State v. Thompson

Justice EXUM

concurring.

I write to disassociate myself from what is at least an intimation in the majority opinion that the conduct of the district attorney complained of on appeal was overall not improper but merely another example of order-of-the-day, colorfully zealous advocacy. I cannot discern from the opinion itself whether the majority’s view is that the district attorney’s conduct, while improper, was not sufficiently prejudicial to warrant a new trial or whether it is that his conduct was not improper. In my view the district attorney’s conduct goes beyond that which is permitted to zealous advocacy.

The North Carolina Code of Professional Responsibility, Disciplinary Rule 7-106(c)(2), 283 N.C. 783, 837 (1973), provides:

“In appearing in his professional capacity before a tribunal, a lawyer shall not . . . ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.”

The American Bar Association’s Standards Relating to the Administration of Criminal Justice, The Prosecution Function, § 5.7(a), Compilation, p. 97, provides:

*721“The interrogation of all witnesses should be conducted fairly, objectively and with due regard for the dignity ... of the witness, and without seeking to intimidate or humiliate the witness unnecessarily. Proper cross-examination can be conducted without violating rules of decorum.”

The district attorney’s cross-examination of the witness Geraldine McNatt and his reference to her and the witness Billie Ann Leake as “hot numbers” were unnecessary attempts to degrade, intimidate and humiliate these witnesses contrary to the ethical considerations set out above.

This Court said in State v. Miller, 271 N.C. 646, 657, 157 S.E. 2d 335, 344 (1967): “Defendants in criminal prosecutions should be convicted upon the evidence in the case, and not upon prejudice created by abuse administered by the solicitor in his argument.” The North Carolina Code of Professional Responsibility, supra, provides: “Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.” Ethical Consideration 7-37, 283 N.C. at 834. The district attorney’s argument to the jury was actually that every defendant “has a deep and abiding, vested interest in telling you any sort of transparent fabrication his imagination can dream up and that he thinks you are gullible enough and naive to buy.” It constituted unwarranted abuse and haranguing and offensive tactic which violates the principles of State v. Miller, supra, and Ethical Consideration 7-37 of the Code of Professional Responsibility, supra. The argument is, furthermore, legally incorrect. It is proper, of course, to argue that a defendant has an interest in the outcome of the case which might tempt him to lie if he is in fact guilty, and that his testimony should therefore be scrutinized carefully. I know of no rule to the effect that every defendant has an interest in testifying falsely. To permit such an argument is, in effect, to strike a severe blow at the presumption of innocence to which all defendants are entitled. The argument, in effect, says that criminal defendants are all guilty and if they testify to the contrary in their own behalf they are simply lying. The trial judge committed error in not sustaining defendant’s objection to this argument.

The same kind of error was committed when the district attorney referred, at least by implication, to the defendant as a *722criminal. The trial judge, however, intervened and instructed the jury to disregard this argument.

Because in this case the trial judge properly intervened, sustained most of defendant’s objections to these improper pros-ecutorial tactics and instructed the jury to disregard them; and because I believe the result in this case would have been the same even if the trial court had sustained the objection to the district attorney’s improper argument on the one occasion when he erroneously overruled it, I am unwilling to vote that defendant is entitled to a new trial. Therefore I concur in the result reached by the majority.