State v. Lindsay

179 S.E.2d 364 (1971) 278 N.C. 293

STATE of North Carolina
v.
David G. LINDSAY.

No. 26.

Supreme Court of North Carolina.

March 10, 1971.

Robert Morgan, Atty. Gen., William Lewis Sauls, Staff Atty., Raleigh, for the State.

James H. Atkins, Gastonia, for defendant appellant.

HIGGINS, Justice.

The defendant by Assignment of Error No. 3 contends the trial court committed error by denying his motion for a directed verdict of not guilty interposed at the close of the State's case. The evidence was direct, complete and made out a strong case of armed robbery as defined by G.S. § 14-87. State v. Miller, 268 N.C. 532, 151 S.E.2d 47; State v. Carter, 265 N.C. 626, 144 S.E.2d 826; State v. Stephens, 262 N. C. 45, 136 S.E.2d 209. The defendant's motion to dismiss was properly denied.

The defendant, by his Assignment of Error No. 4, challenges as error the court's failure to grant his motion for a mistrial because of the solicitor's comment to the jury that the defendant had failed to testify and had failed to offer evidence in his defense. When the attention of the trial judge was called to the solicitor's remarks, the trial judge charged the jury as follows:

"``I instruct you members of the jury that the defendant has no duty to establish anything and that his decision not to take the witness stand is not to be held against him by you in the course of the deliberations, so if anything was said to you on the point, you are to disregard it, and I will instruct you again on that point in the course of the charge.' In the Judge's charge he instructed the Court as follows: ``The Court instructs you that the defendant in this case, David Lindsay, has not testified. That is to say, he did not go upon the witness stand and offer evidence on his own behalf. In this connection the Court instructs you that the law of North Carolina gives him this privilege. That is to say, the law says that he has the right to decide whether he will testify or whether he will remain off the witness stand. This is the right of every defendant in every criminal prosecution and the law which gives him this right to make this choice also assures him that his decision not to testify will not be used against him. Therefore, the Court instructs you that you must be very careful in the course of your deliberations not to allow the defendant's silence or the defendant's decision not to offer testimony in his own behalf to influence your decision in any way for to do so would be to penalize him for exercising a right which our law says he has and which our law recognizes and which our law assures him that he will not be prejudiced or penalized by electing to do what the law says he has a perfect right to do.'"

The solicitor's reference to the defendant's failure to testify was a transgression of proper trial procedure and was error. However, as this court said in State v. Lewis, 256 N.C. 430, 124 S.E.2d 115, and repeated, amplified and emphasized in State v. Stephens, supra, any harmful effect was removed by the court's prompt and explicit instructions to the jury to disregard the reference. The error was rendered harmless by the court's prompt and vigorous action. We have no cause in this instance to believe the jury failed to heed the court's instructions.

No error.