State v. Skipper

• Decision Date: 29 July 1994
• Docket Number: No. 122A92,122A92
• Citation: 337 N.C. 1,446 S.E.2d 252
• Parties: STATE of North Carolina v. Sherman Elwood SKIPPER.
• Court: North Carolina Supreme Court

Page 252

446 S.E.2d 252

337 N.C. 1

STATE of North Carolina v. Sherman Elwood SKIPPER.

No. 122A92.

Supreme Court of North Carolina.

July 29, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, for defendant-appellant.

MEYER, Justice.

On 25 August 1990, Ailene Pittman and her grandson Nelson Fipps, Jr., were shot and killed while standing in Ms. Pittman's front yard. The evidence showed that on 25 August 1990, defendant, Sherman Skipper, and Mark Smith drove to Ms. Pittman's home. They both had been drinking. Defendant had been dating Ms. Pittman and wanted to talk to her. Mr. Smith was driving defendant's truck. Defendant and Ms. Pittman talked for fifteen to twenty minutes, standing by the front door to Ms. Pittman's home. Defendant then went back to the truck, got in, and told Mr. Smith to drive away. Ms. Pittman approached the truck and told Mr. Smith not to bring defendant back to her home. When Mr. Smith began backing the truck out of the driveway, defendant reached under the seat of the truck and pulled out a semiautomatic rifle containing fragmentation bullets. He then proceeded to shoot Ms. Pittman, stopped shooting, said "you too," and then shot Nelson Fipps, who was standing in the driveway. The two men then drove away from the home and spent a week on the run. Mr. Smith finally turned himself in to the police and told them where defendant could be found.

Defendant was found guilty of first-degree murder of both Ms. Pittman and Mr. Fipps and was sentenced to death for each murder. The jury found that defendant had previously been convicted of three assaults with a deadly weapon inflicting serious injury and that he had murdered each of his current victims during a course of conduct involving violence to the other. They also found that he was mentally and emotionally disturbed when the murders were committed and that his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.

Defendant sets forth thirty-one assignments of error in a 244-page brief. Additional facts will be addressed as necessary for the disposition of these issues.

JURY SELECTION ISSUES

Defendant begins by arguing that the trial court committed reversible error in excusing Juror Shirley Clark for cause, based on that juror's feelings about the death penalty. Defendant argues that the trial court erred by not allowing defendant to question the juror. He also argues that the trial court failed to adequately question the juror before determining that the juror should be excused for cause. Defendant argues that, because of this, he was denied his rights to a fair and impartial jury, due process of law, and freedom from cruel and unusual punishment.

The standard for determining whether a prospective juror may be properly excused for cause for his views on capital punishment is whether those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." State v. Syriani, 333 N.C. 350, 369, 428 S.E.2d 118, 128, cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993), reh'g denied, 510 U.S. 1066, 114 S.Ct. 745, 126 L.Ed.2d 707 (1994); accord State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990).

Defendant argues that it did not clearly appear that juror Clark was biased and that some of the juror's answers were equivocal; thus, the prosecutor's challenge for cause should have been denied. This Court has noted that a prospective juror's bias may not always be " 'provable with unmistakable clarity [and,] [i]n such cases, reviewing courts must defer to the trial court's judgment concerning whether the prospective juror would be able to follow the law impartially.' " Syriani, 333 N.C. at 370, 428 S.E.2d at 128 (quoting State v. Davis, 325 N.C. at 624, 386 S.E.2d at 426) (alteration in original).

The United States Supreme Court has also noted that it is sometimes difficult to establish total bias against the death penalty with "unmistakable clarity."

[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where a trial judge is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law.

Wainwright v. Witt, 469 U.S. 412, 425-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841, 852 (1985) (footnote omitted).

The transcript reveals that juror Clark stated that while she thought the death penalty may be necessary in today's society, she had personal convictions and scruples against the death penalty because she was a Christian. The prosecutor asked Ms. Clark many questions, trying to determine if the juror could impose the death penalty in some situations. The prosecutor explained in great detail the procedure that must be followed before a jury could impose the death penalty. After hearing how the law worked in regard to finding aggravating and mitigating circumstances and balancing the circumstances, the juror still stated that she was not sure whether she could impose the death penalty. The juror stated that she would try her best to be fair, but she also told the prosecutor two times that her scruples and Christian beliefs would substantially impair her ability to consider the death penalty. The prosecutor then challenged this juror for cause.

Before dismissing the juror for cause, the trial judge questioned her extensively. Juror Clark stated that she could impose the death penalty under some circumstances but then said that her scruples were such that she would be prevented or substantially impaired in the performance of her duty as a juror in accordance with her oath and the instruction of the Court. Here, as in Syriani, the juror seemed to give conflicting answers; nevertheless, her responses revealed that her thoughts and views on the death penalty would substantially impair her ability to follow the instructions of the court as they related to her duty as a juror. While the juror's view on whether she could consider the death penalty as required by the law was not "unmistakably clear," the juror's responses to the questions were such that the trial judge could determine that the challenge for cause should be permitted. The juror could not affirmatively state that she could follow the instructions given by the court and do her duty as a juror. The trial court did not err in excusing juror Clark for cause.

Defendant also argues that he should have been given the chance to rehabilitate this juror under State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993). In Brogden, this Court held that when a judge denies a defendant the opportunity to rehabilitate under the mistaken impression that defendant is not permitted to rehabilitate a juror, then the decision of the trial court is reviewable and is not considered under an abuse of discretion standard. Id. at 46, 430 S.E.2d at 909. In Brogden, we held that further questioning should have been allowed because the juror may have answered the crucial question about whether his views would substantially prevent or impair his duties as a juror differently if rehabilitation had been allowed. In Brogden, unlike here, the juror never affirmatively stated that his feelings would substantially impair his ability to do his duty and follow instructions. In this case, the prosecution We have noted that while defendants can be given the opportunity to rehabilitate a juror, this is not an entitlement; judges are not required to allow a defendant to attempt to rehabilitate jurors challenged for cause. A trial court in its sound discretion may refuse a defendant's request to attempt to rehabilitate certain jurors challenged for cause by the State. See Brogden, 334 N.C. at 44, 430 S.E.2d at 908; State v. Taylor, 332 N.C. 372, 391, 420 S.E.2d 414, 425 (1992).

explained in detail the procedure that must be followed in determining a sentence of death. After this explanation, the juror affirmatively responded three times that she would be substantially impaired in following the law because of her beliefs.

We conclude that while juror Clark's answers were not entirely unequivocal, they were sufficiently equivocal to justify her being excused for cause in the discretion of the trial judge, who heard the questions asked of, and the answers given by, the juror. In addition, we do not believe that defendant was incorrectly denied his right to rehabilitate. The sentencing process had been fully explained to the juror and she had responded in answer to the prosecutor's question that, based on her beliefs, she would be impaired in following this procedure. The judge did not deny the right to rehabilitate based on a misunderstanding that no such right exists, and there was no indication that the questioning of the juror would have done anything but make the situation more confusing.

In defendant's second and fourth assignments of error, he argues that his right to a fair and impartial jury was violated because the trial court sustained the prosecutor's objections to certain questions. In his second assignment of error, defendant argues that he should have been allowed to ask questions regarding how jurors would be affected by evidence of mental impairment, age, and other mitigating circumstances. In his fourth assignment of error, defendant argues that it was error not to allow him to ask two jurors who sat on the jury if they would always sentence a person to death if he had a...