August 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
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Opinion of the Court

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.

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Opinion of the Court

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

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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,

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Opinion of the Court

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

1 On appeal, defendant also argued the trial court erred in instructing the jury on
flight. The Court of Appeals rejected this argument, concluding “[t]here is some evidence in
the record supporting the theory that Defendant drove away briefly in order to dispose of
the firearm he used to shoot Love.” Huey, ___ N.C. App. ___, 777 S.E.2d at 308 (2015).
That decision is not on appeal to this Court.

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Opinion of the Court

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, 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-

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Opinion of the Court

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, 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 statutory

parameters. State v. Wiley, 355 N.C. 592, 632, 565 S.E.2d 22, 50 (2002), cert. denied

537 U.S. 1117, 154 L. Ed. 2d 795 (2003). It is improper for lawyers in their closing

arguments to “become abusive, inject [their] personal experiences, express [their]

personal belief as to the truth or falsity of the evidence or as to the guilt or innocence

of the defendant, or make arguments on the basis of matters outside the record.”

N.C.G.S. § 15A-1230(a)(2015). Within these statutory confines, we have long

recognized that “ ‘prosecutors are given wide latitude in the scope of their argument’

and may ‘argue to the jury the law, the facts in evidence, and all reasonable inferences

drawn therefrom.’ ” State v. Phillips, 365 N.C. 103, 135, 711 S.E.2d 122, 145 (2011)

(quoting State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007), cert. denied,

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Opinion of the Court

555 U.S. 835, 172 L. Ed. 2d 58 (2008)), cert. denied, 565 U.S. 1204, 182 L. Ed. 2d 176

(2012).

If an argument is improper, and opposing counsel fails to object to it, the second

step of the analysis requires a showing that the argument is so grossly improper that

a defendant’s right to a fair trial was prejudiced by the trial court’s failure to

intervene. Jones, 355 N.C. at 133, 558 S.E.2d at 107. Our standard of review dictates

that “[o]nly an extreme impropriety on the part of the prosecutor will compel this

Court to hold that the trial judge abused his discretion in not recognizing and

correcting ex mero motu an argument that defense counsel apparently did not believe

was prejudicial when originally spoken.” State v. Anthony, 354 N.C. 372, 427, 555

S.E.2d 557, 592 (2001) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d

685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996)). “[I]t ‘is not enough

that the prosecutors’ remarks were undesirable or even universally condemned.’ ”

Darden, 477 U.S. at 181, 91 L. Ed. 2d at 157 (quoting Darden v. Wainwright, 699 F.2d

1031, 1036 (11th Cir. 1083)). For an appellate court to order a new trial, the “relevant

question is whether the prosecutors’ comments ‘so infected the trial with unfairness

as to make the resulting conviction a denial of due process.’ ” Id. at 181, 91 L. Ed. 2d

at 157 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); State v. Mann,

355 N.C. 294, 307-08, 560 S.E.2d 776, 785 (“[T]o warrant a new trial, the prosecutor’s

remarks must have perverted or contaminated the trial such that they rendered the

proceedings fundamentally unfair.”), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403

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Opinion of the Court

(2002). In determining whether a prosecutor’s statements reached this level of gross

impropriety, we consider the statements “in context and in light of the overall factual

circumstances to which they refer.” State v. Alston, 341 N.C. 198, 239, 461 S.E.2d

687, 709 (1995) (citing State v. Pinch, 306 N.C. 1, 24, 292 S.E.2d 203, 221, cert. denied,

459 U.S. 1056, 74 L. Ed. 2d 622 (1982), and overruled on other grounds by, inter alia,

State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988)). When this Court has found

the existence of overwhelming evidence against a defendant, we have not found

statements that are improper to amount to prejudice and reversible error. State v.

Sexton, 336 N.C. 321, 363-64, 444 S.E.2d 879, 903 (concluding the trial court was not

required to intervene ex mero motu when prosecutor directly called the defendant a

liar), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994), grant of postconviction

relief aff’d, 352 N.C. 336, 532 S.E.2d 179 (2000).

