State v. Noell

• Decision Date: 25 February 1974
• Docket Number: No. 10,10
• Citation: 202 S.E.2d 750,284 N.C. 670
• Parties: STATE of North Carolina v. Tommy NOELL.
• Court: North Carolina Supreme Court

Page 750

202 S.E.2d 750

284 N.C. 670

STATE of North Carolina v. Tommy NOELL.

No. 10.

Supreme Court of North Carolina.

Feb. 25, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen., John R. B. Matthis, Raleigh, for the State.

Robert Epting, Chapel Hill, for defendant appellant.

David E. Kendall, New York City, for the NAACP Legal Defense Fund.

MOORE, Justice.

Defendant first assigns as error the action of the trial court in excusing for cause three prospective jurors: Mr. Alston, Dorothy Stone, and Katherine Alston.

During the selection of the jury, several veniremen stated that they knew defendant and his family. The solicitor asked one of them, Mr. Alston, about the extend of his acquaintance with defendant. Mr. Alston replied, 'Acquainted with the wole family.' The solicitor then asked, 'Well, let me ask you this, sir. As a result of your acquaintance with the family, would it be impossible for you to bring in a verdict of guilty against the defendant?' To which Mr. Alston replied, 'I would think so.' In reply to the solicitor's next question if he would find defendant guilty if the State satisfied him beyond a reasonable doubt of his guilt, Mr. Alston replied, 'Very well acquainted with the family.' The judge then stated, 'That is not the point he's making. If the State satisfied you beyond a reasonable doubt, would you be able to find him guilty?' Mr. Alston replied, 'With the connection of the family, no sir.' The judge then excused him for cause.

Venireman Dorothy Stone stated that she knew defendant, had worked with him in the city schools, was well acquainted with his mother, and was a good friend of the family. In reply to the solicitor's question, 'Would the fact that you're acquainted with and a friend of the family of Mr. Noell make it impossible for you to bring in a verdict of guilty, even if the State satisfied you of his guilt, beyond a reasonable doubt?' She replied, 'It would.' The judge then excused her for cause.

Venireman Katherine Alston stated that she knew defendant and his family and considered them good friends. In answer to the solicitor's question, 'If the State satisfied you of Tommy Noell's guilt beyond a reasonable doubt, would it be impossible for you to bring in a verdict of guilty?' She replied, 'Yes, it would.' The judge then excused her for cause.

G.S. § 9--14 provides that '(T)he presiding judge shall decide all questions as to the competency of jurors.' Decisions as to a juror's competency to serve rests in the trial judge's sound discretion. State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972). The trial judge's rulings on such questions are not subject to review on appeal unless accompanied by some imputed error of law. State v. Harris, supra; State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972). 'The ruling in respect of the impartiality of (a juror) presents no reviewable question of law.' State v. DeGraffenreid,224 N.C. 517, 31 S.E.2d 523 (1944). See also State v. Spencer, 239 N.C. 604, 80 S.E.2d 670 (1954).

In State v. Spence, 274 N.C. 536, 539, 164 S.E.2d 593, 595 (1968), Justice Higgins stated:

'According to the Federal Court decisions 'the function of challenge is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.' The purpose of challenge should be to guarantee 'not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held.' Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Turberville v. United States, 112 U.S.App.D.C. 400, 303 F.2d 411 (cert. den. 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578.'

The three prospective jurors in question stated unequivocally that they could not find defendant guilty even though the State had convinced them beyond a reasonable doubt of his guilt. Thus, they were not impartial jurors and were properly excused for cause.

In his next assignment of error defendant notes that the trial judge allowed the solicitor's challenges for cause of all the prospective Negro jurors who indicated some bias toward defendant because of their acquaintance with him or because of their feelings against the death penalty. Then defendant notes that the solicitor asked the last Negro venireman how long he had known defendant, to which the venireman replied either four or five years. The solicitor peremptorily challenged this venireman. Defendant complains that the trial judge's permitting the elimination of the last remaining Negro from the petit jury by a peremptory challenge after all the other Negroes had been excused for cause violated defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, section 26, of the North Carolina Constitution.

'In all capital cases the State may challenge peremptorily Without cause nine jurors for each defendant and no more.' G.S. § 9--21(b). (Emphasis added.) Peremptory challenges are challenges that may be made according to the judgment of the party entitled thereto without being required to assign a reason therefor, and the reason for challenging a juror peremptorily cannot be inquired into. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). A defendant has no right to be tried by a jury containing members of his own race or even to have a representative of his own race to serve on the jury. Defendant does have the right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. The burden is upon the defendant, however, to establish racial discrimination in the composition of the jury. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

In Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773 (1965), the United States Supreme Court in discussing this question stated:

'In the light of the purpose of the peremptory system . . . we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

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'. . . There is no allegation or explanation, and hence no opportunity for the State to rebut, as to when, why and under what circumstances in cases previous to this one the prosecutor used his strikes to remove Negroes. In short, petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case. Petitioner has the burden of proof and he has failed to carry it.'

Defendant's mere showing that all Negroes in this case were challenged by the solicitor is not sufficient to establish a Prima facie case of an arbitrary and systematic exclusion of Negroes. The record is silent about any prior instances in which the solicitor challenged Negroes from the jury. The defendant has the burden of proof of showing such arbitrary and systematic exclusion, and he has failed to carry that burden. This assignment is without merit.

Defendant next assigns as error the refusal of the trial court to grant defendant's motion to excuse for cause a juror who expressed the view that defendant's interracial marriage would adversely affect her deliberations in the cause. The record pertaining to this juror shows the following occurred:

'MR. EPTING (counsel for defendant): Now, Mrs. Carver, would you let the fact that this man is from an interracial marriage affect your consideration of the testimony in this case?

JUROR CARVER: No.

MR. EPTING: Do you have any personal feelings about interracial marriages?

JUROR CARVER: Not especially.

MR. EPTING: Well, I take it from your answer that you mean that they are not especially strong feelings?

JUROR CARVER: Yes, sir.

MR. EPTING: Do you have any feelings for or against interracial marriages, or are you telling me that your feelings are neutral?

JUROR CARVER: Mine would be against.

MR. EPTING: Do you feel that your feelings against interracial marriage could affect your consideration of the testimony in this case?

JUROR CARVER: It probably could.

MR. EPTING: Your Honor, I would ask that Mrs. Carver be excused.

COURT: The challenge for cause is overruled. You may examine her further, if you would like to.'

Defendant cites Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), in support of his contention that the court should have excused Mrs. Carver for cause. In that case the United States Supreme Court held that the refusal of a lower court to accede to a request that jurors be interrogated about racial prejudice was reversible error in a trial where a Negro was charged with killing a white man. This holding was reaffirmed in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In the present case, however, defendant was allowed to question Mrs. Carver about any prejudice she might have because defendant, a Negro, had married a white woman, and, after overruling defendant's motion to excuse her for cause, the trial court again told defendant's counsel, 'You may examine her further, if you would like to.' Counsel chose not to do so and excused her peremptorily. Under these circumstances, neither Aldridge nor Ham apply.

The question of a...