Tuesday, October 10, 2017

Reversal Reversed For Improper Closing Argument

The North Carolina Supreme Court reversed the reversal by the Court of Appeals and reinstated a conviction notwithstanding the prosecutor's improper closing argument

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 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. 

 The charge was murder in the first degree

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...

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.

The defendant was convicted of voluntary manslaughter.

The court

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 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.

But no reversal due to the overwhelming evidence to support the manslaughter conviction.

The attack on the expert

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 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 factfinding 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 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.

But the court found that the jury verdict belied prejudice from the various arguments but cautioned 

“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.

(Mike Frisch)


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