State v. Grant, COA23-656, ___ N.C. App. ___ (Apr. 16, 2024)

In this Mecklenburg County case, defendant appealed his conviction for assault on a female, arguing prejudicial error in overruling his objection to the State’s comment during closing argument regarding his decision not to testify. The Court of Appeals found no prejudicial error. 

In May of 2021, defendant came to trial for various charges related to assaulting a female. During closing argument, the prosecutor twice mentioned that the jury should not hold defendant’s decision not to testify against him. After the first reference, defendant objected, but the trial court overruled the objection and let the prosecutor continue. The jury was then dismissed for lunch. 

After lunch, but before the jury returned, defendant moved for a mistrial, citing State v. Reid, 334 N.C. 551 (1993), and pointing out that the court did not give a curative instruction after the improper statement in closing argument. The trial court denied the mistrial motion but agreed that it should have sustained the objection. When the jury returned, the trial court gave a curative instruction and “explained that the State’s comment was improper, instructed the jury not to consider Defendant’s decision not to testify, and polled the jury to ensure that each juror understood.” Slip Op. at 6. In light of the robust curative instruction, the Court of Appeals concluded that the trial court cured the error of overruling defendant’s objection.