State v. Wright

• Decision Date: 02 June 1981
• Docket Number: No. 8010SC1156,8010SC1156
• Citation: 278 S.E.2d 579,52 N.C.App. 166
• Parties: STATE of North Carolina v. Barry Darnell WRIGHT.
• Court: North Carolina Court of Appeals

Page 579

278 S.E.2d 579

52 N.C.App. 166

STATE of North Carolina v. Barry Darnell WRIGHT.

No. 8010SC1156.

Court of Appeals of North Carolina.

June 2, 1981.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Donald W. Stephens, Raleigh, for the State.

Adam Stein and C. H. Thigpen, Jr., Thigpen, Blue & Stephens, Raleigh, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant first contends that the trial court erred in denying his challenge for cause of a prospective juror. Although the record does not contain a transcript of the jury voir dire, it does show that the following proceeding took place in the judge's chambers:

COURT: Okay. Take this, that during voir dire of the jury by the defendant, the defendant having exercised six preemptory (sic ) challenges, juror no. 4 responded to the following question--now, can you state what that question was, Mr. Thigpen?

MR. THIGPEN: Whether the juror had formed an opinion as to the guilt or innocence of the defendant.

COURT: The response was that she had formed an opinion; and upon further inquiry, juror no. 4 stated that she had formed, quote, sort of an opinion, end quote. And it was at this point that she was challenged for cause, wasn't it?

MR. THIGPEN: No. I think that it seems to me, Judge, that I questioned her again.

COURT: That there were other questions put to the juror which cannot be recounted at this time; that subsequently, the Court inquired of the prospective juror no. 4 as to whether or not regardless of any opinion formed she could base her finding upon evidence presented during the trial, irrespective of any such opinion; to which she responded that she could That counsel for the defendant subsequently was allowed to pursue the line of questioning further; the Court having denied defendant's challenge for cause; that again, in response to a question put to the prospective juror, she reiterated that she had formed an opinion sort of, but that her mind could be changed; that again the prospective juror stated that she could base her finding of fact upon evidence presented during trial and could set aside or disregard whatever opinion might have been formed based upon what she had heard, read or seen in the newspaper, radio or television;

That thereafter, in response to further questions by the State, as well as the Court, but primarily in response to questions put by the district attorney, the prospective juror stated that she had no opinion and had formed no opinion as to the guilt or innocence of the defendant as to the present charge of involuntary manslaughter and running a red light; and, further, that she was not even aware that these charges had been brought until very recently when she read of the same in the newspaper.

The trial judge must determine all challenges to the jury panel and all questions concerning the competency of jurors. N.C.Gen.Stat. 15A-1211(b) and 9-14. These determinations are within the trial court's discretion and its decision is not subject to appellate review unless an error of law is imputed. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976).

Defendant contends that the trial judge was required to dismiss the juror under N.C.G.S. 15A-1212(6). The statute provides:

A challenge for cause to an individual juror may be made by any party on the ground that the juror:

....

(6) Has formed or expressed an opinion as to the guilt or innocence of the defendant. It is improper for a party to elicit whether the opinion formed is favorable or adverse to the defendant.

N.C.Gen.Stat. 15A-1212. Defendant would have us interpret this statute to require dismissal of any juror who has ever formed an opinion as to the guilt or innocence of a defendant. We do not agree. This interpretation would remove all discretion from the trial judge in determining whether the juror could render a fair, impartial, and unbiased judgment. See State v. Leonard, 296 N.C. 58, 248 S.E.2d 853 (1978).

In State v. Spence, 274 N.C. 536, 539, 164 S.E.2d 593, 595 (1968), our Supreme Court noted that, according to federal court decisions, the function of a challenge for cause

"... is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise." The purpose of challenge should be to guarantee "not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held." (Citations omitted.)

Although this provision has not been construed previously by the appellate courts, it appears that N.C.G.S. 15A-1212(6) was intended to codify the above-stated principle. This statute expressly overrules older case law that allowed challenge for cause only by the party against whom the opinion was formed or expressed. See, e. g., State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523 (1944); State v. Benton, 19 N.C. 196 (1836).

