State v. Harris

• Decision Date: 14 March 1973
• Docket Number: No. 2,2
• Citation: State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (N.C. 1973)
• Parties: STATE of North Carolina v. Wesley HARRIS and Stancil Lee Stanback.
• Court: North Carolina Supreme Court

Page 796

194 S.E.2d 796

283 N.C. 46

STATE of North Carolina v.Wesley HARRIS and Stancil Lee Stanback.

No. 2.

Supreme Court of North Carolina.

March 14, 1973.

Atty. Gen. Robert Morgan, and Asst. Atty. Gen. Ralph Moody, for the State.

George M. Anderson, Raleigh, for Wesley Harris.

Carl C. Churchill, Jr., Raleigh, for Stancil Lee Stanback.

Roger W. Smith, Raleigh, for defendants.

BRANCH, Justice.

Defendants first assign as error the action of the trial judge in permitting the Solicitor to reexamine and successfully challenge for cause Mrs. Joyce Granberry, a prospective juror who had been passed by the State and tendered to defendants.

Before the State passed and tendered Mrs. Granberry to defendants, she indicated her willingness to vote for a verdict which would result in the death penalty.Prior to jury impanelment, however, Mrs. Granberry let it be known that she had changed her opinion about capital punishment.The trial judge thereupon allowed the Solicitor to reexamine the prospective juror.This reexamination revealed that she had talked with her pastor during the overnight recess and, as a result of that conversation, she would not under any circumstances vote for a verdict which would impose the death sentence.Over defendants' objections the trial judge allowed the Solicitor to successfully challenge the prospective juror for cause.The court then gave an additional peremptory challenge to each defendant who had previously passed the prospective juror.

The competency of jurors is a matter to be decided by the trial judge.Decisions as to a juror's competency at the time of selection and their continued competency to serve are matters resting in the trial judge's sound discretion.G.S. § 9--14;State v. Johnson, 280 N.C. 281, 185 S.E.2d 698.The trial judge's ruling on such questions are not subject to review on appeal unless accompanied by some imputed error of law.State v. Watson, 281 N.C. 221, 188 S.E.2d 289.

In the case of State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, this Court considered the action of the trial judge in excusing certain jurors who would not take the oath.Finding no error the Court stated:

'The desire of a prospective juror to affirm rather than take an oath is not, of itself, cause for challenge in this State.See: G.S. § 9--14;G.S. § 11--11.On the other hand, nothing else appearing, even the erroneous allowance of an improper challenge for cause does not entitle the adverse party to a new trial, so long as only those who are competent and qualified to serve are actually empaneled upon the jury which tried his case.'

The Court further said:

'It has long been established in this State that it is the right and duty of the court to see that a competent, fair and impartial jury is empaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party.(Citations omitted.)It is immaterial that this is done as the result of information voluntarily disclosed by the prospective juror without questioning.State v. Vick(132 N.C. 995, 43 S.E. 626), supra.'

We reaffirmed the position adopted in State v. Atkinson, supra, in State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572.There the defendant was on trial for murder.The trial judge excused a juror on the grounds of family hardship.The circumstances constituting the hardship came to the trial judge's attention after the juror had been accepted by both the State and the defendant and had been sworn, but not impaneled.This Court held that the trial judge's action did not constitute error.See alsoState v. Spence, 271 N.C. 23, 155 S.E.2d 802.

The facts in the case of State v. Vann, 162 N.C. 534, 77 S.E. 295, are very similar to those in instant case.In Vann, after the juror had been accepted by both the State and the defendant, he stated that he was opposed to capital punishment and would not agree to a verdict of guilty even if the evidence in the case satisfied him beyond a reasonable doubt that the defendant was guilty as charged.The trial judge permitted the State to challenge the juror, and the court sustained the challenge upon the ground that he was 'not indifferent or qualified to serve . . ..'In affirming the trial judge this Court said:

'He was discharged, and the ruling was sustained by this Court on appeal; Pearson, C.J., saying that, 'as the jury was not impaneled and charged with the case, it was within the discretion of the court to allow the solicitor the benefit of a challenge for cause, so as to secure a jury indifferent as between the State and the prisoner.'This rule of practice is well settled by the authorities.State v. Jones, 80 N.C. 415;State v. Cunningham, 72 N.C. 469;State v. Green, 95 N.C. 611, 614;State v. Ward, 39 Vt. 225.The rule really goes beyond this, for it is the right and duty of the court to see that a competent, fair, and impartial jury are impaneled, subject to the right of peremptory challenge by the prisoner; and in the discharge of this duty, it may stand aside a juror at any time before the jury are impaneled and charged with the case.State v. Jones, supra;State v. Boon, supra(80 N.C. 461) and cases therein cited.The court, therefore, may act of its own motion, in furtherance of justice, and need not wait for a formal challenge, if a juror appears to be disqualified. . . .'

Defendants rely principally on the case of State v. Fuller, 114 N.C. 885, 19 S.E. 797, as support for their contention.In that casethe defendant was charged with murder.A prospective juror was passed by the State and the defendant, but before he was sworn the juror asked to be excused because of a long friendship with the defendant, who was also connected to him by marriage.The trial judge ruled that there was no ground for challenge for cause but permitted the State to successfully challenge the juror peremptorily.The Supreme Court, finding error, reasoned:

'The discretionary power of the judge was confined to challenges for cause.He had no more authority to extend the time for making peremptory challenges beyond the limit fixed by the statute, than he had to increase the number allowed to the state beyond four.The question of the proper interpretation of the language of the statute is one for this court, and its meaning seems so plain as to require but little further discussion of this exception . . .'

At the time Fuller was decided, the Revisal of 1905 of North Carolina provided that in capital cases peremptory challenges must be made before the juror is tendered to the prisoner.The 1967 General Assembly provided in General Statute 9--21(b) that in all criminal cases'The State's challenge, peremptory Or for cause, must be made before the juror is tendered to the defendant.'(Emphasis supplied.)

Defendants argue that pursuant to the authority of Fuller and the present wording of G.S. § 9--21(b) it is error for the trial judge to permit the Solicitor to reexamine and challenge a juror, either peremptorily or for cause, once that juror has been passed by the State and tendered to the defendant.

We note that under the same statutory provisions which existed when Fuller was decided this Court has approved the action of trial judges in allowing challenges for cause after the State has passed and tendered a prospective juror to the defendant.State v. Green, 95 N.C. 611;State v. Jones, 80 N.C. 415;State v. Adair, 66 N.C. 298.Likewise, this Court has found no error when the trial judge, Ex mero motu, excused a juror after the State had passed and tendered him when it was discovered that the juror was related to both the defendant and the deceased.State v. Boon, 80 N.C. 461.

We think that instant case is distinguishable from State v. Fuller, supra.In Fuller there was no ground for challenge for cause.Here there was ground for challenge for cause since the prospective juror was not willing to consider all the penalties provided by law, and was 'irreparably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceeding.'State v. Anderson...