State v. Allred, 11
| Citation | 169 S.E.2d 833,275 N.C. 554 |
| Decision Date | 16 October 1969 |
| Docket Number | No. 11,11 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE of North Carolina v. Thadeus Nathaniel ALLRED alias Bernard Brown. |
Atty. Gen. Robert Morgan, Deputy Atty. Gen. Ralph Moody and Asst. Atty. Gen. Bernard A. Harrell, for the State.
Charles B. Deane, Jr., Rockingham, for defendant appellant.
Whether the court's refusal to excuse Juror Hicks denied defendant's right under G.S. § 9--21 to challenge fourteen jurors 'peremptorily without cause,' depends upon whether the court erred in refusing to allow defendant's challenge For cause of Juror Spencer. To reject Juror Spencer, defendant was required to challenge him peremptorily. The court denied defendant's right to challenge Juror Hicks on the ground that defendant had theretofore expended all of his fourteen peremptory challenges, inclusive of the one used to reject Juror Spencer.
In selecting the jury, the court, or any party to an action, vivil or criminal, has the right to make inquiry as to the fitness and competency of any person to serve as a juror. G.S. § 9--15(a). 'The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: 'First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law.' State v. Brooks, 57 Mont. 480, 188 P. 942. 'The presiding judge shall decide all questions as to the competency of jurors.' G.S. § 9--14.
State v. English, 164 N.C. 497, 507, 80 S.E. 72, 76. 'A challenge to the poll (to each prospective juror) may be peremptory within the limits allowed by law, or for cause without limit if cause is shown.' State v. McKethan, 269 N.C. 81, 87, 152 S.E.2d 341, 346.
The portion of the record pertinent to defendant's challenge of Juror Spencer discloses the matters set forth below.
When examined by the solicitor on Voir dire, Juror Spencer testified he and the McRae brothers were second cousins and that he had known them 'about 15 or 20 years.' The record indicates that, after Spencer had so testified, no further question was asked by the solicitor.
In response to inquiry by defense counsel, the solicitor stated the McRae brothers would be called to testify as witnesses for the State. Juror Spencer was then examined by defense counsel. The material portion of this examination is quoted below.
'
'
At this point, defense counsel challenged Juror Spencer for cause. To this challenge, the court said, 'No.' In explanation of this ruling, the court stated in substance that defense counsel, in asking whether the juror would or would not believe the McRae boys, failed to take into consideration that a juror may believe All of what a witness says, or Part of what a witness says, or None of what a witness says. Thereafter, speaking to defense counsel, the court said: 'Now, I suggest that you question him a little further with regard to whether he could give--well, I shall let you select--'
Defendant noted formal objection to the court's refusal at that time to grant challenge for cause. Thereafter, in deference to the court's suggestion, defense counsel resumed his examination of Juror Spencer. The record thereof is quoted below.
'Q If Eddie or Billy told you a certain thing was true, would you believe what they told you?
'
At the conclusion of this examination, defendant again excepted to the court's failure to grant his challenge for cause of Juror Spencer.
The State's case rests on the testimony of Billy and Eddie McRae. Absent their testimony, the evidence against defendant was insufficient for submission to the jury.
In determining whether Juror Spencer was subject to challenge for cause, consideration must be given (1) to the relationship between Spencer and the McRae brothers, and (2) to the relationship of the McRae brothers to the murder of Quick and the trial of defendant therefor.
Spencer had known the McRae brothers, his second cousins, 'about 15 or 20 years.' Second cousins are related in the sixth degree of kinship. See G.S. § 104A--1.
In this jurisdiction, a juror, who is related to the defendant by blood or marriage within the ninth degree of kinship, is properly rejected when challenged by the State For cause on that ground. State v. Perry, 44 N.C. 330; State v. Potts, 100 N.C. 457, 461, 6 S.E. 657, 658; State v. Levy, 187 N.C. 581, 586, 122 S.E. 386, 389; McIntosh, North Carolina Practice and Procedure, § 555(6). An earlier rule is referred to by Nash, C.J., in Perry, as follows:
In State v. Tart, 199 N.C. 699, 155 S.E. 609, the opinion of Brogden, J., implies that the defendant had the right to challenge for cause a juror who was related within the seventh degree to the prosecuting witness. The prosecution was for carnal knowledge of a girl under sixteen years of age. The juror had made no reply when counsel for defendant stated: 'If there is any member of the jury related to the prosecutrix by blood or marriage, please let that fact be known and excuse himself.' After the jury had returned a verdict of guilty, this juror disclosed that, although he had not recognized his relationship to the prosecuting witness when the jury was being selected, he became aware of their relationship before any evidence was introduced. Notwithstanding the court found the juror was not prejudiced, the cause was 'remanded to the Superior Court for a finding as to whether the defendant or his counsel was misled, and if the judge shall find that the defendant or his counsel was misled, the judgment should be set aside; otherwise to remain in full force and effect.'
We do not hold that relationship within the ninth degree between a juror and a state's witness, standing alone, is legal ground for challenge for cause. This is in accord with the weight of authority in other jurisdictions. Annotation, 'Relationship to prosecutor or witness for prosecution as disqualifying juror in criminal case,' 18 A.L.R. 375; 31 Am.Jur., Jury § 192; 50 C.J.S. Juries § 218(b)(1). Even so, where such relationship exists and is known and recognized by the juror, a defendant's challenge for cause should be rejected only if it should appear clearly that, under the circumstances of the particular case, the challenged juror would have no reason or disposition to favor his kinsman by giving added weight to his testimony or otherwise. Ordinarily, if the testimony of the witness will be directed to proof of some formal matter or to some minor facet of the case, there would be no substantial basis for challenge for cause. Here we are considering a radically different factual situation.
In addition to (1) the fact that the McRae brothers were kinsmen of Juror Spencer, and (2) the fact that the State's case depended upon their testimony, each of the McRaes was also under indictment for the murder of Braxton Crawford Quick. The record does not show what had occurred with reference to the disposition, if any, of their cases prior to their use as State's witnesses.
It is unnecessary to set forth the testimony of the McRaes on which the conviction of defendant was based. It is sufficient to note they testified they and defendant had been together prior to the robbery-murder of Quick; that shortly thereafter the three left the scene of the robbery-murder and traveled all night in Eddie's car to Washington, D.C.; and that, after the robbery-murder, each of the McRaes received money from defendant. In gist, their testimony pointed to defendant as the robberkiller and tended to minimize their own culpability. Under ...
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