State v. Weeks

• Decision Date: 05 May 1988
• Docket Number: No. 777A85,777A85
• Citation: 367 S.E.2d 895,322 N.C. 152
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Terry Wayne WEEKS.

Page 895

367 S.E.2d 895

322 N.C. 152

STATE of North Carolina v. Terry Wayne WEEKS.

No. 777A85.

Supreme Court of North Carolina.

May 5, 1988.

Lacy H. Thornburg, Atty. Gen. by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for State.

R. Michael Bruce, Goldsboro, for defendant-appellant.

FRYE, Justice.

Defendant brings forward nineteen assignments of error, seven of which involve court rulings concerning jury voir dire. Defendant contends also that the trial court violated his right to due process when it ordered him to submit to a second psychiatric evaluation. He next assigns error to six evidentiary rulings made during the trial. Defendant contends also that the trial court erred by refusing to permit the jury to consider possible verdicts of voluntary manslaughter. Next, he argues that the trial court erred in submitting the possible verdict of first degree murder under the felony murder rule. Defendant then argues that the jury instructions concerning his insanity defense were erroneous.

Defendant's eighteenth and nineteenth assignments of error relate to the sentencing phase. First, he contends that the evidence does not support the trial court's finding of the aggravating factor that the murder of defendant's father was especially heinous, atrocious or cruel. Defendant then argues that the court erred in imposing judgment on him for the second degree murder of Jerry Weeks, because this felony was used as the underlying felony for the conviction of defendant for the first degree murder of Peggy Weeks. In this final assignment of error we agree with defendant. This makes it unnecessary to consider his contention regarding the aggravating factor and we express no opinion thereon. Otherwise, we hold that defendant received a fair trial free of prejudicial error.

Defendant was charged with first degree murder, N.C.G.S. § 14-17, of his father, Jerry Weeks, and with first degree murder of his stepmother, Peggy Price Weeks. The jury found defendant guilty of the second degree murder of Jerry Weeks. The jury also found defendant guilty of the first degree murder of Peggy Weeks, specifically finding him guilty under the felony murder rule, but making no finding as to whether he was also guilty on the basis of malice, premeditation, and deliberation.

The court ruled there was no evidence of aggravating circumstances with respect to the conviction of defendant for the first degree murder of Peggy Weeks and sentenced him to the mandatory term of life imprisonment. The court found that the second degree murder of Jerry Weeks was especially heinous, atrocious, or cruel and sentenced defendant to life imprisonment, said sentence to begin at the expiration of the life sentence imposed on the first degree murder conviction. Defendant appealed as of right to this Court. N.C.G.S. § 7A-27(a) (1986).

The evidence at trial was essentially uncontradicted. It established that defendant was the son of Jerry Weeks and the stepson of Peggy Price Weeks. On 17 February 1985, a fire was discovered in the dwelling of the victims by William Weeks, brother of the deceased Jerry Weeks. Peggy Weeks was found outside the dwelling and firemen discovered the body of Jerry Weeks inside. Peggy Weeks died before medical assistance arrived. The evidence showed that the fire had been intentionally set and that both victims died from multiple gunshot wounds. A handgun that was subsequently identified as having been in the possession of defendant was found in a ditch near the dwelling. It was determined that this handgun was the weapon used to kill the victims. The evidence showed that defendant made inculpatory statements and was arrested on the morning of the offenses. The defendant entered pleas of not guilty and not guilty by reason of insanity to two counts of first degree murder. Other evidence pertinent to this appeal is set forth during the discussion of defendant's assignments of error.

Defendant assigns error to seven rulings made by the trial court during jury voir dire. First, he contends that the trial court erred in denying his motion for individual voir dire and sequestration of prospective jurors. Defendant argues that because of his insanity defense the voir dire required asking prospective jurors sensitive and potentially embarrassing questions exploring possible areas of bias or prejudice with respect to their experiences with mental illness.

