IN THE SUPREME COURT OF NORTH CAROLINA
No. 427PA17
Filed 29 March 2019
STATE OF NORTH CAROLINA
v.
JERMAINE ANTWAN TART
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178
(2017), vacating in part and finding no error in part in judgments entered on 26
August 2016 by Judge V. Bradford Long in Superior Court, Forsyth County. On 9
May 2018, the Supreme Court allowed defendant’s conditional petition for
discretionary review as to additional issues. Heard in the Supreme Court on 8
January 2019.
Joshua H. Stein, Attorney General, by Michael T. Henry, Assistant Attorney
General, for the State-appellant/appellee.
Sarah Holladay for defendant-appellee/appellant.
MORGAN, Justice.
This criminal appeal presents two issues for the Court to resolve: whether a
short-form indictment sufficiently charged attempted first-degree murder when the
wording of the indictment did not precisely duplicate the language of the relevant
statute and whether a prosecutor’s remarks during closing argument were so grossly
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Opinion of the Court
improper that the trial court should have intervened ex mero motu. While we agree
with the Court of Appeals that the State’s characterizations during its closing
argument do not entitle defendant to a new trial, we reject the lower appellate court’s
determination regarding the short-form indictment and hold that the indictment was
sufficient to vest the trial court with subject-matter jurisdiction to try defendant for
attempted first-degree murder. Accordingly, we affirm in part and reverse in part
the decision of the Court of Appeals.
Factual and Procedural Background
In late February 2014, defendant Jermaine Antwan Tart was residing at a
homeless shelter in Winston-Salem where the victim in this case, Richard Cassidy,
was a volunteer worker. On 2 March 2014, Cassidy was leading a group of shelter
residents, including defendant, as they walked to an overflow location of the shelter.
During the walk to this area, defendant made several inappropriate comments and
began to speak incoherently. Defendant suddenly began to assault Cassidy from
behind, stabbing Cassidy in the head and knocking him to the ground. Defendant
then got on top of Cassidy and continued to attack him, striking Cassidy’s head, neck,
shoulder, and back with a knife. Even after another shelter resident attempted to
intervene in order to try to stop the attack, defendant persisted in his assault of
Cassidy. A law enforcement officer arrived on the scene and was able to stop
defendant’s attack on Cassidy. Although the injuries that Cassidy sustained were
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Opinion of the Court
serious and life-threatening, he survived the assault. Defendant subsequently stated
during interviews with law enforcement officers and mental health professionals that
he was upset with Cassidy because Cassidy had allowed others to steal from him, had
disrespected defendant, and had shot defendant when defendant was a child.
Defendant was charged with the offenses of attempted first-degree murder and
assault with a deadly weapon with intent to kill inflicting serious injury. At trial,
there was no dispute that defendant had stabbed Cassidy. The sole contested
question concerned defendant’s mens rea, namely, whether defendant had the
specific intent to attempt to commit first-degree murder.
The State introduced testimony from Richard Blanks, M.D., an expert in the
field of forensic psychiatry, who opined that an individual can have a specific intent
and a delusion at the same time. Also in his testimony, Dr. Blanks offered defendant’s
belief that Cassidy had allowed others to steal from defendant as an example of
defendant’s non-delusional reasons for being angry with Cassidy, even if defendant’s
beliefs were actually inaccurate. Dr. Blanks testified that these beliefs constituted
identifiable non-delusional reasons that could cause defendant to be angry with
Cassidy and would further evidence defendant’s specific intent to kill Cassidy.
Dr. Christine Herfkens, a psychologist and expert in forensic and clinical
neuropsychology who was a witness for the defense, testified that defendant had a
long history of mental illness, including schizoaffective disorder and antisocial
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Opinion of the Court
personality disorder, which is a disorder formerly known as sociopathy. Defendant’s
medical records indicated that he had been admitted to state hospitals at least twelve
times between 2002 and 2014, each time exhibiting homicidal ideation, which
Herfkens defined as the desire to kill another person. In addition, defendant was
dependent on both alcohol and marijuana.
At the close of the State’s evidence and again at the close of all of the evidence,
defendant moved to dismiss both charges against him, arguing that he had
demonstrated diminished capacity and the absence of the specific intent to kill. The
trial court denied these motions. The jury subsequently found defendant guilty of
attempted first-degree murder and assault with a deadly weapon with intent to kill
inflicting serious injury. The trial court sentenced defendant to concurrent terms
totaling 207 to 261 months of imprisonment.
Defendant appealed to the Court of Appeals and raised two arguments, neither
of which was presented to the trial court. First, defendant challenged the indictment
that purported to charge him with attempted first-degree murder, claiming that it
was insufficient to confer subject-matter jurisdiction on the trial court. Specifically,
defendant noted that the short-form indictment utilized for the attempted first-
degree murder charge included one word from the statutorily approved language for
charging manslaughter along with the prescribed wording for a murder offense.
Second, defendant contended that certain remarks in the prosecutor’s closing
argument at trial were so grossly improper that the trial court committed reversible
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Opinion of the Court
error in failing to intervene ex mero motu. In a unanimous, unpublished opinion
issued on 5 December 2017, the North Carolina Court of Appeals agreed with
defendant’s indictment argument and vacated his attempted first-degree murder
conviction, but found no error in the trial court’s silence during the State’s closing
argument and therefore upheld the assault conviction. See State v. Tart, ___ N.C.
App. ___, 808 S.E.2d 178,
2017 WL 6002771 (2017) (unpublished).
On 14 December 2017, the State filed a petition for writ of supersedeas and
application for temporary stay in this Court. The following day, this Court stayed
the decision of the Court of Appeals. On 11 January 2018, the State filed a petition
seeking discretionary review of the Court of Appeals’ decision regarding sufficiency
of the indictment for attempted first-degree murder, and on 22 January, defendant
filed a conditional petition for discretionary review of the Court of Appeals’ resolution
of the closing argument issue. This Court allowed both petitions for discretionary
review on 9 May 2018.
