State v. Golphin8/25/2000
ts that the State made impermissible statements regarding the general deterrent effect of the death penalty. Although Tilmon objected to one reference regarding sending a message to anyone contemplating lawlessness and the trial court sustained the objection, both defendants argue the trial court should have intervened with regard to other such references.
In spite of the wide latitude granted to the State, Anderson, 322 N.C. at 37, 366 S.E.2d at 468, the State is prohibited from arguing general deterrence "because it is not relevant to defendant, his character, his record, or the circumstances of the charged offense." State v. Bishop, 343 N.C. 518, 555, 472 S.E.2d 842, 862 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997). The State, however, in its arguments, can "urg the jury to sentence a particular defendant to death to specifically deter that defendant from engaging in future murders." McNeil, 350 N.C. at 687, 518 S.E.2d at 504.
In the instant case, the State's argument included such statements as the following:
These two defendants deserve the death penalty for what they did, for their motives, for their actions. Someone has got to tell people like these two defendants, "We absolutely will not tolerate this any longer." If you don't tell that to these two defendants, nobody else will. We can't rely on the next bad case. We can't rely on the next jury to send that message to people who have no regard for your way of life, for your state, for your law enforcement officers.
After reviewing the argument in context, we conclude the State's arguments did not constitute a general deterrence argument. See State v. Guevara, 349 N.C. 243, 258, 506 S.E.2d 711, 721 (1998) (holding the State's argument "merely focused the jury's attention on the seriousness of the crime and the importance of the jury's duty" and did not constitute a general deterrence argument), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999); Barrett, 343 N.C. at 181, 469 S.E.2d at 898 (holding the State can argue the seriousness of the crime). Nevertheless, assuming the State's arguments were improper, they were not so grossly improper as to warrant intervention by the trial court. See, e.g., McNeil, 350 N.C. at 687, 518 S.E.2d at 504 (holding the State's argument that the death penalty is proper in our society and "we're going to enforce the laws and if you kill three people, that's enough" was not so "grossly improper" as to warrant intervention by the trial court ex mero motu); State v. Hill, 311 N.C. 465, 475, 319 S.E.2d 163, 170 (1984) (holding the State's argument referring to the "deterrent effect" of the death penalty did not warrant ex mero motu intervention by the trial court). Therefore, intervention by the trial court was not warranted.
We next address Tilmon's argument that the State's reference to the community's sentiment regarding the death penalty was improper. A prosecutor is prohibited from "intimat to the jury community preferences regarding capital punishment." State v. Artis, 325 N.C. 278, 329, 384 S.E.2d 470, 499 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The State cannot encourage the jury to lend an ear to the community. See State v. Jones, 339 N.C. 114, 161, 451 S.E.2d 826, 852 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995). However, "it is not improper to remind the jury . . . that its voice is the conscience of the community," nor is it "objectionable to tell the jury that its verdict will `send a message to the community' about what may befall a person convicted of murder in a court of justice." Artis, 325 N.C. at 329-30, 384 S.E.2d at 499-500.
The State's arguments in the in
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