The defendant in State v. Meadows, No. COA24-149 (N.C. Ct. App. May 7, 2025), was convicted of murder based on evidence that he and two other men broke into the victim’s home and shot the victim to death. Despite evidence that the defendant was not alone, the trial court refused to instruct on acting in concert. During closing argument, however, the prosecutor told the jury that the State need not prove the defendant “actually fired the shot that actually killed the victim. If he committed one act that contributed to the victim’s death, he is just as guilty as everybody else.” This argument, the Court of Appeals said, was improper. This post examines the opinion in Meadows.
Permissible Argument
As a rule, the trial court’s jury instructions must be both accurate in law and supported by evidence. State v. Mumma, 372 N.C. 226, 239 (2019). Closing argument is subject to the same requirements. As noted in a prior post, a prosecutor’s closing argument should not contain misstatements of law. State v. Fletcher, 370 N.C. 313, 319 (2017). In general, however, a proper instruction from the judge will cure any misstatement of law by the prosecutor. State v. Goss, 361 N.C. 610, 626 (2007).
Further, an attorney generally may not make arguments based on matters outside the record. G.S. 15A-1230(a). Counsel may, however, argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom. State v. Waring, 364 N.C. 443, 518 (2010); cf. G.S. 7A-97 (“the whole case”). The latitude for reasonable inferences is broad. See e.g., State v. Brown, 350 N.C. 193, 211 (1999); State v. Woods, 345 N.C. 294, 306 (1997). Indeed, “[p]rosecutors may, in closing arguments, create a scenario of the crime committed as long the record contains sufficient evidence from which the scenario is reasonably inferable.” State v. Frye, 341 N.C. 470, 498 (1995).
Acting in Concert
In felony cases, the common law divided guilty parties into four categories: principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. State v. Minton, 234 N.C. 716, 720 (1952). “A principal is one who is present at and participates in the commission of the crime charged.” State v. Small, 301 N.C. 407, 412 (1980). The difference between principals in the first degree and principals in the second degree is the difference between acting in concert and aiding and abetting. See State v. Gray, 44 N.C. App. 318, 322 (1979).
Under a theory of acting in concert, a defendant may be convicted of a crime, though he himself did not commit any act constituting an element of the offense. State v. Cox, 303 N.C. 75, 86 (1981). It is sufficient to show that the defendant was present at the scene of the crime and acting with another pursuant to a common plan or purpose. Id. Accordingly, if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is guilty as a principal if the other commits that crime. State v. Barnes, 345 N.C. 184, 233 (1997). In any event, mere presence at the crime scene does not make one an accomplice. State v. Watson, 294 N.C. 159, 168 (1978).
A jury instruction on acting in concert must be supported by the evidence, and a defendant may be entitled to relief when the instruction, albeit a correct statement of law, allows for a conviction without sufficient evidence to support that theory of liability. See State v. Glover, 376 N.C. 420, 428 (2020). But acting in concert is not an essential element of any particular offense. See State v. Westbrooks, 345 N.C. 43, 57 (1996) (murder). It follows that, when evidence supports the theory, the trial court may instruct on acting in concert though that theory did not appear in the indictment. State v. Glidewell, 255 N.C. App. 110, 115 (2017); cf. State v. Ainsworth, 109 N.C. App. 136, 143 (1993) (same for theory of aiding and abetting). That the defendant’s indictment did not allege acting in concert, in other words, does not preclude a jury instruction that is supported by evidence.
State v. Meadows
The evidence at trial showed that the defendant in State v. Meadows, No. COA24-149 (N.C. Ct. App. May 7, 2025), was in a gang. On July 8, 2016, the defendant received a call from his gang brothers to handle some business. The defendant and two other gang members went to the home of the victim, Dondi Hutcherson, Jr., kicked the door in, and shot the victim to death. Shell casings of two different calibers were found at the scene, suggesting that more than one gun was fired. But the defendant told his girlfriend that he had killed the victim. Meadows, Slip Op. p. 2-4.
The defendant was indicted for murder. During the charge conference, the prosecutor requested a jury instruction on acting in concert. The trial court denied the request because the indictment did not allege acting in concert. “The trial judge expressed concern with the instruction opening up a situation that was not in accordance with the indictment.” Meadows, Slip Op. p. 13.
In closing argument, the prosecutor told the jury that the defendant could be convicted of murder even if he himself did not fire the fatal shot. The prosecutor said:
[T]he defendant’s act may not have been the only cause nor the nearest cause. It is sufficient if it occurred with some other cause happening at the same time, which in combination would have caused the victim’s death. Either acting by himself or with others, the defendant is absolutely guilty of murder.
. . . .
[H]e doesn’t have to actually cause the fatal shot. If he did something, acting himself or help with others, to cause the proximate death of the victim, he is guilty of first-degree murder.
Meadows, Slip Op. pp. 6-7.
