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Whereas a prosecutor in a prison trial might touch upon a defendant’s failure to supply witnesses or proof to contradict or refute the State’s case, a prosecutor might not make any reference to or touch upon a defendant’s failure to testify. Such remarks violate each a defendant’s federal and state constitutional rights to not be compelled to present self-incriminating proof (see U.S. Const. Amend. V, N.C. Const. artwork. I, § 23) and G.S. 8-54, which supplies that no individual charged with against the law could also be compelled to testify or “reply any query tending to criminate himself.” This rule rests on the notion that permitting prolonged reference by the court docket or counsel regarding the defendant’s failure to testify would “nullify the coverage that failure to testify shouldn’t create a presumption towards the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).
The prohibition towards such remarks encompasses even those who parrot the sample jury directions by acknowledging {that a} defendant might elect to not testify and that such an election might not be used towards him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court docket should undertake healing measures to tell the jury each that the remarks had been improper and that the defendant’s failure to testify might not be used towards him. Id. at 556. If the trial court docket fails to take such remedial measures and an appellate court docket deems the error prejudicial, a brand new trial will probably be ordered. Id. at 557. The Court docket of Appeals utilized these ideas just lately in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).
State v. Grant. Robert Lee Grant III was tried in Mecklenburg County Superior Court docket for misdemeanor assault on a feminine, possession of firearm by a felon, and assault by strangulation. The next alternate occurred throughout closing argument:
[STATE]: Now, the defendant in fact, it’s his proper to not testify, and you aren’t to carry that towards him. However I additionally need you to consider the truth that the defendant selected to placed on proof. He didn’t have to try this. He may have sat there and stated the State hasn’t confirmed their case and I don’t have to do something. However what did he select to place up? Extra distractions, photos of officers pointing on the defendant.
[DEFENDANT]: Objection, Your Honor. That is unfair –
THE COURT: What’s the objection?
[DEFENDANT]: — unfairly going into whether or not he selected to take the stand, not take the stand, and placed on proof.
THE COURT: Overruled, overruled.
[STATE]: You’ll be able to contemplate the proof that the defendant placed on. You can not maintain it towards him, the truth that he didn’t testify. We do contemplate what they selected to placed on. And it was only one distraction after one other.
The problem. Hindsight is 20/20, so it’s pretty simple to identify the issue. The prosecutor commented on Grant’s failure to testify. The defendant objected. And the trial decide overruled the objection. That’s error.
So what occurred subsequent?
Take two. After the State completed its closing argument, the trial court docket dismissed the jury for lunch. Following the lunch recess, Grant’s lawyer moved for a mistrial based mostly on the trial court docket’s failure to present a healing instruction following the State’s improper remark.
The trial court docket denied the movement, however suggested the events that he would ship a healing instruction to the jury. When the jury returned, the trial court docket stated to them:
So, girls and gents, the defendant on this specific matter has not testified. The regulation provides the defendant this privilege. This similar regulation additionally assures the defendant that this determination to not testify creates no presumption towards the defendant; subsequently, the silence of the defendant is to not affect your determination in any method. I’ll let you know moreover that through the closing argument, the district lawyer made some reference to the defendant not testifying and a few reference to it. It isn’t correct, girls and gents, for a lawyer to touch upon the defendant’s not testifying. And I’ll let you know in hindsight that it will have been correct for me to maintain the objection on the time and point out at the moment that the jury shouldn’t make the most of that in any method towards the defendant as a result of it creates no presumption towards the defendant. We mentioned this throughout jury choice as nicely, be aware that the defendant’s privilege to not testify, he’s shrouded with an assurance that the jurors won’t make the most of that towards him throughout their later deliberations. Does this make sense to everybody, and in case you perceive my instruction, please increase your hand and let me know. Okay. The jurors have indicated so.
Slip op. at 5.
The jury thereafter returned a verdict of responsible on the assault on a feminine cost, and verdicts of not responsible on the 2 different fees. The trial court docket sentenced Grant to 150 days imprisonment. He appealed, arguing that the trial court docket dedicated prejudicial error by overruling his objection to the State’s improper remark and by failing to promptly instruct the jury to ignore it.
The Court docket of Appeals’ evaluation. The Court docket decided that the State violated Grant’s constitutional and statutory rights by commenting twice throughout closing argument about Grant’s determination to not testify. The Court docket additional decided that trial court docket erred when it initially overruled Grant’s objection. However, the Court docket held that the “strong healing instruction” that the trial court docket delivered instantly after the lunch recess was enough (and apparently sufficiently immediate) to remedy each the State’s improper remark and the improper overruling of the objection. Slip op. at 6.
Aside from indicating {that a} trial court docket can remediate an inaccurate evidentiary ruling by readdressing the problem following a recess, Grant doesn’t break a lot new floor. The case does, nevertheless, function a helpful reminder of a few vital ideas.
- First, as talked about on the outset of the publish, it’s improper for the State to make any comment a few defendant’s election to not testify at his or her prison trial.
- Second, if the State does make such a comment and the defendant objects, the trial court docket should maintain the objection and promptly present a healing instruction.
- It isn’t sufficiently healing for the trial court docket to merely later embrace within the jury cost an instruction on the defendant’s proper to not testify. State v. Monk, 286 N.C. 509, 516–17 (1975). As a substitute, the trial court docket should promptly advise the jury that the comment was improper and should instruct the jury that it might not contemplate towards the defendant his election to not testify. Reid, 334 N.C. at 556.
- If the defendant doesn’t object or rejects the trial court docket’s supply to supply a healing instruction, the defendant might not be granted a brand new trial on attraction except the assertion was so grossly improper as to require the trial court docket to intervene by itself movement. See Randolph, 312 N.C. at 207.
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