                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-720

                                   Filed: 2 July 2019

Randolph County, No. 11CRS52510

STATE OF NORTH CAROLINA

               v.

RANDY STEVEN CAGLE, Defendant.


         Appeal by defendant from judgment entered 18 July 2016 by Judge V. Bradford

Long in Randolph County Superior Court. Heard in the Court of Appeals 30 January

2019.


         Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
         Kunstling Irene, for the State.

         Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
         VandenBerg, for defendant-appellant.


         BERGER, Judge.


         On July 18, 2016, Randy Steven Cagle (“Defendant”) was found guilty for the

murder of both Tyrone Marshall (“Marshall”) and Davida Stancil (“Stancil”).

Defendant appeals, arguing that the trial court erred when it did not: (1) include the

specific intent jury instruction in the final mandate; (2) instruct the jury with

Defendant’s requested instruction on deliberation; and (3) intervene ex mero motu to

strike statements made by the prosecutor during closing arguments. We find no

error.
                                   STATE V. CAGLE

                                  Opinion of the Court



                        Factual and Procedural Background

      On the afternoon of May 7, 2011, Defendant purchased approximately $20.00

of cocaine from Marshall. Defendant called Marshall to complain about the product,

and Marshall went to see Defendant at his home.            Once Marshall was inside

Defendant’s home, a fight ensued and Marshall was fatally beaten and stabbed.

Defendant then went outside to Marshall’s car. Stancil was waiting in the passenger

seat with her seat belt still buckled. Defendant broke the passenger window of the

vehicle with a baseball bat and fatally stabbed Stancil.

      Defendant attempted to dispose of the evidence of his crime by driving

Marshall’s car about three-tenths of a mile away from his home and abandoning it.

Defendant also attempted to clean the crime scene with bleach, and hid two knives

under the sink, burned some of Stancil’s belongings, and washed his clothes.

      The following day, Marshall’s abandoned car was found. His body was in the

car’s backseat and Stancil’s body was in the front passenger seat with her seat belt

still buckled. Stancil had twenty puncture wounds to her head, jaw, neck, chest and

abdomen; defensive wounds on her hands and forearms; and her seatbelt had

puncture damage as well. There was broken glass from the passenger window on the

driver’s seat, and shards of tinted glass were found at Defendant’s home. Marshall

had puncture wounds to the back of his head, and a very large, gaping wound on the

front of his neck.



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      Defendant was arrested, and on June 6, 2011, he was indicted on two counts

of first degree murder. Prior to his arrest, a detective conducted a pat down search

and noticed one of Defendant’s fingers “had a small cut,” but otherwise he had no

wounds or bruising.

      The State held a Rule 24 hearing on June 28 and announced that it would seek

the death penalty. Prior to trial, Defendant filed notice of his intent to introduce

evidence of self-defense, mental infirmity, diminished capacity, involuntary

intoxication, and/or voluntary intoxication. Defendant also requested before trial

that the jury be instructed with additional language on premeditation and

deliberation and on specific intent. Defendant’s requests were denied.

      At trial, Defendant’s mental state at the time of the murders was at issue.

Multiple medical experts testified and provided their opinions.

      During the jury charge conference, the trial court denied Defendant’s renewed

request for the special instruction concerning Defendant’s mental capacity, but did

include Defendant’s requested instruction on voluntary intoxication. The trial court

also denied Defendant’s renewed request for a special instruction on premeditation

and deliberation, but did not prevent Defendant from arguing Defendant’s requested

instruction to the jury.

      After closing arguments had concluded, Defendant was convicted of two counts

of first degree murder. Following the guilt/innocence phase, a capital sentencing



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                                   Opinion of the Court



hearing was held, and the jury returned recommendations of life imprisonment for

both counts. The trial court imposed two consecutive sentences of life without parole.

      Defendant timely appeals, arguing that the trial court erred when it: (1) did

not give the requested instruction on specific intent in the final mandate; (2) did not

give the requested instruction on premeditation and deliberation; and (3) did not

intervene ex mero motu during the prosecutor’s closing argument. We find no error.

