            IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-100

                              Filed: 6 October 2015

Mecklenburg County, No. 11 CRS 246472

STATE OF NORTH CAROLINA,

            v.

DERRICK AUNDRA HUEY, Defendant.


      Appeal by Defendant from judgment entered 18 July 2014 by Judge Eric L.

Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12

August 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Alvin W. Keller,
      Jr., for the State.

      Sarah Holladay for Defendant.


      McGEE, Chief Judge.


      Derrick Aundra Huey (“Defendant”) shot and killed James Love (“Love”) on 13

October 2011, at approximately 11:00 p.m.      According to Defendant’s evidence,

Defendant has an IQ of 61, and his mental faculties were additionally impaired as a

result of an attempted suicide by automobile crash, resulting in head trauma.

Defendant has reported hallucinations and has been treated with antipsychotic and

antidepressant medications.

      Further, according to Defendant’s evidence, on 13 October 2011, he was

attempting to purchase drugs from an unidentified man when Love, with whom
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Defendant had had altercations in the past, approached and threatened Defendant

and the unidentified man. Earlier that same evening, Love had also threatened

Defendant in the apartment of Defendant’s girlfriend. According to Defendant, Love

hit Defendant in the head, and threatened Defendant with what Defendant believed

was a knife. The unidentified man drew a handgun while Love continued to threaten

Defendant. Defendant grabbed the weapon from the unidentified man and fired a

warning shot. When the warning shot did not stop Love, Defendant fired another

shot that struck Love, killing him.      Love was known to carry a box cutter for

protection, and a box cutter was found near Love’s body. According to Defendant, the

unidentified man took the gun and ran away. At trial, Defendant’s psychological

expert witness, Dr. George Patrick Corvin (“Dr. Corvin”), testified, inter alia,

concerning Defendant’s low I.Q. and brain trauma, and how these conditions affected

Defendant’s decision-making process.

      The State presented evidence that Defendant called 911 and reported the

shooting, stating: “I shot a motherf*****. I . . . I hope I killed that son of a bitch[,]”

but Defendant did not identify himself. A neighbor reported seeing Defendant drive

away from the scene shortly after the shooting, but Defendant returned very shortly

thereafter. When initially interviewed by the police, Defendant denied having shot

Love, claiming that the unidentified man shot Love.           Defendant gave multiple

accounts of the events of that night. After Defendant listened to the 911 call, he



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admitted that he shot Love. At trial, the State argued that Defendant again changed

his position before trial, and that Defendant intended to claim he did not shoot Love.

According to the State, Defendant maintained this position until approximately four

months before the trial. The State argued that only after Defendant sat down with

his attorney and Dr. Corvin, did Defendant decide to again admit to shooting Love,

and to argue that Love was shot in self-defense.

      Defendant’s trial on first-degree murder commenced on 7 July 2014. The jury

found Defendant guilty of voluntary manslaughter on 18 July 2014. Defendant was

sentenced to seventy-three months’ to ninety-seven months’ imprisonment.

Defendant appeals.

                                           I.

      In Defendant’s first argument, he contends “the trial court erred by failing to

intervene ex mero motu when the State made improper statements during closing

arguments[.]” We agree.

      Our Supreme Court has recently reminded us that:

             During closing arguments, prosecutors are barred by
             statute from “becom[ing] abusive, inject[ing their] personal
             experiences, [and] express[ing their] personal belief as to
             the truth or falsity of the evidence or as to the guilt or
             innocence of the defendant.” N.C.G.S. § 15A-1230 (2014).
             Within those confines, however, we have long recognized
             that “‘generally, prosecutors are given wide latitude in the
             scope of their argument and may argue to the jury the law,
             the facts in evidence, and all reasonable inferences drawn
             therefrom.’” This latitude is reflected in our deferential


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             standards of review. When opposing counsel objects during
             a closing argument, we review for abuse of discretion.
             When there is no objection, we review for gross
             impropriety. In all cases, we view the remarks “in context
             and in light of the overall factual circumstances to which
             they refer.”

             Judicial deference, however, is not unlimited.            In
             particular, “we have found grossly improper the practice of
             flatly calling a witness or opposing counsel a liar when
             there has been no evidence to support the allegation.” [See]
             State v. Locklear, 294 N.C. 210, 217, 241 S.E.2d 65, 70
             (1978) (“It is improper for a lawyer to assert his opinion
             that a witness is lying. He can argue to the jury that they
             should not believe a witness, but he should not call him a
             liar.” (citations and internal quotation marks omitted)).

State v. Hembree, __ N.C. __, __, 770 S.E.2d 77, 88-89 (2015) (citations omitted).

      In Hembree, the State argued the following in its closing argument:

             He [defendant] has manipulated his attorneys. Don’t let
             him manipulate you. Don’t let him work the system again.
             . . . . [Y]ou heard video confessions of how he killed Heather
             Catterton and Randi Saldana. And then the defense
             started, they started putting up these smoke screens,
             started to try to confuse you.

             ....

