State v. Jackson

• Decision Date: 12 December 1973
• Docket Number: No. 47,47
• Citation: State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (N.C. 1973)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Walter JACKSON, Jr.

Page 626

200 S.E.2d 626

284 N.C. 321

STATE of North Carolina v.Walter JACKSON, Jr.

No. 47.

Supreme Court of North Carolina.

Dec. 12, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

Goldberg & Anderson by Aaron Goldberg, Wilmington, for defendantappellant.

BRANCH, Justice.

During selection of the jury, defendant's counsel posed to the prospective jurors the following question:

'MR. GOLDBERG: I ask you now collectively if you find from the evidence relating to any or all the facts in this case, in view of all the evidence, that it is susceptible of two reasonable interpretations; that is, one leading to his innocence and one leading to his guilt, I will ask you now if you will adopt that interpretation which points to innocence and reject that of guilt?'

The court sustained the State's objection to this question, and defendant contends that this ruling resulted in prejudicial error.

The Voir dire examination of jurors has a double purpose, (1) to ascertain whether grounds for challenge for cause exist and (2) to enable counsel to exercise intelligently the peremptory challenges allowed by law.State v. Allred, 275 N.C. 554, 169 S.E.2d 833.However, counsel's examination into the fitness of jurors is subject to the trial judge's close supervision.The regulation of the manner and extent of the inquiry rests largely in the trial judge's discretion.State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 and Karpf v. Adams and Runyon v. Adams, 237 N.C. 106, 74 S.E.2d 325.

In Baker v. Harris, 60 N.C. 271, this Court disapproved of the practice of asking jurors whether their minds were in such a state that they might try a case fairly and impartially.There the Court stated: 'Answers to such questions, in the great majority of cases, will not be likely to afford reliable information as to the true state of a juror's feelings.'

In State v. Bryant, Supra, this Court held that the trial judge did not commit error by refusing to allow defendant's counsel to ask the following question: 'If you heard the evidence as presented here in this case and you thought that Delmos was probably guilty, and if you were not convinced absolutely that he was not guilty and you just thought he was probably guilty, will you be able to return a verdict of not guilty?'

In State v. Washington, 283 N.C. 175, 195 S.E.2d 534, the Court held that the trial judge correctly refused to allow counsel for the defendant to ask the following question: 'Would you consider, if you had the opportunity, evidence about this defendant, either good or bad, other than that arising from the incident here?'There, Chief Justice Bobbitt, speaking for the Court, said: 'Without knowledge of the nature of the evidence referred to in the question, and without knowledge of its admissibility, no prospective juror should have been required to answer a question of such scope and generality.'

See, Annot., 99 A.L.R.2d 7(1965) for a detailed discussion as to the propriety of asking prospective jurors hypothetical questions on Voir dire examination.

The hypothetical question posed in instant case could not reasonably be expected to result in an answer bearing upon a juror's qualifications.Rather it could well tend to commit, influence or ask the jury for a decision in advance of hearing all of the testimony.

It is the function of the court, not of the counsel for either party, to instruct the jury as to the law arising on the evidence.G.S. § 1--180.State v. Mundy, 265 N.C. 528, 144 S.E.2d 572.Here the trial judge correctly charged the jury as to the law of circumstantial evidence including the following instruction:

'So after considering the evidence in this way and determining the circumstances, if any, which are established beyond a reasonable doubt, the next thing for the jury to determine is do these circumstances exclude every reasonable conclusion except that of guilt.If so, the evidence is sufficient to convict.If not, it is not sufficient to convict.'

We find no error in the trial judge's ruling on the hypothetical question posed by defendant's counsel.

Defendant next contends the trial judge erred by allowing the prosecuting witness to testify she recognized defendant's voice as that of her assailant.

