State v. Holden, 650A85

• Decision Date: 02 December 1987
• Docket Number: No. 650A85,650A85
• Citation: 321 N.C. 125,362 S.E.2d 513
• Parties: , 71 A.L.R.4th 585 STATE of North Carolina v. Russell HOLDEN, Jr.
• Court: North Carolina Supreme Court

Page 513

362 S.E.2d 513

321 N.C. 125, 71 A.L.R.4th 585

STATE of North Carolina v. Russell HOLDEN, Jr.

No. 650A85.

Supreme Court of North Carolina.

Dec. 2, 1987.

Lacy H. Thornburg, Atty. Gen. by William N. Farrell, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Reginald Kenan, Warsaw, for defendant-appellant.

WEBB, Justice.

Defendant brings forth three assignments of error relating to the "death qualification" of the jury. He assigns error to the trial court's denial of his motion to prohibit the district attorney from challenging for cause jurors opposed to the death sentence, and the trial court's denial of his motion to seat jurors without regard to their opposition to the death penalty. Defendant further assigns error to the trial court's allowing the district attorney to ask jurors if they would be unable to vote for a sentence of death.

Defendant argues that the trial court, by "death qualifying" the jury in this manner, excluded a certain segment of society, and thus denied defendant his right to be tried by a jury made up of a cross-section of the community. Defendant also argues that "death qualification" may have caused the jurors to be biased in favor of the prosecution's presentation.

In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the United States Supreme Court held that the federal Constitution does not prohibit "death qualification," or removal for cause, prior to the guilt-innocence determination phase of a capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would substantially impair the performance of their duties as jurors at the sentencing phase of the trial. In its opinion, the United States Supreme Court rejected both defendant's argument that "death qualification" denies a defendant his right to a jury made up of a cross-section of the community, and also defendant's argument that "death qualification" results in a conviction-prone jury. Defendant's arguments were also rejected by this Court in State v. King, 316 N.C. 78, 340 S.E.2d 71 (1986). In State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986), we specifically held that "death qualification" does not violate the North Carolina Constitution. Defendant has given us no reason to disregard or overrule our decisions in King and Barts.

Defendant next assigns error to the trial court's denial of his motion for two separate jury trials, one to decide the issue of guilt or innocence and another to decide the issue of punishment. Under N.C.G.S. § 15A-2000, it is intended that the same jury should hear both phases of the trial unless the original jury is unable to reconvene. N.C.G.S. § 15A-2000(a)(2); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983). We are bound by Taylor to overrule this assignment of error.

Defendant next assigns error to the trial court's denial of his motion to sequester the prospective jurors during the voir dire proceedings. Defendant argues that questioning the prospective jurors in a group setting prevented them from expressing their true feelings.

N.C.G.S. § 15A-1214(j) provides: "In capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." Whether to sequester the prospective jurors during the voir dire rests within the sound discretion of the trial judge, and his ruling will not be disturbed absent an abuse of discretion. State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). In the present case, defendant has made no showing that the trial judge abused his discretion. His argument that a group setting inhibits candor has been rejected before by this Court as mere speculation. See State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979).

Defendant next contends the trial court erred by allowing the district attorney to misstate the law several times during the voir dire of the jury. Defendant argues that four specific statements made by the district attorney implied that the State would not receive a fair trial, and the judge could not accept the jury's verdict, unless all twelve jurors agreed that defendant was guilty.

We disagree. When read in context, the four statements were not at all improper. Each one of the four statements was made to a separate group of prospective jurors, and all four were substantially the same. Here is one of the statements, quoted in context:

His Honor at the appropriate time will instruct you that any verdict that the jury returns has to be unanimous and that is all 12 of you either have to vote guilty or not guilty as to each charge before His Honor can accept your verdict. No verdict can be by majority vote, it has to be unanimous. From time to time we see people who come to be on the jury who have either religious or moral beliefs that would prevent them from serving on the jury and returning a verdict of guilty. That is some people believe that it's wrong to serve on a jury and determine the innocence or guilt of another person. Obviously, if there is one person on the jury who could not return a verdict of guilty then the State ... could not receive a fair trial since the verdict of the jury could never reach a verdict of guilty since one person could not ever return a verdict of guilty. So, does any of the six of you have ... such a religious or moral belief in deciding the innocence or guilt of another person, please raise your hand.

N.C.G.S. § 15A-1212 provides, in pertinent 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." The district attorney's statements, when read in context, were clearly calculated to elicit information relevant to this provision, and were not at all improper.

Defendant next contends the trial court erred in allowing the prosecution to challenge potential black jurors peremptorily, thereby denying defendant the right to be tried by his black peers.

Neither federal nor North Carolina law gives defendant the right to be tried by a jury composed in whole or in part of persons of his own race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Elkerson, 304 N.C. 658, 285 S.E.2d 784 (1982). A defendant has only the right to be tried by a jury the composition of which was not decided according to racially discriminatory criteria; the State may not challenge a potential juror solely on account of race. Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

Defendant in the present case does not contend, nor does the record reveal, that the State based its peremptory challenges on racially discriminatory criteria. Defendant was tried by a jury of seven whites and five blacks, with one white alternate and one black alternate. Of the twenty black potential jurors and alternates, ten were excused for cause. The State peremptorily challenged only four of the remaining ten. Defendant's assignment of error is without merit.

Defendant next contends the trial court erred in denying his pretrial motion to require the State to make an election whether it intended to base its first-degree murder case on premeditation and deliberation or the felony murder rule.

The State is not required to elect between legal theories in a murder prosecution prior to trial. Where the factual basis for the prosecution is sufficiently pleaded, a defendant must be prepared to defend against any and all legal theories which these facts may support. State v. Silhan, 302 N.C. 233, 275 S.E.2d 450 (1981). This assignment of error is overruled.

Defendant next assigns error to the trial court's denial of his motion to sequester the State's witnesses. Defendant argues that the presence of an extensive number of witnesses had an unduly persuasive effect on the jurors, and also caused the witnesses to substitute the "recollection of the mass" for their "individual recollection." A motion to sequester witnesses is addressed to the discretion of the trial judge, and is not reviewable on appeal absent a showing of abuse of discretion. N.C.G.S. § 15A-1225; State v. Stanley, 310 N.C. 353, 312 S.E.2d 482 (1984). Defendant has not shown, nor does the record reveal, any abuse of discretion in the trial judge's ruling.

Defendant next assigns error to the trial court's denial of his pretrial discovery motion to compel the State to give him a list of the witnesses the State intended to call. We are bound by State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983) to overrule this assignment of error.

Defendant next assigns error to the trial court's denial of his motion that the State provide him with an expert to examine and testify regarding the weapon. Defendant also assigns error to the trial court's denial of his request for funds to hire an investigator to help in the preparation of defendant's case.

N.C.G.S. §§ 7A-450(b) and 454 require that expert assistance or private investigators be provided to an indigent defendant only upon a showing by the defendant that there is a reasonable likelihood that it will materially assist him in the preparation of his defense or that without such help it is probable that the defendant will not receive a fair trial. Neither the State nor the federal constitution requires more. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981). Mere hope or suspicion that favorable evidence is available is not enough to require that such help be provided. State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976). The decision whether to provide a defendant with either an expert witness or an investigator is addressed to the discretion of the trial judge and will not be disturbed on appeal absent...