State v. Craig

Justice Exum

dissenting as to sentence.

Believing most strongly that it is error entitling defendants to a new sentencing hearing for the prosecutor in argument to characterize defendants as “wolves” and “human animals,” I dissent from that portion of the majority opinion which finds no error in the sentencing phase of the case.

Throughout his arguments in both the guilt and sentencing phases of the case, the prosecutor repeatedly used the metaphor of a “wolfpack” in describing the actions of defendants. He argued, for example, as follows in the guilt phase:

*465 As a wolfpack who chases down its quarry, who is the more responsible, the wolf that grabs the flank and holds or the wolf that grabs the neck and kills?

The strength of the pack is the wolf, and the strength of the wolf is the pack.

. . . [Cjould a more accurate analogy be drawn than a wolfpack? . . . Edith Ritch never left there because a pack of humans acting as wolves descended on her, as they had previously descended on Seab Ritch.

Like wolves of the pack they pounced on him, Betty just as much as the rest.

Once the wolfpack had begun, once the beating of Seab Ritch was started, there became a frenzy.

Then in the sentencing phase the prosecutor continued with the metaphor:

The course of conduct wherein Edith Ritch was killed was part of a course of conduct wherein the defendants acting as a wolfpack, a group of human animals, descended first on Seab Ritch, beat him mercilessly, continued to Edith Ritch, and there added only the knife to what they had done to Seab Ritch.

The defendants, by their premeditated, cold-blooded, wolfpack acts, called for their own punishment, their own penalty. . . . Not by anything you, the Court, or any witness did, but by their own hands, by their own acts, by their own merciless, vicious brutality, do they call for the only just penalty in this case, that the penalty of death be imposed.

Both the prosecutor at trial and the majority here refer to this argument as an analogy, apparently in an effort to accord it some kind of logical force. To be valid as an analogy, the argu *466 ment would have to rest on these premises: wolves run in packs; all human beings act like wolves; therefore these defendants ran in a pack. Since the minor premise is obviously invalid, the argument fails as an analogy. The argument is nothing more than a metaphor in which human beings are likened to wolves. It has no logical force, but serves only to diminish the status of defendants in the eyes of the jury.

Both this Court and the Court of Appeals have strongly disapproved of prosecutors likening defendants to the animal kingdom in the trial of criminal cases. State v. Smith, 279 N.C. 163 , 181 S.E. 2d 458 (1971); State v. Brown, 13 N.C. App. 261 , 185 S.E. 2d 471 (1971), cert. denied, 280 N.C. 723 , 186 S.E. 2d 925 (1972). Smith was a capital case in which defendant was convicted of rape and received life imprisonment at trial upon the jury’s recommendation. In closing argument the prosecutor argued, among other things, that a person who did what defendant did is “lower than the bone belly of a cur dog.” 279 N.C. at 165 , 181 S.E. 2d at 459 . The prosecutor also argued that he knew “when to ask for the death penalty and when not to”; he described a sexual assault case that he refused to prosecute; he called the defendant in argument a “liar”; and he disparaged the defendant’s character witnesses. Id. at 165-66 , 181 S.E. 2d at 459-60 . For all of these transgressions this Court, in an opinion by Justice Higgins, awarded defendant a new trial on the question of his guilt. The Court quoted with approval from Berger v. United States, 295 U.S. 78, 88 (1935), as follows:

‘The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’

*467 279 N.C. at 167 , 181 S.E. 2d at 460 . Although no objection was made at trial to the argument, this Court said, “The trial judge who heard the argument and failed to intervene on his own motion, was derelict in his duty.” Id. at 167 , 181 S.E. 2d at 461 .

In State v. Brown, supra, 13 N.C. App. 261 , 185 S.E. 2d 471 , the Court of Appeals, in an opinion by then Chief Judge Mallard, expressly disapproved of the prosecutor’s referring to defendant in closing argument as a “young animal,” but did not under the circumstances of the case find the error sufficient to give defendant a new trial on the question of his guilt. Id. at 270 , 185 S.E. 2d at 477 .

Other courts have also disapproved of metaphors which liken human beings to animals. In ordering a new trial in a death case on other grounds, the Louisiana Supreme Court observed, for guidance on retrial, that “[T]he prosecutor also characterized the defendant as an ‘animal,’ an epithet which we have previously warned may constitute reversible error.” State v. Marshall, 414 So. 2d 684 , 688 n. 3 (La.), cert. denied, — U.S. —, 103 S.Ct. 468 (1982). The Pennsylvania Supreme Court, in a capital case in which the jury fixed life imprisonment as the punishment, gave the defendant a new trial because the prosecutor, among other things, referred to defendants as “hoodlums” and “animals.” Commonwealth v. Lipscomb, 455 Pa. 525 , 317 A. 2d 205 (1974). The Pennsylvania Court characterized such arguments as expressions of the prosecutor’s personal belief in the accused’s guilt which have no legitimate place in argument. Id. at 528 , 317 A. 2d at 207 .

Although I think it error, I would not award defendants a new trial on the question of their guilt because of the animal metaphor argument. The evidence of guilt is so overwhelming and uncontradicted by defendants at trial, that the result on the guilt phase would have been the same even without this argument. I strongly believe, however, that such an argument requires a new sentencing hearing.