Despite this deferential standard, this Court has held that improper

arguments amount to prejudice when the circumstances required. In Jones this

Court held that it was reversible error when the trial court failed to intervene in the

closing argument of a sentencing hearing after the prosecutor’s comment “You got

this quitter, this loser, this worthless piece of—who’s mean. . . . He’s as mean as they

come. He’s lower than the dirt on a snake’s belly.” 355 N.C. at 133, 558 S.E.2d at

107. In the context of a sentencing proceeding in a capital case, which involves

evidence specifically geared towards a defendant’s character, past behavior, and

personal qualities, “personal conclusions that. . . amount[ ] to little more than name-

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Opinion of the Court

calling” and “repeated degradations of the defendant” are “grossly improper and

prejudicial.” Id. at 134, 558 S.E.2d at 108. In State v. Miller this Court held the

solicitor’s remarks during closing arguments, especially those referencing the

defendants as “habitual storebreakers,” to be “grossly unfair” and “well calculated to

mislead and prejudice the jury” because the defendants did not testify or offer their

own character evidence, and the State did not present evidence to show the

defendants were habitual storebreakers. 271 N.C. 646, 660, 157 S.E.2d 335, 346

(1967). “If verdicts cannot be carried without appealing to prejudice or resorting to

unwanted denunciation, they ought not to be carried at all.” State v. Tucker, 190 N.C.

708, 714, 130 S.E.2d 720, 723 (1925).

Turning to the prosecutor’s closing argument in this case, we consider whether

his statements were first, improper, and then, so grossly improper as to prejudice

defendant’s right to due process.

First, defendant argues the prosecutor’s repeated statements insinuating that

defendant lied were improper. Over the course of his argument, the prosecutor used

some variation of “lie” at least thirteen times, though never directly calling defendant

a liar. “Innocent men don’t lie” appeared to be the State’s theme: the prosecutor used

it at the beginning of his closing argument and again when beginning his rebuttal.

The prosecutor also referred to defendant’s claim of self-defense as “just not a true

statement.” The prosecutor commented that the unidentified man involved in the

shooting scenario was “imaginary” and “simply made up.” The prosecutor also

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Opinion of the Court

asserted defendant engaged in “[t]he act of lying” and “trie[d] to hide the truth from

you all.” Relying on Hembree, defendant argues that even though the prosecutor did

not directly call defendant a liar, the effect and intimations of his statements are also

improper. 368 N.C. at 19-20, 770 S.E.2d at 89.

A prosecutor is not permitted to insult a defendant or assert the defendant is

a liar. See Jones, 355 N.C. at 133-34, 558 S.E.2d at 107; Miller, 271 N.C. at 659, 157

S.E.2d at 345 (“[A prosecutor] can argue to the jury that they should not believe a

witness, but he should not call him a liar.”). A prosecutor is permitted to address a

defendant’s multiple accounts of the events at issue to suggest that the “defendant

had not told the truth on several occasions and the jury could find from this that he

had not told the truth at his trial.” State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d

462, 465 (1994). In this case there is no doubt the prosecutor’s statements directed

at defendant’s credibility are improper. Statutorily, the prosecutor is not permitted

to inject his opinion as to the truth or falsity of the evidence or comment on a

defendant’s guilt or innocence during his argument. N.C.G.S. § 15A-1230(a). Here

the prosecutor injected his own opinion that defendant was lying, stopping just short

of directly calling defendant a liar, and his theme, “innocent men don’t lie,” insinuated

that because defendant lied, he must be guilty. The focus of the prosecutor’s

argument was not on presenting multiple conflicting accounts and allowing the jury

to come to its own conclusion regarding defendant’s credibility. Rather, the State’s

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Opinion of the Court

argument appeared to overwhelmingly focus on attacking defendant’s credibility

through the prosecutor’s personal opinion.

