State v. Norris ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-908
No. COA20-908
Filed 29 December 2022
Randolph County, No. 18 CRS 000051
STATE OF NORTH CAROLINA
v.
JACOB THOMAS NORRIS, Defendant.
Appeal by Defendant from judgment entered 12 March 2020 by Judge William
A. Wood II in Randolph County Superior Court. Heard in the Court of Appeals 30
November 2021.
Attorney General Joshua H. Stein, by Senior Policy & Strategy Counsel Steven
A. Mange, for the State.
Kimberly P. Hoppin for defendant-appellant.
MURPHY, Judge.
¶1 While in high school, Defendant Jacob Thomas Norris admired the Joker, a
comic book villain and fictional mass murderer. One day, after confessing via social
media to his then-girlfriend, Patty,1 that he was entertaining homicidal thoughts
with respect to a number of his peers, Defendant asked her whether she wanted to
kill people as well. Patty, concerned by the conversation, reported what Defendant
1 We use a pseudonym for Defendant’s romantic interest throughout this opinion to
protect her identity and for ease of reading.
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had said to her mom—who, in turn, reported the conversation to law enforcement and
school authorities. Defendant was subsequently discovered with a collection of notes
and drawings indicating he wanted to harm or kill at least thirteen specific peers.
¶2 Defendant was tried for soliciting Patty to commit first-degree murder. At
trial, the State’s closing arguments included multiple comments about mass
shootings. The jury convicted Defendant, who now timely appeals. On appeal,
Defendant argues the trial court erred in (A) denying his motion to dismiss for
insufficient evidence; (B) denying his motion to dismiss for fatal variance with the
indictment; (C) admitting irrelevant evidence under Rules 401 and 402 of our Rules
of Evidence; (D) admitting evidence substantially more prejudicial than probative
under Rule 403 of our Rules of Evidence; and (E) failing to, ex mero motu, strike the
State’s grossly improper remarks during closing arguments. For the reasons stated
below, we dismiss the case in part; hold in part that the trial court did not err; and,
finally, hold in part that, although the trial court erred, it did not commit prejudicial
error.
BACKGROUND
¶3 Early in 2018, Defendant Jacob Thomas Norris began dating Patty while both
were students at the same high school. During their relationship—most of which
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consisted of exchanging messages via Snapchat2—Patty learned of Defendant’s
fascination with the Joker, a murderous comic book villain. Defendant and Patty,
who shared a milder interest in the Joker, referred to one another with pet names
referencing the Joker and his romantic partner in crime, Harley Quinn, during the
brief course of their relationship.
¶4 On 29 January 2018, Defendant and Patty exchanged a series of messages in
which Defendant expressed having homicidal thoughts and a desire for Patty to join
him in acting on them:
[Defendant:] I have something to say.
[Patty:] Yeah?
[Defendant:] When you say you want to be my Harley, my
true Harley, that you don’t know what’s going to happen
when we call ourselves Joker and Harley.
[Patty:] What?
[Defendant:] You said you want to be my true Harley
meaning you would have to hurt people.
[Patty:] What are you getting at? Like I’m getting an idea
now but not the full picture.
2 At trial, the State asked Patty, “What is Snapchat for us old folks?” For the benefit
of the “old folks,” Patty explained that “you can either like send pictures and like little
messages or you can talk like regular texting on a cell phone and you can video chat or regular
voice call on there.”
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[Defendant:] You know how Joker and Harley kill people?
That's what I'm getting at.
[Patty:] Yeah. Do you want to do something like that?
[Defendant:] Get it no[w]. Yes.
[Patty:] Do you want to do that specifically?
[Defendant:] You don’t want that, do you? If you do, don’t
-- if you don’t, I understand.
[Patty:] I’m just asking.
[Defendant:] But do you want that?
....
[Patty:] I can’t quite say I do. I have a side of me that does.
....
[Defendant:] So, no. I told you I’m a sociopath.
....
[Defendant:] You see me differently now, don’t you?
[Patty:] Since we’re asking questions that come deep from
our minds, I have one for you and everything is up to you
because I respect everything you say and feel.
[Defendant:] Shoot.
[Patty:] Do you know what polyamorous is?
[Defendant:] I’ll Google it. Hold on.
[Patty:] No, let me tell you.
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[Defendant:] Shoot.
[Patty:] But do you have any idea what it is?
[Defendant:] No, never heard of it.
[Patty:] Do you know what monogamous is?
[Defendant:] Never heard of it.
[Patty:] Okay.
[Defendant:] So going to tell me?
[Patty:] Monogamous is when two people date/marry, and
it’s only two people. Polyamorous is when there are more
than two people date one another.
