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Prosecutor’s ‘hack’ jab at defense experts improper but OK


A prosecutor’s assertion that a man accused of two brutal murders was “evil” and that the expert witnesses who testified on his behalf were “hacks” didn’t taint his right to a fair trial, the North Carolina Court of Appeals has ruled. 

In July 2016, Randy Cagle was found guilty of stabbing Tyrone Marshall and Davida Stancil to death at his Randolph County home during a dispute over drugs. Stancil had 20 stab wounds, while Marshall had a large gaping wound on his neck and stab wounds on the back of his head. 

On appeal, Cagle argued that the trial judge had erred by refusing to instruct the jury on his mental capacity, specific intent, premeditation and deliberation. He also contended that the prosecutor’s closing statements were inflammatory.

The Court of Appeals disagreed, in a July 2 opinion written by Judge Philip Berger Jr. for the unanimous panel.

“After the trial court had instructed the jury, and after the trial judge asked as to whether either party had any objections to the instructions as given, Cagle didn’t object on the grounds that the trial court should have included the specific intent instruction in its final mandate,” Berger wrote.

Cagle argued that the trial court’s decision had a probable impact on the jury’s ultimate determination that he was guilty of first-degree murder: if one juror had been doubtful of his ability to form intent, the jury could have handed down a conviction for second-degree murder, Cagle argued.

The court disagreed.

“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,’” Berger wrote.
Cagle also contended that it was “grossly improper” for the prosecutor to refer him as “evil” during closing arguments. 

The prosecutor’s reference to either what was shown to the jury during the trial, or to Cagle himself, as evil was not so grossly improper that the trial court should have intervened ex mero motu,” Berger wrote.

The prosecution characterized defense medical expert witnesses as “nothing but hacks in it for the money. I will say, though, that they make a pretty good living making excuses for evil.” 

“After reviewing the prosecutor’s closing argument as a whole, this single phrase is not sufficient reason for us to disturb Defendant’s judgment,” Berger wrote.

The three doctors disclosed how much they made testifying as experts in the past year.

“The prosecutor was highlighting a fact in evidence that could have an effect on a witness’ credibility,” Berger wrote. “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.’”

The state Attorney General’s office had no comment on the ruling, a spokesperson said. Kathryn VandenBerg, who represented Cagle, could not be reached for comment.

The 20-page opinion is State v. Cagle (Lawyers Weekly No. 011-173-19.) The full text is available at

Follow Bill Cresenzo on Twitter @bcresenzonclw

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