Tuesday, May 7, 2019

Racial Argument Draws Reversal

A prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals.

The defendant shot and killed a person in front of his home

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.

At trial

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]

The court noted the Preamble to its rules of professional conduct and governing law

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.” 

The State did not cover itself with glory on appeal

After its argument equating gang membership and black men, the State argues in its appellee brief that the prosecutor’s racially-based argument was proper because:

[T]he jury had to determine whether Defendant’s fear was reasonable. Insofar as Defendant expressed a fear of gang members wearing gang colors, the prosecutor aptly
inquired whether a white male would elicit the same scrutiny. As the prosecutor said, a fear based on race is not a reasonable fear. The prosecutor is permitted to argue the law, and these remarks were not improper. See Diehl, 353 N.C. at 436, 545 S.E.2d at 187. [Emphasis supplied].

The State’s argument insinuates Defendant could have believed the individuals outside his house were gang members because they were black. No admitted evidence suggests Defendant might have thought the individuals were gang members because of their race. The State’s argument that Defendant might have inferred the individuals were gang members because of their race is offensive, invalid, and not supported by any evidence before the jury.

No logical connection exists between Defendant recounting that he was referred to as “white boy” by those individuals outside his home and the prosecutor’s invidious inference that Defendant held an irrational fear or exhibited hatred of Thomas and the other black partygoers to allow this closing argument. The prosecutor’s comments are a wholly gratuitous injection of race into the trial and were improper. See Williams, 339 N.C. at 24, 452 S.E.2d at 259. The prosecutor’s comments are especially egregious because he made them during the State’s final rebuttal argument to the jury, which left defense counsel with no opportunity to respond, other than by objecting.

The court majority surveyed other jurisdictions and granted a new trial.

Justice Arrowwood dissented

I respectfully dissent. I would hold the trial court did not abuse its discretion in overruling defendant’s objection to the portion of the State’s closing argument that defendant argues, and the majority agrees, violated defendant’s constitutional rights by allowing the State to argue the victim would not have been shot if he had been white.


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