State v. Rutherford

• Decision Date: 16 October 1984
• Docket Number: No. 8412SC79,8412SC79
• Parties: STATE of North Carolina v. Kyle Edward RUTHERFORD and Ricky Thomas Faust.
• Court: North Carolina Court of Appeals

Page 916

320 S.E.2d 916

70 N.C.App. 674

STATE of North Carolina v. Kyle Edward RUTHERFORD and Ricky Thomas Faust.

No. 8412SC79.

Court of Appeals of North Carolina.

Oct. 16, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Guy A. Hamlin, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Robin E. Hudson, Raleigh, for defendant-appellant, Kyle Edward Rutherford.

Harris, Sweeny & Mitchell by Ronnie M. Mitchell, Fayetteville, for defendant-appellant, Ricky Thomas Faust. BRASWELL, Judge.

While hitchhiking, Harold Wayne Zortman, a Fort Bragg soldier, was robbed at gunpoint. The defendants were tried and convicted by a jury of Robbery with a Firearm. An assignment of error common to both defendants' briefs concerns whether the trial court abused its discretion by failing to declare a mistrial on the grounds that the jury was improperly influenced by contact with a State's witness. Defendant Rutherford additionally assigns as error the entry of his conviction judgment when crucial evidence admitted against him constituted hearsay. Defendant Faust also contends that the trial court erred by limiting his scope of cross-examination for impeachment purposes as to a witness's bias or prejudice.

At trial Harold Zortman testified that at about 10:00 p.m. on 15 January 1983 he was hitchhiking to Fayetteville to attend a friend's party when three white men in a car stopped and asked him if he wanted a ride. He climbed in the car and was then driven to a wooded area where he was ordered by the men to remove his wallet, its contents of approximately eighty-three dollars, his belt, his knife, and his jacket. The man sitting in the front passenger's seat had a shotgun. After handing over the items, the robbers told Zortman to start walking back down the road and not to look back. The robbers drove away. On cross-examination, the defendants elicted evidence from Zortman tending to show that the descriptions he gave to the police did not match the physical characteristics of the defendants and that he was unable to positively identify the defendants through photographs as the robbers.

Pursuant to a plea agreement, Vincent Gorneault pled guilty to common law robbery for his participation in the crime and testified for the State identifying the defendants as the other two robbers. He further testified that he had been present for the planning of the crime, owned the shotgun used by Faust in the robbery, and had driven the vehicle.

Further evidence offered identifying the defendants as participants in the crime was the testimony of Burton Keeler who saw the men after the robbery and heard them discuss "what they did and how they did it."

The defendants countered the State's case by offering evidence supporting alibi defenses.

On 24 August 1983 after closing arguments had been made but before the trial judge had charged the jury, the victim, Harold W. Zortman, had a conversation with a juror, Robert Foggy, Jr., during a lunch recess. While standing next to each other in the line to order food from the snack bar in the basement of the courthouse, Zortman asked Foggy if he had understood him correctly in the hearing that he was retired from the artillery division in the military. They then discussed for three minutes or so whether they knew some of the same people in that division.

This contact between the victim and the juror was made known to the prosecutor and then to the trial judge, but defense counsels were not informed of the conversation until a verdict had been reached. After the jury was dismissed, the trial judge immediately conducted a voir dire hearing to inquire into the circumstances surrounding the conversation. Both Zortman and Foggy were examined and cross-examined under oath. Each man testified that their conversation did not concern the criminal lawsuit being tried nor did they discuss anything related to Foggy's jury service. Following this voir dire, the trial court, in denying the defendants' motion for a mistrial, determined that because the conversation had no effect upon the verdict, the defendants had not been prejudiced.

The defendants argue that the trial court erred in denying their motions for a mistrial. According to G.S. 15A-1061, a motion for a mistrial by a defendant should be granted when an occurrence during the trial results "in substantial and irreparable prejudice to the defendant's case." "The decision as to whether substantial and irreparable prejudice has occurred lies within the court's discretion and, absent a showing of abuse of that discretion, the decision of the trial court will not be disturbed on appeal." State v. Mills, 39 N.C.App. 47, 50, 249 S.E.2d 446, 448 (1978), disc. rev. denied, 296 N.C. 588, 254 S.E.2d 33 (1979). The defendants further contend that besides abusing his discretion the trial judge also violated the defendants' due process rights by failing to inform the defendants of the possible witness/juror misconduct prior to the voir dire hearing and by failing to allow the defendants a recess to investigate the matter.

Due process requires that a defendant have "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). It is the duty and responsibility of the trial judge to insure that the jurors remain impartial and uninfluenced by outside forces. The defendants rely on Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) for the proposition that in spite of the trial judge's finding that no prejudice to the defendant had occurred, a conviction nevertheless must be reversed if the jury has been "infected" by an outside source. As a general proposition, we would agree, but whether the alleged misconduct has affected the impartiality of a particular juror is a discretionary determination for the trial judge. "The reason for the rule of discretion is apparent.... The trial judge is in a better position to investigate any allegations of misconduct, question witnesses and observe their demeanor, and make appropriate findings." State v. Drake, 31 N.C.App. 187, 190, 229 S.E.2d 51, 54 (1976). Misconduct must be determined by the facts and circumstances of each case, and " '[t]he circumstances must be such as not merely to put a suspicion on the verdict, because there was an opportunity and a chance for misconduct, but that there was in fact misconduct.' " State v. Johnson, 295 N.C. 227, 234, 244 S.E.2d 391, 396 (1978), quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915). Furthermore, we find it important to note that the U.S. Supreme Court in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) held that Marshall was not a constitutional ruling applicable to the States through the Fourteenth Amendment and had no application beyond the federal courts.

We believe, therefore, that due process did not require in the present case that the defendants be told of the alleged misconduct before the verdict had been reached or be allowed a recess to investigate on their own the witness/juror contact. Our determination instead must focus on whether the trial judge took the steps necessary to insure that the due process requirement of impartiality was maintained. In light of prior North Carolina decisions and from our review of the record, we hold that the judge did not abuse his discretion by denying the defendants' motions for a mistrial.

In State v. Selph, 33 N.C.App. 157, 234 S.E.2d 453 (1977), a juror was seen talking with the defendant's accomplice's mother. The trial judge refused to allow the defendant to cross-examine the juror and failed to examine this juror individually himself, but rather put to the jurors generally whether they had discussed the case with anyone during a recess. In holding that the trial judge had not abused his discretion in conducting his investigation of the matter in this manner and that the inquiry was sufficient to satisfy due process, this Court noted that in most cases where the defendant's rights had been violated the trial court had refused to...