State v. Huey: Repeatedly Insinuating that the Defendant Was a Liar Was Improper but Not Prejudicial

The North Carolina Supreme Court decided State v. Huey on Friday, reversing the court of appeals’ determination that the State’s closing argument unfairly prejudiced the defendant in his trial for murder.

Facts. The defendant was charged with first-degree murder after he shot and killed James Love on a Charlotte street in 2011. The defendant called 911 after the shooting, stating, “I shot a motherfucker.”

Immediately after the shooting, the defendant told law enforcement officers that another man shot Love. The defendant later admitted that he shot Love, stating that he took the gun from his truck, put it in his pocket, and asked someone to get Love to come outside to discuss an earlier disagreement. At trial, however, the defendant testified that Love hit him in the head and threatened him with what he believed to be a knife or a box-cutter while the defendant was buying drugs from an unidentified man. The defendant said the third man drew a handgun, which defendant took from him, firing two warning shots. The second shot killed Love.

The defense also presented evidence at trial that the defendant had a low I.Q., had experienced head trauma, and suffered from hallucinations.

The closing argument. The prosecutor opened closing arguments by stating, “Innocent men don’t lie.”  He used some variation of the verb “to lie” at least thirteen times during the course of his argument. He told the jury that the defendant was “not going to give you the truth,” arguing that the defendant developed the story he told at trial “after he sat down with his attorney and his defense experts . . . . [who] made sure the defendant understood the law, understood what he was charged with, what the elements were, and understood the defenses and what they meant and the law about the defenses.”

The prosecutor called the expert psychiatrist who testified for the defense “a $6,000 excuse man,” stating that the doctor “came in here and did exactly what he was paid to do[.]” He criticized the arguments of defense counsel, stating, “he’s paid to defend the defendant.”

Defense counsel did not object to these arguments, and the court did not intervene.

The jury found the defendant guilty of voluntary manslaughter.

The appeal. The defendant appealed from his conviction, arguing that the State’s closing argument was grossly improper and that trial court erred by failing to intervene on its own accord. The court of appeals agreed that the arguments were both improper and prejudicial as the defendant’s “entire defense was predicated on his credibility and the credibility of his witnesses.” State v. Huey, __ N.C. App. __, 777 S.E.2d 303, 308 (2015). The appellate court thus vacated the defendant’s conviction and remanded the case for a new trial. The State appealed, and the state supreme court granted discretionary review.

The standard of review. When defense counsel fails to object to a prosecutor’s improper argument, a trial court is only required to intervene to correct the error if the remarks are so grossly improper that they render the proceedings fundamentally unfair.  To determine whether a prosecutor’s statements reach this level of gross impropriety, the court must consider them “in context and in light of the overall factual circumstances to which they refer.” State v. Huey, __ N.C.__ (slip op. at 9) (quotations omitted).

Were the statements about defendant’s credibility improper? Yes. The theme of the State’s closing argument was that “‘Innocent men don’t lie.’” The prosecutor said defendant’s claim of self-defense was “‘just not a true statement.’” He said the unidentified man involved in the shooting was “‘imaginary’” and “‘simply made up.’” He said defendant engaged in “‘[t]he act of lying’” and “‘trie[d] to hide the truth from you all.’”

The supreme court said there was “no doubt the prosecutor’s statements directed at the defendant’s credibility are improper,” noting that G.S. 15A-1230(a) prohibits a prosecutor from injecting his personal belief as to the truth or falsity of the evidence or a defendant’s guilt or innocence during argument. The prosecutor in Huey injected his opinion that the defendant was lying and insinuated that because he lied, he must be guilty.

Were they grossly improper? No. The court contrasted the prosecutor’s argument in Huey with those deemed grossly unfair in State v. Miller, 271 N.C. 646, 660 (1967). In Miller, the state supreme court determined that the solicitor’s remarks during closing arguments inferring that the defendants habitually broke into businesses were grossly unfair as the defendants did not testify or offer character evidence and the State did not present evidence to show that they were in fact repeat offenders. In Huey, however, there was evidence that the defendant’s testimony was, as the prosecutor asserted, not credible. The defendant gave six alternating versions of the shooting—five to law enforcement officers and a sixth to the jury.

While noting its disapproval of the prosecutor’s “repetitive and dominant insinuations that defendant was a liar,” the court found sufficient evidence to support the premise that the defendant’s statements were untruthful. Moreover, the court noted that the evidence supporting the defendant’s conviction was overwhelming.

What about the disparaging statements regarding defense counsel and the expert psychiatrist? They also were improper, but not so grossly improper as to render the trial unfair.

Though an attorney may point out potential bias resulting from a payment a witness receives for his services, an attorney may not argue that an expert should not be believed because he would give untruthful testimony in exchange for pay. The State crossed that boundary in Huey by arguing that the expert psychiatrist was paid to formulate an excuse for the defendant. In addition, it was improper for the prosecutor to insinuate in his argument that defense counsel conspired with the defendant to suborn perjury where there was no evidence to justify that accusation.

To determine whether these improprieties deprived the defendant of a fair trial, the court considered whether the defendant had shown a reasonable possibility that, absent the improper argument, the jury would have reached a different result.  To evaluate the impact of the argument, the court compared the evidence to the jury’s findings, noting that “[i]ncongruity between the two can indicate prejudice in the conviction.” (Slip op. at 16.)

The defendant admitted that he shot Love while high on heroin and then fled the scene. Even without the prosecutor’s statements, the evidence made clear that defendant had told several different versions of what happened before and during the shooting. The jury asked to review several items of evidence during deliberations, including the box cutter found at the scene, showing that it did not rely solely on the prosecutor’s improper statements. The jury’s finding that the defendant was guilty of manslaughter rather than first-degree murder indicated that it was persuaded to some extent by the defendant’s testimony and that of the expert psychiatrist. If the prosecutor’s statements had destroyed the credibility of the defense, there would have been no testimony to support the lesser charge. Based on this review of the evidence, jury deliberations, and the verdict, the court concluded that the defendant failed to show that he was prejudiced by the improper argument. Thus, the court held that the trial court did not commit reversible error by failing to intervene during the prosecutor’s closing argument.

A final word of caution. The court said it was “disturbed that some counsel may be purposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism.” (Slop op. at 18-19.) The basis for its concern? Arguments that the court has ruled to be improper continue to reappear in cases on appeal. The court cautioned that is holding in Huey and other cases finding arguments to be improper but not prejudicial “must not be taken as an invitation to try similar arguments again.” (Slip op. at 19.) The court instructed trial judges to intervene when improper arguments are made.