State v. Haselden

¶1dissenting.

¶2I dissent as to the majority’s holding that the trial court did not err in failing to intervene ex mero mo tu when the prosecutor made an *36argument based upon the Bible. This Court has frequently expressed its disapproval of such arguments.

We continue to hold that it is not so grossly improper for a prosecutor to argue that the Bible does not prohibit the death penalty as to require intervention ex mero mo tu by the trial court, but we discourage such arguments. We caution all counsel that they should base their jury arguments solely upon the secular law and the facts. Jury arguments based on any of the religions of the world inevitably pose a danger of distracting the jury from its sole and exclusive duty of applying secular law and unnecessarily risk reversal of otherwise error-free trials. Although we may believe that parts of our law are divinely inspired, it is the secular law of North Carolina which is to be applied in our courtrooms. Our trial courts must vigilantly ensure that counsel for the State and for defendant do not distract the jury from their sole and exclusive duty to apply secular law.

¶3State v. Williams, 350 N.C. 1, 27, 510 S.E.2d 626, 643 (citations omitted), cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999). In addition to the reasons set out above, such arguments can be inconsistent with the general framework set up by the General Assembly to try capital cases. That arrangement seeks to ensure that the death penalty is enforced as fairly and uniformly as possible. The verdict in a capital case depends on jury findings as to whether aggravating circumstances exist; whether any such aggravating circumstances are not outweighed by mitigating circumstances; and whether, based on these circumstances, the defendant should be sentenced to death or to imprisonment for life. N.C.G.S. § 15A-2000(b) (2001). Moreover, during jury selection, both sides and the judge routinely ask jurors if they hold any moral or religious views that would interfere with their ability to apply the law, and any juror holding such views may be challenged for cause. Judges equally routinely instruct jurors that they must follow the law, even if they do not agree with it. When this Court reviews a capital conviction for proportionality, we consider whether the sentence was based upon passion, prejudice, or any other arbitrary factor. N.C.G.S. § 15A-2000(d)(2). It is inconsistent to allow jury arguments relying on concepts that the jurors have been told at other times during the trial may not control their deliberations.

¶4Although our opinions, not excluding the majority opinion here, have frequently cited to cases in which this Court “has found biblical arguments to fall within permissible margins more often than not,” State v. Artis, 325 N.C. 278, 331, 384 S.E.2d 470, 500 (1989), sentence *37vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990),1 my research has failed to reveal any case where this Court reversed a conviction because of an improper argument based upon religion, see, e.g., State v. Lloyd, 354 N.C. 76, 117-18, 552 S.E.2d 596, 625 (2001) (prosecutor’s biblical argument not so grossly improper that trial court erred in failing to intervene ex mero motu); State v. Cummings, 352 N.C. 600, 628-29, 536 S.E.2d 36, 56 (2000) (prosecutor’s biblical argument, though inartful, was not grossly improper), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001); State v. Braxton, 352 N.C. 158, 217, 531 S.E.2d 428, 462 (2000) (prosecutor’s biblical argument not so grossly improper as to require that trial court intervene ex mero motu), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); State v. Davis, 349 N.C. 1, 47, 506 S.E.2d 455, 480 (1998) (prosecutor’s biblical argument not so improper as to require trial court to intervene ex mero motu), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999); State v. Walls, 342 N.C. at 61, 463 S.E.2d at 770 (although the Court has previously disapproved of prosecutorial arguments that made improper use of religious sentiment, biblical argument here was not so grossly improper as to require trial court to intervene ex mero motu); State v. Rose, 339 N.C. 172, 203-04, 451 S.E.2d 211, 229 (1994) (prosecutor’s biblical argument not so grossly improper as to require trial court to intervene ex mero motu), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995); see also State v. Rouse, 339 N.C. 59, 94, 451 S.E.2d 543, 562 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995); State v. Bunning, 338 N.C. 483, 490, 450 S.E.2d 462, 465 (1994); State v. Daniels, 337 N.C. 243, 278-79, 446 S.E.2d 298, 320-21 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). There are many other nearly identical cases.