[Defendant:] What are you trying to say?
[Patty:] Just hear me out. Okay? Don’t just assume
anything because it most likely will not be true.
[Defendant:] Okay.
[Patty:] So I feel as I am polyamorous myself because I’ve
always liked more than one person. Not right now though.
It’s just strictly you, I promise. But I truly do feel as though
I am this way. I have a video of information on
polyamorous if you’re interested in hearing more about it
so you understand it better, but I wanted to run this by you
because I want your opinion and thoughts and I thought
now is the perfect time to ask you since we are both asking
things that only both of us would understand each other in
more ways and, no, I do not see you differently. It just
caught me off guard.
[Defendant:] So do you or do you not want to be my Harley?
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[Patty:] I am your Harley. Just you understand your
Harley.
[Defendant:] I understand.
[Patty:] Or accept this part of her.
[Defendant:] Is this the gentle part?
[Patty:] Of what I’m saying?
[Defendant:] Yes.
[Patty:] How much do you accept?
[Defendant:] The whole package.
....
[Patty:] Thank you. Thank you for dealing with me, seeing
me as how I am accepting me for who I am as a person. I
know I already ask so much of you and you have no idea
how thankful I am that you are here in my life and love me
for who I am. I don’t think any words could ever tell me
enough of what you are and mean to me. I don’t know what
I did to get you in my life but whatever it was I would do it
again over and over and over. No matter how many times
I would constantly do it so you came into my life. I have a
feeling you’re going to be my one. I can just feel it. Now
I’ll gladly be your Harley Quinn till the day I die.[3]
3For formatting purposes, the dialogue reproduced in the text of the opinion above is
the conversation between Defendant and Patty as read aloud by Patty for the jury at trial.
As minor alterations exist between the transcribed version of the conversation above and the
conversation as presented in the exhibits, we turn the attention of any reader wishing to
examine the original Snapchat conversation to Record Supplement pages 1 through 11.
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After the exchange, Patty, concerned about what Defendant had expressed, showed
the messages to her mother, who reported the conversation to law enforcement. The
day after the conversation, Patty and her mother also reported the exchange to the
school resource officer (“SRO”), the principal, and the guidance counselor.
¶5 On 31 January 2018, the principal and SRO met with Defendant, who admitted
to sending the messages, told them he was a sociopath, and expressed that he found
death funny. At the time of the meeting, the SRO did not believe Defendant had
committed any crime. However, the same day, the SRO visited Defendant’s home,
where there were multiple guns and knives; and, on a second visit one month later,
Defendant’s father provided the SRO a collection of notes documenting Defendant’s
violent ideations concerning his peers. Among these notes were two papers entitled
“Test Subjects” and “Kill List”—which, as their titles imply, named individuals
Defendant appeared to have marked for human experimentation and homicide,
respectively. The list entitled “Test Subjects” included the cities where the
individuals lived, and the “Kill List” included a method of, and reason for, killing each
of the thirteen individuals it named. There was also a document called “Joker Toxin”
that identified the prices of various poisons.
¶6 Upon the school official’s discovery of Defendant’s notes, Defendant was
suspended and, later, indicted for solicitation to commit murder. The indictment read
as follows:
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The jurors for the State upon their oath present that on or
about the date(s) of offense shown and in the county named
above [] [D]efendant unlawfully, willfully and feloniously
did solicit [Patty] to commit the felony of Murder, [N.C.G.S.
§] 14-17, of persons known to the defendant, to wit: [first
and last initials used for each individual]. [] [D]efendant
intending [sic] to murder persons named in a list he created
and in his possession and entitled “Kill List.”
¶7 At trial, the State presented evidence of the above. In addition to testimony
from Patty, the principal, and the SRO, among others, the State offered—and the
trial court admitted, over Defendant’s objections—testimony from eleven of the
thirteen people whose names appeared on the “Kill List,” as well as the mother of a
twelfth person appearing on the list and a collection of notes and drawings by
Defendant concerning the Joker. During closing arguments, the State remarked that
Patty was “terrified[] [b]ecause [her] significant other was asking [her] to go kill
people . . . .” It also remarked that Defendant “had the means to carry out [his]
threats” and that there was “a diagram of [the] school.”4 Finally, the State also
suggested there was a link between the allegations against Defendant and “current
events,” presumably in reference to the frequent, high-profile mass shootings taking
place in the years immediately preceding Defendant’s trial:
Now, I’m not going to talk about current events and what’s
going on everywhere, but you are not required to empty
4 The “diagram of [the] school” refers to one of Defendant’s drawings, which the
principal testified resembled a map of Defendant’s high school.
