State v. Young , 287 N.C. 377 ( 1975 )

214 S.E.2d 763 (1975) 287 N.C. 377

STATE of North Carolina
v.
Ronnie YOUNG.

No. 46.

Supreme Court of North Carolina.

June 6, 1975.

Rufus L. Edmisten, Atty. Gen., George W. Boylan, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

George C. Collie, Charlotte, for defendant-appellant.

HUSKINS, Justice:

Before pleading, defendant moved to quash the bills of indictment on grounds that the death penalty as applied in this State violates the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States. After verdict he moved to arrest judgment on similar grounds. Denial of both motions constitutes defendant's first assignment of error.

Under this assignment defendant argues (1) that he was denied due process because the death penalty was applied to him in an arbitrary, capricious, subjective and selective manner due to freakish exercise of prosecutorial discretion and (2) that the death penalty as applied in North Carolina is unconstitutional per se. These contentions have heretofore been considered by this Court and rejected in numerous cases. See, e. g., State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Assignment one is overruled.

Prior to the commencement of jury selection defendant moved to sequester all prospective jurors so he could examine the veniremen one at a time in the absence of all other prospective and selected jurors. The trial judge denied the motion and then directed that the jury be selected in the following manner:

". . . The entire number of jurors who are available will be brought into this courtroom tomorrow morning at 9:30 and the Clerk will read over the names of the entire jury panel at that time in the presence and hearing of the defendant and his counsel.

Immediately the first twelve persons whose names are called will be directed at that time to take seats in the jury box. In other words, we will call the entire panel of jurors one at a time by name with the first twelve being seated in the jury box to my left. As soon as we do that, I will direct that the State will call in the presence and hearing of all the prospective jurors a list of the names of witnesses that the State proposes to call or list of names of witnesses that the State will call. As soon as we complete that process, then I will remove from the courtroom all of the prospective jurors except the twelve who are sitting in the jury box to my left.

The other prospective jurors will be taken to the District Court customarily used, but vacant this week, and will be sequestered in that courtroom under supervision of the Sheriff's office during the process of the jury selection.

With regard to the twelve in the jury box, the State shall then conduct their Voir Dire examination of those twelve and shall make any and all challenges for cause against any of the twelve and it shall then make its peremptory challenge. If the Court shall allow a challenge for cause or if the State shall excuse a juror peremptorily, the Clerk shall call a replacement in the box before the Solicitor completes his examination or challenge of any other of the twelve.

When the State is satisfied with the twelve in the box, the Clerk shall then tender the twelve in the box to the defendant. The defendant shall then conduct his Voir Dire examination of those twelve. The defendant shall then make any challenges for cause against any of the twelve and shall then make any peremptory challenges against any of the twelve. If by reason of cause or peremptorily, a juror shall leave the box during the course of the defense counsel's examination of the jurors, the Clerk shall not immediately call a replacement to the box but shall wait until the defendant shall state to the Court that he is satisfied with the remainder of the twelve which remain.

After they have been tendered him by the State, if there have been no members of the twelve removed, the Clerk shall proceed to empanel the jury. If anyone for cause or peremptorily have been removed by the defendant, then after the remaining ones have been stated by the defendant to be satisfactory with him, he shall have replacements called for the vacant seats by the Clerk from the panel at large. Then the State must by virtue of G.S. § 9-21(b) be allowed to first examine any and all replacement jurors in the box and make challenges both for cause and peremptorily before the defendant shall be allowed to question any replacement. At all times the State is the party to be first satisfied with any given juror before he shall be ever tendered to the defendant. Those jurors who shall have been tendered to a defendant by the State and not challenged for cause or peremptorily by the defendant may not thereafter be challenged by the defendant. The defendant may not stand any at the foot of the list or make any reservation of any challenge to await and see who the replacement shall be. Once the defendant has passed, he has passed for all purposes."

In accordance with this procedure, the clerk called twelve prospective jurors who took their seats in the jury box and the State proceeded with its voir dire examination. In questioning the jurors the district attorney asked the entire panel whether any of them had read anything in the paper about the case "back in the summer of 1973." Ten of the jurors indicated in the affirmative. "At this point," defendant again moved to sequester the prospective jurors and for the right to examine them regarding what they had read or heard about the case. The court overruled the motion and instructed the jurors that he would permit examination as to whether any of them, or any of the other prospective jurors, had formed or expressed an opinion about the case. The record then recites:

". . . The Court further instructed the prospective jurors not, under any circumstances, give up [sic] the benefit of your opinion concerning what you have read or heard if you have one. In other words, don't tell us anything about what your opinion might or might not be. The sole purpose of this is simply to ascertain whether you have any opinion or not. We don't want to know what that opinion is and do not express in any way any opinion about this matter if you have an opinion. Simply indicate that you have formed such an opinion and stop at that point."

