State v. McKenna

• Decision Date: 14 May 1976
• Docket Number: No. 22,22
• Citation: 224 S.E.2d 537,289 N.C. 668
• Parties: STATE of North Carolina v. Edward Martin McKENNA.
• Court: North Carolina Supreme Court

Page 537

224 S.E.2d 537

289 N.C. 668

STATE of North Carolina v. Edward Martin McKENNA.

No. 22.

Supreme Court of North Carolina.

May 14, 1976.

William B. Marshall, Jr., Raleigh, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen., Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., and William H. Guy, Associate Atty., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Prior to arraignment defendant moved to dismiss the murder charge on the ground that, prior to trial, he had not been served with an arrest warrant, indictment, or other criminal process informing him of the particulars of the charge against him. After a voir dire hearing, the trial judge made findings of fact and concluded as a matter of law that defendant had shown no prejudicial denial of his constitutional rights. Denial of the motion to dismiss constitutes defendant's first assignment of error.

Defendant contends he was denied due process in that he was not adequately informed of the charge against him and thus was prejudiced in the preparation of his defense. For the reasons which follow, this contention is without merit.

Although defendant was never served with the warrant, the record indicates that a valid warrant was issued on 20 April 1975, a true bill was returned on 28 April 1975 charging defendant with murder, and defendant's own affidavit indicates he was given a copy of the murder indictment soon thereafter. Paragraph 8 of his affidavit reads: 'That he was not informed of the Grand Jury proceedings nor given a copy of the murder indictment against him until over a week after the Grand Jury sat.' Moreover, a capias Instanter was served on defendant on 15 May 1975 informing him that he was under indictment for murder. Defendant was advised of the details of the charge by the officer who served the capias and also by his attorneys. He was arraigned and placed on trial on 7 July 1975. The record shows he had counsel at all times after 7 May 1975 and that no motion was ever made for a bill of particulars or for additional time within which to prepare his defense. These facts strongly suggest that defendant was sufficiently apprised of the charges against him and had adequate time to prepare his defense.

The usual practice, and the better practice in our view, is to serve defendant promptly with the arrest warrant. This would have informed him of the charges against him. Such service, however, is not a constitutional requirement of due process. Due process is satisfied if the defendant is adequately notified of the charge against him, is permitted to confront his accusers and witnesses with other testimony, has assistance of counsel, and is afforded adequate time to prepare and present his defense. See State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, Cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499 (1972); State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948). The record in this case indicates that defendant was afforded all of these safeguards. No prejudice has been shown by failure to serve the warrant. If defendant needed additional information concerning the charge against him, a bill of particulars, as authorized by former G.S. 15--143 (now G.S. 15A--925), would have provided it. See State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973). This assignment is overruled.

Defendant's second assignment is not discussed in his brief and is therefore deemed abandoned. Rule 28, Rules of Appellate Procedure.

After twelve jurors had been accepted by both the State and the defendant, but before the jury had been empaneled, it was brought to the attention of the presiding judge that Juror No. 7, Mrs. Ella Johnson, had stated to Juror No. 8, Mrs. Virginia Reynolds, 'I hope they acquit him,' in violation of the court's earlier instructions that the jurors should not discuss the case among themselves until they had heard all the evidence, the argument of counsel, the instructions of the court, and had retired to the jury room for the purpose of deliberating upon their verdict. The district attorney thereupon moved 'that the court in its discretion permit the State to exercise one of its remaining peremptory challenges.' The court, over objection, allowed the motion 'in its discretion and in the interest of justice.' Mrs. Johnson was then excused peremptorily by the State. An additional juror was questioned and passed by both the State and the defendant and the jury was empaneled. This ruling constitutes defendant's third assignment of error.

G.S. 9--21(b) provides in pertinent part that '(t)he State's challenge, peremptorily or for cause, must be made before the juror is tendered to the defendant.' We have held, however, contrary to defendant's contention, that the statute 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. Harris, 283 N.C. 46, 194 S.E.2d 796, Cert. denied, 414 U.S. 850, 38 L.Ed.2d 99, 94 S.Ct. 143 (1973). This view has been sustained in numerous cases, including State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975); and State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), Death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972). We are persuaded anew that our holding on this point in State v. Harris supra, is sound. Nothing in G.S. 9--21(b) prohibits the trial court, in the exercise of its discretion before the jury is empaneled, from allowing the State to challenge Peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant. '(I)t is the duty of the trial judge to see that a competent, fair and impartial jury is empaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. Decisions as to a juror's competency at the time of selection and his continued competency to serve are matters resting in the trial judge's sound discretion and are not subject to review unless accompanied by some imputed error of law.' State v. Waddell, supra.

We are not inadvertent to the decision of this Court in State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). In that case defendant was charged with murder. A prospective juror was passed by the State and the defendant, but before he was sworn the juror asked to be excused because of a long friendship with the defendant who was also related to him by marriage. The trial judge ruled there was no ground for challenge for cause but permitted the State to challenge the juror peremptorily. This Court, holding this to be error, stated:

'The discretionary power of the Judge was confined to challenges for cause. He had no more authority to extend the time for making peremptory challenges beyond the limit fixed by the statute than he had to increase the number allowed to the State beyond four. The question of the proper interpretation of the language of the statute is one for this Court, and its meaning seems so plain as to require but little further discussion of this exception. . . .'

In State v. Harris, supra, we distinguished Fuller on the ground that the challenge in Fuller was peremptory whereas in Harris the juror was challenged for cause. Justice Branch, however, writing for the Court in Harris, said:

'If the present case and Fuller were not distinguishable, and Fuller was interpreted to hold that under a statute similar to G.S. 9--21(b) the trial judge was divested of his supervisory and discretionary powers to insure the selection of a fair, competent and impartial jury, we would be compelled by the forces of better reasoning and the overwhelming weight of authority to overrule that portion of Fuller so holding.'

Following this intimation in Harris, we held in State v. Wetmore, supra, that the trial court did not abuse its discretion in allowing the district attorney to reexamine two prospective jurors after both had been passed by the State and the defendant And excuse one for cause and the other peremptorily. Thus we no longer regard as authoritative that portion of Fuller which holds that the trial judge may not, in the exercise of his discretionary and supervisory powers to insure an impartial jury, permit the district attorney to challenge peremptorily a prospective juror after the juror has been passed by the State and tendered to the defendant. State v. Fuller, supra, insofar as it is inconsistent with the views expressed in this opinion, is overruled.

Defendant suffered no prejudice when the State was permitted to challenge Mrs. Johnson peremptorily. He is not entitled to a jury of his choice and has no vested right to any particular juror. So long as the jurors who are actually empaneled are competent and qualified to serve, defendant may not complain; and this is particularly true where, as here, defendant fails to exhaust his peremptory challenges. See State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975). This assignment of error is overruled.

Two photographs, State's Exhibits 2 and 5, portraying the condition and location of the victim's body at the scene of the killing, were admitted into evidence over objection. Defendant contends that the scenes depicted are basically identical to those shown by other photographs and exhibits offered by the State. He argues that the limited probative value for illustrative purposes of State's Exhibits 2 and 5 was far outweighed by their inflammatory and prejudicial effect upon the jury. Admission of these photographs constitutes the basis for defendant's fourth assignment of error.

Photographs of the scene of a homicide are competent in this jurisdiction for the...