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your brains of everything you know about these situations.
...
. . . . When you all go back there you can educate yourselves
and talk about the Joker. An emblem of evil. The most
twisted character there is. Mass murderer. Crime sprees.
Hurting other people. That’s the evil that this man . . .
embraced. And once you do that, as completely as he did,
there’s no stepping back. There’s no stepping back.
¶8 After closing arguments, the jury found Defendant guilty of solicitation to
commit first-degree murder on 12 March 2020, and the trial court gave him an active
sentence of 58 to 82 months. Defendant timely appealed.
ANALYSIS
¶9 On appeal, Defendant argues the trial court erred in (A) denying his motion to
dismiss for insufficient evidence; (B) denying his motion to dismiss for fatal variance
with the indictment; (C) admitting irrelevant evidence under Rules 401 and 402 of
our Rules of Evidence; (D) admitting evidence substantially more prejudicial than
probative under Rule 403 of our Rules of Evidence; and (E) failing to, ex mero motu,
strike the State’s grossly improper remarks during closing arguments.
A. Motion to Dismiss: Insufficient Evidence
¶ 10 Defendant first argues the trial court erred in denying his motion to dismiss
for insufficient evidence.
We review denial of a motion to dismiss criminal
charges de novo, to determine whether there is substantial
evidence (1) of each essential element of the offense
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charged, or of a lesser offense included therein, and (2) of
[the] defendant’s being the perpetrator of such offense. The
trial court must analyze the evidence in the light most
favorable to the State and give the State the benefit of
every reasonable inference from the evidence. The trial
court does not weigh the evidence, consider evidence
unfavorable to the State, or determine any witness’
credibility.
State v. Spruill, 237 N.C. App. 383, 385 (2014) (citations omitted), disc. rev. denied,
368 N.C. 258 (2015). Here, there is no contention that there was insufficient evidence
of Defendant’s identity; accordingly, we review de novo whether the State presented
sufficient evidence of each element of the alleged crime.
¶ 11 Concerning the offense of solicitation, we have remarked that
[t]he gravamen of the offense of soliciting lies in counseling,
enticing or inducing another to commit a crime.
Solicitation is complete when the request to commit a crime
is made, regardless of whether the crime solicited is ever
committed or attempted.
To hold a defendant liable for the substantive crime of
solicitation, the State must prove a request to perform every
essential element of the underlying crime.
State v. Crowe, 188 N.C. App. 765, 768-69 (citations omitted), cert. denied, disc. rev.
denied, 362 N.C. 364 (2008). Thus, where the underlying offense is first-degree
murder, “the State must prove that [the] defendant counseled, enticed, or induced
another to commit . . . ‘(1) an unlawful killing; (2) with malice; (3) with the specific
intent to kill formed after some measure of premeditation and deliberation.’” Id. at
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769 (quoting State v. Peterson, 361 N.C. 587, 595 (2007), cert. denied, 552 U.S. 1271,
170 L. Ed. 2d 377 (2008)).
¶ 12 Defendant offers two primary contentions with respect to sufficiency of the
evidence: first, that the evidence does not support Defendant having solicited—that
is, “counseled, enticed, or induced,” id.—Patty to commit a crime; and, second, that
Defendant could not have solicited Patty to commit first-degree murder because Patty
was not aware of the specific people on Defendant’s “Kill List.”
¶ 13 As to Defendant’s first contention, our Supreme Court has stated that
solicitation is “an attempt to conspire” so that “the solicitor plans, schemes, suggests,
encourages, and incites the solicitation.” State v. Mann, 317 N.C. 164, 171-72 (1986);
see State v. Smith, 269 N.C. App. 100, 101 (2019) (quoting 2 Wayne R. Lafave,
Substantive Criminal Law § 11.1, at 264 (3d ed. 2018) (“For the crime of solicitation
to be completed, it is only necessary that the actor, with intent that another person
commit a crime, have enticed, advised, incited, ordered or otherwise encouraged that
person to commit a crime.”). Such is the case here. Defendant reiterated that he
intended to kill at least three times as Patty sought clarification during their
Snapchat conversation: first, he hinted at what was “going to happen when [they]
call[ed] [them]selves Joker and Harley”; second, when Patty expressed confusion, he
elaborated that “[his] true Harley . . . would have to hurt people”; and, finally, he
outright stated that “Joker and Harley kill people[.]” Moreover, Defendant’s
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communication fits comfortably within applicable definitions of “entice”: “[t]o lure or
induce[.]” Entice, Black’s Law Dictionary (9th ed. 2009); see also Crowe, 188 N.C. App.
at 769 (emphasis added) (“[T]he State must prove that [the] defendant counseled,
enticed, or induced another to commit [the underlying crime].”).