In response, defense counsel argued that the defendant was following orders from his superiors in the gang, and it was unclear whether he went along voluntarily. Defense counsel said there was no evidence of the defendant’s state of mind, but “he went there under the orders of these higher-ups.” Defense counsel argued that the defendant lacked any criminal intent. Meadows, Slip Op. pp. 8-9.
On appeal, the defendant alleged Harbison error, that is, he claimed defense counsel admitted his guilt to the jury without his consent. See State v. Harbison, 315 N.C. 175 (1985). The Court of Appeals agreed, finding counsel’s admission that the defendant was present at the crime scene was an implicit admission of guilt. It also chided the prosecutor for arguing that the defendant could be convicted as an accomplice, though the trial court had declined to instruct on acting in concert:
Essentially, the State disregarded the trial court’s ruling at the charge conference that acting in concert was not an appropriate method to prove defendant’s guilt[.] . . . In direct contravention of the court’s ruling the State argued that because defendant was present at the scene of the crime with [other gang members], he could be found guilty of first-degree murder, based upon a theory of acting in concert.
Meadows, Slip Op. p. 13.
Noting that the defendant failed to object to this “improper argument,” the Court of Appeals also blamed defense counsel for admitting the defendant’s guilt “on this theory.” Meadows, Slip Op. p. 13. Defense counsel’s statements, it said, “coupled with the State’s closing arguments . . . imply guilt.” They could not be interpreted otherwise, it said, “when the State specifically told the jury that defendant is guilty if he was present at the scene of the incident.” Meadows, Slip Op. pp. 14-15. Again, defense counsel conceded the defendant went to the victim’s house, and “[t]his amounts to an implied admission that . . . he was also a participant in the crime in question.” Meadows, Slip Op. pp. 15-16. Based on the alleged Harbison error, the Court of Appeals awarded a new trial.
In dissent, Judge Stading stated that defense counsel’s admission that the defendant was present at the scene of the crime was not an admission of guilt. Further, he said, “coupling the State’s closing argument with [defense] counsel’s argument to reach a determination of ineffective assistance stretches beyond” Harbison and its progeny. As for the State’s argument, Judge Stading believed that the prosecutor’s statements about acting in concert did not amount to gross impropriety, and in any event were cured by the trial court’s correct jury instructions. Meadows, Slip Op. Dissent.
Conclusion
The defendant in Meadows also argued on appeal that the trial court erred by failing to intervene when the prosecutor improperly told the jury that the defendant could be convicted based on the defendant’s mere presence at the scene of the crime. Given its resolution of the Harbison claim, the Court of Appeals ostensibly did not reach that issue. But within its analysis of the Harbison issue, the Court of Appeals declared that the prosecutor made an “improper argument.”
The nature of that impropriety is not immediately apparent from the opinion. To be sure, if the prosecutor told the jury the defendant was guilty based on his mere presence at the scene of the crime, that would be a misstatement of law. But that proposition does not appear in the closing argument excerpted within the opinion. (For the same reason, an admission that the defendant was merely present at the scene of the crime would not necessarily inculpate him.) Rather, it appears the prosecutor accurately stated the law: that the defendant need not have fired the fatal shot; that it is sufficient that the defendant contributed to the victim’s death. Cf. N.C.P.I. – Crim. 206.10, First Degree Murder (defining proximate cause). Even assuming the prosecutor misstated the law, it is not clear why such an error would not be cured by a proper jury instruction.
Further, it seems beyond dispute that the prosecutor’s argument was supported by evidence. Indeed, the State’s evidence showed that the defendant and two fellow gang members went to the victim’s house, where they kicked in the door and shot the victim to death. True, the trial court declined to instruct the jury on acting in concert, but that ruling was based on a concern that the indictment failed to allege acting in concert, not any insufficiency in the State’s evidence.
Of course, the argument might be improper for some other reason. There’s no denying that a trial court’s ruling, as upon a motion in limine, might limit the scope of the parties’ arguments to the jury. E.g., State v. Al-Bayyinah, 359 N.C. 741, 753 (2005). The problem is that there does not appear to have been any such preliminary ruling here. To the extent the trial court’s ruling on the request for instructions represented a determination that acting in concert was not an appropriate method of proof, that determination does not seem to have been adequately communicated to the parties, as evidenced as much by the prosecutor’s argument as by the defendant’s failure to object (to say nothing of the trial judge’s failure to intervene to enforce the supposed determination).
If the impropriety in the State’s argument in Meadows is ambiguous, still the lessons for prosecutors are clear. When drafting indictments, it is not necessary to allege acting in concert. When requesting instructions, the failure to allege acting in concert in the indictment does not preclude such an instruction. And when making arguments to the jury, the argument should contain no misstatements of law nor assertions unsupported by evidence at trial. The canny prosecutor will also listen carefully to defense counsel’s closing argument for anything that might be construed as an admission of guilt and, outside of the presence of the jury, ask the trial court to conduct a Harbison inquiry. Such a request just might forestall having to try the case over again on remand.