State v. Haselden

Justice BRADY

concurring.

I agree with the majority that defendant received a fair trial and capital sentencing proceeding, free from prejudicial error. I write sep *32 arately to emphasize a point regarding the prosecutor’s biblical remarks to the jury during closing arguments. I agree wholeheartedly with the well-established principle that “it is the' secular law of North Carolina which is to be applied in our courtrooms.” State v. Williams, 350 N.C. 1, 27 , 510 S.E.2d 626, 643 , cert. denied, 528 U.S. 880 , 145 L. Ed. 2d 162 (1999). However, it is my belief that neither this principle nor any other within our jurisprudence prevents prosecutors from presenting biblical references during closing argument in capital cases.

As so eloquently noted by United States Supreme Court Justice William Douglas over fifty years ago, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 , 96 L. Ed. 954, 962 (1952). This maxim is reflected in the practices of our government, beginning at its inception and continuing today. Our Founding Fathers never intended that we utilize the Establishment Clause of the United States Constitution or any other laws to sterilize our public forums by removing all references to our religious beliefs. Arlin M. Adams & Charles J. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 51-52 (Univ. of Penn. Press 1990); see also School Dist. of Abington v. Schempp, 374 U.S. 203, 294 , 10 L. Ed. 2d 844, 899 (1963) (Brennan, J., concurring) (asserting that “the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). This was evident in the actions of the first Congress, which, three days before approving the final draft of the Bill of Rights, authorized the appointment of paid chaplains. Marsh v. Chambers, 463 U.S. 783, 788 , 77 L. Ed. 2d 1019, 1025 (1983). Employing chaplains, along with the practice of opening congressional sessions with prayer, continues unfettered, has consistently been followed by most states, and was found constitutional by the United States Supreme Court in 1983. Id. at 790-91 , 77 L. Ed. 2d at 1026-27 . The American armed forces, as well as state and federal prisons, also provide chaplains for their populations. See, e.g., Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (holding that Army’s chaplaincy program did not violate the Establishment Clause). In addition, the ceremonial installations and inaugurations of both federal and state elected officials are often accompanied by an invocation or benediction. Lee v. Weisman, 505 U.S. 577, 633-34 , 120 L. Ed. 2d 467, 510-11 (1992) (Scalia, J., dissenting) (noting that the first act of many of our presidents, including George Washington, was to pray or otherwise invoke a higher power). The United States *33 Congress has provided for the national motto reflecting our religious heritage, “In God we trust,” 36 U.S.C.A. § 302 (West 2001), and has mandated that it “shall” be inscribed onto our currency, 31 U.S.C.A. § 5112 (d)(1) (West 2003). Finally, many federal and state courts open their sessions asking God to save their honorable courts. Given these and “countless other illustrations of the Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage,” Lynch v. Donnelly, 465 U.S. 668, 677 , 79 L. Ed. 2d 604, 612 (1984), it is illogical to eliminate biblical remarks in capital cases. However well intentioned it may be, such a blanket prohibition would artificially and selectively eliminate Judeo-Christian precepts of justice from closing arguments, while still permitting arguments arising from other concepts of justice.

America is, as it should be, “a microcosm of world religion,” where “[e]very major world religious community is now present in strength.” J. Gordon Melton, Encyclopedia of American Religions 18 (6th ed. 1999). Yet, of the more than 1,500 religious organizations that exist in the United States, “the overwhelming majority of Americans who engage in any outward religious activity are members of one of the more than 900 Christian denominations,” a community that “shows no evidence of declining.” Id. at 1, 18. It is from this sector of the population that a majority of North Carolina jurors is selected. These jurors, many of whom are cloaked in deeply held JudeoChristian beliefs, do not automatically leave their religious beliefs on the courthouse steps. Indeed, their belief system would necessarily prohibit such a disavowment. This fact has certainly not escaped the innovative minds of defense attorneys, who argue that the Bible prohibits any type of killing. See John H. Blume & Sheri Lynn Johnson, Don’t Take His Eye, Don’t Take His Tooth, and Don’t Cast the First Stone: Limiting Religious Arguments in Capital Cases, 9 Wm. & Mary Bill Rts. J. 61 , 73-74 (2000) (noting that reported cases and the authors’ “own conversations with other defense lawyers [] [led them] to conclude that defense counsel frequently make religious arguments against the death penalty, at least in the South, where [they] practice”). Such religious references are not prohibited under North Carolina law, though this Court has properly noted that “secular law” provides the ultimate rule of decision in criminal cases.