The official commentary to N.C.G.S. 15A-1212 contains the following: "To the extent possible the Commission has attempted to restate in this Article the rules governing selecting and impaneling the jury in a criminal case. This section incorporates the disqualifications set out in G.S. 9-3 and adds a number of additional grounds for challenge for cause." (Emphasis ours.)

Thus, N.C.G.S. 15A-1212(6) apparently is a codification of the case law which requires that a juror be excused when he is, in the trial judge's opinion, unable to render a fair and impartial verdict because of preconceived opinions as to defendant's guilt or innocence. This interpretation is consistent with subsection (9), which permits a challenge to be made on the grounds that a juror "(f)or any other cause is unable to render a fair and impartial verdict." N.C.Gen.Stat. 15A-1212(9). It seems unlikely that anyone who read or heard about a criminal case through the media would not form some sort of notion regarding an accused's guilt or innocence. To demand dismissal of every prospective juror who had prior knowledge of a case because he kept himself informed of current affairs arguably would "require our courts to exclude from service those best qualified to hear and deal with evidence and to understand instructions upon the law." State v. Hunt, 37 N.C.App. 315, 320, 246 S.E.2d 159, 162, disc. rev. denied, 295 N.C. 736, 248 S.E.2d 865 (1978). Accord, State v. Bailey, 179 N.C. 724, 102 S.E. 406 (1920).

The record here indicates that the prospective juror variously stated that she had formed an opinion, had formed "sort of" an opinion, and had not formed an opinion as to the guilt or innocence of the defendant. By clarifying the juror's answers, the trial judge properly exercised his duty to ensure that she would base her findings upon the evidence presented at trial. See State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3207, 49 L.Ed.2d 1208 (1976). A juror's answers need not be completely unequivocal or unambiguous for the judge to make his determination. Id. N.C.G.S. 15A-1212(6) does not mandate automatic disqualification of a juror who states she has "sort of" an opinion regarding defendant's guilt or innocence. It provides the basis for making a challenge for cause, and the voir dire examination serves to ascertain whether that cause in fact exists. See State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3207, 49 L.Ed.2d 1208 (1976). Judge Herring was satisfied it did not.

We find no abuse of discretion in the trial court's ruling that this juror was competent to sit. Additionally, as we do not have before us the transcript of the voir dire, defendant has not demonstrated that he was prejudiced by the denial of his challenge for cause. See id. The assignment of error is overruled.

Defendant's next exceptions deal with the admission of certain evidence. He argues that the trial court erred in overruling his objections to the testimony of Gordon Edwards, a mechanic at the school bus garage, as to tests performed on the brakes of the bus subsequent to the accident. Edwards testified that at least one-half hour after the accident the bus was inoperable, was hooked up behind a wrecker, and was towed at approximately five to ten miles per hour. When the brakes were applied, the bus stopped. Defendant contends that the test was not conducted under conditions that were sufficiently similar to those existing when the accident occurred, at which time defendant had driven the bus, loaded with thirty-five students, for some time through traffic, frequently using the brake pedal.

In Hall v. Railroad Co., 44 N.C.App. 295, 298, 260 S.E.2d 798, 800 (1979), disc. rev. denied, 299 N.C. 544, 265 S.E.2d 404 (1980), this Court stated:

Normally, however, to be admissible, an experiment must satisfy two requirements: (1) it must be under conditions substantially similar to those prevailing at the time of the occurrence involved in the action, and (2) the result of the experiment must have a legitimate tendency to prove or disprove an issue arising out of such occurrence.

Whether an experiment was conducted under substantially similar conditions is a question of law, and is reviewable by the appellate courts. State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975). In Jones, the Supreme Court of North Carolina reviewed the law concerning experimental evidence and held there had been no error in allowing evidence of experiments conducted to determine if the pistol that had inflicted a fatal wound would fire when dropped from various heights. The Court explained that experiments need not have been performed under precisely similar circumstances, as long as the results would shed light on the problem at hand. It quoted with approval from Love v. State, 457 P.2d 622 (Alaska):

(...