State v. Kirkman, 13

• Decision Date: 11 November 1977
• Docket Number: No. 13,13
• Citation: 238 S.E.2d 456,293 N.C. 447
• Parties: STATE of North Carolina v. Tony Gray KIRKMAN and Ronnie Lee Hawks.
• Court: North Carolina Supreme Court

Page 456

238 S.E.2d 456

293 N.C. 447

STATE of North Carolina v. Tony Gray KIRKMAN and Ronnie Lee Hawks.

No. 13.

Supreme Court of North Carolina.

Nov. 11, 1977.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Fred Folger, Jr., and Larry Bowman, Mount Airy, for defendant Kirkman.

Bruce C. Fraser, Winston Salem, for defendant Hawks.

LAKE, Justice.

After the jury, including two alternates, had been selected and impaneled, the court recessed for the day. Before anything else was done the following day, one of the twelve jurors brought to the attention of the court the fact that she had observed a communication between a lady with whom she worked and counsel for one of the defendants and believed it possible that this lady was a relative of such defendant, of which fact the juror had not previously been aware. Upon inquiry by the court, it developed that the lady who had so communicated with the attorney was the wife of the defendant Hawks. There was no suggestion of any impropriety in the conduct of Mrs. Hawks or of any communication between her and the juror. In response to questions by the court, the juror stated that she would feel no embarrassment in serving on the jury and returning a verdict against the defendant Hawks, if the evidence so warranted, and then continuing to work with Mrs. Hawks. The District Attorney then asked the juror a few questions with reference to the extent and duration of her acquaintance with Mrs. Hawks.

The remaining jurors were then brought back into the courtroom and the court inquired if the State was ready to proceed. Thereupon, the District Attorney requested a conference with the court in the absence of the jury and the jury was again sent from the courtroom. The District Attorney then advised the court that had he known of the above circumstances he would have excused the juror. He requested leave to reopen the examination with reference to this particular juror. In its discretion, the court permitted this and called the juror back for further examination. Without further questioning, the District Attorney "in the interest of time" exercised one of his remaining three peremptory challenges, and the court, in its discretion, allowed the challenge over the objection of the defendants, seating one of the alternate jurors in place of the juror so excused. The jury was then reimpaneled. The defendants moved for a mistrial, which motion was denied. Neither defendant had exhausted his peremptory challenges and neither defendant requested permission to make any further examination of the alternate juror so seated as one of the twelve. The trial then proceeded.

In this we find no reversible error. The purpose of selecting alternate jurors is to permit a trial to proceed although one of the impaneled twelve becomes ill or otherwise unable to serve. Neither defendant suggests that any of the jurors who actually served was incompetent to do so or objectionable to such defendant. It is well established that, prior to the impaneling of the jury, it is within the discretion of the trial judge to reopen the examination of a juror, previously passed by both the State and the defendant, and to excuse such juror upon challenge, either peremptory or for cause. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. den., 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1973).

In the foregoing cases, we held that G.S. 9-21(b) providing that the State's challenge, whether peremptory or for cause, must be made before the juror is tendered to the defendant "does not deprive the trial judge of his power to closely regulate and supervise the selection of the jury to the end that both the defendant and the State may receive a fair trial before an impartial jury." State v. McKenna, supra, 289 N.C. at 679, 224 S.E.2d at 545. In all the foregoing cases, the challenge in question was allowed before the jury was impaneled. We perceive no reason for the termination of this discretion in the trial judge at the impanelment of the jury. This assignment of error is overruled.

Assignments of Error 6, 7 and 8 are based upon alleged violations of the Hearsay Rule in the admission of the State's evidence. Over objection, witnesses for the State were permitted to testify that the District Attorney and investigating police officers had told the witnesses "to tell the whole truth and nothing but the truth." Obviously, testimony that such an instruction was given to the witness who is testifying thereto is not hearsay.

