State v. Ward , 286 N.C. 304 ( 1974 )

210 S.E.2d 407 (1974) 286 N.C. 304

STATE of North Carolina
v.
Mamie Lee WARD.

No. 88.

Supreme Court of North Carolina.

December 30, 1974.

Robert Morgan, Atty. Gen., and John R. B. Matthis, Asst. Atty. Gen., Raleigh, for the State.

Chambers, Stein, Ferguson & Lanning by Adam Stein, Chapel Hill, and Howard A. Knox, Jr., Rocky Mount, for defendant appellant.

MOORE, Justice.

The record discloses that in the selection of the jury "the solicitor was allowed to challenge for cause 18 prospective jurors after said 18 jurors stated on voir dire that he or she would not under any circumstances, regardless of the evidence, consider joining in a verdict the result of which the death penalty would be imposed, but would automatically vote against such a verdict regardless of the evidence and would not even consider such a verdict in his or her deliberation of the case." Defendant's first assignment of error is that the exercise of these 18 challenges by the State denied her (1) the fair trial by an impartial jury guaranteed by U.S.Const. Amend. VI, and (2) due process and the equal protection of the laws guaranteed by U.S.Const. Amend. XIV.

The foregoing contentions have been repeatedly overruled by this Court and so recently discussed that it would serve no useful purpose to re-examine them here. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974). See Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).

With reference to the voir dire examination of the eighteen jurors whom the State challenged for cause, defendant makes the novel argument that when prospective jurors are told the crime for which the defendant is being tried carries a mandatory death penalty, they are given information which is irrelevant to the jury's function, "thereby confusing it as to its proper role." It is inconceivable to us that a jury could try a capital case without finding out it was doing so. Certainly, any effort to keep this information from the jury could only result in confusion and resentment. A defendant, charged with a capital crime and convicted by a jury which did not know the death penalty was involved, would surely contend that he had been prejudiced by its ignorance. Jurors trying a capital case can reasonably be counted on to weigh the evidence with the greatest care and to require proof of the defendant's guilt beyond a reasonable doubt, and assumedly counsel for defendant can be counted on to point out to the jury the consequences of their failure to do so. See State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974).

Defendant's assignment of error No. 1 is overruled.

Defendant's third assignment of error is to that portion of the judge's charge in which he defined reasonable doubt as follows:

"You have heard during the trial of this case the term ``reasonable doubt' used many times, so the question arises, what kind of a doubt is a reasonable doubt? You must have some understanding and knowledge of what reasonable doubt is before you can properly perform your duty as jurors in this case. And so I instruct you that a reasonable doubt is not just any kind of doubt, it is not just a possible, imaginary or fanciful doubt; it is not a doubt which might be prompted or suggested to your mind by sympathy for the defendant or her people or family; it is not a doubt which might be born of a merciful inclination or disposition on your part to permit the defendant to escape the penalty of the law; it is not a doubt which originates in your mind by some ingenious or illogical twist or misconstruction of the evidence. Your mind and judgment should tell you that a doubt would not be reasonable if it was founded upon or suggested by any of these considerations. On the contrary, a reasonable doubt is a sane, sensible, honest doubt based upon reason and common sense. It is an actual, honest and substantial misgiving or doubt of guilt or question of guilt which reasonably arises from the evidence or from the lack of evidence or the insufficiency of the evidence, and a reasonable doubt exists and exists only when the evidence or proof honestly fails to convince or satisfy your judgment and reason to a moral certainty of the guilt of the accused. Thus, if the evidence or proof is such that after due consideration of all of the evidence you are fully convinced and entirely satisfied, not to an absolute certainty but to a moral certainty, of the truth of the charge, then you would be satisfied beyond a reasonable doubt and it would be your duty to return a verdict of guilty. On the other hand, if after weighing and considering all of the evidence, you have an actual, honest, substantial misgiving or question as to guilt, a sane, rational doubt based on reason and common sense, then you would have a reasonable doubt, and it would be your duty to give the defendant the benefit of that doubt and to return a verdict of not guilty."

Defendant contends that by first stating "that a reasonable doubt is not ten different things" the court overemphasized its negative aspects and left the jury with the impression "that a reasonable doubt is a rare thing indeed, if it ever exists at all." Conceding arguendo that the judge overdefined reasonable doubt, it appears nevertheless that he did give equal stress to the affirmative aspects of the definition. We cannot believe that the jury was misled or confused. Notwithstanding, we repeat what this Court has said a number of times, "The words ``reasonable doubt,' in themselves, are about as near self-explanatory as any explanation that can be made of them." State v. Wilcox, 132 N.C. 1120, 1137, 44 S.E. 625, 631 (1903); State v. Phillip, 261 N.C. 263, 269, 134 S.E.2d 386, 391 (1964). In any event we again recommend to the trial judge the shorter, approved definitions, appearing in numerous decisions of this Court. See State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Defendant's third assignment of error is overruled.

Defendant's assignment of error No. 7 is that the court erred in denying her motion to set aside the verdict because three jurors had taken notes into the jury room for use during their deliberations. When this motion was made the judge immediately and carefully examined the jury. His examination revealed that two jurors had noted the names of the witnesses who had testified and had made some notes during the charge. A third juror had noted the court's definitions of first and second degree murder. Counsel for defendant, who said they had been unaware of the note-taking, argued that it raised such serious questions "concerning the integrity of the jury's process of deliberation" as to invalidate the verdict. We find nothing in the record which supports this contention.

