Tuesday, April 7, 2020

The Elephant In The Room

The North Carolina Supreme Court reversed the Court of Appeals and remanded a first degree murder conviction, holding that the prosecutor's references to race in closing argument did not prejudice the defendant.


Defendant testified that he was upset from having a bad day. He heard people arguing outside and yelled at them from his window. He yelled, “keep it the f--- down.” The group yelled back, “shut the f--- up; f--- you; go inside, white boy.” Defendant testified that he saw multiple people in the group with guns. Other witnesses testified that they did not see anyone with a gun at the party. Defendant’s two young daughters were in the house.

Defendant called 911. Before the operator answered, defendant was recorded saying “I’m going to kill him.” In his testimony, defendant admitted to having falsely reported there were “hoodlums racing up and down the street.” He said he was “locked and loaded” and going to “secure the neighborhood.” Defendant was not a police officer.

Defendant believed his son was part of the rowdy group outside and went to get him. When he got to his garage, which was furnished like a den, he found his son there. From his garage defendant yelled at the group to “leave the premises.”

According to witnesses who were at the scene that night, Kourey Thomas and his friends saw police blue lights from an unrelated traffic stop down the street. Thomas had a weed grinder on his person and did not want any trouble with the police, so he ran from Lewis’s house back to his friend’s car.  He cut across a small part of defendant’s yard on the way. Defendant saw a man running in his yard. Thomas was shot before he made it to his car. The force from the shot caused him to fall on the curb next to defendant’s mailbox. Someone screamed, “he just shot him through the window!” Defendant’s house was dark, his garage was closed, and one of the garage windows was broken. Thomas was African American. Defendant is white.

The victim died at the hospital.

Defendant was charged with first-degree murder. His case went to trial in February 2018. During closing arguments at trial, the prosecutor made the following statements which are at issue here:

MR. LATOUR [prosecutor]: I have at every turn attempted to not 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 he’s scared of these black males. And let’s call it what it is. Let’s talk about the elephant in the room.

MR. POLK [defense counsel]: Objection.

THE COURT: Overruled.

MR. LATOUR: Let’s talk about the elephant in the room. If they want to go there, consider it. And why 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 dead bleeding in that yard? 

MR. POLK: Objection.

THE COURT: Overruled.

MR. LATOUR: 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.

The court examined possible prejudice in light of all the evidence

Given that the jury found beyond a reasonable doubt that defendant was guilty of first-degree murder based on the evidence it heard, and given defendant’s failure to argue persuasively that there is a reasonable possibility that the jury would have acquitted him absent the prosecutor’s challenged remarks, we cannot conclude that the inclusion of the remarks prejudiced defendant. Therefore, we are unable to conclude that he is entitled to a new trial.

Justice Earls concurred but noted the majority and dissenting opinions below left an unresolved question

The essential question is: was it improper, in light of the evidence in this case, for the prosecutor to argue to the jury that a fear based on race would not be a reasonable fear? That argument was proper in this case for two reasons. First, it was not an appeal to racial animosity. Second, statements made by jurors during jury selection, the evidence here concerning race-based statements made by individuals at the scene, and defendant’s assertion of self-defense all combine to suggest that jurors potentially might have been swayed by their own conscious or unconscious racial biases instead of the evidence in the case. In these circumstances the prosecutor properly argued that it would not be reasonable for defendant to fear Kourey Thomas, the victim in this case, if that fear was based on the fact that Kourey Thomas was black.

While explicit references to race are improper

Equally well established is the principle, followed by this Court in Williams, that “[n]onderogatory references to race are permissible, however, if material to issues in the trial and sufficiently justified to warrant ‘the risks inevitably taken when racial matters are injected into any important decision-making.’ ”

...The record in this case shows that the prosecutor’s references to race in his closing argument were non-derogatory, and that they were intended to ensure that the jury did not allow implicit stereotypes about the dangerousness of young black men to infect their determination of whether defendant established that he had a reasonable fear and acted lawfully in self-defense. In these circumstances, the statements were proper.

As to relevance 

The remaining inquiry under our precedents is whether the statements were relevant to the facts of the case. In this case, the prosecutor’s statements were relevant because jurors themselves had raised the issue of race during jury selection, defendant testified that the men outside his house had used racially charged language, and defendant asserted self-defense. The very first mention of any race related aspect of this case came during jury selection when defendant’s counsel asked a prospective juror “do you remember anything about comparisons to the famous George Zimmerman case in Florida?” At that point the prosecutor objected and the trial court sustained the objection.

(Mike Frisch)


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