State v. Gillikin (Lawyers Weekly No. 11-07-1236, 21 pp.) (Douglas McCullough, J.) Appealed from Carteret County Superior Court. (Kenneth F. Crow, J.) N.C. App. Click here for the full-text opinion.
Holding: After four hours of deliberating, the jury informed the trial judge that they were deadlocked on four of five charges. When the judge re-instructed the jury, he gave some, but not all of the instructions set out in G.S. § 15A-1235(b); in particular, nowhere in the re-instructions is there a suggestion that no juror was expected to “surrender his honest conviction” nor reach an agreement that might do “violence to individual judgment.” The trial judge’s re-instructions are a clear violation of statutory guidelines, necessitating a finding of prejudicial error.
Defendant is entitled to a new trial.
Given the “he said, she said” nature of this case, we are not persuaded by the state’s contention that there was such overwhelming evidence against defendant as to render the trial judge’s error harmless.
We also take this opportunity to comment on the grossly improper closing argument given by the prosecutor in this case.
Not only did the prosecutor repeatedly engage in abusive name-calling of defendant and express his opinion that defendant was a liar and was guilty, the entire tenor of the prosecutor’s argument was undignified and solely intended to inflame the passions of the jury. Indeed, the trial court recognized the gross improprieties, and we commend the trial court for issuing a curative instruction, ex mero motu, to the jury. Had the trial court not issued a curative instruction in this case, we would have been compelled to order a new trial for defendant on this basis as well.