State v. Duvall

• Decision Date: 03 March 1981
• Docket Number: No. 801SC821,801SC821
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Claudie Clara DUVALL.

Page 842

275 S.E.2d 842

50 N.C.App. 684

STATE of North Carolina v. Claudie Clara DUVALL.

No. 801SC821.

Court of Appeals of North Carolina.

March 3, 1981.

Discretionary Review Allowed by Supreme Court April 7, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, for the State.

James, Hite, Cavendish & Blount by Marvin Blount, Jr., Greenville and Aldridge, Seawell & Khoury by G. Irvin Aldridge, Manteo, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant brings forward twenty-three assignments of error. For organizational purposes in this opinion, those arguments which we feel merit discussion will be grouped into subdivisions.

We note at the outset that in order to convict defendant of being an accessory after the fact under N.C.G.S. 14-7, the state must prove the following: (1) the felony has been committed by the principal; (2) the alleged accessory gave personal assistance to that principal to aid in his escaping detection, arrest, or punishment; and (3) the alleged accessory knew the principal committed the felony. State v. Atkinson, 298 N.C. 673, 259 S.E.2d 858 (1979); State v. Squire, 292 N.C. 494, 234 S.E.2d 563 (1977); State v. Martin, 30 N.C.App. 166, 226 S.E.2d 682 (1976). To prove the first element, the state in this case must show that the principal was driving the vehicle involved in an accident resulting in injury to or death of the victim, that the principal so knew, and that he failed to stop his vehicle immediately at the scene. State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965); State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962); State v. Fearing, 48 N.C.App. 329, 269 S.E.2d 245, cert. denied, 301 N.C. 99 (1980).

I.

Two of defendant's assignments of error concern the special venire called from Perquimans County. Defendant contends that Judge Brown erred in granting the state's motion for a special venire on 4 December 1979 after Judge Browning had denied such a motion on 7 June 1979. He argues that the order impermissibly overruled the other judge's earlier ruling.

It is true that one superior court judge ordinarily may not overrule a prior judgment of another superior court judge in the same case on the same issue. Calloway v. Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972); State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972); Carr v. Carbon Corp., --- N.C.App. ---, 272 S.E.2d 374 (1980). However, this rule is inapplicable to interlocutory orders, which do not determine the issue, but rather direct some proceeding preliminary to a final decree. Carr, supra. A motion for a special venire is a pretrial order, the granting or denial of which is within the trial court's sound discretion. N.C.Gen.Stat. 15A-958. See also State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386 (1967). "Interlocutory orders are subject to change 'at any time to meet justice and equity of the case upon sufficient grounds shown for the same." Calloway, supra, 281 N.C. at 502, 189 S.E.2d at 488. Therefore, when the circumstances have changed during the time between the original denied motion and the subsequent renewed motion, a trial judge may, in his discretion, grant the renewed motion in the interest of justice.

More than five months elapsed between the two motions for a special venire. The state presented additional and current evidence that defendant would not be able to receive a fair and impartial trial before a jury comprised of residents of Dare County, where he was a prominent citizen and where considerable publicity had occurred. We hold that Judge Brown did not abuse his discretion by hearing and granting the renewed motion. Furthermore, in the same order, the court granted defendant's motion for a trial separate from codefendant Malcolm Fearing, which motion had previously been denied by a different superior court judge. As defendant was a beneficiary of the court's action, he is hardly in a position to complain of the propriety of that order.

Defendant contends that the court erred in denying his motion that a special venire be called from a county other than Perquimans. He argues that the earlier trial of Malcolm Fearing before jurors of that county, in addition to newspaper coverage of the trials, created prejudicial pretrial publicity.

As previously discussed, a motion for a special venire is addressed to the trial court's sound discretion. Its rulings will not be disturbed on appeal absent a clear showing of abuse. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). Similarly, the trial judge is vested with broad discretion in determining the competency of the jurors. N.C.Gen.Stat. 9-14; State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976). A party has no right to seat a particular juror, but only to reject one who is prejudiced against him. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). See also State v. Corl, 250 N.C. 258, 108 S.E.2d 615 (1959).

