N.C. Conference of Superior Court Judges Criminal Law Update & Review

Jury Argument • State v. Jones, 355 N.C. 117 (2002) • New capital sentencing hearing b/c trial court failed to • sustain objection to comparisons to Columbine school shooting & the Oklahoma City bombing & • (2) intervene ex mero motu when State engaged in name calling & personal insults © 2003

Jury Argument • Court began by revisiting the: • limits of proper closings • professional & ethical responsibilities of attorneys making such arguments • trial judge’s duty in overseeing closing arguments & • ramifications for failing to keep arguments in line with existing law © 2003

Jury Argument • Limits of proper closing argument—G.S. 15A-1230(a): During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. © 2003

Jury Argument (2) Lawyers’ Professional & Ethical Responsibilities • Rule 12 General Rules of Practice for Superior & District Courts: abusive language/offensive personal references prohibited; lawyers’ conduct should be characterized by candor & fairness; counsel should act with dignity & propriety © 2003

Jury Argument • Preamble to N.C. State Bar Rules of Professional Conduct: “[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” © 2003

Jury Argument • Professional ConductRule 4.3(e): a lawyer shall not allude to any matter that he/she does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a W, or state a personal opinion as to the justness of a cause, the credibility of a W, or the guilt or innocence of an accused © 2003

Jury Argument (3) Trial judge’s Duty & (4) Response to violations Acknowledges the oft-quoted refrain: “counsel are given wide latitude in arguments . . . and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence” © 2003

Jury Argument (3) Trial judge’s Duty & (4) Response to violations Acknowledges the oft-quoted refrain: “counsel are given wide latitude in arguments . . . and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence” BUT says: “wide latitude has its limits.” © 2003

Jury Argument • Judges have two responsibilities: “diligently ensue that attorneys honor [their] professional obligations” “take appropriate action against opportunist who purposely venture to violate courtroom protocol” © 2003

Jury Argument • Remedies may include: requiring counsel to retract portions of argument deemed improper and/or issuing instructions to disregard • Court’s responses to violations have ranged from warnings, imposing discipline, & ordering a new trial © 2003

Jury Argument Turning to case before it: • Trial court abused discretion by overruling objections to argument linking the tragedies of the Columbine school shooting & Oklahoma City bombing with the tragedy of V’s death. © 2003

Jury Argument • References improper for at least 3 reasons: • Referred to events/circumstances outside of the record • By implication, urged jurors to compare D’s acts with the infamous acts of others; & • Attempted to lead jurors away from the evidence by appealing to sense of passion & prejudice © 2003

Jury Argument Standards of review When no objection is made: whether remarks were so grossly improper that the trial judge committed reversible error by failing to intervene on its own motion to preclude similar remarks and/or instruct jury to disregard. © 2003

Jury Argument Put another way: “only extreme impropriety” will compel a holding that the trial judge erred by failing to intervene on its own motion. State v. Braxton, 352 N.C. 158, 200 (2000). © 2003

Jury Argument • Repeated “degradations” • (1) shifted focus from the jury’s opinion of D’s character & acts to the prosecutor’s opinion, offered as fact in the form of conclusory name-calling, of D’s character and acts; & • (2) were purposely intended to deflect jury away from its role as a fact-finder by appealing to passions and/or prejudices. © 2003

Jury Argument And finally, Impropriety at the guilt-innocence phase, while warranting condemnation & potential sanction, may not be prejudicial where evidence of guilt is uncontested. At capital sentencing, “the same argument may in many instances prove prejudicial by its tendency to influence the jury’s decision to recommend life imprisonment or death.” © 2003

Jury Argument Watch List Abusive comments Biblical references Historical references/comparisons Irrelevant comments re: race Traveling outside the record Asking jury to put themselves in shoes of V Opinions Comment on failure to testify General deterrent effect of conviction Lend “ear to community” And more . . . © 2003

Jury Argument  Watch List Abusive comments Biblical references Historical references/comparisons Irrelevant comments re: race Traveling outside the record Asking jury to put themselves in shoes of V Opinions Comment on failure to testify General deterrent effect of conviction Lend “ear to community” And more . . . © 2003

“[T]he liberty of argument must not degenerate into license, and the trial judge should not permit counsel in his argument to indulge in vulgarities; he should, therefore, refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives, or from making any statements or reflections which have no place in argument but are only calculated to cause prejudice.” State v. Miller, 271 N.C. 646 (1967) (quotation omitted) © 2003

“When the prosecutor becomes abusive, injects his personal views and opinions into the argument before the jury, he violates the rules of fair debate and it becomes the duty of the trial judge to intervene and stop improper argument and to instruct the jury not to consider it.” State v. Smith, 279 N.C. 163 (1971) © 2003

