State v. Bernard

• Decision Date: 07 October 1975
• Docket Number: No. 5,5
• Citation: State v. Bernard, 218 S.E.2d 327, 288 N.C. 321 (N.C. 1975)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Larry BERNARD.

Page 327

218 S.E.2d 327

288 N.C. 321

STATE of North Carolina v. Larry BERNARD.

No. 5.

Supreme Court of North Carolina.

Oct. 7, 1975.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. E. M. Speas, Jr., and Associate Attorney Joan H. Byers, Raleigh, for the State.

Mathias P. Hunoval, Wilmington, for defendant appellant.

BRANCH, Justice.

Defendant's principal assignment of error is that his constitutional rights were violated by the exclusion of jurors who voiced only general objections to the death penalty. He relies upon the rule set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. In Witherspoon, the jury was entrusted with two responsibilities: (1) to determine whether defendant was guilty or innocent and (2) if found guilty, to determine whether his sentence would be imprisonment or death. The prosecution eliminated nearly one-half of the venire by successfully challenging any venireman who expressed any qualms about capital punishment. The jury found defendant guilty and fixed his penalty at death. Thereafter the Court dismissed his petition for Habeas corpus and the Supreme Court of Illinois affirmed. The Supreme Court allowed Certiorari and in reversing the Supreme Court of Illinois held that a sentence of death could not be carried out if the jury which imposed or recommended it was chosen by excluding veniremen for cause who simply voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. However, the Court made it clear that the prosecution Could challenge jurors who state that their feelings concerning capital punishment would prevent them from making an impartial decision as to defendant's guilt and that the prosecution could challenge for cause any venireman who said that he could never vote to impose the death penalty or would refuse to consider its imposition in the case before him.

We consider briefly the Voir dire of the prospective jurors whose exclusion from the jury panel was challenged by the defendant.

Prospective juror Corbett stated that she would automatically vote against the imposition of the death penalty regardless of the evidence. Prospective juror Dobson stated that he would vote against the imposition of capital punishment without regard to the evidence. It seems clear that the statements of both these jurors disclose that neither could make an impartial decision as to defendant's guilt and that they would refuse to consider the death penalty regardless of what the evidence might disclose. These jurors were properly excluded for cause.

The concluding portion of the examination of prospective juror Durant was as follows:

Q. MRS. DURANT, DO YOU HAVE ANY RELIGIOUS OR MORAL SCRUPLES OR BELIEFS AGAINST CAPITAL PUNISHMENT?

A. I DON'T BELIEVE IN IT.

Q. WHAT YOU ARE TELLING ME IS THAT UNDER NO CIRCUMSTANCES WOULD YOU VOTE TO IMPOSE CAPITAL PUNISHMENT REGARDLESS OF WHAT THE EVIDENCE IS?

A. NO.

MR. COBB: I CHALLENGE HER FOR CAUSE.

THE COURT: THANK YOU, MRS. DURANT, I'LL LET YOU STEP ASIDE FOR THAT CASE.

The pertinent portion of the Voir dire examination of prospective juror Smith disclosed the following:

Q. ARE YOU TELLING ME THAT YOU WOULD OR WOULD NOT VOTE TO RETURN A VERDICT OF GUILTY IN A CAPITAL CASE IF YOU ARE SATISFIED BEYOND A REASONABLE DOUBT HE WAS GUILTY? WOULD YOU VOTE TO RETURN A VERDICT OF GUILTY WHICH WOULD MEAN TO GIVE A PERSON THE DEATH SENTENCE OR NOT?

A. NO.

Q. SO REGARDLESS OF THE EVIDENCE YOU WOULD NOT VOTE TO CONVICT SOMEBODY IF IT WOULD MEAN THE IMPOSITION OF A DEATH SENTENCE?

A. NO.

The difficulty in deciding whether jurors Durant and Smith were improperly excluded from the jury panel lies in interpreting the record. The jurors' answers on Voir dire seem equivocal when only isolated portions of the record are examined; however, when considered contextually, the responses to the rather awkwardly phrased questions leave little doubt that the prospective jurors Durant and Smith expressed attitudes toward the death penalty which required their exclusion from the jury panel. The judge clearly interpreted the answers to mean that regardless of the evidence neither juror would vote to convict if conviction meant imposition of the death penalty. More importantly, defense counsel must have interpreted the answers in the same manner since at trial he sought no clarification and interposed no objection to the trial judge's action in excusing the prospective jurors. We, therefore, conclude that prospective jurors Smith and Durant were properly excluded for cause.

