{
  "id": 8524641,
  "name": "STATE OF NORTH CAROLINA v. SAMUEL GRIFFIN",
  "name_abbreviation": "State v. Griffin",
  "decision_date": "1993-02-16",
  "docket_number": "No. 914SC1067",
  "first_page": "131",
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          "page": "38",
          "parenthetical": "quoting State v. Pope, 257 N.C. 326, 126 S.E.2d 126, 133 (1962)"
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  "last_updated": "2023-07-14T20:43:31.464788+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges ORR and WYNN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SAMUEL GRIFFIN"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nDefendant first argues that the trial judge erred at the sentencing hearing by telling defense counsel in a bench conference that it \u201cwould be a big mistake\u201d to have the defendant testify. We agree with defendant.\nIn his brief, the defendant argues primarily that his statutory right to testify pursuant to G.S. \u00a7 8-54 and his constitutional right to testify were \u201cchilled.\u201d We agree that the defendant\u2019s right to testify was \u201cchilled,\u201d but the critical statute is G.S. \u00a7 15A-1334.\nG.S. \u00a7 15A-1334 provides, in pertinent part:\n15A-1334. The sentencing hearing.\n* * *\n(b) Proceeding at Hearing. \u2014 The defendant at the hearing may make a statement in his own behalf.\n\u201c \u2018A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to the defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u2019 \u201d State v. Lane, 39 N.C. App. 33, 38, 249 S.E.2d 449, 452-53 (1978) (quoting State v. Pope, 257 N.C. 326, 126 S.E.2d 126, 133 (1962)).\nHere, during the sentencing hearing the defendant\u2019s attorney requested and was granted a bench conference. Although we do not have a verbatim transcript of what was said during that bench conference, the record does include a statement of proceedings made pursuant to N.C.R. App. P. 9(a)(3)(i). In that statement, the defendant\u2019s counsel asserts that he \u201ctold the trial judge that he was just about to call the defendant to the witness stand[,]\u201d and the trial judge replied that that \u201cwould be a big mistake.\u201d The prosecutor recalled that during the bench conference \u201cdefense counsel told the trial judge that he was thinking about putting the defendant on the witness stand.\u201d The prosecutor also recalled that the \u201ctrial judge replied that having the defendant testify \u2018would be a big mistake.\u2019 \u201d The defendant did not testify. After the hearing, the trial judge told defense counsel that he had said it \u201cwould be a big mistake\u201d for the defendant to testify because he was afraid the victim\u2019s relatives might cause a disturbance in the courtroom.\nDefendant argues that the trial judge\u2019s statement, regardless of the reasoning behind it, effectively chilled the defendant\u2019s right to testify in his own behalf. Defendant argues that the clear import of the court\u2019s statement, at the time it was made, was that if the defendant testified he would receive a longer sentence. We agree. Regardless of whether defense counsel told the trial judge that he \u201cwas just about to call the defendant to the witness stand\u201d or \u201cthat he was thinking about putting the defendant on the witness stand[,]\u201d defense counsel could have reasonably interpreted the trial judge\u2019s statement to mean that the defendant would receive a longer sentence if he testified. Accordingly, we find that the defendant\u2019s right to testify under G.S. \u00a7 15A-1334(b) was effectively chilled by the trial judge\u2019s comment. This constitutes \u201cprocedural conduct prejudicial to the defendant.\u201d Lane, 39 N.C. App. at 38, 249 S.E.2d at 452.\nAccordingly, we vacate the sentence imposed upon the defendant and remand for a new sentencing hearing. Our holding in no way limits the trial court\u2019s discretionary authority to impose a life sentence upon re-hearing. Because of our holding we do not reach the remaining arguments or assignments raised on appeal.\nVacated and remanded for re-sentencing.\nJudges ORR and WYNN concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.",
      "Sumrell, Sugg, Carmichael & Ashton, P.A., by Rudolph A. Ashton, III, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL GRIFFIN\nNo. 914SC1067\n(Filed 16 February 1993)\nCriminal Law \u00a7 1057 (NCI4th)\u2014 second degree murder-sentencing \u2014 statement by judge\nA life sentence imposed for second degree murder was vacated where the trial judge told defense counsel in a bench conference that \u201cit would be a big mistake\u201d to have the defendant testify. Although the trial judge later told defense counsel that he had made the statement because he was afraid the victim\u2019s relatives might cause a disturbance in the courtroom, the clear import at the time was that defendant would receive a longer sentence if he testified and the statement, regardless of the reasoning behind it, effectively chilled the defendant\u2019s right to testify in his own behalf. This holding vacating the sentence in no way limits the court\u2019s discretionary authority to impose a life sentence upon rehearing. N.C.G.S. \u00a7 15A-1334.\nAm Jur 2d, Criminal Law \u00a7 527.\nPrejudicial effect of trial judge\u2019s remarks, during criminal trial, disparaging accused. 34 ALR3d 1313.\nAppeal by defendant from judgment entered 12 June 1991 by Judge William C. Griffin in Jones County Superior Court. Heard in the Court of Appeals 14 January 1993.\nOn 14 January 1991 defendant was indicted for murder in violation of G.S. \u00a7 14-17. On 10 June 1991, the defendant pled guilty to second degree murder. On 12 June 1991, after conducting a sentencing hearing, the trial judge sentenced defendant to life in prison with the North Carolina Department of Correction.\nDefendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.\nSumrell, Sugg, Carmichael & Ashton, P.A., by Rudolph A. Ashton, III, for the defendant."
  },
  "file_name": "0131-01",
  "first_page_order": 159,
  "last_page_order": 161
}