State v. Boyd

• Decision Date: 06 May 1975
• Docket Number: No. 7,7
• Citation: 287 N.C. 131,214 S.E.2d 14
• Parties: STATE of North Carolina v. Johnny H. BOYD.
• Court: North Carolina Supreme Court

Page 14

214 S.E.2d 14

287 N.C. 131

STATE of North Carolina v. Johnny H. BOYD.

No. 7.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Robert C. Powell, Gastonia, for defendant appellant.

EXUM, Justice.

I

Defendant's first four assignments of error relate to the selection of the jury. He contends that the State should not have been permitted to question prospective jurors about their beliefs on capital punishment. The argument is without merit. We continue to believe as we said in State v. Crowder, 285 N.C. 42, 46, 203 S.E.2d 38, 41 (1974):

'In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment.'

See also G.S. § 15--176.3.

Defendant next says it was error to allow the State's challenges for cause of seven prospective jurors who stated that because of their personal opposition to capital punishment they could not under any circumstances return a verdict the consequences of which would be the imposition of the death sentence. Defendant argues that a jury deprived of such persons is 'conviction-prone' and biased in favor of the prosecution on the question of guilt. This argument has been consistently rejected by a majority of the United States Supreme Court, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and unanimously by this Court. State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975) and cases cited; State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975) and cases cited; State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968), cert. den., 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590 (1969). We adhere to our former rulings on this point.

Defendant contends that his challenge for cause of Juror Graeber should have been allowed. What transpired as revealed by the record follows (questions unless indicated otherwise are by defendant's counsel) 'Q: Mrs. Graeber, do you feel like Mr. Boyd must have done something to be here, ma'am? Honestly?

'A: Well, I don't think they just go out and arrest someone without cause or reason.

'Q: So you thing he must have done something in order to be here, committed some crime?

'A: I have a few mixed emotions about it.

'Q: You replied to the Solicitor's question about capital punishment--you replied that you had no scruples whatsoever--I thought by your answer that you might be prejudiced against him, and if you are, we'd like to know, of course.

'A: Well, I just feel very strongly for capital punishment, if the person, if it was proved of rape, murder, burglary.

'Q: And that would be without consideration of the circumstances of any particular case?

'A: I said if it was proved, by the evidence.

'Q: Just across the board.

'A: On rape, burglary, murder.

'Q: Let's go back to your feelings about Mr. Boyd and the fact that you say the police don't arrest somebody without reason. Do you feel that as he sits here, in your mind, he is innocent and will remain so until such time as the State proves beyond a reasonable doubt all the elements of the crimes charged against him?

'A: Yes, because he said so, and I usually take someone at their word until--

'Q: So, then, you can detach yourself to the point that you don't feel like he has done anything at the present time, is that right?

'A: I suppose so.

'Q: I don't mean to belabor it, but--

'A: I'm sorry, but I do have mixed emotions about it--I'm very sorry.

'Q: I'd like to challenge her for cause if it please the Court.

'COURT: Are you of the opinion that the police only arrest people who are guilty of something?

'A: No, sir, no, sir.

'COURT: And do you feel that just because a person is accused of a crime, they must be guilty of something or they wouldn't be here? Now, think about that.

'A: I have tried to think about it.

'COURT: Ma'am?

'A: I have tried to think about it, but I couldn't say the man is guilty until the circumstances proves it one hundred percent.

'COURT: That's what it's all about. As you see the defendant, now, the fact that he's been indicted, there's no evidence that he has committed any offense, is it?

'A: That's right.

'COURT: And before--so far as you're concerned, before you'll convict him of any crime, no matter how insignificant, you'd have to be satisfied beyond a reasonable doubt of all of the evidence necessary to convict him of that crime. Would you, or wouldn't you?

'A: I would have to be, yes.

'COURT: You want to question her any further?

'Q: Yes, sir. Now, Mrs. Graeber, you have heard, also, what has been said about the possible evidence arising on the offense of voluntary intoxication. Have my statements as to that prejudiced you in any way against the defendant?

'A: No, sir.

'Q: Are you prejudiced against the use of alcohol and narcotics to the extent that you could not follow the Court's charge, if the defense arises?