¶ 14 The second contention fails as well. “Solicitation is a specific-intent crime, and
the offense is complete upon the request.” State v. Smith, 269 N.C. App. 100, 101
(2019) (citations omitted). For the State to demonstrate the underlying mens rea in
a solicitation case, it is not necessary for it to show the solicitor fully communicated
the details of his or her plan to the listener; rather, “[t]he solicitor conceives the
criminal idea and furthers its commission via another person by suggesting to,
inducing, or manipulating that person.” Mann, 317 N.C. at 171 (emphasis added).
As we noted in Mann, “‘the solicitor, working his will through one or more agents,
manifests an approach to crime more intelligent and masterful than the efforts of his
hireling’” such that “the solicitor is morally more culpable than a conspirator; he
keeps himself from being at risk, hiding behind the actor” he solicited. Id. at 172
(quoting Wechsler, Jones, and Korn, The Treatment of Inchoate Crimes in the Model
Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61
Colum. L. Rev. 571, 621-22 (1961)); see also Joshua Dressler, Cases and Materials on
Criminal Law 798 (3rd ed. 2003) (emphasis added) (“Solicitation is a controversial
crime because the offense is complete as soon as the solicitor asks, entices, or
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encourages another to commit the target offense. As observed in Mann, a solicitation
may consist of nothing more than an attempt to conspire with another to commit an
offense, which essentially makes solicitation a double inchoate offense.”).
¶ 15 Here, as long as Defendant’s “Kill List” tended to demonstrate to the jury that
the killings he proposed to Patty were, as they existed in his own mind, unlawful,
malicious, and specifically intended after a measure of premeditation and
deliberation, the evidence was sufficient to survive a motion to dismiss. And, in this
case, the “Kill List” evidenced each of these elements. Indeed, Defendant’s
conveyance of his desire to kill others fits the general malice requirement, and his
having asked Patty to kill necessarily contemplates the killings he asked her to
perform being premeditated and deliberated.5 See State v. McBride, 109 N.C. App.
5 This is, of course, to say nothing of what was, in the light most favorable to the State,
the meticulous planning of killings and other acts of violence reflected in Defendant’s notes
and drawings presented at trial—which included, but were not limited to, a recipe for a toxin
with which to “poison [the] water supply” and concept art of a Joker-themed combat suit.
However, we separately note our wariness of the use of what may otherwise be
considered Defendant’s artistic expression or self-care journaling for this purpose. While
creating new laws governing the permissibility of certain categories of evidence is a task for
the political branches of our government, we note for the General Assembly’s consideration
that other states have limited or considered limiting the use of defendants’ creative
expression as evidence in cases where the literal truth of the expression is dubious. See, e.g.,
An Act to Add Section 352.2 to the Evidence Code, Relating to Evidence (effective Jan. 1,
2023) (to be codified at 2022 Cal. Stat. 973) (“In any criminal proceeding where a party seeks
to admit as evidence a form of creative expression, the court, while balancing the probative
value of that evidence against the substantial danger of undue prejudice[,] . . . shall consider[]
that[] . . . the probative value of such expression for its literal truth or as a truthful narrative
is minimal unless that expression is created near in time to the charged crime or crimes,
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64, 68 (1993) (marks omitted) (citing State v. Reynolds, 307 N.C. 184, 191
(1982)) (“There is[] . . . a [] kind of malice which is defined as nothing more than that
condition of mind which prompts a person to take the life of another intentionally
without just cause, excuse, or justification.”). Defendant’s motion to dismiss for
insufficient evidence was properly denied.
B. Motion to Dismiss: Fatal Variance
¶ 16 Next, Defendant argues that the trial court erred in denying his motion to
dismiss because the indictment fatally varied from the jury instruction at trial. The
indictment alleged that Defendant “solicit[ed] [Patty] to commit the felony of Murder,
[N.C.G.S. §] 14-17, of persons known to [] [D]efendant, to wit: C.P., C.D., M.C., C.C.,
C.E., C.E., A.H., N.B., D.B., H.D., L.G., D.B., C.S.” The jury, meanwhile, was
instructed the State had to prove “Defendant solicited, that is urged or tried to
persuade another . . . to murder another person” and that “Defendant intended that
the person he solicited murder the alleged victim.” Defendant contends the variance
between the indictment and the instruction warrant reversal on appeal.
¶ 17 However, Defendant’s argument appears to be little more than an allegation
of instructional error clothed as fatal variance. Fatal variance occurs when a
bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail
not otherwise publicly available.”); see also S.B. S7527, 244th Leg. Session (N.Y. 2022)
(awaiting vote by N.Y. State Assembly).
