State v. Macon

• Decision Date: 15 April 1970
• Docket Number: No. 35,35
• Citation: 173 S.E.2d 286,276 N.C. 466
• Parties: STATE of North Carolina v. Edward Grady MACON, Jr.
• Court: North Carolina Supreme Court

Page 286

173 S.E.2d 286

276 N.C. 466

STATE of North Carolina v. Edward Grady MACON, Jr.

No. 35.

Supreme Court of North Carolina.

April 15, 1970.

Hatch, Little, Bunn, Jones & Liggett by E. Richard Jones, Jr., and William P. Few, Raleigh, for defendant appellant.

Robert Morgan, Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

HUSKINS, Justice.

The only constitutional question preserved and presented here for review is whether or not the trial court erred in allowing Deputy Sheriff Connie Holmes and Deputy Sheriff W. L. Pritchett, over objection, to act as court officers or bailiffs during the trial of this case in spite of the fact that both officers were witnesses and testified against the defendant. Defendant contends this amounted to a denial of Due Process under the Fourteenth Amendment and was a violation of his Sixth Amendment right to be tried 'by an impartial jury of the state and district wherein the crime shall have been committed.' We first examine decisions of this Court on the question presented.

In State v. Hart, 226 N.C. 200, 37 S.E.2d 487 (1946), a deputy sheriff who was sworn and served as 'officer of the jury' was also a witness for the State in the trial of the case. The extent of his exposure to the jury is not revealed by the record. Held: 'The decisions by the various courts have not been in accord, but we are now of the opinion that the weight of authority is to the effect that an officer is not necessarily disqualified from acting as custodian of a jury in a criminal case because he happens to be a witness in the case. It is our opinion, and we so hold, that actual prejudice must be shown before the result of the trial can be, as a matter of right, disturbed. * * * (T)he findings of the trial judge upon the evidence and facts are conclusive and not reviewable.'

In State v. Taylor, 226 N.C. 286, 37 S.E.2d 901, an automobile which was then parked behind the courthouse was an exhibit material to the State's case. During the trial the car was offered in evidence, and the jury was permitted to retire to the courtyard in the custody of a deputy sheriff to view the vehicle. The deputy designated to conduct the jury to the courthouse lawn was a witness for the State. There was no suggestion of any misconduct on the part of the jury or the officer, but defendant insisted that the occurrence was highly prejudicial to him. Held: 'The practice of putting the jury in the custody of an officer who has actively investigated the evidence or has become a witness for the State is not to be approved. While, in the absence of evidence of some fact or circumstance tending to show misconduct on the part of the officer or the jury, we hesitate to make it alone the grounds for a new trial, we do stress the need for trial judges to be extremely careful to avoid such incidents. * * * (T)hese occurrences always, as here, tend to bring the trial into disrepute and produce suspicion and criticism to which good men should not be subjected.'

In State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190, defendant's motion for a mistrial and for a new trial was based upon a conversation between the bailiff and the jury foreman. During jury deliberations the bailiff opened the door to the jury room in response to a knock on the door and the following conversation, as related by the bailiff, took place: 'The foreman asked me if he could ask me a question. I told him I could not answer a question. He says 'We wanted to know how quick a parole was possible.' I says 'It has nothing to do with the evidence.' And I reported it to the judge.' Nothing else was said. While disapproving the conduct of the bailiff in assuming the role of the judge, the Court said: 'The great weight of authority sustains the rule that '* * * a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for a new trial by the accused in a criminal case as well as of applications made in civil actions. * * * (A)nd if a trial is really fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity which is shown to have done no actual injury. * * * The matter is one resting largely within the discretion of the trial judge.' 39 Am.Jur., New Trial, § 101.' See Stone v. Griffin Baking Co., 257 N.C. 103, 125 S.E.2d 363, where this statement of the rule is quoted with approval. See also Annotation: Prejudicial Effect, in Criminal Case, of Communication Between Court Officials or Attendants and Jurors, 41 A.L.R.2d 227.

Conceding that prior holdings of this Court do not support his position, defendant contends that Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), has invalidated those decisions and obviated the necessity for a showing of prejudice. Defendant argues that prejudice is inherent where a State's witness is placed in charge of the jury and, in a constitutional sense, amounts to a denial of due process.

In the Turner case defendant was charged with murder in the perpetration of a robbery. Members of the jury were sequestered in accordance with Louisiana law and 'placed in charge of the Sheriff.' The jurors 'were continuously in the company of deputy sheriffs * * * during the three days that the trial lasted. The deputies drove the jurors to a restaurant for each meal, and to their lodgings each night. The deputies ate with them, conversed with them, and did errands for them.' Two of these deputies were the State's principal witnesses. One described in detail an investigation he had made at the scene of the murder. He further testified that the two of them later took Turner into custody, and that Turner led them to a place in the woods where a cartridge clip from the murder weapon was recovered. The second deputy corroborated this testimony and told of certain damaging admissions made by Turner at the time of his apprehension. This witness further described the circumstances under which Turner made a written confession--later offered in evidence.

Defendant moved for a mistrial when the deputies testified and for a new trial after the jury returned a guilty verdict. The motions were denied and Turner was sentenced to death. The Supreme Court of Louisiana affirmed on the ground that there was no showing of prejudice. 244 La. 447, 152 So.2d 555. On certiorari, the Supreme...