We are once again presented with the issue of a prosecutor commenting during final argument upon the defendant’s failure to testify. The private prosecutor askеd, as reconstructed for the record by the trial court: “Why in the world did the defendant sit here for these one-and-a-half days remaining mute and not come to the stand?”
The State сoncedes that the prosecutor’s comment was improper, but argues that the comment was not prejudicial in view of the fact that the court sustained defendant’s objection to the comment and immediately instructed the jury to disregard it. We do not believe that the trial court’s instruction to disregard the prosecutor’s remark was sufficient to rеmove the taint, and thus we order a new trial.
We are aware of the United States Supreme Court’s latest pronouncement in United States v. Hasting, — U.S. —,
Forty-two years befоre the United States Supreme Court held that a comment on a defendant’s failure to take the stand violates the defendant’s Fifth and Fourteenth Amendment rights to remain silent, Griffin v. California,
In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him. (Emphasis added.)
In the face of a long and uniform history of forbidding pros-ecutorial comment on the failure of a person chаrged with a crime to testify, our Supreme Court, in the 1950’s, engrafted an exception onto the iron-clad rule by looking to see if the trial court had taken the necessary aсtion to minimize the prejudice resulting from improper statements on the defendant’s failure to testify. See State v. Lewis,
In the case before us, the trial court did not instruct the jury that the cоmment was improper or why it was improper; it only told the jury to “disregard counsel’s statement.” Moreover, the trial court’s general instruction during the jury charge on the defendant’s right nоt to testify was insufficient to remove the prejudice because no reference was made to the offending argument, and the damage done by it remained unrepaired. See State v. Monk. To be effective, the trial court’s instruction should immediately follow the offensive remark and should explain why the remark was improper. The fact that the remark was made by a private prosecutor makes no difference. See State v. McCall.
In addition to the trial court’s failure properly to cure the error committed by the private prosecutоr, there was a conflict in the State’s evidence regarding whether the break-in occurred at night or during the day. This conflict is significant because it
An accused may choose not to take the stand for several reasons which are not consistent with guilt. An accused may be innocent of the crime charged, but may choose not to testify for fear of being impeached by a prior conviction. (As most defense attorneys and prosecutors know, once evidence of a prior conviction is admitted, the probability of a conviction in thе case at trial is increased.) Further, the defendant may be inarticulate, uneducated, or nervous by nature. In short, he will make a poor witness for himself. And, sometimes the State simply has a weak case.
Yet, prosecutors persist in commenting upon the defendant’s failure to testify — that issue has appeared repeatedly in the appеllate reporters of North Carolina.
Simply put, prosecutors are not being effectively deterred from commenting upon the defendant’s failure to take the stand. As the State expressly conceded in oral argument, requiring a new trial whenever a prosecutor comments on defendant’s failure to testify mаy be the only way to stop the problem confronting us again today. Some observers have always questioned the effectiveness of curative instructions. They feel that оnce the improper words have been uttered, the damage has been indelibly done; that curative instructions are unrealistically expected to be magic wands which erase improper arguments from the jurors’ minds. Or, as Justice Jackson once wrote in a concurring opinion, “The naive assumption that prejudicial effects can bе overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” Krulewitch v. United States,
And we know that prosecuting attorneys have a difficult job. But “[they] are in a very peculiаr sense servants of the law. [Citation omitted.] They owe the duty to the State which they represent, the accused whom they prosecute, and the cause of justice which they serve to observe the rules of practice created by law to give those tried for crime the safeguards of a new trial.” State v. Phillips,
The public interests demand that a prosecution be conducted with energy and skill, but the prosecuting officer should see that no unfair advantage is taken of the accused. It is as much his duty to see that a person оn trial is not*117 deprived of any of his statutory or constitutional rights as it is to prosecute him for the crime with which he may be charged.
State v. Britt,
Because the trial court in this case failed to take the necessary action to minimize the obvious prejudice resulting from the prosecutor’s improper comment on defendant’s failure to testify, the judgment is vаcated and the cause remanded for a
New trial.
Notes
. State v. Hopper,
. In most cases involving an improper comment, a conviction was upheld because the trial court took the necessary corrective measures or no objection had been interposed to the argument. See, e.g., State v. Hopper, supra; State v. Lindsay, supra; State v. Clayton, supra; State v. Bumpers, supra; State v. Stephens, supra; State v. Lewis, supra; State v. Murphy, supra; State v. Hunnicutt, supra; State v. Edwards, supra; and State v. Mitchell, supra. On the other hand, reversible error was found in the following cases because the trial court failed to take the necessary corrective action: State v. Monk, supra; State v. McCall, supra; State v. Roberts, supra; State v. McLamb, supra; State v. Solomon, supra; and State v. Waddell, supra.