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discrepancy existed between the language in the indictment and the evidence at trial.
See State v. Glenn, 221 N.C. App. 143, 147 (2012) (“A variance between the criminal
offense charged and the offense established by the evidence is in essence a failure of
the State to establish the offense charged.”); State v. Watson, 272 N.C. 526, 527
(1968) (quoting State v. Jackson, 218 N.C. 373, 376 (1940)) (“‘It is a rule of universal
observance in the administration of criminal law that a defendant must be convicted,
if convicted at all, of the particular offense charged in the bill of indictment. The
allegation and proof must correspond.’”). While occasional analyses in our caselaw
have discussed jury instructions in relation to fatal variance, none have fully
untethered a fatal variance analysis from discussion of the evidence itself in the way
Defendant attempts to do here. See, e.g., State v. Turner, 98 N.C. App. 442, 448 (1990)
(“[W]e believe that the State’s evidence does support the trial court’s instruction;
however, the indictment does not.”); State v. Charleston, 248 N.C. App. 671, 678
(2016) (marks omitted) (“Generally, an impermissible variance has occurred when,
although the State’s evidence might support the trial court’s instruction, the
indictment does not.”).
¶ 18 Our caselaw contains a mechanism for contesting the accuracy of jury
instructions; that mechanism is alleging instructional error. Carrington v. Emory,
179 N.C. App. 827, 829 (2006) (“A trial court must instruct the jury on the law with
regard to every substantial feature of a particular case.”). And, where a defendant
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alleges on appeal that instructional error occurred after having not objected at trial,
he must specifically allege plain error to invoke our review. N.C. R. App. P. 10(a)(4)
(2022) (emphasis added) (“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by rule or law without any
such action nevertheless may be made the basis of an issue presented on appeal when
the judicial action questioned is specifically and distinctly contended to amount to
plain error.”); State v. Collington, 375 N.C. 401, 411 (2020) (marks omitted) (“The
purpose of Rule 10(a)(4) is to encourage the parties to inform the trial court of errors
in its instructions so that it can correct the instructions and cure any potential errors
before the jury deliberates on the case and thereby eliminate the need for a new trial.
Indeed, even when the plain error rule is applied, it is the rare case in which an
improper instruction will justify reversal of a criminal conviction when no objection
has been made in the trial court.”). Defendant did not seek our review for plain error,
and we will not entertain an improperly appealed instructional error argument
simply because it arrived within the Trojan horse of a fatal variance heading in
Defendant’s brief. We dismiss this challenge.
C. Rules 401 and 402
¶ 19 Defendant next argues the trial court erred in admitting evidence that was
irrelevant under Rules 401 and 402 of our Rules of Evidence. He bases this argument
on the admission of two groups of evidence: (1) a collection of drawings and notes
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depicting the Joker and a variety of weapons, and (2) testimony from eleven of the
thirteen people on the “Kill List” and a relative of the twelfth. “Whether evidence is
relevant is a question of law, thus we review the trial court’s admission of the
evidence de novo.” State v. Kirby, 206 N.C. App. 446, 456 (2010).
¶ 20 “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1,
Rule 401 (2021). “The value of the evidence need only be slight.” State v. Roper, 328
N.C. 337, 355, cert. denied, 502 U.S. 902, 116 L. Ed. 2d. 232 (1991). Moreover, “[i]n
order to be relevant, evidence need not bear directly on the question in issue if it is
helpful to understand the conduct of the parties, their motives, or if it reasonably
allows the jury to draw an inference as to a disputed fact.” State v. Miller, 197 N.C.
App. 78, 86, disc. rev. denied, 363 N.C. 586 (2009).
¶ 21 Here, both groups of evidence—the drawings and the testimony—are relevant.
The drawings would help the jury determine Defendant’s state of mind and evaluate
whether the proposed crime, as he imagined it, met the requirements for solicitation.
See supra at ¶ 14. This is especially pertinent in a case where, as here, a jury may
have understood Defendant’s proposition as a joke or otherwise been skeptical about
his sincerity without a fuller glimpse into his state of mind at the time of his
discussion with Patty. Furthermore, the testimony was relevant to show that the
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people described on Defendant’s “Kill List” were real and to further demonstrate that
he had the requisite specific intent to have solicited Patty to commit first-degree
murder. As a result, the admission of the two groups of evidence was proper.
