State v. Hightower
| Decision Date | 25 June 1992 |
| Docket Number | No. 1A89,1A89 |
| Citation | 417 S.E.2d 237,331 N.C. 636 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Bobby Ray HIGHTOWER. |
Lacy H. Thornburg, Atty. Gen. by Barry S. McNeill, Sp. Deputy Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant appellant.
The defendant has brought forward seventeen assignments of error. We shall discuss two of them.
In his first assignment of error he contends it was error not to allow a challenge for cause to a juror. The defendant preserved his right to bring forward this assignment of error by following the procedure of N.C.G.S. § 15A-1214(h). He peremptorily challenged the juror. He then exhausted his peremptory challenges and renewed his challenge for cause to the juror, which was denied.
During the selection of the jury the following colloquy occurred:
....
....
....
N.C.G.S. § 15A-1212 provides in part:
A challenge for cause to an individual juror may be made by any party on the ground that the juror:
....
(8) As a matter of conscience, regardless of the facts and circumstances, would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.
(9) For any other cause is unable to render a fair and impartial verdict.
We have held that N.C.G.S. § 15A-1212(8), which is a codification of the rule in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), applies to the qualification of jurors in all cases. State v. Kennedy, 320 N.C. 20, 26, 357 S.E.2d 359, 363 (1987).
The defendant's challenge for cause should have been allowed under both section (8) and (9) of N.C.G.S. § 15A-1212. When the defendant's attorney first asked if the defendant's failure to testify would affect the juror's ability to give him a fair and impartial trial, the juror said "[y]es." When the court questioned the juror, he said on one occasion that he could follow the law as given to him by the court but he repeatedly said the defendant's failure to testify would "stick in the back of my mind" while he was deliberating. On one occasion he told the court, "I want to give an impartial decision, and I don't want anything to hinder it, and I'm afraid that might hinder it." In Mr. Lind's last question to the juror, he asked if the juror had serious concerns that the defendant's failure to testify "might affect your ability to give him a fair trial[.]" The juror said "[r]ight." We can only conclude from the questioning of this juror that he would try to be fair to the defendant but might have trouble doing so if the defendant did not testify. In this case the defendant did not testify.
We have said that the granting of a challenge for cause of a juror is within the discretion of the judge. State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991); State v. Watson, 281 N.C. 221, 227, 188 S.E.2d 289, 293, cert. denied, 409 U.S. 1043, 93 S.Ct. 537, 34 L.Ed.2d 493 (1972). Nevertheless, in a case such as this one, in which a juror's answers show that he could not follow the law as given to him by the judge in his instructions to the jury, it is error not to excuse such a juror. It was error for the court not to allow the challenge for cause to Juror Browning in this case.
The question we next face is whether the failure to allow this challenge for cause was prejudicial error. After the challenged juror was excused and the defendant had exhausted his peremptory challenges, he renewed his challenge for cause to Juror Browning and told the court he would peremptorily challenge the juror then being questioned if he had not exhausted his peremptory challenges. Although this juror might not have been subject to a challenge for cause, it was the prerogative of the defendant as to whether to exercise a peremptory challenge. He was deprived of this right and for this reason there must be a new trial.
Defendant's second assignment of error is that the trial court erred in denying his pretrial motion to exclude testimony from various people, including his own statements, regarding Naomi Donnell's pregnancy and his knowledge thereof. He contends that such evidence was irrelevant, had no probative value to any fact of consequence in the case, and its probative value was substantially outweighed by its prejudicial and inflammatory effect on the jury. We disagree.
N.C.G.S. § 8C-1, Rule 402 (1988) provides "[a]ll relevant evidence is admissible[ ]" except if it is excluded by some other exclusionary rule. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 401 (1988). The prosecution may offer evidence of motive as circumstantial...
To continue reading
Request your trial
-
State v. Blankenship
...are distinguishable from questions concerning a defendant's failure to testify in his own defense. Cf., State v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237, 240 (1992) (error not to allow challenge for cause where juror indicated defendant's failure to testify might affect juror's ability......
-
State v. McCarver
...existed, you would answer Issue One-A 'No[.]' "); and (3) Justice Meyer's dissenting opinion in State v. Hightower, 331 N.C. 636, 648, 417 S.E.2d 237, 244 (1992) (Meyer, J., dissenting) ("I conclude that defendant is entitled to a new sentencing hearing based on the trial court's erroneous ......
-
State v. Abraham
...absent a showing of abuse of discretion. State v. Cunningham, 333 N.C. 744, 753, 429 S.E.2d 718, 723 (1993); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237, 240 (1992); State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991); State v. Watson, 281 N.C. 221, 227, 188 S.E.2d 289, 293, cer......
-
State v. Perkins, 60A94
...Thank you. Challenge is denied. Defendant, relying on State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993), and State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992), argues that this colloquy shows that Parker was willing to forego holding the State to its burden of proof on certain ......