State v. Simmons, 44

• Decision Date: 14 April 1975
• Docket Number: No. 44,44
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ernest Ray SIMMONS.

Page 280

213 S.E.2d 280

286 N.C. 681

STATE of North Carolina v. Ernest Ray SIMMONS.

No. 44.

Supreme Court of North Carolina.

April 14, 1975.

Atty. Gen. James H. Carson, Jr., by Asst. Attys. Gen. William F. O'Connell and William Woodward Webb, Raleigh, for the State.

Thomas W. Henson, Rocky Mount, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge committed prejudicial error by questioning prospective jurors concerning their views as to capital punishment and by removing Juror Dozier from the jury panel because of her views concerning capital punishment.

This Court considered and answered the first portion of defendant's contention in State v. Britt, 285 N.C. 256, 204 S.E.2d 817. There the Court stated: 'It was error for the trial judge to refuse to allow counsel for defendant and the Solicitor for the State to inquire into the moral or religious scruples, beliefs and attitudes of the prospective jurors concerning capital punishment.' Certainly the trial judge in the exercise of his duty to supervise and control the trial so as to insure a fair trial to all parties had the right and duty to interrogate prospective jurors in order to clarify their answers concerning their beliefs as to capital punishment. State v. Strickland, 254 N.C. 658, 119 S.E.2d 781.

By this assignment of error defendant also argues that Judge Webb offended the principles advanced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

During the Voir dire examination of Juror Dozier, the following exchange occurred:

'Q. Mrs. Dozier, do you have any moral or religious scruples or beliefs against capital punishment?

A. Yes, I don't believe in killing.

Q. On account of your beliefs about capital punishment, would it be impossible under any circumstances and in any event for you to return a verdict of guilty as charged, even though the State were to prove the defendant's guilt beyond a reasonable doubt? I am asking would you be able to return a verdict of guilty if we satisfied you that the defendant was guilty and satisfied you from the evidence and beyond a reasonable doubt, knowing that upon that verdict the defendant would be sentenced to die in the gas chamber--would you be able to return a verdict of guilty under those circumstances?

JUROR DOZIER: I don't understand you.

Q. You told me you did not believe in the death penalty and in killing?

A. Yes.

Q. I ask you with that belief would it be impossible for you to find the defendant guilty, if the State satisfied you from the evidence and beyond a reasonable doubt that he is guilty--if the State proved his guilt beyond a reasonable doubt, would it be impossible for you to return a verdict of guilty, knowing he would be sentenced to die in the gas chamber?

A. I don't know what to say there, to tell the truth.

THE COURT: As I understand it, you say you do not believe in capital punishment?

A. Yes, sir.

THE COURT: Even though the State's evidence satisfied you or all the evidence satisfied you beyond a reasonable doubt that the defendant is guilty, would it be impossible for you to return a verdict of guilty knowing that if you did so the defendant would be sentenced to die in the gas chamber--do you understand my question?

A. (No answer).

THE COURT: Well, let me phrase it another way. If you should be satisfied from the evidence beyond a reasonable doubt that the defendant was guilty, would you find him guilty in this case?

A. No.

THE COURT: You would not? And is the reason you would not be because you would know that would cause him to be sentenced to die in the gas chamber? Do you understand the question?

A. No, not definite I don't.

THE COURT: Well, as I understand it, you said that even though all the evidence convinced you beyond a reasonable doubt that the defendant was guilty, you would not find him guilty. Is that the way you answered the question?

A. That is the way I understood it.

THE COURT: Well, is that the way you meant to answer it--you would find the defendant not guilty even though all the evidence convinced you beyond a reasonable doubt that he was guilty? I am not trying to put words in your mouth, I just want to know if that is the way you answered that question? Do you understand my question to you? You understand that you are going to be called on as a juror, once the evidence is in, to return to the jury room and then vote as to whether this defendant is guilty or not guilty. Do you understand that?

A. Yes, I understand that.

THE COURT: You understand that is what your function as a juror will be?

A. Yes.

THE COURT: That is what your duty as a juror will be. Do you understand that?

A. Yes, I understand that but I don't know.

THE COURT: If all the evidence convinced you beyond a reasonable doubt that the defendant was guilty of first degree murder, would you vote for a verdict of guilty of first degree murder--do you understand that question? If you were convinced after hearing all the evidence if you were convinced beyond a reasonable doubt that the defendant was guilty of first degree murder, what would you vote for? Would you vote for guilty or not guilty?