Dreama Smith testified, without objection, that it was she, Easter, Betty Ramey and Clayton Gravely who were talking in the trailer prior to the first arrival of the defendant Kirkman. She saw that Gravely had a gun and he told them that he had it to protect himself. To a question by the District Attorney as to what Gravely said about money, the defendants objected. The objection was overruled and Dreama Smith answered, "He said that he had plenty of money on him and he tried to talk Betty into leaving with him." This was not hearsay. The purpose of this evidence was not to prove that Gravely did, in fact, have money on his person but was to show that the statement was made in Betty Ramey's presence.

Dreama Smith then continued to testify, without objection, that upon the arrival of Kirkman at the trailer he and Betty Ramey went into another room and had a conversation, immediately following which he and Betty Ramey left the trailer. Over objection, Dreama Smith was then permitted to testify that she heard Betty Ramey tell Kirkman, in this conversation, "about what money Clayton (Gravely) had on him." Subsequently, when called as a witness, Betty Ramey denied making such a statement to Kirkman, but she further testified that she, Betty Ramey, saw "several hundred dollar bills in his (Gravely's) billfold." While Dreama Smith was still testifying, the court recessed for the day. At the start of the next day's session, the court instructed the jury that he was reversing his ruling of the previous day, was allowing the objections of the two defendants to the testimony of Dreama Smith concerning what she had heard Betty Ramey say to the defendant Kirkman about what money Gravely had on him and was directing the jury not to consider such testimony by Dreama Smith. The defendant contends that it was impossible for the court by this instruction to remedy its alleged error in initially admitting the evidence and therefore, a new trial should be granted.

The fallacy of this contention is that the error of the court was not in admitting the evidence but in instructing the jury to disregard it, which error was, of course, not prejudicial to the defendants. This testimony of Dreama Smith as to the statement she heard Betty Ramey make to the defendant Kirkman, whatever may have been the source of Betty Ramey's information, was not hearsay evidence. The purpose of Dreama Smith's testimony on this point was not to prove the correctness of the statement of Betty Ramey to Kirkman as to what money Gravely had on his person. The purpose of the evidence was simply to establish that the statement was, in fact, made to Kirkman, thus planting in his mind the belief that Gravely had money on his person and thus providing a motive for the killing of Gravely.

The evidence of the State is that, immediately following this conversation in the back bedroom of the trailer between Betty Ramey and Kirkman, the two of them left the trailer, Kirkman returning in approximately 20 minutes with Hawks, and the shooting of Gravely occurring in two or three minutes after the two men entered the trailer and before anything occurred other than simple salutations.

The Hearsay Rule does not preclude a witness from testifying as to a statement made by another person when the purpose of the evidence is not to show the truth of such statement but merely to show that the statement was, in fact, made. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Griffis, 25 N.C. 504 (1843); Stansbury, North Carolina Evidence (Brandis Rev., 1973), § 141.

These assignments of error are overruled.

David Beal, an agent of the State Bureau of Investigation, testified that he interviewed Easter and Dreama Smith, jointly, on two occasions and observed and listened to a third interview with these witnesses conducted by other officers. Over objection, he was permitted to testify as to statements made by them. Repeatedly, throughout his testimony, the judge instructed the jury that this testimony was not substantive evidence but was admitted solely for the purpose of corroborating Easter and Dreama Smith, if the jury found that it did so corroborate them. Beal testified that in their first statement Easter and Dreama Smith told him they were both in the bedroom of the trailer at the time Gravely was killed and so did not actually witness the shooting, but on the second interview, Easter told him that he (Easter) had not told the truth in the first statement, that he was present in the trailer and actually witnessed the killing of Gravely and that Hawks had pulled out a pistol and shot Gravely, Kirkman being present in the trailer at the time. Beal testified that Dreama Smith told him she was actually in the bedroom at the time the killing occurred and did not witness it.

The defendant Kirkman objected to the testimony by Beal concerning the first statement made to him by Easter, for the reason that this did not corroborate Easter's own testimony. Easter's own testimony with reference to this matter was that he first talked to Agent Beal and Captain Scott of the Surry County Sheriff's Department and told them nothing but...