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North Carolina v. McKoy9/7/1988
trial court or prosecutor that tend to dilute the jury's sense of responsibility for its determinations by suggesting that its verdict will be reviewed, or that the punishment imposed will be withheld, are impermissible and prejudicial. See 75 Am. Jur. 2d Trial § 230 (1974) (" omments . . . on the power of the court to suspend sentence or to set the jury's verdict aside, or statements that a higher court has the power to review the finding of the jury on the weight of the evidence, are calculated to induce the jury to disregard their responsibility, and are improper."). That proposition is not implicated, however, by the facts here, which are distinguishable from those in the above cases.
In White, the prosecutor told the jury that " any error is made in this court, [the Supreme] Court will say." White, 286 N.C. at 402, 211 S.E.2d at 449 (emphasis added). The jury clearly could have interpreted the phrase "in this court" to include its errors as well as the court's errors. Here, by contrast, the prosecutor clearly stated that defendant could not appeal from the jury's findings of fact.
Further, in White the court stated to the jury that "the Supreme Court will review this case." Id. at 402, 211 S.E.2d at 449 (emphasis added). This Court concluded that by that "positive statement . . . the jury was bound to have understood that the court assumed [that] their verdict would be guilty." Id. at 404, 211 S.E.2d at 450-51. Here, by contrast, the court only noted the possibility
of appeal by stating -- in the context of a routine explanation of the court reporter's duties -- that "the Supreme Court can review" this case. (Emphasis added.) This statement implies no assumption of guilt and only conveys information commonly known. We conclude that this brief comment -- at the outset of the trial and in the context of an explanation of the court reporter's duties -- could not have influenced, adversely to defendant, the jury's perception of its responsibility for its decisions.
Likewise, in Jones, the prosecutor argued to the jury: " f you do err in this case he [defendant] has the right of appeal." Jones, 296 N.C. at 497, 251 S.E.2d at 427 (emphasis added). Here, as noted above, the prosecutor instead clearly stated that defendant could not appeal from the jury's findings of fact. The challenged argument was simply an explanation of the jury's function and of the application of the law to the facts.
Finally, in Caldwell the prosecutor argued to the jury: " our decision is not the final decision. . . . Your job is reviewable. . . . he decision you render is automatically reviewable by the Supreme Court." Caldwell, 472 U.S. at 325-26, 86 L. Ed. 2d at 237. As noted above, the United States Supreme Court vacated the death sentence on the ground that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 86 L. Ed. 2d at 239. It stated: " he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." Id. at 333, 86 L. Ed. 2d at 242.
Again, unlike in Caldwell, the prosecutor here did not argue that the jury's determination of defendant's guilt and punishment was not final. Instead, he clearly informed the jury that there was no appeal from its findings of fact. The risk condemned
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