We quote a portion of the Voir dire examination of prospective juror gantt:

Q. DO YOU HAVE ANY RELIGIOUS OR MORAL SCRUPLES OR BELIEFS AGAINST CAPITAL PUNISHMENT?

A. WELL, I DON'T BELIEVE IN THE DEATH PENALTY, NO.

Q. SIR?

A. I DON'T BELIEVE IN THE DEATH PENALTY, NO.

Q. IT WOULD BE IMPOSSIBLE REGARDLESS OF THE EVIDENCE FOR US TO PUT ENOUGH EVIDENCE IN THERE TO SATISFY YOU TO BRING IN A VERDICT OF GUILTY IF IT MEANT THE IMPOSITION OF THE DEATH PENALTY, IS THAT RIGHT?

An unequivocal answer to the final question asked by the solicitor would have determined prospective juror Gantt's competence to serve on the panel so far as the Witherspoon rule might apply. However, this record discloses no answer to the question and we are of the opinion that this juror was erroneously exclused for cause. The trial judge also erred by excusing the prospective juror Howell who said that he Thought he would automatically vote against the imposition of the death penalty regardless of the evidence.

We are thus brought to the question of whether the exclusion of prospective jurors Gantt and Howell for cause because of their attitude toward the death penalty resulted in error so prejudicial as to warrant a new trial. We considered a similar question in the recent case of State v. Monk, 286 N.C. 509, 212 S.E.2d 125. There after finding that a challenge for cause was erroneously allowed when the prospective juror only expressed general reservations concerning the death penalty, this Court stated:

Even so, when the mandates of Witherspoon are followed in the selection of other jurors, as here, 'the erroneous allowance of an improper challenge for cause does not entitle the adverse party to a new trial, so long as only those who are competent and qualified to serve are actually empaneled upon the jury which tried his case.' State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), Rev'd on other grounds, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971). A defendant has no 'vested right to a particular juror.' State v. Vann, 162 N.C. 534, 77 S.E. 295 (1913). We adhere to this view. Accord, Bell v. Patterson, 402 F.2d 394 (10th Cir. 1968), Cert. denied, 403 U.S. 955, 91 S.Ct. 2279, 29 L.Ed.2d 865 (1971); State v. Conyers, 58 N.J. 123, 275 A.2d 721 (1971). Unpersuasive decisions contra include Marion v. Beto, 434 F.2d 29 (5th Cir. 1970), Cert. denied, 402 U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 646 (1971); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970); People v. Washington, 71 Cal.2d 1170, 81 Cal.Rptr. 5, 459 P.2d 259 (1969). When no systematic exclusion is shown, defendant's right is only to Reject a juror prejudiced against him; he has no right to Select one prejudiced in his favor. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973), Cert. denied, 414 U.S. 1132, 94 S.Ct. 873, 38 L.Ed.2d 757 (1974); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968), Cert. denied, 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590 (1969); State v. Vann, supra. Thus the improper exclusion of Mrs. Lewis was not prejudicial and does not necessitate a new trial. Defendant's first assignment is overruled.

Initially it must be borne in mind that the case before us differs from Witherspoon in that the Witherspoon jury was called upon to decide both the issue of the defendant's guilt and whether if guilty the punishment would be death or imprisonment. Here the sole function of the jury was to decide whether defendant was guilty or innocent. A more compelling and convincing distinction between Witherspoon and the case before us for decision lies in the fact that in Witherspoon there was a systematic exclusion of all veniremen who opposed capital punishment by the intentional application of an improper standard. Such action does not appear in the record of the case before us. Finally, we note that defendant did not exhaust his peremptory challenges; nor did the State exhaust the peremptory challenges allotted to it. This is strong evidence that no juror was impaneled who was prejudiced against defendant. In fact, this record does not disclose a vestige of evidence that a juror was impaneled who was not qualified and competent to serve. For the reasons stated, this assignment of error is overruled.

We again note that many of the problems growing out of prospective jurors' attitudes toward the death penalty could be avoided if district attorneys would...