{ "id": 11094591, "name": "STATE OF NORTH CAROLINA v. DAVID CHARLES DIEHL", "name_abbreviation": "State v. Diehl", "decision_date": "2000-04-18", "docket_number": "No. COA98-1626", "first_page": "541", "last_page": "546", "citations": [ { "type": "official", "cite": "137 N.C. App. 541" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "463 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916580 ], "year": 1995, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0529-01" ] }, { "cite": "212 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "79 L. Ed. 2d 1314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1935, "pin_cites": [ { "page": "1321" } ], "opinion_index": 0 }, { "cite": "295 U.S. 78", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 333750 ], "year": 1935, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/295/0078-01" ] }, { "cite": "514 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "723", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132300 ], "year": 1999, "pin_cites": [ { "page": "291", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0285-01" ] }, { "cite": "139 L. Ed. 2d 878", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1096", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11610818, 11610434, 11610661, 11610951, 11610539, 11610860, 11610635, 11610607, 11610708, 11610905, 11610583, 11610744, 11610457, 11610492 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1096-11", "/us/522/1096-01", "/us/522/1096-08", "/us/522/1096-14", "/us/522/1096-04", "/us/522/1096-12", "/us/522/1096-07", "/us/522/1096-06", "/us/522/1096-09", "/us/522/1096-13", "/us/522/1096-05", "/us/522/1096-10", "/us/522/1096-02", "/us/522/1096-03" ] }, { "cite": "439 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526248 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0401-01" ] }, { "cite": "157 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "271 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566320 ], "year": 1967, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0646-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "421 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "585" }, { "parenthetical": "citations omitted" }, { "page": "584", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "332 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507119 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "453" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0439-01" ] }, { "cite": "366 U.S. 717", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1285471 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "722" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/us/366/0717-01" ] }, { "cite": "442 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "38", "parenthetical": "quoting Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961)" }, { "page": "42" }, { "page": "38" }, { "page": "43" } ], "opinion_index": 0 }, { "cite": "336 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534822 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "7-8", "parenthetical": "quoting Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961)" }, { "page": "15" }, { "page": "8" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0001-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "290" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "710" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] } ], "analysis": { "cardinality": 724, "char_count": 12956, "ocr_confidence": 0.769, "pagerank": { "raw": 2.135771028113528e-07, "percentile": 0.7664259576523573 }, "sha256": "36f88ceeedb88a3f055e69d17f0e72cbc7d271fd2d07aaca843dc472f6f0cee7", "simhash": "1:0529536a355e0df5", "word_count": 2167 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs.", "Judge WALKER dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID CHARLES DIEHL" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDavid Charles Diehl (\u201cdefendant\u201d) appeals a jury verdict finding him guilty of first degree murder and sentencing him to imprisonment for life without parole.\nThe facts pertinent to this appeal are as follows. In Asheboro, North Carolina, police officers found the dead body of Jake Spinks (\u201cthe victim\u201d) in his home. The victim had been stabbed sixty-four times. Deoxyribonucleic acid (\u201cDNA\u201d) analysis of blood stains found in the home led police investigators to identify defendant as the perpetrator. Defendant was subsequently indicted and the case was called for trial.\nDuring the course of closing arguments by the State at trial, the prosecutor made the following argument:\n[Defendant] doesn\u2019t like Anise. He doesn\u2019t like Tonya... All these people, I don\u2019t know their names, they\u2019re just Black people. I don\u2019t know their names. I don\u2019t \u2014 I don\u2019t \u2014 I don\u2019t mess with them . . . We\u2019re trying a brutal, vicious, sadistic killing. And one thing you got to face, why? Because he was embarrassed and he thinks he\u2019s doing y\u2019all a favor by killing the drug dealer, a Black drug dealer.\nNo objection was lodged by defendant to these statements and the trial court did not intervene ex mero mo tu to the line or tenor of the prosecutor\u2019s argument. At a later point in his closing argument, the prosecutor again made a reference to race:\nWell if his story is sufficient to confuse you or to whatever, or if it\u2019s just another reason. If, and I hope that is the answer, if twelve people good and true, twelve White jurors in Randolph County, just doesn\u2019t think\u2014\nDefense counsel objected, stating, \u201cYour Honor, please, I object to the racism.