As noted by the majority, this Court recognizes that because defense attorneys make biblical pleas in capital cases, prosecutors often give biblical remarks in anticipation of defense arguments. See State v. Bond, 345 N.C. 1, 36 , 478 S.E.2d 163, 182 (1996), cert. denied, *34 521 U.S. 1124 , 138 L. Ed. 2d 1022 (1997). Even apart from this consideration, biblical arguments are within the acceptable parameters of the law, so long as prosecutors do not contend that the death penalty is divinely mandated for a specific defendant.

This is simply not a case where the State told the jury that the Bible required a death sentence for this particular defendant. Further, there is a marked difference between the challenged argument in the case sub judice and the arguments in State v. Jones, 355 N.C. 117 , 558 S.E.2d 97 (2002), for example, where the prosecutor compared the defendant’s crime to the Columbine High School shooting and the Oklahoma City federal building bombing, id. at 132 n.2, 558 S.E.2d at 107 n.2, and characterized defendant as being “lower than the dirt on a snake’s belly,” id. at 132 , 558 S.E.2d at 107 , in “a thinly veiled attempt to appeal to the jury’s emotions,” id. at 133 , 558 S.E.2d at 107 .

The majority’s legal analysis unmistakably reveals that the prosecutor’s biblical argument in the present case is wholly consistent with our prior decisions. I therefore disagree with the dissent’s assertion that this Court has failed to act consistently. Rather, this Court, as noted by the dissent, has been entirely consistent — it has refused to reverse capital murder convictions in this State because of biblical arguments. I fail to see how this consistency is in any way a “disservice to litigators and to [this Court] by setting a standard of behavior while consistently excusing deviations from that standard.” Virtually every capital defendant raises assignments of error challenging the propriety of closing arguments on perhaps every conceivable topic, not just those arising from Judeo-Christian concepts of justice. See, e.g., State v. Anthony, 354 N.C. 372, 428 , 555 S.E.2d 557, 593 (2001) (challenging whether closing argument was grossly improper where prosecutor’s closing remarks included references to what victim may have been thinking as she was dying), cert. denied,-U.S.-, 153 L. Ed. 2d 791 (2002); State v. Parker, 354 N.C. 268, 291-92 , 553 S.E.2d 885, 901-02 (2001) (same where prosecutor requested that jury draw conclusions from evidence and use common sense), cert. denied, -U.S.-, 153 L. Ed. 2d 162 (2002); State v. Cummings, 353 N.C. 281, 296-301 , 543 S.E.2d 849, 858-61 (same where prosecutor improperly characterized defendant’s statements), cert. denied, 534 U.S. 965 , 151 L. Ed. 2d 286 (2001); State v. Hardy, 353 N.C. 122, 135-37 , 540 S.E.2d 334, 345-46 (2000) (same where prosecutor commented on the victim’s funeral service and noted that the victim’s son had prayed for the defendant’s forgiveness), cert. denied, 534 U.S. 840 , 151 L. Ed. 2d 56 (2001); State v. Grooms, 353 N.C. 50, 81-82 , 540 S.E.2d 713, 732-33 *35 (2000) (same where prosecutor referred to the defendant as “the prince of darkness”), cert. denied, 534 U.S. 838 , 151 L. Ed. 2d 54 (2001).

Grave consequences would result if this Court were to abandon its well-established gross impropriety standard of review in favor of a new legal standard. The stakes in capital murder trials are undeniably high. Counsel typically attempt to zealously deliver a “convincing” or “telling” argument to the jury that may include some moral tenet. These arguments are essentially used to encourage the jury to “do the right thing” and return a favorable verdict in accordance with the law. Therefore, arbitrarily eliminating only one category of argument would unfairly limit the ability of prosecutors to communicate to the jury that the ultimate punishment of death is sometimes appropriate. Likewise, such a standard would unfairly limit the ability of defense counsel to persuade the jury to spare the defendant’s life.

Moreover, the effect of the dissent’s proposed rule would be inconsistent with the doctrine of stare decisis and would constitute a further erosion of this Court’s well-settled jurisprudence concerning closing arguments. Finally, and most importantly, the newly-proposed rule would inhibit the duty of capital jurors, who are required to make perhaps the most critical decision of their lives without explanation from trial counsel as to why the punishment of death, or life imprisonment, is not inherently at odds with their own core beliefs.

In the present case, the prosecutor did not argue that the death penalty was mandated by God for this defendant, or otherwise inappropriately request the jurors to render a verdict inconsistent with their sworn oaths. Rather, the prosecutor was following and, in fact, preserving the secular law of our state by explaining to jurors that their individual belief systems should not prohibit them from carrying out their duties under our well-established procedures for capital sentencing proceedings. For the reasons stated by the majority, with an emphasis on those discussed herein, I believe that the prosecutor’s biblical references during closing arguments do not warrant a new sentencing hearing.

Chief Justice LAKE joins in this concurring opinion.