State v. Morrison , 19 N.C. App. 573 ( 1973 )

199 S.E.2d 500 (1973) 19 N.C. App. 573

STATE of North Carolina
v.
Roscoe MORRISON.

No. 7312SC691.

Court of Appeals of North Carolina.

October 10, 1973. Certiorari Denied November 1, 1973.

Atty. Gen. Robert Morgan, by Associate Atty. E. Thomas Maddox, Raleigh, for the State.

Kenneth A. Glusman, Asst. Public Defender, Twelfth District, Fayetteville, for defendant-appellant.

Certiorari Denied by Supreme Court November 1, 1973.

BROCK, Chief Judge.

Defendant contends that the trial court committed error in overruling defendant's objection to the District Attorney's argument to the jury that the evidence for the State was uncontradicted. Defendant contends that the District Attorney's argument placed an impermissible burden on the exercise by the defendant of his Fifth Amendment right to remain silent.

Defendant bases his contention upon Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, which held that the Fifth Amendment, in its direct application to the Federal Government, and in its imposition on the States by the Fourteenth Amendment, forbids comment by the prosecution on the accused's silence. This right to silence has been exercised by defendants and protected by the courts of North Carolina for many years.

The problem is to determine whether the remark made by the solicitor was prejudicial so as to constitute reversible error and justify a new trial.

Defendant has cited an annotation in the American Law Reports 3d in support of his contention that it is improper for counsel to refer to accused's failure to testify. However, this same annotation states:

"Many cases support the conclusion that a bare statement to the effect that the prosecution's evidence generally, or that of a particular witness or witnesses, is uncontradicted or undenied, is, in the absence of additional facts or circumstances, not an improper reference to the accused's refusal to testify." Annot. 14 A.L.R. 3d 723, at 763 (1967).

"The control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial. It is only in extreme cases of abuse of the privilege of counsel, and when the trial court does not intervene or correct an impropriety, that a new trial may be allowed." 2 Strong, N.C.Index 2d, Criminal Law § 102, p. 642.

In the case presently before us the following transpired:

"During argument for the state, counsel for the defendant objected to the following argument by the District Attorney: I think one thing you should consider when you go to make up your verdict is that this evidence is not contradicted.

"COURT: In the absence of the jury before ruling, I would have counsel for the State to repeat on the record the immediate argument he was making to the jury before the objection.

"DISTRICT ATTORNEY GRANNIS: As best I can recall the statement I made to the jury in this case that in their determination of the guilt or innocence of the defendant, that the evidence in this case was not contradicted by the defendant and I had previously been referring to the evidence immediately prior to that, as to what the evidence for the State had shown and I stated that the evidence was not contradicted.

"COURT: I recognize that this is a touchy area for comment, Gentlemen, but I was listening at the time Mr. Grannis did make his original remarks before the jury and I was listening at the time he repeated it for the record in the absence of the jury. In the particular language as used, I am not aware at this moment that he has transgressed the fine line. While the Court is also aware that the plea of not guilty challenges every phase of the evidence in the case.

"OBJECTION OVERRULED."

The trial judge carefully considered this statement in the light of the entire argument by the District Attorney and overruled defendant's objection. We disapprove of the comment by the District Attorney, but under the circumstances of the case, we feel that it was not prejudicial.

No error.

PARKER and VAUGHN, JJ., concur.