State v. Bryant

• Decision Date: 11 October 1972
• Docket Number: No. 28,28
• Citation: 191 S.E.2d 745,282 N.C. 92
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Delmos Eugene BRYANT et al.

Page 745

191 S.E.2d 745

282 N.C. 92

STATE of North Carolina v. Delmos Eugene BRYANT et al.

No. 28.

Supreme Court of North Carolina.

Oct. 11, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Roger W. Smith, of Tharrington & Smith, Raleigh, for defendant White.

William W. Merriman, III, of Liles & Merriman, Raleigh, for defendant Holloman.

John H. Parker, of Sanford, Cannon, Adams & McCullough, Raleigh, for defendant Bryant.

BRANCH, Justice.

Defendants' first Assignment of Error is stated as follows: 'Where a criminal defendant is not afforded a preliminary hearing and the Grand Jury returns a true bill of indictment based upon hearsay evidence alone, should the indictment be dismissed?'

A preliminary hearing is not an essential prerequisite to the finding of a true bill of indictment in this State, and the absence of a preliminary hearing is not ground for quashal of an indictment. State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; State v. Hargett, 255 N.C. 412, 121 S.E.2d 589; State v. Hackney, 240 N.C. 230, 81 S.E.2d 778.

It is also recognized in this State that an indictment is not subject to being quashed on the ground that the testimony before the Grand Jury was based on hearsay. State v. Williams, 279 N.C. 663, 185 S.E.2d 174; State v. Wall, 273 N.C. 130, 159 S.E.2d 317; State v. Hartsell, supra; State v. Turner, 268 N.C. 225, 150 S.E.2d 406.

A defect in a bill of indictment can be taken advantage of only by a motion to quash or by a motion in arrest of judgment. State v. Walker, 249 N.C. 35, 105 S.E.2d 101; State v. Faulkner, 241 N.C. 609, 86 S.E.2d 81. Even conceding that the proper motion was made by each defendant in due time, this assignment of error cannot be sustained.

Defendants concede that the failure to furnish a preliminary hearing is not a ground for quashal of the bill of indictment. They likewise concede that the use of hearsay evidence before the grand jury is not ground for quashal. Defendants offer, without authority, the ingenious argument that the Sum of the two results in such denial of due process that the indictment must be quashed. We do not agree.

Defendant Bryant contends that the trial judge erred in sustaining the solicitor's objection to certain questions during the examination of prospective jurors.

The portion of the record pertinent to decision of this question is as follows:

MR. PARKER: Members of the jury, I will ask you several questions as a group. My questions may require your raising your hands. As you heard the Judge's statement regarding reasonable doubt, each of you as members of the Jury, know that you have to return a verdict of not guilty or guilty. If you heard the evidence as presented here in this case and you thought that Delmos was probably guilty, and if you were not convinced absolutely that he was not guilty and you just thought he was probably guilty, will you be able to return a verdict of not guilty?

Objection sustained.

Exception by defendant Bryant.

Defendant Bryant's Exception No. 5.

THE COURT: Sustained as to phraseology. It is not in keeping with the rules and the laws.

MR. PARKER: Members of the jury, would it bother or weigh on your conscience to render a verdict of not guilty if you thought the defendant was probably guilty?

Objection sustained.

Exception by defendant Bryant.

Defendant Bryant's Exception No. 6.

The Court, or any party to a civil or criminal action, has the right to inquire into the fitness or competency of a juror to determine whether grounds to challenge for cause exist and to enable counsel to intelligently exercise the peremptory challenges allowed by statute. The right to challenge is not given so as to allow a party to pick a jury, but so that he may obtain an impartial jury. G.S. § 9--15(a); State v. Allred, 275 N.C. 554, 169 S.E.2d 833.

In this jurisdiction counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision. The regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. Karpf v. Adams and Runyan v. Adams, 237 N.C. 106, 74 S.E.2d 325. The overwhelming majority of the states follow this rule. See 99 A.L.R.2d 7, Anno. Jury--Voir Dire--Hypothetical Question, for a full discussion and citation of authority.