 I. Jury Instructions

      Defendant first contends that the trial court erred when it did not include the

specific intent instruction in its final mandate to the jury, and when it did not give

his requested instruction on premeditation and deliberation. We disagree.

      “Whether the trial court instructs using the exact language requested by

counsel is a matter within its discretion and will not be overturned absent a showing

of abuse of discretion.” State v. Lewis, 346 N.C. 141, 145, 484 S.E.2d 379, 381 (1997)

(citations, quotation marks, and brackets omitted). “[W]hen a request is made for a

specific instruction that is supported by the evidence and is a correct statement of the

law, the court, although not required to give the requested instruction verbatim, must

charge the jury in substantial conformity therewith.” State v. Daughtry, 340 N.C.

488, 516, 459 S.E.2d 747, 761 (1995) (citation and quotation marks omitted).

However,

             [a] party may not make any portion of the jury charge or
             omission therefrom the basis of an issue presented on


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                                    Opinion of the Court



             appeal unless the party objects thereto before the jury
             retires to consider its verdict, stating distinctly that to
             which objection is made and the grounds of the objection;
             provided that opportunity was given to the party to make
             the objection out of the hearing of the jury, and, on request
             of any party, out of the presence of the jury.

N.C.R. App. P. 10(a)(2).

      If an instructional error is not preserved below, it nevertheless may be

reviewed for plain error “when the judicial action questioned is specifically and

distinctly contended to amount to plain error.” N.C.R. App. P. 10(a)(4).

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error “had a probable impact on the jury’s
             finding that the defendant was guilty.” Moreover, because
             plain error is to be “applied cautiously and only in the
             exceptional case,” the error will often be one that “seriously
             affect[s] the fairness, integrity or public reputation of
             judicial proceedings.”

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting State v.

Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) (citations and quotation

marks omitted)).

      Finally, “[a]n instruction to a jury will not be viewed in isolation, but rather

must be considered in the context of the entire charge. Instructions that as a whole

present the law fairly and accurately to the jury will be upheld.” State v. Roache, 358

N.C. 243, 303, 595 S.E.2d 381, 419 (2004) (citations omitted).

   A. Specific Intent Instruction

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                                   Opinion of the Court



      Defendant argues that the trial court erred when it did not include the specific

intent instruction in the final mandate. Defendant contends in the alternative that

if we determine that this issue was not properly preserved, the trial court’s failure to

include a specific intent instruction in the final mandate constitutes plain error.

      Defendant had filed a request for a special instruction on July 6, 2016, in which

he requested that additional language regarding specific intent be added to the

pattern jury instruction for first degree murder. However, in this request, Defendant

did not ask for that special instruction to be included in the final mandate. During

the charge conference, Defendant renewed his special instruction request, which was

denied. Again, Defendant did not request that the specific intent instruction be

included in the final mandate. Moreover, after the trial court had instructed the jury,

and upon the trial court’s inquiry as to whether either party had any objections to the

instructions as given, Defendant did not object on the grounds that the trial court

should have included the specific intent instruction in its final mandate. Because

Defendant did not object on the grounds that the specific intent instruction should

have been included in the final mandate during either the charge conference or after

the jury had been charged, Defendant has not properly preserved this issue for

appellate review pursuant to Rule 10(a)(2) of the North Carolina Rules of Appellate

Procedure.




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                                   Opinion of the Court



      However, because this error was not preserved, we must determine whether

“the trial court committed plain error in omitting specific intent from the final

mandate.” Defendant argues that the trial court’s error had a probable impact on the

jury’s finding that he was guilty because, “[h]ad one juror been in doubt about

[Defendant’s] ability to form specific intent, the result of this case could have been a

verdict of second-degree murder.” We disagree and do not find plain error.

      In North Carolina, it is not necessarily error for the trial court to exclude a

portion of a requested jury instruction in its final mandate where this exclusion “could

not have created confusion in the minds of the jurors as to the State’s burden of proof.”

