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STATE OF NORTH CAROLINA v. DAVID CHARLES DIEHL
No. 195A00
FILED: 4 May 2001
1.                                                                                                    Criminal Law--prosecutor’s argument--references to race--mistrial
The Court of Appeals erred in a first-degree murder case by concluding that the trial
court abused its discretion when it denied defendant’s motion for a mistrial under N.C.G.S. §
15A-1061 based on the prosecutor’s alleged inappropriate reference to the race of the jurors,
because: (1) although it is improper to interject race into a jury argument where race is otherwise
irrelevant, the prosecutor was properly pursuing a legitimate prosecutorial theory that race was a
motive or factor in the crime; (2) defendant’s original objection was immediately made and
properly sustained, meaning defendant and the trial court could only speculate whether the
prosecutor was undertaking an improper appeal to the racial prejudices of the jury; and (3)
instruction by the trial court calling attention to the prosecutor’s unfinished sentence may have
done more harm than good.
2.                                                                                                    Appeal and Error--preservation of issues--assignment of error does not encompass
additional issues
Although defendant and amicus contend in a first-degree murder case that a prosecutor’s
additional remarks during closing argument were improper, these issues were not properly
preserved because: (1) the scope of appellate review is limited to those issues raised in an
assignment of error set out in the record on appeal; and (2) defendant’s single assignment of
error pertaining to closing argument does not direct the attention of the appellate court to the
particular error about which the question is made nor does it refer to the transcript pages where
any questionable comments may be found as required by N.C. R. App. P. 10(c)(1).
Justice MARTIN dissenting.
Appeal pursuant to N.C.G.S.  §  7A-30(2) from the decision of
a divided panel of the Court of Appeals,  137 N.C. App.  541,  528
S.E.2d  613  (2000), vacating a judgment entered  10 March  1998 by
Albright, J., in Superior Court, Randolph County, and remanding
for a new trial.    On  5 October  2000, the Supreme Court granted
discretionary review of additional issues.    Heard in the Supreme
Court  14 February  2001.
Roy A. Cooper, Attorney General, by Buren R. Shields, III,
Assistant Attorney General, for the State-appellant.
Mary March Exum for defendant-appellee.
Seth H. Jaffe, Counsel, American Civil Liberties Union of
North Carolina Legal Foundation, amicus curiae.




EDMUNDS, Justice.
On  16 January  1996, defendant David Charles Diehl was
indicted for first-degree murder.    The case was tried capitally.
The jury found defendant guilty of first-degree murder on the
basis of premeditation and deliberation.    After a capital
sentencing proceeding, the jury recommended life imprisonment
without parole, and on  10 March  1998, the court imposed sentence
accordingly.    In a split decision, the Court of Appeals vacated
defendant’s conviction and judgment and remanded for a new trial,
holding that the trial court erred in denying defendant’s motion
for mistrial.    Judge Walker dissented, contending that any error
in defendant’s trial was not prejudicial, and the State appealed
pursuant to N.C.G.S.  §  7A-30(2).    This Court also allowed the
State’s petition for discretionary review as to the related issue
whether an incomplete comment made by the prosecutor in closing
argument constituted an appeal to the jury for a  “race-based
decision.”    We reverse the holding of the Court of Appeals.
At trial, the State presented evidence that the victim, Jake
Spinks, was found dead at his Asheboro, North Carolina, home in
the early morning hours of  23 December  1995.    Spinks, a dealer in
crack cocaine, had been stabbed sixty-four times.    Anise Raynor
testified that approximately two weeks before the murder, he and
defendant went to Spinks’ home to purchase crack cocaine.    When
defendant expressed dissatisfaction with the quantity Spinks was
willing to sell for fifty dollars, Spinks pointed a revolver at
defendant and ordered him to leave.    After defendant complied, he
told Raynor that he would  “get” Spinks.




