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State v. Copley

Court of Appeals of North Carolina

May 7, 2019


          Heard in the Court of Appeals February 13, 2019.

          Appeal by defendant from judgment entered 23 February 2018 by Judge Michael J. O'Foghludha in Wake County No. 16 CRS 215839 Superior Court.

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

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

          TYSON, Judge.

         Chad Cameron Copley ("Defendant") appeals from a judgment entered following a jury's conviction for first-degree murder. We vacate Defendant's conviction and judgment and grant a new trial.

         I. Background

         On 22 August 2016, Defendant was indicted by a grand jury for first-degree murder. Defendant's trial began on 12 February 2018

         A. State's Evidence

         At trial, the State presented evidence tending to show the following: On 6 August 2016, Jalen Lewis ("Lewis") hosted a party at his parents' home, two or three houses down the street from Defendant's house. One of his guests, Chris Malone ("Malone"), and two companions, David Walker ("Walker"), and Kourey Thomas ("Thomas"), arrived at Lewis's party in Walker's car around midnight, and parked on the street. Malone was acquainted with Lewis. Walker and Thomas were not. Malone entered Lewis's house to ask permission for Walker and Thomas to enter. Walker and Thomas waited outside near the front steps of the house.

         Sometime between midnight and 1:00 a.m., a group of approximately twenty people arrived separately from Thomas, Walker, and Malone. Lewis and his friends did not know the group of twenty people. After about ten minutes, the group was asked to leave. The group agreed to leave, and walked toward their cars, congregating near the curb in front of Defendant's house to discuss where to go next.

         Defendant, who was inside his home and in his second-story bedroom, became disturbed by the group's noise outside. Defendant called 911 and told the operator he was "locked and loaded" and going to "secure the neighborhood." Defendant also stated, "I'm going to kill him." The operator attempted to obtain more information from Defendant, but the phone call was terminated.

         At the same time these events were transpiring, a law enforcement officer was conducting a traffic stop nearby, which caused the lights of his police cruiser to reflect down the street. Thomas and Walker saw the lights and became worried about the presence of law enforcement because Thomas possessed a marijuana grinder on his person.

         Thomas decided to leave the party after seeing the police cruiser's lights. Thomas left the party first. He ran from Lewis's house, and cut across the yard, towards Walker's car. Before he could reach the car, Thomas was shot by Defendant, who fired one shot without warning, from inside the window of his dark, enclosed garage. EMS arrived and transported Thomas to the hospital, where he died as a result of the gunshot.

         Wake County Sheriff's Deputy Barry Carroll ("Deputy Carroll") was one of the first investigators to arrive upon the scene. Deputy Carroll approached Defendant's house after observing broken glass in Defendant's driveway and a broken window in the garage. He shined a light through a garage window, and saw Defendant step through a door from the house into the garage. Deputy Carroll asked Defendant if he had shot someone. Defendant admitted shooting Thomas. Deputy Carroll requested Defendant to open the front door. Defendant complied and showed Deputy Carroll the shotgun he had used to fire at Thomas.

         At the close of the State's evidence, Defendant moved to dismiss the case. The trial court denied the motion.

         B. Defendant's Evidence

         Defendant testified and presented evidence tending to show the following: Defendant had argued with his wife on the morning of 6 August 2016, and then spent the day at home drinking, sleeping, and "just hanging out in the garage." After going to sleep that evening in his upstairs bedroom, Defendant awoke at approximately 12:30 a.m. Defendant and his wife then had marital relations. Shortly thereafter, Defendant looked out of his bedroom window and saw a group of people in front of his house. Defendant described the group as "yelling and screaming" and "revving their engines."

         Irritated at the noise the group made, Defendant yelled out the window, "You guys keep it the f[**]k down; I'm trying to sleep in here." Members of the group yelled back, "Shut the f[**]k up; f[**]k you; go inside, white boy,' things of that nature." Defendant saw "firearms in the crowd[, ]" and two individuals "lifted their shirts up" to flash their weapons. He testified that he called 911 at 12:50 a.m. at his wife's request.

         When Defendant called 911, he thought his son and his son's friends were outside, and stated his teenaged son was the "him" he referenced he was going to "kill" while on the 911 call. After ending the call with 911, he retrieved his shotgun, loaded it, and walked downstairs into his attached garage.

         When he discovered his son was inside the garage and not part of the group outside, he told his son to go upstairs for safety and to get a rifle. He again yelled at the group outside, instructing them to leave the premises and informing them that he was armed. Defendant claimed Thomas began running towards Defendant's house and pulled out a gun. Defendant fired one shot from his shotgun towards Thomas through the window of his garage.

         At the close of Defendant's evidence, he renewed his motion to dismiss, which the trial court denied. Following deliberation, the jury found Defendant guilty of first degree murder by premeditation and deliberation and by lying in wait. The trial court sentenced Defendant to life without parole. Defendant gave notice of appeal in open court.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444 (2017).

         III. Issues

         Defendant argues three issues on appeal: (1) the trial court plainly erred by instructing the jury that the defense of habitation was not available if Defendant was the aggressor; (2) the trial court erred by allowing the prosecutor to make egregious, improper, and racially-charged arguments during its closing argument; and (3) the trial court erred by instructing the jury on the theory of lying in wait.

         IV. Race-based Argument

         We first address Defendant's argument that the trial court erred by overruling his objections to racially-charged statements made by the prosecutor during closing arguments.

         During the State's rebuttal closing argument, the prosecutor stated, over Defendant's multiple objections:

[PROSECUTOR]: And while we're at it . . . I have at every turn attempted not to 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 [Defendant is] scared of these black males. And let's call it what it is. Let's talk about the elephant in the room. [Emphasis supplied].
The Court: Overruled.
[PROSECUTOR]: Let's talk about the elephant in the room. If they want to go there, consider it. And 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 [sic] dead bleeding in that yard? [Emphasis supplied].
The COURT: Overruled.
[PROSECUTOR]: 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. [Emphasis supplied].

