State v. Holmes
| Citation | 296 N.C. 47,249 S.E.2d 380 |
| Decision Date | 28 November 1978 |
| Docket Number | No. 16,16 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE of North Carolina v. Kenneth Bernard HOLMES. |
Rufus L. Edmisten, Atty. Gen. by James Peeler Smith, Asst. Atty. Gen., Raleigh, for the State.
T. C. Homesley, Jr., Mooresville, for defendant-appellant.
Did the trial judge commit prejudicial error by failing to declare a mistrial on his own motion or in the alternative by failing to instruct the jury to disregard certain remarks made by the district attorney in the presence of the jury? The answer to this question is governed by the following well recognized rules.
Every person charged with a crime has the right to be tried before an impartial judge and by an unprejudiced jury. It is the duty of the court and the prosecuting attorney to see that this right is not denied. State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). The prosecuting attorney should use every honorable means to secure a conviction, but it is his duty to exercise proper restraint so as to avoid misconduct, unfair methods or overzealous partisanship which would result in taking unfair advantage of an accused. State v. Britt, supra; State v. Monk, supra. It is improper for counsel to place before the jury incompetent and prejudicial matter by injecting his personal beliefs and opinions which are not supported by the evidence. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), Death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205; State v. Monk, supra. The prosecuting attorney owes a duty to the state which he represents and to the court of which he is an officer to observe these often repeated rules of practice which are created by law to ensure that every defendant is afforded the safeguards guaranteeing him a fair trial. State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954). To do otherwise would be to demean the courts and to impugn the constitutional guarantees of due process.
The conduct of a trial and the prevention of unfair tactics by all connected with the trial must be left in a large measure to the discretion of the trial judge, and it is the duty of the trial judge to intervene when remarks of counsel are not warranted by the evidence and are calculated to prejudice or mislead the jury. State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967); State v. Kirkman, 234 N.C. 670, 68 S.E.2d 315 (1951). We will not interfere with the exercise of the court's discretion unless the impropriety of counsel was gross and calculated to prejudice the jury. State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955).
We turn to the alleged improprieties which are assigned as error.
During the cross-examination of the State's witness Brown concerning his plea bargaining arrangement with the State, defense counsel asked the witness if he knew that he could have received the death penalty on the charge contained in the bill of indictment for first degree murder. The district attorney objected and added, "I could have tried your man for first degree murder too." The trial judge overruled the State's objection without any further instruction or comment. We find little prejudice in this remark of the district attorney since from the time of arraignment when the indictment charging defendant with first degree murder was read in the presence of the jury and the district attorney elected to try defendant "for second degree murder or whatever verdict the evidence may warrant," it must have been crystal clear that the district attorney could have in fact tried defendant upon the charge of first degree murder.
As defense counsel continued his cross-examination of the witness Brown, the following exchange took place:
It is true that at the proper time for argument, the district attorney may argue the evidence and the legitimate inferences that the jury might draw from the evidence, however, it is not proper for the district attorney to interpose his personal opinions before the jury as to the guilt or innocence of an accused during the presentation of evidence and before all the evidence is in. Here the district attorney's statement that he believed defendant would hire somebody to kill was improper.
During the cross-examination of defendant's father, Fred Alexander Holmes, the district attorney apparently elicited from the witness that under some circumstances he would lie for his son. On redirect examination by defense counsel, the record discloses that the following occurred:
The district attorney's statement that the witness had lied for his son exceeded the bounds of propriety. State v. Miller, supra; State v. Thompson, 278 N.C. 277, 179 S.E.2d 315 (1971). However, the action of the trial judge in immediately interceding and cautioning the jury not to consider this statement tended to cure any prejudice to defendant. Ordinarily, such action by the trial judge cures the impropriety of counsel since the presumption is that the jurors will understand and comply with the court's instructions. State v. Britt, supra; State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972). We do not believe that this is one of the instances where the impropriety was so gross and highly prejudicial that a curative instruction would not remove the prejudice from the minds of the jurors. See, State v. Roach, 248 N.C. 63, 102 S.E.2d 413 (1958).
