State v. Payne

• Decision Date: 26 July 1990
• Docket Number: No. 510A89,510A89
• Citation: 327 N.C. 194,394 S.E.2d 158
• Parties: STATE of North Carolina v. Philip Reid PAYNE, Jr.
• Court: North Carolina Supreme Court

Page 158

394 S.E.2d 158

327 N.C. 194

STATE of North Carolina v. Philip Reid PAYNE, Jr.

No. 510A89.

Supreme Court of North Carolina.

July 26, 1990.

Lacy H. Thornburg, Atty. Gen. by Jane P. Gray, Sp. Deputy Atty. Gen., Raleigh, for the State.

Sam J. Ervin, IV and Robert C. Ervin, Morganton, for the defendant appellant.

MITCHELL, Justice.

The defendant, Philip Reid Payne, Jr., was tried at the 30 May 1989 Criminal Session of Superior Court, Burke County, upon a true bill of indictment charging him with the murder of his wife, Pamela B. Payne. The jury found the defendant guilty of first-degree murder based upon the theory that the killing was premeditated and deliberate. At the conclusion of a separate sentencing proceeding under N.C.G.S. § 15A-2000, the defendant was sentenced to life imprisonment. On appeal the defendant brings forward several assignments of error. We conclude that the defendant received a fair trial free of prejudicial error.

The State's evidence at trial tended to show that on the afternoon of Monday, 31 October 1988, the defendant intentionally shot and killed his wife with a single blast from a .12 gauge shotgun that he had just finished cleaning. The defendant admitted that he had planned to kill his wife by staging a gun cleaning "accident," but claimed that at the last instant he realized that he could not carry out his plan; then the gun truly did fire accidentally.

Additional evidence will be discussed as it relates to the defendant's assignments of error, which we address seriatim.

I.

The defendant first assigns as error the trial court's refusal to order the State to articulate race-neutral reasons for its peremptory excusals of black jurors from the petit jury, which the defendant contends violated his rights under both the Sixth Amendment to the federal constitution and article I, § 26 of our state constitution. At the conclusion of the jury selection process, after the twelve jurors who decided this case had been selected and two alternates were being selected, the defendant (who is white) objected to the State's use of peremptory challenges against black jurors. The defendant requested that the courtroom clerk record the race and sex of the "prospective" jurors who had already been seated or excused, but the trial court denied his request. The next morning, the defendant renewed his objection via a written motion for the clerk to record the race and sex of jurors. The motion was supported by an affidavit, subscribed by one of the defendant's attorneys, purporting to contain the name of each black prospective juror examined to that point, and whether the State had peremptorily excused, challenged for cause, or passed the prospective juror to the defense (the defendant says one black juror did sit on the trial jury). The trial court, viewing the affidavit's allegations as true, nonetheless ruled that the defendant had failed to make a prima facie showing of a substantial likelihood that the State was using its peremptory challenges to discriminate against black jurors. See, e.g., State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988).

The Supreme Court of the United States has recently ruled that a white defendant "has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury." Holland v. Illinois, 493 U.S. 474, ----, 110 S.Ct. 803, 805, 107 L.Ed.2d 905, 914, reh'g denied, 494 U.S. 1050, 110 S.Ct. 1514, 108 L.Ed.2d 650 (1990). We have not yet decided any similar question arising under our state constitution. However, we need not reach the constitutional issues presented by this assignment of error, as we are not presented with a record on appeal which will support the defendant's argument that jurors were improperly excused by peremptory challenges exercised solely on the basis of race.

