State v. Bock, 37

• Decision Date: 27 August 1975
• Docket Number: No. 37,37
• Citation: 288 N.C. 145,217 S.E.2d 513
• Parties: STATE of North Carolina v. Robert Gary BOCK, Jr.
• Court: North Carolina Supreme Court

Page 513

217 S.E.2d 513

288 N.C. 145

STATE of North Carolina v. Robert Gary BOCK, Jr.

No. 37.

Supreme Court of North Carolina.

Aug. 27, 1975.

Atty. Gen. James H. Carson, Jr., and Sidney S. Eagles, Jr., Asst. Atty. Gen., Raleigh, for the State.

W. S. Geimer, Fayetteville, for defendant appellant.

SHARP, Chief Justice:

Defendant's first and last assignments of error (Nos. 1 and 19) are based upon the premise that capital punishment is prohibited by U.S.Const. amend. VIII and amend. XIV, § 1. This is a contention which we have previously considered, and repeatedly rejected. Further discussion would be merely repetitious. See State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975).

Assignments of error Nos. 2 and 7 are specifically abandoned in appellant's brief.

Assignment of error No. 3 relates to the manner in which the jury was selected. During the process the State successfully challenged for cause six jurors, each of whom stated that he or she would not, under any circumstances, vote for a verdict which would require the imposition of the death sentence. Defendant contends that he was prejudiced not only by 'the exclusion of death-scrupled veniremen' from the panel but by their exclusion Before he had an opportunity to cross-examine them with reference to their views on capital punishment. Neither of these contentions can be sustained.

Numerous decisions of this Court have established that a juror may be successfully challenged for cause when, before the trial has begun, he is irreparably committed to vote against the penalty of death. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973); State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

G.S. § 9--21(b) provides in part: '. . . The State's challenge, peremptory or for cause, must be made before the juror is tendered to the defendant. . . .' The obvious purpose of this section is to protect defendants in criminal cases by giving them the last opportunity to challenge a venireman. As pointed out by Justice Branch in State v. Harris, 283 N.C. 46, 51, 194 S.E.2d 796, 799 (1973), 'G.S. § 9--21(b) provides a procedure for the orderly selection of jurors. Its effect is to give to the defendant the last opportunity to exercise his right of challenge when the State had all pertinent information concerning the fitness and competency of the juror before he was tendered to the defendant.' To allow defense counsel to cross-examine a juror who has informed the court and counsel that he is irrevocably committed to vote against any verdict which would result in a death sentence would thwart the protective purposes of G.S. § 9--21(b). Further it would be a purposeless waste of valuable court time--a waste which the jury selection plan approved in State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970) was designed to eliminate.

Defendant relies upon State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974) to sustain his position on assignment No. 3. This decision, however, has no application to the facts of this case. In Britt, the trial judge refused to allow both counsel for defendant and the solicitor for the State to inquire into the moral or religious scruples, beliefs, and attitudes of the prospective jurors concerning capital punishment. He also ruled that no mention was to be made in the jury's presence of the fact that they were trying a capital case or that the death penalty might be imposed upon their verdict. For this error we ordered a new trial. The decision in Britt established the right of both the solicitor and defense counsel to examine any prospective juror Tendered to him for Voir dire with reference to his attitude toward capital punishment. The defendant in this case was not denied that right. On the contrary, as in State v. Perry, supra, 'the method of selection offered the defendant full opportunity to exercise all his constitutional rights. The panel selected did not contain any juror to which he had objection. He fails to allege that he had exhausted his peremptory challenges.' Id., 277 N.C. at 177--178, 176 S.E.2d at 731. Assignment of error No. 3 is overruled.