             [A]t no point, no point in the last 18 months since this has
             been pending trial, has he ever recanted killing Heather or
             Randi. Never. Not until two years later when he could look
             at everything, when he can study the evidence, when he
             can get legal advi[c]e from his attorneys, does he come up
             with this elaborate tale as to what took place.

             ....

             Two years later, after he gives all these confessions to the


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            police and says exactly how he killed Heather and Randi
            Saldana . . . the defense starts. The defendant, along with
            his two attorneys, come together to try and create some sort
            of story.

             ....

            Think back to December 5th of 2009 when he knew
            nothing, when he had no legal advice; consistently,
            voluntarily told the police everything, and it was consistent
            with what the evidence showed. . . . For hours you watched
            this man confess to killing Heather and Randi Saldana,
            and now, after 18 months to two years, the defense begins
            and they put up smoke screens and they tried to confuse
            you? . . . We’ve got two women dead, and he killed them.

Id. at __, 770 S.E.2d at 89. Our Supreme Court then held:

            In context, the import of these arguments is clear: The
            State argued to the jury, not only that defendant had
            confessed truly and recanted falsely, but that he had lied
            on the stand in cooperation with defense counsel. Whether
            or not defendant committed perjury, there was no evidence
            showing that he had done so at the behest of his attorneys.
            Accordingly, we hold that the prosecutor’s statements to
            this effect were grossly improper, and the trial court erred
            by failing to intervene ex mero motu.

Id.

      In the case now before this Court, the State argued the following in closing:

            Innocent men don’t lie. Innocent men don’t lie because they
            don’t have to. The truth is not something you practice.
            Telling the truth is not something you have to rehearse.
            The truth just is, and the truth in this case is James Love
            was shot because of an insult.

            ....



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[N]ow, up until about four months ago [D]efendant had
planned to come in here and tell you all he didn’t do it; he
changed his mind, and he’s now testified under oath that
he is, in fact, the man who fatally shot James Love[.]

....

I’m going to say this again, innocent men don’t lie, they
simply don’t have to. The truth shall set you free unless,
of course, you’re on trial for a murder that you committed.

....

When you look back at 2011 you’ll be able to find the truth.

You’re not going to find it over there, not anymore.
[D]efendant is not going to give you the truth. He’s spent
years planning to come in here to tell you he didn’t do it,
and then in the past four months he’s come up with another
story, and he’s decided to go with that instead. But he’s
going to stick to that story, that story that he developed
after he sat down with his attorney and his defense experts
and decided on what he wanted to tell you. You’re not going
to find the truth there.

But even when [D]efendant tries to hide the truth from you
all, it slips out here and there. For example, it slips out
when [D]efendant says things to his defense expert like my
attorneys want me to go with self-defense at trial.

....

Now, all of a sudden you heard Dr. Corvin. He sat down
with [Defendant’s attorney] and [D]efendant and 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. As he sits there on the stand, as he sits there
right now, it has been explained to [D]efendant you’re
supposed to consider the fierceness of the assault that he


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was victim to. So isn’t it interesting that four months ago
it went from a grab to it went [to] a punch, a slash, a hack,
not just at me but at everybody. All of a sudden a grab went
to a wild-armed (phonetic) handle. Now that the law has
been explained to him, now that he’s been talked out of
claiming I didn’t do it.

....

[Defendant’s attorney] tells you all we’re trying to hide
from this. All the evidence shows the box cutter was
involved, the box cutter was involved, all the evidence. Do
you know who’s not a witness in this case? [Defendant’s
attorney].    He wasn’t there.      He’s paid to defend
[D]efendant.

....

There’s no real threat. There’s no real threat except for the
one that was created sometime four months ago to try and
sell you on something.

....

Now, I want to talk a little bit about Dr. Corvin, some of
his opinions. But before we do that, we’ve got to make
something clear. Make no mistake. Dr. Corvin has a client
here. He works for [D]efendant. He is not an impartial
mental-health expert.        There are several who know
[D]efendant: Drs. Fuller, Castro, Abramowitz. He didn’t
call any of those, he called Dr. Corvin. Dr. Corvin is part
of the defense team, he has a specific purpose, and he’s paid
for it. You heard Dr. Corvin earns over $300,000 a year just
working for criminal defendants. He is not impartial. In
fact, I’d suggest to you he’s just a $6,000 excuse man. That’s
what he is.

....

So according to Dr. Corvin, [D]efendant []formed the intent


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             to kill himself, but for some reason that he never explained
             to you, he’s taken the stand to say, well, he can certainly
             intend to kill himself, but in his opinion he can’t intend to
             kill James Love. Does that make a lick of sense or does that
             just show you that Dr. Corvin came in here and did exactly
             what he was paid to do? And, again, what else might show
             you this?

             Again, many doctors have met [D]efendant. Many who
             were not hired to help him in the defense, you didn’t hear
             from a single one.

