STATE of North Carolina
v.
Curtis Eugene SMITH.
No. 10.
Supreme Court of North Carolina.
June 10, 1971.*459 Robert L. Morgan, Atty. Gen., by Eugene A. Smith, Asst. Atty. Gen., and Walter E. Ricks, III, Raleigh, Associate Atty., for the State.
Craighill, Rendleman & Clarkson by John R. Ingle, Charlotte, for defendant appellant.
HIGGINS, Justice.
As a part of the case on appeal the defendant has placed in the record what purports to be the full text of the solicitor's argument to the jury. To many portions of the argument the defendant noted exceptions. These were inserted in the record of the case on appeal. Objection seems not to have been made to the Court during the delivery of the argument.
We record here some of the quotes from the solicitor's argument: "I know when to ask for the death penalty and when not to. This isn't the first case; it's the ten thousandth for me. * * * I did * * * have in this courtroom three weeks ago a man charged with a sexual assault * * * who was as innocent of it as I. * * * I hope my reputation in this community where you elected me to this office that I try not an innocent man * * *. When I found that out about that case * * * no one was on his feet faster than I to come to his defense * * *. I wanted to tell you about that and get back to the facts of this case."
In characterizing the defendant, the solicitor said that a man who would do what this woman says this defendant did is "lower than the bone belly of a cur dog."
During the State's evidence, the investigating officer had quoted the defendant as saying that he worked for his employer, the bus company, on May 8, 1969. The solicitor *460 said: "Liar! No, Mr. Smith, State's Exhibit #2 says you were not working that day." Exhibit #2 introduced in evidence by the State was the bus company's work record showing that on May 8, 1969, the defendant began work at 5:43 a. m., was off duty from 9:26 a. m. until 2:22 p. m. and was checked out at 5:14 p.m.
In discussing the defendant's evidence of his good character the solicitor said: "I don't care who they bring in here * * * to say to you that his character and reputation in the community in which he lives is good. I tell you it isn't worth a darn. * * * I don't believe a living word of what he says about this case, members of the jury * * *."
The foregoing are the more flagrant of the solicitor's transgressions. Too much of his argument, however, was pitched in the same tone. When the prosecutor becomes abusive, injects his personal views and opinions into the argument before the jury, he violates the rules of fair debate and it becomes the duty of the trial judge to intervene to stop improper argument and to instruct the jury not to consider it. Especially is this true in a capital case. When it is made to appear the trial judge permitted the prosecutor to become abusive, to inject his personal experiences, his views and his opinions into the argument before the jury, it then becomes the duty of the appellate court to review the argument. "In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its nonexistence." Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314. See also State v. Smith, 240 N. C. 631, 83 S.E.2d 656; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664.
In State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (also a Mecklenburg County case), Chief Justice Parker for this Court said: "It is especially proper for the court to intervene and exercise power to curb improper arguments of the solicitor when the State is prosecuting one of its citizens, and should not allow the jury to be unfairly prejudiced against him." See also United States v. Cotter, 1 Cir., 425 F.2d 450; Hall v. United States, 5 Cir., 419 F.2d 582; State v. Little, 228 N.C. 417, 45 S.E.2d 542; State v. Correll, 229 N.C. 640, 50 S.E.2d 717.
Pertinent to the present inquiry is the opinion of Mr. Justice Sutherland in Berger v. United States, supra:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none."
When the solicitor's tirade before the jury is examined in the light of the foregoing rules, its inflammatory and prejudicial effect becomes manifest. The intemperance, the assertions of personal belief, the claim that the solicitor knows when and when not to call for a conviction in a capital case, require this Court, in *461 spite of its reluctance, to award the defendant an opportunity to go before another jury. The trial judge who heard the argument and failed to intervene on his own motion, was derelict in his duty.
This Court now orders that the verdict and judgment be set aside and that there be a
New trial.