State v. Bowden

• Decision Date: 05 October 1976
• Docket Number: No. 6,6
• Citation: 290 N.C. 702,228 S.E.2d 414
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bobby E. BOWDEN.

Page 414

228 S.E.2d 414

290 N.C. 702

STATE of North Carolina v. Bobby E. BOWDEN.

No. 6.

Supreme Court of North Carolina.

Oct. 5, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Elizabeth C. Bunting, Raleigh, for the State.

Charles H. Burgardt, Fayetteville, for defendant-apppellant.

COPELAND, Justice.

During the jury selection process, defendant contends the court erred in allowing the district attorney to challenge peremptorily juror Christa E. Arnold after the district attorney had passed her as a juror.

On the first day of the trial, this juror was examined at length by counsel for the defendant and the district attorney.

From the outset, it should be noted that Miss Arnold was of German ancestry and had difficulty speaking and understanding the English language. When asked by the district attorney if she could note to convict knowing that the penalty would be death, she responded affirmatively and thereupon was tendered by the prosecution. Under questioning by defense counsel, Miss Arnold indicated that she could not follow the judges instructions if they conflicted with her personal beliefs on capital punishment but later replied that she would carry out the instructions of the court.

On the next day, when Miss Arnold was examined further by the court, out of the presence of the other jurors, she again equivocated on the question of her ability to follow the judge's instructions, reversing her position twice. She first stated that she could not 'pass a death sentence on anyone,' but when the judge sought more details, replied that if she believed a person was guilty of murder beyond a reasonable doubt, she could vote for a verdict of guilty knowing that the law required a sentence of death. At the request of the district attorney before impanelment, the court permitted her to be challenged peremptorily.

General Statutes 9--21(b) provides in pertinent part that:

'The State's challenge, peremptory or for cause, must be made before the juror is tendered to the defendant.'

Justice Huskins, speaking for our Court on the problem that here concerns us in State v. McKenna, 289 N.C. 668, 224 S.E.2d 537 (1976), determined that General Statutes 9--21(b) 'does not deprive the trial judge of his power to closely regulate and supervise the selection of the jury to the end that both the defendant and the state may receive a fair trial before an impartial jury.' McKenna, supra, at 679, 224 S.E.2d at 545. Nothing in G.S. 9--21(b) limits the trial court's discretion to allow the State, before the jury is impaneled, to challenge either peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant. State v. McKenna, supra; See State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975).

When the district attorney passed the juror, she had made no inconsistent statements. It was only later under questioning by the defense attorney and the trial judge that contradictions became apparent. Certainly, under the circumstances, the trial judge did not abuse his discretion in allowing the district attorney's motion. The trial court has a duty to insure the continued as well as the intitial competency of jurors. See State v. McKenna, supra; State v. Waddell, supra. This assignment of error is without merit and overruled.

Under Assignment of Error No. 2 the defendant argues that the court erred in refusing to grant defendant's motion to produce documents relating to the offer of a reward.

G.S. 15A--802 of the Criminal Procedure Act governs motions of this type and provides that the subpoena 'must be issued and served in the manner provided in Rule 45 of the Rules of Civil Procedure, G.S. 1A--1.'

Apparently while the jury was being selected, a subpoena was issued on 15 December 1975 by the Clerk of Superior Court of Cumberland County and served on the Southland Corporation, the owner of the Seven-Eleven, on 16 December 1975. At a Voir dire examination of Mr. Khoeler, District Manager of Southland Corporation, conducted on 16 December 1975, Mr. Khoeler indicated that the Southland Corporation had offered a $10,000 reward for information leading to the arrest and conviction of any individual involved in the Seven-Eleven Store robbery on 7 August 1975. He disclosed that the reward was being handled by the Texas office of the Southland Corporation. Mr. Khoeler testified that two people, whose names he did not recall, had come to his office about the reward and that he advised each of them to talk to the Sheriff's Department and then submit a written claim for the reward to the Southland Corporation in Dallas, Texas. Incidentally, this subpoena does not appear to comply with Rule 45, supra, in that neither the caption of the case nor the name of the party who requested the subpoena appears on the subpoena.

