State v. Kirkley

Decision Date03 May 1983
Docket NumberNo. 155A81,155A81
Citation308 N.C. 196,302 S.E.2d 144
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Clinton Rondale KIRKLEY.

Rufus L. Edmisten, Atty. Gen. by Asst. Atty. Gen. Joan H. Byers, Raleigh, for the State.

Adam Stein, Appellate Defender by Asst. Appellate Defender Ann B. Petersen, Raleigh, for defendant-appellant.

COPELAND, Justice.

Defendant brings forward numerous assignments of error which he contends require a new trial for these crimes, or a new sentencing hearing for the murder convictions, or both. We disagree as to the defendant's arguments for a new trial and affirm his convictions but we conclude that he is entitled to a new sentencing hearing.

GUILT PHASE
I.

Defendant contends that he was deprived of his right to life without due process of the law and that he was deprived of right to trial by jury because seven potential jurors were struck for cause upon the State's challenge for cause, due to their scruples against capital punishment, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This issue has been raised many times before this Court. In State v. Pinch, 306 N.C. 1, 9, 292 S.E.2d 203, 213 (1982), cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), we stated:

The applicable constitutional standard permits the excuse of a potential juror for cause if it is established that he 'would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case....' Witherspoon v. Illinois, 391 U.S. 510, 522 at n. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 785 (1968); see State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980).

(Original Emphasis). Prior to the Witherspoon decision prospective jurors were excused for cause if they had a personal or religious conviction that the death penalty was wrong. Such a practice resulted in 79 of 150 veniremen being excused for cause in State v. Spence, 274 N.C. 536, 164 S.E.2d In the case sub judice sixty-three veniremen were examined over a period of four days resulting in seven hundred and forty- nine pages of transcript. Seven of these sixty-three veniremen were successfully challenged for cause by the State. Of these seven potential jurors struck for cause, six veniremen gave absolute, unequivocal statements that they would be unable to follow the law and would not vote to recommend a sentence of death even if the State had convinced them beyond a reasonable doubt that the aggravating circumstances required the death penalty. For each of these six prospective jurors it was not his feelings against the death penalty which resulted in his being challenged for cause, instead it was his inability to follow the law. Therefore, each of these six jurors was properly challenged for cause under the rule established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

593 (1968). As recognized in Witherspoon the fact that someone opposes the death penalty, for whatever reason, does not mean they will not fullfil their duty to the state and refuse to impose the death penalty.

The seventh venireman to be excused for cause was Mrs. William McKee. A review of the transcript which covered her questioning during the jury selection process reveals in part of the following:

Examination by the Court:

* * *

* * *

Q. If you were satisfied beyond a reasonable doubt of the things the law requires you to be satisfied about then would you recommend, in accordance with the law, recommend a sentence of death, or do you have such strong feelings about the death penalty that even though you were satisfied beyond a reasonable doubt as to those things, you would not vote for the death penalty?

MRS. McKEE: I don't feel like I would.

Q. You feel that even though the State had satisfied you of the three elements of the presence of an aggravating circumstance, that it was sufficiently substantial to call for the imposition of the death penalty, and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances, you still feel that you could not vote for the death penalty, even though you were convinced of those things?

MRS. McKEE: I don't think I could.

* * *

* * *

Examination by defense attorney, Mr. Chapman.

Q. Could you tell us what your personal views are on the death penalty?

MRS. McKEE: I'm not sure I know exactly how I feel about it definitely. Given a certain set of personal circumstances, I might have had one feeling one way and another feeling the other way.

Juror McKee indicated, in response to a question concerning her personal views on the death penalty, that she wasn't exactly sure how she felt about it "definitely," but that it would depend on the circumstances. While the question had some relevance in determining Ms. McKee's ability to function within the law as a "death qualified" juror, the answer was not dispositive; that is, an equivocal answer respecting a juror's personal views on the death penalty does not answer the question of whether this prospective juror, in this particular case, would in fact recommend death if legally bound to do so. When asked whether she would vote for the death penalty under the appropriate circumstances, Ms. McKee answered that she didn't feel she could and she didn't feel she would. We find no equivocation in these answers, which are clearly negative in import. We find no significance in the fact that juror McKee stated that she didn't feel or think she could vote for the death penalty. While the Court might have gone further and required a simple yes or no answer, failure to do so is not fatal, where the court is satisfied, after observing the demeanor of the juror and hearing the responses, that the juror has indicated a negative response.

Although Mrs. McKee's responses to questions asked by the court as to whether Defendant also contends that the exclusion of the seven veniremen for cause deprived him of his right to a trial by jury drawn from a cross-section of the community. This exact issue was recently decided by this Court contrary to the defendant's position. "The excuse of these jurors for cause did not deprive defendant of his constitutional rights to trial a by jury representing a cross-section of the community or due process of law." State v. Pinch, 306 N.C. 1, 9, 292 S.E.2d 203, 213 (1982), cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). This assignment of error is overruled.

she would put her personal views aside and follow the law were phrased in the form of "I don't feel like I would" or "I don't think I could", they reflect her inability to follow the law when considered in the context of her entire examination. State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982), cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). We therefore hold that the seven jurors were properly challenged and excused for cause.

II.

The defendant contends that he was prejudiced during the guilt phase of his trial due to the trial court's exclusion of opinion testimony by Mr. O.B. Starnes, a psychologist who administered a battery of psychological examinations to the defendant on 25 May 1981, one week after the crimes were committed. Defendant's counsel at trial attempted to have Mr. Starnes give an opinion as to the defendant's mental status at the time of the examinations. The State objected to Mr. Starnes' opinion on the basis that the defense had failed to comply with the pretrial discovery concerning this testimony. The court sustained the State's objection on the basis that the defendant's mental state one week after the crimes were committed was not relevant to his mental state at the time the crimes took place. However, the trial judge did suggest that a question concerning defendant's mental capacity on the day of the crimes would be admissible.

The law in this State concerning a defendant's mental state at times before and after a crime is committed is set out in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). Justice Lake, speaking for the Court, stated, that "the mental condition of the accused, both before and after the commission of the act, is competent provided it bears such relation to the defendant's condition of mind at the time of the alleged crime as to be worthy of consideration in respect thereto." 275 N.C. at 314, 167 S.E.2d at 256. Although the mental condition of the accused in this case, one week after the shootings occurred, is not determinative of his mental state at the time of the crimes, it is due some consideration.

However, it is the defendant's burden to establish that the exclusion of evidence was prejudicial to his case. State v. Boykin, 298 N.C. 687, 259 S.E.2d 883 (1979). The defendant has failed to show that the exclusion of Mr. Starnes' opinion testimony resulted in prejudice. In the first instance, the defense attorney at trial stated that Mr. Starnes' testimony was being offered to show the professional manner in which the psychological testing was administered. The court allowed testimony as to the professional manner in which the testing was conducted and only excluded the opinion testimony. Secondly, even if the defense had desired to have Mr. Starnes give his opinion concerning defendant's mental condition one week after the shootings, there is nothing in the record on which this Court can base a decision as to whether the exclusion was prejudicial. The defense failed to take exception to Judge Snepp's ruling at trial and failed to have the opinion testimony placed into the record. Under G.S. § 15A-1446(a) a party is required to take an exception to a ruling excluding evidence and offer such evidence into the record when the evidence is excluded. The purpose of this rule is to enable a reviewing court to make an informed decision. As the record stands in ...

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