If so, this Court must then "determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." Id. at 131, 558 S.E.2d at 106 (citing Coble v. Coble , 79 N.C. 589 (1878) ; and State v. Tyson , 133 N.C. 692, 698, 45 S.E. 838, 840 (1903) ). Conversely, when a defendant fails to object at closing, this Court must determine if the argument was "so grossly improper that the trial court erred in failing to intervene ex mero motu ."
This Court has set out a two-part analysis for determining whether the trial court abused its discretion in overruling a defendant's objection in such cases: “[T]his Court first determines if the remarks were improper.... Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." SeeState v.Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citing Coble v. Coble , 79 N.C. 589 (1878) ). The State argues that the statement made by the prosecutor was not improper because he was merely expounding upon defense counsel's statement during closing arguments that he would like to “stand up here and say find him not guilty.
“[T]his Court first determines if the remarks were improper.... Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." (citing Coble v. Coble, 79 N.C. 589 (1878) ). In applying this analysis to the case at bar, we note that the State has conceded that Assistant District Attorney Black's arguments were both “excessive and inappropriate."
When applying the abuse of discretion standard to closing arguments, this Court first determines if the remarks were improper. As demonstrated in part I of this opinion, improper remarks include statements of personal opinion, personal conclusions, name-calling, and references to events and circumstances outside the evidence, such as the infamous acts of others. Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court. See Coble v. Coble, 79 N.C. 589 (1878) (holding that it is reversible error if the trial court, upon defendant's objection, fails to prevent opposing counsel from unduly humiliating and degrading defendant); and Tyson, 133 N.C. at 698, 45 S.E. at 840 (holding that when counsel grossly abuse their privilege of closing arguments , the "presiding judge should interfere at once, when objection is made at the time, and correct the abuse"). We now must apply the above standard of review to the case at bar.
The Court in its opinion, written by Stacy, C.J., inter alia, said: ". . . Similar remarks were said to be prejudicial, and were either held for error or disapproved, in S. v. Murdock, 183 N.C. 779; S. v. Saleeby, ibid, 740; S. v. Davenport, 156 N.C., p. 610; S. v. Tyson, 133 N.C., p. 699; Jenkins v. Ore Co., 65 N.C. 563; S. v. Williams, ibid, 505; Coble v. Coble, 79 N.C. 589 (the `upas-tree' case). * * *
2. The second class of restrictions may be denominated as unfair comment and is discussed in many decisions, notably: Jenkins v. Ore Co., 65 N.C. 563; S. v. Williams, 65 N.C. 505, Coble v. Coble, 79 N.C. 589; S. v. Davenport, 156 N.C. 596; S. v. Tucker, 190 N.C. 708; Lamborn v. Hollingsworth, 195 N.C. 350; S. v. Green, 197 N.C. 624; S. v. Beal, 199 N.C. 278. These illustrations of unfair comment, beginning with the familiar "poor widow and rich corporation" argument, running through the "Pennsylvania Yankee" appeal, including the famous upas tree declaration and ending with the religious and social theories referred to in the Beal case, all stand as a lasting monument to vituperative ingenuity.
The one serious question presented by the record is whether it is prejudicial error in a case of this kind, for the solicitor or counsel for the private prosecution in the closing argument to the jury, to comment upon the looks and appearance of the defendants who have not gone upon the witness stand, to the effect, "Gentlemen of the jury, look at the defendants, they look like professed (professional) bootleggers, their looks are enough to convict them," and on objection, to have such comments held by the court to be proper. Similar remarks were said to be prejudicial, and were either held for error or disapproved, in S. v. Murdock, 183 N.C. 779; S. v. Saleeby, ibid., 740; S. v. Davenport, 156 N.C. p. 610; S. v. Tyson, 133 N.C. p. 699; Jenkins v. Ore Co., 65 N.C. 563; S. v. Williams, ibid., 505; Coble v. Coble, 79 N.C. 589 (the "upas-tree" case). Had the defendants gone upon the witness stand, their demeanor, while testifying, would have been a proper subject for comment, the same as that of other witnesses, but of this, counsel was not speaking. It was the right of the State to have the defendants present at the trial, both for the purpose of identification and to receive punishment if found guilty. S. v. Johnson, 67 N.C. 55.
SMITH, C. J. When this case was before the court at June term, 1878, BYNUM, J., in delivering the opinion remarked that "the law and merits of the case are probably with the plaintiffs, and it is with reluctance that we are compelled to withhold an affirmation of the judgment rendered below, and to award a venire de novo," ( 79 N.C. 589.) The verdict is again for the plaintiffs upon the single issue submitted, and the fact found upon which rests their equity to follow and subject the money paid into the clerk's office to their claim against the intestate, W. R. Denny, their former guardian.
Counsel has no privilege to humiliate and degrade plaintiffs in the eyes of the jury. Coble v. Coble, 79 N.C. 589 (1878). Our Supreme Court has stated that the standard of review when a new trial is either granted or denied pursuant to G.S. sec. 1A-1, Rule 59 is whether the trial court committed an abuse of discretion. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).
"1. It is not within the privilege of counsel in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury * * *, particularly when he has not been impeached." Coble v. Coble, Admr., 79 N.C. 589, 28 Am. Rep., 338, cited with approval in Hayes v. Smith, supra, at p. 186. The fact that one Cleveland lawyer subtly inferred or insinuated that another lawyer, practicing at the same bar, was dishonest, a pettifogger, and a trickish knave, is sufficient to raise the question whether a fair and impartial jury trial was maintained, and whether the jury was prejudicially influenced in determining the credibility of the witness; and the fact that the insinuating, vicious and slanderous characterization of the lawyer-witness was later withdrawn, leaves the question of whether, once a dagger is thrust through the heart, it can be withdrawn without injury or damage.