\u201d The trial court responded: \u201cWell, let\u2019s just \u2014 We\u2019re not going to have that thing going on.\u201d The prosecutor completed his closing argument and court was adjourned for the day.\nOn the following morning, counsel for defendant asked the court to \u201camplify\u201d his objection to the remark the prosecution had made the previous day. The trial court refused, stating:\nWell, I sustained the objection on the spot, right where he stood. Before the words were hardly silent, I sustained the objection to any line of argument that attempted to inject racial division in the argument, and I sustained the objection to [the] type of argument that the D.A. was about to make which would have constituted a feel for a race-based decision, and I don\u2019t know \u2014 I ruled for you.\nDefense counsel moved for a mistrial. The trial court denied the motion, called for the jury to return, and resumed the proceeding with no further reference to the prosecutor\u2019s remarks. Defendant appeals.\nThe dispositive issue on appeal is whether the trial court abused its discretion in denying defendant\u2019s motion for a mistrial after the State\u2019s closing argument in which the prosecutor referred to the race of the jurors.\n\u201cEvery person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment.\u201d State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975). \u201cThis right exists \u2018regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.\u2019 \u201d State v. Sanderson, 336 N.C. 1, 7-8, 442 S.E.2d 33, 38 (1994) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961)).\nA mistrial is \u201c[a] trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings.\u201d Black\u2019s Law Dictionary 1018 (7th ed. 1999). The trial court is required to declare a mistrial where prejudicial error takes place: \u201cThe judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C. Gen. Stat. \u00a7 15A-1061 (1999). The defendant has the burden to show prejudicial error. N.C. Gen. Stat. \u00a7 15A-1443(a) (1999).\nThe decision to grant or deny a mistrial rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992). Abuse of discretion occurs where the trial court\u2019s decision is \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d Id. (citations omitted).\nControl of counsel\u2019s remarks during closing argument is left largely to the discretion of the trial court. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). \u201cCounsel have wide latitude in making their arguments to the jury.\u201d State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967). Ordinarily, appellate courts will not review the exercise of the trial judge\u2019s discretion regarding jury arguments except where \u201cthe impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.\u201d Johnson, 298 N.C. at 369, 259 S.E.2d at 761.\nHowever, limits exist to jury arguments. State v. Sanderson, 336 N.C. at 15, 442 S.E.2d at 42. Counsel shall not engage in undignified or discourteous conduct that is degrading to a tribunal. State v. Adams, 335 N.C. 401, 439 S.E.2d 760 (1994), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998). Furthermore, counsel must refrain from \u201cabusive, vituperative, and opprobrious language, or from indulging in invectives.\u201d State v. Rivera, 350 N.C. 285, 291, 514 S.E.2d 720, 723 (1999) (citations omitted).\nTherefore, the discretion of the trial court regarding jury arguments is not unbridled. \u201cThe trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury.\u201d Britt, 288 N.C. at 712, 220 S.E.2d at 291. Moreover, where counsel\u2019s arguments stray so far from the bounds of propriety as to impede the defendant\u2019s right to a fair trial, it is proper for the trial court to intervene ex mero mo tu. Id.\nThe prosecutor also has a duty to safeguard the defendant\u2019s right to a fair trial. Sanderson, 336 N.C. at 8, 442 S.E.2d at 38.\nThe [prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor\u2014 indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\nId. (quoting Berder v. United States, 295 U.S. 78, 88, 79 L. Ed. 2d 1314, 1321 (1935)).\nFollowing an improper argument of counsel, the trial court must give prompt and explicit instructions to disregard the unwarranted language. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). \u201cOrdinarily, when incompetent or objectionable evidence is withdrawn from the jury\u2019s consideration by appropriate instructions from the trial judge, any error in the admission of the evidence is cured.\u201d Upchurch, 332 N.C. at 450, 421 S.E.2d at 584 (citations omitted). The following is an example of a proper curative instruction:\nMembers of the jury, you are to disregard the defense counsel\u2019s statement that he believes the defendant is innocent. It is improper for counsel to argue his own personal opinion. You are to disregard this improper statement and not to allow it to affect your decision. [Do you understand my instructions? Can you follow them?]