A. I would vote for not guilty.

THE COURT: And is the reason you would vote for not guilty is because you would know if you voted for a verdict of guilty, if the defendant were found guilty, what the sentence would be, that is that he would be sentenced to die in the gas chamber--is that the reason you would vote for not guilty, even though you were convinced beyond a reasonable doubt that he was guilty?

A. (No answer.)

THE COURT: All right. Well, the Court will excuse you from the trial of this case then. Thank you.

MR. HENSON: On what grounds?

THE COURT: I am excusing her in the discretion of the Court. I am excusing her as a juror.'

A defendant is not entitled to a jury of his choice but only to 'a jury selected pursuant to law and without unconstitutional discrimination against a class or substantial group of the community from which the jury panel is drawn. He has no 'vested right to a particular juror. '' State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, Reversed as to punishment, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859; State v. Vann, 162 N.C. 534, 77 S.E. 295. In exercising his duty to see that a fair and impartial jury is impaneled, the trial judge, in his discretion, may in proper cases excuse a prospective juror without a challenge by either party. State v. Atkinson, Supra; State v. Vann, Supra; State v. Vick, 132 N.C. 995, 43 S.E. 626.

Although there was no formal challenge of Juror Dozier by the State and the trial judge stated that he excused the juror 'in the discretion of the Court,' it is obvious from the circumstances disclosed by the record that the juror was excused because of her expressed scruples against capital punishment. Thus, our remaining question under this assignment of error focuses upon whether Juror Dozier's responses to questions on Voir dire indicated that, knowing that the penalty would be death, she could not return a verdict of guilty, even though the State proved to her by the evidence and beyond a reasonable doubt that the defendant was guilty of the capital crime charged. Witherspoon v. Illinois, Supra; State v. Washington, 283 N.C. 175, 195 S.E.2d 534, cert. denied, 414 U.S. 1132, 94 S.Ct. 873, 38 L.Ed.2d 757; State v. Cook, 280 N.C. 642, 187 S.E.2d 104; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, Vacated as to punishment, 409 U.S. 1004, 93 S.Ct. 453, 34 L.Ed.2d 295.

It is now established in this jurisdiction that even though a prospective juror's Voir dire answers to questions concerning his beliefs as to capital punishment may be equivocal and not models of clarity, it is proper for the trial judge to excuse the juror for cause when a contextual consideration of the entire Voir dire examination indicates that the juror could not vote for a verdict which would result in the imposition of the death penalty. State v. Avery, 286 N.C. 459, 212 S.E.2d 142; State v. Noell, 284 N.C. 670, 202 S.E.2d 750. See Annotation, 39 A.L.R.3d 550.

We hold that, when considered contextually, the answers of the prospective Juror Dozier reveal that she could not vote for a verdict of guilty in this capital case even though the State might have proved to her by evidence beyond a reasonable doubt that defendant was guilty as charged. We note that the record fails to show that defendant exhausted his peremptory challenges.

The only argument brought forward in defendant's brief concerning removal of jurors from the panel relates to Juror Dozier. We have nevertheless carefully examined the exceptions as to the removal of other jurors and find no error prejudicial to defendant.

Defendant assigns as error the action of the trial court in standing the Juror Sharpe at the foot of the panel and in failing to have the names of the jurors read prior to impaneling the jury.

The purpose of requiring the Clerk to read the names of the jurors is to enable a defendant to exercise intelligently his right to challenge before the jury is impaneled. State v. Fountain, 282 N.C. 58, 191 S.E.2d 674. Here counsel for defendant interposed no objection to the Clerk's failure to read over the names of the jurors until after the jury was impaneled. The record is silent as to whether counsel had a written list of the jurors. Furthermore, any possible prejudice resulting from standing Juror Sharpe at the foot of the panel was removed by her subsequent examination and excusal for cause. The State concedes that a technical violation of the provisions of G.S. § 9--21 occurred, but takes the position that such error was not prejudicial, particularly since defendant did not object prior to the impaneling of the jury. We agree. This assignment of error is overruled.

Defendant assigns as error the admission into evidence of his custodial confession.

He first argues that the confession was inadmissible because there was no written waiver of counsel. He...