 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Davis12/21/2000
e was used infrequently and sporadically. Defendant argues that every time the trial court referred to the alternative to death, he should have instructed the jury that it was "life imprisonment without parole."
N.C.G.S. § 15A-2002 provides in pertinent part: "The judge shall instruct the jury, in words substantially equivalent to those of this section, that a sentence of life imprisonment means a sentence of life without parole." We hold that the judge in this case did instruct the jury that a sentence of life imprisonment means a sentence of life without parole. In the charge to the jury, the judge instructed the jury, "If you unanimously recommend a sentence of life imprisonment, the court will impose a sentence of life imprisonment without parole." We find nothing in the statute that requires the judge to state "life imprisonment without parole" every time he alludes to or mentions the alternative sentence. We find no error in the trial court's actions. This argument is without merit.
In his twentieth argument, defendant contends that the trial court erred in referring to the prosecutor as "our" and/or "your" district attorney. Defendant claims that the trial court's statements violated its duty of impartiality and constituted an improper expression of opinion in violation of N.C.G.S. § 15A-1222 as well as the United States and North Carolina Constitutions. We disagree.
N.C.G.S. § 15A-1222 provides that " he judge may not express during any stage of the trial any opinion in the presence of the jury on any question of fact to be decided by the jury." "In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized." State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). Further, since defendant claims that he was deprived of a fair trial by the judge's statements, he "has the burden of showing prejudice in order to receive a new trial." State v. Gell, 351 N.C. 192, 207, 524 S.E.2d 332, 342, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (Oct. 20, 2000) (No. 99-10222). "Whether the accused was deprived of a fair trial by the challenged remarks must be determined by what said and its probable effect upon the jury in light of all attendant circumstances." State v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).
In the instant case, during jury selection, the trial court asked prospective jurors whether they had any contact with "our" district attorney's office and whether they knew that the State was represented by "your" and "our" district attorney; and stated that this case would be prosecuted by "your" elected district attorney; and that the burden to prove death was on the State through "your" district attorney. Defendant failed to object to any of these statements.
We decline to hold that these comments by the trial judge constituted an improper expression of opinion. We first note that the opinion must be on a "question of fact to be decided by the jury." N.C.G.S. § 15A-1222 (1999). Whether the district attorney is "our" or "your" district attorney is not a question of fact to be decided by the jury. After a full examination of the trial transcript, we conclude that, when viewed in the totality of circumstances, defendant has failed to show prejudice. This argument is without merit.
In his twenty-first argument, defendant contends that the trial court erred in submitting both aggravating circumstances (e)(5) and (e)(6) to the jury. Defendant argues that the trial court's submission of both the (e)(5) and (e)(6) aggravating circumstances in this case constituted unconstitutional double-counting. We disagree.
"`Double-counting' oc
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|