State v. Gardner, 29A84

• Citation: 319 S.E.2d 591,311 N.C. 489
• Decision Date: 28 August 1984
• Docket Number: No. 29A84,29A84
• Parties: STATE of North Carolina v. John Sterling GARDNER, Jr.
• Court: United States State Supreme Court of North Carolina

Page 591

319 S.E.2d 591

311 N.C. 489

STATE of North Carolina v. John Sterling GARDNER, Jr.

No. 29A84.

Supreme Court of North Carolina.

Aug. 28, 1984.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.

Bruce C. Fraser, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the denial of his pretrial motion for change of venue. He asserts that extensive media coverage of the "Steak and Ale" murders was highly prejudicial and precluded his receiving a fair trial in Forsyth County.

On a motion for change of venue pursuant to G.S. 15A-957, the burden is on the defendant to prove prejudice so great that he cannot obtain a fair and impartial trial. State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983); State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162 (1982). He must show that "it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." State v. Jerrett, 309 N.C. at 255, 307 S.E.2d at 347. The determination of whether the defendant has met this burden of proof rests in the sound discretion of the trial judge and his ruling will not be overturned on appeal absent a showing of gross abuse of discretion. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).

Our review of the record reveals that defendant has shown no abuse of discretion in the trial court's denial of the motion for change of venue.

While the media coverage of the crimes committed in the instant case was, as defendant alleges, pervasive, the articles appearing in local newspapers and the broadcasts on local radio and television stations were factual and non-inflammatory news accounts of the murders. This Court has consistently held that factual news accounts regarding the commission of a crime and the pretrial proceedings do not of themselves warrant a change of venue. See, e.g., State v. Watson, 310 N.C. 384, 312 S.E.2d 448 (1984); State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162 (1982).

Furthermore, we have held that when a defendant alleges prejudice at trial on the basis of pretrial publicity, he must show that he exhausted his peremptory challenges or that he had to accept jurors who were prejudiced by pretrial publicity. State v. Watson, 310 N.C. at 393, 312 S.E.2d at 455. Here, defendant exercised only half of his available peremptory challenges.

Finally, the transcript of the jury selection process reveals that while numerous jurors had heard about the case through television or newspaper accounts of the killings, only one juror had tentatively formed an opinion about defendant's guilt. This juror was immediately excused by defense counsel with the consent of the prosecutor. Each juror selected to hear defendant's case stated unequivocally that he or she would determine defendant's guilt or innocence solely on the basis of evidence introduced at trial.

We hold that the motion for change of venue was properly denied.

Defendant next contends the trial court erred by denying his motion for funds to hire a private investigator to assist in the preparation of his case. He bases his entitlement to such help upon G.S. 7A-450(b), which sets forth the responsibility of the State to provide an indigent defendant "with counsel and the other necessary expenses of representation," and G.S. 7A-454, which provides that the trial court may discretionarily "approve a fee for the service of an expert witness who testifies for an indigent person, ...."

It is well established that the issue of whether a private investigator should be appointed at State expense to assist an indigent defendant rests within the sound discretion of the trial judge. State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976). Experts for trial preparation should be provided only when there is a reasonable likelihood that the expert will materially aid the defendant in the preparation or presentation of the defense or that without such help it is probable the defendant will not receive a fair trial. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1985, 72 L.Ed.2d 450 (1982). We have held that the appointment of private investigators should be made "with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense," since "[t]here is no criminal case in which defense counsel would not welcome an investigator to comb the countryside for favorable evidence." State v. Tatum, 291 N.C. at 82, 229 S.E.2d at 568.

Applying these legal principles to the facts of this case, it is clear Judge Washington did not abuse his discretion by failing to appoint a private investigator for defendant.

A review of the transcript of the motion hearing reveals that defense counsel requested the appointment of a private investigator essentially because, as a sole practitioner, he did not have the time to interview and coordinate defendant's alibi witnesses. Counsel stated, however, that he had already talked to the witnesses. The gist of his argument was that a private investigator would be helpful as a witness coordinator and would be useful in determining which witnesses should be called to establish defendant's alibi defense.

Such an assertion by defense counsel does not rise to the level of showing a reasonable likelihood that the efforts of an investigator would discover additional evidence helpful to defendant. "[T]he State is not required by law to finance a fishing expedition for defendant in the vain hope that 'something' will turn up." State v. Alford, 298 N.C. 465, 469, 259 S.E.2d 242, 245 (1979).

We find no abuse of discretion in the denial of defendant's motion for the appointment of a private investigator.

These same considerations apply to defendant's contention of error in the trial court's denial of his motion for funds to hire a private psychiatrist.

By order of Judge David R. Tanis dated 19 April 1983, defendant was transferred to Central Prison in Raleigh in order that he might be observed by the medical staff of Dorothea Dix Hospital to determine his capacity to proceed to trial. The psychiatrist's report, which was made available to defense counsel, indicated that defendant was capable of proceeding to trial and that he was legally sane. In the examining psychiatrist's opinion, defendant suffered from an anti-social personality disorder which was aggravated by drug and alcohol abuse.

On 2 August 1983, defendant moved that funds be made available to hire a private psychiatrist for a more thorough investigation of defendant's state of mind at the time he allegedly committed the crimes charged. Following a hearing, the trial court denied defendant's motion.

Under the circumstances here presented, we hold that the court's refusal to require the State to pay for an additional psychiatric evaluation was not error.

There was no serious contention that defendant lacked the capacity to stand trial or was insane at the time he allegedly committed the offenses. Defense counsel's admitted basis for attempting to secure an additional psychiatric evaluation at State expense was that he "was looking down the road to some extent ... insofar as if the jury reaches the second issue in this matter and that's the thrust of my request in that regard."

Defendant clearly did not meet his burden of showing a reasonable likelihood that the expert would materially aid in the preparation of the case. The trial judge correctly denied defendant's motion for funds to pay for additional psychiatric testing and this assignment of error is therefore overruled.

Defendant contends the trial court improperly excused six jurors for cause in violation of the principles established in Witherspoon v. Illinois, 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). Witherspoon permits the exclusion for cause of a juror if it is established that the juror "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case...." 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21 (emphasis in original). The North Carolina statute which sets forth the grounds for challenging a juror for cause, G.S. 15A-1212, adopts the Witherspoon test as the basis for excluding jurors who "[a]s a matter of conscience, regardless of the facts and circumstances," would be unable to return a verdict imposing the death penalty.

We conclude from our examination of the record that all jurors excluded for cause were properly excluded under the requirements of Witherspoon and G.S. 15A-1212(8). Each one of them emphatically stated that under no circumstances would he or she return a verdict of death. Their answers to the prosecutor's questions reveal an unwavering opposition to the death penalty and an unwillingness to set aside their beliefs to even consider death as a possible punishment.

Defendant next argues that the systematic exclusion of those jurors unalterably opposed to the death penalty prior to the guilt-innocence phase of the trial violated his right to due process and to trial by a jury drawn from a representative cross-section of the community. This argument has been consistently rejected by this Court. See, e.g., State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983); State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983). Since defendant advances no reason for us to abandon the reasoning of our prior decisions on this issue, these cases operate to preclude relief for defendant here.

Defendant's third argument relating to the jury selection process is that the trial court impermissibly restricted the voir dire of prospective jurors by defense counsel. His specific...