Miller v. State of N. C.

• Decision Date: 29 September 1978
• Docket Number: No. 78-6058,78-6058
• Citation: 583 F.2d 701
• Parties: Carl MILLER, Artis P. McClain, and Larry Campanella Clark, Appellants, v. STATE OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 701

583 F.2d 701

Carl MILLER, Artis P. McClain, and Larry Campanella Clark, Appellants, v. STATE OF NORTH CAROLINA, Appellee.

No. 78-6058.

United States Court of Appeals, Fourth Circuit.

Argued July 18, 1978.

Decided Sept. 29, 1978.

William A. Reppy, Jr., Legal Research Program, Duke Law School, for appellants.

Richard N. League, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Raleigh, on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and HALL, Circuit Judges.

WINTER, Circuit Judge:

Appellants are three black men who, originally sentenced to death, are currently serving life sentences resulting from their North Carolina convictions, pursuant to N.C.Gen.Stat. § 14-21 (1977 Cum.Supp.), ¹ for first degree rape of a white woman. In their petition for federal habeas corpus relief, they alleged two principal constitutional errors in their convictions: first, that the trial court's insistence that one attorney represent all three defendants deprived them, because of conflicts among them, of the effective assistance of counsel, and second, that the racially inflammatory remarks in the prosecutor's closing argument before an all-white jury were so prejudicial as to make a fair trial impossible. The district court considered both claims to be without merit and denied relief.

We grant a certificate of probable cause and reverse. In our view, the prosecutor's summation, by deliberately injecting the issue of race into what was necessarily a racially sensitive prosecution, so infected the trial with unfairness as to deny appellants due process of law. Because we conclude that the prosecutor's argument invalidated the trial, we find it unnecessary to address appellants' contentions concerning the effectiveness of their representation. ² We direct that unless appellants are afforded a new trial, the writ should issue.

I.

We need state the facts relating to appellants' rape convictions only succinctly; they are stated more fully in the opinion of the Supreme Court of North Carolina which found no error in the convictions. See State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Deborah Case and her boyfriend, Michael Stumphey, hitchhiked to North Carolina so that they might attend a rock festival that was to be held in Charlotte on August 10, 1974. After arriving in Charlotte on August 9, however, the couple changed their plans, deciding to skip the concert and instead to travel to Colorado where they intended to get married. On the morning of August 10 they headed west. Shortly after starting, they accepted a ride in a car occupied by three black men, the appellants in this case. Once in route, the driver told them that he would take them as far as Hickory but that he first had to stop and see someone. On that supposed errand, he left the interstate and drove to the end of a remote country road. There, while Michael was held at bay at the point of a pistol, Deborah, allegedly at the point of a knife, was required to submit to sexual intercourse with each of the appellants in turn.

Later, Deborah and Michael were driven back to the interstate, where they were permitted to leave the car. They promptly hailed a state policeman. Acting on information supplied by the couple and others, the police arrested the appellants that same day and charged them with rape.

The state's case consisted chiefly of the testimony of Michael and Deborah. Each identified the three appellants as the occupants of the car and each testified to the use of the threat of force, although only Deborah could speak to the details of the assaults. Their identification of the appellants was corroborated by James Franklin, a hunter who had encountered the five of them while the car was parked at the end of the road. None of the defendants testified or offered any evidence in opposition to the state's case. From the tenor of the cross-examination, however, it was evident that the theory of the defense was that Deborah had consented to sexual intercourse with the defendants. The defense did elicit testimony that Deborah and Michael entered the car willingly and made no request to get out, that Deborah had previously engaged in acts of sexual intercourse, that both had taken drugs before the incident, that Deborah had no injuries other than a small bruise, and that she had offered no physical resistance during the several acts of sexual intercourse with appellants.