D. Rule 403
¶ 22 Defendant further argues the drawings and testimony discussed with respect
to Rules 401 and 402, if relevant, had “probative value [that was] substantially
outweighed by the danger of unfair prejudice” under Rule 403. See N.C.G.S. § 8C-1,
Rule 403 (2021) (“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”). “A trial judge’s decision under Rule
403 regarding the relative balance of probative weight and potential for prejudice will
only be overturned for an abuse of discretion.” State v. Hyman, 153 N.C. App. 396,
401-02 (2002), cert. denied, 357 N.C. 253 (2003). “[W]here the trial court is given
discretion to make a decision and exercises that discretion, we may only reverse that
decision if the appellant shows that the decision was not the result of a reasoned
choice.” State v. Jordan, 128 N.C. App. 469, 475, disc. rev. denied, 348 N.C. 287(1998).
¶ 23 At the threshold, we note that both groups of evidence—Defendant’s Joker-
related notes and drawings and the testimony of the individuals on the “Kill List”—
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created an undeniable risk of prejudice to Defendant. We have little doubt that
exposure to detailed records of Defendant’s violent thoughts, especially when paired
with live testimony from the young men and women those thoughts concerned, would
have stirred the emotions of the jurors in this case. Nonetheless, the existence of
some prejudice will not warrant exclusion under Rule 403; rather, “[r]elevant
evidence is admissible, despite its prejudicial effect, unless the evidence is unfairly
prejudicial.” State v. Moseley, 338 N.C. 1, 33 (1994) (emphasis added), cert. denied,
514 U.S. 1091, 131 L. Ed. 2d 738 (1995). Our Supreme Court, for example, has held
that a trial court erred under Rule 403, not when evidence would inflame the jury in
the general sense, but instead when its probative value is so comparatively negligible
that it would “tend solely to inflame the jurors.” State v. Hennis, 323 N.C. 279, 284
(1988) (emphasis added).
¶ 24 Moreover, whether evidence was unfairly prejudicial is a circumstantial
judgment that depends on the context of its presentation. Of photographic evidence,
for example, our Supreme Court has said the following:
The test for excess is not formulaic: there is no bright line
indicating at what point the number of crime scene or
autopsy photographs becomes too great. The trial court’s
task is rather to examine both the content and the manner
in which photographic evidence is used and to scrutinize
the totality of circumstances composing that presentation.
What a photograph depicts, its level of detail and scale,
whether it is color or black and white, a slide or a print,
where and how it is projected or presented, the scope and
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clarity of the testimony it accompanies—these are all
factors the trial court must examine in determining the
illustrative value of photographic evidence and in weighing
its use by the [S]tate against its tendency to prejudice the
jury.
Id. at 285.
¶ 25 Here, although the State only actually used the two groups of evidence
cursorily—each segment of testimony involving a person on the “Kill List” lasted less
than four transcript pages, many far less—the danger of unfair prejudice resulting
from the State’s indication it was going to introduce the notes and drawings and have
almost all of the individuals named on the “Kill List” testify was, at the times
Defendant objected, substantial. However, because the trial court chose to admit both
groups of evidence on reasonable bases offered by the State—including the drawings’
tendency to illustrate Defendant’s mental state, the witness’s tendency to
demonstrate that the “Kill List’s” stated victims were real people, and the State’s
assurance that the interviews would be “really quick”—we cannot say the trial court’s
admission of the evidence rose to the level of an abuse of discretion. While we find it
likely that the jury’s passions were stirred by the drawings and testimony, the
evidence served a probative function arguably above and beyond inflaming them.
E. Failure to Intervene
¶ 26 Finally, Defendant argues the trial court erred in failing to intervene ex mero
motu during three sections of the State’s closing argument: (1) when the State
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characterized the evidence presented in a manner that conformed to its narrative at
trial; (2) when the State remarked that Patty did not need to know of the “Kill List”
for Defendant to be found guilty of solicitation to commit murder; (3) when the State
allegedly demeaned Defendant’s character by insinuating that his flat affect
indicated a lack of remorse; and (4) when the State allegedly appealed to the jury’s
sympathies discussing the evil nature of the Joker and alluding to the national
prevalence of mass shootings.
¶ 27 “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.” State v. Jones, 355 N.C. 117 (2002).
[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 (2017). While “we have long recognized that
prosecutors are given wide latitude in the scope of their argument and may argue to
the jury the law, the facts in evidence, and all reasonable inferences drawn
therefrom[,]” id. at 180 (marks omitted), it remains the case that “an attorney may
not become abusive, inject his personal experiences, express his personal belief as to
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the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or
make arguments on the basis of matters outside the record” during closing
arguments. N.C.G.S. § 15A-1230(a) (2021).
