State v. Vinson, 48

• Decision Date: 06 June 1975
• Docket Number: No. 48,48
• Parties: STATE of North Carolina v. Ernest John VINSON.
• Court: North Carolina Supreme Court

Page 60

215 S.E.2d 60

287 N.C. 326

STATE of North Carolina v. Ernest John VINSON.

No. 48.

Supreme Court of North Carolina.

June 6, 1975.

Robert A. Farris, Wilson, for defendant-appellant.

HUSKINS, Justice:

A prospective juror stated on her voir dire examination that under no circumstances and regardless of the evidence would she return a verdict of guilty if it meant imposition of the death penalty. She was excused for cause, and defendant assigns error on that ground.

There is no merit in this assignment. The juror was properly excused for cause. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974).

During jury selection the following proceedings were held in chambers with only the defendant and his counsel, the district attorney, the clerk, the court reporter and the judge present:

'After nine (9) jurors had been seated, it was brought to the attention of the Court that some of the names of the jurors from the jury panel drawn at random from a box had been in fact drawn by a deputy sheriff, rather than the clerk. The court directs that all of the jurors who had been seated both by the defendant and the State shall be returned to the panel. All jurors who had been challenged by the State or the defendant are removed from the panel. The trial shall proceed and the selection of the jury shall begin anew, with the defendant to be allowed a total of fourteen (14) challenges, in addition to any challenges heretofore exercised and the State is allowed a total of nine (9) challenges in addition to any challenges heretofore exercised. The clerk is directed to return the names of all the jurors who had been passed by the State and the defendant and all remaining jurors in the original panel to the box to be selected and called at random by the clerk. This finding and order was entered in the presence of the defendant and in the presence of his counsel and the solicitor out of the presence of the jury. To the foregoing procedure the defendant through his counsel consents; also the solicitor.'

DEFENDANT'S EXCEPTION NO. 3

Defendant assigns the foregoing proceedings as error for that (1) the nine jurors seated had been drawn by a deputy sheriff 'in abrogation of N.C.G.S. § 9--5' and (2) the court awarded the State nine challenges in addition to the peremptory challenges it had already exercised, a violation of G.S. § 9--21. Defendant says the statute forbids such an expansion 'even by a purported consent.'

It should be observed at the outset that G.S. § 9--5 prescribes the procedure for drawing the panel of jurors from the jury box at least thirty days prior to the session of court in which they shall serve. It has no application in the context of this episode.

The quotation above set out is all the record contains concerning this assignment. It is apparent, however, that a jury panel was drawn by the clerk or his assistant or deputy as required by G.S. § 9--5 and that all jurors so drawn had been summoned and had reported for jury duty. Preparatory to selection of a jury in this case the names of the entire panel had been placed on separate scrolls or slips of paper and placed in a hat or box (not the jury box) from which names were drawn at random for interrogation concerning their fitness to serve as jurors. It was this drawing in which some of the names were in fact drawn by a deputy sheriff rather than the clerk. When this fact was brought to the attention of the able trial judge, he, in his discretion, adopted the procedure heretofore set out. We see no error and no prejudice in the action taken.

We find no language in Chapter 9 of the General Statutes which requires the clerk of the court personally, or through an assistant or deputy clerk, to make the random drawing of the names of those on the panel from a hat or box so as to render illegal such drawing by someone else. Be that as it may, the trial judge, in an abundance of caution, nullified the proceedings and started anew, returning to the hat or box from which drawn the names of the nine jurors already accepted by both sides and discarding the names of all jurors already challenged successfully by either party. The judge then announced that defendant would have fourteen peremptory challenges and the State would have nine, the maximum allowed by G.S. § 9--21(a) and (b), completely disregarding any peremptory challenges either the State or the defendant may have exercised theretofore. This demonstration of fairness should be commended, not condemned. State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1973). The record does not disclose how many peremptory challenges, if any, were used by defendant or the State. We perceive no possible prejudice to defendant.