Upon a showing of good cause, a trial judge, in a capital case, may permit individual juror selection and sequestration of jurors before and after selection. N.C.G.S. § 15A-1214(j) (1983). Whether to grant sequestration and individual voir dire of prospective jurors rests in the sound discretion of the trial court and its ruling will not be disturbed absent a showing of abuse of discretion. State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985). To reverse a decision of the trial court defendant must show that the "ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Barts, 316 N.C. 666, 679, 343 S.E.2d 828, 839 (1986).

Defendant concedes that he cannot show an abuse of judicial discretion, but instead asks this Court to adopt the rule that the judge in a criminal case should always exercise his discretion in favor of selection of the jurors one at a time with jurors being sequestered unless there is some reason, such as a lack of physical facilities, for not doing so. We decline defendant's invitation to so drastically redefine our prior holdings interpreting this statute since to do so would constitute an unwarranted judicial revision of N.C.G.S. § 15A-1214(j).

Defendant next assigns as error the trial court's failure to sustain defendant's objection to a comment made by the prosecutor during voir dire questioning of a juror in which defendant contends the prosecutor stated that a plea of insanity is an attempt by defendant to escape the consequences of his unlawful conduct. Defendant argues that by failing to sustain his objection, the trial court impermissibly indicated approval of the prosecutor's proposition, thus violating N.C.G.S. § 15A-1222.

An accused who is legally insane at the time he commits a criminal act is exempt from criminal responsibility for the act committed. State v. Swink, 229 N.C. 123, 47 S.E.2d 852 (1948). In the presence of the jury, a trial judge is precluded from expressing an opinion "on any question of fact to be decided by the jury." N.C.G.S. § 15A-1222 (1983). However, a trial court generally is not impermissibly expressing an opinion when it makes ordinary rulings during the course of the trial. State v. Welch, 65 N.C.App. 390, 308 S.E.2d 910 (1983). Also, an alleged improper statement will not be reviewed in isolation, but will be considered in light of the circumstances in which it was made. State v. Howard, 320 N.C. 718, 360 S.E.2d 790 (1987). Furthermore, defendant must show that he was prejudiced by a judge's remark. Id.

During voir dire examination of a prospective juror, the following occurred:

Q: Now, generally in a criminal case, the burden of proof, all the burdens of proof are on the State. It means that we have got to prove everything in the case. It just so happens in this case the young man set up what is called commonly a defense of insanity; do you understand that?

A: Yes.

Q: And that means that he was not of sufficient mind to commit the criminal offense and the law says in that regard he has the burden to prove that to your satisfaction; do you understand that?

A: Yes, I do.

Q: We have the burden to prove the conduct was unlawful and if he wants to escape the consequences, he has the burden to prove that he didn't have the mind sufficient to commit the conduct; do you understand that?

Mr. Bruce: Objection.

Trial Judge: Objection is overruled.

While not technically correct, a contextual reading of the district attorney's challenged comment suggests that he was simply telling the panel that the burden of proof as to the affirmative defense of insanity rests with defendant. In any event we do not find any impermissible expression of opinion by the trial court and defendant has failed to show any prejudice.

In his third assignment of error relating to voir dire, defendant argues that the trial court improperly admonished a prospective juror after excusing her for cause. Defendant argues that this admonition, conducted in the presence of other prospective jurors, effectively prevented them from giving honest responses, out of fear of incurring the wrath of the trial court.

During voir dire, prospective juror Campbell, in responding to questions posed by the prosecutor, the trial court, and by defense counsel, gave conflicting and confusing answers to questions relating to her ability to be impartial, and to her belief in the death penalty. After excusing Campbell for cause, the trial court admonished her for taking a position against the death penalty based solely upon her apparent desire to avoid having to serve on the jury.

Defendant contends that this admonition by the trial court was improper, arguing that it inhibited other prospective jurors from being candid in their responses. We disagree. It is not improper for a judge to admonish a prospective juror for taking a position solely for the purpose of being excused from jury duty. First, a trial court has a duty to ensure that a competent, fair, and impartial jury is empanelled. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 851 (1971). Second, jury service is a public duty from which a qualified citizen can be excused "only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health, or safety." N.C.G.S. § 9-6(a) (1986).

Our review of the trial judge's statements reveals no impropriety. It is obvious that this juror was changing her answers in an attempt to avoid jury service. Furthermo...