Since defense counsel were unaware that the three jurors were taking notes, it is not to be assumed that their writing distracted the attention of the other jurors from the testimony. As defendant states in her brief, "The trial was both short and simple"; so it is quite unlikely that the three jurors' notes gave them a position of undue influence in the jury's deliberations. As Chief Justice Parker said in State v. Shedd, 274 N.C. 95, 104, 161 S.E.2d 477, 484 (1968), "Most authorities in this Nation take the view that the making and use of trial notes by the jury is not misconduct but is proper, and may even be desirable, where it is unattended by undue consumption of time. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. den. 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747; Cowles v. Hayes, 71 N.C. 230; Annot. in 14 A.L.R. 3d 831 et seq. entitled ``Taking and Use of Trial Notes by Jury'; 89 C.J.S. Trial § 456; 23A C.J.S. Criminal Law § 1367 . . . ." See 75 Am.Jur.2d, Trial § 934 (1974). Assignment of error No. 7 is overruled.

Defendant stresses most strenuously her assignment of error No. 6, that the court erred by failing to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954). This assignment, therefore, presents the question whether the record contains any evidence which would support a verdict of either involuntary or voluntary manslaughter.

Involuntary manslaughter is the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). See State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Clearly the evidence did not justify a charge on involuntary manslaughter. Defendant makes no contention that the gun was discharged accidentally. On the contrary she testified, "I went in the back bedroom and I sat there on the bed and then I jumped right up and I run and grabbed the gun and went right in the room. I went through the bedrooms and in the living room. And that's when I fired. But I didn't want to kill him. . . ." (Emphasis added.) By her own statement defendant intentionally discharged the gun under circumstances naturally dangerous to human life.

It is equally clear that the evidence will not support a verdict of voluntary manslaughter. The killing did not result from the use of excessive force in the exercise of the right of self-defense; nor was it the result of anger suddenly aroused by provocation which the law deems adequate to dethrone reason temporarily and to displace malice. See State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971); State v. Merrick, 171 N.C. 788, 88 S.E. 501 (1916); State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910). See also State v. Wrenn, supra 279 N.C. at 687, 185 S.E.2d at 136.

The following circumstances aroused the passion upon which defendant relies to reduce the homicide from murder to manslaughter: She found her boyfriend of three years entertaining her rival in the den of his home on an evening when he had invited defendant to visit him. Then, in order to avoid a confrontation between the two women, he had silently waved defendant into a back bedroom and then resumed his conversation with Lucy as if defendant were not in the house.

Defendant and deceased were not husband and wife. However, even had they been lawfully married to each other, his conduct would not, in law, have constituted adequate cause for passion which would mitigate the killing to manslaughter. Defendant did not find Parker and Lucy in the act of adultery. On the contrary, both were fully clothed, sitting on the sofa in the den, and Lucy had been talking on the phone at the time defendant entered the house.

When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was "severely proximate," and the killing follows immediately, it is manslaughter. However, a mere suspicion, belief, or knowledge of past adultery between the two will not change the character of the homicide from murder to manslaughter. The law extends its indulgence to a transport of passion justly excited and to acts done before reason has time to subdue it; the law does not indulge revenge or malice, no matter how great the injury or grave the insult which first gave it origin. State v. John, 30 N.C. 330 (1848); State v. Samuel, 48 N.C. 74 (1855); State v. Avery, 64 N.C. 608 (1870); State v. Harman, 78 N.C. 515 (1878). See State v. Holdsclaw, 180 N.C. 731, 105 S.E. 181 (1920); 40 C.J.S. Homicide § 49 (1944); 40 Am.Jur.2d, Homicide § 65 (1968).

Defendant argues that where a relationship comparable to that of husband and wife has been of long standing "the rule of mitigation should extend beyond the marital relation" and that "this case comes squarely within the modern view of adequate provocation." In our view the words of Justice English in People v. McDonald, 63 Ill.App.2d 475, 480, 212 N.E.2d 299, 302 (1965), are appropriate here: "In the first place we do not think that the facts in evidence disclose the ``compromising situation' which defendant uses as the base for his argument. Beyond that, however, we are aware of no case which applies the exculpatory features of crime passionel to the killing of a mistress, regardless of the duration of the relationship. We will not do so in this case." See Cyrus v. State, 102 Ga. 616, 29 S.E. 917 (1897); 40 C.J.S., Homicide § 49. Defendant's assignment of error No. 6 is overruled.

Defendant's assignment of error No. 8, that the death penalty constitutes cruel and unusual punishment a violation of U.S.Const. Amends. VIII and XIV, has heretofore been decided adversely to defendant's contentions. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971).

Defendant brought forward nine assignments of error. All have been most carefully considered; none discloses prejudicial error.

No error.

BOBBITT, C. J., and HIGGINS and SHARP, JJ., dissent as to the death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974), the homicide involved herein having been committed in July 1973, that is, in the period between 18 January 1973, the date State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, was decided, and 8 April 1974, the date N.C. Sess.Laws, Ch. 1201 (1973), which rewrote G.S. § 14-21, became effective.