State v. Locklear

• Decision Date: 24 January 1978
• Docket Number: No. 111,111
• Citation: 241 S.E.2d 65,294 N.C. 210
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dixon LOCKLEAR.

Page 65

241 S.E.2d 65

294 N.C. 210

STATE of North Carolina v. Dixon LOCKLEAR.

No. 111.

Supreme Court of North Carolina.

Jan. 24, 1978.

Rufus L. Edmisten, Atty. Gen., Jane Rankin Thompson, Associate Atty., for the State of North Carolina.

James D. Little, Fayetteville, for defendant.

HUSKINS, Justice:

After verdict and before sentencing, the State examined a deputy sheriff who testified, over defendant's objection, that an unnamed reliable informant had told the witness he had purchased marijuana from defendant on many occasions and that defendant was "doing between $500 and $1,000 worth of grass a week." Following pre-sentencing statements by defense counsel and the district attorney, the trial court said:

"I cannot conclude that this is an appropriate case for probation. And it does seem to me that the testimony of Leonard lacks plausibility. It's just not plausible to me that he would sell a quantity of marijuana at no profit. It just lacked plausibility. He may be telling the entire truth, but it didn't strike me as so, and there is some indication of some collusion for the purpose of this trial."

The court then found that defendant would not benefit from sentencing as a committed youthful offender under G.S. 148-49.4 (repealed effective 1 October 1977 and replaced by G.S. 148-49.14) and imposed consecutive five-year prison terms.

On appeal, the Court of Appeals apparently concluded that the sentences were based solely on "unsolicited whispered representations" or "rank hearsay" and, for that reason, vacated the sentences and remanded the cause for resentencing. The State appealed from that holding and we allowed defendant's petition for discretionary review of his assignments based on alleged errors in the trial. We first consider and dispose of the State's appeal.

We hold that the record does not support the conclusion that Judge Canaday improperly relied, either partially or solely, on "unsolicited whispered representations" or "rank hearsay" in sentencing defendant. The fallacies and inconsistencies of the decision of the Court of Appeals on that point are accurately depicted by Judge Morris in her dissenting opinion and need not be repeated here. It suffices to say that trial judges have a broad discretion, and properly so, in making a judgment as to proper punishment. They must not be hampered in the performance of that duty by unwise restrictive procedures. The following excerpt from State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962), is controlling:

"In our opinion it would not be in the interest of justice to put a trial judge in a straitjacket of restrictive procedure in sentencing. He should not be put in a defensive position and be required to sustain and justify the sentences he imposes, and be subject to examination as to what he has heard and considered in arriving at an appropriate judgment. He should be permitted wide latitude in arriving at the truth and broad discretion in making judgment. Pre-sentence investigations are favored and encouraged. There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342. A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play."

Compare State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967), where the trial judge by his own pronouncement clearly demonstrated that he imposed sentence for a cause not embraced within the indictment.

The decision of the Court of Appeals vacating and remanding the cause for resentencing is reversed.

We now turn to the issues raised by defendant's assignments of error.

Defense witness Clarence Leonard testified that the marijuana which Agent Boliek purchased did not come from defendant. Rather, he said that he himself had purchased the marijuana the preceding day at a pool hall, and that it was he who sold the drug to Boliek. The following exchange then took place during Leonard's cross-examination by District Attorney Britt:

"Q. Give me the names of a few that were in the pool room when you made this purchase.

Sir?

A. I don't know. I just know them by the nicknames.

Q. Give me the nicknames, then.

Sir? Give me the nicknames. Who are they?

Clarence, you are lying through your teeth and you know you are playing with a perjury count; don't you?

A. I ain't lying.

Q. What?

A. I ain't lying.

Q. Who did you buy it from, then?

A. I don't know them by name.

Q. Give me their nicknames.

A. I don't know the dude I bought it from nickname either.

Q. What did he look like?

A. He was about six feet tall.

Q. Now, think fast, Leonard. Think up a good story while you are up there.

MR. SMITH: Object. Move to strike the Solicitor's comments.

THE COURT: Yes. Motion allowed. Ladies and Gentlemen, disregard the last statement of the District Attorney. Don't consider that."

Defendant contends the district attorney's assertion that "you are lying through your teeth and you know you are playing with a perjury count" constitutes an abuse of privilege and is so highly prejudicial that a new trial is required. The State contends defendant failed to interpose timely objection and is therefore deemed to have waived it.

The quoted remarks of the district attorney were grossly improper and calculated to prejudice the jury. Counsel for the defendant should have objected as soon as the improper comments were uttered. This was not done, and such a failure is ordinarily held to constitute a waiver. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970); State v. Edwards, 274 N.C. 431, 163 S.E.2d 767 (1968); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968). Even so, where, as here, the impropriety is gross "it is proper for the court even in the absence of objection to correct the abuse ex mero motu. State v. Smith, 240 N.C. 631, 83 S.E.2d 656 (1954)." State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975). Accord, State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967).

Disciplinary Rule 7-106 of the North Carolina State Bar Code of Professional Responsibility, 283 N.C. 783 at 837 (1973), provides in pertinent part as follows:

"DR7-106 Trial Conduct.

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.

(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein. " (Emphasis added)

The Disciplinary Rules embodied in the Code of Professional Responsibility set forth the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action and are binding on all lawyers practicing law within the State, including prosecuting attorneys. " Within the framework of fair trial, the Disciplinary Rules should be uniformly applied to all lawyers, regardless of the nature of their professional activities." 283 N.C. at 785.

The American Bar Association's suggested Standards Relating to the Prosecution Function are specifically addressed to the conduct of prosecuting attorneys in the performance of their duties. Section 5.8(b) of these suggested standards provides: "It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and Defense Function 126 (Approved Draft 1971).

Many decisions of this Court have spelled out in meticulous detail what is permitted and what is prohibited by way of examination, cross-examination and argument in the trial of cases. E. g., State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975); 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); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, vacated on other grounds, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972); State v. Conner, 244 N.C. 109, 92 S.E.2d 668 (1956); State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954). We are not disposed to write another treatise on the subject. The following basic concepts expressed in these decisions must be observed in the courts of this State:

1. Every person charged with a crime has an absolute right to a fair trial. This means that "he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment. (Citations omitted) It is the duty of both the court and the prosecuting attorney to see that this right is sustained. (Citations omitted) To these ends there are rules of practice and decorum with which all counsel involved in the trial of criminal cases must abide." State v. Britt, supra at 710, 220 S.E.2d at 290.

2. Prosecuting attorneys owe honesty and fervor to the State and fairness to the defendant in the performance of their duties. State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). They should prosecute the State's case with earnestness and vigor and use every legitimate means to bring about a just conviction. They should not be so restricted as to discourage a vigorous presentation of the...