Analysis
I. Facial Sufficiency of the Short-form Attempted First-degree Murder Indictment
North Carolina General Statutes section 15-144 sets out the appropriate
phrasing which can be utilized in indictments for the criminal offenses of murder and
manslaughter. The statute reads in pertinent part:
[I]t is sufficient in describing murder to allege that the
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Opinion of the Court
accused person feloniously, willfully, and of his malice
aforethought, did kill and murder (naming the person
killed), and concluding as is now required by law; and it is
sufficient in describing manslaughter to allege that the
accused feloniously and willfully did kill and slay (naming
the person killed), and concluding as aforesaid . . . .
N.C.G.S. § 15-144 (2017). The indictment in the case at bar, in charging defendant
with the criminal offense of attempted first-degree murder, states in pertinent part:
“the defendant [Jermaine Antwan Tart] unlawfully, willfully and feloniously did
attempt to kill and slay Richard Cassidy with malice aforethought.” (Emphasis
added).
A comparison of the statutory requirements to sufficiently charge a person in
an indictment for an offense pertaining to murder under N.C.G.S. § 15-144 and the
challenged indictment in the instant case offers two notable observations: (1) the
phrase “malice aforethought” appears in both the statutory requirements and the
current indictment, and (2) the phrase “kill and murder,” which is statutorily
associated with an offense pertaining to murder in an indictment, is replaced in the
current indictment with the phrase “kill and slay,” which is statutorily associated
with an offense pertaining to manslaughter in an indictment. Therefore, the
indictment that this Court evaluates for its sufficiency to charge defendant with the
offense of attempted first-degree murder contains language associated not only with
an offense pertaining to murder—namely, “malice aforethought”—but also with an
offense pertaining to manslaughter—namely, “kill and slay”—as designated in
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Opinion of the Court
N.C.G.S. § 15-144.
The State argues that the Court of Appeals erred by employing a new
“interchangeability” analysis with respect to the construction of indictments that do
not adhere verbatim to their authorizing statutes. In considering the indictment
charging defendant with attempted first-degree murder in the present case, the Court
of Appeals concluded:
The indictment in question fails to comply with the
short form indictment authorized by N.C.G.S. § 15-144. It
states the following: “[t]he jurors for the State upon their
oath present that on or about [the dates of offense shown
and in the county named above] the defendant named
above unlawfully, willfully and feloniously did attempt to
kill and slay Richard Cassidy with malice aforethought.”
(emphasis added). It does not allege Defendant attempted
to “kill and murder”—the requisite language for murder.
Instead it contains the phrase “kill and slay”—the requisite
language for manslaughter. The terms “murder” and
“slay” are not interchangeable. Thus, this indictment is
insufficient to charge attempted murder and the trial court
lacked jurisdiction to enter judgment on this charge.
Tart, 2017 WL 6002771, at *3 (second set of brackets in original). We agree with our
colleagues at the lower appellate court that “[t]he terms ‘murder’ and ‘slay’ are not
interchangeable,” id.; however, the usage of the word “slay” in place of the word
“murder” in the indictment here is a distinction without a difference because the
indictment against defendant also charged that the killing was done “with malice
aforethought.”
Id. Under such circumstances as those present in the case at bar, the
words that appear in the short-form indictment are sufficient to charge attempted
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Opinion of the Court
first-degree murder.
The plain language of N.C.G.S. § 15-144, coupled with consideration of the
constitutional purpose of indictments, dictates our determination that the indictment
here effectively withstands challenge. An indictment is “a written accusation of a
crime drawn up by the public prosecuting attorney and submitted to the grand jury,
and by them found and presented on oath or affirmation as a true bill.” State v.
Thomas, 236 N.C. 454, 457,
73 S.E.2d 283, 285 (1952) (citations omitted). “Except in
misdemeanor cases initiated in the District Court Division, no person shall be put to
answer any criminal charge but by indictment, presentment, or impeachment.” N.C.
Const. art. I, § 22. This constitutional provision is intended
(1) [to provide] such certainty in the statement of the
accusation as will identify the offense with which the
accused is sought to be charged; (2) to protect the accused
from being twice put in jeopardy for the same offense; (3)
to enable the accused to prepare for trial, and (4) to enable
the court, on conviction or plea of nolo contendere or
guilty[,] to pronounce sentence according to the rights of
the case.
State v. Greer, 238 N.C. 325, 327,
77 S.E.2d 917, 919 (1953) (citations omitted).
N.C.G.S. § 15-144 is clear that a short-form indictment for murder is sufficient
if it alleges “the accused person feloniously, willfully, and of his malice aforethought,
did kill and murder (naming the person killed),” while a short-form indictment for
manslaughter is sufficient if it alleges “the accused feloniously and willfully did kill
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Opinion of the Court
and slay (naming the person killed).” N.C.G.S. § 15-144 (emphases added). An
examination of this statutory language reveals that there are two express differences
in the terminology utilized by the General Assembly to establish short-form
indictments for the offenses of murder and manslaughter that are critical to the case
at bar: (1) the reference in manslaughter offenses that the named defendant did slay
an individual, compared with the reference in murder offenses that the defendant did
“murder” an individual; and (2) the mandated inclusion in an indictment for a murder
offense of the essential element of “malice aforethought,” while the allegation of
“malice aforethought” is not required to charge manslaughter. The critical and
dispositive difference between short-form indictments for murder offenses and
manslaughter offenses is the substantive allegation of the element of “malice
aforethought” in murder offense short-form indictments, rather than the employment
of the synonyms “slay” in manslaughter offense short-form indictments or “murder”
in murder offense short-form indictments upon which the Court of Appeals chose to
focus.