In a capital case, the jury’s decision to recommend death, a “recommendation” which is binding on the trial court under our procedure, is the most awesome decision one group of human beings can make about another human being. In the trial of a case in which this decision may be made, nothing should be permitted that dilutes the jury’s terrible responsibility, or as this Court has *468 said through Justice, now Chief Justice, Branch, “lighten[s] [its] solemn burden.” State v. Hines, 286 N.C. 377, 386 , 211 S.E. 2d 201, 207 (1975). See also State v. White, 286 N.C. 395 , 211 S.E. 2d 445 (1975). In Hines and White defendants who had received death sentences at trial were given new trials by this Court. In Hines the prosecutor during the jury selection process said to one juror, “And to ease your feelings, I might say to you that [no] one has been put to death in North Carolina since 1961.” 286 N.C. at 382, 211 S.E. 2d at 204. White relied on Hines in finding similar reversible error in a prosecutor’s argument that made reference to defendant’s “automatic appeal to the Supreme Court of North Carolina .... If any error is made in this court, that Court will say.” 286 N.C. at 402, 211 S.E. 2d at 449. In White the Court found reversible error in this argument notwithstanding the trial court’s sustaining defendant’s objection and instructing the jury to disregard the argument.

By the same reasoning, arguments to the jury in capital cases comparing defendants to animals subtly dilutes the jury’s ultimate responsibility to say whether defendant shall live or die. Defendant after all is a human being created like the jurors themselves by God in His own image and given dominion over all other creatures. Genesis 1:26-28; 2:4-23. In making its life or death decision the jury’s focus on defendant’s humanity should not be blurred. If the jury recommends death, its full realization that it is a human being whom it has condemned to die must not be weakened. To suggest to the jury by animal metaphors in a capital case that a defendant is something less than human impermissibly deprives defendant of that status in the order of creation to which he or she rightfully belongs —a status of which the jury must not lose sight in making its life or death determination.

The animal metaphor argument in this capital case so tainted and diluted the jury’s decision on the ultimate question of punishment that defendants, in my view, must be given new sentencing hearings. The argument is so fundamentally wrong that the trial judge should have corrected it on his own motion. See State v. Smith, supra, 279 N.C. 163 , 181 S.E. 2d 458 . Nor is the harm done lessened by the fact that some of this argument occurred in the guilt phase. See State v. Hines, supra, 286 N.C. 377 , 211 S.E. 2d 201 .

*469 I also think the trial court committed reversible error in the sentencing phase when it refused defendants’ requests to have their pretrial offer to take a polygraph examination submitted for the jury’s consideration.'

In considering this question, the majority has not adopted the appropriate test in determining when a proffered mitigating circumstance should be submitted. The majority quotes only a definition of a mitigating circumstance from State v. Irwin, 304 N.C. 93, 104 , 282 S.E. 2d 439, 446-47 (1981). The very next sentence in Irwin gives the appropriate test for whether a particular circumstance should be submitted. The appropriate test and a corollary are set forth in Irwin as follows:

The U.S. Supreme Court has held that any aspect of defendant’s character, record or circumstance of the particular offense which defendant offers as a mitigating circumstance should be considered by the sentencer. Lockett v. Ohio, 438 U.S. 586 , 57 L.Ed. 2d 973 , 98 S.Ct. 2954 (1978). However, evidence irrelevant to these factors may be properly excluded by the trial court. Lockett v. Ohio, supra, p. 604, n. 12.

304 N.C. at 104 , 282 S.E. 2d at 447 . This Court also held in State v. Johnson, 298 N.C. 47, 72 , 257 S.E. 2d 597, 616 (1979), that upon proper request the trial court must submit to the jury any circumstance “that the jury could reasonably deem ... to have mitigating value . . . .”

The question is, therefore, whether defendants’ offer to take a polygraph examination during the investigative stages of this case is a circumstance relating to their character which a jury might reasonably deem to have mitigating value. I think it is such a circumstance. It is in the nature of an offer of cooperation with investigators much like defendant Craig’s consent to the search of his home, which was submitted as a mitigating circumstance in his case.

The majority’s reliance on State v. Grier, 307 N.C. 628 , 300 S.E. 2d 351 (1983), holding polygraph test results inadmissible as evidence at trial even in the presence of a stipulation of admissibility, is misplaced. Grier overruled earlier cases holding that the parties could stipulate the admissibility of polygraph test *470 results. This was the law when defendants here made their offer to take the test. Their offer, therefore, should be considered in light of the law governing such offers at the time the offer was made. Further, even in Grier we noted that our holding was not intended to “affect the use of the polygraph for investigatory purposes.” 307 N.C. at 645 , 300 S.E. 2d at 361 .

In this case when defendants offered to submit to polygraph examinations they presumably were aware that under the law at that time, the test result could be stipulated into evidence at their trials. Further, the polygraph test results might have been an aid in the investigation of these crimes, particularly in the investigator’s efforts to determine more precisely the roles which defendants — as opposed to their accomplice and principal state’s witness, Betty Howie —played in the crimes.

Thus, each defendant’s offer to submit to polygraph testing was relevant to his character in that it was some evidence of his willingness to cooperate in the investigation of the murders. The jury should have been allowed to determine in each case whether the offer did constitute a mitigating circumstance.

Justice Frye joins in this dissenting opinion.