State v. Gray

• Decision Date: 03 October 1997
• Docket Number: No. 556A93,556A93
• Citation: 491 S.E.2d 538,347 N.C. 143
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Robert GRAY, Jr.

Page 538

491 S.E.2d 538

347 N.C. 143

STATE of North Carolina v. William Robert GRAY, Jr.

No. 556A93.

Supreme Court of North Carolina.

Oct. 3, 1997.

Michael F. Easley, Attorney General by Valerie B. Spalding, Assistant Attorney General, for the State.

David G. Belser, Asheville, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to a statement by the judge. At the opening of court and before the defendant's case was called for trial, the judge instructed the jury as to court procedures. Among the things he told them was the following:

The Court Reporter to my right is Davette Garvin. She is appointed by Judge Llewellyn, who is your Senior Resident Judge. He is also holding civil court this morning in another courtroom. It's her duty to take down and transcribe everything that's said in the courtroom during the trial and the hearing of motions so that the judge can review, or should it be appealed, any matter to the Supreme Court in Raleigh.

The defendant contends this statement to the jury implied to the jury that this Court would review its decision and correct any errors it might make. The defendant says this would violate the defendant's rights under the Eighth Amendment to the Constitution of the United States by diluting the responsibility of the jury. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975).

We do not believe that the statement, made by the judge before the case was called for trial, implied to the jury that this Court would correct any errors the jury might make. This case is governed by State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988), sentence vacated on other grounds, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), in which the court said to the jury of the court reporter, "she can type up a transcript of a trial and they mail it down to the Supreme Court and the Supreme Court can review what we're doing up here in Stanly County." Id. at 8, 372 S.E.2d at 15. We said "that this brief comment--at the outset of the trial and in the context of an explanation of the court reporter's duties--could not have influenced, adversely to defendant, the jury's perception of its responsibility for its decisions." Id. at 12, 372 S.E.2d at 17.

This assignment of error is overruled.

The defendant next assigns error to the allowance of challenges for cause to five prospective jurors based on their feelings about capital punishment. The defendant says these five persons were not proved to be unable to impose the death penalty and contends it was error to excuse them for cause. "[A] juror may not be challenged for cause based on his views about 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." Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841, 849 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)).

The defendant first objects to the use of leading questions by the State at the jury voir dire. Leading questions should not in most cases be used when testimony is being offered to a jury. To do so allows the questioner in effect to testify to the jury. 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 169 (4th ed.1993). This consideration does not apply at a jury voir dire. It is not error to allow leading questions at that time.

The first venireperson who the defendant says was erroneously removed was Richard Bostic. The State first questioned Mr. Bostic, and he said his feelings about the death penalty would in essence prevent him from considering it. The defendant then questioned him, and he said he could follow the court's instructions in regard to the death penalty. The State then questioned Mr. Bostic again, and he said he did not think his feelings would completely block him from considering the death penalty but that they would hinder him from doing so. He said he would not automatically vote against the death penalty, but he did not think he could come into the courtroom and look the defendant in the eye and say he had voted for the death penalty. The court then asked Mr. Bostic if he was saying he would be unable to render a verdict with respect to the charge in accordance with the law both as to the guilt-innocence and penalty phases. Mr. Bostic answered, "Yes."

The colloquy with Mr. Bostic amply supports a finding by the court that Mr. Bostic's views could substantially impair the performance of his duties as a juror. It was not error to excuse him.

The next venireperson who the defendant says was improperly excused was a Ms. Hines. Ms. Hines was a nurse who said she believed in capital punishment under certain circumstances. She said, however, that her training as a nurse made her lean toward life imprisonment rather than death. She said it would not prevent her from voting for the death penalty, but it would certainly influence her decision. She then said she was not sure she could come into the courtroom and recommend a death sentence. When asked whether this meant that her feelings about the death penalty would impair her in her deliberations, she answered, "Yes." Under questioning by the defendant's attorney, Ms. Hines said she would vote for the death penalty if the aggravating circumstances required it. Ms. Hines said in answer to a question by the court that she could render a death sentence if, under the law, it should be applied. Under further questioning by the prosecuting attorney, Ms. Hines stated she could not stand up in the courtroom and tell a man she had recommended his life be taken. She said she could not follow the instructions of the court in this regard.

The answers given by Ms. Hines illustrate the United States Supreme Court's conclusion in Wainwright that a prospective juror's bias may, in some instances, not be proven with unmistakable clarity. In such cases, we must depend on the trial judge's judgment in determining whether the prospective juror would be able to follow the law impartially. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). Ms. Hines made some contradictory statements. The superior court judge was in the best position to judge the bias of Ms. Hines. There was an ample showing of bias to support his conclusion. We must defer to his judgment.

The next venireperson who the defendant said should not have been excused was James Bryant. When asked about his feelings in regard to the death penalty, Mr. Bryant said he believed in it only for a second offense and that he would not impose it for a first murder. When questioned by the defendant's attorney, he said he would follow the court's instructions, but when he was questioned by the court, he reiterated that he would not impose the death penalty for a first offense of murder. Mr. Bryant's answers clearly support the finding that he could not be unbiased. It was not error to remove him from the jury.

The fourth juror who the defendant says was improperly excused was James Waters. Mr. Waters said he believed in the death penalty but would not vote to impose it on another human being. The fifth juror who the defendant says was improperly excused was James Blizzard. Mr. Blizzard said he would always vote for life in prison and never vote for the death penalty. It was not error to excuse Mr. Waters or Mr. Blizzard.

This assignment of error is overruled.

In his next assignment of error, the defendant contends his constitutional and statutory rights were violated by a court order requiring the production of documents. On 8 September 1993, approximately six weeks prior to the trial, the district attorney issued subpoenas duces tecum to the North Carolina Department of Revenue for (1) a certified copy of defendant's 1991 and 1992 intangibles tax documentation, (2) certified copies of any 1991 and 1992 tax returns by defendant as custodian of his two children, and (3) certified copies of any and all 1991 and 1992 account information pertaining to the two children. A court order was obtained on 16 September 1993 for the production of the same documents from the same source. The court order was procured ex parte and without the defendant or his attorney being present.

The defendant contends the granting of the order ex parte and without the defendant's being present (1) violated his right to be present at every stage of his trial guaranteed by Article I, Section 23 of the North Carolina Constitution; (2) violated his right to confront the witnesses against him guaranteed by the Sixth Amendment to the Constitution of the United States; (3) violated his right to due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States by the violation of a statute, N.C.G.S. § 15A-1241 (1988), which gives him the right to a true, complete, and accurate record of all proceedings in his trial; (4) violated his statutory right to a complete recordation of the proceedings at the trial; and (5) deprived him of his right to counsel guaranteed by the United States Constitution and the North Carolina Constitution.

The issuance of the subpoenas duces tecum and the issuance of the order were the gathering of evidence for use at the trial and were not stages of the trial which entitled the defendant or his attorney to be present. A defendant does not have the right to be present as the State gathers its evidence.

This assignment of error is overruled.

The defendant next assigns error to the refusal of the court to charge on self-defense. He bases this contention on his testimony that as he and his wife were struggling, he turned to look at the jogger and heard a click. He looked back at his wife and saw that she had a pistol in her hand. He then testified, "my normal reflex and instincts told me to push...