State v. Wetmore, 47

Citation215 S.E.2d 51,287 N.C. 344
Decision Date06 June 1975
Docket NumberNo. 47,47
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Roger Lawrence WETMORE.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Robert M. Davis and Larry G. Ford, Salisbury, for defendant-appellant.

MOORE, Justice.

Defendant first assigns as error the action of the trial judge in permitting the district attorney to reexamine and challenge for cause Mrs. Brady, a prospective juror, and to reexamine and challenge peremptorily Mr. Crisp, another prospective juror, after both had been passed by the district attorney and counsel for defendant.

Before the State passed Mrs. Brady, she stated she had not formed an opinion as to defendant's guilt or innocence. However, before the jury was finally selected and impaneled, the trial court was informed that Mrs. Brady had formed an opinion as to defendant's sanity. On further examination, Mrs. Brady stated she now believed defendant was insane at the time of the homicide and was not guilty of the crime charged by reason of insanity. Over objection, this juror was excused by the State for cause.

Before the State passed Mr. Crisp, he indicated he only knew defendant casually. Before the jury was impaneled, the court was informed that Mr. Crisp was a good friend of defendant and his family. Upon reexamination, this juror admitted that defendant visited his son at their home two or three times each week, that defendant and his son were the best of friends, and that he knew defendant quite well. The State, over objection, then excused Mr. Crisp peremptorily.

In State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), defendant was on trial for murder. The trial judge excused a juror on the grounds of family hardship. The circumstances constituting the hardship came to the trial judge's attention after the juror had been accepted by both the State and the defendant and had been sworn but not impaneled. We held that the trial judge's action did not constitute error.

In State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973), defendant assigned as error the action of the trial judge in permitting the solicitor to reexamine and successfully challenge for cause a prospective juror who had been passed by the State and tendered to defendant. Before the State passed and tendered this juror, she indicated her willingness to vote for a verdict which would result in the death penalty. Prior to jury impanelment, however, she let it be known that she had changed her opinion about capital punishment. The trial judge thereupon allowed the solicitor to reexamine the prospective juror. The reexamination revealed that she had talked with her pastor during the overnight recess and as a result of that conversation she would not, under any circumstances, vote for a verdict which would impose the death sentence. Over objection, the trial judge allowed the solicitor to successfully challenge her for cause. We approved stating:

'The competency of jurors is a matter to be decided by the trial judge. Decisions as to a juror's competency at the time of selection and their continued competency to serve are matters resting in the trial judge's sound discretion. G.S. § 9--14; State v. Johnson, 280 N.C. 281, 185 S.E.2d 698. The trial judge's ruling on such questions are (sic) not subject to review on appeal unless accompanied by some imputed error of law. State v. Watson, 281 N.C. 221, 188 S.E.2d 289.'

See also State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Spence, 271 N.C. 23, 155 S.E.2d 802 (1967).

The solicitor did not attempt to challenge Mr. Crisp for cause, but challenged him peremptorily. Peremptory challenges are challenges that may be made according to the judgment of the party entitled thereto without being required to assign the reason therefor, and the reason for challenging a juror peremptorily cannot be inquired into. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969).

The court did not abuse its discretion in allowing the district attorney to reexamine these prospective jurors and in excusing one for cause and the other peremptorily. This assignment is overruled.

Defendant's second assignment of error is directed to the court's refusal to disqualify the witness Mrs. Dorothy Wetmore. Defendant contends that this witness was not mentally competent to testify in that her testimony showed that her thought process was extremely confused and that she was motivated by delusional thinking that her husband was out to get her. Dr. Robert L. Rollins, a qualified psychiatrist and head of the Forensic Unit at Dorothea Dix Hospital, testified that she was suffering from a mental illness known as chronic paranoid schizophrenia.

