State v. King

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-59

No. COA21-93

Filed 1 February 2022

Burke County, No. 18 CRS 050914

STATE OF NORTH CAROLINA

v.

DARIUS HEASLEY KING, Defendant.

Appeal by Defendant from judgment entered 17 March 2020 by Judge Alan Z.

Thornburg in Burke County Superior Court. Heard in the Court of Appeals 2

November 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Marc

Bernstein, for the State.

Hynson Law, PLLC, by Warren D. Hynson, for Defendant.

GRIFFIN, Judge.

¶1 Defendant Darius Heasley King appeals from the trial court’s judgment

entering a jury verdict finding Defendant guilty of first-degree murder. Defendant

contends (1) the State failed to present substantial evidence of premeditation and

deliberation; (2) the trial court committed plain error by failing to instruct the jury ex

mero motu on the defense of automatism; (3) the trial court abused its discretion by

not intervening ex mero motu to prevent improper juror questioning during voir dire;

and (4) the trial court reversibly erred by not intervening ex mero motu to prevent

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improper remarks in the State’s closing statement. We discern no error.

I. Factual and Procedural Background

¶2 This case arises out of the murder of Hubert Roland Hunter, Jr., by Defendant

in Hunter’s apartment on 24 March 2018. The evidence at trial tended to show as

follows:

¶3 Defendant and Hunter lived across the hall from one another in the Sienna

apartment complex in Morganton. Mary Williams lived in the apartment directly

underneath Hunter. Around midnight on the night of 24 March 2018, Williams heard

a “big ruckus upstairs” coming from Hunter’s apartment and thought someone “was

just playing or something.” Williams heard a “whole lot of stomping and moving

around and shuffling”, but was not concerned because she routinely heard running

noises coming from Hunter’s apartment. Williams did not call the police.

¶4 The next afternoon, two of Hunter’s friends attempted to visit with Hunter at

his apartment and instead found his body lying on the apartment floor. Hunter’s

friends called the police. Police arrived at Hunter’s apartment and discovered his

body still lying on the floor, surrounded by signs of an altercation. Hunter’s body was

lying face-down across the threshold between his bedroom and hallway, blood

staining the side of his face and his right arm bent behind his back. A plastic bag

and an orange and blue sweatshirt were on the floor near Hunter’s head. Bloodstains

scattered the nearby floor and walls. Three kitchen drawers were left open. In the

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living room, an area rug was “[b]unched up” and the couch and other furniture were

in disarray.

¶5 Shortly thereafter, a maintenance worker with the Sienna apartment complex

reported to police that he discovered a white plastic bag containing bloodstained

clothing in a dumpster behind the apartments. Police recovered the bag from the

dumpster, and found a pair of jeans and an eight-inch kitchen knife inside the bag.

The jeans and knife were also stained with what appeared to be blood.

¶6 The State conducted DNA analysis on items found in Hunter’s apartment and

the dumpster. DNA on the knife and a section of the orange and blue sweatshirt

matched Hunter’s DNA. DNA found on the knife also indicated a second, minor

contributor, but the analysis was inconclusive and the State could not determine

whether Defendant “did or did not handle the handle of the knife.” The collar of the

sweatshirt and the waist of the jeans contained DNA matching Defendant. The

State’s medical examiner also examined the injuries on Hunter’s body. Hunter

sustained three stabbing and slashing wounds to his neck, one of which was deep

enough to fracture his spine. He also sustained blunt force injuries to his head, arms,

and legs. Additionally, the medical examiner identified evidence of hemorrhaging in

Hunter’s blood vessels, neck muscles, and tongue, which led the medical examiner to

conclude that strangulation was the ultimate cause of Hunter’s death.

¶7 Law enforcement interviewed Defendant multiple times. The State played

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recordings of Defendant’s interviews for the jury. During the first interview on 26

March 2018, Defendant told law enforcement that, though he knew Hunter, he did

not know Hunter had been killed, did not know any reason why Hunter would have

been killed, and personally would not have fought with Hunter.

¶8 Law enforcement arrested Defendant and interviewed him again the next day.

During this second interview, Defendant told law enforcement that he went to

Hunter’s apartment on March 24 to collect three dollars that Hunter owed him for a

cell phone. Defendant said that Hunter refused to pay him. Defendant explained

that he threatened to “beat the [expletive] out of [Hunter]”, and Hunter “pulled a

knife” in response. Defendant then “walked up on [Hunter]” and the two began

fighting. Defendant admitted that he punched Hunter, choked him, and put the

plastic bag over his head, but denied stabbing Hunter. According to Defendant,

Hunter held the knife during the entirety of the fight and was incidentally stabbed

in the neck while Hunter and Defendant wrestled. Defendant admitted that he took

the knife out of Hunter’s neck, then threw his own bloodstained jeans and the knife

into the dumpster behind the apartment complex.

¶9 Throughout the second interview, Defendant maintained that he fought in self-

defense after Hunter grabbed the knife. Defendant told law enforcement that he

believed Hunter wanted to hurt him with the knife. Defendant insisted Hunter had

used the knife to cut him, and showed law enforcement cuts on his hands and arms.

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Defendant admitted that he had choked Hunter in an attempt to make him pass out

and stop fighting. Defendant claimed that he had also passed out at some point

during the struggle, and that he had “blacked out” and “go[ne] off” out of anger.

¶ 10 Law enforcement took Defendant to the magistrate’s office following his arrest,

where Defendant gave a third interview to news media. Defendant once again

explained that he went to collect money from Hunter, then beat Hunter with his fists

in self-defense when Hunter pulled out a knife.

¶ 11 Defendant presented a single witness before the jury, a friend who testified

that he was with Defendant most of the day and evening on 24 March 2018 and

claimed Defendant never mentioned Hunter. At the close of the State’s evidence and

at the close of all evidence, Defendant moved to dismiss the charge of first-degree

murder, arguing the State failed to show sufficient evidence of premeditation and

deliberation. The trial court denied both motions. The jury found Defendant guilty

of first-degree murder. The trial court entered judgment on the jury’s verdict and

sentenced Defendant to life imprisonment without the possibility of parole.

Defendant gave notice of appeal in open court.

II. Analysis

A. Preservation

¶ 12 Defendant filed a conditional petition for writ of certiorari alongside his brief

on appeal, asking this Court to consider his appeal of the trial court’s judgment in the

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event that defense counsel’s oral notice of appeal was insufficient. Rule 4 of the North

Carolina Rules of Appellate Procedure states that a party may “appeal from a

judgment or order of a superior or district court rendered in a criminal action” by

“giving oral notice of appeal at trial,” and such notice “shall designate the judgment

or order from which appeal is taken and the court to which appeal is taken[.]” N.C.

R. App. P. 4(a)(1), (b) (emphasis added).

¶ 13 Here, defense counsel informed the trial court in open court: “With respect to

jury’s verdict, we enter a notice of appeal.” Defense counsel did not specifically state

that Defendant sought to appeal from the trial court’s judgment entering the jury

verdict. Nonetheless, Defense counsel’s words were clear enough to convey

Defendant’s intent to appeal his first-degree murder conviction to this Court.

Furthermore, both parties have complied at each stage of the appellate process and

the State has not been prejudiced by the imperfect wording of Defendant’s appeal.

See State v. Daughtridge, 248 N.C. App. 707, 712, 789 S.E.2d 667, 670 (2016) (holding

the “[d]efendant’s oral notice of appeal was sufficient to confer jurisdiction upon this

Court” even though defense counsel’s language was “not a model of clarity,” where

the language “manifest[ed] [the d]efendant’s intention to enter a notice of appeal” and

“the State [did] not contend that it was misled or prejudiced in any way by any defect

in [the d]efendant’s notice of appeal”). Therefore, we hold that Defendant’s oral notice

of appeal sufficiently conferred jurisdiction on this Court. We dismiss Defendant’s

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conditional petition for writ of certiorari as moot.

¶ 14 However, Defendant has preserved for review only the trial court’s judgment

entering the jury’s verdict convicting him of first-degree murder. In his brief on

appeal, Defendant includes factual and procedural history from a pre-trial hearing

regarding Defendant’s competency to stand trial. The Record contains no notice of

appeal challenging the trial court’s decision from the competency hearing. Therefore,

we consider only the evidence presented in Defendant’s first-degree murder trial in

our review.

B. Premeditation and Deliberation

¶ 15 Defendant contends the trial court erred by denying his motion to dismiss by

arguing “there was insufficient evidence of premeditation and deliberation to support

first-degree murder.”

¶ 16 We review the trial court’s denial of a motion to dismiss to determine whether,

in the light most favorable to the State, “there [was] substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense included therein, and

(2) of [the] defendant’s being the perpetrator of such offense.” State v. Powell, 299

N.C. 95, 98, 261 S.E.2d 114, 117 (1980). This Court’s review is “concerned only about

whether the evidence [was] sufficient for jury consideration, not about the weight of

the evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455–56 (2000)

(citation omitted). “Contradictions and discrepancies do not warrant dismissal of the

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case but are for the jury to resolve.” Id. at 379, 526 S.E.2d at 455 (citation omitted).

¶ 17 “First-degree murder is the intentional and unlawful killing of a human being

with malice and with premeditation and deliberation.” State v. Thomas, 350 N.C.

315, 346, 514 S.E.2d 486, 505 (citation omitted), cert. denied, 528 U.S. 1006 (1999).

“’Premeditation means that the act was thought over beforehand for some length of

time,’ however short.” State v. Leazer, 353 N.C. 234, 238, 539 S.E.2d 922, 925 (2000)

(citation omitted). “Deliberation means an intent to kill, carried out in a cool state of

blood, in furtherance of a fixed design for revenge or to accomplish an unlawful

purpose and not under the influence of a violent passion, suddenly aroused by legal

provocation or lawful or just cause.” State v. Trull, 349 N.C. 428, 448, 509 S.E.2d

178, 191 (1998) (citation omitted). “Premeditation and deliberation are mental

processes which are ordinarily . . . prove[n] by circumstantial evidence.” State v.

Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992). Our Courts have found that

the following circumstances can evidence premeditation and deliberation:

(1) absence of provocation on the part of the deceased, (2)

the statements and conduct of the defendant before and

after the killing, (3) threats and declarations of the

defendant before and during the occurrence giving rise to

the death of the deceased, (4) ill will or previous difficulties

between the parties, (5) the dealing of lethal blows after the

deceased has been felled and rendered helpless, (6)

evidence that the killing was done in a brutal manner, and

(7) the nature and number of the victim's wounds.

Id. (citation omitted).

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¶ 18 Defendant’s conduct immediately before, during, and after the altercation with

Hunter provides sufficient, substantial evidence of premeditation and deliberation.

The State’s evidence showed that Defendant went to Hunter’s apartment because he

believed Hunter possessed money that rightfully belonged to him, and demanded that

Hunter give it to him. Defendant threatened to “beat the [expletive] out of [Hunter].”

See State v. Potter, 295 N.C. 126, 131, 244 S.E.2d 397, 401 (1978) (holding that

“evidence of [the] defendant’s earlier threats against deceased[ and] his statements

made shortly after the killing” allowed “legitimate inferences of premeditation and

deliberation to be drawn”). The State’s medical examiner also testified that Hunter

sustained three stabbing and slashing wounds to his neck, fracturing his spine; blunt

force injuries to his head, arms, and legs; and hemorrhaging in his blood vessels, neck

muscles, and tongue. See State v. Robbins, 319 N.C. 465, 511–12, 356 S.E.2d 279,

306 (1987) (“[T]he nature and number of the victim’s wounds is a circumstance from

which premeditation and deliberation can be inferred.” (citation omitted)). Defendant

did not call the police after he fought with Hunter, or otherwise seek medical

assistance. Rather, Defendant went home and slept, then disposed of his bloodied

jeans and the knife in a dumpster the next day. See State v. Taylor, 362 N.C. 514,

532, 669 S.E.2d 239, 257 (2008) (“[The defendant’s] attempts to cover up his

participation in the murder also support a finding of premeditation and deliberation.”

(citation omitted)); State v. Sierra, 335 N.C. 753, 759, 440 S.E.2d 791, 795 (1994)

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(considering as evidence of premeditation and deliberation that “[a]fter the shooting,

[the] defendant returned home, hid the murder weapon, and went to sleep”). In the

light most favorable to the State, there was sufficient evidence of premeditation and

deliberation to submit the charge of first-degree murder to the jury.

¶ 19 Defendant contends the evidence that he “blacked out when [Hunter] got that

knife in his hand” and that Hunter attacked Defendant with the knife “fatally

undermined the State’s theory of premeditation and deliberation” because the

evidence showed that Defendant fought Hunter “in a state of passion” in response to

“sufficient provocation” by Hunter. See State v. Corn, 303 N.C. 293, 298, 278 S.E.2d

221, 224 (1981) (holding insufficient evidence of premeditation and deliberation

where “[a]ll the evidence tend[ed] to show that [the] defendant shot [the victim] after

a quarrel, in a state of passion, without aforethought or calm consideration”

(emphasis added)); State v. Huggins, 338 N.C. 494, 498, 450 S.E.2d 479, 482 (1994)

(“[W]ords or conduct not amounting to an assault or a threatened assault may be

enough to arouse a sudden and sufficient passion in the perpetrator to negate

deliberation[.]” (emphasis added) (citations omitted)). However, this was only some

of the evidence presented to the jury. There was other substantial evidence, as

described above, which was sufficient to submit the issue of premeditation and

deliberation to the jury, and it was for the jury to weigh the evidence presented.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455–56.

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¶ 20 The trial court did not err by denying Defendant’s motion to dismiss the charge

of first-degree murder.

C. Jury Instruction on Defense of Automatism

¶ 21 Defendant argues that the trial court “plainly erred in failing to instruct on the

complete defense of automatism where that instruction was a substantial feature of

the case arising from the evidence.” Defendant acknowledges that neither party

requested a jury instruction on automatism and, therefore, the issue was not

preserved for review by this Court. “[U]npreserved issues related to jury instructions

are reviewed under a plain error standard[.]” State v. Collington, 375 N.C. 401, 410,

847 S.E.2d 691, 698 (2020). “Defendant is entitled to relief only if the instructions

amounted to plain error, which is error so fundamental as to amount to a miscarriage

of justice or which probably resulted in the jury reaching a different verdict than it

otherwise would have reached.” State v. Gainey, 355 N.C. 73, 106, 558 S.E.2d 463,

484 (2002) (citation, quotation marks, and internal marks omitted).

¶ 22 The trial court has a duty to instruct the jury on all substantive features of the

case, regardless of whether a particular instruction is requested by a party. State v.

Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1988). “All defenses arising from the

evidence presented during the trial constitute substantive features of a case and

therefore warrant the trial court’s instruction thereon.” Id. (citation omitted).

However, “the trial court should never give instructions that are not supported by a

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reasonable view of the evidence.” State v. Clark, 324 N.C. 146, 162, 377 S.E.2d 54,

64 (1989) (citation omitted); see id. (“[E]vidence which merely shows it possible for

the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is

an insufficient foundation for a verdict, and should not be left to the jury.” (citation

omitted)).

¶ 23 Automatism, or unconsciousness, is a “complete defense to a criminal charge

. . . because ‘[t]he absence of consciousness not only precludes the existence of any

specific mental state, but also excludes the possibility of a voluntary act without

which there can be no criminal liability.’” State v. Jerrett, 309 N.C. 239, 264–65, 307

S.E.2d 339, 353 (1983) (citation omitted). Automatism is, “under the law of this State,

. . . an affirmative defense; and [] the burden rests upon the defendant to establish

this defense, unless it arises out of the State’s own evidence, to the satisfaction of the

jury.” State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975). Our Court has

stated that if “the evidence of unconsciousness ‘arises out of the State’s own evidence,’

the burden rests on the State to prove the defendant’s consciousness beyond a

reasonable doubt.” State v. Tyson, 195 N.C. App. 327, 331, 672 S.E.2d 700, 704 (2009)

(citation omitted).

¶ 24 During its case-in-chief, the State presented recordings of each of Defendant’s

interviews with law enforcement and the news media. Recordings from Defendant’s

second interview included multiple instances of Defendant stating that he “blacked

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out” during his altercation with Hunter. “I didn’t know what was going on in my

mind[,]” Defendant continued, “I didn’t know what I was doing . . . when I go off, I

black out like that.” “I blacked out when he got that knife in his hand. That’s all I

remember.” However, although Defendant repeatedly stated that he had “blacked

out”, he was able to describe his fight with Hunter with great detail and told law

enforcement that he “knew what was going on.” No other evidence presented during

either the State’s case-in-chief or during Defendant’s presentation of evidence tended

to show that Defendant was unconscious during his altercation with Hunter, or that

Defendant had any history of concerns with unconsciousness.

¶ 25 This evidence did not warrant an instruction on automatism. Defendant’s own

self-serving statements were insufficient evidence to satisfy a reasonable jury that

Defendant lacked consciousness. Our Courts have recognized in a myriad of

circumstances that the evidence must include something more than a defendant’s

self-serving statements to substantively support a jury instruction. See State v.

Thomas, 350 N.C. 315, 347, 514 S.E.2d 486, 506 (1999) (citation omitted) (holding

trial court did not err by not giving jury instruction on second-degree murder where

“the only evidence offered by defendant to negate first-degree murder was his own

testimony denying his involvement in the crime”); State v. Smith, 347 N.C. 453, 464,

496 S.E.2d 357, 363 (1998) (holding the defendant’s self-serving statements that he

lacked requisite intent were insufficient evidence to rebut elements of the crime

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charged); see also State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987)

(“Testimony of a self-serving declaration made by a defendant following an alleged

crime is incompetent as substantive evidence.” (citation omitted)). Furthermore, our

Courts have traditionally held that a jury instruction on automatism was appropriate

based on evidence beyond a defendant’s own self-serving statements. Jerrett, 309

N.C. at 266, 307 S.E.2d at 353 (holding automatism instruction was appropriate

where the defendant, his parents, and two psychiatrists all testified to his history of

black-outs); State v. Fields, 324 N.C. 204, 212, 376 S.E.2d 740, 744–45 (1989) (holding

evidence supported automatism instruction where the defendant, his family, and an

expert witness testified that defendant had a history of being “in his own world”);

Tyson, 195 N.C. App. at 331, 672 S.E.2d at 704 (holding evidence gave rise to jury

instruction on automatism where State’s witnesses testified to drugging the

defendant until he was unresponsive before engaging in sexual acts with him).

¶ 26 This case is similar to State v. Boyd, 343 N.C. 699, 473 S.E.2d 327 (1996). In

Boyd, the defendant argued “that his own uncontradicted testimony was sufficient

evidence from which the jury could have found that he was unconscious[.]” Id. at 713,

473 S.E.2d at 334. During the trial, the defendant testified that “he could not

remember many of his actions on the day of the crimes[.]” Id. at 714, 473 S.E.2d at

334. The Boyd Court noted that the defendant “pointed only to his own testimony at

trial as evidence to support an instruction on unconsciousness” and that, despite his

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claims of memory loss, the defendant “was able to recall many of the graphic details

of the murders as shown by the inculpatory statement he gave to police within hours

of committing the murders.” Id. (citation omitted). Further, although expert

witnesses testified for the defendant, “neither of [the] defendant’s expert witnesses

gave testimony in support of [the] defendant’s unconsciousness claim.” Id. at 715,

473 S.E.2d at 335. The Boyd Court held “the trial court did not err by refusing to

instruct the jury on unconsciousness” because the defendant “relie[d] only upon his

own self-serving testimony at trial that [was] wholly contradicted by the statement

he gave to police within hours of committing the murders.” Id.

¶ 27 In the present case, Defendant points only to his own self-serving statements

made in his second interview to law enforcement within forty-eight hours of his

altercation with Hunter. The single witness that Defendant presented to the jury did

not give testimony supporting Defendant’s alleged history of “black[ing] out” and

“go[ing] off.” Rather, Defendant told law enforcement in the interview that he

“blacked out” once Hunter pulled out the knife, that he did not know “what was going

on in [his] mind”, and assured law enforcement “[t]hat’s all I remember.” Defendant

also stated that he “knew what was going on” and further recounted specific details

of the altercation that occurred after Hunter got the knife, including claims that he

beat Hunter with his fists, that he choked Hunter, and that Hunter incidentally

stabbed himself in the neck with the knife. Defendant’s ability to recount the events

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of the altercation contradicted his claims of memory loss in the same interview.