On  22 December  1995, defendant and Raynor spent a large part
of the day and evening smoking crack cocaine.    Raynor testified
that defendant told him that he  (defendant) and Spinks  “had
worked something out” and that Spinks was going to give defendant
money or drugs because of a previous deal during which Spinks
supposedly had taken defendant’s money without providing any
crack cocaine in return.    Raynor dropped defendant off at a pay
telephone approximately one block from Spinks’ home, then left to
buy crack cocaine for himself elsewhere.    Later that night,
Raynor searched for defendant and found him walking along a road
near Spinks’ house, wearing bloody clothes and carrying a butcher
knife in the waist of his trousers.    When Raynor asked what
happened, defendant responded,  “I had to do him, I had to do
him.”    DNA testing confirmed that blood found in Spinks’ kitchen
was from defendant.
Defendant took the stand in his defense.    He admitted being
present at the killing, but claimed that Raynor had stabbed
Spinks.    Defendant testified that his blood was found at the
crime scene only because his hand had been slashed when he
attempted to calm Raynor.    Although the evidence was undisputed
that defendant’s hand had been cut the evening of the murder and
stitched by an emergency room doctor, defendant previously had
provided conflicting accounts to explain his injury.
During closing argument in the guilt-innocence phase of the
trial, the prosecutor referred to the race of the jurors.
Defendant is white, as were all the jurors, while the victim was
African-American.    The prosecutor argued,  “Well if  [defendant’s]




story is sufficient to confuse you or to whatever, or if it’s
just another reason.    If, and I hope that is the answer, if
twelve people good and true, twelve  [w]hite jurors in Randolph
County, just doesn’t think  --.”    Defendant immediately objected,
stating,  “Your Honor, please, I object to the racism.”    The trial
court sustained the objection by saying,  “Well, let’s just  --
We’re not going to have that thing going on.”    Defendant did not
ask for a curative instruction.    The prosecutor completed his
closing argument, and court adjourned for the day.
The following morning, defense counsel asked the court to
revisit the issue:                                                     “Judge, during the course of  [the
prosecutor’s] argument yesterday he made some statements that we
objected to, and I believe the Court sustained.    I was hoping you
could amplify just a little bit our objections to what we
considered to be inappropriate and racist arguments.”    The trial
court declined to take further action, explaining,
[the court] sustained the objection to any line of
argument that attempted to inject racial division in
the argument, and  [the court] sustained the objection
to  [any] type of argument that the  [prosecutor] was
about to make which would have constituted a feel for a
race-based decision, and I don’t know  -- I ruled for
you.
Defendant then moved for a mistrial.    The court denied the
motion, and the trial proceeded to conclusion.
[1] Defendant contends that the trial court erred when it
denied his motion for mistrial.    A trial judge  “must declare a
mistrial upon the defendant’s 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’s case.”    N.C.G.S.
§  15A-1061  (1999).    The decision to grant or deny such a motion
will not be disturbed on appeal unless it is so clearly erroneous
as to amount to a manifest abuse of discretion.    State v.
McGuire,  297 N.C.  69,  75,  254 S.E.2d  165,  169-70, cert. denied,
444 U.S.  943,  62 L. Ed.  2d  310  (1979).    Although the challenged
portion of the prosecutor’s closing argument is unsettling when
read in vacuo, an examination of the context in which the comment
was made reveals that the district attorney was pursuing a
legitimate prosecutorial theory.
Closing argument may properly be based upon the evidence and
the inferences drawn from that evidence.    State v. Oliver,  309
N.C.  326,  357,  307 S.E.2d  304,  324  (1983).    Here, the prosecutor
argued that defendant’s primary motive for killing Spinks was
robbery of cash and crack cocaine.    However, the prosecutor also
contended that defendant had a secondary motivation for the
killing:    Defendant held in contempt the victim and others with
whom he dealt drugs, and their race was a component of that
contempt.    Although it is improper gratuitously to interject race
into a jury argument where race is otherwise irrelevant to the
case being tried, argument acknowledging race as a motive or
factor in a crime may be entirely appropriate.    State v. Moose,
310 N.C.  482,  492,  313 S.E.2d  507,  515  (1984)  (holding that white
defendant’s reference to African-American victim as a  “damn
nigger,” along with evidence that victim was seen driving through
a white community, sufficient to support jury argument that
murder was, in part, racially motivated).    Here, the record