Black’s Law Dictionary defines the noun “murder” as “[t]he killing of a human
being with malice aforethought,”1 murder, Black’s Law Dictionary (10th ed. 2014)
[hereinafter Black’s], and defines the verb “slay” as “[t]o kill (a person), esp. in battle,”
slay, Black’s. It is evident from the plain legal definitions of the words “murder” and
Black’s Law Dictionary does not supply a definition for the word “murder” when
1
used as a verb.
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Opinion of the Court
“slay” that there is no meaningful distinction between the two terms for the purpose
of ascertaining the sufficiency of the description of the attempted first-degree murder
offense as alleged in the current case that defendant had attempted to kill a human
being or person named Richard Cassidy. While it may have been a better practice for
the prosecution here to replicate the specific language of N.C.G.S. § 15-144 in alleging
defendant’s commission of the offense of attempted first-degree murder, the
prosecution’s failure to do so did not render the indictment fatally defective. The
prosecution’s proper and necessary inclusion of the legal element “malice
aforethought” in the present indictment’s charge of attempted first-degree murder
substantively and constitutionally distinguishes this charge from an alleged
manslaughter offense—despite the usage of the term “slay” instead of the term
“murder”—because, as required by Greer in its construction of the pertinent
provisions of the Constitution of North Carolina, the short-form indictment under
review provided such certainty in the statement of the accusation as would identify
the offense with which defendant was charged, protected defendant from being put
in double jeopardy for the same alleged offense, enabled defendant to prepare for trial,
and enabled the trial court to pronounce a sentence upon defendant’s conviction of
attempted first-degree murder. Greer, 238 N.C. at 327,
77 S.E.2d at 919. Therefore,
the short-form indictment was sufficient to vest the trial court with subject-matter
jurisdiction over this charge.
We hold that the use of the term “slay” instead of “murder” in an indictment
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Opinion of the Court
that also includes an allegation of “malice aforethought” complies with the relevant
constitutional and statutory requirements for valid murder offense indictments and
serves its functional purposes with regard to both the defendant and the court. See
id. at 327,
77 S.E.2d at 919; see also State v. Rankin, ___ N.C. ___, ___,
821 S.E.2d
787, 790-91 (2018) (“The law disfavors application of rigid and technical rules to
indictments; so long as an indictment adequately expresses the charge against the
defendant, it will not be quashed.”). Accordingly, we reverse the Court of Appeals’
decision on this issue and reinstate the judgment entered upon defendant’s conviction
for attempted first-degree murder.
II. Remarks during the State’s Closing Argument
Defendant contends that the Court of Appeals erred in failing to find that the
trial court should have intervened ex mero motu during the State’s closing argument.
Specifically, defendant draws our attention to comments made to the jury by the
prosecutor that defendant “had the specific intent to kill many people, over a 20-year
period of time,” and that if the jury did not convict, defendant would be “unleashed,
yet again, onto our streets.” Defendant also argues that there was gross impropriety
in the State’s claims to the jury that defendant’s potentially delusional beliefs were a
valid foundation upon which the jury could find that defendant possessed the
requisite specific intent for the commission of the offense of attempted first-degree
murder. Defendant asserts that these statements were so grossly improper and
prejudicial that he is entitled to a new trial. After careful consideration, we cannot
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Opinion of the Court
fault the trial court in declining to interject itself into the State’s closing argument
when defendant himself chose to refrain from objecting to these remarks at trial.
Accordingly, we affirm the Court of Appeals on this issue.
This Court noted in State v. Jones, 355 N.C. 117, 127,
558 S.E.2d 97, 103
(2002):
A lawyer’s function during closing argument is to
provide the jury with a summation of the evidence, Herring
v. New York, 422 U.S. 853, 861-62,
45 L. Ed. 2d 593, 599-
600 (1975), which in turn “serves to sharpen and clarify the
issues for resolution by the trier of fact,” id. at 862,
45 L.
Ed. 2d at 600, and should be limited to relevant legal
issues. See State v. Allen, 353 N.C. 504, 508-11,
546 S.E.2d
372, 374-76 (2001).
Regarding closing arguments made to the jury during criminal trials, the North
Carolina General Statutes provide that “an attorney may not: (1) become abusive,
(2) express his personal belief as to the truth or falsity of the evidence, (3) express his
personal belief as to which party should prevail, or (4) make arguments premised on
matters outside the record.” Jones,
355 N.C. at 127,
558 S.E.2d at 104 (discussing
N.C.G.S. § 15A-1230(a) (1999)). Through our precedent, this Court has elaborated on
the statutory provisions governing closing arguments and emphasized that closing
arguments “must: (1) be devoid of counsel’s personal opinion; (2) avoid name-calling
and/or references to matters beyond the record; (3) be premised on logical deductions,
not on appeals to passions or prejudice; and (4) be constructed from fair inferences
drawn only from evidence properly admitted at trial.” Id. at 135,
558 S.E.2d at 108.
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Opinion of the Court
Nonetheless,
[w]here a defendant fails to object to the closing
arguments at trial, defendant must establish that the
remarks were so grossly improper that the trial court
abused its discretion by failing to intervene ex mero motu.
“To establish such an abuse, defendant must show that the
prosecutor’s comments so infected the trial with unfairness
that they rendered the conviction fundamentally unfair.”
State v. Davis, 349 N.C. 1, 23,
506 S.E.2d 455, 467 (1998),
cert. denied, 526 U.S. 1161,
144 L. Ed. 2d 219 (1999).
“ ‘[T]he impropriety of the argument must be gross indeed
in order for this Court to hold that a trial judge abused his
discretion in not recognizing and correcting ex mero motu
an argument which defense counsel apparently did not
believe was prejudicial when he heard it.’ ” State v. Hipps,
348 N.C. 377, 411,
501 S.E.2d 625, 645 (1998) (quoting
State v. Johnson, 298 N.C. 355, 369,
259 S.E.2d 752, 761
(1979)), cert. denied, 525 U.S. 1180,
143 L. Ed. 2d 114
(1999).
