                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unpublished decision of the Court of Appeals, ___ N.C. App.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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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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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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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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             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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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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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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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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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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             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

                                          -19-
                                    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



                                          -20-
                                   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.




                                         -21-
      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

                                              -2-
                                      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,

                                             -3-
                                        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



                                             -5-
                                      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.


                                             -6-
                                      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


                                             -7-
                                      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,


                                             -9-
                                      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


                                              -11-
                                       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.




                                              -12-