      During cross-examination, the State questioned Dr. Corvin about his initial

meeting with Defendant, which only included Defendant and Dr. Corvin, and from

which Dr. Corvin produced notes. In that meeting, Defendant told Dr. Corvin he did

not shoot Love, but that his attorney was trying to get him a plea deal, or to go to

trial arguing self-defense. The State asked Dr. Corvin: “So, when you end your

meeting in January, though, [D]efendant is dead set, I didn’t do it, that’s some drug

dealer shot James, I had nothing to do with it, right?” Dr. Corvin responded that that

was correct. The State then asked Dr. Corvin about a subsequent meeting with

Defendant that Defendant’s attorney also attended, and compared it with the first

meeting:

             Q. And in that two hours [during the first meeting], safe
             to say you took about 11 pages of notes?

             A.   That sounds about right.        I can count them, but
             something like that.

             Q. Now, that was in January.



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A. Yes.

Q. In March you went back to talk to [D]efendant, right?

A. Yes.

Q.   The first meeting was in January.       That was by
yourself.

A. Yes.

Q. Second meeting in March, you go with [Defendant’s
attorney].

A. Yes.

Q. Anybody else go with you?

A. I don’t think so. No, not by my memory.

Q. But you did meet [D]efendant in person.

A. Yes. This was a contact visit, yes.

Q. And you spent probably another two hours talking to
him.

A. A little south of that, but close, yes.

Q. Now, when you went in January, you took 11 pages of
notes in two hours.

A. Yes.

Q. How many pages of notes did you take the two hours you
spent in March?

A. None. Well, none, but I authored a report shortly
thereafter, which is sometimes done for clinical reasons,
yes.


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             Q. Now, at the end of the March meeting [D]efendant had
             agreed to go with self-defense.

             A. Well, I don’t know what he had agreed to. I don’t discuss
             that strategy with him. What I can tell you is that he
             described a sequence of events that in my mind was self-
             defense.

      The State focused on the fact that, when Dr. Corvin met with Defendant alone

the first time, Defendant maintained he did not shoot Love, and that Dr. Corvin had

taken copious notes. The implication from the State was that, in the second meeting

attended by Defendant’s attorney, Dr. Corvin decided not to record what was

discussed because the discussion was about coming up with an “excuse.” The further

implication was, as a result of that meeting, Defendant decided to change his story.

This was also the State’s argument in closing.

      As our Supreme Court stated in Hembree: “In context, the import of these

arguments is clear[.]” Hembree, __ N.C. at __, 770 S.E.2d at 89. The State, in this

case, argued to the jury not only that Defendant was a liar, “but that he had lied on

the stand in cooperation with defense counsel” and Dr. Corvin. Id. “Whether or not

[D]efendant committed perjury, there was no evidence showing that he had done so

at the behest of his attorney” or Dr. Corvin. Id. In addition, taken in context, it is

clear the State was arguing that Dr. Corvin would say whatever the defense wanted

him to say, because he was being paid to do so.




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      Further, the State implied that Dr. Corvin was committing perjury because “he

[was] just a $6,000 excuse man[,]” and would do “exactly what he was paid to do.”

The State also indicated that the jury should not trust Defendant’s counsel because

he was “paid to defend the defendant.” This was improper. State v. Rogers, 355 N.C.

420, 460-63, 562 S.E.2d 859, 883-86 (2002). “In light of the cumulative effect of the

improprieties in the prosecutor’s cross-examination of defendant’s expert and the

prosecutor’s closing argument, we are unable to conclude that defendant was not

unfairly prejudiced.” Id. at 465, 562 S.E.2d at 886 (citation omitted). “Accordingly,

we hold that the prosecutor’s statements to this effect were grossly improper, and the

trial court erred by failing to intervene ex mero motu.” Hembree, __ N.C. at __, 770

S.E.2d at 89. Because Defendant’s entire defense was predicated on his credibility

and the credibility of his witnesses, we cannot deem this error to have been harmless.

We vacate Defendant’s conviction and sentence and remand for a new trial.

                                          II.

      Because this issue will likely reoccur upon retrial, we address Defendant’s

second argument. In Defendant’s second argument, he contends “the trial court erred

by instructing the jury on flight when this instruction was not supported by the

evidence.” We disagree.




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      Evidence introduced at trial tends to show that Defendant shot Love, then got

into his vehicle, drove off for a short period of time, and returned. The firearm

Defendant used to shoot Love was never recovered.

      “So long as there is some evidence in the record reasonably supporting the

theory that defendant fled after commission of the crime charged, the instruction is

properly given. The fact that there may be other reasonable explanations for

defendant’s conduct does not render the instruction improper.” State v. Irick, 291

N.C. 480, 494, 231 S.E.2d 833, 842 (1977) (citation omitted). “Mere evidence that

defendant left the scene of the crime is not enough to support an instruction on flight.

There must also be some evidence that defendant took steps to avoid apprehension.”

State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991) (citation omitted).

There is some evidence in the record supporting the theory that Defendant drove

away briefly in order to dispose of the firearm he used to shoot Love. This argument

is without merit.

      NEW TRIAL.

      Judges HUNTER, JR. and DAVIS concur.




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