The conduct of the district attorney in making gratuitous remarks concerning the case in connection with his objections and during the cross-examination by defense counsel is not approved. Comments upon the evidence should be made in his argument to the jury or to the judge in the jury's absence.
Finally, we must determine if the remarks of the district attorney, singly or collectively, resulted in such impropriety as would justify disturbing the verdict and judgment entered in this case. The trial judge's intervention and instruction to the jury not to consider the statement that the witness Fred Holmes had lied tended to cure the prejudicial effect of this statement. The dignity and decorum of the court suffered more prejudicial effect from the conduct of the district attorney than did defendant. In view of the strong evidence of defendant's guilt, we are of the opinion that these isolated remarks in the heat of battle did not affect the verdict of the jury. We, therefore, hold that the trial judge did not commit prejudicial error by failing to instruct the jury to disregard certain remarks of the district attorney and by failing to declare a mistrial on his own motion.
Defendant assigns as error the ruling of the trial judge sustaining the State's objections to questions directed to the witness Marshall Lee Brown which sought to elicit statements made to him by his counsel.
The record shows the following:
Defendant argues that these declarations were admissible to evidence the witness's state of mind, e. g., to charge him with knowledge or notice of the facts declared. Volume 1, Stansbury's North Carolina Evidence (Brandis Rev.), Section 141, pages 469, 470. We are of the opinion that this is a correct statement of the rule. However, it is obvious that there is no merit in this assignment of error since, after a brief delay, the witness answered the question. Further, the stipulation concerning the plea arrangement with the witness Brown was in the record, and the witness unequivocally testified that he understood that if he did not testify against defendant, he would be tried for first degree murder rather than upon the charge of second degree murder. This assignment of error is without merit.
Defendant assigns as error the trial judge's denial of his motion to strike the identification testimony given by the witness Johnny Ray Porter.
The witness Porter testified, without objection, that on 2 July 1972, he, Marshall Brown, Steve Turner and defendant went to the P and G Gun Shop in Statesville, North Carolina, where he "signed" for and purchased a .30 caliber carbine. He made the purchase at the request of Marshall Brown and paid for the weapon with money furnished by defendant. The group then proceeded to a wooded area where the weapon was test-fired. Throughout his lengthy testimony, the witness, without objection, many times referred to defendant as the person who furnished the money to buy the weapon. It was not until the State had rested its case that defense counsel challenged Porter's identification testimony by lodging a motion to strike.
In State v. Cook, 280 N.C. 642, 187 S.E.2d 104, 109 (1972), the defendant was charged with rape of an eight year old child who identified her assailant. Defendant did not object or request a Voir dire hearing at the time the identification testimony was given. On appeal, the defendant contended that certain pretrial photographic procedures were so impermissibly suggestive that the identification testimony should have been suppressed. In rejecting this contention, Justice Lake, speaking for the Court, stated:
In State v. Accor and State v. Moore, 277...
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State v. Small
...that the charge of accessory before the fact was to be deemed included in the charge of the principal crime, see State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978); State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); 41 N.C.L.Rev. 118 (1962). Effective 1 October 1979, however, newly enact......
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State v. Moore, 4
...found the Turners to be interested witnesses, they should weigh the credibility of the Turners' testimony accordingly. State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978); State v. Eakins, 292 N.C. 445, 233 S.E.2d 387 (1977). This assign......
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State v. Oliver, 78
...could have been convicted of an accessory before the fact on an indictment charging him as a principal perpetrator. State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978). Effective 1 October 1979, however, newly enacted G.S. 14-5.1 provides that one indicted as a principal perpetrator may not......
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State v. Rinck, 45
...objection. State v. Colvin, 297 N.C. 691, 256 S.E.2d 689 (1979); State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979); State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978). Consequently, defendant's assignment of error is Defendants received a fair trial free from prejudicial error and we fi......