State v. Rogers

• Citation: 316 N.C. 203,341 S.E.2d 713
• Decision Date: 02 April 1986
• Docket Number: No. 165A84,165A84
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Charles Gene ROGERS, aka "Daddy Rich" aka Charles Gene Paige and Belinda Joyce Carraway.

Page 713

341 S.E.2d 713

316 N.C. 203

STATE of North Carolina v. Charles Gene ROGERS, aka "Daddy Rich" aka Charles Gene Paige and Belinda Joyce Carraway.

No. 165A84.

Supreme Court of North Carolina.

April 2, 1986.

Lacy H. Thornburg, Atty. Gen. by J. Michael Carpenter, Sp. Deputy Atty. Gen., Raleigh, for State.

Herbert B. Hulse, Goldsboro, for defendant-appellant Rogers.

Louis Jordan and Michael A. Ellis, Goldsboro, for defendant-appellant Carraway.

BRANCH, Chief Justice.

I. GUILT-INNOCENCE PHASE

A. Pretrial Concerns

Defendant Carraway filed a pretrial pro se motion requesting an internal investigation into the conduct of Sergeant C.E. Boltinhouse, a detective with the Goldsboro Police Department. Her motion alleges that Sergeant Boltinhouse caused Jeffrey Dekeyser to fabricate his account of the 21 September Elm Street murder. Defendant Carraway's first assignment of error contends that the trial court erred in failing to order the requested investigation.

This assignment of error, and others raised by both defendants, are based on the conflicting statements given to the police and defendants by Jeffrey Dekeyser, the only eyewitness to the murder. According to the State, Dekeyser informed the police only hours after the 21 September shooting that defendants were involved in the murder of Charles Hall at 611 Elm Street. However, on 13 November 1983, Dekeyser, who was taken by Carraway to her attorney's office, said that he did not know defendant Rogers and did not see the 611 Elm Street shooting. At trial, Dekeyser admitted he had lied to Carraway and her attorney.

We hold the trial court correctly refrained from authorizing an investigation of Sergeant Boltinhouse's conduct. Besides the allegations contained in the motion, defendant Carraway failed to bring forward any evidence that tended to show that Sergeant Boltinhouse had improperly influenced Dekeyser's recollection of the events on the night of the shooting. Furthermore, we note that Sergeant Boltinhouse testified at trial and was subjected to fruitless cross-examination concerning his alleged inappropriate behavior. This assignment of error is overruled.

Defendant Carraway next assigns as error the denial of her motion to suppress the statements she made to FBI agents when apprehended in Maryland. The defendant contends that she did not waive her rights and that her statements were involuntarily made because she was sleepy and tired when arrested. After a voir dire hearing, the trial court found that defendant Carraway was advised of her Miranda rights when taken into custody. At that time, she did not request an attorney and voluntarily answered the agent's biographical questions. During the ten-minute ride to their FBI office, defendant Carraway closed her eyes, but appeared to the agents to be at all times in full command of her physical and mental faculties. Upon their arrival, Carraway told the agents that she had been traveling with defendant Rogers for the past few months, that she owned a .44 caliber weapon, and that she did not know Charles Hall. At that point, she exercised her right to an attorney and the interview stopped.

Initially, we note that defendant failed to except to any of the findings of fact. When no such exceptions are taken, the findings are presumed to be supported by competent evidence. State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986). Further, our examination of the evidence on voir dire discloses plenary competent evidence to support the findings. These findings in turn support the trial court's conclusions of law and ruling denying the motion to suppress. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), death penalty vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed.2d 1213 (1976).

Finally, we have previously held unpersuasive Carraway's remaining contention that a defendant's refusal to sign the Miranda rights waiver form is a bar to finding that an oral waiver has occurred. See State v. Connley, 297 N.C. 584, 256 S.E.2d 234, cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed.2d 327 (1979).

B. Jury Selection

Both defendants argue that the trial court committed prejudicial error by denying their motions to prohibit the prosecution from "death qualifying" the jury before the guilt-innocence phase of the trial. They contend that death qualified juries are unconstitutional because they are prosecution prone and more likely to convict a defendant. This Court has repeatedly held that the North Carolina jury process in first degree murder cases is constitutional. See State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985); State v. Vereen, 312 N.C. 499, 324 S.E.2d 250, cert. denied, 471 U.S. 1094, 105 S.Ct. 2170, 85 L.Ed.2d 526 (1985); State v. Noland, 312 N.C. 1, 320 S.E.2d 642 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985). We decline to reconsider our position.