Nonetheless, even though the statements are improper, we do not find them to

be so grossly improper that they amount to prejudice. Unlike the argument at issue

in Miller, which this Court found prejudicial, the evidence in this case does support a

permissible inference that defendant’s testimony lacked credibility. Defendant gave

six alternating versions of the shooting, five to police and one to the jury.2

Accordingly, this was evidence from which the prosecutor could argue defendant had

not told the truth on several occasions, from which, the jury could find that defendant

had not told the truth at his trial. While we do not approve of the prosecutor’s

repetitive and dominant insinuations that defendant was a liar, we do believe

sufficient evidence to supported the premise that defendant’s contradictory

statements were untruthful. Further, the evidence supporting defendant’s voluntary

manslaughter conviction is overwhelming, as discussed below.

Next, defendant argues that the prosecutor’s assertion that defense expert

witness Dr. Corvin was “just a $6,000 excuse man” was also improper. The statement

2 Defendant told the 911 operator he shot the victim. He told Detective Crum he shot
the victim, then told Detective Crum he meant to say an unknown male shot the victim.
Defendant first told Detective Sterrett an unknown male shot the victim. Then he told
Detective Sterrett he shot the victim after taking the gun from his truck and putting the gun
in his pocket, and asking someone to get the victim to come outside. Then he told Detective
Sterrett he shot the victim after approaching the victim with the gun exposed. At trial,
defendant told the jury that while he was talking with a drug dealer, the victim approached
and attacked him and the drug dealer, and defendant grabbed the drug dealer’s gun and shot
the victim.

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implied Dr. Corvin was not trustworthy because he was paid by defendant for his

testimony. Evidence in the record supports the assertion that Dr. Corvin received

compensation. Dr. Corvin’s practice received over $300,000 in 2012 for services to

criminal defendants, and he testified he worked in excess of twenty hours on this case

at the legislature-authorized rate of $320 per hour. This Court has held it is proper

for an attorney to point out potential bias resulting from payment a witness received

or would receive for his services, while it is improper to argue that an expert should

not be believed because he would give untruthful or inaccurate testimony in exchange

for pay. State v. Rogers, 355 N.C. 420, 462-64, 562 S.E.2d 859, 885-86 (2002). Here

the prosecutor’s statement goes beyond pointing out that Dr. Corvin was reimbursed

for his opinion to argue that Dr. Corvin was paid to formulate an excuse for defendant.

In State v. Duke this Court considered similar language when the prosecutor referred

to the defendant’s expert witness as the “$15,000 man” twice during closing

arguments. 360 N.C. 110, 127-28, 623 S.E.2d 11, 23 (2005), cert. denied, 549 U.S.

855, 166 L. Ed. 2d 96 (2006). Though the statement in Duke was improper because

it insinuated that the defendant’s expert would say anything to get paid, we did not

find this language “so overreaching as to shift the focus of the jury from its fact-

finding function to relying on its own personal prejudices or passions.” Id. at 130,

623 S.E.2d at 24. As is the case here, the prosecution’s statement emphasized the

expert witness’s fee, and the jury may properly take that information into account

when determining the credibility of the expert and the weight to place on his

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Opinion of the Court

testimony. Id. at 130, 623 S.E.2d at 24. In this case we do acknowledge the

additional word “excuse” and believe this language amounts to name-calling, which

is certainly improper.

Finally, defendant argues that the prosecutor improperly argued that defense

counsel should not be believed because “[h]e’s paid to defend the defendant.”

Defendant also argues the prosecutor improperly insinuated that the defense

attorney and the defense expert conspired to assist defendant in committing perjury

before the jury by stating: “[H]e’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.” We agree this

language was improper. A prosecutor is not permitted to make “uncomplimentary”

statements about defense counsel when “there is nothing in the record to justify it.”

Miller, 271 N.C. at 658, 157 S.E.2d at 345.