¶5As a result, we have a situation where this Court has determined that a certain type of argument is improper, even if not so grossly improper as to require the trial court’s intervention ex mero motu, but has failed to enforce that determination even once. I believe that this Court has done a disservice to litigators and to itself by setting a standard of behavior while consistently excusing deviations from that standard. Although we have noted that professionalism includes the avoidance by practitioners of all known improprieties, State v. Rogers, 355 N.C. 420, 464, 562 S.E.2d 859, 886 (2002), it is difficult to fault an advocate who realizes that he or she can land a telling, possibly decisive, blow at the modest cost of a verbal hand slapping from *38this Court. Our expectation that arguments based upon religion would be kept within reasonable bounds has not been realized. Either this Court should state that such arguments are proper, or it should enforce its admonitions. Our failure to act consistently may well undermine the validity and enforcement of North Carolina’s capital punishment system.

¶6While the argument here was made by a prosecutor, defendants also can and do make religious arguments to the jury as they seek mercy. A review of the reported cases demonstrates that many religious arguments are made by a party to preempt religious arguments that may be made by opposing counsel in an unrebuttable closing argument. Consequently, these arguments feed on themselves as each side rolls out the ecclesiastical artillery. When the Supreme Court of Pennsylvania faced just this problem, it finally banned such arguments in capital litigation. Commonwealth v. Chambers, 528 Pa. 558, 586, 599 A.2d 630, 644 (1991), cert. denied, 504 U.S. 946, 119 L. Ed. 2d 214 (1992). That court stated:

In the past we have narrowly tolerated references to the Bible and have characterized such references as on the limits of “oratorical flair” and have cautioned that such references are a dangerous practice which we strongly discourage. We now admonish all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.

¶7Id.(citations omitted). Nor is Pennsylvania alone in condemning such arguments. The United States Court of Appeals for the Fourth Circuit has observed that “[f]ederal and state courts have universally condemned such religiously charged arguments as confusing, unnecessary, and inflammatory.” Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir.), cert. denied, 519 U.S. 1002, 136 L. Ed. 2d 395 (1996).

¶8I do not believe that we should go so far as Pennsylvania, for there is a place for religious and moral arguments in our jurisprudence. However, in order to give guidance to litigators and judges, this Court should hold that any argument that essentially asks a jury to base its decision on moral or religious grounds instead of on the law and the evidence is improper and grounds for reversal.

¶9In the case at bar, the prosecutor warned the jury that defendant might quote the Bible to assert that the death penalty was contrary to Christian ethics. He then went on to say:

*39You see, just a few verses below that, right after that thou shalt not kill, just a few verses below it it says, he that smiteth a man so that he die shall surely be put to death. Just a few verses below that. I suggest to you that that is [b]iblical authority for the death sentence. Not a mandate that you do it in any one case, but it is the authority for those of you [who] worry about that.

Ladies and gentlemen of the jury, North Carolina Statute 15A-2000 is a statute of judgment. That is simply that, a statute of judgment. And what does it say in the Bible about a statute of judgment? A statute of judgment unto you throughout your generations in all your dwellings. Whosoever killeth any person, the murderer shall be put to the death by the mouth of witnesses. Moreover ye shall take no satisfaction for the life of a murderer which is guilty of death, but he shall surely be put to death. That’s the statutes of judgment.

You know, I’m going to make one more comment about the Bible. If you ever had any doubt — this in the New Testament, I understand. If you ever had any doubt about capital punishment in the Bible, remember when Jesus was on the cross, beside of [H]im on each side, if I recall correctly, is two thieves. He told one of them, [H]e said, you’ll be in Heaven with me today, some words to that effect. Now, [H]e had the power to take [H]imself away from justice and get down off of that cross. He had the power to take those two criminals down and put them on the ground and let them walk away, but [H]e didn’t, did [H]e? It’s probably why we say, God have mercy on your soul, because [H]e said a soul [sic], or at least that one. But [H]e didn’t take justice away from man. He didn’t take them down off the cross. That’s the strongest argument I can think of. He could have done it right then and there if [H]e had wanted to, but [H]e didn’t.

¶10Other religious references may be found throughout the argument.

¶11I view this argument as designed to persuade the jury that the Bible and Jesus sanctioned the imposition of the death penalty in this case. In light of Williamsand the other considerations discussed above, it is apparent that the religious arguments made here by the prosecutor had the potential unfairly to arouse the passions of the jury, resulting in a sentencing recommendation based upon religious *40sentiment rather than the capital sentencing procedure mandated by the laws of this state. As this Court has so often stated in the past, this argument was improper. Accordingly, I respectfully dissent as to this issue.