State v. Pittman, 332 N.C. 244, 258-59, 420 S.E.2d 437, 445 (1992). Additionally,

when the trial court includes in its jury charge “an instruction that the jury could

consider defendant’s mental condition in connection with his ability to formulate a

specific intent to kill,” it need “not include a similar charge in its final mandate.” Id.

at 258, 420 S.E.2d at 445. Thus, when the trial court gives “the substance of the

instruction defendant requested,” omission of the requested instruction from the final

mandate does not necessarily constitute plain error. Daughtry, 340 N.C. at 516, 459

S.E.2d at 761.

      In the present case, Defendant requested an instruction before trial on his

mental condition at the time the crime was alleged to have been committed and the

effect that voluntary intoxication could have on his ability to form specific intent.



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                                   Opinion of the Court



When the trial court charged the jury, it gave the North Carolina Pattern Instruction

305.11 on voluntary intoxication and its effect on specific intent twice, once for each

of the two victims. This particular instruction does not require that the trial court

restate the instruction on specific intent in the final mandate, and the trial court did

not err in excluding it from the final mandate.

      Moreover, this Court has addressed this allegation of error before, and we are

bound by precedent. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37

(1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in

a different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.”).

      In State v. Storm, this Court reviewed for plain error the exclusion from the

final mandate of an instruction that the jury could consider defendant’s mental

condition with regard to his ability to formulate specific intent. State v. Storm, 228

N.C. App. 272, 743 S.E.2d 713 (2013). This Court stated:

             In State v. Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992),
             our Supreme Court held that the trial court did not err by
             denying defendant’s request to include an instruction on
             diminished capacity in its final mandate. Id. at 258-59, 420
             S.E.2d at 445. Examining the charge as a whole, the
             Supreme Court determined that the jury could not have
             been confused as to the State’s burden of proof because
             “[t]he court included in its charge an instruction that the
             jury could consider defendant’s mental condition in
             connection with his ability to formulate a specific intent to
             kill.” Id. Similarly in State v. Daughtry, 340 N.C. 488, 459
             S.E.2d 747 (1995), when the trial court gave the substance


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                                    Opinion of the Court



             of the instruction defendant requested, the omission of a
             final mandate including a voluntary intoxication
             instruction did not constitute plain error. Id. at 516, 459
             S.E.2d at 761.

Storm, 228 N.C. App. at 276, 743 S.E.2d at 716.

      This reasoning and conclusion applies to the error alleged by Defendant here,

and we are therefore compelled to come to the same conclusion:

             Examining the jury instructions as a whole, the trial
             court’s instructions do not constitute plain error. Following
             the instructions on first-degree and second-degree murder,
             the trial court charged the jury on diminished capacity and
             voluntary intoxication.      The trial court’s instruction
             followed the pattern jury instructions and the trial court
             gave the instruction twice, once for diminished capacity
             and once for voluntary intoxication.          The voluntary
             intoxication and diminished capacity instructions each
             contained mandates, stating that if the jury “[had]
             reasonable doubt as to whether the defendant formulated
             the specific intent required for conviction of first-degree
             murder,” they were not to return a verdict of guilty of first-
             degree murder. These instructions appropriately state the
             law on diminished capacity and voluntary intoxication. See
             State v. Carroll, 356 N.C. 526, 539-40, 573 S.E.2d 899, 909
             (2002) (finding no plain error where the trial court gave
             pattern jury instructions on diminished capacity). Based
             upon the facts of this case and considering the trial court’s
             jury instructions as a whole, defendant cannot meet his
             high burden of showing that the trial court committed
             plain error.

Id. at 276-77, 743 S.E.2d at 717.

   Thus, the trial court did not err in excluding the specific intent instruction from

the instruction’s final mandate.       Accordingly, the trial court did not err and

Defendant cannot argue plain error.

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                                   Opinion of the Court



   B. Premeditation and Deliberation Instruction

      Defendant next argues that he was prejudiced by the trial court’s failure to

give his requested instruction on premeditation and deliberation drawn from State v.

Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). Defendant specifically requested that

the following suggested language from State v. Buchanan be included in his requested

instruction: “for the premeditation the killer asks himself the question, ‘Shall I kill

him?’. The intent to kill aspect of the crime is found in the answer, ‘Yes, I shall.’ The

deliberation part of the crime requires a thought like, ‘Wait, what about the

consequences? Well, I’ll do it anyway.’ ” State v. Buchanan, 287 N.C. 408, 418, 215

S.E.2d 80, 86 (1975) (citation omitted). We disagree.

      Whether the trial court instructs the jury using the pattern jury instructions

or “using the exact language requested by counsel is a matter within its discretion

and will not be overturned absent a showing of abuse of discretion.” Lewis, 346 N.C.

at 145, 484 S.E.2d at 381 (citation omitted). “As this Court has previously stated, the

trial court is not required to frame its instructions with any greater particularity than

is necessary to enable the jury to understand and apply the law to the evidence

bearing upon the elements of the crime charged.” Id. (purgandum). Furthermore,

             [t]his Court has consistently held that a trial court is not
             required to give a defendant’s requested instruction
             verbatim. Rather, when the defendant’s request is correct
             in law and supported by the evidence, the court must give
             the instruction in substance. This rule applies even when



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                                  Opinion of the Court



             the requested instructions are based on language from
             opinions of the Supreme Court of North Carolina.

State v. Hobbs, ___ N.C. App. ___, ___, 817 S.E.2d 779, 784-85 (2018) (citations and

brackets omitted).

                    In defining deliberation, this Court has held that
             deliberation means that defendant carried out the intent to
             kill in a cool state of blood, not under the influence of a
             violent passion, suddenly aroused by lawful or just cause
             or legal provocation. Further, this Court stated that
             deliberation does not require brooding or reflection for any
             applicable length of time but connotes the execution of an
             intent to kill in a cool state of blood without legal
             provocation in furtherance of a fixed design.

Lewis, 346 N.C. at 146, 484 S.E.2d at 381-82 (purgandum). “Premeditation and

deliberation are ordinarily not susceptible to proof by direct evidence and therefore

must usually be proven by circumstantial evidence.” State v. Leazer, 353 N.C. 234,

238, 539 S.E.2d 922, 925 (2000) (citation and quotation marks omitted).

      Here, Defendant filed a request for a special jury instruction on premeditation

and deliberation, based on Buchanan, which was denied. Defendant specifically

argues that, unlike his requested instruction, the pattern jury instruction neither

adequately defines deliberation nor adequately addresses the requirement that, a

defendant must have been able to consider the consequences of his actions for guilt

to be established. Defendant requested the following instruction:

             The required intent to kill must be turned over in the mind
             in order for the mental process of premeditation and
             deliberation to transpire. You may think of premeditation
             as the killer asking himself the question, “Shall I kill?,”

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                                  Opinion of the Court



             however long this process takes. Deliberation is then found
             in a process like asking, “Wait, what about the
             consequences? Well, I’ll do it anyway.” Unless the state
             proves to you beyond a reasonable doubt that the defendant
             was able to and did in fact engage in both processes, you
             must find the defendant not guilty of first degree murder
             on the basis of premeditation and deliberation.

      The request for this instruction was denied, and the trial court instructed the

jury on deliberation and premeditation using North Carolina Pattern Instruction

206.10, which states in pertinent part:

             . . . the State must prove to you . . . beyond a reasonable
             doubt . . .
                     Fifth, that the Defendant acted with deliberation,
             which means that the Defendant acted while the
             Defendant was in a cool state of mind. This does not mean
             that there had to be a total absence of passion or emotion.
             If the intent to kill was formed with a fixed purpose, not
             under the influence of some suddenly aroused, violent
             passion, it is immaterial that the Defendant was in a state
             of passion or excited when the intent was carried into
             effect.
                     Members of the jury, neither premeditation nor
             deliberation is usually susceptible of direct proof. They
             may be proved by circumstances from which they may be
             inferred, such as the lack of provocation by Mr. Marshall;
             conduct of the Defendant before, during, and after the
             killing; threats and declarations of the Defendant; use of
             grossly excessive force; infliction of lethal wounds after Mr.
             Marshall is felled; brutal or vicious circumstances of the
             killing; manner in – manner in which or means by which
             the killing was done; ill will between the parties.

