State v. Gladden

¶1dissenting.

¶2I believe that the trial court committed reversible error requiring a new trial when it denied the defendant’s motion to be allowed more than one jury argument. Therefore, I respectfully dissent.

¶3*440The statute later to be codified as N.C.G.S. § 84-14 was enacted in 1903. At that time it provided that the State or plaintiff and the defendant would each be allowed two addresses to the jury in any given case. 1903 Public Laws of North Carolina ch. 433, § 2. The first sentence of the statute, which I find controlling in the present case, was amended two years later by the addition of a clause so that it now provides that: “In all trials in the superior courts there shall be allowed two addresses to the jury for the state or plaintiff and two for the defendant, except in capital felonies when there shall be no limit as to number.” Revisal of 1905, § 216 (emphasis added to 1905 addition). The quoted sentence from the statute has remained unchanged in the eighty years since the 1905 revision, although other sentences in the statute have been amended.1 Therefore, the statute for eighty years has provided that “there shall be no limit as to number” of addresses to the jury for the State or for the defendant in cases tried as capital felonies.2

¶4The majority construes the statute to mean only that the trial court in a capital case must allow all counsel for the defendant (subject to the trial court’s power to limit them to three in number) to argue for as long as they wish and as many times as *441they wish. However, the majority holds that when the defendant has presented evidence, all such addresses by his counsel must be made prior to the prosecution making a closing argument to the jury. The majority points to no specific language requiring any such result, either in the statute or in Rule 10 of the General Rules of Practice for the Superior and District Courts, and there is none. Instead, the majority seems to base its holding upon its concern that giving the defendant and the State the right to respond to each other in capital cases by truly applying “no limit as to number” of their addresses to the jury might “destroy the orderliness of the trial and could not have been intended by the Legislature.” I disagree with the majority’s view of the statute.

¶5The statute clearly provides that every party to any case “shall be allowed two addresses to the jury . . . .” This language seems to have been consistent with an established practice of the time permitting every party to a case to make a preliminary address to the jury before the presentation of evidence and to make at least one closing address. See State v. Sheets, 89 N.C. 543 (1883). The legislature went on to state in the same sentence, however, that in cases of capital felonies there “shall be no limit” on the number of addresses to the jury by the defendant or the State. The phrase “no limit” is plain English and means just what it says: no limit. Nothing in the language of the statute even hints at the limitation announced today by the majority that “all such addresses must be made prior to the prosecution’s closing argument.”

¶6To apply the limitation the majority adopts to cases such as this in which the defendant is represented by only one counsel, requires this Court to evade the statutory commandment by saying that “no limit” means “as long as one frail counsel, already worn out with a long trial, can stand up and speak . . . .” State v. Miller, 75 N.C. 73, 76 (1876). One hundred and ten years ago this Court specifically disapproved any such approach stating that:

It is always uncomely in anybody, and especially in a court to try how near they can come to disregarding a law without incurring responsibility. It is due to every law that it should have its full effect, not grudingly given. And then if seen to be mischievous, it may be the sooner corrected.

¶7*442Id.I find any such approach as “uncomely” today as when disapproved by the foregoing language of this Court in 1876. I would apply the plain English used in the statute and hold that the trial court erred by refusing to permit the defendant to make more than one address to the jury in this case.

¶8The majority has reduced the provision that there shall be “no limit as to number” of jury addresses in capital cases to a useless redundancy, since other provisions of the statute already require that the defendant be allowed at least three counsel and that the length of their arguments may not be limited. In so doing, the majority seems to have lost sight of the fact that the intent of the legislature controls in the interpretation of statutes and that:

In seeking to discover and give effect to the legislative intent, an act must be considered as a whole, and none of its provisions shall be deemed useless or redundant if they can reasonably be considered as adding something to the act which is in harmony with its purpose.

¶9State v. Harvey, 281 N.C. 1, 19-20, 187 S.E. 2d 706, 718 (1972). In my view the 1905 addition of the provision that there shall be no limit as to the number of jury addresses in capital felonies was intended by the General Assembly to add something to N.C.G.S. § 84-14, which until then provided —and still provides in non-capital cases —that each party “shall be allowed two addresses to the jury . . . .” The majority has failed to so construe the 1905 addition and has construed it, instead, as adding nothing.

¶10After all of the evidence had been introduced during the guilt-innocence phase of the present case, counsel for the defendant specifically moved that he “be allowed more than one argument” to the jury. Even had the trial court allowed the motion and permitted the defendant to address the jury both before and after the State’s “closing” argument, the State still would have been given the final argument to the jury during the guilt-innocence phase, as required by Rule 10 when the defendant has introduced evidence. Therefore, there is no conflict between N.C.G.S. § 84-14 and Rule 10 of the General Rules of Practice for the Superior and District Courts.

¶11Section 13(2) of Article IV of the Constitution of North Carolina provides in pertinent part that:

*443The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, .... If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule or procedure or practice adopted by the Supreme Court for the Superior Court or District Court Divisions.

¶12Thus, the General Assembly had the authority to enact N.C.G.S. § 84-14.

¶13It is clear to me that by adopting N.C.G.S. § 84-14 the General Assembly intended to grant the full benefit of counsel to defendants, plaintiffs and the State. As this Court has stated in a related but somewhat different context:

It certainly cannot be supposed to be the policy of the Legislature to embarrass the courts so that they cannot dispatch business. Nor can it be supposed that it would, from any pique subject the judge to indignity. What we have to suppose is, that it is to be left to the discretion of counsel, instead of to the discretion of the presiding judge, how they shall address themselves to the court and jury. It must be left either to the judge or the counsel; and the Legislature has left it with the counsel. It may be that the confidence is not misplaced .... At any rate, the law is plain, and the experiment has to be made whether it is prudent to entrust the discussion in the courts to the counsel instead of to the judge.

¶14State v. Miller, 75 N.C. 73, 75 (1876). Cf. State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925) (concerning the antecedents of N.C.G.S. § 84-14). Even though Rule 10 gave the State the right to open and close the arguments to the jury at the end of the guilt-innocence phase of this capital case, the defendant nevertheless had a right under N.C.G.S. § 84-14 to make addresses to the jury with “no limit as to number.” Nothing in either the statute or Rule 10 requires that all such addresses by the defendant be made before the State addresses the jury. Rule 10 only requires in this regard that the State be allowed the final argument when the defendant has introduced evidence. Therefore, the trial court committed error requiring a new trial when it denied the defendant’s motion.