State v. Mitchell, 353 N.C. 309, 324,
543 S.E.2d 830, 839 (2001), cert. denied,
534 U.S.
1000,
151 L. Ed. 2d 389 (second alteration in original); see also State v. Anthony,
354
N.C. 372, 427,
555 S.E.2d 557, 592 (2001) (“[O]nly an extreme impropriety on the part
of the prosecutor will compel this Court to hold that the trial judge abused his
discretion in not recognizing and correcting ex mero motu an argument that defense
counsel apparently did not believe was prejudicial when originally spoken.” (quoting
State v. Richardson,
342 N.C. 772, 786,
467 S.E.2d 685, 693, cert. denied,
519 U.S.
890,
136 L. Ed. 2d 160 (1996))), cert. denied,
536 U.S. 930,
153 L. Ed. 2d 791 (2002).
While these cited cases and their progeny do not in any way diminish the professional,
ethical expectations for prosecutors in making their final arguments to the fact-
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Opinion of the Court
finder, they serve to establish the standards and considerations by which the actions
or inactions of the neutral trial judge must be measured during the parties’ closing
arguments in a criminal trial, especially when the party challenging the propriety of
the opposing party’s closing argument in such a criminal trial is silent during the
rendition of the disputed remarks, but on appeal challenges the trial judge’s
simultaneous silence. In circumstances in which a defendant in his or her role as an
obvious interested party in a criminal trial fails to object to the other party’s closing
statement at trial, yet assigns as error the detached trial judge’s routine taciturnity
during closing arguments in the absence of any objection, this Court has consistently
viewed the appealing party’s burden to show prejudice and reversible error as a heavy
one. See Anthony, 354 N.C. at 427,
555 S.E.2d at 592.
Even when a reviewing court determines that a trial court erred in failing to
intervene ex mero motu, a new trial will be granted only if “the remarks were of such
a magnitude that their inclusion prejudiced defendant, and thus should have been
excluded by the trial court.” Jones, 355 N.C. at 131,
558 S.E.2d at 106 (citations
omitted). “[T]o warrant a new trial, the prosecutor’s remarks must have perverted or
contaminated the trial such that they rendered the proceedings fundamentally
unfair.” State v. Mann,
355 N.C. 294, 307-08,
560 S.E.2d 776, 785 (citation omitted),
cert. denied,
537 U.S. 1005,
154 L. Ed. 2d 403 (2002). In assessing whether this level
of prejudice has been shown, the challenged statements must be considered “in
context and in light of the overall factual circumstances to which they refer.” State
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v. Alston, 341 N.C. 198, 239,
461 S.E.2d 687, 709 (1995) (citing State v. Pinch,
306
N.C. 1, 24,
292 S.E.2d 203, 221, cert. denied,
459 U.S. 1056,
74 L. Ed. 2d 622 (1982),
and overruled on other grounds by, inter alia, State v. Benson,
323 N.C. 318,
372
S.E.2d 517 (1988)), cert. denied,
516 U.S. 1148,
134 L. Ed. 2d 100 (1996).). Thus,
“[o]nly when it finds both an improper argument and prejudice will this Court
conclude that the error merits appropriate relief.” State v. Huey,
370 N.C. 174, 179,
804 S.E.2d 464, 469 (2017) (emphasis added) (citing Jones,
355 N.C. at 134-35,
558
S.E.2d at 108-09).
In applying the analysis enunciated in the cited case law to determine whether
or not there was any impropriety in the prosecutor’s closing argument, defendant
emphasizes the “substantial evidence of [defendant’s] mental illness and inability to
form specific intent” and contends that the challenged remarks by the prosecution
“lacked a reasonable basis in the record and appealed to the passions and prejudices
of the jury.” Before this Court,2 defendant identifies three portions of the State’s
closing argument as grossly improper.
In the first instance, the prosecutor told the jury that defendant’s mental
health history
is ripe with examples of violence, and homicidal ideations,
the desire and intent to kill other people. The mental
2 In the Court of Appeals, defendant challenged additional portions of the State’s
closing argument, but defendant did not petition this Court for review of the Court of Appeals’
ruling on those portions, and therefore we do not address them here.
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Opinion of the Court
illness, if he did in fact suffer one, it didn’t prevent him
from forming the specific intent to kill. He had the specific
intent to kill many people, over a 20-year period of time.
That mental illness continued to come back up through all
of these diagnoses, through all of these hospitalizations.
(Emphasis added).
Defendant characterizes the Court of Appeals’ review of these comments, in
which it opined that “each [challenged] term was referenced during testimony and
has a basis in the record,” Tart, 2017 WL 6002771, at 4, as “wrongly conflat[ing]” the
legal concept of “specific intent” with the psychiatric concept of “homicidal ideation.”
The only definition of “homicidal ideation” given to the jury at trial came from
Herfkens, who testified as an expert on defendant’s behalf about defendant’s past
mental health issues and who described “homicidal ideation” as “the intent, the desire
to kill another person.” She then testified that defendant’s “homicidal ideation”
appeared “throughout his mental health records.” Dr. Richard Blanks, an expert in
forensic psychiatry who appeared on behalf of the State, testified that defendant’s
“[t]houghts and desires to kill other people” were a “consistent theme” in his hospital
admission records. In addition, defendant told Cassidy during the stabbing that
defendant was “going to kill” Cassidy. The mens rea element of specific intent to kill
has been defined in our legal system as being existent when a “defendant intended
for his action to result in the victim’s death.” State v. Phillips,
365 N.C. 103, 141,
711
S.E.2d 122, 149 (2011) (State v. Keel,
333 N.C. 52, 58,
423 S.E.2d 458, 462 (1992)),
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cert. denied, 565 U.S. 1204,
182 L. Ed. 2d 176 (2012). Further, the prosecutor’s
summation comments must be considered in context and in light of the overall factual
circumstances to which they refer, as required by Alston, which here equated to the
State’s rebuttal of defendant’s staunchest position at trial that his mental illness
precluded him from forming the specific intent to kill Cassidy as required to sustain
a conviction for attempted first-degree murder or assault with a deadly weapon with
intent to kill or both. Indeed, the prosecutor framed these disputed statements
during the State’s closing argument in a manner that served to sharpen and clarify
the issues for the jury, as characterized in Herring, by explaining that any mental
illness defendant had “didn’t prevent him from forming the specific intent to kill.” In
this context and in light of the evidence adduced at trial that included references
adopted by the prosecutor that were gleaned from expert testimony, the first portion
of the State’s closing argument challenged by defendant did not constitute gross
impropriety so as to require the trial court to intervene ex mero motu. This passage
from the prosecutor’s closing statement was premised on matters contained in the
record in compliance with Jones and was consistent with the specific guidelines for
closing arguments as set out by the General Assembly in N.C.G.S. § 15A-1230(a) and
reiterated in Jones.