'A: No, sir.

'Q: You feel that after talking with the Judge and with me, that Mr. Boyd is innocent as he sits here, is that right, at the present time?

'A: Yes, sir.

'Q: You're sure of that?

'A: Yes, sir.

'Q: You're sort of smiling.

'COURT: Are you real sure, Mrs. Graeber?

'A: Yes, sir.

'COURT: If you serve on this jury, it will be one of the most important things that you do in your lifetime. I want you to be sure about your answer, and there can't be much equivocation one way or the other.

'A: Right.

'COURT: Do you feel that the defendant, as he sits beside his lawyer, that he is innocent and it's the question for the State to prove him guilty beyond a reasonable doubt before you will find him guilty of any offense?

'A: Yes, sir.

'Defense counsel then questioned Mrs. Wagoner and Mrs. Grier.

'The Court then stated: Let the record show that you made a challenge for cause which was denied and Mrs. Graeber is excused peremptorily, making your fourteenth challenge. What do you say about the others? EXCEPTION NO. 45.'

Later during the jury selection defendant challenged Juror Ferris for cause and Juror Blackburn peremptorily. Both challenges were denied. By exhausting his peremptory challenges and thereafter asserting 'his right to challenge peremptorily an additional juror' defendant preserved his exception to the denial of his challenge for cause of Juror Graeber. State v. Allred, 275 N.C. 554, 563, 169 S.E.2d 833, 838 (1969). Defendant urges that Juror Graeber was biased against him merely because he had been arrested and charged, and that she expressed some difficulty in applying the 'presumption of innocence' principle. While some of Mrs. Graeber's answers were equivocal, she stated positively: (1) that she believed in capital punishment if the crime 'was proved by the evidence'; (2) 'I couldn't say the man is guilty until the circumstances proves (sic) it one hundred percent'; and (3) that she would have to be satisfied of his guilt beyond a reasonable doubt. 'Each party to a trial is entitled to a fair and unbiased jury. Each may challenge for cause a juror who is prejudiced against him. A party's right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him.' State v. Peele, Supra, 274 N.C. at 113, 161 S.E.2d at 573 (1968). Here there is no showing of prejudice against defendant on the part of Juror Graeber. At most her answers reveal a fleeting quibble regarding the offect of defendant's having been arrested and formally charged. Judge Grist conscientiously pursued this point and her responses both to him and to further questions by defendant's counsel plainly sustained the implied finding by Judge Grist that she would require the State to prove defendant's guilt beyond a reasonable doubt. In State v. Allred, Supra, we found reversible error in the denial of defendant's challenge for cause of a juror where 'there was no basis for a finding, if such had been made, that (the juror) was acceptable as a disinterested and impartial juror.' 275 N.C. at 563, 169 S.E.2d at 838. Here, to the contrary, there is ample basis for such a finding. See State v. Watson, 281 N.C. 221, 227--28, 188 S.E.2d 289, 293 (1972); G.S. § 9--14.

Defendant's argument that he should have been allowed fourteen peremptory challenges for each capital charge against him, giving him twenty-eight such challenges in all is not persuasive and is contrary to the plain language of G.S. § 9--21(a): 'In all capital cases each defendant may challenge peremptorily without cause 14 jurors and no more.' General Statute § 9--21(b) provides, furthermore, that '(i)n all capital cases the State may challenge peremptorily without cause nine jurors for each defendant and no more.' It is clear that these statutes allot peremptory challenges to both the State and the defendant on the basis of the number of defendants and not the number of charges against any one defendant. The murder and burglary bills of indictment were properly consolidated, G.S. § 15--152; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Morrow, 262 N.C. 592, 138 S.E.2d 245 (1964), and once consolidated they became one case for the purpose of trial. The result for trial purposes is the same as if defendant had been tried simultaneously on several counts in one bill of indictment. State v. Alridge, 206 N.C. 850, 175 S.E. 191 (1934).

In Alridge three separate non-capital bills of indictment were returned against each of four defendants. The cases were consolidated without objection for trial. The defendants moved to be allowed 12 peremptory challenges apiece, or four challenges per bill of indictment. The governing statute as quoted in...