holding that the defendant could not establish prejudicial error stemming from the trial court’s restrictions on certain questions related to the -16- STATE V. CRUMP Davis, J., dissenting death penalty, as “defense counsel was allowed to conduct an exhaustive examination into the prospective jurors’ attitudes about the death penalty and whether those attitudes would interfere with their ability to serve”
How later courts described this case
- holding that the defendant could not establish prejudicial error stemming from the trial court’s restrictions on certain questions related to the -16- STATE V. CRUMP Davis, J., dissenting death penalty, as “defense counsel was allowed to conduct an exhaustive examination into the prospective jurors’ attitudes about the death penalty and whether those attitudes would interfere with their ability to serve”
- holding that “the limits placed by the trial court on defendant’s cross- STATE V. BOWMAN Ervin, J., dissenting examination of these witnesses [constituted] an appropriate exercise of its discretion” given that “the questions called for incompetent hearsay testimony, were unduly repetitive or argumentative, or were simply improper in form”
- holding that "the limits placed by the trial court on defendant's cross-examination of these witnesses [constituted] an appropriate exercise of its discretion" given that "the questions called for incompetent hearsay testimony, were unduly repetitive or argumentative, or were simply improper in form"
- stating that “the trial court is vested with broad discretion to regulate the extent and manner of questioning by counsel during voir dire.. . . [and] [i]n order to demonstrate reversible error in this respect, the defendant must show that the trial court committed a clear abuse of discretion”
Written by the judges who cited it.
The opinion
Chief Justice LAKE
dissenting in part.
I concur in the majority opinion regarding the issues of guilt/innocence, but I respectfully dissent as to that portion of the opinion regarding the necessity for a new capital sentencing proceeding.
I do not agree with the majority’s conclusion that the prosecutor’s argument to the jury during the sentencing phase of the instant case was so grossly improper as to require the trial court to intervene ex mero motu. The majority points out that defendant did not object to the prosecutor’s remarks. As this Court has observed many times, “only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” State v. Richardson, 342 N.C. 772, 786 , 467 S.E.2d 685, 693 (emphasis added), cert. denied, 519 U.S. 890 , 136 L. Ed. 2d 160 (1996), quoted in State v. Cummings, 353 N.C. 281, 297 , 543 S.E.2d 849, 859 , cert. denied, - U.S. -, 151 L. Ed. 2d 286 (2001). The prosecutor’s remarks, under the circumstances and in the context here given, do not rise to the level of an “extreme impropriety.”
Taken in context, I do not believe that this closing argument during the capital sentencing proceeding was an improper comment on defendant’s silence, in violation of his rights under the federal and state Constitutions. Defendant’s guilt had already been established during trial. The prosecutor was not alluding to the trial, and he neither referenced defendant’s failure to testify nor encouraged the jurors to utilize defendant’s silence as an aggravating circumstance. *268 Rather, the entire context of this portion of the argument referred to defendant’s conduct during his evaluation at Dorothea Dix Hospital. The prosecutor’s remarks were intended to draw the jury’s attention to testimony, which was admitted into evidence, that defendant spoke little to the doctors at the hospital, thereby raising at least the arguable inference that defendant did understand the nature of his circumstances and did, in fact, appreciate the criminality of his conduct. It is well settled that counsel may argue all evidence which has been presented as well as reasonable inferences which arise therefrom. State v. McNeil, 350 N.C. 657, 685 , 518 S.E.2d 486, 503 (1999), cert. denied, 529 U.S. 1024 , 146 L. Ed. 2d 321 (2000).
In arguing that defendant “appreciated the criminality of his conduct” and “was mighty careful with who [sic] he would discuss that criminality,” the prosecutor could only have been referencing and arguing against the (f)(6) mitigating circumstance. This portion of the argument was therefore intended to directly refute the (f)(6) mitigating circumstance sought by defendant. See N.C.G.S. § 15A-2000(f)(6) (1999). “[0]ur capital punishment statute provides that, during the sentencing phase, evidence may be presented ‘as to any matter that the court deems relevant to sentence,’ including matters relating to mitigating circumstances.” State v. Locklear, 349 N.C. 118, 158 , 505 S.E.2d 277, 300 (1998) (quoting N.C.G.S. § 15A-2000(a)(3) (1997)), cert. denied, 526 U.S. 1075 , 143 L. Ed. 2d 559 (1999). As such, the argument was clearly relating to evidence before the court and to a mitigating circumstance subject to consideration by the jury. The argument was therefore proper and in any event was not subject to ex mero mo tu intervention.
Justice WAIN WRIGHT joins in this dissenting opinion.