Assignment of error No. 4 challenges the admissibility in evidence of five photographs of Miss Stewart's body in different positions as it lay in the sandpit area clad only in a sweater pulled above her breasts. Three of the pictures showed, from different camera angles, the tire tracks on her left thigh; all showed some of the wounds which had been inflicted upon her. These photographs were relevant and material; they illustrated the testimony of Billy Shaw, the deer hunter, who came upon the body on the morning of 23 November 1973, and Officer Cockman who arrived at the scene shortly afterwards. The jury was properly instructed that the photographs were admitted for the sole purpose of illustrating the testimony of the witnesses and not as substantive evidence. 'The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated as a correct portrayal of conditions observed by and related by the witness who uses the photograph to illustrate his testimony.' State v. Atkinson, 275 N.C. 288, 311, 167 S.E.2d 241, 255 (1969). See State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); 2 Strong's N.C. Index 2d, Criminal Law § 42, 43 (1967); 1 Stansbury's North Carolina Evidence § 34 (Brandis Rev. 1973). Assignment of error No. 4 is without merit.

Assignments of error Nos. 8 and 12 are directed to the court's 'failure to sustain defendant's motion for nonsuit, particularly . . . as to the charge of murder in the first degree.' In his brief defendant says that these assignments present the crucial question 'whether the evidence supports a finding by the jury that the killing was done with premeditation and deliberation.' In his argument under assignment No. 13 defendant concedes that 'he probably killed deceased.' All the evidence, albeit circumstantial, leads to that conclusion. Indeed, no other legitimate deduction arises.

As an argument that the evidence will not support a finding that the killing was done with premeditation and deliberation defendant says: 'The crucial facts and circumstances immediately attendant to the death of the deceased will remain unknown. . . . The conduct of the appellant before and after the homicide is totally inconsistent with first degree murder. . . .' The evidence does not support this conclusion.

In this jurisdiction it is well established that 'where one forms a purpose to take the life of another and weighs this purpose in his mind long enough to form a fixed design or determination to kill at a subsequent time, no matter how soon or how late, and pursuant thereto kills, this would be a killing with premeditation and deliberation and would be murder in the first degree.' State v. Hart, 226 N.C. 200, 202, 37 S.E.2d 487, 488 (1946), State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975).

As we said in State v. Van Landingham, 283 N.C. 589, 599, 197 S.E.2d 539, 545 (973): 'Ordinarily it is not possible to prove premeditation and deliberation by direct evidence. These facts must be established by proof of circumstances from which they may be inferred. Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of defendant before and after the killing; the use of grossly excessive force, or the dealing of lethal blows after the deceased has been felled.'

Defendant's statement to Detective Cockman and his testimony at the trial negate adequate provocation for the killing. After Miss Stewart and defendant had engaged in sexual relations for the second time she began 'putting pressure' on him to pay her 'for services rendered.' He had no money--although he had represented himself to her as a well-to-do landowner--and an argument ensued. 'She went to slap him and he slapped her instead and knocked her to the ground.' He returned to the car and then saw her coming at him with his open knife, which weighed two pounds. He says that he grabbed her arm and remembers nothing thereafter until he was driving from the area--alone in her car, which was also carrying his knife. Defendant, a man over six feet tall, weighing 195 pounds, testified that Miss Stewart did not harm or hurt him in any way; that her height was about to his eye level, and that he did not believe he would have had any difficulty in defending himself against her.

Obviously, by any standards, Miss Stewart's death was an unnecessary and senseless killing, and the 55 stab wounds, 'some quite deep,' constituted 'grossly excessive force.' Furthermore, force which would have been lethal had Miss Stewart not already been dead was applied when the automobile was driven over her felled body. We hold that the evidence was sufficient to take the issue of defendant's guilt of first-degree murder to the jury. State v. Van Landingham, supra, and cases cited therein.

In his 13th assignment of error defendant asserts that the trial judge erred in refusing to give the jury the following requested instruction: 'Under certain circumstances, the killing of another is legally excusable. Defendant has offered evidence which tends to show that he acted in self-defense. The right to kill in self-defense is based on the necessity, real or apparent, to kill to save one's self from death or...