State v. Brogden

• Decision Date: 02 July 1993
• Docket Number: No. 46A92,46A92
• Citation: 430 S.E.2d 905,334 N.C. 39
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Donald Rex BROGDEN.

Page 905

430 S.E.2d 905

334 N.C. 39

STATE of North Carolina v. Donald Rex BROGDEN.

No. 46A92.

Supreme Court of North Carolina.

July 2, 1993.

Michael F. Easley, Atty. Gen. by Steven F. Bryant, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was first tried capitally at the 8 August 1988 Criminal Session of Superior Court, Duplin County. The jury found defendant guilty of first-degree murder, based on both premeditation and deliberation and felony murder, and of robbery with a dangerous weapon. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000 (1988), the jury recommended the death sentence. On appeal, this Court found no error in the guilt phase of the trial but vacated the death sentence and remanded for a new capital sentencing proceeding. State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991). Following a second sentencing proceeding, the jury again recommended the death sentence.

Defendant contends, and we agree, that the trial court erred during jury selection by refusing to permit defendant to question any prospective juror whom the prosecutor challenged for cause on the basis of his or her views about capital punishment. The refusal apparently resulted from a misapprehension of the law and effected the excusal for cause of a prospective juror likely qualified to be seated as a juror. We thus hold that defendant is entitled to a new capital sentencing proceeding.

After the prosecutor challenged for cause, based on the venireperson's response to death qualification questions, the first venireperson examined in individual voir dire, defense counsel asked to examine the juror. The court responded:

All right, the Court is going to rule ... at the outset that it will not allow rehabilitation of a juror as it is, as the Supreme Court of North Carolina stated that such is a waste of valuable time if allowed by the Court. Objection is overruled. Exception.

The court elicited the statement that the venireperson would always vote for life no matter what the evidence, and then excused him for cause. Defense counsel asked that the court note a continuing request to examine the juror; in response, the court granted a continuing objection as to each venireperson excused for cause:

MR. HALL: Your Honor, would you note our continuing request to examine him?

THE COURT: Yes, I will. You will be given a continuing objection in each of these jurors because this is a ruling that the Court has made in accordance with it's [sic] understanding of the Supreme Court [of] North Carolina that it would accomplish nothing since there is [sic] no jurors in here that rehabilitation, you will just ask him well, can't you follow the judge's instruction and then after and say well, I guess I could. Well, then the district attorney would say then can't you do it and it would be back and forth and you would have the poor people so confused and you wouldn't know whether they were coming or going and out of human kindness and desire to move along and do the thing like it ought to be, I'm going to follow the Supreme Court as I understand it's [sic] rule, but you will get a continuing objection to each one of those cases where that comes up.

The court allowed sixteen challenges for cause on the grounds of the prospective jurors' responses to the death qualification questions posed by the prosecutor and the court. The court twice reiterated its ruling prohibiting any defense questioning following the prosecutor's death qualification "for cause" challenges, and ten times merely stated "exception to the defendant," acknowledging the vitality of defendant's continuing objection to the ruling as to each prospective juror excused for such cause. The court made an exception to its initial ruling that there would be no rehabilitation and allowed defendant to question one prospective juror challenged for cause by the State. It stated: "All right, I'm going to make an exception in this case. I'm going to let you examine him on this particular thing. Let's see, I want to get the other view. I want to be absolutely fair with this thing." The trial court subsequently denied that challenge for cause, and the State exercised a peremptory challenge.

The standard for determining whether a prospective juror may be excused for cause was announced in Witherspoon v. Illinois, in which the United States Supreme Court held that prospective jurors could not be excused for cause simply because they voiced general objections to capital punishment; however, they could be excused for cause if they expressed an unmistakable commitment to automatically vote against the death penalty, regardless of the facts and circumstances which might be presented. Witherspoon, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, reh'g denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968). "A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." Id. at 519, 88 S.Ct. at 1775, 20 L.Ed.2d at 783. In Wainwright v. Witt, the Supreme Court clarified Witherspoon and held that a juror cannot properly be excused for his views on capital punishment unless those views "would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)). The Court acknowledged that

[t]he state of this case law leaves trial courts with the difficult task of distinguishing between prospective jurors whose opposition to capital punishment will not allow them to apply the law or view the facts impartially and jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial.

....

... [W]hether or not a venireman might vote for death under certain personal standards, the State still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.

Id. at 421-22, 105 S.Ct. at 851, 83 L.Ed.2d at 850 (emphasis added; emphasis in original omitted). "[T]he quest is for jurors who will conscientiously apply the law and find the facts. That is what an 'impartial' jury consists of...." Id. at 423, 105 S.Ct. at 852, 83 L.Ed.2d at 851. In Adams v. Texas, the Court stated:

[T]he Constitution [does not] permit the exclusion of jurors from the penalty phase of a ... murder trial if ... they aver that they will honestly find the facts and answer the [capital sentencing] questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.

448 U.S. at 50, 100 S.Ct. at 2529, 65 L.Ed.2d at 593 (emphasis added). In Lockhart v. McCree, the Court said:

It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.

476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986) (emphasis added).

We have recognized that a prospective juror's bias may not always be "provable with unmistakable clarity [and,] [i]n such cases, reviewing courts must defer to the trial court's judgment concerning whether the prospective juror would be able to follow the law impartially." State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990).

[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made 'unmistakably clear'; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.

Witt, 469 U.S. at 424-26, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852.

Both the defendant and the State have the right to question prospective jurors about their views on capital punishment. E.g., State v. Wilson, 313 N.C. 516, 526, 330 S.E.2d 450, 458 (1985). The extent and manner of such an inquiry by counsel at voir dire, however, lies within the trial court's discretion. State v. Taylor, 332 N.C. 372, 390, 420 S.E.2d 414, 425 (1992). The ruling of the trial court will not be disturbed absent abuse of discretion. Wilson, 313 N.C. at 526, 330 S.E.2d at 458.

We have held that:

"When challenges for cause are supported by prospective juror's answers to questions propounded by the prosecutor and by the court, the court does not abuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow the defendant to question the juror challenged [about the same matter]."

State v. Hill, 331 N.C. 387, 403, 417 S.E.2d 765, 772 (1992) (quoting State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990)) (quoting State v. Oliver, 302 N.C. 28, 40, 274 S.E.2d 183, 191 (1981)), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684, reh'g denied, 507 U.S. 1046, 113 S.Ct. 1886, 123 L.Ed.2d 503 (1993).

The defendant is not allowed to rehabilitate a juror who has expressed unequivocal opposition...