State v. Westbrook

• Decision Date: 10 June 1971
• Docket Number: No. 94,94
• Citation: 279 N.C. 18,181 S.E.2d 572
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Nathaniel WESTBROOK, Jr.

Page 572

181 S.E.2d 572

279 N.C. 18

STATE of North Carolina v. James Nathaniel WESTBROOK, Jr.

No. 94.

Supreme Court of North Carolina.

June 10, 1971.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Ernest S. DeLaney, Jr., and Channing O. Richards, Charlotte, for defendant.

LAKE, Justice.

The defendant's first assignment of error is to the overruling of his motion to quash the bill of indictment. He does not assert that the indictment is insufficient in form or allegation. His contention is that to subject him to trial under this indictment upon the capital offense of first degree murder violates his rights under the Constitution of the United States and under the Constitution of North Carolina in that:

(1) Pursuant to GS 14--17, the jury was vested with the absolute discretion, if it found him guilty of murder in the first degree, to elect between the penalty of death and the penalty of life imprisonment, which he contends is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States and a violation of Art. I, § 17, of the Constitution of North Carolina;

(2) Under GS 14--17, the jury was required to render simultaneously its verdict as to the issue of guilt and as to the punishment to be imposed, which he contends is a violation of his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States; and

(3) The imposition of the death penalty for murder in the first degree is a cruel and unusual punishment in violation of the provisions of the Eighth and Fourteenth Amendments to the Constitution of the United States and of Art. I, § 14, of the Constitution of North Carolina.

GS 14--17 provides:

'Murder in the first and second degree defined; punishment.--

'A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death; Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. * * *'

In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, decided May 3, 1971, the Supreme Court of the United States held: (1) Nothing in the Constitution of the United States forbids a state to commit to the untrammeled discretion of the jury the power to determine whether a defendant found guilty of murder in the first degree shall be put to death or imprisoned for life; and (2) nothing in the Constitution of the United States forbids a state to adopt a procedure whereby the jury shall return simultaneously its verdict upon the issue of guilt and its determination of the sentence to be imposed. In Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630, 641, the Supreme Court of the United States said: 'Whatever the arguments may be against capital punishment * * * it cannot be said to violate the constitutional concept of cruelty.'

In numerous cases, this Court has rejected attacks on constitutional grounds upon judgments imposing death sentences pursuant to the procedure followed in the present case. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487; State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Spence, 274 N.C. 536, 164 S.E.2d 593. In the Roseboro case, we held no constitutional right of the defendant is violated by the provision of GS 14--17 authorizing the jury, upon finding the defendant guilty of murder in the first degree, to determine whether the punishment shall be death or imprisonment for life, notwithstanding the absence from the statute of any standards to guide the jury in making that determination. In the Atkinson case, supra, 275 N.C. at page 319, 167 S.E.2d 241, we held that the imposition of the death penalty for murder in the first degree is not, per se, a violation of the Fourteenth Amendment to the Constitution of the United States or of any provision of the Constitution of North Carolina. It is not cruel and unusual punishment in the constitutional sense, being expressly authorized by Art. XI, § 2, of the Constitution of North Carolina. State v. Barber, 278 N.C. 268, 179 S.E.2d 404. No provision of the Constitution of this State supports the defendant's contention that the General Assembly may not provide, as it has done in GS 14--17, that the jury shall make its determination as to punishment at the same time it renders its verdict upon the question of guilt. State v. Sanders, supra. There is, therefore, no merit in the defendant's first assignment of error.

The defendant's Assignment of Error No. 2 relates to the sustaining of the State's challenges for cause to 24 prospective jurors, the basis for each challenge being the prospective juror's statement on voir dire concerning his or her inability to return a verdict in any case which would result in the imposition of a sentence to death.

The voir dire examination of each prospective juror so challenged is set forth in detail in the record. It discloses that no juror was excused because of his or her expression of a general objection to the death penalty or of moral or religious scruples against inflicting it. Each was examined patiently, carefully and fairly by the prosecuting attorney and, in some instances, by the court. In a number of instances, due to equivocal statements by the prospective juror, apparently resulting from a lack of clear understanding of the question, the examination was lengthy. While there were variations in their statements, here, as in State v. Sanders, supra, 'It is perfectly clear from these answers * * * that each of these prospective jurors, before hearing any of the evidence, had already made up his mind that he would not return a verdict pursuant to which the defendant might lawfully be executed whatever the evidence might be.'

The sustaining of the State's challenges for cause was not contrary to the decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, in which the Court expressed stated that it did not have before it the right of the prosecution to challenge for cause prospective jurors 'who say that they could never vote to impose the death penalty.' State v. Sanders, supra; State v. Miller, 276 N.C. 681, 174 S.E.2d 481; State v. Atkinson, supra. There is, therefore, no merit in the defendant's Assignment of Error No. 2.

The defendant's Assignment of Error No. 3 is directed to the court's excusing Mrs. Foster from the jury after she was accepted both by the State and by the defendant and was sworn, but before the selection of the jury was completed and the jury was impaneled. She had not, in the meantime, been in contact with any of the jurors previously selected. After she was sworn and conducted from the courtroom, pending the further interrogation of prospective jurors, she was brought back and, in the absence of other jurors, she, a great grandmother, informed the court that she was greatly needed at home to care for a son-in-law so afflicted with multiple sclerosis that he could not care for himself, and her husband, who was also under the care of a physician, her daughter being necessarily absent from home during the day by reason of her employment. She did not make any of these circumstances known prior to being sworn as a juror. Over objection by counsel for the defendant, the court, in its discretion, excused Mrs. Foster on the ground of hardship. In this we find no error. See State v. Atkinson, supra; State v. Spence, 271 N.C. 23, 32, 155 S.E.2d 802, judgment vacated on another ground, 392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350.

The record shows that the defendant did not exhaust the peremptory challenges allowed him by GS 15-163. It further shows that after the selection of the jury was completed and the jury was impaneled, the defendant, in response to an inquiry by his counsel, informed the court that the defendant had been consulted by his counsel concerning every juror and had expressed his approval of every juror accepted as a member of the jury which tried him. There is no merit in this assignment of error.

The defendant's Assignments of Error 4 through 14 relate to rulings of the court on the admission of evidence.

There was no error in the admission of the two photographs of the body of Miss Underwood, the court instructing the jury that they were to be considered solely for the purpose of illustrating the testimony of the witness. In State v. Atkinson, supra, 275 N.C. at page 311, 167 S.E.2d at page 255, we said, '(I) n a prosecution for homicide, photographs showing the condition of the body when found, the location where found and the surrounding conditions at the time the body was found are not rendered incompetent by their portrayal of the gruesome spectacle and horrifying events which the witness testifies they accurately portrary.' See also State v. Gardner, 228 N.C. 567, 46 S.E.2d 824.

Likewise, the admission in evidence of the articles of clothing found upon Miss Underwood's body was not error. The location of the bullet holes in her dress and the presence thereon of stains, identified by an expert witness as powder burns, were material and tended to show, as Frazier subsequently testified, that when the shots were fired the pistol was held close to the victim's body. As to the admission of clothing in evidence, see: State v. Atkinson, supra, 275 N.C. at page 310, 167 S.E.2d 241; State v. Bass, 249 N.C. 209, 105 S.E.2d 645; State v. Speller, 230 N.C. 345, 53 S.E.2d 294; State v. Fleming, 202 N.C. 512, 163 S.E. 453.

These exhibits...