State v. Williams

• Decision Date: 12 March 1975
• Docket Number: No. 25,25
• Citation: 212 S.E.2d 113,286 N.C. 422
• Parties: STATE of North Carolina v. Bryant Henry WILLIAMS, Jr.
• Court: North Carolina Supreme Court

Page 113

212 S.E.2d 113

286 N.C. 422

STATE of North Carolina v. Bryant Henry WILLIAMS, Jr.

No. 25.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

W. Arnold Smith, raleigh, for defendant.

LAKE, Justice.

Approximately two-thirds of the defendant's brief is directed to his Assignment of Error No. 1, which reads:

'The Court erred in allowing the Solicitor to ask members of the jury panel questions regarding their moral or religious scruples about the death penalty in that such question eliminated all prospective jurors approved (opposed?) to capital punishment and denied defendant the right to be tried by a cross-section of his peers.'

It is not clear from the defendant's brief whether his attack upon the trial, under this assignment of error, is directed to the trial court's permitting the Solicitor to ask questions of prospective jurors concerning their views as to the death penalty, or to the trial court's sustaining of challenges for cause by reason of the responses made to such questions. In either view of it, this assignment of error is completely lacking in merit.

The defendant does not challenge the procedures whereby the jury panel was selected and summoned, nor does the record contain any suggestion of a basis for such challenge. The statutory procedures for its selection having been followed, the jury panel, in its entirety, was a representative cross-section of the people of Wake County. Of the 38 prospective jurors examined in the selection of the 12 who rendered the verdict and two alternates, only four indicated their opposition to the imposition of a death sentence in a proper case therefor.

The defendant, in his brief, makes the startling observation that a jury's verdict finding a defendant guilty need not be unanimous, so the denial of the State's challenge to a juror, who under no circumstances would vote for a verdict of guilty of an offense for which the prescribed punishment is death, would not necessarily prevent the State from obtaining such a verdict. In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152, a sharply divided Supreme Court of the United States, a majority of which was unable to agree upon an opinion, sustained sentences imposed by state courts pursuant to verdicts of guilty reached by juries not unanimous. Neither of these was a capital case. Whether or not the Fourteenth Amendment to the Constitution of the United States prevents a state from imposing a death sentence upon a defendant convicted of a capital crime by a jury not unanimous, we need not now determine. It has never been doubted that the Constitution of this State requires a unanimous verdict for a valid conviction for any crime. Article I, § 24, of the Constitution of North Carolina provides:

'Right of jury trial in criminal cases. No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.'

From time immemorial it has been standard practice in this State for prosecuting attorneys in capital cases to interrogate prospective jurors concerning their opposition, if any, to the imposition of the death penalty.

The State, like the defendant, is entitled to a jury, all members of which are free from a preconceived determination to vote contrary to its contention concerning the defendant's guilt of the offense for which he is being tried. See, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. To that end, the State, like the defendant, is allowed certain peremptory challenges to prospective jurors, nine being allowed the State for each defendant in a capital case and 14 being allowed each such defendant. G.S. § 9--21(b). In order to permit intelligent exercise of peremptory challenges, as well as to determine the existence of basis for a challenge for cause, wide latitude must be allowed counsel in the interrogation of prospective jurors. In State v. Britt, 285 N.C. 256, 267, 204 S.E.2d 817, 825, Justice Branch, speaking for a unanimous Court, said:

'It is well established by our decisions and the decisions of the federal courts that in a capital case both the State and the defendant may, on the voir dire examination of prospective jurors, make inquiry concerning a prospective juror's moral or religious scruples, his beliefs and attitudes toward capital punishment, to the end that both the defendant and the State may be insured a fair trial before an unbiased jury. (Citations omitted.) A prospective juror's response to such inquiry by counsel may disclose basis for a challenge for cause or the exercise of a peremptory challenge. The extent of the inquiries, of course, remains under the control and supervision of the trial judge.'

