Opinion
No. 7716SC201
Filed 6 July 1977
Criminal Law 102.12 — counsel's statement of punishment to jury — refusal error Defendant in a second degree murder prosecution is entitled to a new trial where the trial court refused to allow defense counsel to read to the jury statutes, including punishment provisions, with respect to first and second degree murder and manslaughter. G.S. 84-14.
APPEAL by defendant from Canaday, Judge. Judgment entered 16 September 1976 in Superior Court, ROBESON County. Heard in the Court of Appeals 29 June 1977.
Attorney General Edmisten, by Associate Attorney Norma S. Harrell and Assistant Attorney General James Wallace, Jr., for the State.
Britt and Britt, by E. M. Britt, for defendant appellant.
Judge BRITT dissenting.
Defendant was placed on trial for murder in the second degree.
The State offered evidence tending to show the following:
At about 1:30 a.m. on 28 February 1976, defendant called the police station and said that he had shot a man. A witness to the conversation (who had heard five or six shots) asked defendant what had happened. Defendant stated that Carson Cox had pulled a shotgun on him and defendant shot him. Defendant had the shotgun with him. When Esther Bell (defendant's girl friend) walked up, defendant referred to deceased by a vile name and said that if he "ain't dead, he ought to be." A deputy sheriff went to the scene of the shooting and saw a large pool of blood near deceased's car and a smaller puddle of blood eight feet from the car. The body had been taken to a local hospital.
The deputy testified that defendant made, in essence, the following statement: Deceased and defendant were friends. They had been riding around earlier in the evening. They had stopped and were sitting in the car. Deceased began fussing and got out of the car. Deceased came back with a shotgun and pointed it in the window. Defendant pushed the gun around and deceased walked off. Deceased returned, pointed the shotgun at defendant and told defendant that he was going to get "messed up" or words to that effect. Defendant pushed the shotgun and took his pistol and began shooting.
Deceased had been shot in the left elbow, the left forearm, the right upper quadrant of the abdomen and the left upper chest. A bullet had also entered the left lower chest and travelled down through the diaphragm into the small intestine. Death was caused by hemorrhage secondary to the gunshot wounds.
The State then rested and defendant's motion for nonsuit was denied. Defendant then offered evidence, in substance, as follows:
Defendant and deceased lived in the same neighborhood. They had been acquainted for 20 years and there had never been any trouble between them. On the evening before the shooting, deceased had adjusted one of the headlights on defendant's car. Defendant noticed that he was drinking at that time. Defendant left his home to get his girl friend, and he and the girl rode around until about 10:00 p.m. when they returned to the parking lot of a service station near the residences of the defendant and deceased. Deceased drove up and asked to be taken to a nearby pool hall. The three stayed at the pool hall until about 11:00 p.m. when they returned to the station parking lot. After talking for some time, defendant, deceased and defendant's girl friend went to a beer store and then to a bootleg liquor store. They then returned to the station and continued to talk. Deceased got out of the car and then got back in and sat down. They remained in the car talking and listening to the radio until after midnight. Both defendant and deceased had been drinking during the evening. An acquaintance of defendant walked up and, at his request, defendant took the person to another house. They then returned to the station and deceased got out of the defendant's car and got in his own. Deceased had difficulty in getting the right key in the switch, could not or did not start the car and then started walking in the direction of his home. About ten minutes later deceased returned and was carrying a shotgun. He stuck the shotgun in the car window and pointed it at the side of defendant's head. He cursed defendant and told him he would scatter his brains. The girl friend got in the floorboard, began to cry and begged deceased to go away. Deceased withdrew the gun and went to his own car and sat down. He immediately jumped back out of the car and again pointed the gun at defendant's temple. Defendant grabbed the gun with his left hand, pushed the barrel up and, with his right hand, reached in the console of his car and got his pistol, a .25 automatic, and began firing at deceased. He continued to fire until deceased released the shotgun. Deceased staggered to the back of the car and fell. Defendant then picked up the loaded shotgun and uncocked it. He then went to the telephone and called the police.
Defendant also offered evidence tending to show that deceased had a bad reputation as being a dangerous and violent man. His evidence further tended to show that defendant had a good reputation.
The jury returned a verdict of guilty of voluntary manslaughter, and judgment imposing a prison sentence of not less than 10 nor more than 15 years was entered.
We have carefully considered defendant's exceptions based on the denial of his motion for nonsuit. When all the evidence is considered in the light most favorable to the State, we conclude that it was sufficient to take the case to the jury.
At the conclusion of all the evidence, and in the absence of the jury, defendant moved that he be allowed to read to the jury the provisions of G.S. 14-17 ["Murder in the first and second degree defined; punishment"] and G.S. 14-18 ["Punishment for manslaughter"] including the punishment provisions. The court refused to allow counsel to read any of the punishment provisions of the statute to the jury. That denial is the subject of defendant's exception No. 47.
G.S. 84-14, in part, provides, "In jury trials the whole case as well of law as of fact may be argued to the jury."
In State v. McMorris, 290 N.C. 286, 225 S.E.2d 553, the Supreme Court awarded a new trial in a burglary case because the trial court refused to allow counsel to advise the jury of the punishment by law provided for the crime.
In State v. Britt, 285 N.C. 256, 273, 204 S.E.2d 817, the Supreme Court held:
"Counsel may, in his argument to the jury, in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged. G.S. 84-14; State v. Crisp, 244 N.C. 407, 94 S.E.2d 402, 67 A.L.R.2d 236; Annot. 67 A.L.R.2d 245. He may not, however, state the law incorrectly or read to the jury a statutory provision which has been declared unconstitutional. See, State v. Banner, 149 N.C. 519, 526, 63 S.E. 84. Nor may counsel argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely." (Emphasis added.)
Justice Exum, speaking for a unanimous Court in State v. McMorris, supra, said:
"In a real sense the sanction prescribed for criminal behavior is part of the law of the case. Indeed, the dispute in jurisprudential circles is whether the sanction for its violation is the only thing which distinguishes law from custom. See H.L.A. Hart, The Concept of Law, Chapters 1 and 2 (1961).
It is, consequently, permissible for a criminal defendant in argument to inform the jury of the statutory punishment provided for the crime for which he is being tried. In serious felony cases, at least, such information serves the salutary purpose of impressing upon the jury the gravity of its duty. It is proper for defendant to advise the jury of the possible consequence of imprisonment following conviction to encourage the jury to give the matter its close attention and to decide it only after due and careful consideration."
G.S. 84-14, as interpreted by the Supreme Court, gives a defendant the right to inform the jury of the punishment that may be imposed upon conviction of the crime for which he is being tried. The defendant at bar was deprived of that right and, under the authority of McMorris and Britt, will be awarded a new trial.
It is not necessary to discuss the other errors assigned by the defendant because they may not occur at his next trial.
New trial.
Judge ARNOLD concurs.
Judge BRITT dissents.