reveals that when the prosecutor argued to the jury about
defendant’s secondary motivation, defendant did not object to
remarks citing his dismissive perceptions of minorities with whom
he dealt.    However, when the prosecutor appeared to incorporate
the jurors in this argument  (”If, and I hope that is the answer,
if twelve people good and true, twelve  [w]hite jurors in Randolph
County, just doesn’t think  --”), defendant objected, and the
court sustained the objection.    The court’s denial of defendant’s
request the next day that the court  “amplify” his objection led
to the motion for mistrial now before us.
Having reviewed the context in which the prosecutor made the
challenged comment, we now consider whether the court abused its
discretion in denying defendant’s mistrial motion.    Abuse of
discretion occurs when the trial court’s decision is  “‘so
arbitrary that it could not have been the result of a reasoned
decision.’”    State v. Hyde,  352 N.C.  37,  46,  530 S.E.2d  281,  288
(2000)  (quoting State v. Barts,  316 N.C.  666,  682,  343 S.E.2d
828,  839  (1986)), cert. denied,  ___ U.S.  ___,  148 L. Ed.  2d  775
(2001).    The experienced trial judge was presented with a
perplexing situation.    Because defendant’s original objection was
immediately made and promptly sustained, the prosecutor never
completed his thought.    Accordingly, defendant and the court
could only speculate whether the prosecutor was undertaking an
improper appeal to the racial prejudices of the jury, whether the
prosecutor had experienced a slip of the tongue, or whether some
other explanation applied.    Further instruction by the court
calling attention to the prosecutor’s unfinished sentence may




have done more harm than good.    Because the court’s decision not
to address the issue anew was reasonable, we are unable to
conclude that the denial of defendant’s subsequent motion for
mistrial constituted a manifest abuse of discretion.
[2] Defendant and amicus also seek to argue that various
other comments in the prosecutor’s closing argument violated
defendant’s due process rights, as guaranteed under the
Fourteenth Amendment to the United States Constitution.    However,
defendant made a contemporaneous objection only to the
prosecutor’s comment about  “twelve  [w]hite jurors,” and his
request the next day for amplification referred only to
“inappropriate and racist arguments.”    When the trial court
responded to the request by discussing the remark quoted above,
defendant did not direct the court’s attention to any other
statement made by the prosecutor during his closing argument.
In the absence of an objection to other comments, the
standard of review is whether the argument was so grossly
improper that the trial court erred in failing to intervene ex
mero motu.    State v. Golphin,  352 N.C.  364,  452,  533 S.E.2d  168,
226  (2000), cert. denied,  ___ U.S.  ___,  ___ L. Ed.  2d  ___,  69
U.S.L.W.  3618  (2001).    A  “‘trial court is not required to
intervene ex mero motu unless the argument strays so far from the
bounds of propriety as to impede defendant’s right to a fair
trial.’”    State v. Smith,  351 N.C.  251,  269,  524 S.E.2d  28,  41
(quoting State v. Atkins,  349 N.C.  62,  84,  505 S.E.2d  97,  111
(1998), cert. denied,  526 U.S.  1147,  143 L. Ed.  2d  1036  (1999)),
cert. denied,  ___ U.S.  ___,  148 L. Ed.  2d  100  (2000).    However,




we need not decide whether the trial court erred in failing to
intervene because defendant’s sole assignment of error pertaining
to closing argument was limited to  “[w]hether the trial court
erred in denying defendant’s motion for mistrial after the
State’s closing argument.”    The scope of appellate review is
limited to those issues raised in an assignment of error set out
in the record on appeal, N.C. R. App. P.  10(a), and where  “no
assignment of error can fairly be considered to encompass”
additional issues that a party seeks to raise at the appellate
level, those issues are not properly before the reviewing court,
State v. Burton,  114 N.C. App.  610,  615,  442 S.E.2d  384,  387
(1994).    Defendant’s single assignment of error pertaining to
closing argument does not  “direct[] the attention of the
appellate court to the particular error about which the question
is made,” nor does it refer to transcript pages where any
questionable comments may be found.    N.C. R. App. P.  10(c)(1).
“This Court has noted that when the appellant’s brief does not
comply with the rules by properly setting forth exceptions and
assignments of error with reference to the transcript and
authorities relied on under each assignment, it is difficult if
not impossible to properly determine the appeal.”    Steingress v.
Steingress,  350 N.C.  64,  66,  511 S.E.2d  298,  299  (1999).
Accordingly, we will not address issues relating to additional
remarks made by the prosecutor during his closing argument.
The result in the Court of Appeals did not require it to
reach other issues properly preserved by defendant and raised on
appeal.    Because we now reverse the Court of Appeals’ decision as




