in the Supreme Court on 29 August 2017.
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.
H. Stein, Attorney General, by Alvin W. Keller, Jr.,
Assistant Attorney General, and Derrick C. Mertz, Special
Deputy Attorney General, for the State-appellant.
Holladay for defendant-appellee.
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.
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.
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.
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.
[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 ...