State v. Avery

• Decision Date: 12 March 1975
• Docket Number: No. 33,33
• Citation: 212 S.E.2d 142,286 N.C. 459
• Parties: STATE of North Carolina v. James AVERY.
• Court: North Carolina Supreme Court

Page 142

212 S.E.2d 142

286 N.C. 459

STATE of North Carolina v. James AVERY.

No. 33.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Lester V. Chalmers, Jr., Raleigh, for the State.

William W. Pritchett, Jr., Windsor, for defendant-appellant.

MOORE, Justice.

Defendant first contends that he was deprived of his constitutional right to trial by an impartial jury when the trial judge allowed juror Tilgiham to be dismissed upon challenge for cause by the State. Defendant asserts that Mrs. Tilgiham's objections to the death penalty were general and that she therefore should not have been dismissed for cause, citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

During Voir dire, the following transpired between the solicitor and Mrs. Tilgiham:

'Q. And let me ask you this question. If you were satisfied from the evidence and beyond a reasonable doubt, would you vote for a verdict of guilty, realizing at the time you cast that vote that it would take this man's life?

'A. No. It is kind of a hard question about taking a person's life. I would have to think that over. I would hate to do that.

'Q. I am just asking you could you do that?

'A. I could if I . . . you know . . . I would have to think first.

'Q. Ma'am?

'A. Well, I could, you know, but I have . . . it is a hard thought to say what I would say about taking a man's life.

'Q. I am certainly not attempting to do anything except try to find out from you if you could and would do that.

'A. I can't. . . .

'Q. If you were satisfied from the evidence that the defendant was guilty of murder in the first degree, would you vote for a verdict of guilty realizing at the time that it would take his life?

'A. Well, it would be hard to take a person's life. It would be on my conscience.

'Q. I just want you to tell me if you could or could not do that?

'A. No, I don't feel like I could do that.

'Q. Under any circumstances regardless of the facts in any case would you vote for a verdict, in any case that would take this man's life?

'A. I wouldn't like to vote to take his life if I could help it.

'Q. Well, are you opposed under all circumstances and conditions to capital punishment?

'A. On the punishment, yes.

'Q. I said are you opposed to capital punishment?

'A. Well, yes.

'Q. You are?

'A. I think so as far as I know of taking his life.

'Q. Your Honor, I submit this woman for cause.

'COURT: All right. You may step down.'

Since Witherspoon, this Court has consistently held that if a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972); State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972); State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), modified on other grounds, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), modified on other grounds, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971).

Whether a juror evidences absolute opposition to the death penalty so as to be excludable for cause under Witherspoon is a difficult question subject to seemingly inconsistent results on similar facts. See Annot., 39 A.L.R.3d 550 (1971). We are aware of numerous decisions in other jurisdictions upholding challenges for cause on answers more equivocal than those of juror Tilgiham. See, e.g., Paramore v. State, 229 So.2d 855 (Fla.1969), modified on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Williams v. State, 228 So.2d 377 (Fla.1969), modified on other grounds, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972); State v. Conyers, 58 N.J. 123, 275 A.2d 721 (1971); State v. Elliott, 25 Ohio St.2d 249, 54 Ohio Ops.2d 371, 267 N.E.2d 806 (1971), modified on other grounds, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 761 (1972); Koonce v. State, 456 P.2d 549 (Okl.Cr.1969), modified on other grounds, 408 U.S. 934, 92 S.Ct. 2845, 33 L.Ed.2d 748 (1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). We are also aware that a substantial number of death penalty cases have been reversed on the authority of Witherspoon in memorandum opinions by the United States Supreme Court. For a partial list, see Tezeno, id. at 383.

In State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), we held that a prospective juror, Mrs. Rogers, was properly excused for cause after answering questions concerning her belief as to capital punishment as follows:

"MR. PIERCE (the solicitor): And Mrs. Rogers, let me ask you the same question, that I have been asking. Would it be impossible for you to bring in a verdict requiring the imposition of the death penalty, under any circumstances, no matter--even though the State proved to you the defendant's guilt beyond a reasonable doubt?

JUROR ROGERS: I do not believe in capital punishment.

MR. PIERCE: Let me ask you this question, again, with your answer in mind, please. Would it be impossible to bring in a verdict that required the imposition of the death penalty, no matter what the State showed you, by way of the evidence?

JUROR ROGERS: I think so."

While it is clear that Mrs. Tilgiham, the prospective juror in this case, encountered some difficulty formulating answers to the questions, the solicitor was diligent in seeking to help the juror clarify her position. The solicitor stated that he was seeking by his questions only to find out, under Witherspoon, if the juror could or could not render a guilty verdict, the consequences of which would be death to the defendant. We believe the juror clarified her position to the extent that it was clear that she would refuse to return a guilty verdict regardless of the evidence. This is shown by her other answers, as well as by the following exchange:

'Q. If you were satisfied from the evidence that the defendant was guilty of murder in the first degree, would you vote for a verdict of guilty realizing at the time that it would take his life?

'A. Well, it would be hard to take a person's life. It would be on my conscience.

'Q. I just want you to tell me if you could or could not do that?

'A. No, I don't feel like I could do that.'

As the Texas Court of Criminal Appeals said in Teneno:

'We cannot believe that Witherspoon . . . requires certain formal answers and none other. We surely feel that the test of Witherspoon is 'not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.' (Citation omitted.)' 484 S.W.2d at 383.

We think that, reading the juror's answers as a whole, she displayed an unequivocal reluctance to render a guilty verdict, knowing that defendant would be subjected to the death penalty. Furthermore, the record does not disclose that the State had exhausted its nine peremptory challenges, and had this challenge for cause not been sustained, the solicitor could have challenged this juror peremptorily.

This assignment is overruled.

Defendant next contends that the trial court erred in allowing into evidence the defendant's in-custody confession.

A Voir dire hearing was held to determine the admissibility of the confession. On Voir dire, Special Agent William Earl Godley of the State Bureau of Investigation testified that he read the defendant his rights at the Murfreesboro Police Station as follows:

'Before I ask you any questions, you must understand your rights. You have the right to remain silent and not make any statement. Anything you say can and will be used against you in court. You have the right to talk to a lawyer for advice before you answer any questions and to have him or anyone else with you during questioning. If you cannot afford a lawyer, one will be appointed for you by the Court before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time until you talk to a lawyer.'

Defendant, a high school graduate, testified on Voir dire that he had been taken into custody three times before and that he understood his rights. He signed a written waiver of those rights at about 1:55 a.m. Defendant testified that 'nobody mistreated me,' that he knew and understood his rights, and that he had a Coca-Cola and was allowed to smoke. After a thorough Voir dire hearing, covering eleven pages in the record, the trial court concluded that the defendant freely, understandingly and voluntarily made the statement to Sheriff Daniels without undue influence, compulsion and duress and without promise of leniency, and that defendant's constitutional rights had not been abridged in any way. Such conclusions, when supported by competent evidence, are conclusive on appeal. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781 (1974); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969).

Defendant earnestly contends, however, that the confession was rendered incompetent due to an incident which occurred between him and Police Chief Wheeler earlier in the evening on 29 September at the police station.

Upon being arrested and placed in the police car around 9:15 p.m., defendant was read his rights. After arriving at the station, defendant asked to make a telephone call. Police Chief Wheeler told defendant he could make the telephone call after he gave the officers his name, date of birth and address. Defendant refused to give that information and was not allowed to make a telephone call at that time. Chief Wheeler testified that he needed the name of the defendant so he could complete his legal papers, draw a...