State v. Watson

• Decision Date: 10 May 1972
• Docket Number: No. 35,35
• Citation: 281 N.C. 221,188 S.E.2d 289
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Bryan WATSON.

Page 289

188 S.E.2d 289

281 N.C. 221

STATE of North Carolina v. James Bryan WATSON.

No. 35.

Supreme Court of North Carolina.

May 10, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. James E. Magner, Jr., for the State.

Downing, David & Vallery, by Edward J. David, Fayetteville, for Defendant.

BRANCH, Justice.

Defendant assigns as error the failure of the trial court to dismiss the prosecution on the ground that he had not been afforded a speedy trial.

The record in this case shows that the alleged crime was committed on 19 July 1969, and a warrant was issued on that day charging defendant with murder. On 30 July 1969 defendant was given a preliminary hearing and was bound over (without privilege of bond) to the Superior Court of Cumberland County for action by the grand jury. On 21 July 1969 defendant was found to be an indigent, and Mr. Edward J. David of the Cumberland County Bar was appointed as counsel for defendant. On 12 August 1969, upon motion of his counsel defendant was committed to the State Hospital at Raleigh for a period of sixty days for observation and examination towards determining whether defendant had mental capacity to know right from wrong and to understandingly enter a plea. On 22 September 1969 the grand jury of Cumberland County returned a true bill of indictment, charging defendant with murder. On 2 October defendant was transferred to Central Prison in Raleigh because of inadequate jail facilities in Cumberland County. Defendant filed a writ of habeas corpus on 1 November 1969, in which he alleged that he had been denied his right to a speedy trial, and alleged many other violations of his constitutional rights. On 18 November 1969 Judge Hamilton Hobgood signed a writ of habeas corpus Ad prosequendum directing the Department of Correction to deliver defendant to the Sheriff of Cumberland County on 25 November 1969 to the end that he might be tried on 1 December 1969. On 12 December 1969 defendant was released on bond, and remained free on bond until the date of his trial except for one day in January 1970 and for approximately eleven days in August 1970, when he was in custody because his bondsman 'went off his bond.' On 15 December 1969 (after defendant had been released on bond) Judge Bickett denied defendant's petition for writ of habeas corpus. Defendant made no motion for a speedy trial after he was released on bond. Defendant's counsel moved for, and was granted, two continuances before the case was called for trial. Defendant's counsel again moved for a continuance after the trial court denied his motion for dismissal on the ground that he had been denied a speedy trial.

In the recent case of State v. Spencer, N.C., 187 S.E.2d 779, this Court considered the question of speedy trial, and there stated:

'The constitutional right to a speedy trial protects an accused from extended imprisonment before trial, from public suspicion generated by an untried accusation, and from loss of witnesses and other means of proving his innocence resulting from passage of time. Whether defendant has been denied the right to a speedy trial is a matter to be determined by the trial judge in light of the circumstances of each case. The accused has the burden of showing that the delay was due to the State's wilfulness or neglect. Unavoidable delays and delays caused or requested by defendant do not violate his right to a speedy trial. Further, a defendant may waive his right to a speedy trial by failing to demand or to make some effort to obtain a speedier trial. State v. Ball, 277 N.C. 714, 178 S.E.2d 377; State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870. The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274. But this right is necessarily relative and is consistent with delays under certain circumstances. Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950.'

In instant case defendant's motion for a mental examination, in effect, was a motion for a continuance. Thereafter he was granted two continuances. During the period from 12 December 1969, when he was released on bond, to the date of his trial, defendant made no effort to obtain a speedier trial. He has failed to show that the delay in his trial resulted in prolonged imprisonment, created public suspicion against him, or deprived him of any means of proving his innocence. Nor does the record disclose that the State wilfully or by its neglect caused arbitrary or oppressive delay.

This assignment of error is overruled.

Defendant contends that the trial judge erred in not allowing his challenge for cause directed to the district solicitor's father-in-law as a juror.

The question of the competency of jurors is a matter within the trial judge's discretion, and his rulings thereon are not subject to review on appeal unless accompanied by some imputed error of law. G.S. § 9--14; State v. Spencer, 239 N.C. 604, 80 S.E.2d 670; State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523.

This Court discussed possible disqualifications of a juror because of his relationship with a State's Witness in the case of State v. Allred, 275 N.C. 554, 169 S.E.2d 833, and there stated:

'In this jurisdiction, a juror, who is related to the defendant by blood or marriage within the ninth degree of kinship, is properly rejected when challenged by the State For cause on that ground. . . .

'We do not hold that a relationship within the ninth degree between a juror and a state's witness, standing alone, is legal ground for challenge for cause. This is in accord with the weight of authority in other jurisdictions. Annotation, 'Relationship to prosecutor or witness for prosecution as disqualifying juror in criminal case.' 18 A.L.R. 375; 31 Am.Jur., Jury § 192; 50 C.J.S. Juries § 218(b)(1). Even so, where such relationship exists and is known and recognized by the juror, a defendant's challenge for cause should be rejected only if it should appear clearly that, under the circumstances of the particular case, the challenged juror would have no reason or disposition to favor his kinsman by giving added weight to his testimony or otherwise. . . .'

We are unable to find a North Carolina case which considers whether a juror is disqualified because he is related within the prohibited degree to Counsel in the case. However, the majority rule in other jurisdictions is that a juror is not disqualified by the fact that he is related to counsel involved in the case. Petcosky v. Bowman, 197 Va. 240, 89 S.E.2d 4; State of Missouri v. Jones, 64 Mo. 391; Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616. The Georgia cases note an exception to this general rule and hold that the juror is disqualified where the prohibited relationship exists and counsel's fee is contingent upon success in the case. Melson v. Dickson, 63 Ga. 682, and Roberts v. Roberts, supra.

We note that in instant case the trial judge carefully examined the juror and denied the challenge only after the juror stated that he would not convict on his relationship to the solicitor and after it was ascertained that the solicitor (juror's son-in-law) was not prosecuting in this case. These circumstances do not show imputed error of law or abuse of discretion on the part of the trial judge in making his ruling.

This assignment of error is not sustained.

Defendant assigns as error the action of the trial judge in allowing the State's challenge for cause of certain jurors because of their beliefs as to capital punishment.

Each of the jurors successfully challenged stated, in effect, that under no circumstances could be vote for a verdict which would result in the imposition of the death penalty.

A trial judge should allow challenge for cause when a venireman is not willing to consider all possible penalties provided by state law and when the venireman is unalterably committed to vote against the death penalty, regardless of the evidence which might be presented at trial. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Doss, 279 N.C. 413, 183 S.E.2d 671; State v. Chance, 279 N.C. 643, 185 S.E.2d 227; State v. Miller, 276 N.C. 681, 174 S.E.2d 481.

The Court correctly sustained the State's challenges for cause.

Defendant's most serious assignment of error relates to admission into evidence, over objection, or a portion of a certified copy of the victim's death certificate. He contends that admission of this evidence violated his constitutional right of confrontation and cross-examination.

We note that the record does not contain a copy of the death certificate; however, the record does show that the Judge read portions of the death certificate to the jury, and in order to consider this assignment of error we must assume that the portions read to the jury are correctly indicated in that part of the charge which states:

'The State further offered evidence in the form of an authenticated copy of a record of the Office of Vital Statistics of the State of North Carolina, State Board of Health, which in substance tends to show that Billy Gene Horner died in Cumberland County on July 19, 1969, and that the immediate cause of death was hemorrhage and asphyxia due to or as a consequence of stab wound of the left neck.'

At the time of defendant's trial, Article I, § 11 of the North Carolina Constitution (now Article I, § 23) provided:

'In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.'

The right of confrontation confirms the common-law rule that, in criminal trials, the witnesses must be present and subject to...