         A. Standard of Review

         The Supreme Court of North Carolina held that a defendant's objection made during closing argument should be reviewed as if the defendant had objected to every instance of the challenged statements. State v. Walters, 357 N.C. 68, 104, 588 S.E.2d 344, 365, cert. denied, 540 U.S. 971, 157 L.Ed.2d 320 (2003). In Walters, the prosecutor made a closing argument comparing the defendant to Adolf Hitler. Id. The defendant's counsel objected, and the trial court overruled the objection. Id. The prosecutor then continued making allusions comparing the defendant to Hitler.

         Our Supreme Court reasoned:

Whereas it is customary to make objections during trial, counsel are more reluctant to make an objection during the course of closing arguments "for fear of incurring jury disfavor." Defendant should not be penalized twice (by the argument being allowed and by her proper objection being waived) because counsel does not want to incur jury disfavor. Therefore, defendant properly objected to the prosecutor's argument, and no waiver occurred by defendant's failure to object to later references to Hitler.

Id. (citation omitted).

         When a defendant properly objects to closing argument, the Court must determine if "the trial court abused its discretion by failing to sustain the objection." Id. at 104, 588 S.E.2d at 366 (citation omitted). We "first determine if the remarks were improper. Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." Id. (citations and internal quotation marks omitted). Following Walters, Defendant's multiple objections at trial and arguments against the prosecutor's racial comments are preserved for appellate review. See id.

         "When a court determines that an argument is improper, a defendant must prove that the statements were of such a magnitude that their inclusion prejudiced [the] defendant and that a reasonable possibility exists that a different result would have been reached had the error not occurred." State v. Dalton, 243 N.C.App. 124, 135, 776 S.E.2d 545, 553 (2015) (alteration in original) (internal quotation marks and citation omitted), aff'd, 369 N.C. 311, 794 S.E.2d 485 (2016).

         B. Closing Arguments

         This Court has recently decided a large number of appeals in which prosecutors made improper comments and statements during closing arguments. See, e.g., State v. Degraffenried, ___ N.C.App. ___, ___, 821 S.E.2d 887, 889 (2018) (holding that prosecutor made improper reference to the defendant's exercise of his right to trial by jury); State v. Phachoumphone, ___ N.C.App. ___, ___, 810 S.E.2d 748, 759 (holding that prosecutor inappropriately cited witnesses' out-of-court statements as substantive evidence), review allowed, ___ N.C. ___, 818 S.E.2d 111 (2018); State v. Madonna, ___ N.C.App. ___, ___, 806 S.E.2d 356, 363 (2017) (holding that prosecutor improperly stated that the defendant had lied to the jury), review denied, 370 N.C. 696, 811 S.E.2d 161 (2018).

         Our Supreme Court has stated: "The prosecuting attorney should use every honorable means to secure a conviction, but it is his duty to exercise proper restraint so as to avoid misconduct, unfair methods or overzealous partisanship which would result in taking unfair advantage of an accused." State v. Holmes, 296 N.C. 47, 50, 249 S.E.2d 380, 382 (1978) (citations omitted).

         The General Rules of Practice for the Superior and District Courts provide, in relevant part: "Counsel are at all times to conduct themselves with dignity and propriety[, ]" and "[t]he conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness[.]" Gen. R. Pract. Super. and Dist. Ct. 12, 2019 Ann. R. N.C. 10-12.

         The Preamble to the North Carolina Revised Rules of Professional Conduct states that "A lawyer, as a member of the legal profession, is . . . an officer of the legal system, and a public citizen having special responsibility for the quality of justice." Rule of Professional Conduct 3.4(e) states that "A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence[.]" All licensed attorneys, whether representing the State or a defendant, must be ever mindful of their oaths and duties as officers of the court and the important roles they serve in the impartial administration of justice. See id.

         C. Injection of Race

         Long-standing precedents of the Supreme Courts of the United States and North Carolina prohibit superfluous injections of race into closing arguments. "The Constitution prohibits racially biased prosecutorial arguments." McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 95 L.Ed.2d 262, 289 n.30 (1987) (citation omitted). "[P]rosecutor[s] may not make statements calculated to engender prejudice or incite passion against the defendant. Thus, overt appeals to racial prejudice, such as the use of racial slurs, are clearly impermissible. Nor may a prosecuting attorney emphasize race, even in neutral terms, gratuitously." State v. Williams, 339 N.C. 1, 24, 452 S.E.2d 245, 259 (1994) (citations and internal quotation marks omitted), disapproved of on other grounds by State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997). Gratuitous appeals to racial prejudice "tend to degrade the administration of justice." Battle v. United States, 209 U.S. 36, 39, 52 L.Ed. 670, 673 (1908).

         Our Supreme Court has instructed: "Closing argument may properly be based upon the evidence and the inferences drawn from that evidence." State v. Diehl, 353 N.C. 433, 436, 545 S.E.2d 185, 187 (2001) (citing State v. Oliver, 309 N.C. 326, 357, 307 S.E.2d 304, 324 (1983)). "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." Id. (emphasis supplied) (citing State v. Moose, 310 N.C. 482, 492, 313 S.E.2d 507, 515 (1984)).

         In Moose, our Supreme Court held a white defendant's reference to a black victim as a "damn ni[**]er" along with evidence that the victim was seen driving through a white residential community, was sufficient evidence to support a prosecutor's closing argument that the victim's murder was, in part, racially motivated. 310 N.C. at 492, 313 S.E.2d at 515. Unlike the facts in Moose, no evidence presented ...

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