In Hembree this Court considered a similar statement by a prosecutor:

“defendant, along with his two attorneys, come together to try and create some sort

of story.” 368 N.C. at 20, 770 S.E.2d at 89. In Hembree, as in the case sub judice,

there was no evidence in the record to suggest either defendant committed perjury at

the behest of his attorney. These arguments are improper because they not only

allowed the prosecutor to inject his personal opinion about how defendant’s trial

strategy was formed, and thus insinuate the falsity of the testimony, but they also

portray defense counsel in an “uncomplimentary” light by suggesting defense counsel

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suborned perjury. In Hembree this Court did not consider whether the improper jury

argument on its own amounted to prejudice. Instead, this Court held that the

cumulative effect of the trial court’s three errors (allowing excessive evidence of the

defendant’s prior conduct under Rule 404(b), allowing impermissible character

evidence under Rule 404(a), and failing to intervene in improper jury argument)

deprived the defendant of a fair trial without determining whether any single error

was prejudicial in isolation. 368 N.C. at 9, 770 S.E.2d at 83. That kind of cumulative

effect does not exist in this case. Here the improper jury argument was the single

alleged error, occurring over the span of an eleven-day trial, that is before this Court

on appeal. We turn now to the prejudice analysis.

Though “we have found grossly improper the practice of flatly calling a witness

or opposing counsel a liar when there has been no evidence to support the allegation,”

id. at 19, 770 S.E.2d at 89 (quoting Rogers, 355 N.C. at 462, 562 S.E.2d at 885), the

inquiry does not end there.3 Despite our agreement with defendant that each of the

prosecutor’s contested statements are improper, the applicable standard of review

requires us to consider whether these improper arguments deprived defendant of a

3Rogers cites to Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 100, 515 S.E.2d
30, 36 (1999), aff’d per curiam, 351 N.C. 92, 520 S.E.2d 785 (1999), in which this Court
concluded that counsel “engaged in a grossly improper jury argument that included at least
nineteen explicit characterizations of the defense witnesses and opposing counsel as liars,”
but this Court split over whether the trial court’s failure to intervene ex mero motu was
prejudicial to the defendant. Thus, the Court of Appeals holding that the improper argument
was not of “such gross impropriety to entitle the defendants to a new trial,” 133 N.C. App. at
100, 515 S.E.2d at 36, was left undisturbed and stands without precedential value.

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fair trial. To demonstrate prejudice, defendant has the burden to show a “reasonable

possibility that, had the error[s] in question not been committed, a different result

would have been reached at the trial.” N.C.G.S. § 15A-1443(a)(2015). The primary

focus of our inquiry is not solely on the frequency of the improper arguments or the

substance of such statements. While certainly taking such variables into

consideration, a reviewing court must focus on the statements’ likely effect on the

jury’s role as fact-finder, namely whether the jury relied on the evidence or on

prejudice enflamed by the prosecutor’s statements. See Duke, 360 N.C. at 130, 623

S.E.2d at 24. Though we cannot always be certain which aspects of evidence and

argument the jury actually considered in coming to its decision, we must consider the

arguments “in context and in light of the overall factual circumstances to which they

refer.” Alston, 341 N.C. at 239, 461 S.E.2d at 709 (citing Pinch, 306 N.C. at 24, 292

S.E.2d at 221). Thus, we look to the evidence presented at trial and compare it with

what the jury actually found. Incongruity between the two can indicate prejudice in

the conviction.

Here, despite defendant’s five conflicting stories before trial, it was undisputed

at trial that defendant shot the victim after having previously argued with him.