Defendant did not object to Mrs. Wetmore's competency as a witness or to her testimony during the trial, but after verdict and after sentence had been pronounced, he moved for a new trial for the reason that Mrs. Wetmore was mentally incompetent. Defendant contends that the trial judge abused his discretion in allowing Mrs. Wetmore's testimony to stand after he heard her and Dr. Rollins testify.

In State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970), defendant contended that the court erred in allowing one Epley to testify after a psychiatrist testified that in his opinion it was impossible for Epley to give reliable testimony. In overruling this contention, Justice Sharp, now Chief Justice, speaking for the Court said:

'. . . The law does not say that the decision of the trial judge as to the competency of a witness shall be controlled by expert medical testimony or that the evidence of a psychiatrist, whether employed by the State or defendant, or appointed by the Court, is entitled to greater weight than that of a qualified lay witness. . . . ' Id. at 650, 174 S.E.2d at 799.

In State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973), the defendant contended that the court erred in failing to find that the State's witness Tinsley lacked sufficient mental capacity to be permitted to testify. We held that there was no merit in this contention, quoting with approval from State v. Benton, Supra, as follows:

"Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weak-minded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court.' Accord: State v. Squires, 265 N.C. 388, 144 S.E.2d 49; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, North Carolina Evidence, 2d Ed., § 55; 97 C.J.S. Witnesses § 57b.'

And, '. . . (i)t is the consensus that mental eccentricities or aberrations which fall short of complete mental incapacity do not render a witness incompetent, although they may affect his credibility.' 3 Jones on Evidence § 20:13, pp. 614--15 (6th ed. 1972).

In State v. Merrick, 172 N.C. 870, 90 S.E. 257 (1916), as in the present case, defendant did not object to the testimony of a witness but at the conclusion of the testimony moved to strike. There we stated: '. . . An objection to testimony not taken in apt time is waived. (Citations omitted.) When testimony has thus been admitted without objection, the granting or denying a motion to strike out rests in the discretion of the court. (Citations omitted.) . . ..'

We have held many times that the competency of a witness to testify is to be determined At the time the witness is called to testify and rests mainly, if not entirely, in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. 7 Strong, N.C. Index 2d, Witnesses § 1 (1968); State v. Cooke, 278 N.C. 288, 179 S.E.2d 365 (1971); State v. Bowden, 272 N.C. 481, 158 S.E.2d 493 (1968); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895 (1960); State v. Merritt, 236 N.C. 363, 72 S.E.2d 754 (1952).

Defendant waited too late to challenge the competency of Mrs. Wetmore, but assuming that his objections to her competency were timely made, we hold that defendant's motion was properly denied. Mrs. Wetmore's trial testimony, although long and rambling at times, was clear and consistent on all material matters and was fully corroborated by defendant, the local police, and S.B.I. agents. The trial judge had a firsthand opportunity to observe her demeanor, sincerity, perception and memory. There is nothing in the record to indicate that the trial judge abused his discretion in failing to grant defendant a new trial because of Mrs. Wetmore's incompetency to testify.

Defendant next assigns as error that portion of the charge in which the trial court instructed the jury that if the State proved beyond a reasonable doubt that the defendant intentionally killed the deceased with a deadly weapon then 'the law raises two presumptions: first, that the killing was unlawful, and second, that it was done with malice.'

Defendant's counsel, with commendable candor, states in his brief:

'Defendant is aware that the instructions complained of here are consistent with the case law of this state. Malice and unlawfulness of the killing are presumed, when a deadly weapon is intentionally used; 4 STRONG INDEX, 2d Homicide, Sec. 14, pp. 207--209. The burden is upon the defendant to disprove malice and reduce a killing to voluntary manslaughter. State v. Absher, 226 N.C. 656, 40 S.E.2d 26 (1946). Your defendant contends these rules are no longer valid in this society. . . .

* * *

* * *

'. . . The defendant is aware that this Court recently rejected this same argument in the case of State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974).'

Defendant is correct. We did...

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