¶ 28 Furthermore, a defendant appealing based on the trial court’s failure to
intervene ex mero motu “has the burden to show a reasonable possibility that, had
the errors in question not been committed, a different result would have been reached
at the trial.” State v. Goins, 377 N.C. 475, 2021-NCSC-65, ¶ 11 (marks omitted).
“When evaluating the prejudicial effect of an improper closing argument, we examine
the statements in context and in light of the overall factual circumstances to which
they refer.” Id. at ¶ 13 (marks omitted). In so doing, “we look to the evidence
presented at trial and compare it with what the jury actually found[,]” as
“[i]ncongruity between the two can indicate prejudice in the conviction.” Huey, 370
N.C. at 185; see also Goins, 2021-NC-65 at ¶ 16 (basing a finding that improper
statements did not prejudice the defendant, in part, on the jury’s re-examination of a
piece of evidence during deliberations).
1. Characterization of the Evidence
¶ 29 Defendant argues the State improperly characterized the evidence by
indicating that Patty was terrified that Defendant was urging her to kill people, that
Defendant had the means to carry out an attack on the targets identified on his “Kill
List,” that Defendant’s father knew about the list and did not take appropriate action,
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and that one of the people named on the list had specifically called Defendant a
“chicken.” None of these were “so grossly improper as to impede [] [D]efendant’s right
to a fair trial.” Huey, 370 N.C. at 179.
¶ 30 As mentioned previously, the elements of solicitation to commit first-degree
murder are that Defendant counseled, enticed, or induced another to commit an
unlawful killing with malice and the specific intent to kill formed after some measure
of premeditation and deliberation. See supra at ¶ 11. Assuming, as we must, that
the jury correctly applied the instructions provided to it with respect to the charge at
issue, neither the father’s purported inaction nor whether the Defendant had
specifically been called “chicken” would have had any logical relationship to the
elements of the offense. See State v. Prevatte, 356 N.C. 178, 254 (2002) (“Jurors are
presumed to follow a trial court’s instructions.”), cert. denied, 538 U.S. 936, 155 L. Ed.
2d 631 (2003). These comments, therefore, did not impede Defendant’s right to a fair
trial—let alone prejudice him.
¶ 31 Defendant’s ability to act on his “Kill List” and Patty’s response bear a clearer
relationship to the elements of the offense, as they tend to lend credibility to the
State’s contention that Defendant had the requisite intent. However, in both of these
cases, the characterizations were, at worst, unfavorable interpretations of the
evidence presented at trial. With respect to the actionability of the “Kill List,”
Defendant argues that he could not have taken action because “[Defendant’s] father
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secured or removed all weapons [from his home] when asked to do so.” However, the
State’s argument most plausibly refers to the actionability of the “Kill List” at the
time of the solicitation, after which the weapons in the home were removed.
Furthermore, with respect to the object of Patty’s fear, Patty described herself as
“terrified” and expressed that she “wanted out of it, too, and [] wanted to go and talk
to someone as soon as possible.” While perhaps uncharitable to Defendant, this
statement could fairly be interpreted as Patty being frightened by Defendant seeking
her participation in his plans.
2. Summation of the Law
¶ 32 Defendant also argues the trial court erred by failing to intervene when the
State remarked that Patty did not need to know of the “Kill List” for Defendant to be
found guilty of solicitation to commit murder. However, for the reasons discussed in
Part A of our analysis, see supra at ¶ 14, this is a correct statement of the law of
solicitation, and the trial court did not err.
3. Demeaning Defendant’s Character
¶ 33 Defendant next argues the trial court erred by failing to intervene when the
State demeaned his character by suggesting he lacked remorse. However, the only
point in the transcript to which Defendant directs our attention for this proposition
is a single instance in which the State described Defendant as “[v]ery matter-of-fact.”
Even assuming such a mundane turn of phrase qualifies as demeaning Defendant,
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this characterization was supported—almost verbatim—by testimony presented at
trial. In this regard, then, the trial court also did not err.
4. Statements on the Joker and Mass Shootings
¶ 34 The last occasion on which Defendant argues the trial court erred by failing to
intervene ex mero motu is when the State appealed to the jury’s sympathies by
describing the nature of the Joker and insinuating that Defendant was planning a
mass shooting:
Now, I’m not going to talk about current events and what’s
going on everywhere, but you are not required to empty
your brains of everything you know about these situations.
...
. . . . When you all go back there you can educate yourselves
and talk about the Joker. An emblem of evil. The most
twisted character there is. Mass murderer. Crime sprees.
Hurting other people. That’s the evil that this man . . .
embraced. And once you do that, as completely as he did,
there’s no stepping back. There’s no stepping back.