\n(North Carolina Trial Judges\u2019 Bench Book, Superior Court Volume 1, Sec. III, Ch. 36, p. 4, 1999.) We note, however, that \u201csome forms of misconduct are so inherently prejudicial that they may not be considered \u2018cured\u2019 even though the trial court has given a strong corrective instruction.\u201d Sanderson, 336 N.C. at 18, 442 S.E.2d at 43.\nIn the case at bar, the prosecutor gratuitously injected race into the proceeding during closing argument by referring to the jury as \u201ctwelve people good and true, twelve White jurors in Randolph County.\u201d In so doing, the prosecutor abdicated his duty to uphold defendant\u2019s right to a fair trial. We find the conduct of the prosecutor was so undignified as to degrade the tribunal.\nFurthermore, the comment by the trial court that \u201cWe\u2019re not going to have that thing going on,\u201d did nothing to prevent the prosecutor\u2019s statements from influencing the jury. In fact, the trial court\u2019s comment was not directed to the jury, but to the prosecution and defendant. The overly brief and vague comment did not admonish the jury to disregard the objectionable remarks. We hold that direct and decisive action by the trial court was required in the form of an instruction directed to the jurors notifying them that the prosecutor\u2019s appeal to race was improper and that they should disregard it. As such, the statement of the trial court failed to cure the prosecutor\u2019s opprobrious language. In the trial court\u2019s own words, the remarks of the prosecutor constituted an appeal for a \u201crace-based decision.\u201d We hold that the trial court did not fulfill its duty to censor remarks calculated to prejudice the jury.\nBecause the trial court allowed the prosecutor\u2019s statements to go uncorrected, we cannot be sure what effect the statements had on the jury. While we note that the judge, prosecutor and defendant were White, and the victim was Black, we are no less offended by the prosecutor\u2019s appeal to \u201ctwelve people good and true, twelve White jurors.\u201d The fact that all of the parties are of the same race does not authorize the use of the \u201crace card.\u201d There is no place in our system of justice for any of its officers to appeal to race rather than the legal evidence. To insure that the system works as it was intended, trials and jury arguments must be free from the taint of insidious, extraneous influences such as race. As this Court stated in Johnson v. Amethyst Corp., 120 N.C. App. 529, 537, 463 S.E.2d 397, 402 (1995), \u201c[t]his court will neither condone nor permit practicing attorneys to take leave of their responsibilities to uphold the respectability of the judicial system.\u201d\nIn light of the prejudicial legal defect in the proceedings, the trial judge was required to grant defendant\u2019s motion for mistrial pursuant to North Carolina General Statutes section 15A-1061. Therefore, the trial court erred in denying defendant\u2019s motion for mistrial and defendant is entitled to a new trial. Having determined that a new trial is required, we need not address defendant\u2019s remaining assignments of error.\nFor the foregoing reasons, we vacate defendant\u2019s conviction and order a new trial.\nVacated and remanded for a new trial.\nJudge GREENE concurs.\nJudge WALKER dissents.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." }, { "text": "Judge Walker\ndissenting.\nI agree with the majority opinion that neither the State nor the defendant in a criminal trial is authorized to use the \u201crace card.\u201d However, in this case, defendant objected to the prosecutor\u2019s argument as soon as he referred to the race of the jurors and before the prosecutor could finish his sentence. The trial judge\u2019s admonition to the prosecutor and to the jury was evident in his comment, \u201cWe\u2019re not going to have that thing going on.\u201d\nI believe the jury clearly understood that the prosecutor was not permitted to use the \u201crace card\u201d in his argument. I conclude there was no prejudicial error committed in the trial of this case.", "type": "dissent", "author": "Judge Walker" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Bur\u00e9n R. Shields III, for the State.", "Mary March Exumfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID CHARLES DIEHL\nNo. COA98-1626\n(Filed 18 April 2000)\nCriminal Law\u2014 prosecutor\u2019s closing argument \u2014 references to race \u2014 mistrial\nThe trial court abused its discretion in a first-degree murder case by denying defendant\u2019s motion for a mistrial under N.C.G.S. \u00a7 15A-1061, after the State\u2019s closing argument in which the prosecutor referred to the race of the jurors, because the prosecutor abdicated his duty to uphold defendant\u2019s right to a fair trial, the prosecutor\u2019s conduct was so undignified as to degrade the tribunal, and the trial court\u2019s comment that \u201cwe\u2019re not going to have that thing going on\u201d did nothing to prevent the prosecutor\u2019s statements from influencing the jurors.\nJudge Walker dissenting.\nAppeal by defendant from judgment entered 10 March 1998 by Judge W. Douglas Albright in the Superior Court, Randolph County. Heard in the Court of Appeals 16 November 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Bur\u00e9n R. Shields III, for the State.\nMary March Exumfor defendant-appellant." }, "file_name": "0541-01", "first_page_order": 573, "last_page_order": 578 }