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State v. Davis12/21/2000
hether he's bawling or rolling his eyes or saying "did not" while a witness is testifying . . . .
Defendant contends that this argument was an indirect comment on defendant's decision not to testify at the hearing. Defendant argues that, by pointing out defendant's conduct in the courtroom, including sitting at the counsel table, bowing his head, crying, rolling his eyes, and muttering, the prosecutor called attention to what defendant did not do, namely, testify.
" ny direct reference to defendant's failure to testify is error and requires curative measures be taken by the trial court." State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993). Furthermore, the constitutional right of the accused to remain silent is violated by language that is "of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." State v. Rouse, 339 N.C. 59, 95-96, 451 S.E.2d 543, 563 (1994) (quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211, 41 L. Ed. 2d 20 (1974)), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995).
Defendant's reliance on State v. McLamb, 235 N.C. 251, 257, 69 S.E.2d 537, 541 (1952), as support for his contention is misplaced. In McLamb, while the defendant did not testify, his wife and several men testified on his behalf. The prosecutor commented that the defendant was "hiding behind his wife's coat tail," an obvious reference to the defendant's failure to testify. Id. In contrast, in the instant case, the prosecutor's comments about defendant's mannerisms in the courtroom did not constitute references to defendant's constitutional right to remain silent. This argument is rejected.
In defendant's fifteenth argument, he challenges the trial court's jury instructions regarding the N.C.G.S. § 15A-2000(e)(5) aggravating circumstance. Defendant contends the trial court's instruction was erroneous as it failed to submit the essential timing element to the jury. We agree.
An aggravating circumstance that may be considered in a capital sentencing proceeding is that " he capital felony was committed while the defendant was engaged . . . in the commission of . . . robbery." N.C.G.S. § 15A-2000(e)(5) (1999). This subsection "guides the jury's deliberation upon criminal conduct of the defendant which takes place `while' or during the same transaction as the one in which the capital felony occurs." State v. Goodman, 298 N.C. 1, 24, 257 S.E.2d 569, 584 (1979).
In the instant case, during the charge conference, the State requested that the court use its proffered (e)(5) jury instruction instead of the pattern instruction. Defense counsel objected and asked the trial court to administer the pattern (e)(5) jury instruction. However, the trial court overruled the objection and used the State's requested (e)(5) instruction.
During the jury charge for the murder of Miller, the trial court gave the State's requested instructions as follows:
our aggravating circumstances . . . may be applicable to the case of Joyce Miller: First, "Was this murder committed by the defendant while the defendant was engaged in the commission of armed robbery?" . . . It is sufficient to support this aggravating circumstance that the defendant committed this murder while engaged in the commission of an armed robbery even if the armed robbery was committed after Joyce Miller was killed, so long as the armed robbery occurred during a continuous series of events surrounding Joyce Miller's death.
Now, I charge that for you to find that the defendant committed this murder while engaged in the commission of the armed robbery, the State m
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