State v. White

• Decision Date: 12 February 1975
• Docket Number: No. 90,90
• Citation: State v. White, 286 N.C. 395, 211 S.E.2d 445 (N.C. 1975)
• Parties: STATE of North Carolina v. Harold Gerome WHITE.
• Court: North Carolina Supreme Court

Page 445

211 S.E.2d 445

286 N.C. 395

STATE of North Carolina v. Harold Gerome WHITE.

No. 90.

Supreme Court of North Carolina.

Feb. 12, 1975.

Robert Morgan, Atty. Gen., William B. Ray, Asst. Atty. Gen., John Morgan, Associate Atty. Gen., Raleigh, for the State.

Thomas V. Aldridge, Jr., Graham, for defendant-appellant.

SHARP, Chief Justice:

In his brief appellant purports to bring forward twenty assignments of error, none of which comply with Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 783, 810. This rule requires that appellant's brief 'shall contain, properly numbered, the several grounds of exception and assignment of error With reference to printed pages of transcript and the authorities relied on classified under each assignment.' (Emphasis added.) However, because this is a capital case, aided by the diligence of the members of the Attorney General's staff who prepared the State's brief and gave us the references which defendant's counsel omitted, we have considered each assignment of error. However, we deem it necessary to note only four.

Defendant's assignments of error 21 and 22, that the State's evidence 'was not sufficient to carry the case to the jury and further that the evidence was not sufficient to support the submission of the capital charge of first degree murder to the jury,' are overruled. The re sume of the evidence at the beginning of this opinion clearly demonstrates its sufficiency to withstand all motions for nonsuit, and itself eliminates the necessity of any discussion.

At the close of the evidence the solicitor for the State made the opening argument to the jury. He was followed by defendant's two lawyers. Mr. Harold Dodge, counsel privately employed to assist solicitor, made the final argument. In it he 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.'

Counsel for defendant objected immediately, and the court summarily disposed of the objection by saying, 'Sustained. Members of the jury, don't consider what he said about the Supreme Court.'

As soon as Mr. Dodge concluded his argument defense counsel moved the court to declare a mistrial for prejudice to defendant from the prosecution's argument that the jury verdict in this case was not final. The court denied the motion. At the beginning of his charge the judge 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 make 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.'

No further instruction was given with reference to Mr. Dodge's argument, which is defendant's assignment of error No. 24.

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. See State v. Hines, Walston & Brown, 286 N.C. 377, 211 S.E.2d 201, in which Justice Branch collects the authorities which fully explain the reasons for the rule.

When such an argument is made it is counsel's duty 'to make timely objection (as defense counsel did in this case) so that the judge may correct the transgression by instructing the jury.' State v. Hawley, 229 N.C. 167, 170, 48 S.E.2d 35, 37 (1948). However, in a death case intimations by counsel for the State that a jury's verdict is not necessarily a final disposition of the case are so prejudicial that counsel's failure to make timely objection will not waive defendant's right to object. State v. Dockery, 238 N.C. 222, 77 S.E.2d 664 (1953). It is the duty of the trial judge to correct such an abuse at some time in the trial 'and, if the impropriety be gross, it is the duty of the judge to interfere at once.' State v. Little, 228 N.C. 417, 421, 45 S.E.2d 542, 545 (1947).

In each of the three cases cited immediately above a new trial was awarded because the solicitor, or private prosecution argued that the jury's verdict was not the end of the case; that others would review their verdict before the sentence was executed.

In both Little and Dockery the Court expressed doubt that the court could have given an instruction that would have removed the harmful effect of the improper remarks from the minds of the jury. In Hawley the Court said flatly that no instruction could have neutralized the harmful effect of the solicitor's argument that before the defendant would be put to death the Supreme Court, the Commissioner of Paroles, and in all probability the Governor personally, would carefully consider the case; and that, in any event, 'only a certain percentage' of capital felons finally suffered death.

Private prosecution's argument in this case did not go as far as the solicitor's went in Hawley, yet it was clearly intended to overcome the jurors' natural reluctance to render a verdict of guilty of murder in the first degree by diluting their responsibility for its consequences. We cannot, of course, say whether its harmful effects could have been removed by an immediate and positive instruction to the jury that counsel's argument was improper; that neither the Supreme Court nor and other governmental agency could share their responsbility for their verdict; and that their duty required them to weigh the evidence and find the facts on the assumption that whatever verdict they rendered would be the final disposition of the case. Such instructions would have been the minimum requirement, and they were not given.

When objection was made to the argument the court merely said, 'Sustained. Members of the Jury don't consider what he said about the Supreme Court.' Clearly this instruction was inadequate to 'correct the transgression.' Later, at the beginning of his charge the judge said, '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 make 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.' This instruction was likewise inadequate.

It is quite true that on appeal this Court considers only questions of law, yet we apprehend that the foregoing instruction did not fully enlighten the jury as to the nature of the Supreme Court's review of a case on appeal and as to the difference between 'triers of the facts' and judges of the law. They did understand, however, the Supreme Court would 'review the case,' for both the judge and counsel had told them so. Furthermore, by his positive statement that 'the Supreme Court will review this case,' the jury was bound to have understood that the court assumed their verdict would be guilty.

For the errors embraced in assignment No. 24, we hold that defendant is entitled to a new trial. Our decision on this assignment is bolstered by the following and final episode of the trial.

The jury returned its verdict on 6 December 1973, and the court pronounced judgment. Following the recess of the court that afternoon Mrs. E. R. Larzelere, a member of the panel of jurors summoned for the term, but not a member of the jury which tried defendant, reported the incident detailed below, and one other, to defense counsel:

Mrs. Larzelere was seated in the courtroom when the verdict in this case was returned. When the jurors were discharged and directed to take seats in the courtroom, one of the jurors took a seat behind her. As he sat down she heard him say, 'They always take it to the Supreme Court.' She did not see the juror who made that statement, but, in her opinion, it was the foreman of defendant's jury.

Counsel told the court what Mrs. Larzelere had told him and moved to set aside the verdict on the grounds of 'jury misconduct.' Judge Winner 'accepted' Mrs. Larzelere's affidavit in which she swore to the facts she had reported, but he denied defendant's motion for a new trial, because 'there is nothing in either of those instances that is prejudicial to defendant.' We agree that, standing alone, the juror's comment, 'They always take it to the Supreme Court,' would not justify a new trial. It does, however, indicate to us that one or more of the jurors did consider what counsel 'said about the Supreme Court.'

Since the case goes back, we consider defendant's assignment of error No. 9. For the purpose of showing bias on the part of Mrs. Langley, the widow of the deceased, who testified for the State as an eyewitness to the homicide, defense counsel asked her on cross-examination, 'Have you privately employed counsel to prosecute this case for you?' The court sustained the State's objection to the question. Had she been permitted to answer, Mrs. Langley would have said, 'Yes, I did.'

A party to either a civil or criminal proceeding may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him, hostile to his cause, or that the witness is interested adversely to him in the outcome of the litigation. Ordinarily, it is prejudicial error to prevent cross-examination of a witness as to facts from which bias would clearly be inferred. State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901 (1954). Indisputably, the fact that a witness had employed private counsel to prosecute the...