64 N.C. App. 525 | N.C. Ct. App. | 1983
Defendant’s first two assignments of error are based upon the trial court’s denials of motions for mistrial. On cross-examination, defendant testified that he had agreed to take a polygraph test and was still willing to do so. The district attorney then asked the following question: “Is that because you know Mr. Cooke (defense counsel) won’t let you?” Defendant objected and moved to strike the question as being highly improper. The court properly sustained the objection, allowed the motion to strike and instructed the jury not to consider the question. The court, however, denied defendant’s motion for mistrial.
“A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the
Defendant next assigns error to the court’s denial of his motion for mistrial made after the following proceedings:
Q. Mr. Elliott, did you say you knew Candice Wright?
A. Yes, I did.
Q. Gave her guitar lessons?
A. Yes, I did.
Q. Lessons started in October, 1980. Is that correct?
A. Yes, I did.
Prosecutor Langson then motioned to Candice Wright to stand up and asked her to stand up, whereupon Candice Wright stood up.
Q. And is it not true that at the conclusion of numerous of these guitar lessons, you would unzip her jeans and pull down her pants and proceed to stare at her?
Mr. Cooke: Objection. Move to Strike that question.
Court: Overruled.
Mr. COOKE: Move for a mistrial.
Court: Denied.
Defendant contends that by motioning to and asking young Candice Wright to stand in the courtroom, the district attorney committed a highly improper and prejudicial act. It is difficult to disagree with defendant’s conclusion. Defendant had stated that he did know Candice Wright and had given her guitar lessons. It
In State v. Lynch, 300 N.C. 534, 268 S.E. 2d 161 (1980), a defendant who had been charged with rape was asked if he recognized anyone on a particular row of seats in the courtroom, and the defendant replied that he did not know anyone “but the Led-fords.” The district attorney then had a woman on that row stand and asked the defendant if he had raped the woman on the front row with the black blouse. On appeal, the court found that there was no error “because she was asked to stand only after defendant stated that he didn’t know anyone on that row ‘but the Ledfords.’ ” 300 N.C. at 545, 268 S.E. 2d at 168. The purpose of asking the woman to stand was to determine whether the defendant could recognize her after stating that he did not. Id.
The facts at hand differ. Defendant had answered that he did know Candice Wright and had given her guitar lessons. There was no need to refresh his memory. The only conceivable purpose of having the young girl stand in the courtroom was to inflame the jury.
Moreover, adding to his impropriety, during his closing argument to the jury, in referring to defendant’s alleged misconduct with Candice Wright and another female who was also present in the courtroom during the trial, the district attorney stated, “Ladies and gentlemen, I submit that you know that I didn’t corral two people . . .” before defendant objected. The trial judge sustained defendant’s objection and instructed the jury not to consider “the remarks of counsel concerning the going out and corraling the witnesses.”
We recognize the principle that “[t]he 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.” State v. Morrison, 19 N.C. App. 573, 574, 199 S.E. 2d 500, 501, cert. denied, 284 N.C. 257, 200 S.E. 2d 657 (1973).
It is clear, however, that the remarks by the district attorney were unfairly prejudicial to the defendant. The judge’s attempt to cure was insufficient. The damage already was done. See State v. Eagle, 233 N.C. 218, 63 S.E. 2d 170 (1951). Fairness demands that defendant be given a new trial.