      Defendant takes issue with the fact that the trial court’s instruction did not

“explain[ ] what deliberation means.” However, “[t]he trial court is not required to

frame its instructions with any greater particularity than is necessary to enable the

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                                  Opinion of the Court



jury to understand and apply the law to the evidence bearing upon the elements of

the crime charged.” Lewis, 346 N.C. at 145, 484 S.E.2d at 381 (citations and quotation

marks omitted).

      The trial court made a reasoned decision to use the pattern instruction on

deliberation, which defined and provided examples of deliberation.          Moreover,

because the trial court’s instruction on deliberation was a correct statement of the

law arising from the evidence presented, comported with the pattern jury instruction,

and embraced the substance of Defendant’s requested instruction, we find no error.

      Defendant also asserts that he is entitled to a new trial because he was

prejudiced by the omission of his requested instruction. In support of his argument,

Defendant cites to North Carolina General Statute Section 15A-1443, which states:

             (a) A defendant is prejudiced by errors relating to rights
             arising other than under the Constitution of the United
             States when there is a reasonable possibility that, had the
             error in question not been committed, a different result
             would have been reached at the trial out of which the
             appeal arises. The burden of showing such prejudice under
             this subsection is upon the defendant. Prejudice also exists
             in any instance in which it is deemed to exist as a matter
             of law or error is deemed reversible per se.

             (b) A violation of the defendant’s rights under the
             Constitution of the United States is prejudicial unless the
             appellate court finds that it was harmless beyond a
             reasonable doubt. The burden is upon the State to
             demonstrate, beyond a reasonable doubt, that the error
             was harmless.

N.C. Gen. Stat. § 15A-1443(a), (b) (2017).


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                                  Opinion of the Court



      Defendant contends that he was prejudiced by the trial court’s failure to

provide his requested instruction on deliberation because it was relevant to his

defense. He further asserts that “if even one juror had reasonable doubt, based on

the evidence, that [Defendant] was unable to deliberate his actions and consider the

consequences of them, the outcome of the trial might have been different.” However,

Defendant cannot show prejudice because we have determined that the trial court

did not err.

      “The nature and number of the victim’s wounds is another indicator of

premeditation and deliberation. ‘The premise of [this] theory of premeditation and

deliberation is that when numerous wounds are inflicted, the defendant has the

opportunity to premeditate and deliberate from one blow to the next.’ ” Leazer, 353

N.C. at 239, 539 S.E.2d at 926 (quoting State v. Austin, 320 N.C. 276, 295, 357 S.E.2d

641, 653 (1987)) (brackets omitted). At trial, it was revealed that Marshall had

multiple lethal and nonlethal injuries, including stab wounds, cuts and punctures,

and multiple blunt-force injuries on his head, chest, back, abdomen, arms, and hands.

After inflicting these injuries to Marshall, Defendant walked outside and towards

Marshall’s vehicle. Defendant broke the passenger window and stabbed Stancil

twenty times in her head, jaw, neck, chest, and abdomen while she was still seated

in the vehicle. Stancil also had at least eight severe defensive wounds on her hands

and forearms. “No matter what defendant’s intent may have been before he inflicted



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                                  Opinion of the Court



the first wound, there was adequate time between each blow for defendant to have

premeditated and deliberated his actions.” Leazer, 353 N.C. at 239, 539 S.E.2d at

926.   There was such a quantum of evidence from which the jury could find

premeditation and deliberation that Defendant would be unable to show prejudice,

regardless of which definition was used.

