State v. Brown, 7816SC882
| Decision Date | 06 February 1979 |
| Docket Number | No. 7816SC882,7816SC882 |
| Citation | 251 S.E.2d 706,39 N.C.App. 548 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Robert Lee BROWN. |
Adelaide G. Behan and I. Murchison Biggs, Lumberton, for defendant-appellant.
Defendant contends first that the trial court committed prejudicial error in permitting the case to be tried by a jury panel which had the opportunity to hear guilty pleas and the presentation of evidence and sentencing thereon in other cases. He argues that the procedure followed in the trial court contravenes the language and objectives of G.S. 15A-943 and violates his right to be tried by an impartial jury. We find no merit in this assignment of error.
G.S. 15A-943 provides that, in counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, the prosecutor must calendar arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. Particularly pertinent to defendant's argument here is that portion of the statute which reads as follows: "No cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared." Defendant interprets the quoted portion of the statute to indicate a legislative intent that prospective jurors not be allowed to observe proceedings involving other defendants because they might somehow become prejudiced against a defendant who might later be tried before them.
This was obviously not the intent of our legislature in enacting 15A-943. The official commentary to G.S., Chap. 15A, Art. 51, in which G.S. 15A-943 is included, states the purposes of the article and provides in part as follows:
We believe the legislative intent in enacting this statute was to minimize the imposition to the time of jurors and witnesses, and we reject defendant's argument that it was designed as a new approach to ensure the impartiality of jurors.
In this same connection, defendant also argues that the procedure employed violates the defendant's right to be tried by an impartial jury. Without citing authority, defendant generally argues that prospective jurors become biased against all defendants when hearing the proceedings which precede the sentencing of those who plead guilty. He argues that law enforcement officials are more likely to be given greater credence by the jury and that the jury may stray from their function as fact finders and only consider the prosecution's side of the case. We also reject that argument.
Unquestionably, a defendant in a criminal trial has the right to a fair, unbiased, and impartial jury. G.S. 9-15(a) is one of many safeguards to insure that right. That statute provides that in selecting the jury, the court, or any party to an action, has the right to make direct oral inquiry as to the fitness and competency of any person to serve as a juror. The Voir dire examination of jurors allowed by that statute serves the dual purpose of ascertaining whether grounds exist for challenge for cause and to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). The record before us does not indicate that any of the jurors who served could not fairly and intelligently have reached a verdict; nor does it indicate the use of any peremptory challenges by the defendant. Hence, defendant has failed to show that any member of the jury was unable to give him a completely fair trial.
The burden of showing such prejudicial denial of a fair trial falls on the defendant. State v. Boykin, 291 N.C. 264 229 S.E.2d 914 (1976). The record before us is barren of any showing of prejudice in the method used for selection of jurors. Indeed, we are unable to determine from this record whether counsel for defendant even made inquiry of prospective jurors on the voir dire.
Defendant's second assignment of error is that certain language used by the assistant district attorney was prejudicial to the defendant and exceeded the bounds of propriety. While we do not approve of some of the language used, we do not find it to be sufficiently prejudicial to require a new trial.
In his final presentation to the jury, the assistant district attorney argued that armed robbery is one of the most serious crimes in North Carolina and, in that connection, stated, At another point in the jury argument, the assistant district attorney stated: "Because, but for the grace of God, Mr. Johnson's ability to keep his wits about him, we got the .44 caliber killer sitting over there . . . ."
Following objection, the trial court ordered the word "killer" stricken. Defendant, however, cites as error the trial court's failure to sustain his objection to the entire discourse of the assistant district attorney concerning first degree murder.
During cross-examination of the witness Johnson, the following exchange took place:
Defendant also asserts that prejudice resulted from heated discussion between his counsel and the assistant district attorney as evidenced by the following exchange during the prosecution's final argument to the jury:
Several rules have evolved with respect to alleged improper remarks by the prosecution. Argument of counsel must be left largely to the control and discretion of the presiding judge, and counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Bowen, 230 N.C. 710, 55 S.E.2d 466 (1949); State v. Little, 228 N.C. 417, 45 S.E.2d 542 (1947). Counsel may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom, together with the relevant law, so as to present his side of the case. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Noell,284 N.C. 670, 202 S.E.2d 750 (1974). He may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not "travel outside of the record" or inject into his argument facts of his own knowledge or other facts not included in the evidence. State v. Phillips,240 N.C. 516, 82 S.E.2d 762 (1954); State v. Dockery, 238 N.C. 222, 77 S.E.2d 664 (1953). It is the duty of the trial judge, upon objection, to censor remarks not warranted by the evidence or the law and, in cases of gross impropriety, the court may properly intervene, Ex mero motu. State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975). On the other hand, when the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by evidence, the defendant is not entitled to a new trial by reason of being characterized in uncomplimentary terms in the argument. State v. Bowen, supra.
In the instant case, the assistant district attorney, as noted contextually above,...
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