April 7, 2009
Ex Mero Motu
The North Carolina Court of Appeals affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument:
Defendant contends that the trial court erred by failing to intervene ex mero motu during the prosecutor's closing remarks. After reviewing the prosecutor's statements, we conclude that the remarks were not grossly improper, and therefore, do not rise to the level of prejudice that would warrant a new trial.
Because defendant failed to object to the prosecutor's remarks at trial, our review is limited to “'”whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.”'” State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008) (quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)). Pursuant to this standard, “'“only an extreme impropriety on the part of the prosecutor will compel [the] 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.”'” Id. (citations omitted).
In the present case, the prosecutor made the following closing argument to the jury:
You know who committed this crime. You know how it was committed. Your difficulty is going to be in applying the law. And I say your difficulty. I hope you don't have any difficulty, but I anticipate you will, because you know that when you find this man guilty, he goes to prison for the rest of his life.
Mercy? The State is not asking you to execute this man. They're not seeking the death penalty. That's a lot more mercy than was shown this 13 year old. A lot more mercy. We're asking you to find him guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.
Defendant contends that the prosecutor's remarks were grossly improper because the statements suggested that convicting defendant would have a general deterrent effect on the conduct of others. During closing remarks, the prosecution may not argue that convicting the defendant will have a general deterrent effect; however, “the prosecution may argue specific deterrence, that is, the effect of conviction on the defendant himself.” State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994). The prosecutor's closing remarks asked the jury “to find [defendant] guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.” The purpose of the prosecutor's argument was to convince the jury to convict defendant to specifically deter defendant's unlawful behavior. As such, we conclude that the prosecutor's statements were not grossly improper.
Assuming arguendo that the prosecutor's argument was grossly improper, given the amount of evidence against defendant, it could not have been prejudicial. During trial, the State presented overwhelming evidence of defendant's guilt, including defendant's admissions to the police that he and Sterling planned and executed the robbery and that Sterling shot both Tam and Phi Nguyen. Moreover, this evidence was uncontested by defendant at trial and on appeal. Based on this evidence, the prosecutor's statements were not prejudicial, because it was unlikely that his statements impacted the jury's verdict. We conclude that the prosecutor's remarks were not so grossly improper as to require ex mero motu action by the trial court. Moreover, even if the remarks were improper, they were not prejudicial because the record provides sufficient support for defendant's convictions. Accordingly, we hold that the trial court did not err by failing to intervene ex mero motu during the prosecutor's closing remarks.
LawGuru defines the Latin phrase as follows:
Mere motion of a partys own free will. To prevent
injustice, the courts will, ex mero motu, make rules and orders which the
parties would not strictly be entitled to ask for.
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Ex mero motu?
Domo arigato, Mr. Roboto!
Posted by: Alan Childress | Apr 7, 2009 8:00:18 AM