“Jones did not introduce into the parameters of proper closing argument any new requirements, but instead reiterated established principles long articulated by the laws of this state and by this Court’s decisions.” State v. Walters, 357 N.C. 68 (2003), petition for cert. filed, 8/20/2003. © 2003

Name calling Jones, 355 N.C. 117 (trial court erred by failing to intervene when prosecutor said of D: “quitter,” “loser,” “worthless piece of—who’s mean. . . . He’s as mean as they come. He’s lower than the dirt on a snake’s belly”). © 2003

Name calling State v. Smith, 279 N.C. 163, 165-67 (1971) (new trial; trial judge failed to intervene ex mero motu when prosecutor argued matters of personal belief & characterized D as “lower than the bone belly of a cur dog”). © 2003

Animal references State v. Hamlet, 312 N.C. 162 (1984) (“We do not condone comparisons of criminal defendants to members of the animal kingdom.”) State v. Brown, 13 N.C. App. 261 (1971) (“we do not approve of a [D] being referred to as an 'animal‘”) State v. Sanderson, 22 N.C. App. 669 (1974) (argument that “a person with a bad prior criminal record is just like a snake” is not to be condoned) © 2003

Animal references But see State v. Earnhardt, 307 N.C. 62 (1982) (statement that individuals were "acting like a pack of wolves" was supported by evidence that they were drinking & engaging in violent behavior). © 2003

S.O.B. State v. Davis, 45 N.C. App. 113 (1980) (new trial; prosecutor referred to D as “a mean S.O.B.”; comments were “highly improper, objectionable,” “degrading and disrespectful”) State v. Frink, -- N.C. App. – (July 1, 2003) (prosecutor made improper but not prejudicial remarks when he implied D was not raised by his mother, suggesting he was a “S.O.B”). © 2003

Hitler/Nazis Walters, 357 N.C. 68 (prosecutor improperly made made references to Hitler, even though thrust of argument was that jury should stand up to evil like Winston Churchill did to Hitler rather than to appease evil like Neville Chamberlin; no prejudice) Frink, -- N.C. App. – (7/1/03) (prosecutor improperly compared D to Hitler & D’s gang’s writing to Nazi writings; no prejudice) © 2003

Hitler/Nazis “[U]sing Hitler as the basis for [an] example has the inherent potential to inflame and to invoke passion in the jury, particularly when [D] is compared to Hitler in the context of being evil.” Walters, 357 N.C. at 105. © 2003

Hitler/Nazis But see State v. Burmeister, 131 N.C. App. 190 (1998) (no error in overruling objection to prosecutor’s Hitler reference; was evidence indicated crimes were committed by neo-Nazi skinhead motivated by the same racial hatred preached by Nazis & that D was enchanted with Nazi Germany) © 2003

Hitler/Nazis But see State v. Wilson, 338 N.C. 244 (1994) (with limited analysis concluding there was no gross impropriety in comparing D to Hilter) State v. Basden, 339 N.C. 288 (1994) (no intervention ex mero motu required; reference to D as "just like in Nazi Europe" analogizing D's argument that he was easily led by another to kill to the Nazis who defended their killings by arguing that they were simply following orders). © 2003

“The Devil” State v. Sidden, 347 N.C. 218 (1997) (ex mero motu intervention not required; prosecutor argued: “when you . . . try the devil, you've got to go to hell to get your [Ws]. . . .The [D] over here qualifies in that respect.”) State v. Willis, 332 N.C.151 (1992) ("when you try the devil, you have to go to hell to find your witnesses" did not characterize D as a devil) State v. Grooms, 353 N.C. 50 (2000) (intervention ex mero motu not required when prosecutor referred to D as "the prince of darkness;" evidence suggested that D regularly rode his bicycle at night) © 2003

“The Devil” State v. Sidden, 347 N.C. 218 (1997) (ex mero motu intervention not required; prosecutor argued: “when you . . . try the devil, you've got to go to hell to get your [Ws]. . . .The [D] over here qualifies in that respect.”) State v. Willis, 332 N.C.151 (1992) ("when you try the devil, you have to go to hell to find your witnesses" did not characterize D as a devil) State v. Grooms, 353 N.C. 50 (2000) (intervention ex mero motu not required when prosecutor referred to D as "the prince of darkness;" evidence suggested that D regularly rode his bicycle at night). XXX XXX © 2003

Uncomplimentary comments supported by evidence Hamlet, 312 N.C. 162 (was not improper to argue D “is the baddest on the block” and everybody knows it when evidence showed that D committed the crime to redeem his reputation as a violent man) State v. Warren, 348 N.C. 80 (1998) (no error to overrule D’s objection to prosecutor’s statement that D was a “coward” when evidence suggested D preyed on weaker Vs) © 2003

N.C. Conference of Superior Court Judges Criminal Law Update & Review