State v. Jarrette, 46

CourtUnited States State Supreme Court of North Carolina
Citation284 N.C. 625,202 S.E.2d 721
Decision Date25 February 1974
Docket NumberNo. 46,46
PartiesSTATE of North Carolina v. Henry N. JARRETTE.

Atty. Gen. Robert Morgan by Associate Atty. E. Thomas Maddox, Jr., Raleigh, for the State.

Griffin & Humphries by James E. Griffin and Charles D. Humphries, Monroe, for defendant.

Adam Stein, Chapel Hill, Julius LeVonne Chambers, Charlotte, Jack Greenberg, James M. Nabrit, III, Jack H. Himmelstein, Peggy C. Davis, New York City, and Anthony G. Amsterdam, for the NAACP Legal and Educational Fund, Inc., amicus curiae.

LAKE, Justice.

The principal thrust of the defendant's brief and the brief of the amicus curiae, in its entirety, are directed against the imposition of the death penalty for the crimes of first degree murder and rape. The defendant's remaining 125 assignments of error are directed to various rulings of the trial court which he contends entitle him to a new trial on all of the charges.

We do not reach the question of the validity of the judgments imposing the death penalty for first degree murder and for rape if the defendant is entitled to a new trial on these charges for the reason that he did not receive a fair trial in accordance with law. Therefore, we turn first to those 125 other assignments of error. Fifty of these are expressly abandoned by the defendant in his brief. Many of the others present the same question of law. Others are purely formal. Due to the gravity of the offenses charged and the punishments imposed, we have carefully considered the entire record and each assignment of error, including those abandoned, to determine whether the defendant is entitled to a new trial on any or all of the charges against him.

Over the objection of the defendant, the State's motion to consolidate for trial the four charges (murder, rape, kidnapping and armed robbery) was granted and the defendant's motion for severance was denied. In these rulings there was no error.

G.S. § 15--152 provides:

'When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated * * *.'

The uncontradicted evidence is that the entire series of events comprising the four crimes with which the defendant is charged began at about 3:30 p.m., Eastern Standard Time, on 11 February 1973 and was concluded when it was just dark enough to require lights on automobiles. On that date, this would be approximately two and one-half hours. Obviously, the four offenses constituted a continuing criminal episode. See: State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. White, 256 N.C. 244, 123 S.E.2d 483; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250. They were so related in time and circumstance as to permit the admission in evidence of each in the trial of the others. State v. Morrow, 262 N.C. 592, 138 S.E.2d 245; State v. McClain, 240 N.C. 171, 81 S.E.2d 364; State v. Harris, 223 N.C. 967, 28 S.E.2d 232; Stansbury, North Caroline Evidence (Brandis Revision), § 91. Under these circumstances, the consolidation of the cases for trial was within the sound discretion of the trial judge. State v. Yoes and State v. Hale, 271 N.C. 616, 157 S.E.2d 386.

There was no error in the denial of the defendant's motions, heard before trial and in the absence of prospective jurors, for removal of the cases to another county for trial and, upon denial of that, for the summoning of a special venire from a county other than Union. The ground stated for each motion was that, due to the publicity in the various news media concerning these offenses and the resulting charges against the defendant, it would not be possible for him to obtain a fair and impartial trial in Union County by a jury composed of its residents. In support of his motion, the defendant offered affidavits and copies of stories appearing in newspapers published in Union County and in Charlotte. The State offered, in opposition, a number of witnesses who expressed the opinion that the defendant could receive a fair and impartial trial in Union County by a jury composed of its residents.

The newspaper stories were not inflammatory in nature. All were well within the normal limits of newspaper reporting of criminal activity. Their substance was as follows: On 9 February 1973, the defendant was serving a term in the Odom State Prison for two murders. While in prison, he became president of a chapter of the Junior Chamber of Commerce (Jaycees), organized within the prison. On 9 February 1973, he was permitted by the prison officials to leave the prison to attend a Jaycee convention in Raleigh, accompanied by a guard. In abuse of the confidence thus placed in him, he eluded the guard at the convention and escaped. Two days later, these criminal offenses occurred and the victim of the kidnapping and rape identified the defendant as the perpetrator of all four of them.

These circumstances attracted the attention of all the news media of the State. The defendant offered no evidence that such publicity was more widespread in Union County than in any other county to which the case might have been removed in accordance with G.S. § 1--84. To hold that the defendant could not be tried in a county in which newspapers, carrying stories of the offenses and charges, circulated would preclude trial in any county of the State.