       Furthermore, Section 15A-1443(b) is inapplicable because Defendant did not

raise any constitutional issues with these jury instructions, either during the jury

charge conference or after the charge had been given to the jury. “It is well settled

that constitutional matters that are not raised and passed upon at trial will not be

reviewed for the first time on appeal.” State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d

724, 745 (2004) (citation and quotation marks omitted). Thus, any constitutional

issues Defendant has raised for the first time on appeal were not preserved for

appellate review. See N.C.R. App. P. 10(a)(2).

 II. Closing Arguments

       Defendant further contends that the trial court should have intervened ex mero

motu to strike statements made by the prosecutor during closing arguments that

described Defendant as evil and disparaged Defendant’s witnesses. We disagree.

                    The standard of review for assessing alleged
             improper closing arguments that fail to provoke timely
             objection from opposing counsel is whether the remarks
             were so grossly improper that the trial court committed
             reversible error by failing to intervene ex mero motu. In
             other words, the reviewing court must determine whether


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             the argument in question strayed far enough from the
             parameters of propriety that the trial court, in order to
             protect the rights of the parties and the sanctity of the
             proceedings, should have intervened on its own accord and:
             (1) precluded other similar remarks from the offending
             attorney; and/or (2) instructed the jury to disregard the
             improper comments already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted).

                     [W]hen defense counsel fails to object to the
             prosecutor’s improper argument and the trial court fails to
             intervene, the standard of review requires a two-step
             analytical inquiry: (1) whether the argument was
             improper; and, if so, (2) whether the argument was so
             grossly improper as to impede the defendant’s right to a
             fair trial.

State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464, 469 (2017). Only where this Court

“finds both an improper argument and prejudice will this Court conclude that the

error merits appropriate relief.” Id. (emphasis added). To establish prejudice, the

“defendant must show that the prosecutor’s comments so infected the trial with

unfairness that they rendered the conviction fundamentally unfair.” State v. Waring,

364 N.C. 443, 499-500, 701 S.E.2d 615, 650 (2010). Also, when this Court is asked to

determine the impropriety of a prosecutor’s argument, such that it may violate a

defendant’s right to a fair trial, “[f]air consideration must be given to the context in

which the remarks were made and to the overall factual circumstances to which they

referred.” State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994) (citation and

quotation marks omitted).



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                      A well-reasoned, well-articulated closing argument
               can be a critical part of winning a case. However, such
               argument, no matter how effective, 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 passion or prejudice;
               and (4) be constructed from fair inferences drawn only from
               evidence properly admitted at trial.

State v. Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004) (citation omitted).

Furthermore, an argument must avoid base tactics such as “arguing a witness is lying

solely on the basis that he will be compensated.” Huey, 370 N.C. at 187, 804 S.E.2d

at 474.

      Defendant first contends that it was grossly improper for the prosecutor to

refer to Defendant as evil during closing arguments. However, “[t]he appellate courts

of this State have declined to reverse convictions based on closing arguments

referring to defendants [as “vile”, “amoral”, “wicked”, and “evil”] or similar language.”

State v. Bullock, 178 N.C. App. 460, 475, 631 S.E.2d 868, 878 (2006) (citing State v.

Flowers, 347 N.C. 1, 37-38, 489 S.E.2d 391, 412 (1997); State v. Larrimore, 340 N.C.

119, 163, 456 S.E.2d 789, 812-13 (1995); State v. Riley, 137 N.C. App. 403, 412-13,

528 S.E.2d 590, 596-597 (2000); State v. Frazier, 121 N.C. App. 1, 16, 464 S.E.2d 490,

498 (1995)).

      Here, Defendant challenges the prosecutor’s use of the word evil during the

following parts of closing arguments:

               Evil at his core, his rotten core, evil, and there’s no other
               way to explain what you have seen over the last week and

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             a half but his evil. You cannot butcher two people, butcher
             them, cover yourself in their life’s blood, and then twenty-
             four hours later sit in an interview with two investigators
             and laugh and joke. There’s no other word for it than evil.

             ....