Defendants also contest the denial of their motions to prohibit the State from peremptorily challenging black jurors. Defendants alleged that the district attorney has shown "a pattern of discrimination against black jurors by peremptorily challenging them" in criminal cases and moved that the State be prohibited from challenging black jurors. Neither defendant offered any evidence in support of the motion.

A peremptory challenge may be exercised without a stated reason and without being subject to the control of the court. State v. Jenkins, 311 N.C. 194, 204, 317 S.E.2d 345, 351 (1984). The right to challenge veniremen peremptorily is equally bestowed on the State and defendants by N.C.G.S. § 15A-1217. This contention is without merit.

Defendant Carraway assigns as error the State's use of a peremptory challenge of a black juror who had already been passed by the State and defendants. During voir dire, the State asked Thelbert Harvey whether he or any member of his family had ever been charged with a serious offense. Neither Mr. Harvey nor any of the other jurors being questioned at that time responded. The State tendered Mr. Harvey to the defendants who first challenged him for cause, then peremptorily. Their motions to excuse Mr. Harvey as a juror for cause were denied. Their peremptory challenges were likewise unsuccessful in removing Mr. Harvey because both defendants had exhausted all their peremptory challenges.

During a short recess and before the jury had been impaneled, the State obtained information that Mr. Harvey's two sons had been convicted of shoplifting and felonious breaking and entering. An evidentiary hearing was conducted and the State produced a witness who verified the State's information. The trial court recalled Mr. Harvey and questioned him concerning his sons' criminal records. Mr. Harvey admitted that his sons had been convicted of these crimes. At that time, the State exercised one of its remaining peremptory challenges and Mr. Harvey was excused.

We find that this procedure fully comported with the controlling statute, N.C.G.S. § 15A-1214(g). This statute provides that after a juror has been accepted by a party, and before the jury has been impaneled, a judge may examine a juror if it is discovered that this juror has made an incorrect statement during voir dire. The decision to reopen the examination of a juror previously accepted by the parties is within the sound discretion of the trial court. State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985). However, once the examination of a juror has been reopened, "the parties have an absolute right to exercise any remaining peremptory challenges to excuse such a juror." Id. at 438, 333 S.E.2d at 747. In the present case as in Freeman, the question concerning the juror's truthfulness on voir dire arose before a full jury had been impaneled. We hold that the trial court did not abuse its discretion in reopening the voir dire examination of Mr. Harvey based on the evidence produced by the State. Consequently, the State was entitled to exercise one of its remaining peremptory challenges to remove Mr. Harvey.

Defendant Carraway further contends that the trial court improperly denied her motion for an additional peremptory challenge. She argues that because Mr. Harvey was peremptorily challenged, rather than excused for cause, she has been prevented from having his removal reviewed on appeal. She maintains, therefore, that she should have been entitled to an additional peremptory challenge. This novel argument is unpersuasive. Pursuant to N.C.G.S. § 15A-1217(a), the State and the defendant in a capital case are each allowed fourteen peremptory challenges. Contrary to defendant Carraway's contention, the use of a peremptory challenge by one party does not unfairly prejudice the opposing party's position in the jury selection process. This contention is without merit.

Defendants next assign as error the trial court's denial of their motions for an individual voir dire and sequestration of the jurors during the jury selection proceedings. It is well settled that these motions are addressed to the sound discretion of the court and will not be disturbed absent an abuse of discretion. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). Defendants argue that prospective jurors in a capital case are improperly influenced during a collective voir dire by the repetitious questions concerning capital punishment and the positive responses given by other veniremen. Defendants assert that jurors are left with the impression that the accused is guilty and that the penalty phase of the trial will undoubtedly be reached. We reject this argument as speculative as we have rejected previous arguments dealing with the alleged contamination of jurors who are chosen pursuant to a collective voir dire. E.g., State v. Ysaguire, 309 N.C. 780, 309 S.E.2d 436 (1983); State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). Our review of...