A hypothetical question is improper when it is faulty in form so as to be ambiguous and confusing, or when it is phrased so as to contain an incorrect or inadequate statement of the law. State v. Faciane, 233 La. 1028, 99 So.2d 333; State v. Foster, 150 La. 971, 91 So. 411; Cadena v. State, 94 Tex.Cr.R. 436, 251 S.W. 225; Harrison v. State, 80 Tex.Cr.R. 457, 191 S.W. 548

Grizzell v. State, 164 Tex.Cr.R. 362 at 369, 298 S.W.2d 816, at 821, is factually similar to instant case. There the trial judge excluded the following question: '(If) you thought the defendant might be guilty but if you believed then that the State had failed to show you by its evidence beyond a reasonable doubt the defendant was guilty, would you return a verdict of not guilt?' In affirming the action of the trial judge, the reviewing court, Inter alia, pointed out that the jury had been informed that the State had the burden of proving the defendant guilty beyond a reasonable doubt and stated that the trial judge 'must be allowed some discretion in limiting the examination of prospective jurors or some trials would never terminate.'

In instant case Judge Braswell had informed the jury that the burden of proof was on the State to prove defendant guilty beyond a reasonable doubt prior to the examination of the jurors by defense counsel. It is noted that in sustaining the solicitor's objection to the above quoted questions the trial judge stated that the objection was sustained as to phraseology. Manifestly, the question was confusing and contained an incorrect and inadequate statement of the law. Nothing else appears in the record concerning defendant's inquiry as to the fitness of jurors, and we must therefore assume that defendants in all other respects were allowed to fully inquire into the fitness and competency of the jurors.

No abuse of discretion is shown, and this assignment of error is overruled.

Defendant White objected to the introduction of a written statement made by witness James Henry Williams after Williams had testified. He first argues that the written statement did not corroborate the prior testimony of the witness. To sustain this argument he points to certain variances between the actual testimony of Williams and the written statement made by Williams, to wit:

'(1) Williams' TESTIMONY was that 'Holloman told White, 'Delmos shot the man'. Sherman said that he heard the shot.' His STATEMENT WAS: 'Delmos told Sherman the gun went off and Sherman said 'I heard the shot back there." (2) TESTIMONY: 'Holloman said he was going somewhere and get a gun. Sherman White and Steve Holloman left in the car.' STATEMENT: 'I heard Steve tell Sherman to carry him over to his house to get a pistol.' (3) TESTIMONY: 'We counted the money and Steve Holoman said 'to think we killed a nigger for.$7.00." STATEMENT: 'Steve told Delmos and Sherman to think they would kill a nigger for eight dollars."

The evidence tending to corroborate a witness is admissible for that purpose, State v. Lippard, 223 N.C. 167, 25 S.E.2d 594, and slight variances in the corroborative testimony do not render it inadmissible. State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84.

Clearly, there were no material variances between the testimony of Williams and his written statement.

Defendant White further argues that the written statement was improperly admitted because the court failed to give a limiting instruction when it was admitted. Defendant failed, however, to request a limiting instruction when the corroborative written statement was admitted.

When a defendant does not specifically request an instruction restricting the purpose of corroborative evidence, its admission is not assignable as error. Rule 21, North Carolina Supreme Court Rules; State v. Corl, 250 N.C. 252, 108 S.E.2d 608; State v. Lee, 248 N.C. 327, 103 S.E.2d 295; State v. Walker, 226 N.C. 458, 38 S.E.2d 531.

White also contends the corroborative evidence was improperly admitted because he was deprived of his right to cross-examine Williams concerning the written statement.

Ordinarily, as here, corroborative evidence is introduced after the witness has testified. The rule requiring that there can be no material variance between the witness' testimony and the evidence offered in corroboration diminishes the necessity of recross-examination of the witness. Defendant's counsel must have recognized the futility of further cross-examination of Williams, for he failed to request permission to recall him.

We find no error in the admission of the corroborative evidence.

Defendant White next asserts that he was prejudiced by certain testimony elicited from the witness Iredell Staton concerning an article printed in the Raleigh Times and the admissions relating thereto by defendant Holloman. The court sustained White's objection, stating: 'It is not competent against him' and 'Don't consider this together. It is competent only as to the defendant Steve Holloman.'

White is not in a position to complain. His objection to the evidence was sustained, and the court properly instructed the jury not to consider the challenged evidence as to him. The law presumes the jury followed the judge's instructions. State v. Long, 280 N.C. 633, 187 S.E.2d 47; State v. Moore, 276 N.C. 142, 171 S.E.2d 453.

There is no merit to this assignment of error.

All defendants contend that the trial judge improperly defined 'reasonable doubt' as a 'possibility of innocence.' In its charge the court defined reasonable doubt as follows:

'When I speak of reasonable doubt I mean...