We have carefully reviewed defendant's motion and the seventy-four pages of the record which contain the jury selection process and are satisfied that Judge Brown did not abuse his discretion in determining that the jurors from Perquimans County would afford defendant a fair trial. See Brower, supra. These assignments of error are overruled.

II.

Defendant assigns error to the denial of his motion for the trial judge's disqualification under N.C.G.S. 15A-1223. Defendant asserts that he was deprived of a fair trial because the judge was biased against him, as he had presided over the earlier trial of codefendant Malcolm Fearing, where testimony that tended to incriminate the present defendant was heard. Defendant supports his theory by reference to other of his assignments of error, which he alleges demonstrate Judge Brown's actual bias during trial.

N.C.G.S. 15A-1223(b)(1), (4) provides:

(b) A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:

(1) Prejudiced against the moving party or in favor of the adverse party; or

....

(4) For any other reason unable to perform the duties required of him in an impartial manner.

As an impartial judge is a prime requisite of due process, a judge's personal interest in the outcome of a case is considered sufficient ground for his disqualification. Ponder v. Davis, 233 N.C. 699, 65 S.E.2d 356 (1951). But in the absence of substantial evidence in the record of personal interest or bias, a judge will not be required to recuse himself. Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978); In re Custody of Cox, 24 N.C.App. 99, 210 S.E.2d 223 (1974), cert. denied, 286 N.C. 414, 211 S.E.2d 793 (1975). Even in instances where a judge has presided over an earlier trial of the same defendant, he need not be disqualified absent evidence that the prior trial would have a prejudicial effect on the rulings and outcome of the present case. Love, supra; Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449, disc. rev. denied, 292 N.C. 730, 235 S.E.2d 784 (1977). See also State v. Vega, 40 N.C.App. 326, 253 S.E.2d 94, disc. rev. denied, 297 N.C. 457, cert. denied, 444 U.S. 968, 100 S.Ct. 459, 62 L.Ed.2d 382 (1979); Cox, supra.

Defendant contends that certain comments made by the judge in the presence of the jury and his refusal to recess upon defendant's motion illustrate Judge Brown's actual prejudice toward defendant and created an unfavorable atmosphere during the course of the trial. During jury selection, after counsel for defendant had apparently used all his peremptory challenges, counsel approached the bench and requested permission to challenge a juror out of the presence of the other jurors. The court denied defendant's motion and announced his decision before the jurors. From the record, we find that Judge Brown followed the jury selection procedure outlined in N.C.G.S. 15A-1214, which makes no provision for in-chambers or bench conference rulings on a juror's competence. No special circumstances are evident which would have justified defendant's motion, and Judge Brown properly exercised his discretion in so denying it.

During direct examination, defendant had embarked upon an irrelevant topic and Judge Brown admonished him not to volunteer answers. Defendant argues this incident also demonstrates the judge's prejudice toward him. The judge's warning was entirely proper. See State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979); State v. Chandler, 30 N.C.App. 646, 228 S.E.2d 69 (1976). We do not find that Judge Brown's comments constituted an impermissible expression of opinion. The trial judge has a duty, as well as a right, to conduct the trial in an orderly, efficient manner. See State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971).

Defendant also insists that the judge's denial of his motion to recess showed bias against him. Additionally, he asserts that the extended courtroom hours deprived him of effective assistance of counsel by abridging preparation time between sessions. We find that Judge Brown was well within his discretion in continuing this lengthy trial into the evening hours, to maintain its momentum in the interest of the efficient administration of justice. See Frazier, supra. These assignments of error are without merit.

III.

Defendant assigns error to numerous portions of the testimony which were admitted over his objections or refused admission upon sustention of the prosecutor's objections.

Defendant first contends that the trial court erred in overruling his objections to a series of questions directed to trooper Bonner regarding defendant's actions at the scene where the body was discovered. During direct examination, Bonner testified that defendant had not said anything to him about the post, about his having seen the body earlier, or about his...