State v. Deas

212 S.E.2d 693 (1975)

25 N.C. App. 294

STATE of North Carolina v. Joseph DEAS, Jr.

No. 7429SC1020.

Court of Appeals of North Carolina.

April 2, 1975.

*694 Atty. Gen. Rufus L. Edmisten by Associate Attys. Archie W. Anders and Robert W. Kaylor, Raleigh, for the State.

Sanders, Walker & London by Robert G. McClure, Jr., and Robert P. Johnston, Charlotte, for defendant appellant.

MARTIN, Judge.

Counsel for defendant earnestly argues that defendant was denied a fair trial as a result of the district attorney's appeal to racial prejudice. It appears from the record that defendant is a black male and Miss Hamilton is white.

On direct examination defendant testified that he and Miss Hamilton had previously gone to a motel in Brevard where defendant registered them in his name and his wife's name. The operator of the motel testified that he had found a registration card bearing the names of defendant and his wife but that he didn't remember Deas coming to the motel. Defendant places much emphasis on the following statement made by the district attorney during jury argument:

"If he had seen a white woman in the car and this man was registering as man and wife, he would have remembered it because it don't happen in Transylvania County; it may happen in Charlotte, but it don't happen in Transylvania County."

Following the above statement, defendant objected, and the trial court stated, "Stick to the record."

It is argued that the above quote improperly evoked racial prejudice when viewed in the context of the case. The State argues that the district attorney's comment was designed to rebut defendant's assertions that he and Miss Hamilton had registered at a motel. Miss Hamilton, the State points out, denied that she had ever been to the motel with defendant, and the operator of the motel could not recall seeing defendant and a white woman.

"The manner of conducting the argument of counsel, the language employed, the *695 temper and tone allowed, must be left largely to the discretion of the presiding judge. He sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case. It is only in extreme cases of the abuse of the privilege of counsel, and when this is not checked by the court, and the jury is not properly cautioned, this Court can intervene and grant a new trial." State v. Thompson, 278 N.C. 277, 179 S.E.2d 315 (1971); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Bryan, 89 N.C. 531.

See also State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974).

It should be noted that we do not have the benefit of the trial court's charge to the jury. Nevertheless, we have considered the district attorney's argument to the jury in the context of the case as it may relate to (1) provoking racial prejudice and (2) making arguments not based on the evidence. We find no abuse of discretion and no prejudicial error entitling defendant to a new trial.

Before entering pleas to the charges, defendant moved to quash the bills of indictment for the reason that he had been placed in double jeopardy by being twice tried for the same offense. At the first trial defendant's counsel had requested to withdraw from the case. At that time, defendant was questioned by the trial court, and it was revealed that defendant desired to employ an attorney from Charlotte and voluntarily consented to a mistrial in order to employ other counsel. "The rule is that an order of mistrial entered upon motion of the defendant or with the defendant's consent will not support a plea of former jeopardy." State v. Martin, 16 N.C. App. 609, 192 S.E.2d 596 (1972). "Even where . . . all the elements of jeopardy appear, a plea of former jeopardy will not prevail where the order of mistrial was properly entered for `physical necessity or for necessity of doing justice.'" State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971). Defendant's assignment of error in this regard is overruled.

We have carefully considered defendant's remaining assignments of error and are of the opinion that prejudicial error does not appear.

No error.

PARKER and VAUGHN, JJ., concur.