Defendant admitted to being upset because the victim had “cussed him out” before

the shooting. Immediately after the shooting, defendant admitted to the 911 operator

that he shot the victim. According to defendant’s own testimony, despite believing

the victim may have had a knife or box cutter in one of his hands, he did not see a

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weapon in the victim’s hand before he shot him. Defendant explained that it was

dark at the time, and although he never saw the box cutter, he “felt it.” Defendant’s

injuries from the altercation consisted of a scratch on his collarbone area and a torn

t-shirt, while the State presented evidence suggesting the additional “mark” on his

head may have been in existence previously. According to defendant’s own testimony,

the unidentified bystander pulled out a gun to shoot the victim, and defendant

grabbed the gun and shot the victim himself. It is undisputed that defendant fled the

scene after the shooting. Defendant also testified he returned to the scene after

fleeing. Defendant also admitted to drinking before and being high on heroin during

the altercation. Finally, even without the prosecutor’s statements addressing

defendant’s credibility, it was relatively clear from Detective Crum’s, Detective

Sterrett’s, and defendant’s own testimony that several, widely varying iterations of

defendant’s story existed prior to the version defendant presented to the jury at trial.

During its deliberations the jury asked to see a photo of the box cutter as it

was found at the scene and the box cutter itself. The jury also asked to see the t-shirt

defendant was wearing when he was arrested, which defendant testified had been

torn during the altercation with the victim. Further, the jury asked to review the

transcripts of the 911 call and Detective Sterrett’s interrogation of defendant.

Therefore, the jury considered the evidence during deliberations, rather than solely

relying on the prosecutor’s improper statements. Also, the jury’s finding that

defendant was guilty of voluntary manslaughter, rather than first-degree murder,

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indicates the jury was persuaded by defendant’s and his expert’s testimony to some

extent. If the prosecutor’s statements had destroyed all credibility of the defense

team, as defendant asserts, there would be no testimony to support a finding of

voluntary manslaughter; however, the jury convicted defendant of voluntary

manslaughter, indicating they found he acted in imperfect self-defense. A finding of

self-defense, whether perfect or imperfect, requires the jury to find a defendant’s

testimony credible to some degree because the jury must find that the defendant

possessed an honest and reasonable belief it was necessary to kill the victim in order

to save himself from death or great bodily harm. See State v. Norris, 303 N.C. 526,

530, 279 S.E.2d 570, 572-73 (1981). Here the jury was properly instructed on self-

defense and imperfect self-defense. From the evidence against defendant in this case,

it is reasonable that a jury could find defendant used excessive force as there is no

evidence he actually saw a weapon in the victim’s hand. Defendant has not overcome

the evidence against him and thus has failed to show prejudice. Therefore, it was

error for the Court of Appeals to assume prejudice without considering the evidence

against defendant and the jury’s finding of voluntary manslaughter rather than first-

degree murder.

For the foregoing reasons, we hold it was not reversible error when the trial

court failed to intervene ex mero motu in the prosecutor’s closing arguments.

Nonetheless, we are disturbed that some counsel may be purposefully crafting

improper arguments, attempting to get away with as much as opposing counsel and

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 STATE V. HUEY

Opinion of the Court

the trial court will allow, rather than adhering to statutory requirements and general

standards of professionalism. Our concern stems from the fact that the same closing

argument language continues to reappear before this Court despite our repeated

warnings that such arguments are improper. See Jones, 355 N.C. at 134-35, 558

S.E.2d at 108-09; see also Rogers, 355 N.C. at 464-65, 562 S.E.2d at 886.

“The power and effectiveness of a closing argument is a vital part of the

adversarial process that forms the basis of our justice system. A well-reasoned, well-

articulated closing argument can be a critical part of winning a case.” Jones, 355

N.C. at 135, 558 S.E.2d at 108. Yet, arguments, no matter how effective, must avoid

base tactics such as: (1) comments dominated by counsel’s personal opinion; (2)

insinuations of conspiracy to suborn perjury when there has been no evidence of such

action; (3) name-calling; and (4) arguing a witness is lying solely on the basis that he

will be compensated. Our holding here, and other similar holdings finding no

prejudice in various closing arguments, must not be taken as an invitation to try

similar arguments again. We, once again, instruct trial judges to be prepared to

intervene ex mero motu when improper arguments are made.

Therefore, for the reasons stated above, we reverse the decision of the Court of

Appeals as to the issue before us on appeal and instruct that court to reinstate the

trial court’s judgment.

REVERSED.

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