State v. Walters

240 S.E.2d 628 (1978)

STATE of North Carolina v. John Roger WALTERS.

No. 69.

Supreme Court of North Carolina.

January 24, 1978.

*630 Rufus L. Edmisten, Atty. Gen., Norma S. Harrell, Associate Atty., Raleigh, for the State of North Carolina.

E. M. Britt, of Britt & Britt, Lumberton, for defendant appellee.

HUSKINS, Justice:

At the close of all the evidence defendant moved that he be permitted to read to the jury G.S. 14-17 and G.S. 14-18, including the statutory provisions pertaining to punishment for first and second degree murder and manslaughter. This motion was denied "with respect to any reading of the punishment provisions." Defendant assigned this denial as error, and the Court of Appeals awarded him a new trial on that basis. The State's appeal challenges the correctness of that decision.

G.S. 84-14 provides, in part: "In jury trials the whole case as well of law as of fact may be argued to the jury." This statute secures to counsel the right to inform the jury of the punishment prescribed for the offense for which defendant is being tried. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). Accord, State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). Counsel may exercise this right by reading the punishment provisions of the statute to the jury, though he "may not argue the question of punishment in the sense of attacking the validity, constitutionality, or propriety of the [prescribed punishment]." State v. Britt, supra, 285 N.C. at 273, 204 S.E.2d at 829. "Nor may counsel argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely." Id.

Thus the trial court erred in denying defense counsel the right to inform the jury of the punishment prescribed by law for second degree murder, voluntary manslaughter and involuntary manslaughter. We must now decide whether the error was prejudicial.

Mere technical error does not entitle defendant to a new trial. State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971). The burden is on the appellant to show prejudicial error amounting to the denial of some substantial right. Kennedy v. James, 252 N.C. 434, 113 S.E.2d 889 (1960). Accord, State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4 (1967); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960). For reasons which follow we think he has carried the burden.

We said in State v. McMorris, supra, that it is permissible for a criminal defendant "to inform the jury of the statutory punishment provided for the crime for which he is being tried. In serious felony cases, at least, such information serves the salutary purpose of impressing upon the jury the gravity of its duty. It is proper for defendant to [advise] the jury [of] the possible consequence of imprisonment following conviction to encourage the jury to give the matter its close attention and to decide it only after due and careful consideration.. . . Denial of permission to counsel to so inform the jury was an unwarranted and prejudicial restriction on defendant's right to argue fully the `whole case' as permitted by General Statute 84-14." 290 N.C. at 288, 225 S.E.2d at 554-55.

A careful review of the record on appeal leads us to the conclusion that denial of defendant's right to inform the jury of the punishment provisions of G.S. 14-18 for voluntary and involuntary manslaughter was prejudicial and may not be regarded as harmless. "Whether an error is to be considered prejudicial or harmless must be determined *631 in the context of the entire record." State v. Lewis, 274 N.C. 438, 452, 164 S.E.2d 177, 186 (1968). The record discloses, among other things, that Carson Cox was drinking, hostile, and had twice pointed a cocked, loaded shotgun at defendant's left temple and threatened to "scatter his brains"; that when thus assaulted the second time defendant grabbed the shotgun barrel with his left hand, pushed it up and out of the car window, and shot Cox with a pistol held in defendant's right hand while Cox was trying to force the shotgun downward and "get it back in the window" on defendant. It was the jury's duty to weigh defendant's conduct in this factual context.

In cases where evidence of a defendant's guilt is overwhelming and the error complained of is insignificant by comparison, we have held, and rightly so, that such insignificant error could not have contributed to the conviction and was therefore harmless. See, e. g., State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970).

Here, the evidence of guilt is not overwhelming; there is significant evidence to the contrary. Counsel was not permitted to read the punishment provisions of G.S. 14-18 to the jury and could not document the seriousness of voluntary manslaughter as compared to involuntary manslaughter. Nor could he portray the gravity of the jury's duty by informing it that voluntary manslaughter might involve imprisonment for twenty years whereas involuntary manslaughter was only punishable by a fine or imprisonment (not exceeding ten years), or both. Counsel was thus hampered in shaping his argument to persuade the jury, if he could, that defendant should be acquitted on the ground of self-defense or, at most, convicted of involuntary manslaughter only. This error constituted a substantial restriction on defendant's right to argue to the jury the whole casethe law as well as the facts, G.S. 84-14. Such an improper restriction must be regarded as material and prejudicial on the facts of this case. Accordingly, the decision of the Court of Appeals awarding defendant a new trial is

AFFIRMED.