Defendant sought these documents after the jury selection process had commenced. The defendant was indicted on 2 September 1975 and arraignment and jury selection took place on 15 and 16 December 1975, some three months later. In the interim period, defendant had ample time to request and serve a subpoena duces tecum which he failed to do. Certainly the trial judge was not required to delay the trial until documents or witnesses could come from Texas.

Assuming that counsel for the defendant had complied with Rule 45 and had served his subpoena duces tecum earlier, the denial of his motion did not prejudice his trial. Defense counsel contends that he desired these documents to assist him in cross-examining State's witnesses, Clarence Hilliard and Janice Whitten. Apparently, he seeks to show that these witnesses came forward with evidence merely because the reward was offered. The record is clear that Clarence Hilliard and Janice Whitten reported to the Law Enforcement Center on the day of the murders and robbery that they observed two black males leaving the Seven-Eleven Store. Nothing in the record indicates that they knew about the reward money at that time.

If defense counsel wished to know whether any of the State's witnesses had been promised or received a reward, he could have elicited this information on cross-examination. No such inquiry was directed to Clarence Hilliard or Janice Whitten. Martha Ann Mack was asked about the reward money and stated that she had not made arrangements to collect a portion of the reward. Geraldine Parker on cross-examination indicated that she knew of the reward from the defendant before she went to the Police Station and that she had applied for the reward. The defendant had the benefit of cross-examination as to these witnesses and the jury was thus apprised of the existence of the reward offer. In Judge McKinnon's charge to the jury he instructed that the matter of a reward was 'a circumstance that you may consider as it may tend to show any interest on the part of a witness in the outcome of the case . . .' No prejudice to the defendant appears and the assignment of error is overruled.

Next the defendant contends in Assignment of Error Nos. 3, 4, and 6, that the court erred in allowing the co-defendant Gregory Cousin to appear in person in the courtroom and be identified by witnesses Clarence Hilliard and Janice Whitten.

The trial judge at a prior term separated the cases of Cousin and the defendant for the purpose of trial. On the morning of 19 December 1975, the district attorney had Gregory Cousin brought into the courtroom to which counsel for the defendant objected. Defendant takes the position that the appearance of co-defendant Gregory Cousin in the courtroom during the course of defendant's trial for the purpose of identification, violated his due process rights under the Fourteenth Amendment of the United States Constitution. For this proposition, he cites no other authority. Defendant argues that to permit co-defendant Cousin, without adequate notice, to be identified by eyewitnesses in defendant's separate trial places an unconstitutional burden upon the defendant to defend against the validity of the in-court identification of the co-defendant. The defendant says that the identification of Cousin was harmful error because it tended to make defendant look guilty by association.

The argument is novel but we find no merit in it. As noted by Judge McKinnon in denying defendant's motion, 'if this man (Cousin) were free in the community, he could be here by subpoena; if he were in prison, he could be here by appropriate court order, and for the purposes stated, . . . (his presence) is neither (a) legal surprise or impropriety. . . .'

In addition, the defendants could have been tried jointly in which case co-defendant Cousin would necessarily have been present and the in-court identification of him unquestionably permissible. To accept defendant's reasoning would be to conclude that joint trials were unconstitutional. This, of course, is not the case. See State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976).

In the Voir dire examinations of Clarence Hilliard and Janice Whitten no evidence was offered contradicting Hilliard's or Whitten's ability to identify Cousin and Judge McKinnon was fully justified in allowing the in-court identifications. The identification of cousin by witnesses Hilliard and Whitten tended to corroborate their identification of the defendant, as the witnesses observed both defendants at substantially the same time and under similar circumstances.

We find no merit in these assignments of error and they are overruled.

The defendant contends under Assignment of Error No. 5 that the court erred in permitting State's witness Clarence Hilliard to testify as to what the victim, Larry Lovett, said in the Seven-Eleven Store.

The defendant argues that for this testimony to be admissible it must fall within the dying declaration exception to the hearsay rule.

G.S. 8--51.1 (Cum.Supp.1975) provides as follows:

'The dying declarations of a deceased person regarding the cause or circumstances of his...