Talking about Sentencing at Trial

It’s like Fight Club: the first rule of talking about sentencing at trial is don’t talk about sentencing at trial.

Well, it’s not actually a hard-and-fast rule. But the relatively few cases we have suggest that it’s rarely a good idea to discuss a defendant’s possible punishment in front of a jury.

A leading case is State v. Lopez, 363 N.C. 535 (2009). In Lopez, the jury found the defendant guilty of involuntary manslaughter. The State also pursued the aggravating factor that the crime knowingly created a great risk of death to more than one person. When presenting that factor to the jury, the State gave a pretty detailed presentation—using a blackboard—of the impact the aggravating factor could have on the sentence. Here’s an excerpt: “All right. If we got up to this range, this aggravator, say we’re in the aggravated range of 20, there would be a corresponding maximum that goes with that. And this one would be 24. . . . And these are all in months.” Id. at 537. Suffice it to say the presentation was detailed. The jury found the factor and the judge sentenced in the aggravated range.

On appeal, the defendant argued that the trial judge erred in allowing the prosecutor to discuss the sentencing possibilities at trial. The punishment impact, he contended, was irrelevant to whether the aggravator was actually present.

Relying on older cases, the court of appeals agreed; the trial court erred by allowing the State to explain the possible effect of the aggravating factor. State v. Lopez, 188 N.C. App. 553 (2008) (citing State v. Rhodes, 275 N.C. 584, 588 (1969) (“The amount of punishment which a verdict of guilty will empower the judge to impose is totally irrelevant to the issue of a defendant’s guilt [and] therefore, no concern of the jurors.”)). However, the court ultimately concluded that the trial judge’s error was harmless.

On discretionary review, the supreme court reached the same result—although via a slightly different route. The high court noted that under G.S. 7A-97, the “whole case as well of law as of fact may be argued to the jury.” The court also acknowledged older precedent indicating that the jury may be informed of the “statutory punishment for the crime tried.” State v. McMorris, 290 N.C. 286 (1976). See also State v. Britt, 285 N.C. 256 (1974) (“Counsel may . . . in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged.”). So, it may not have been error per se for the State to describe the defendant’s sentence in front of the jury.

What was erroneous, though, was the description the State actually gave. In short, “the numbers the prosecutor quoted to the jury were misleading.” After walking through some of the nuances of our sentencing law, the court concluded that “even a well-intentioned argument purporting to forecast a sentence under Structured Sentencing will almost invariably be misleading.” Id. at 541. (Story of my life. According to YouTube’s analytics page, viewers of my Sentencing Whiteboard series—contemptuously described to me as “Sharpie Timeline” by a so-called friend this morning!—watch only about half of each video before giving up.) The court hammered the point home by dropping a footnote listing literally ten different ways the defendant’s sentence could have gone down that weren’t mentioned by the State. More generally, the court moved away from its prior, more permissive interpretation of G.S. 7A-97, noting that “sentencing procedure has changed significantly since this Court decided Britt and McMorris.” Id. at 539.

Like the court of appeals, the supreme court ultimately deemed the error harmless, but the clear message from Lopez is that specific descriptions of sentencing are “fraught with risk” and to be avoided. Id. at 541. Better, the court advised, to stick with broader explanations of “why [the jury] is being asked to consider aggravating factors,” and the generalized idea that “an aggravating factor may allow the court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence.” Id. at 541–42.    

A related but more focused rule applies to mentions of parole eligibility before a capital jury. Jeff covers that on pages 125–26 the North Carolina Capital Case Law Handbook. Jessie also has a helpful collection of things you can and cannot say in opening and closing statements here.

2 thoughts on “Talking about Sentencing at Trial”

  1. The problem with examining the appellate record for evidence of the value of arguing possible punishment in front of the jury is that the constellation of cases you are examining is one in which the argument has almost uniformly failed.


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