By his motion, the defendant sought to have the clerk record the race of the seated jurors and those who had already been peremptorily excused. Regarding a similar proposed practice, we have previously held that:

Although [having the court reporter note the race of every potential juror]might have preserved a proper record from which an appellate court could determine if any potential jurors were challenged solely on the basis of race, we find it inappropriate. To have a court reporter note the race of every potential juror examined would require a reporter alone to make that determination without the benefit of questioning by counsel or any other evidence that might tend to establish the prospective juror's race. The court reporter, however, is in no better position to determine the race of each prospective juror than the defendant, the court, or counsel. An individual's race is not always easily discernible, and the potential for error by a court reporter acting alone is great. As the trial court noted, "[The clerk] might note the race as being one race and in fact that person is another race.... [M]y observation has been you can look at some people and you cannot really tell what race they are." The approach suggested by the defendant would denigrate the task of preventing peremptory challenges of jurors on the basis of race to the reporter's "subjective impressions as to what race they spring from." See Batson [v. Kentucky ], 476 U.S. [79,] 130 n. 10, 90 L.Ed.2d [69,] 109 n. 10 (Burger, C.J., dissenting).

If a defendant in cases such as this believes a prospective juror to be of a particular race, he can bring that fact to the trial court's attention and ensure that it is made a part of the record. Further, if there is any question as to the prospective juror's race, this issue should be resolved by the trial court based upon questioning of the juror or other proper evidence, as opposed to leaving the issue to the court reporter who may not make counsel aware of the doubt. In the present case the defendant did not avail himself of this opportunity....

....

... Thus, the defendant has failed to demonstrate that the prosecutor exercised peremptory challenges solely to remove members of any particular race from the jury.

State v. Mitchell, 321 N.C. at 655-56, 365 S.E.2d at 557.

In the present case, the trial court stated that it would "not require the Clerk or the reporter or anybody else to view someone and determine their sex and race." The trial court noted, however, that had the defendant made his motion prior to jury selection, the court would have had each prospective juror state his or her race during the court's initial questioning. This would have provided the trial court with an accurate basis for ruling on the defendant's motion, and would also have preserved an adequate record for appellate review. See id. Having not made his motion to record the race of prospective jurors until after the twelve jurors who actually decided his case had been selected, the defendant attempted to support his motion via an affidavit purporting to provide the names of the black prospective jurors who had been examined to that point. That affidavit, however, contained only the perceptions of one of the defendant's lawyers concerning the races of those excused--perceptions no more adequate than the court reporter's or the clerk's would have been, as we recognized in Mitchell. See id. For the reasons stated in Mitchell, we conclude that the trial court did not err by denying the defendant's motion for the clerk to record the race of "prospective jurors" after they had been excused and the jury had been selected. See id. For similar reasons, we also conclude that the record before us on appeal will not support the defendant's assignment of error. The defendant's assignment of error is overruled.

II.

The defendant next assigns as error the trial court's refusal to compel the State to disclose certain recorded measurements made during a polygraph examination of the defendant. On 15 November 1988 the defendant voluntarily submitted to a polygraph examination performed by an agent of the State Bureau of Investigation (SBI). After being told that certain answers he had given appeared to be deceptive, the defendant made inculpatory statements to law enforcement officers, which led to his immediate arrest. Throughout the investigation and trial, the defendant consistently contended that the shooting was accidental. It was not until after the polygraph examination that the defendant admitted planning to kill his wife. Even after making this admission, however, the defendant maintained his contention that the actual shooting was accidental, even though he had been planning to shoot his wife until shortly before the gun accidentally fired.

On 23 November 1988 the defendant requested voluntary discovery from the State, including discovery of "[a]ny results or reports of physical or mental examinations or of tests, measurements or experiments" made in connection with the case. See N.C.G.S. § 15A-903(e) (1988). On 10 May 1989 the defendant moved to compel the State to "produce the purported results of the purported polygraph test allegedly administered to the defendant." After a hearing on that same date, Judge C. Walter Allen ordered the State to provide the defense with "the results of any polygraph tests administered to Philip Reid Payne, Jr." The State then provided the defendant with a copy of its "Polygraph Report" which contained, among other information, the opinion of the examiner that deception was indicated, and the three "relevant questions" which, in the examiner's opinion, were answered deceptively by the defendant. On 26 May 1989, four days before trial, the defendant moved for sanctions against the State, contending, as he does here, that the State failed to comply with Judge Allen's order by not providing him with the "results as to what the polygraph showed such as the heart rate and so forth." In his motion the defendant sought to have the statements he made after the polygraph examination suppressed at trial. Even the defendant's written motion...