State v. Chavis
| Decision Date | 18 December 1974 |
| Docket Number | No. 745SC436,745SC436 |
| Citation | 24 N.C.App. 148,210 S.E.2d 555 |
| Parties | STATE of North Carolina v. Benjamin CHAVIS et al. |
| Court | North Carolina Court of Appeals |
Atty. Gen. James H. Carson, Jr. by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.
Mathias P. Hunoval, Wilmington, for the defendant Shephard.
Chambers, Stein, Ferguson & Lanning by James E. Ferguson, II, Charlotte, for the other nine defendants.
Defendants first argue their assignment of error number IX. This assignment of error is addressed to the denial of their motion to have the jurors sequestered and to have each prospective juror examined on Voir dire outside the presence of the selected jurors and prospective jurors.
The record on appeal discloses that counsel filed such a motion in writing with Judge James at the 5 June 1972 Session. No affidavits or exhibits reflecting adverse pretrial publicity are attached to the motion. The record on appeal discloses that the motion was denied by Judge James at the 5 June 1972 Session sometime before a continuance was ordered because of the illness of the Assistant District Attorney. Counsel's effort to assign error to the ruling made by Judge James is ineffective because Judge Martin was free to exercise his discretion upon the question of sequestering the jurors in the trial over which he presided, irrespective of how Judge James ruled upon the question in the proceedings over which he presided.
In the trial proceedings from which this appeal is perfected, the index to the record on appeal, as prepared by defense counsel, does not indicate that a written motion to sequester the jurors was filed with Judge Martin. However, this assignment of error (number IX) also refers to exception numbers 36, 429, 462, 505, and 506.
Exception number 36 is taken to the denial of an oral motion made by defendants as follows:
Counsel's statement that the charges against these defendants had been the subject of widespread publicity throughout the State of North Carolina is mere allegation or, at best, a conclusion by counsel. The statement does not suggest the type of publicity, nor does it suggest how any such publicity might be prejudicial to defendants. There were no affidavits or exhibits presented to the court to establish a significant possibility that pretrial publicity had exposed the jurors to potentially prejudicial material. The trial judge in these cases was not a resident of the area in which the trial was held. He resided in High Point, Guilford County, North Carolina, which is some one hundred and seventy-five miles from the scene of the alleged offenses. We do not suggest that a trial judge is required to take judicial notice of pretrial publicity when he is a resident of the area in which an offense occurs. We merely point out that if defendants were genuinely concerned that pretrial publicity had exposed the jurors to potentially prejudicial material, they should have presented samples of such publicity to the trial judge for his consideration. The motion was addressed to the sound discretion of the trial judge. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721. No abuse of discretion has been shown in its denial.
Exception number 429 is taken to the denial of an oral motion to sequester the jurors made by defendants while the District Attorney was examining a prospective juror as follows:
'Q. Let me ask you this. Have you heard or read anything with regard to any of these defendants in connection with these particular charges?
A. No, not these particular charges, no.
Q. And as a result of anything that you have read or heard have you formed any impression since you don't know anything that has gone on and you only have what you have read or heard to rely on have you formed any impression about any particular or any of these defendants?
A. I have formed an opinion as to the character of one of the defendants.
Q. You have?
A. Yes, sir. That is as a result of what I have read. It is not the result of any other source of information. Just what I have read.
Q. As a result of that impression you have of that particular defendant, do you think it would have any bearing at all in what your verdict might be in this case on the basis of the evidence that will be presented here?
A. If I had a difficult time in reaching a verdict it just might possibly help me to in reaching a verdict, maybe, just might possibly. I am saying that the impression I have is an unfavorable one toward the defendant. I don't know the defendant personally. I have seen his picture.
Q. You have never seen him personally?
A. No.
Clearly this prospective juror had not been influenced by pretrial publicity concerning the charges for which defendants were on trial. Although the juror stated that he had formed an opinion as to the character of one of the defendants, he stated that he had not heard or read anything about these particular charges. He did not state what had influenced him to form an opinion, what the opinion was, or of which defendant he had formed an opinion. Clearly the examination of this prospective juror did not disclose a situation in which there had been pretrial publicity concerning these charges which would expose the jurors to potentially prejudicial material.
Exception number 462 is taken to the denial of an oral motion to sequester the jurors made by defendants while the District Attorney was examining a prospective juror as follows:
'Q. Do you realize that anyone who will serve on the jury in this case will be required by the law to render their verdict only on the basis of the evidence that is presented here under oath here in this courtroom. Do you understand that?
A. Yes.
Q. Only on that evidence and on no other factor. Do you understand that?
A. Yes.
Q. Would you be able to do that?
A. Well, I think maybe I could. I don't know. I have formed opinions and heard opinions formed about it. I don't know whether it would have any effect on me or not.
Q. Opinions about what, sir?
A. About this case.
Q. What about this case?
A. The case that is being tried here.
Q. You have an opinion as to the case that is being tried here?
A. Yes.
This prospective juror had not expressed an opinion adverse to the defendants. Nor did this juror indicate a situation in which there had been pretrial publicity which would expose the jurors to potentially prejudicial material.
Exceptions number 505 and 506 are taken to the action of the court in sustaining the District Attorney's objections to examination of a prospective juror by counsel for defendant Shephard. The questions propounded and the rulings thereon are in no way related to defendants' motion to sequester.
In State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721, the defendant raised the issue of the sequestration of prospective jurors. In Jarrette the Supreme Court held:
284 N.C. at 637, 202 S.E.2d at 730.
Defendants have argued at great length that we should adopt the recommendation of the 'American Bar Association Standards Relating to Fair Trial and Free Press,' which reads as follows:
'Selecting the Jury.
It is recommended that the following standards be adopted in each jurisdiction to govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised.
'(a) Method of Examination.
Wherever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors. . . .' A.B.A. Standards Relating To Fair Trial And Free Press, § 34 (1968).
Whether we agree or disagree with the foregoing recommendation has no effect upon defendants' appeal. The point is that in making their oral motion to sequester the jurors, defendants failed to present to Judge Martin evidence, if such evidence existed, from which he could form the belief that there was a significant possibility that individual talesmen would be ineligible to serve because of exposure to potentially prejudicial material. Judge Martin exercised his discretion in denying the motion, and no abuse of discretion has been shown.
We note certain other events regarding the talesmen summoned as prospective jurors. The defendants were indicted in New Hanover County and were originally scheduled for trial in that county. Upon motion by defendants the cases were removed to Pender County for trial. After the proceedings in ...
To continue reading
Request your trial
-
State v. Williams
...on the ground that whites may have difficulty identifying with blacks. 481 F.2d at 160. Similarly, in State v. Chavis, 24 N.C.App. 148, 164-65, 210 S.E.2d 555, 567 (1974), appeal dismissed and disc. review denied, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S.Ct. 86......
-
State v. McCoy
...denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. Chavis, 24 N.C.App. 148, 195, 210 S.E.2d 555, 584 (1974), cert. denied, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S.Ct. 868, 47 L.Ed.2d 91 (197......
-
Williams v. Branker
...on the ground that whites may have difficulty identifying with blacks. 481 F.2d at 160. Similarly, in State v. Chavis, 24 N.C.App. 148, 164-65, 210 S.E.2d 555, 567 (1974) , appeal dismissed and disc, review denied, 287 N.C. 261, 214 S.E.2d 434 (1975) , cert. denied, 423 U.S. 1080, 96 S.Ct. ......
-
State v. Thaggard
...statement placed in the record for appellate review. 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977) (citing State v. Chavis, 24 N.C.App. 148, 176-84, 210 S.E.2d 555, 574-78 (1974)). On appeal, the appellate court is required to examine the sealed records to determine whether they contain inf......