In the second excerpt from the State’s closing argument denounced by
defendant, the prosecutor argued:
You are, in a very real way, the conscience of our
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community. You are the ones who are standing on the wall.
You’re the ones who are standing up for [the victim,
Cassidy], who, for the last 10 years of his life, has stood up
for the poor, for the marginalized, for the forgotten, and for
the hopeless.
You can stand up for him. You can protect our
communities and ensure that a homicidal, manipulative,
sociopath, is not unleashed, yet again, onto our streets.
. . . You can protect our communities and ensure that a
homicidal, manipulative, sociopath, is not unleashed, yet
again, onto our streets.
I’m not asking you to do anything other than follow the law.
(Emphasis added). Defendant contends that the reference to being “unleashed” was
inflammatory and prejudicial. In addressing this statement, the Court of Appeals
noted that appellate courts “have upheld other similar ‘hyperbolic expression[s] of the
State’s position that a not guilty verdict, in light of the evidence of guilt, would be an
injustice.’” Tart, 2017 WL 6002771, at *4 (alteration in original) (first quoting State
v. Pittman,
332 N.C. 244, 262,
420 S.E.2d 437, 447 (1992) (holding, as described by
the Court of Appeals, Tart,
2017 WL 6002771, at *4, that “the prosecutor's statement
indicating if the defendant was not convicted ‘justice in Halifax County will be dead’
was not improper”); and then citing State v. Brown,
177 N.C. App. 177, 189-90,
628
S.E.2d 787, 794-95 (2006)). We agree with the lower appellate court that this type of
vivid communication to the jury falls within the realm of permissible hyperbole on
the part of the State in line with our precedent. See State v. Braxton,
352 N.C. 158,
203,
531 S.E.2d 428, 454 (2000) (opining that the State’s argument that the
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defendant’s self-defense claim was “vomit on the law of North Carolina” was
permissible hyperbole), cert. denied, 531 U.S. 1130,
148 L. Ed. 2d 797 (2001); see also
State v. Harvell,
334 N.C. 356, 363,
432 S.E.2d 125, 129 (1993) (stating that failure
to convict the defendant would amount to “a wound that’s going to fester” was
permissible hyperbole).
The final passage of the State’s closing argument which defendant argues is
grossly improper and prejudicial concerns the prosecutor’s reference to defendant’s
potentially delusional, but factually plausible, motives for stabbing Cassidy. This
portion of the prosecutor’s summation would encompass defendant’s claims that
Cassidy allowed defendant’s medication to be stolen and told defendant to put
defendant’s belongings away, that Cassidy had disrespected defendant, and that
Cassidy had shot defendant when defendant was a child. Defendant posits now that
there is no evidence in the trial record to show that these events actually occurred
and therefore “[w]holly imagined events cannot create a rational basis for a
defendant’s actions.” Following a competency hearing, the trial court found
defendant to be competent to stand trial for the charged offenses. During the trial,
references were made to these events through testimonial evidence that is contained
in the record. Based on the evidence generated during the trial and the accompanying
issues, defendant’s mental state was argued to the jury by the State and the defense
in their respective closing arguments. Later, the jury was instructed on the concept
of diminished capacity and its possible effect on the ability to form the specific intent
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STATE V. TART
Opinion of the Court
to kill. As previously noted, the principles espoused by this Court in Jones, Mitchell,
and Alston are jointly invoked so as to establish that the prosecutor’s closing
argument in this arena of the case is substantiated by the trial record’s context, that
the prosecutor’s statements about the existence of defendant’s motives to harm
Cassidy served to sharpen and clarify the issues for the jurors as the triers of fact,
and that ultimately the trial court was not under a duty to intervene ex mero motu
during the State’s closing argument because the summation was not grossly
improper.
In light of the facts and circumstances of this case, the trial record, the legal
theories presented by the parties, and the applicable law, we cannot conclude that
the trial court erred in declining to interject itself into the State’s closing argument
while defendant chose to sit silently and raise no objection to the now-challenged
remarks. The portions of the State’s summation that have been addressed before this
Court do not rise to the level of those previously found in our case decisions to be so
grossly improper as to require ex mero motu action by the trial court. Accordingly,
we affirm the Court of Appeals’ decision on this issue.
Conclusion
In sum, we reverse the determination by the Court of Appeals regarding the
sufficiency of the short-form indictment and reinstate the judgment entered upon
defendant’s conviction for attempted first-degree murder. We affirm the portion of
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STATE V. TART
Opinion of the Court
the Court of Appeals’ decision which concludes that the trial court did not abuse its
discretion in declining to intervene ex mero motu during the State’s closing argument.
AFFIRMED IN PART; REVERSED IN PART.
Justice DAVIS did not participate in the consideration or decision of this case.
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Justice EARLS concurring in part and dissenting in part.