The record recites at this point that defendant thereafter exercised all of his peremptory challenges before the panel of twelve jurors was selected, but it is completely silent in regard to the actual examination of the jurors, the number and identity of those excused for cause, and the identity of those excused peremptorily.

Defendant objected and excepted to the foregoing proceedings in apt time and bases his second assignment of error thereon. He argues the trial court erred in denying his motion to sequester prospective jurors and his motion to examine the jurors concerning what they had read and heard about this case.

Matters relating to the actual conduct of a criminal trial are left largely to the sound discretion of the trial judge so long as the defendant's rights are scrupulously afforded him. State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970). Therefore, a motion to examine jurors individually, rather than collectively, is directed to the sound discretion which the trial court possesses for regulating the jury selection process. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); 47 Am.Jur.2d, Jury § 197 (1969); Annot., Voir Dire—Personal Examination, 73 A.L.R. 2d 1187, 1203 (1960). Compare State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970), rev'd as to death penalty, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971), with State v. Perry, supra.

Here, the jury was selected in the manner previously approved by this Court in various cases, including State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Cutshall, 281 N.C. 588, 189 S.E.2d 176 (1972); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, rev'd as to death penalty, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971); State v. Perry, supra; State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970), cert. denied 401 U.S. 962, 91 S. Ct. 967, 28 L. Ed. 2d 245 (1971). Accordingly, there was no abuse of discretion in denying defendant's motion to sequester prospective jurors.

Defendant's second contention under this assignment is that the court's ruling on his motion to examine jurors concerning what they had read or heard about the case denied him the opportunity to ascertain whether grounds existed for challenge for cause and the opportunity to exercise his peremptory challenges intelligently.

The right to make inquiry on voir dire examination as to the fitness and competency of a prospective juror is secured by G.S. § 9-15(a). In regard to this phase of the trial, the presiding judge has the duty to supervise the examination of prospective jurors and to decide all questions relating to their competency. G.S. § 9-14 (1969); State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

Regulation of the manner and the extent of the inquiry on voir dire rests largely in the trial judge's discretion. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973). A defendant seeking to establish on appeal that the exercise of such discretion constitutes reversible error must show harmful prejudice as well as clear abuse of discretion. State v. Moses, 272 N.C. 509, 158 S.E.2d 617 (1968); see State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956); State v. Rasor, 168 S.C. 221, 167 S.E. 396 (1933); 47 Am.Jur.2d, Jury § 212 (1969).

The voir dire examination of prospective jurors serves a dual purpose: (1) to ascertain whether grounds exist for challenge for cause and (2) to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). "Obviously, prospective jurors may be asked questions which will elicit information not, per se, a ground for challenge in order that the party, propounding the question, may exercise intelligently his or its peremptory challenges." State v. Jarrette, supra.

When the foregoing principles are applied to this case, the proposed question, taken alone, seemingly would be within legitimate bounds of inquiry. However, the record before us fails to show the jury voir dire in context and any alleged abuse of discretion or prejudice resulting from the court's denial of defendant's motion. We perceive no prejudicial error in the trial court's action.

It is elementary that an appellate court must have in the record before it a complete account of the action by the trial court of which the appellant complains. An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court. State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967).

The court's outlined procedure for the selection of the jury provided that defendant could conduct the voir dire examination of the twelve jurors remaining in the box after the State had examined them to its satisfaction and after the clerk had tendered them to defendant. That is the usual sequence in jury selection. Here, however, defendant's motion was made during the State's examination and defendant sought the immediate right to examine the jurors before the State had concluded its examination. The question which defendant proposed to ask—"What it was that they had read or heard about this case?"— could not reasonably be expected to elicit information bearing on a challenge for cause since the court allowed questioning as to any ultimate opinion the jurors had formed as a result of what they had read or heard. See State v. Jarrette, supra, 284 N.C. at 640-41, 202 S.E.2d at 732. Under these circumstances, there was no necessity for the court to allow interruption of the State's examination for such questioning by defense counsel. Even so, in an abundance of caution and fairness, the court allowed defense counsel at that time to question the jurors as to whether they had formed an opinion about the case.

The State contends that the trial court allowed every prospective juror who, for whatever reason, had formed any opinion about the case to be challenged for cause on that ground without further inquiry concerning the nature of the opinion or how strongly it was held. The contention seems logical in light of the procedure adopted by the trial court, but the record fails to support it. Nor will the record support defendant's argument that the court unduly limited his right to examine the jurors as to their fitness and competency. In fact, the record fails to show (1) what transpired at that time during defendant's questioning of the jurors concerning their opinions, if they had one, (2) what transpired later, i. e., during defendant's questioning of the jurors on voir dire after they had been passed by the State and tendered to him, (3) whether defense counsel posed any questions to the jurors which were disallowed by the court, or (4) whether any prospective juror who had read or heard anything about the case ultimately served as one of the twelve. The record gives us nothing tangible to support a finding that defendant was prejudiced by the jury selection process. Nothing else appearing, the selection process imports regularity. "After all, there is a presumption of regularity in the trial. In order to overcome that presumption it is necessary for matters constituting material and reversible error be made to appear in the case on appeal." State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); accord, State v. Hilton, 271 N.C. 456, 156 S.E.2d 833 (1967).

