State v. Kennedy

• Decision Date: 07 July 1987
• Docket Number: No. 658A86,658A86
• Citation: 320 N.C. 20,357 S.E.2d 359
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Joseph Edward KENNEDY.

Page 359

357 S.E.2d 359

320 N.C. 20

STATE of North Carolina v. Joseph Edward KENNEDY.

No. 658A86.

Supreme Court of North Carolina.

July 7, 1987.

Lacy H. Thornburg, Atty. Gen. by Jane Rankin Thompson, Asst. Atty. Gen., Dept. of Justice, Winston-Salem, for the State.

Cahoon & Swisher by Robert S. Cahoon and Daniel E. Smith, Greensboro, for defendant.

MARTIN, Justice.

After considering defendant's assignments of error, we conclude that defendant received a fair trial, free of prejudicial error.

In summary, the state's evidence showed that on several occasions in 1985 defendant committed various sexual offenses against his daughter. As a result, the victim spent ten months in a psychiatric hospital and was also treated by medical doctors, psychologists, and social workers.

Defendant testified and produced evidence that he did not assault his daughter and that he was of good character and reputation.

Additional evidence necessary to determine the issues will be hereafter set forth.

Defendant first assigns as error the trial court's denial of his motion to dismiss the indictments against him. Defendant was charged in five separate bills of indictment with sexual offense in the first degree. The indictments were drafted pursuant to N.C.G.S. § 15-144.2, which authorizes a short-form indictment for the crime of sexual offense. Each indictment charges that "on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did engage in a sex offense with [the victim], a female person, by force and against her will." Defendant subsequently filed a motion for a bill of particulars, requesting the "[e]xact time, place and date of each offense charged," and the "[e]xact description of each particular criminal act by defendant." The state's response provided information on the specific sexual act alleged for each offense along with the date, time of day, and place of each offense. The state also filed three supplemental bills of particulars providing more specific information on the nature of the sexual offenses alleged in three of the cases. Defendant now argues that the indictments fail to charge offenses in a manner adequately apprising him of the conduct which is the subject of the accusation as required by N.C.G.S. § 15A-924(a)(5), State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980); that the bills do not specify the sexual offenses alleged to have been committed by the defendant and are thus so general that he could later be charged for the same offense and not be able to raise the earlier prosecution as a bar; and that because each of the bills in three of the cases charges in identical language a first degree sexual offense by defendant against the same victim on the same date, 7 June 1985, it cannot be ascertained whether the jury was unanimous in finding that defendant committed the acts charged. Defendant further contends that a bill of particulars cannot cure a defective indictment. Defendant argues he was deprived of his right to a unanimous jury verdict as guaranteed by article I, section 24 of the North Carolina Constitution, his right to due process, his right to be free from double jeopardy, and his right to proper indictment by a grand jury.

We hold that the indictments were sufficient to charge the crime of first degree sexual offense and to put the defendant on notice of the charges. Nothing more is required. Defendant's contentions on this issue were answered in State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. Edwards, 305 N.C. 378, 289 S.E.2d 360 (1982); and State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978). In Lowe, the Court approved the abbreviated form of indictment. Then, in Edwards, the Court held that an indictment which charges first degree sexual offense in accordance with N.C.G.S. § 15-144.2 without specifying which sexual act was committed is sufficient to charge the crime of first degree sexual offense and to put the defendant on notice of the accusation. The Court in Edwards also pointed out that a defendant requiring additional information regarding the nature of the specific sexual act with which he stands charged may move for a bill of particulars to obtain information not contained in the indictment. Defendant availed himself of this procedure here. Edwards also settled defendant's double jeopardy claim. These holdings were reiterated in Effler, in which the short form indictment in conjunction with the information provided in the bill of particulars was held to have met the requirements for an indictment as set forth in article I, section 23 of the North Carolina Constitution. In that case, Justice Meyer wrote:

[T]he purpose of Article I, § 23 of the North Carolina Constitution, which states that every person charged with a crime has the right to be informed of the accusation, is threefold: to enable the defendant to have a fair and reasonable opportunity to prepare his defense; to avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense; and to enable the court to proceed to judgment according to the law in the case of a conviction.

309 N.C. at 747, 309 S.E.2d at 206. The indictments in the present case were sufficiently particular to apprise defendant of the charges against him with sufficient certainty to satisfy these constitutional guarantees. As to defendant's claim that he was deprived of his right to a unanimous jury verdict, we note that the trial judge submitted a specific instruction with respect to unanimity of verdict as to each indictment and also assigned correlating specific alleged acts of sexual offense to each indictment. This argument has no merit.

In sum, we hold that the indictments charging defendant with the crimes of sexual offense in the first degree were proper in both form and substance. The sexual act alleged need not be specified, State v. Hunter, 299 N.C. 29, 41-42, 261 S.E.2d 189, 197 (1980), and there can be more than one bill of indictment for several crimes which occurred on the same date. The indictments in the present case did not deprive defendant of any of his rights under either the Constitution of the United States or the North Carolina Constitution. This assignment of error is overruled.

Next, defendant alleges that the trial court committed several errors during the jury selection process. First, defendant contends that the prosecutor improperly questioned the jurors. Specifically, he argues that the prosecutor should not have been permitted to ask the prospective jurors whether, if they were satisfied beyond a reasonable doubt of the defendant's guilt, the mandatory life sentences which would be imposed would prevent them from returning a verdict of guilty. He says that unlike capital cases in which it is the function of the jury to recommend a sentence, voir dire inquiries regarding punishment are improper in a case in which the determination as to punishment is for the trial judge. Defendant further argues that even if such questions are permissible, the form of the inquiries asked by the prosecutor in the present case was improper because it was not consistent with N.C.G.S. § 15A-1212(8) which relates to a jury recommendation of the imposition of the death penalty and allows a challenge for cause against a prospective juror who, "[a]s 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."

Our reading of the official commentary to N.C.G.S. § 15A-1212(8) indicates that this section, a codification of the rule in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (challenge for cause where a juror states his unequivocal opposition to capital punishment), was intended to apply not only to the death qualification of prospective jurors in capital cases but also generally to qualifying jurors in all cases. This is because, as the commentary makes clear, "[it was] determined that in other situations certain jurors might, regardless of the circumstances, refuse to vote for conviction." In the case sub judice, defendant faced mandatory life imprisonment on each of five charges. The reasoning in Witherspoon may logically be extended to a situation such as this, where it is entirely reasonable to believe that jurors might balk at convicting defendant on some or all charges because of the severity of the punishment. See Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) ("death qualification" of jury not error where defendant being tried on noncapital murder charge jointly with codefendant being tried on capital murder charge). It is within the discretion of the trial judge, who has the opportunity to see and hear the juror on voir dire and to make findings based on the juror's credibility and demeanor, to ultimately determine whether the juror could be fair and impartial. See Wainwright v. Witt, 469 U.S. 412, 83 L.Ed.2d 841 (1985); O'Bryan v. Estelle, 714 F.2d 365 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L.Ed. 244 (1879).

The primary goal of juror voir dire is to ensure that only those persons are selected to serve on the jury who could render a fair and impartial verdict. An examination of the transcript reveals that the prosecutor asked the prospective jurors the same question in essentially the same way: "If you are satisfied at the conclusion of the evidence in this case that the defendant is guilty beyond a reasonable doubt, would the punishment imposed, a mandatory life sentence, prevent you from returning the verdict of guilty?" This question is acceptable both in form and in substance. Merely because the question fails to incorporate either the "matter of conscience" or "regardless of the facts and circumstances" language of ...