State v. Madden

• Decision Date: 07 March 1977
• Docket Number: No. 27,27
• Parties: STATE of North Carolina v. Michael Edward MADDEN and Charles Bruce Keeten.
• Court: North Carolina Supreme Court

Page 656

232 S.E.2d 656

292 N.C. 114

STATE of North Carolina v. Michael Edward MADDEN and Charles Bruce Keeten.

No. 27.

Supreme Court of North Carolina.

March 7, 1977.

Rufus L. Edmisten, Atty. Gen., by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State.

Nelson M. Casstevens, Jr., Charlotte, for Madden.

Arther Goodman, Jr., Charlotte, for Keeten.

LAKE, Justice.

There was no error in the denial of the motion of Madden for a separate trial. The two defendants were duly charged in separate indictments with the same crime. The State proceeded upon the theory that the murder, with which they were charged, was committed in the course of a robbery committed by them jointly. Their defenses were not antagonistic. On the contrary, each testified in support of their joint alibi. Neither, in his testimony or other evidence, attempted to incriminate the other defendant. This assignment of error is overruled. G.S. 15A--926; State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975); State v. Overman, 269 N.C. 453, 466, 153 S.E.2d 44 (1967); State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962); State v. Bryant, 250 N.C. 113, 108 S.E.2d 128 (1959); State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931).

The defendants are not entitled to a new trial by reason of the sustaining of the State's challenges to jurors who, on voir dire, stated that they were opposed to the death penalty and under no circumstances, regardless of the evidence introduced by the State, would they vote to convict if such conviction would result in the imposition of the death penalty. At the time the jury was being selected, the State was seeking the death penalty pursuant to the then established law of North Carolina. It is conceded by the defendants that the sustaining of the challenges to these jurors met the test established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and in numerous decisions of this Court. State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). The fact that between the empaneling of the jury and the return of the verdict, the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), determined that the imposition of the death penalty under the laws of North Carolina, then in effect, would violate the Fourteenth Amendment to the Constitution of the United States did not transform the sustaining of these challenges to prospective jurors into a valid basis for granting these defendants a new trial.

Prior to the inception of this case, decisions of this Court established the right of counsel for the State and counsel for the defendant charged with a capital crime to examine any prospective juror, tendered to him for voir dire, concerning the attitude of such juror toward capital punishment. State v. Bock, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). The then unsuspected error of counsel, in so advising prospective jurors as to the punishment which would be imposed upon these defendants in event of their conviction of first degree murder, was corrected by the charge of the court, upon the court's learning of the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra.

The defendants do not contend that the jurors voted to convict under the impression that the defendants would be sentenced to death. Their contention is quite to the contrary; namely, that the jurors were improperly excused because they were unwilling to have any part in the infliction of the death penalty and would not return a verdict of guilty which would have resulted therein. Thus, they contend that the exclusion of these prospective jurors, plus the subsequent instruction that the death penalty would not be inflicted, resulted in a trial jury unlawfully predisposed to convict the defendants of a crime for which the punishment was not death, but life imprisonment.

This contention of the defendants is wholly speculative and without merit. In the first place, it is speculative as to whether any of the eight jurors, excused because of their opposition to the death penalty, would have survived other challenges by either the State or one of the defendants. Secondly, nothing in the record, or in common experience of which we may take judicial notice, indicates that any prospective juror, so excused, had any scruple against convicting a defendant upon the charge of first degree murder, when the evidence satisfied such juror of his guilt thereof beyond a reasonable doubt, had such prospective juror been told, as the trial jury in this case was told, that the penalty to be imposed upon such conviction would be imprisonment for life. We are aware of no plausible basis for the assertion that a juror, who has no conscientious objection to the imposition of the death penalty for the offense of murder committed in the perpetration of a robbery, would be more easily convinced of guilt beyond a reasonable doubt than would a juror having conscientious objection to the death penalty but no objection to a sentence to life imprisonment for such offense. This contention was met and rejected by the Supreme Court of the United States in Witherspoon v. Illinois, supra. It was also rejected by this Court in State v. Williams, 257 N.C. 77, 165 S.E.2d 481 (1969). See also: Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); People v. Rhinhard, 9 Cal.3d 139, 107 Cal.Rptr. 34, 507 P.2d 642 (1973); Commonwealth v. McAlister, 365 Mass. 454, 313 N.E.2d 113 (1974); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975).

The defendants do not suggest that any member of the trial jury was not competent to serve. The defendants closely examined each of these jurors and expressed satisfaction with him or her, after first challenging successfully numerous other prospective jurors. The record does not indicate that either defendant exhausted the peremptory challenges allowed him by the law of this State. See: State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970); State v. Bock, supra.

As this Court, speaking through Justice Higgins, said in State v. Peele, 274 N.C. 106, 113, 161 S.E.2d 568, 573 (1968), cert. den., 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 570:

'Each party to a trial is entitled to a fair and unbiased jury. Each may challenge for cause a juror who is prejudiced against him. A party's right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him.'

As the defendants concede in their briefs, this Court has, both before and after the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, rejected the contention that a trial jury, selected as was the one thst convicted these defendants, is improperly constituted, so as to entitle the defendant, convicted and sentenced to imprisonment, to a new trial. State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). This assignment of error is overruled.

The defendants next contend that they were denied a fair trial because the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, became known after counsel for Keeten had concluded his argument to the jury and prior to the argument to the jury by counsel for Madden. Nothing in the record, brief or oral argument by counsel for Keeten suggests that he requested permission of the trial court to resume his argument to the jury after it became known that the death penalty would not be imposed in event of a verdict of guilty of murder in the first degree. The record shows that, in the absence of the jury, when the trial court determined, on the basis of information received through the news media, that the death penalty could not be constitutionally imposed in this case, he informed counsel that he would instruct the jury that, in event of a verdict of guilty, the maximum punishment would be life imprisonment and that he would permit the attorneys so to argue. Counsel for Keeten thereupon requested only an instruction that 'this does not change the measure of proof or quantum of proof necessary,' and 'that the jury be specifically instructed that if they could not have found them guilty beyond a reasonable doubt and sentenced them to the death penalty, that they could not find them guilty by the same measure of proof to be sentenced to life imprisonment.' This instruction, in a more grammatical form, was given. Counsel for Madden, interposing no objection to the proposed (and given) instructions concerning the punishment to be inflicted in event the jury returned a verdict of guilty of murder in the first degree, then proceeded with his argument to the jury.

This precise contention was rejected by the Court of Appeals of Washington in State v. Trevino, 10 Wash.App. 89, 516 P.2d 779 (1973), following the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

The decision of the Supreme Court of the United States with reference to the constitutionality of the death penalty did not alter the charge against the defendants. They remained on trial on the charge of murder perpetrated in the commission of a robbery, which is first degree murder under the law of this State. The jury was specifically instructed as to each defendant that it must return a verdict of not guilty unless the State had convinced it beyond a reasonable doubt that such defendant had committed each element of the offense charged. We reject as utterly without foundation the defendants' implied contention that, upon learning that the death penalty could not be imposed, the jury relaxed and voted to convict without considering the...