¶ 28 That this evidence arose from the State’s case-in-chief does not change our

conclusion. The State had no need to provide additional evidence to satisfy a burden

of proof that Defendant was awake because Defendant’s self-serving statements were

not enough to reasonably show unconsciousness. Cf. Tyson, 195 N.C. App. at 331,

672 S.E.2d at 704 (holding the State had burden to show the defendant was actually

conscious where its own witnesses testified that they caused the defendant to be

unconscious during the time of the offense). Here, no sufficient evidence of

automatism “arose out of the State’s own evidence.” Id. The trial court did not err

by not giving an instruction on automatism of its own accord. Defendant’s statements

in the interview recordings were not evidence from which a reasonable juror could

find automatism, and therefore we cannot say an instruction on automatism would

have had a probable impact on the outcome of this case.

D. Impermissible Questioning During Voir Dire

¶ 29 Defendant asserts that the trial court abused its discretion by not intervening

ex mero motu during the State’s voir dire of prospective jurors when the State asked

“clearly improper” questions which “exceeded the permissible boundaries of voir dire.”

“The nature and extent of the inquiry made of prospective jurors on voir dire

ordinarily rests within the sound discretion of the trial court.” State v. Bond, 345

N.C. 1, 17, 478 S.E.2d 163, 171 (1996) (citation omitted), cert. denied, 521 U.S. 1124

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(1997). “[D]efendant must show abuse of discretion and prejudice to establish

reversible error relating to voir dire.” State v. Bishop, 343 N.C. 518, 535, 472 S.E.2d

842, 850 (1996).

¶ 30 During voir dire, counsel’s “attempts to ‘stake out’ a prospective juror in

advance regarding what his decision might be under certain specific factual scenarios

are improper.” State v. Jaynes, 353 N.C. 534, 549, 549 S.E.2d 179, 192 (2001) (citation

omitted). “Counsel should not fish for answers to legal questions before the judge has

instructed the juror on applicable legal principles by which the juror should be

guided.” State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980). “Jurors

should not be asked what kind of verdict they would render under certain named

circumstances.” Id. In State v. Jaynes, our Supreme Court held that questions which

sought to “pin down the prospective jurors regarding specific mitigating

circumstances that would sway them towards a life sentence” did “not amount to

proper inquiries into whether the prospective jurors could follow the law or the trial

court’s instructions.” Jaynes, 353 N.C. at 550, 549 S.E.2d at 192. However, the

defendant did not challenge questions which asked a juror to explain why she did not

believe in the death penalty, and the Court held that the juror was properly excluded

when those questions clarified that the juror’s “views of the death penalty would have

prevented or substantially impaired the performance of her duties.” Id. at 552, 549

S.E.2d at 194.

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¶ 31 Essentially, there is a range of unacceptable to acceptable questions. On one

end, unacceptable questions tend to ask a juror, “If the evidence shows a particular

set of facts, what would you decide?” or “What facts would you need to hear in order

to convict this defendant?” On the other end, acceptable questions ask, “Do you

acknowledge or believe in the concepts integral to this case?” The trial court has

discretion to decide where an attorney’s question falls on this spectrum.

¶ 32 Defendant asserts that the following questions from the State warranted ex

mero motu intervention by the trial court because they posed hypotheticals that were

inappropriately similar to the facts of this case:

“Does anybody think that a verbal argument justifies the

use of physical violence?”

“Does everybody believe if you couldn’t retreat, then you

think you have the right to defend yourself?”

“Does anyone not believe in the concept of self-defense? In

other words, you think – I will use this example: Jesus

teaches that you turn the other cheek. Does anyone believe

that’s the way it ought to be? If somebody punches me in

the face, I should just turn and walk away and not defend

myself? Anybody really believe that? Again, nothing

wrong with that, I am just making sure.”

“If you were in fear for your life and had a weapon, would

you defend yourself or would you run away?”