In addition to the specific occasion above, Defendant also points out three other
occasions during closing arguments when the State referenced mass shootings:
[Patty and her mother went] to the police department
because they [knew] something bad may occur. They
want[ed] to prevent a mass shooting.
....
If I call you and say hey, let’s go kill some people -- because
that’s exactly what he’s saying here, let’s go kill some of
these people. I call you and I mean it, and I have that
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malice in my heart because I felt like people had bullied
me. Isn’t that how mass shootings start?
....
Well, shootings at school, that never happens. [The
principal] doesn’t need to be worried about that. That
never happens in the United States. No reason for him to
be concerned about that.
....
[Patty] didn’t know who they were going to be. That’s how
mass shootings operate. You may not know who all the
victims are. The important thing is he solicited to murder.
¶ 35 Our Supreme Court has found the State’s improper remarks to be reversible
error under similar circumstances. In State v. Jones, for example, the North Carolina
Supreme Court held that the trial court abused its discretion “when it overruled [the]
defendant’s timely objection to the prosecutor’s references to the Columbine school
shooting and the Oklahoma City bombing[,]” two high-profile mass killings. Jones,
355 N.C. at 131, 133. The Court reasoned that
[t]he impact of the statements in question, which conjure
up images of disaster and tragedy of epic proportion, is too
grave to be easily removed from the jury’s consciousness,
even if the trial court had attempted to do so with
instructions. Moreover, the offensive nature of the
remarks exceeds that of other language that has been tied
to prejudicial error in the past.
Id. at 132. Based on this reasoning, we are persuaded that, at least to some degree,
the remarks were improper, as they were clearly designed to instill in the jury the
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idea that Defendant’s conviction would prevent another in a string of nationally
salient acts of mass violence.
¶ 36 However, unlike in Jones, where the issue was whether the trial court abused
its discretion in overruling the defendant’s objection to the State’s improper
comments at trial, id. at 137, Defendant’s contention is that the trial court failed to
intervene ex mero motu. The basic impropriety of the State’s comment, then, is only
the first prong of the analysis, to be followed by a determination of “whether the
argument was so grossly improper as to impede the defendant’s right to a fair trial.”
Huey, 370 N.C. at 179. As to this second prong, we remain unconvinced. If the jury
accepted that Defendant sincerely intended to kill the thirteen people named on his
“Kill List”—which the verdict indicates was the case—whether that intent would
have been acted upon in the form of a typical mass shooting or some other act of
violence would have been immaterial to the elements of the crime; the question posed
was whether Defendant solicited Patty to commit first-degree murder in some form,
not whether he solicited her to commit first-degree murder via mass shooting in
particular. In other words, the State’s invocation of high-profile mass shootings
would have painted in the juror’s minds only one of many scenarios which could just
as legitimately have supported the verdict.
¶ 37 Furthermore, we disagree with Defendant’s contention that he was prejudiced
by the remarks. In attempting to establish prejudice, Defendant correctly points out
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that “the State raised the . . . specter of mass shootings and school shootings where
these were not even discussed . . . and were not relevant to the narrow questions to
be decided by the jury.” However, this alone does not establish prejudice, especially
when “we examine the statements in context and in light of the overall factual
circumstances to which they refer.” Goins, 2021-NCSC-65 at ¶ 13 (marks omitted).
The comments, while improper, took place during a closing argument consistently
grounded in the concrete, factual details discussed at trial, not an emotional appeal
to the jury. Furthermore, there were multiple items of physical evidence and
segments of testimony evidencing Defendant’s intent, and the act of solicitation itself
was established by a written record of messages. Against such great evidentiary
weight, we remain unconvinced that the State’s improper comment prejudiced
Defendant.
¶ 38 As such, even though these comments were improper, the trial court’s failure
to intervene does not constitute reversible error.
CONCLUSION
¶ 39 The evidence at trial was sufficient to convict Defendant of solicitation to
commit first-degree murder, notwithstanding Defendant’s contentions that his
actions did not qualify as solicitation and the fact that Patty was unaware of specific
targets. Defendant’s nominal fatal variance argument was, in substance, an
unpreserved allegation of instructional error at trial, and he failed to specifically seek
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our review for plain error, thus abandoning the argument. Furthermore, all evidence
contested on appeal was both relevant and not substantially more prejudicial than
probative. Finally, the State’s remarks during closing arguments, despite being
improper, were neither prejudicial nor so grossly improper that they denied
Defendant his right to a fair trial.
NO ERROR IN PART; DISMISSED IN PART; NO PREJUDICIAL ERROR IN
PART.
Judges DIETZ and WOOD concur.