State v. Holmes, No. 16

• Docket Nº: No. 16
• Citation: 296 N.C. 47, 249 S.E.2d 380
• Case Date: November 28, 1978
• Court: United States State Supreme Court of North Carolina

Page 380

249 S.E.2d 380 296 N.C. 47 STATE of North Carolina
v.
Kenneth Bernard HOLMES. No. 16. Supreme Court of North Carolina. Nov. 28, 1978.

Rufus L. Edmisten, Atty. Gen. by James Peeler Smith, Asst. Atty. Gen., Raleigh, for the State.

T. C. Homesley, Jr., Mooresville, for defendant-appellant.

BRANCH, Justice.

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.

[296 N.C. 50] 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).

Page 383

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 [296 N.C. 51] 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:

MR. HOMESLEY: I believe he (defendant) is sort of a health nut. . . . jogs and runs?

MR. ZIMMERMAN: Objection to what Mr. Homesley believes. I believe he'd hire somebody to kill somebody, too.

COURT: Overruled.

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:

MR. HOMESLEY: Mr. Holmes, have you lied for him at any time?

MR. ZIMMERMAN: Objection, Your Honor, he certainly has.

COURT: Just a minute. You gentlemen are trying my patience. Do not use the word lie in my Courtroom again. Members of the Jury, you will not consider that.

WITNESS: I have told the truth today.

MR. HOMESLEY: All right.

[296 N.C. 52] 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

Page 384

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...