State v. Britt
| Citation | 288 N.C. 699,220 S.E.2d 283 |
| Decision Date | 17 December 1975 |
| Docket Number | No. 9,9 |
| Parties | STATE of North Carolina v. James Edward (Jimmy) BRITT. |
| Court | United States State Supreme Court of North Carolina |
Moses & Diehl by Philip A. Diehl, Raeford, for defendant appellant.
Rufus L. Edmisten, Atty. Gen., James E. Magner, Jr., Asst. Atty. Gen., and Archie W. Anders, Associate Attorney, Raleigh, for the State of North Carolina.
Defendant contends the trial court erred in excusing for cause certain prospective jurors who indicated they could not return a verdict of guilty knowing such verdict would necessitate imposition of a death sentence.
We note initially that in his brief defendant names no specific juror he contends was improperly challenged for cause. He apparently challenges the phraseology of the questions propounded by the district attorney to prospective jurors McCall and McDonald. The district attorney asked these and other jurors whether they were 'opposed to it' (capital punishment) or 'felt it was necessary.' The initial responses of these jurors were rather equivocal. Nevertheless, despite the imprecise questions of the district attorney, we conclude that all jurors who were excused for cause, including jurors McCall and McDonald, eventually indicated, frequently only after further inquiry by the court, that they were irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence.
With respect to jury selection in capital cases, we have interpreted Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), to mean that veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction; but veniremen who are unwilling to consider all of the penalties provided by law and who are irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the trial may be challenged for cause on that ground. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974). In light of these principles, we hold that the prospective jurors here in question were properly excused for cause. Defendant's first assignment of error is overruled.
Even so, we again emphasize that counsel involved in the trial of capital cases, particularly prosecuting attorneys, when interrogating veniremen concerning their scruples and attitudes toward capital punishment, should employ questions which incorporate the terminology required by Witherspoon and Monk and insist on unequivocal answers. State v. Monk, supra.
This brings us to the question whether defendant was denied a fair trial by prejudicial conduct of the district attorney. A few of the alleged improprieties assigned as error are discussed below.
1. The prosecutor inquired whether or not defendant considered Carolyn Blackwell, the wife of the deceased, to be his girl friend. The following exchange then occurred before the jury:
'Q. (By the district attorney:) Isn't she your girl friend?
A. (By defendant:) Yes, sir.
Q. She was your girl friend on the 3rd of May and prior thereto; isn't that right?
A. Yes, sir.
Q. She's discussed this case with you in detail while you sat on death row for the past year; hadn't she?
A. No, sir.
Q. Huh?
A. No sir.
Q. She's been up there frequently and talked with you on death row about this case, after you were convicted the last time?
At this point the court directed the jury to retire to the jury room, and in its absence defense counsel moved for a mistrial on the ground that the foregoing questions were so prejudicial that a fair trial by this jury was no longer possible. The trial judge stated: The judge retired to chambers to discuss the matter with the district attorney and defense counsel. Upon returning to the courtroom the trial judge, with the consent of defense counsel, recalled the jury and instructed it that defendant previously had been convicted of first degree murder and sentenced to death but his conviction had been reversed by the Supreme Court of North Carolina so that the present trial was entirely new. The judge instructed the jury not to consider the prior trial and not to be influenced to any extent by defendant's prior conviction. Following such instruction defense counsel stated that he desired no further instructions and that his motion for mistrial was withdrawn. Subsequently, upon completion of the trial and during its charge to the jury, the court again instructed the jury to disregard defendant's prior trial and conviction, not to hold it against him, and to render their verdict solely upon new evidence offered at this particular trial.
2. In his argument to the jury the district attorney asserted that Clarence Blackwell, the deceased, had a right to defend himself in his own home. This evoked the following exchange:
'MR. DIEHL (defense counsel): OBJECTION, your Honor. He keeps referring to the man's right in his own home. Evidence is that he was separated from his wife for a long period of time. He goes over it and over it.
MR. BRITT (district attorney): It is his home.
3. During closing argument the district attorney said: There is no evidence inferential or otherwise, to support this argument.
4. During his closing argument the district attorney referred to the fact that Mrs. Blackwell was not called to testify for defendant. In doing so he stated that the reason for her failure to testify was 'because she hasn't got what it takes to perjure herself the way Jimmy Britt swore to you.' Defendant's objection to this statement was sustained, whereupon the district attorney Immediately asked again, 'Where is Carolyn?' At this point the trial judge instructed the jury not to consider the remarks about perjury.
5. During the redirect examination of David Blackwell, a State's witness and the son of the deceased, the district attorney repeatedly asked leading questions, to which defendant's objections were sustained. The trial judge stated that he considered the questions to be leading notwithstanding the tender age of the witness. Despite the court's admonitions not to lead the witness, the prosecutor continued to do so. After the court sustained defendant's objection to still another question as leading, the district attorney stated: 'It was meant to be.'
6. During further redirect examination of the witness Blackwell, and during his closing argument, the district attorney implied and stated that the possible inconsistencies in the witness's testimony could be attributed to the fact that he had been 'brainwashed' while visiting defendant during his stay in prison and during meetings arranged by Mrs. Blackwell with defendant's half-sister. There is no evidence in the record to support this statement. At one point during the recross examination of this witness, counsel for defendant asked whether anyone had told him to do anything but tell the truth. The objection of the district attorney was overruled and the witness answered in the negative. The district attorney retorted: 'Somebody told him something.'
7. During final argument the district attorney repeatedly referred to the knife used by the deceased as 'a little, old pocketknife' or a 'penknife.' The knife was not offered in evidence and its size is not shown by the record. Defendant's objections to such references to the knife were sustained.
Every person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941); State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620 (1965); State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951). It is the duty of both the court and the prosecuting attorney to see that this right is sustained. State v. Monk, supra; State v. Thompson, 278 N.C. 277, 179 S.E.2d 315 (1971); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954); State v. Correll, 229 N.C. 640, 50 S.E.2d 717...
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State v. Smith
...nor reasonable inference therefrom, to support such a contention and that he thus is entitled to a new trial. State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975). Ordinarily, defense counsel must object to allegedly improper arguments by the prosecution in order to preserve the is......
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State v. Cummings
...inflammatory. We have recognized that counsel must be allowed wide latitude in the argument of a hotly contested case. State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975). However, we have also stressed that "the jury's decision must be based solely on the evidence presented at trial and th......
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State v. Walls
...(1987). "[T]his Court has repeatedly noted the wide latitude allowed counsel in arguing hotly contested cases, e.g., State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, and it has found biblical arguments to fall within permissible margins more o......
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...in bad faith. We thus hold that the prosecutor's cross-examination did not deny defendant a fair trial. Cf. State v. Britt, 288 N.C. 699, 712-13, 220 S.E.2d 283, 292 (1975) (defendant denied a fair trial when the prosecutor placed before the jury "inadmissible and prejudicial matter," inclu......