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Criminal Practice – Prosecutor’s Closing – Evidence Characterization

At defendant’s murder trial, witness Nealey plainly testified that he saw defendant (1) shoot the victim in the back and (2) stand over the victim’s body with a gun pointed at him. This is largely consistent with the prosecutor’s closing-argument statement that Nealey “saw [defendant] standing over [the victim] and he fired the shot. . . . He said he actually saw, direct evidence, that [defendant] was the shooter. . . . You have an eyewitness who saw [defendant] standing over [the victim], shoot him with a gun.” Furthermore, this series of evidence was corroborated by the medical examiner’s testimony. The trial court did not err by declining to intervene ex mero motu.

We find no reversible error in defendant’s conviction for second-degree murder.

The prosecutor could certainly argue that Nealey saw defendant shoot the victim in the back and stand over him based on the evidence presented at trial. To be sure, the prosecutor did expressly state elsewhere that defendant stood over the victim’s body before shooting him. But context shows that the prosecutor did so in an effort to convince the jury that the shooting was premeditated.

To the extent this argument was improper as misrepresenting Nealey’s testimony—and it is not clear that it did misrepresent his testimony—it does not appear to have actually prejudiced defendant, as the jury found him guilty of second-degree murder only. In any event, any alleged impropriety in the prosecutor’s summation of Nealey’s eyewitness account is comparatively minor in the face of (1) Nealey’s direct testimony that he saw defendant shoot and kill the victim; (2) witness Hunt’s testimony that she saw defendant flee from the scene and believed him to be the shooter; and (3) testimony from witnesses Lowery and McCormick matching the gun recovered to the one previously in defendant’s possession. Given this evidence and the facts as found by the jury, it is unlikely that any improper recounting of the events witnessed by Nealey was so prejudicial as to amount to gross impropriety.

In recounting McCormick’s testimony, the prosecutor described the handle of the gun, a detail McCormick could not recall on the stand. Nonetheless, that detail was elsewhere provided by Lowery’s testimony that he gave the gun matching that description (and subsequently recovered) to defendant a few weeks prior to the shooting.

No reversible error.

State v. Powers (Lawyers Weekly No. 012-103-23, 13 pp.) (Allison Riggs, J.) Appealed from Robeson County Superior Court (Jason Disbrow, J.) Taylor Crabtree for the state; James Glover for defendant. North Carolina Court of Appeals (unpublished)

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