I agree with the majority’s holding that “the indictment in this case was
sufficient to vest the trial court with subject matter jurisdiction to try defendant for
attempted first-degree murder.” Nonetheless, a new trial is warranted because the
prosecutor’s statements to the jury in this case are similar to statements this Court
has previously held to be improper and to constitute prejudicial error necessitating a
new trial, even when not objected to at trial. In addition, the trial judge should have
intervened ex mero motu during the prosecutor’s closing argument when the
prosecutor urged the jury to convict Jermaine Antwan Tart based not on whether Mr.
Tart had the requisite mental intent at the time of the offense but rather out of fear
that as a “homicidal, manipulative, sociopath” who “had the specific intent to kill
many people, over a 20-year period of time,” he would be “unleashed, yet again, onto
our streets” to kill innocent people. Thus, I would reverse the decision of the Court
of Appeals and remand for a new trial.
The prosecutor’s closing argument was improper in two significant respects,
each one independently sufficient to justify a new trial. Together they assuredly
dictate that result. The first impropriety was the prosecutor’s inflammatory name-
calling and fear mongering, including calling defendant “a homicidal sociopath” four
times during the closing argument. The second impropriety was the prosecutor’s
reliance on events that all the evidence showed never happened as “factual”
motivations supposedly leading defendant to decide to kill Mr. Cassidy. Take away
STATE V. TART
Earls, J., concurring in part, and dissenting in part
these parts of the prosecution’s closing argument and all that is left is the prosecutor’s
appropriate description of the attack itself, summary of defendant’s actions
immediately after the attack, and discussion of the jury instructions. The
improprieties that occurred were not mere throwaway lines in a long and proper
argument; they were the heart of the prosecutor’s presentation to the jury. The
nature of the improper statements “rendered the proceedings fundamentally unfair.”
State v. Mann, 355 N.C. 294, 308,
560 S.E.2d 776, 785 (citation omitted), cert. denied,
537 U.S. 1005 (2002).
1. Standard of Review
Two different standards apply when reviewing cases involving improper
closing arguments, depending on whether there was an objection at trial. If the
defendant made a timely objection, the question is “whether the trial court abused its
discretion by failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131,
558
S.E.2d 97, 106 (2002). The standard of review for improper closing arguments when,
as in this case, the defendant fails to object is “whether the argument complained of
was so grossly improper that the trial court erred in failing to intervene ex mero
motu.” State v. Trull,
349 N.C. 428, 451,
509 S.E.2d 178, 193 (1998), cert. denied,
528
U.S. 835 (1999).
This Court has explained that “[w]hen the prosecutor becomes abusive, injects
his personal views and opinions into the argument before the jury, he violates the
rules of fair debate and it becomes the duty of the trial judge to intervene to stop
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
improper argument and to instruct the jury not to consider it.” State v. Smith, 279
N.C. 163, 166,
181 S.E.2d 458, 460 (1971). In Smith the Court concluded that “[i]n
these circumstances prejudice to the cause of the accused is so highly probable that
we are not justified in assuming its non-existence.”
Id. at 166,
181 S.E.2d at 460
(quoting Berger v. United States,
295 U.S. 78, 89 (1935)). In reviewing statements
made during closing arguments, this Court does not examine the statements in
isolation but rather “give[s] consideration to the context in which the remarks were
made and the overall factual circumstances to which they referred.” State v. Dalton,
369 N.C. 311, 316,
794 S.E.2d 485, 489 (2016) (quoting State v. Ward,
354 N.C. 231,
265,
555 S.E.2d 251, 273 (2001)). “Improper remarks may be prejudicial either
because of their individual stigma or because of the general tenor of the argument as
a whole.” Jones,
355 N.C. at 133,
558 S.E.2d at 108.
2. Improper Name-Calling and Appeals to Prejudice
There can be no doubt that in this case the only issue the jury needed to
determine was whether Mr. Tart had the requisite mental capacity to intend to kill
Mr. Cassidy. There was no dispute over whether Tart was the person who attacked
Cassidy; Tart agreed that there should not be a self-defense instruction, and both the
prosecution and the defense argued to the jury in closing that the only question for
them was Mr. Tart’s state of mind at the time of the attack. The only issue for the
jury was whether defendant was delusional and unable to form the intent to kill, as
the defense contended: “This whole case turns on the capacity of Mr. Tart’s mind,
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
around 8 o’clock at night at First Presbyterian Church in downtown Winston-Salem
on March 2nd, 2014. Was he capable of forming the specific intent to kill Mr. Cassidy?
. . . [W]as his mind all there enough for him to be able to?” Or was he intending to
kill Mr. Cassidy with premeditation, as the prosecution argued: “The intent, his
intent to kill Richard Cassidy is written all over this case. It is written in blood. His
intent to kill Richard Cassidy is a stain on the sidewalk in front of First Presbyterian
Church.” Additionally, the court instructed the jury on the issue of lack of mental
capacity as it related to both the attempted first-degree murder charge and the charge
of assault with a deadly weapon with intent to kill inflicting serious injury.1
In these circumstances, the prosecutor’s repeated statements that Tart is a
“violent, manipulative, homicidal sociopath” were not intended to shed light on
whether he was indeed delusional at the time of the attack but rather to make the
point that defendant needed to be incarcerated so he would not harm anyone else.
The prosecutor’s statements “were purposely intended to deflect the jury away from
its proper role as a fact-finder by appealing to its members’ passions and/or
prejudices,” causing the remarks to be prejudicial and grossly improper. Jones, 355
N.C. at 134,
558 S.E.2d at 108. The prosecutor hammered home this theme by
referencing the testimony of Dr. Herfkens who, it must be said, had examined Tart
1 For example, with regard to the attempted murder charge, the jury was instructed,
“If, as a result of lack of mental capacity, the Defendant did not have the specific intent to
kill Mr. Cassidy, formed after premeditation and deliberation, the Defendant is not guilty of
Attempted First Degree Murder.”
