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State v. Davis12/21/2000
he conscience of the community.
[DEFENSE COUNSEL]: Objection.
COURT: Overruled.
Defendant contends that this argument was an unconstitutional misstatement of capital sentencing law and that it communicated to the jury that, under North Carolina law as interpreted by this Court, the jury was not required to listen to, consider, or give effect to defendant's witnesses' sworn evidence about defendant's life. We disagree.
The State must not ask the jurors to "`lend an ear to the community rather than a voice.'" State v. Scott, 314 N.C. 309, 312, 333 S.E.2d 296, 298 (1985) (quoting Prado v. Texas, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982)). Yet, it is not improper for the State to "remind the jurors that `they are the voice and conscience of the community.'" State v. McNeil, 350 N.C. 657, 687-88, 518 S.E.2d 486, 505 (1999) (quoting State v. Brown, 320 N.C. 179, 204, 358 S.E.2d 1, 18, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)), cert. denied, ___ U.S. ___ , 146 L. Ed. 2d 321 (2000).
In the instant case, the prosecutor correctly stated that the jurors must not lend an ear to the community and that the jurors may act as the voice and conscience of the community. We are not convinced by defendant's contention that the prosecution instructed the jury to disregard the testimony of defense witnesses when it stated: "So regardless of all the people who would come before you and ask you to listen to the community about the defendant's life, that is not what the law says." Admittedly, this statement is unclear in light of the fact that no witness asked the jury to listen to the community. However, any confusion generated by the statement was cured when the trial court instructed the jury that "it would be your duty to consider as a mitigating circumstance any aspect of the defendant's character or record or any of the circumstances of this murder that the defendant contends is a basis for a sentence less than death, and any other mitigating circumstance arising from this evidence which you deem to have mitigating value." We find no prejudicial error in the prosecutor's argument.
Third, defendant contends that the prosecutor traveled outside the evidentiary record and made arguments not supported by any evidence. Defendant did not object to this portion of the argument. When a defendant fails to object to the prosecutor's comments during closing arguments, "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, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). We have reviewed the prosecutor's argument, and we do not find it to be so grossly improper as to require intervention by the trial court ex mero motu.
Fourth, and finally, defendant contends that the prosecutor violated his constitutional rights by commenting on defendant's silence. The following exchange occurred during the State's closing arguments:
[PROSECUTOR]: Now, [defendant] sits here like this, and I know that it's hard for you to picture him doing what you know he did and what he's plead "guilty" to doing, and it's especially hard because he grows his hair out and then he tips his head down.
[DEFENSE COUNSEL]: Objection.
COURT: Overruled.
[PROSECUTOR]: And then he looks up and he looks pitiful and you can look at him. This is a huge, momentous decision you're going to make, and you shouldn't have to sneak a glance to see w
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