             The problem with evil is that when you look into the abyss
             of human evil, the darkness, it is frightening. It is
             disturbing. And reasonable, good people don’t want to
             admit that that kind of evil walks among us.
                    There’s a saying that when you look into the abyss,
             you look into the darkness of human evil, the problem is
             that the abyss looks back into you. And so good people had
             rather not look at that evil, and so they invent terms like
             broken brain and they invent excuses like my family and
             drugs and they invent all kinds of other excuses like, “Well,
             if my wife had just picked up the phone, I would have told
             the truth.” That’s the problem with evil is that good,
             reasonable people won’t – don’t want to look at it.
                    Now, I’m not gonna stand up here and you (sic) that
             Chartier, Wilson, and Hilkey are nothing but hacks in it for
             the money. I will say, though, that they make a pretty good
             living making excuses for evil. I’m not saying they’re bad
             people. As a matter of fact, I’m saying they’re probably
             good people that don’t want to admit that human evil
             exists, that this kind of human evil exists, so that in their
             minds, there’s got to be some other excuse.

      The prosecutor’s reference to either what was shown to the jury during the

trial, or to the Defendant himself, as evil was not so grossly improper that the trial

court should have intervened ex mero motu. Because North Carolina appellate courts

have “declined to reverse convictions based on closing arguments referring to

defendants” as “evil,” Bullock, 178 N.C. App. at 475, 631 S.E.2d at 878, we decline to




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depart from these prior holdings. Accordingly, the trial court did not err when it

declined to intervene ex mero motu in the prosecutor’s closing argument.

         Defendant further contends that it was grossly improper for the prosecutor to

refer to Defendant’s witnesses as “hacks” during closing arguments. However, “it is

proper for an attorney to point out potential bias resulting from payment a witness

received or would receive for his services, while it is improper to argue that an expert

should not be believed because he would give untruthful or inaccurate testimony in

exchange for pay.” Huey, 370 N.C. at 183, 804 S.E.2d at 471-72 (citation omitted).

While it is improper for a prosecutor to strongly insinuate that “the defendant’s

expert would say anything to get paid,” it is “not so grossly improper as to require ex

mero motu intervention.” State v. Duke, 360 N.C. 110, 129-30, 623 S.E.2d 11, 24

(2005)    (citing State v. Rogers, 355 N.C. 420, 464, 562 S.E.2d 859, 886 (2002)).

Similarly, referring to a witness as a “$15,000 man” during closing arguments is

improper, but not “grossly improper” requiring ex mero motu intervention by the trial

court. Duke, 360 N.C. at 130, 623 S.E.2d at 24.

         Here, Defendant challenges the statement above, in which the prosecutor said,

“Chartier, Wilson, and Hilkey are nothing but hacks in it for the money. I will say,

though, that they make a pretty good living making excuses for evil.” Even if we were

to assume that reference to Defendant’s witnesses as “hacks” was improper, “in

determining whether argument was grossly improper, this Court considers the



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                                    STATE V. CAGLE

                                   Opinion of the Court



context in which the remarks were made, . . . as well as their brevity relative to the

closing argument as a whole.” State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239, 259

(2008) (citation and quotation marks omitted).

      After reviewing the prosecutor’s closing argument as a whole, this single

phrase is not sufficient reason for us to disturb Defendant’s judgment. Moreover,

“[a]n attorney may . . . on the basis of his analysis of the evidence, argue any position

or conclusion with respect to a matter in issue.” N.C. Gen. Stat. § 15A-1230(a) (2017).

During trial, all three doctors testified to the amount of money each had made in the

past year testifying as an expert witness. Thus, the prosecutor was highlighting a

fact in evidence that could have an effect on a witness’ credibility. Therefore, while

the prosecutor’s reference to Defendant’s witnesses as “hacks” was improper, it was

not prejudicial or “so grossly improper as to impede the defendant’s right to a fair

trial.” Huey, 370 N.C. at 179, 804 S.E.2d at 469. Thus, the trial court did not err

when it did not intervene ex mero motu in the prosecutor’s closing argument.

Accordingly, we find no error.

                                      Conclusion

      For the reasons stated above, we find that the trial court did not err.

      NO ERROR.

      Judges STROUD and DIETZ concur.




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