-4-
STATE V. TART
Earls, J., concurring in part, and dissenting in part
and concluded that “at the time of the crime, Jermaine was acting under the influence
of a severe mental illness that did not allow him to properly understand reality and
the significance of his alleged actions.” Nevertheless, the prosecutor used that
evidence to make this argument to the jury:
But what she did consider is the Defendant’s mental health
history, a 20-year mental health history.
Members of jury [sic], that is ripe with examples of
violence, and homicidal ideations, the desire and intent to
kill other people. The mental illness, if he did in fact suffer
one, it didn’t prevent him from forming the specific intent
to kill. He had the specific intent to kill many people, over
a 20-year period of time. That mental illness continued to
come back up through all of these diagnoses, through all of
these hospitalizations.
Antisocial Personality Disorder, a disorder
characterized by violence. By deceit. By manipulation. By
an inability to conform your conduct to the confines of the
law. . . . You know what a synonym is for someone who
suffers from Antisocial Personality Disorder? A sociopath.
So the Defendant is a violent, manipulative,
homicidal sociopath. That’s his diagnosis. Based on that.
They want you to just give him a slap on the wrist for this.
Because he’s been diagnosed as a homicidal sociopath, we’ll
let you do this.
....
. . . You can protect our communities and ensure that a
homicidal, manipulative, sociopath, is not unleashed, yet
again, onto our streets.
The prosecutor set up this argument to use the pejorative term “sociopath” by
referencing and asking about the term in his cross-examination of Dr. Herfkens, and
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
in his questioning of Dr. Blanks when called by the State to rebut the testimony of
Dr. Herfkens, and he persisted in using the word even though both experts testified
that the term is no longer used by medical professionals.
Notably, the prosecutor used a tactic similar to one that this Court found
improper in State v. Dalton, 369 N.C. at 314, 320,
794 S.E.2d at 488, 491, in which
the prosecutor attempted to dissuade the jury from finding the defendant not guilty
by reason of insanity because such a verdict could result in the defendant “be[ing]
back home in less than two months.” (Emphasis omitted.) In Dalton, the evidence
presented at trial concerning the defendant’s severe mental illness did not support
the prosecutor’s assertions that the defendant would “very possibl[y]” be released in
fifty days.
Id. at 318,
794 S.E.2d at 490. Nevertheless, as in Dalton, the statement
here that “[y]ou can protect our communities and ensure that a homicidal,
manipulative, sociopath, is not unleashed, yet again, onto our streets” is also
prejudicial because the remark was not directed at the issue the jury needed to decide
under the law but rather was intended to create the fear of future harm. See, e.g.,
id.
at 319,
794 S.E.2d at 490 (Regarding defendants with mental health issues,
prosecutors must remember that “[t]he level of possibility or probability of release is
not the salient issue; rather, it is the evidence and all reasonable inferences that can
be drawn from that evidence which govern counsel’s arguments in closing.”). Just as
with the insanity defense at issue in Dalton, the diminished capacity defense requires
the defendant’s own attorney to provide evidence of the defendant’s mental illness.
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
See, e.g., id. at 320,
794 S.E.2d at 491 (Jackson, J., concurring) (“Because the
defendant has the burden of proving the affirmative defense of insanity, even the
defendant’s own attorney may provide evidence that the defendant’s mental illness
caused him or her to engage in conduct that a jury might find shocking or
reprehensible.” (citing State v. Wetmore,
298 N.C. 743, 746-47,
259 S.E.2d 870, 873
(1979))). Here there is considerable evidence that Mr. Tart was incapable of knowing
right from wrong at the time of the crime: for example, his assertions that Mr. Cassidy
had killed him in 1989 and more recently arranged for others to kill him again, and
his statements to police right after the incident that he heard Mr. Cassidy say he was
going to have Mr. Tart killed and that Cassidy had shot him in the head when he was
eight years old. Thus, as in Dalton, “a juror who believes the evidence of [diminished
capacity] might nevertheless be motivated to find the defendant guilty based on fear
for the safety of the community.” Id. at 322,
794 S.E.2d at 492 (citing State v.
Hammonds,
290 N.C. 1,
224 S.E.2d 595 (1976)).
The prosecutor’s rhetoric in his closing argument likely sparked fear in the
minds of the jurors that defendant was like a wild animal who, if “unleashed . . . onto
[the] streets,” would again try to kill someone. “This Court does not condone
comparisons between defendants and animals.” State v. Roache, 358 N.C. 243, 297,
595 S.E.2d 381, 416 (2004). The prosecutor’s use of language more identified with an
animal, such as “unleashed,” dehumanized defendant and was only heightened by
the prosecutor’s repeated, derogatory name-calling that characterized defendant as a
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
homicidal sociopath. Using this theme of fear, the prosecutor “improperly [led] the
jury to base its decision not on the evidence relating to the issues submitted, but on
misleading characterizations, crafted by counsel, that [were] intended to undermine
reason in favor of visceral appeal.” Id. at 297-98,
595 S.E.2d at 416 (first alteration
in original) (quoting Jones,
355 N.C. at 134,
558 S.E.2d at 108). Rather than mere
“hyperbole,” these statements were improper and highly prejudicial in the
circumstances of this case.
The prosecutor’s further assertion that defendant had the specific intent to kill
many people over a twenty-year period was drawn in part from an expert witness’s
report that defendant had murderous ideations that could be defined as an intent.
The prosecutor then took this information and manipulated it to suggest to the jury
that defendant had been roaming the streets looking for someone to kill and would
do so again. As this Court observed in State v. Miller, 271 N.C. 646, 657,
157 S.E.2d
335, 344 (1967), “[d]efendants in criminal prosecutions should be convicted upon the
evidence in the case, and not upon prejudice created by abuse administered by the
solicitor in his argument.”