In State v. Jarrette, 284 N.C. 625, 638, 202 S.E.2d 721, 730, this Court said:

'We have held many times that there is no error in permitting questions to be propounded to prospective jurors concerning their views about the death penalty. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Yoes, and State v. Hale (271 N.C. 616, 157 S.E.2d 386); State v. Spence, 271 N.C. 23, 155 S.E.2d 802.'

A total of 38 prospective jurors was examined. The State challenged a total of eight of these, three for cause and five peremptorily, including four who stated no objection to the death penalty. The defendant challenged 14 peremptorily and two for cause. Each of the three prospective jurors challenged for cause by the State said, in response to questions by the Solicitor and by the Court, that even though the evidence satisfied her beyond a reasonable doubt of the defendant's guilt of the offense of rape, she could not vote for such a verdict knowing that the death penalty was required thereupon. Under these circumstances, it was not error to sustain the Solicitor's challenge for cause. Witherspoon v. Illinois, supra; State v. Ward, 286 N.C. 304, 210 S.E.2d 407; State v. Sparks, 285 N.C. 631, 207 S.E.2d 712; State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844; State v. Crowder, 285 N.C. 42, 203 S.E.2d 38; State v. Noell, 284 N.C. 670, 202 S.E.2d 750; State v. Jarrette, supra; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241. Furthermore, had these three challenges for cause not been sustained, the Solicitor could have challenged all of these jurors peremptorily without reaching his limit of nine such challenges.

The defendant's Assignments of Error No. 9 and No. 11 are directed to the denial of the defendant's motions for a judgment of nonsuit and for a directed verdict. These assignments of error are patently without merit. The evidence for the State was abundantly sufficient to permit the jury to find that the offense of rape was perpetrated upon the prosecuting witness and that the defendant was the perpetrator of it. It is elementary that, upon a motion for judgment of nonsuit, or for a directed verdict, the evidence for the State is taken to be true and the State is entitled to every reasonable inference which may be drawn therefrom, contradictions and discrepancies in the State's evidence are disregarded and the evidence of the defendant in conflict with that of the State is not taken into consideration. Strong, N.C. Index 2d, Criminal Law, § 104, and the numerous cases there cited. It is also elementary that upon the consideration of such a motion, evidence for the State, even though improperly admitted, is taken into account. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777. The motion for judgment of nonsuit and the motion for a directed verdict of not guilty have the same legal effect. State v. Britt, supra; State v. Glover, 270 N.C. 319, 154 S.E.2d 305.

The defendant's Assignment of Error No. 14 is to the imposition of the sentence of death upon the verdict of guilty of rape. The defendant's contentions with respect to the validity of the death sentence for rape have been carefully considered and found without merit by this Court in a number of recent decisions. See: State v. Noell, supra; State v. Jarrette, supra; State v. Waddell, 282 N.C. 431, 194 S.E.2d 19. It would serve no useful purpose to repeat here the reasons for that determination.

At the time this offense was committed and at the time the defendant was tried, convicted and sentenced to death, G.S. § 14--21, as construed by this Court in State v. Waddell, supra, made a sentence to death mandatory upon every person convicted of the rape of any female of the age of 12 years or more by force and against her will. Chapter 1201 of the Session Laws of 1973, § 2, ratified 8 April 1974, rewrote G.S. § 14--21. As rewritten, the statute now makes provision for first degree rape, for which the punishment 'shall be death,' and for second degree rape, for which the punishment shall be 'imprisonment in the State's prison for life, or for a term of years, in the discretion of the court.'

The same Act also rewrote G.S. § 14--17, dealing with murder, G.S. § 14--52, dealing with burglary, G.S. § 14--58, dealing with arson, G.S. § 148--58, dealing with the parole of prisoners, and G.S. § 14--2, dealing with the punishment of persons convicted of felonies for which no specific punishment is prescribed by statute. Section 8 of the Act provides:

'This act shall become effective upon ratification And applicable to all offenses hereafter committed.'

(Emphasis added.)

The Act was ratified, and thus became effective, 8 April 1974 and is, in its entirety, 'applicable' to all offenses thereafter committed.

The defendant contends that this statute is retroactive so as to make unlawful the...