to the only issue it addressed, on remand, that court should also
consider defendant’s remaining issues.
REVERSED.
Justice MARTIN, dissenting.
In a criminal proceeding the  “prosecutor may argue the
evidence and any inferences to be drawn therefrom.”    State v.
Oliver,  309 N.C.  326,  357,  307 S.E.2d  304,  324  (1983).    It is
well settled, however, that  “[t]he Constitution prohibits
racially biased prosecutorial arguments.”    McCleskey v. Kemp,  481
U.S.  279,  309 n.30,  95 L. Ed.  2d  262,  289 n.30  (1987).
“Nonderogatory references to race are permissible  .  .  . if
material to issues in the trial and sufficiently justified to
warrant  ‘the risks inevitably taken when racial matters are
injected into any important decision-making.’”    State v.
Williams,  339 N.C.  1,  24,  452 S.E.2d  245,  259  (1994)  (quoting
McFarland v. Smith,  611 F.2d  414,  419  (2d Cir.  1979)), cert.
denied,  516 U.S.  833,  133 L. Ed.  2d  61  (1995), overruled on other
grounds by State v. Warren,  347 N.C.  309,  320,  492 S.E.2d  609,
615  (1997), cert. denied,  523 U.S.  1109,  140 L. Ed.  2d  818
(1998).
During closing argument the state argued to the jury:                     “If,
and I hope that is the answer, if twelve people good and true,
twelve  [w]hite jurors  .  .  .                                           .”      It is an unremarkable
proposition that the state’s reference to  “twelve  [w]hite jurors”
was not relevant to any issue presented by the evidence or any
reasonable inference arising therefrom.    Indeed, it is difficult




to envision a criminal trial in which the jurors’ race would
constitute a proper matter for argument.    Notably, the state
acknowledges in brief that  “the reference to race might have
turned out to be unnecessary.”
The majority concludes the state’s reference to the jurors’
race does not constitute reversible error yet concedes the
racially based line of argument may have been improper.    In any
event, the majority does not dispute that the trial judge
properly sustained defendant’s objection to the state’s racial
argument.    Further, the majority notes that a curative
instruction may have done more harm than good.    In such
circumstances, this Court cannot reasonably ascertain the extent
to which the improper argument inflamed the jury with irrelevant
racial considerations.    Accordingly, in the absence of evidence
to the contrary, we should presume the state’s reference to the
jurors’ race  “so infected the trial with unfairness that it
rendered the conviction fundamentally unfair.”    State v.
Robinson,  346 N.C.  586,  607,  488 S.E.2d  174,  187  (1997).
I recognize that plain error analysis does not govern our
review of jury arguments.    See State v. Davis,  349 N.C.  1,  29,
506 S.E.2d  455,  470  (1998)  (plain error review generally limited
to jury instructions and evidentiary rulings), cert. denied,  526
U.S.  1161,  144 L. Ed.  2d  219  (1999).      Nonetheless, the rationale
underlying the doctrine in criminal cases generally, correcting
errors that  “seriously affect the fairness, integrity or public
reputation of judicial proceedings,” United States v. Atkinson,
297 U.S.  157,  160,  80 L. Ed.  555,  557  (1936), applies with great




force here.    Public confidence in the administration of justice
is seriously eroded when, as here, irrelevant information about
the jurors’ race is introduced during the state’s closing
argument.
The jurors’ race was wholly irrelevant to the jury’s
consideration of the evidence in reaching a verdict at
defendant’s trial.    I would affirm the decision of the Court of
Appeals.

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