This Court has previously found less derogatory statements about a defendant
to be plain error justifying a new trial, even when the defendant did not object at
trial. In describing the defendant in Smith, the prosecutor stated he was “lower than
the bone belly of a cur dog.” 279 N.C. at 165,
181 S.E.2d at 459. This Court granted
the defendant a new trial and noted that by failing to intervene in the prosecutor’s
-8-
STATE V. TART
Earls, J., concurring in part, and dissenting in part
argument, the trial judge “was derelict in his duty.” Id. at 167,
181 S.E.2d at 461. In
State v. Matthews,
358 N.C. 102, 111,
591 S.E.2d 535, 542 (2004), this Court
concluded that counsel engaged in improper name-calling by referring to the
defendant’s theory of the case as “bull crap.” (Emphasis omitted.)
In Jones the prosecutor in his closing argument compared the Columbine
school shootings and the Oklahoma City bombing with the defendant’s crime, which
this Court noted was “a thinly veiled attempt to appeal to the jury’s emotions.” 355
N.C. at 132, 558 S.E.2d at 107. The Court held the closing arguments to be improper
and prejudicial, and vacated the defendant’s death sentence because the trial judge
failed to intervene.
Id. at 132-35,
558 S.E.2d at 107-09. Indeed, the Court there
noted: “[T]his Court is mindful of the reluctance of counsel to interrupt his adversary
and object during the course of closing argument for fear of incurring jury disfavor.”
Id. at 129,
558 S.E.2d at 105; see also State v. Moss,
180 W. Va. 363, 368,
376 S.E.2d
569, 574 (1988) (finding that a prosecutor’s statements that a defendant was a
“psychopath” and needed to be convicted of first-degree murder so that he would
“never be released to slaughter women and children” in the community were plain
error and denied the defendant his fundamental right to a fair trial).
The statements made by the State in its closing argument here were grossly
improper and required the trial court to intervene ex mero motu. This Court has long
established that a defendant has a “right to a fair and impartial trial . . . . where
passion and prejudice and facts not in evidence may have no part.” State v. Smith,
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
240 N.C. 631, 636,
83 S.E.2d 656, 659 (1954). It is within the court’s power and “is
the duty of the judge to interfere when the remarks of counsel are not warranted by
the evidence, and are calculated to mislead or prejudice the jury.” Id. at 635, 83
S.E.2d at 659 (citations omitted). The purpose of this protection is “to safeguard the
rights of litigants and to be as nearly sure as possible that each party shall stand
before the jury on equal terms with his adversary, and not be hampered in the
prosecution or defense of his cause, by extraneous considerations, which militate
against a fair hearing.” Id. at 635, 83 S.E.2d at 659 (quoting Starr v. S. Cotton Oil
Co.,
165 N.C. 587, 595,
81 S.E. 776, 779 (1914)). It is imperative that the prosecutor
remember “that the State’s interest ‘in a criminal prosecution is not that it shall win
a case, but that justice shall be done.’ ” Matthews,
358 N.C. at 112,
591 S.E.2d at 542
(quoting Berger,
295 U.S. at 88).
3. Referring to Delusions as Fact
The second impropriety in the prosecutor’s argument occurred when he
suggested that delusional thoughts and statements about things that never happened
could have rationally led Jermaine Tart to form the requisite specific intent to kill
Mr. Cassidy. At two different times in his closing argument, the prosecutor referred
to events that Cassidy testified did not happen, and he urged the jury to find that
those events explained why Tart’s attack on Cassidy was rationally motivated by a
premeditated intent to kill untouched by diminished mental capacity. The prosecutor
referred to each of these things that never happened as a “factual, non-delusion
-10-
STATE V. TART
Earls, J., concurring in part, and dissenting in part
reason, or motivation for doing what he did.” It is improper for counsel to make
arguments that are not based on reasonable inferences that may be drawn from the
evidence admitted at trial. See State v. Anderson, 322 N.C. 22, 37,
366 S.E.2d 459,
468 (1988).
There is simply no support for the proposition that events that never happened,
such as Cassidy stealing Tart’s medicine, which Cassidy testified never occurred, or
Cassidy not giving Tart his telephone number, which again, Cassidy testified never
happened, could appropriately be called “factual” and “non-delusional.” Wholly
imagined events cannot support a reasonable inference that defendant acted
rationally. The mere fact that Mr. Tart tragically chose to act on his delusions is not
proof of specific intent. See Roache, 358 N.C. at 282,
595 S.E.2d at 407. Thus, the
prosecutor improperly implied that events that never occurred could be “factual” and
could therefore explain a rational intent to kill.
The majority dismisses this argument by pointing out that the trial court found
defendant to be competent to stand trial. This is completely beside the point. The
issue is whether, at the time of this assault, Mr. Tart was suffering from a mental
illness such that he lacked the mental capacity to form the requisite intent to kill
with premeditation. Even the prosecution admits that defendant’s mental state on
the night of 2 March 2014 is what is at issue in this case. That defendant
subsequently received treatment, took medications, and ultimately was found
competent to stand trial answers a completely different question than whether he
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STATE V. TART
Earls, J., concurring in part, and dissenting in part
suffered from a diminished mental capacity on the night of this incident. For the
prosecutor to argue that things which never happened could be “factual” and could
explain Tart’s actions was an improper inference from the evidence presented at the
trial of this case.
“In sum, improper closing arguments cannot be tolerated.” Matthews, 358 N.C.
at 112,
591 S.E.2d at 542. For all these reasons, and taking into account all the
improper statements made here, I must respectfully dissent from the portion of the
majority opinion that concludes the trial court did not abuse its discretion in declining
to intervene ex mero motu during the State’s closing argument. The trial court should
have stopped the prosecutor’s use of improper and prejudicial statements in closing
argument that were designed to inflame the jury’s fears, direct its attention away
from the issue to be decided, and cause jurors to infer facts contrary to those in
evidence. A new, fair trial is warranted.
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