74 N.C. App. 323 | N.C. Ct. App. | 1985
Defendant first contends that prejudicial error was committed when the district attorney, during his closing argument to the jury, commented on the fact that the defendant’s wife did not testify. We agree.
During his closing argument, the district attorney argued in part as follows:
The defendant said, and I asked him on cross examination, “Was your wife there right after the fight at the apartment?” “Yes. She helped me into the apartment.” “Was the wife there when you went to sleep?” “Yes.” “Was your wife there when you woke up?” “Yes.” Where is the wife? She’s the one person who can corroborate the defendant’s story.*325 She didn’t testify. I cannot compel a wife to testify against her husband. Mr. White could have put her on the stand —
Mr. White: Now, I OBJECT to that.
Court: Sustained. Move along, counsel.
Mr. Young: All right, sir.
In State v. Thompson, 290 N.C. 431, 226 S.E. 2d 487 (1976), the Supreme Court held:
The provisions of 6.S. 8-57, and decisions of this court, interpreting and applying them, impel the conclusion that where evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not. Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933 (1914). In such case it is the duty of the judge to act on his own motion. [Citations omitted.] The rule applies with equal force to the argument of counsel when evidence forbidden by statute is argumentatively placed before the jury and used to the prejudice of the defense. When this occurs it is the duty of the judge ex mero mo tu to intervene and promptly instruct the jury that the wife’s failure to testify and the improper argument concerning that fact must be disregarded and under no circumstances used to the prejudice of the defendant.
Id. at 447, 226 S.E. 2d at 496-97. See also State v. McCall, 289 N.C. 570, 223 S.E. 2d 334 (1976); State v. Ward, 34 N.C. App. 598, 239 S.E. 2d 291 (1977).
In the instant case, when the objection was made the judge merely sustained the objection and did not make a curative instruction to the jury. His failure to do so was error and, on the record before us, we cannot say the error was harmless. State v. Thompson, supra. There must be a new trial.
Our resolution of this issue disposes of the appeal and makes it unnecessary to consider appellant’s remaining assignments of error.
New trial.
