State v. Matthews

• Decision Date: 14 July 1978
• Docket Number: No. 68,68
• Citation: 245 S.E.2d 727,295 N.C. 265
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William MATTHEWS and Victor Foust.

Page 727

245 S.E.2d 727

295 N.C. 265

STATE of North Carolina v. William MATTHEWS and Victor Foust.

No. 68.

Supreme Court of North Carolina.

July 14, 1978.

Bobby G. Abrams, Wilson, for defendant appellant William Earl Matthews.

Willis A. Talton, Greenville, for defendants appellants William Earl Matthews and Vernon Victor Foust.

Vernon F. Daughtridge, Wilson, for defendant appellant Vernon Victor Foust.

SHARP, Chief Justice.

For our review defendants have submitted 14 questions comprising 60 separate assignments of error based upon 182 exceptions. No purpose would be served by discussing each of these assignments. With the gravity of the charge for which defendants stand convicted constantly in mind, we have carefully scrutinized the record and the multiplicity of alleged errors. We conclude that defendants have failed to show prejudicial error requiring a new trial.

Defendants first contend that their conviction should be overturned because the trial judge refused to allow their motions for a change of venue or a special venire to be selected from a county other than Wilson. In support of these motions defendants assert only that the deceased victim, Mr. Donald E. Mayo, was a member of a large family, well known throughout Wilson County, and that the Wilson Daily Times provided daily coverage of the first trial. For these reasons defendants assert it would be difficult to impanel twelve jurors who knew nothing about the victim or the case.

The decision whether to order a change of venue or a special venire rests in the discretion of the trial judge, and his decision will not be reversed except for gross abuse, such as the denial of a constitutional right. State v. Boykin, 291 N.C 264, 229 S.E.2d 914 (1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), death sentence vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed.2d 1213 (1976). In this case neither abuse of discretion nor prejudice has been shown. The record recites that defense counsel provided the court with the nine issues of the Wilson Daily Times which reported the events of the first trial. These papers are not a part of the record on appeal. Their absence, however, is immaterial since defendants say in their brief, "We do not contend that the articles in said newspaper were either inflammatory or biased."

We specifically reject as devoid of merit defendants' argument that news coverage which accurately reports the circumstances of the case and previous trial can be so "innately conducive to the inciting of local prejudices" as to require a change of venue. The fact that the defendants in this case were black and the victim white is mere happenstance; it is not per se grounds for a change of venue or special venire. Defendants made no attempt at trial, or prior thereto, to show that there existed in Wilson County any prejudice which might have deprived them of a fair and impartial jury, and the record suggests no such prejudice.

Defendants' second group of assignments involve the selection of the jury. In limine, we note that as of 2 July 1976 this appeal ceased to be one in "a death case." On that date, in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, the United States Supreme Court invalidated the death penalty provisions of N.C.G.S. 14-17 (Cum.Supp.1975), the statute under which defendants were indicted, convicted and sentenced to death. Therefore, under the authority of 1973 N.C.Sess.Laws, ch. 1201, § 7 (2d Sess., 1974), a sentence of life imprisonment was substituted in lieu of the death penalty imposed in this case. State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977).

Defendant first contends that the court erred in allowing the district attorney to challenge for cause 14 jurors, each of whom indicated that he was so opposed to capital punishment that regardless of the evidence, and even if convinced beyond a reasonable doubt that a defendant was guilty as charged, he would not return a verdict requiring the death sentence. Notwithstanding that on voir dire defendants did not request any further examination of the challenged jurors, defendants' contention now seems to be that had these jurors been further sifted by the judge he might have found them to be qualified under the rule laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This contention is totally without merit.

The decision in Witherspoon did not restrict the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to defendant's guilt. The ruling of the court was "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty . . . . No defendant can constitutionally be put to death at the hands of a tribunal so selected." (Emphasis added.) Id. at 522-23, 88 S.Ct. at 1777, 20 L.Ed.2d at 784-85. Since each of the 14 challenged jurors declared his inability, no matter what the evidence, to render a verdict mandating the sentence of death, the 14 challenges were properly allowed. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976).

Witherspoon -related errors in the selection of a jury affect only the sentence of death; they will not be held grounds for upsetting a conviction and ordering a new trial. 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, 20 L.Ed.2d at 785. Accord, State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977); State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Montgomery,291 N.C. 235, 229 S.E.2d 904 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). As heretofore pointed out, this appeal involves only the validity of defendants' conviction not the death sentence, for defendants cannot be put to death.

It appears in the record from a statement by one of defendants' counsel that the State used its challenges "to remove all blacks who were called as potential jurors" with the exception of a "police officer who happened to be born black." Since defendants complain that the court allowed "these black defendants" to be tried by a jury composed entirely of whites, presumably defendants excused the policeman. Defendants, of course, are not entitled to a new trial because all the jurors impaneled to try his case were white. A defendant is not entitled to be tried by a jury composed of a proportionate number of his own race, or even a jury on which his race is at all represented. He does, however, have the inviolable right to be tried by a fair and impartial jury, selected from a venire from which no members of any race have been systematically or arbitrarily excluded. E. g., State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). Defendants in this case do not even suggest racial discrimination in the drawing and selection of either the jury lists or the traverse juries.

At one point during the selection of the jury, the State had challenged five jurors, impliedly indicating its acceptance of the seven remaining in the box, and the court instructed the clerk to refill the empty seats. Before this could be done, however, juror No. 1 (Mrs. Ida Sherrod, who, as defendants inform us in their brief, is black) requested permission to ask a question. Mrs. Sherrod then declared, "I'm against capital punishment. I don't believe in killing. . . . I'm against capital punishment, and I want you to understand that." Mrs. Sherrod had been examined by the district attorney and, in response to a specific question, had told him she "felt she could serve" in a capital case. Upon reexamination Mrs. Sherrod said that she would "love to sit" on such a case and stated her views on capital punishment in such a way that they did not subject her to challenge for cause. The district attorney, however, "out of an abundance of precaution," exercised one of his peremptory challenges to excuse her. Defendant contends that the court erred in allowing the district attorney to reexamine, and then excuse, a venireman after indicating that she was satisfactory to the State. Defendant relies on the authority of State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). Fuller does indeed support defendants' position. That case, however, has been overruled by 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). McKenna held that neither the case law nor N.C.G.S. 9-21(b) "prohibits the trial court, in the exercise of its discretion before the jury is impaneled, from allowing the State to challenge peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant." Id., 289 N.C. at 680, 224 S.E.2d at 545. See also State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973), cert. denied, 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1974).

Defendants' remaining exceptions to the selection of the jury are without merit and are overruled.

As detailed in the preliminary statement of facts, at the completion of an extensive voir dire the trial court concluded that the State's witnesses Williams and Branch should be allowed to identify defendants Matthews and Foust in court, and that witness Ellis should be permitted to identify Matthews. The court found that the in-court identifications by these witnesses were independent of their pretrial confrontation with defendants at the Greenville police station, and that the earlier face-to-face encounter "was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental...