in the Court of Appeals February 13, 2019.
by defendant from judgment entered 23 February 2018 by Judge
Michael J. O'Foghludha in Wake County No. 16 CRS 215839
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant.
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.
August 2016, Defendant was indicted by a grand jury for
first-degree murder. Defendant's trial began on 12
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.
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.
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
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.
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.
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.
close of the State's evidence, Defendant moved to dismiss
the case. The trial court denied the motion.
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
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
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.
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.
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.
lies in this Court pursuant to N.C. Gen. Stat. §§
7A-27(b) and 15A-1444 (2017).
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.
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.
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].
[DEFENSE COUNSEL]: Objection.
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].
[DEFENSE COUNSEL]: Objection.
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].
Standard of Review
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.
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
Id. (citation omitted).
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.
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).
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
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).
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.
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.
Injection of Race
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).
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)).
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 ...