As the defendant concedes, these motions were directed to the discretion of the trial court. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Yoes and State v. Hale, supra; State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. McKethan, 269 N.C. 81, 152 S.E.2d 341. There is no indication whatever of abuse of discretion in their denial in the present instance. See: State v. Blackmon, supra; State v. Brinson, 277 N.C. 286, 177 S.E.2d 398; State v. Conrad, 275 N.C. 342, 168 S.E.2d 39.

We observe, though the defendant did not raise the point, that the kidnapping occurred in Mecklenburg County. Thus, Mecklenburg County was the proper venue for the trial of the charge. Venue, however, may be waived by a defendant and is waived by his going to trail without requesting transfer to the proper county. State v. Ray, 209 N.C. 772, 184 S.E. 836; Strong, N.C.Index 2d, Criminal Law, § 15. The motion for change of venue on the ground of local prejudice is not such a request. Consequently, placing the defendant on trial in Union County is not ground for a new trial on the charge of kidnapping in this instance.

The defendant next moved, prior to trial, that prospective jurors be questioned separately, out of the presence of other selected or prospective jurors. The ground was that this would avoid possibility that a prospective juror, in response to a question, might refer, in the presence of other prospective or previously selected jurors, to what he had read or heard through the news media concernings the defendant's being an escaped prisoner. This motion also was directed to the sound discretion of the trial judge. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745; State v. Perry, 277 N.C. 174, 176 S.E.2d 729. There was no abuse of discretion in its denial.

Forty-four assignments of error relate to questions propounded by the Solicitor to the prospective jurors as to their views concerning the death penalty. No material difference in these questions is suggested by the defendant and we perceive none. Consequently, these assignments will be discussed together. It is to be observed that these assignments relate, not to the sustaining of a challenge by the State but merely to a propounding of a question to the prospective juror. Obviously, prospective jurors may be asked questions which will elicit information not, per se, a ground for challenge in order that the party, propounding the question, may exercise intelligently his or its peremptory challenges. Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759; State v. Allred, 275 N.C. 554, 169 S.E.2d 833; State v. Atkinson, 275 N.C. 288, 308, 167 S.E.2d 241; G.S. § 9--15.

The interrogations to which these assignments of error are directed are typified by the following question propounded to prospective juror, Mrs. McWhorter:

'Do you have any moral or religious scruples or beliefs against the imposition of the death penalty in certain cases?'

No challenge to a prospective juror was sustained upon an affirmative answer to this question alone. The defendant asserts that merely 'to ask such a question violates the spirit of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.' We do not so construe either the letter or the spirit of the Witherspoon decision. We have held many times that there is no error in permitting questions to be propounded to prospective jurors concerning their views about the death penalty. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Yoes and State v. Hale, supra, 271 N.C. at p. 643, 157 S.E.2d 386; State v. Spence, 271 N.C. 23, 155 S.E.2d 802. We consider below the effect of the Witherspoon decision upon rulings of the Superior Court sustaining challenges to prospective jurors following their responses to other questions propounded by the Solicitor.

The defendant assigns as error the court's sustaining of the Solicitor's challenges to prospective jurors Baucom, Haigler, Mosley, Mrs. McWhorter and Mrs. Purser, contending that the allowance of such challenges for cause violated 'the spirit of Witherspoon.' There was no material difference in the questions and answers upon the basis of which these five challenges for cause were sustained. Those here quoted, directed to and given by prospective juror Baucom,...

To continue reading

Request your trial
97 cases
  • State v. Hunt
    • United States
    • Court of Appeal of North Carolina (US)
    • December 28, 1984
    ...Constitution of North Carolina is a matter of state law upon which the decision of our Supreme Court is final. State v. Jarrette, 284 N.C. 625, 655, 202 S.E.2d 721, 741 (1974). For example, a decision of the United States Supreme Court construing the due process clause of the Fourteenth Ame......
  • State v. Boyd, 177A83
    • United States
    • United States State Supreme Court of North Carolina
    • August 28, 1984
    ...State v. Oliver, 309 N.C. 326, 307 S.E.2d 304. Defendant strenuously objects to the prosecutor's quoting a portion of State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), a case that was overruled by Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Defendant......
  • Virmani v. Presbyterian Health Services
    • United States
    • United States State Supreme Court of North Carolina
    • June 25, 1999
    ...binding authority for this Court when addressing this question, which is solely a question of state law. See State v. Jarrette, 284 N.C. 625, 654-55, 202 S.E.2d 721, 740 (1974), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976). We reject such reasoning because the......
  • State v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • May 6, 1994
    ...or any other arbitrary factor and is not disproportionate. NO ERROR. 1 The prosecutor's statements came from State v. Jarrette, 284 N.C. 625, 665, 202 S.E.2d 721, 747 (1974), vacated in part, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976).2 The jury found that the murder was committed ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT