State v. Huey, 2017 N.C. LEXIS 693

Background

Derrick Huey was tried for first-degree murder for fatally shooting James Love on Oct. 13, 2011; at trial he admitted shooting but claimed self-defense and the jury convicted him of voluntary manslaughter.
Before and during the investigation Huey gave multiple, materially different accounts of the shooting; four months before trial he changed his story after consulting defense counsel and defense expert Dr. George Corvin.
Defense presented evidence of prior altercations between Huey and the victim, a box cutter found at the scene, Huey’s low IQ and head trauma, and expert testimony that these factors affected his decision-making.
In closing, the prosecutor repeatedly asserted (without directly saying the word “liar”) that "innocent men don’t lie," accused Huey of fabricating his trial story in concert with counsel and his expert, and called the expert a paid "excuse man."
Defense did not object at trial; the trial court did not intervene ex mero motu. On appeal the Court of Appeals reversed and ordered a new trial, finding the prosecutor’s remarks prejudicial.
The North Carolina Supreme Court reversed the Court of Appeals, holding the prosecutor’s remarks were improper but not so grossly improper as to prejudice Huey given the evidence against him and the jury’s verdict of voluntary manslaughter.

Issues

Issue	State's Argument	Huey's Argument	Held
Whether prosecutor’s repeated insinuations that defendant and witnesses were lying during closing were improper and required the trial court to intervene ex mero motu	Prosecutor argued remarks were permissible comment on credibility and reasonable inferences from inconsistent pretrial statements and expert compensation	Huey argued the remarks ("innocent men don't lie," accusing counsel and expert of collusion/suborning perjury, calling expert a paid "excuse man") were improper and so grossly prejudicial the court should have intervened	Court: Remarks were improper (personal opinion, name-calling, insinuations of suborned perjury), but not so grossly improper as to deny a fair trial given the overwhelming evidence and jury’s verdict of imperfect self-defense (no reversible error)
Whether pointing to expert’s compensation to undermine credibility was improper and prejudicial	State: Proper to highlight potential bias from payment and question weight of expert testimony	Huey: Prosecutor went beyond bias into name-calling and suggested expert would lie for pay, which is improper	Court: Noted pointing out fee is permissible bias argument; adding "excuse man" was improper name-calling but not prejudicial here
Whether suggesting defense counsel conspired to script perjured testimony was improper	State: Argued counsel’s role in developing defense was proper argument about origin of story	Huey: Argued insinuation that counsel suborned perjury is improper and unsupported by the record	Court: Such insinuations are improper; but here the single error did not materially affect fairness of trial
Whether failure to intervene ex mero motu required reversal despite no contemporaneous objection	State: Deference to trial court; reversal requires extreme impropriety that infected trial	Huey: Argued cumulative and repeated improper remarks warranted reversal despite lack of objection	Held: Standard requires both impropriety and prejudice; here improper but not prejudicial under the record, so no reversal required

Key Cases Cited

State v. Hembree, 368 N.C. 2, 770 S.E.2d 77 (N.C. 2015) (criticizes prosecutor remarks implying counsel manufactured testimony; considered cumulative errors)
State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (N.C. 2002) (standard for ex mero motu intervention and review of improper closing)
Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (prosecutorial comments require reversal only if they so infected trial with unfairness as to deny due process)
State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (N.C. 2005) (criticizes "$15,000 man" argument; fee-focused attacks can be improper but not necessarily prejudicial)
State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (N.C. 2002) (addressing limits of attacking witness credibility based solely on compensation)
State v. Sexton, 336 N.C. 321, 444 S.E.2d 879 (N.C. 1994) (improper comments do not require reversal when evidence of guilt is overwhelming)
State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (N.C. 1995) (contextual review; statements evaluated in light of overall evidence)