The trial judge is empowered and authorized to regulate and supervise the selection of the jury to the end that both defendant and the State receive the benefit of a trial by a fair and impartial jury. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), rev'd as to death penalty, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971). Defendant has shown no prejudicial error. This assignment is overruled.

Defendant's second assignment is based on Exceptions Nos. 2, 4, 5, 6, 7, 8, 9, 10 and 11 relating to the voir dire examination of veniremen during the selection of the jury.

The following reproductions serve to illustrate the points defendant seeks to raise:

DEFENSE COUNSEL: 'Mr. Jernigan, if it was shown to your satisfaction that the defendant couldn't control his actions and didn't know what was going on at the time of this indictment, would you still be inclined to return a verdict which would cause the imposition of the death sentence?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 2

DEFENSE COUNSEL: '. . . Now, as I understand it, everyone on the jury is in favor of capital punishment and is in favor of that punishment for this offense. Now, is there anyone on the jury, because of the nature of the offense, feels like you might be a little bit biased or prejudiced, either consciously or unconsciously, because of the type or the nature of the offense involved; is there anyone on the jury who feels that they would be in favor of sentence other than death for the offense of rape?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 4

DEFENSE COUNSEL: 'Now, is there, Mrs. Rouse, can you think of any circumstance or any set of facts in which a defendant is charged and convicted of rape, that you would not be in favor of the death penalty?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 5

DEFENSE COUNSEL: 'If you are satisfied from the evidence that the defendant was not conscious of his act at the time it allegedly was committed, would you still feel compelled to return a verdict of guilty?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 6

DEFENSE COUNSEL: 'Well, if you are satisfied from the evidence, that a person did not intentionally or wilfully commit the act in question, would you still return a verdict, if you were satisfied from the evidence, beyond a reasonable doubt, that the act was committed, would you still return a verdict of guilty knowing that the sentence would be a mandatory death sentence?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 7

DEFENSE COUNSEL: 'Well, in other words, Mr. Ash, are you saying that even if you are satisfied that the defendant did not know right from wrong, you might still return a verdict that would cause him to be sentenced to the gas chamber?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 8

DEFENSE COUNSEL: 'Well Mr. Ash, if you are satisfied from the evidence, that at the time of the purported offense, that the defendant did not know right from wrong, would you still return a verdict of guilty, knowing as you now know what the punishment would be?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 9

COURT: 'He has answered the question. Isn't that true, sir, that you said you didn't know how to answer that question?'

DEFENDANT'S EXCEPTION NO. 10

DEFENSE COUNSEL: 'Mr. Ash, is there any reason that hasn't been asked of you, why you would not give the defendant the benefit of the rule that would require him to know right from wrong before he would be guilty?'

OBJECTION SUSTAINED. DEFENDANT'S EXCEPTION NO. 11

Defendant states in his brief that Exceptions Nos. 4 and 5 'involve a question, first to the entire panel, and then to an individual juror as to their beliefs and attitudes concerning capital punishment for the crime charged. . . . The remainder of the questions to which his Honor sustained objections by the solicitor involved defendant's effort to perceive whether prospective jurors would accept an insanity defense.' Defendant contends the inquiries were proper for those purposes and exclusion of them by the court constitutes prejudicial error.

'In selecting the jury, the court, or any party to an action, civil or criminal, has the right to make inquiry as to the fitness and competency of any person to serve as a juror.' State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). We pointed out in Allred that the voir dire examination of jurors has a double purpose: (1) to ascertain whether grounds exist for challenge for cause and (2) to enable counsel to exercise intelligently the peremptory challenges allowed by law. 'The presiding judge shall decide all questions as to the competency of jurors.' G.S. § 9--14 (1969). His ruling on such questions is not subject to appellate review unless accompanied by some imputed error of law. State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1973).

We said in State v. English, 164 N.C. 498, 80 S.E. 72 (1913): 'The right of challenge is not one to accept, but to reject. It is not given for the purpose of enabling the defendant, or the state, to...