State v. Jones

• Citation: 251 S.E.2d 425,296 N.C. 495
• Decision Date: 05 February 1979
• Docket Number: No. 60,60
• Parties: STATE of North Carolina v. James Calvin JONES.
• Court: United States State Supreme Court of North Carolina

Page 425

251 S.E.2d 425

296 N.C. 495

STATE of North Carolina v. James Calvin JONES.

No. 60.

Supreme Court of North Carolina.

Feb. 5, 1979.

Rufus L. Edmisten, Atty. Gen., by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for the State.

Horace Locklear, Lumbert, for defendant-appellant.

BRANCH, Justice.

We first consider defendant's contention that he is entitled to a new trial because of the argument of the district attorney.

Defense counsel noted an exception to that portion of the district attorney's argument made at the guilt determination phase of the trial in which the district attorney stated, "Now you know, if you do err in this case he (defendant) has the right of appeal. The State doesn't have that. State has no right of appeal from a case like this."

Ordinarily it is the duty of defense counsel to immediately object to an improper argument by the district attorney so that the trial judge might attempt to correct such transgression by a curative instruction. State v. Hawley, 229 N.C. 167, 48 S.E.2d 35 (1948). Here there was no objection to this portion of the district attorney's argument. However, it is now well settled that in a death case, as here, where there are intimations in the district attorney's argument that a jury's verdict is not a final disposition of the case such remarks are so prejudicial that counsel's failure to make timely objection will not waive defendant's right to further review. State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Hawley, supra; State v. Little, 228 N.C. 417, 45 S.E.2d 542 (1947).

In State v. White, supra, a case strikingly similar to the case Sub judice, the defendant was convicted of murder in the first degree and appealed from judgment imposing a sentence of death. In that case, the district attorney in his argument to the jury said, " '. . . you will answer the question whether this defendant is guilty of first degree murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina it is necessary. If any error is made in this court, that Court will say.' " The trial judge sustained defendant's immediate objection to this argument and instructed the jury not to consider that portion of the district attorney's argument. Further, at the beginning of the charge, he instructed the jury as follows:

"I want to go back to the argument that was objected to in the argument of counsel that the Supreme Court has a right to send this case back on mistakes. The reason I sustained that objection, I want you all to understand is that the Supreme Court will review this case. That they would only send the case back if I made a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit."

Despite the trial judge's original admonition and later instruction, this Court found the district attorney's argument to be prejudicial. In so holding, this Court, speaking through Chief Justice Sharp, Inter alia, stated:

This Court has consistently held that, in a capital case, Any argument made by the solicitor, or by private prosecution appearing for the State, which suggests to the jury that they can depend upon either judicial or executive review to correct any errors in their verdict, and to share their responsibility for it, is an abuse of privilege and prejudicial to the defendant. (Emphasis added.)

The Court considered a similar argument by the district attorney in State v. Little, supra. There the district attorney in his closing argument, in substance, said that:

". . . (I)n all first degree cases where men were convicted there would be an appeal to the Supreme Court, and that in this case, if this defendant were convicted there would be an appeal to the Supreme Court, and that in the event the decision of the lower court should be affirmed, there would be an appeal to the Governor to commute the sentence of the prisoner; and that not more than sixty per cent of prisoners convicted of capital offenses were ever executed."

Notwithstanding the fact that defense counsel advised the trial judge that he did not desire an instruction to disregard this argument, this Court found prejudicial error. Justice Winborne (later Chief Justice) writing for the Court stated:

. . . (I)t is manifest that the statements of facts that if the defendant be convicted there would be an appeal to the Supreme Court, and that in the event the decision of the lower court should be affirmed there would be an appeal to the Governor to commute the sentence of the prisoner, and that not more than sixty per cent of prisoners convicted of capital offenses were ever executed, are matters not included in the evidence. Nor are they justified as being in answer to argument of counsel for defendant. They are calculated to unduly prejudice the defendant in the defense of the charge against him. . . .

Accord: State v. Dockery, 238 N.C. 222, 77 S.E.2d 664 (1953); State v. Hawley, supra.

We note that the case of State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977), is distinguishable from the cases above reviewed and cited. In Finch, the trial judge stated: " 'If the Court is wrong, then the Court of Appeals will let that be known. Somebody will straighten that out, but you take your instructions from the Court.' " (Emphasis added.) This statement merely let the jury know that they were to take their instructions from the court and that the court's statements as to the law were subject to review. This statement in no way affected the responsibility of the jury or intimated that the jury verdict was not binding.

In the case before us for decision, the district attorney's statement was erroneous in that the Supreme Court does not review the verdict of the finders of fact on the guilt determination phase of a bifurcated trial. However, the overriding vice in this portion of the district attorney's argument is that he effectively told the jurors that they could rely upon the Supreme Court to correct their verdict if it were wrongful or improper thereby causing the jury to believe that the Supreme Court would share with them a burden and responsibility which was in fact their sole responsibility.

For error in the district attorney's argument to the jury, there must be a new trial on the guilt determination phase of the trial. We are of the opinion that the granting of a new trial on the guilt determination phase of a bifurcated trial requires a new trial on the sentencing phase of such trial.

Even so, we think it necessary to consider the district attorney's argument in the sentencing phase of this trial in order to provide guidance in future death cases.

In his argument, the district attorney stated:

Now, listen to me a minute. Let's go to another section of the law right quick, 15A-2000, Subsection (d)(1) and (2). Subsection (d)(1) and (2), to show you what I'm talking about. This is extremely important. Please try to get a grasp of what I'm saying.

"The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of North Carolina, pursuant to procedures established by the Rules of Appellate Procedure." In its review, the Supreme Court is going to review your decision in this case. The Supreme Court shall consider the punishment imposed as well as any errors assigned on appeal. Number (2). This is where it gets very important. "The sentence of death shall be overturned and a sentence of life imprisonment imposed in lieu thereof by the Supreme Court upon a finding that the record does not support the jury's findings of any aggravated circumstances upon which the sentencing court based its sentence of...