Unless barred by constitutional grounds, identification by voice is admissible.State v. Coleman, 270 N.C. 357, 154 S.E.2d 485;State v. Hicks, 233 N.C. 511, 64 S.E.2d 871;1 Stansbury's North Carolina Evidence (Brandis Revision)§ 96(1973).When identification testimony is offered and defendant objects and requests a Voir dire hearing, the trial judge should hear evidence from both the State and the defendant, make findings of fact, and thereupon rule on the admissibility of the evidence.State v. Williams, 279 N.C. 663, 185 S.E.2d 174;State v. Stepney, 280 N.C. 306, 185 S.E.2d 844.If the trial judge's findings are supported by the evidence they are conclusive upon appellate courts.State v. Taylor, 280 N.C. 273, 185 S.E.2d 677;State v. Harris, 279 N.C. 177, 181 S.E.2d 420.

The prosecuting witness in this case at all times admitted that she could not identify defendant'by sight.'Even so, she did furnish police with a general description as to the height, weight and color of her assailant.During the alleged rape, the assailant spoke several sentences to the prosecutrix, concluding with the statement, 'No, no, don't call the police.'

Defendant did not testify at the preliminary hearing.Prosecutrix did testify but admitted that she could not identify defendant by sight as her assailant.

After the conclusion of the preliminary hearing, at which time defendant was bound over for trial, prosecutrix by chance overheard a whispered conversation between defendant and his counsel, in which defendant said the words, 'No, no.'

During the trial in Superior Court, the Solicitor inquired if the witness recognized defendant's voice.Upon objection by defendant's counsel, Judge Rouse excused the jury and conducted a Voir dire hearing.On Voir dire, Miss Simpkins in part testified:

'You asked if I can describe the voice of the man who was in my apartment on the morning of the 17th of May and I would say he spoke rather quickly and distinctly.It seemed to me--I mean he had an accent of his own.It didn't have much of a southern drawl.He spoke quickly.The main thing I remember was the way he pronounced his words and he had long 'o's.'They were very full 'o's.'When he was leaving that night he said, 'No, no, don't call the Police,' and that was in a half whisper.And it was very anxious.When I heard the defendant say 'No, no,' in the District Court it was in the same anxious tone--it could not have been more perfect.I mean it just sounded exactly like it did that night--the same tone, the same words, same accent and everything.

'After I heard this defendant make the statement, 'No, no,' in the District Court I jumped out of my seat just about.I mean it shocked me and I recognized it right then and I told my attorneys about it.I told the people with me that it sounded exactly like the man I had heard that night.I was talking with Detective Page about it.I told him that was it--that was him--that was him.'

On cross-examination the witness admitted that she testified in District Court that she could not identify defendant'by sight'; however, she said that she was 'positive beyond a reasonable doubt' that defendant was the person she heard speak on the night she was raped.Defendant offered no evidence on Voir dire.The court thereupon made findings of fact and conclusions as follows:

'All right.The Court conducted a Voir dire examination and from the evidence offered the Court makes the following findings of fact:

1.The prosecuting witness is unable to identify the defendant as being her assailant by sight.

2.That she saw the defendant in the District Court at the preliminary hearing.

3.Following the preliminary hearing she overheard the defendant say certain words and specifically the words, 'No, No.'At this time she was some thirty to thirty-five feet away from the defendant.

4.That among the statements allegedly made by the defendant at the time or immediately following the alleged assault were the following: 'No, no, don't call the Police.'

5.That the defendant is identified by the prosecuting witness by his voice.

The Court is of the opinion and finds that there is nothing impermissibly suggestive about the manner and circumstances of this identification and does therefore hold that the voice identification by this witness and the testimony offered on the Voir dire is admissible.'

The jury was recalled and the witness identified defendant as her assailant.On cross-examination, prosecuting witness For the first time testified that prior to her appearance in District Court, the police had shown her a picture of defendant, told her his fingerprint matched the one found in her apartment and informed her that defendant had been arrested.

We are not here concerned with defendant's Sixth Amendment guarantee of counsel at a pretrial lineup.There was no exhibition of the accused by the police officers to identifying witnesses before trial and in absence of counsel.United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149andGilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.In fact, at the time the witness recognized defendant's voice, he was talking to his lawyer.We need only to decide whether the unplanned confrontation in District Court occurred under circumstances so 'unnecessarily suggestive and conducive to irreparable mistaken identification' as to deprive defendant of his constitutional right of due process.Decision must depend largely upon principles found in cases involving identification by sight.Nevertheless, in our opinion the same constitutional principles apply to identification by voice.Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18...