We further note that in order to preserve an exception to the court's rulings on challenges to the polls the appellant must exhaust his peremptory challenges and thereafter undertake to challenge an additional juror. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). Justice Stacy (later Chief Justice) explained this rule in State v. Levy, 187 N.C. 581, 122 S.E. 386 (1924), as follows:

"It should be observed that no ruling relating to the qualification of jurors and growing out of challenges to the polls will be reviewed on appeal, unless the appellant has exhausted his peremptory challenges and then undertakes to challenge another juror. [Citation omitted.] His right is not to select, but to reject, jurors; and, if the jury as drawn be fair and impartial, the complaining party would be entitled to no more upon a new trial, and this he has already had on the first trial. [Citations omitted.] Hence the ruling, even if erroneous, would be harmless."

In a criminal appeal the burden is on the appellant to show both error and prejudice. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, cert. denied 377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052 (1964). Here, he has shown neither. Defendant's second assignment is overruled.

Defendant's third assignment asserts error in allowing into evidence two color photographs of the victims' bodies. We find no merit in this assignment. The photographs were admissible to illustrate and explain the testimony of witnesses Kirkpatrick, Catlett, Booth, and Bartlett. They were properly authenticated and the jury was properly instructed that they were admitted for the sole purpose of illustrating and explaining the testimony of the witnesses. They were competent for that purpose. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, rev'd as to death penalty 401 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), rev'd as to death penalty 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762 (1972); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410, rev'd as to death penalty 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), rev'd as to death penalty 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Defendant next assigns as error the admission, over objection, of the confession which he made to the police. He contends the confession should have been excluded because it is "very reasonable and plausible" to conclude from the evidence received on voir dire (1) that the defendant did not understand the waiver of rights which he signed, (2) that he was promised leniency, (3) that he was too scared or frightened to understand the consequences of his act, and (4) that he lacked the intelligence or mental capacity to comprehend the documents which he signed. We find no merit in this contention.

The trial judge properly excused the jury and heard evidence bearing upon the admissibility of the confession. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). Based on the evidence thus received, he made extensive findings of fact and conclusions of law supporting admission of the confession. His findings were amply supported by competent evidence and are conclusive on appeal. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Pruitt, supra; State v. Thompson, 285 N.C. 181, 203 S.E.2d 781, cert. denied 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 2d 104 (1974); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). Only defendant's own testimony supports his contentions under this assignment. The trial court was not required to accept that testimony and disbelieve other competent evidence. This assignment is overruled.

Defendant finally contends the court should have allowed his motion for judgment of nonsuit made at the close of the State's evidence. He argues that the evidence aliunde the confession was insufficient to establish that the crime charged was committed by him. This constitutes defendant's fifth assignment of error.

When the State offers evidence of the corpus delicti in addition to defendant's extrajudicial confessions, defendant's motion to nonsuit is correctly denied. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969); State v. Elam, 263 N.C. 273, 139 S.E.2d 601 (1965). "A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances, as will, when taken in connection with the confession, establish the prisoner's guilt in the minds of the jury beyond a reasonable doubt." State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961); accord, State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972).

Here, the State's evidence, aliunde the confession, clearly establishes the brutal and heartless murders of the two victims as they were leaving their place of employment. The evidence further links defendant to weapons used in the killings and places him at the scene of the crime at the time it was committed. This evidence, when considered with the confession of defendant, is amply sufficient to repel the motions for judgment of nonsuit. State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). Assignment five is therefore overruled.

We have carefully examined the entire record and find no prejudicial error in the trial. The verdict and judgment in each case must therefore be upheld.

No error.

SHARP, Chief Justice, dissenting as to the death sentence:

The murders for which defendant was convicted occurred on 18 August 1973, a date between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. § 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated in the dissenting opinion in State v. Jarrette, 284 N.C. 625, 666 et seq., 202 S.E.2d 721, 747 et seq. (1974), I dissent as to the death sentence imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment.

COPELAND, Justice, dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 437, 212 S.E.2d 113, 122 (1975).

EXUM, Justice, dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 439, 212 S.E.2d 113, 121 (1975), other than those relating to the effect of Section 8 of Chapter 1201 of the 1973 Session Laws.