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State v. Stephens12/5/1997
of prior criminal activity circumstance, in the murder of Lynn Wright, the trial court properly instructed the jurors that if they found this circumstance to exist, their foreperson would so indicate by writing "yes" on the form, but if none of them found this circumstance to exist, their foreperson should write "no" on the form. The trial court then mistakenly added the phrase, "the foreperson is to answer yes as to mitigating circumstances if one juror finds a mitigating circumstance and deems it to be mitigating." It is significant with respect to the jury's notice of this statement that defense counsel did not apparently notice this miscue and made no objection either at this point or later at the close of jury instructions when specifically asked by the trial court if counsel had any corrections or objections.
This Court has previously held that a mere lapsus linguae by the trial court while reading instructions to the jury, which is not called to the trial court's attention at the time it is made, will not constitute prejudicial error when it is apparent from a contextual reading that the jury could not have been misled. State v. Reid, 335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994). This situation is distinguishable from those cases in which this Court has found error where the trial court's instructions confused statutory and nonstatutory mitigating circumstances. See State v. Roseboro, 344 N.C. 364, 379-80, 474 S.E.2d 314, 322-23 (1996); State v. Howell, 343 N.C. 229, 239-40, 470 S.E.2d 38, 43-44 (1996); State v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995), cert. denied, ___ U.S. ___, 135 L. Ed. 2d 1080 (1996). In Howell and Jaynes, the trial court lumped together all of the statutory and nonstatutory mitigating circumstances, improperly informing the jury that it should determine if statutory mitigating evidence had mitigating value. In Roseboro, the trial court applied the nonstatutory standard for determining mitigating value to all of the statutory and nonstatutory mitigating evidence. In contrast, in this case, no such broad, all-encompassing instructions were applied, and correct written instructions were included on the Issues and Recommendation form as to each circumstance submitted. The jurors had before them in each case an Issues and Recommendation form which clearly delineated the difference between statutory and nonstatutory, designating each statutory circumstance as "mitigating" and each nonstatutory circumstance as requiring a finding that it both exists and has mitigating value.
In light of the instructions as a whole and the correct Issues and Recommendation forms taken by the jury into the jury room, we conclude that this one misstatement could not have confused the law as to statutory and nonstatutory circumstances for the jury and did not constitute prejudicial error. This assignment of error is overruled.
In his second assignment of error, defendant contends that the prosecutor commented on defendant's election not to testify, thus violating defendant's constitutional rights. In closing, the prosecutor argued:
MR. LOCK: The defense may raise other challenges to our evidence when they argue to you but I have a challenge. I challenge them to explain why their client was found in an attic
MR. HOLLAND: Objection.
THE COURT: Overruled.
MR. LOCK: /--with one of the murder weapons located just inches from him if he's not guilty.
This brief statement in argument by the prosecutor clearly does not constitute a comment on the defendant's failure to testify and merely draws the jury's attention to the fact that particular evidence offered by the State was uncontradicted or unrebutted.
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