¶ 33 The trial court did not abuse its discretion because the State did not ask the

jurors to consider specific circumstances and forecast their ultimate verdict. Mere

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mention of a weapon, a verbal argument, or an inability to retreat did not amount to

an inappropriate “stake out” using fact-specific hypotheticals. Instead, the State

asked the jurors whether they could agree with the law of self-defense as it exists in

North Carolina: a defendant may use lethal force when he reasonably believes such

force is necessary to prevent death or bodily harm arising from a fight he did not

initiate. See State v. Greenfield, 375 N.C. 434, 441, 847 S.E.2d 749, 755 (2020). Each

of the State’s questions reasonably asked: “Would you be willing to accurately apply

the law of self-defense if presented with facts that qualify under the law?” Just as

counsel in Jaynes permissibly inquired whether the juror could ever agree with the

death penalty, the State here acceptably asked the jurors whether they could

personally agree with the law of self-defense, a matter integral to the resolution of

this case. The questions asked in this case were proper inquiries as to whether the

jurors believed in and would follow the applicable law. See State v. Robinson, 339

N.C. 263, 273, 451 S.E.2d 196, 202 (1994).

E. Closing Arguments

¶ 34 Lastly, Defendant argues the trial court “reversibly erred by not intervening

ex mero motu in the State’s closing argument when the State claimed . . . that

[Defendant], not [Hunter], handled the knife in question, thereby misleading the jury

on the central issue at trial: self-defense.” Defendant did not object to the State’s

statements during closing arguments. “The standard of review for assessing alleged

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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, 133, 558 S.E.2d 97, 107 (2002) (citation omitted).

¶ 35 “It is well settled that the arguments of counsel are left largely to the control

and discretion of the trial judge and that counsel will be granted wide latitude in the

argument of hotly contested cases.” State v. Williams, 317 N.C. 474, 481, 346 S.E.2d

405, 410 (1986) (citations omitted). Counsel’s closing arguments may include both

facts presented during trial and any reasonable inferences drawn from those facts in

support of their case. Id. (citation omitted). Counsel “may not argue to the jury facts

not in evidence nor travel outside the record by injecting his personal views and

beliefs.” State v. Monk, 291 N.C. 37, 53, 229 S.E.2d 163, 173 (1976) (citation omitted).

“[D]efendant must show that [counsel’s] comments so infected the trial with

unfairness that they rendered the conviction fundamentally unfair.” State v. Davis,

349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998) (citation omitted).

¶ 36 Defendant contends that it was impermissible for the trial court to allow the

State to assert during closing arguments that “[Hunter] never got a knife”; that cuts

on Defendant’s hands “didn’t come from a knife because [Hunter] never had a knife”;

and that Defendant went into Hunter’s kitchen, acquired the knife himself, and

stabbed Hunter. Contrary to Defendant’s assertion that “the evidence only pointed

STATE V. KING

2022-NCCOA-59

Opinion of the Court

in one direction: that [Hunter] handled the knife, not [Defendant]”, the State’s closing

statement was supported by evidence presented at trial. The uncontradicted evidence

at trial was that neither Hunter nor Defendant had the knife when they first began

arguing. One of them acquired the knife at some point during their altercation. The

evidence showed that three drawers were left open in Hunter’s kitchen, Hunter was

ultimately stabbed multiple times with a kitchen knife, and Defendant took the knife

with him when he left Hunter’s apartment. DNA analysis conclusively found

Hunter’s DNA on the knife, but also found a separate, inconclusive DNA profile on

the knife. Even though Defendant admitted that he possessed the knife after the

altercation and threw it in the dumpster, the DNA analysis did not reveal “whether

[Defendant] did or did not handle the handle of the knife.”

¶ 37 The State argued to the jury that, at some point during their altercation,

Defendant rummaged through Hunter’s kitchen drawers, found a knife, left the

drawers open, and then used the knife to stab Hunter. This series of events directly

contradicted Defendant’s theory of self-defense, but did not contradict the evidence

presented at trial or rely on evidence outside of the trial record. Rather, the State’s

closing arguments drew reasonable inferences from the evidence presented.

Williams, 317 N.C. at 481, 346 S.E.2d at 410. The trial court did not commit error,

much less reversible error, by failing to intervene ex mero motu in the State’s closing

argument. Jones, 355 N.C. at 133, 558 S.E.2d at 107.

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Opinion of the Court

III. Conclusion

¶ 38 We hold that Defendant received a fair trial, free from error.

NO ERROR.

Judge JACKSON concurs.

Judge MURPHY concurs in result only.