Criminal Practice – Murder & Assault – Insanity Plea – Prosecutor’s Closing Argument – Possibility of Release

State v. Dalton (Lawyers Weekly No. 010-013-17, 30 pp.) (Cheri Beasley, J.) (Barbara Jackson, J., joined by Robert Edmunds Jr. & Sam Ervin IV, JJ., concurring) (Mark Martin, C.J., joined by Paul Newby, J., dissenting) Appealed from Transylvania County Superior Court (Marvin Pope Jr., J.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: Even though the unrebutted evidence showed that defendant will suffer from mental illness and addiction “for the rest of her life” and that “defendant’s risk of recidivism would significantly increase if she were untreated and resumed her highly unstable lifestyle,” and even though the homicide for which defendant was convicted is prima facie evidence of dangerousness to others, in its closing argument, the state improperly argued that it was “very possible” that, if defendant were found not guilty by reason of insanity, she would be released in 50 days. A reasonable possibility exists that the jury would have found defendant not guilty by reason of insanity if the prosecutor had not made the improper remarks during closing arguments.

We affirm the Court of Appeals’ award of a new trial.

Concurrence

(Jackson, J.) In light of the unique uncertainty involved in a plea of not guilty by reason of insanity, it is inappropriately inflammatory for a prosecutor to speculate about the possibility that a defendant who was found not guilty by reason of insanity could be released after a short period of time.

Dissent

(Martin, C.J.) The prosecutor said, “And it is very possible that in 50 days, if she shows by a preponderance of the evidence that she is not a threat to anyone else or herself, she will be back home….” The prosecutor’s only error was to add an extra hurdle for defendant to prove: that she was not a danger to herself. Furthermore, even if the prosecutor had misstated the law, such a misstatement would have been cured by the trial court’s subsequent correct instruction to the jury.