During closing arguments, the trial judge was not present on the bench. Under North Carolina practice, counsel for defendants had the opening and closing arguments. While counsel's opening argument was not transcribed, he apparently urged a theory of consent. In reply, the prosecutor made references to the defendants' race. He repeatedly referred to the defendants as "these black men" and ultimately argued that a defense based on consent was inherently untenable because no white woman would ever consent to having sexual relations with a black:

Don't you know and I argue if that (i. e. consent) was the case she could not come in this courtroom and relate the story that she has from this stand to you good people, because I argue to you that the average white woman abhors anything of this type in nature that had to do with a black man. It is innate within us, . . . . ³

No objection was voiced to the prosecutor's arguments nor was any attempt made to recall the judge from chambers. Defense counsel also voiced no objection when the judge returned to court.

The defendants were all convicted and were initially sentenced to death, but a change in the law caused their sentences later to be reduced to life imprisonment. An unsuccessful appeal was taken to the North Carolina Supreme Court. State v. Miller, supra. Briefs filed in that appeal urged reversal on several grounds; chief among them was that the prosecutor's remarks were so prejudicial as to constitute reversible error.

While the seven-member court was unanimous in affirming the convictions, the court split on the reasons for affirmance with respect to the prosecutor's argument. The opinion of the court, written by Justice Huskins, in which two other justices concurred completely and a third justice concurred in part, assigned alternative grounds for decision: that the error was harmless because the evidence against the defendants was overwhelming, and that the failure of counsel to object to the argument waived the point for purposes of review. ⁴ In holding that the prosecutor's argument was harmless error, the majority expressed mild disapproval of the argument's content. Chief Justice Sharp's concurring opinion, joined by two other justices of the court, rested solely on the assertion that the error was harmless, but it characterized the prosecutor's argument as "an egregious blunder" which in a less one-sided case would have required a new trial. 220 S.E.2d at 341. The seventh justice who concurred mostly in the majority opinion wrote separately to express his view that no criticism of the prosecutor was justified because the remarks were not prejudicial since they simply stated a matter of common knowledge.

The appellants next brought this habeas corpus petition repeating the allegations that had been made in the state appeal. The district court denied relief. On the question of the prosecutor's remarks, it held, alternatively, that the failure to object constituted a waiver, that the remarks were not prejudicial, and that, if prejudicial, they were harmless beyond a reasonable doubt. This appeal followed.

II.

Before addressing the merits of appellants' contentions regarding the prosecutor's summation, we must first consider North Carolina's argument that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), applies to this case by virtue of defense counsel's failure to object to the prosecutor's summation at the time it was delivered and that it bars habeas relief on this issue. Wainwright holds that a state procedural waiver rule may supply a state ground of decision adequate to foreclose federal habeas relief, absent a showing of cause for the failure to comply with the state rule and of prejudice from the failure to object.

We reject the argument. While we have no doubt that Wainwright binds us in federal habeas corpus proceedings to the North Carolina procedural rule concerning the preservation of error in a North Carolina criminal proceeding, we think that the instant case falls within an exception to the general North Carolina rule barring review where there has been no objection. The exception, as we have mentioned in n. 4, Supra, is that in a capital case " if argument of counsel . . . is so grossly improper that removal of its prejudicial effect, after a curative instruction, remains in doubt, the general rule requiring objection before verdict does not apply." 220 S.E.2d at 339. Accord: State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); Rev'd on other grounds,403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971); State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967). Under this rule the first attention of the reviewing court is to consider if the challenged argument was improper and, if so, whether it was improper to the extent that doubt remains as to whether a curative instruction would remove its prejudicial effect. If a convicted defendant was so prejudiced, the failure to object is no bar and his claim may be decided on the merits. If, on the other hand, it can be said that the argument was not prejudicial or that a curative instruction would have removed any prejudice, his failure to object to the argument is treated as a bar to appellate relief. Thus, application of this exception entails an inquiry by the reviewing court into the merits of the claim; waiver is not automatic. This was the pattern of reasoning of the North Carolina Supreme Court in the instant case. ⁵

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