State v. Hightower

417 S.E.2d 237, 331 N.C. 636, 1992 N.C. LEXIS 406

• Court: Supreme Court of North Carolina
• Decided: June 25, 1992
• Docket: 1A89
• Status: Published

Opinions

WEBB, Justice.

The defendant has brought forward seventeen assignments of error. We shall discuss two of them.

In his first assignment of error he contends it was error not to allow a challenge for cause to a juror. The defendant preserved his right to bring forward this assignment of error by following the procedure of N.C.G.S. § 15A-1214(h). He peremptorily challenged the juror. He then exhausted his peremptory challenges and renewed his challenge for cause to the juror, which was denied.

During the selection of the jury the following colloquy occurred:

Mr. LIND:— Okay, well, I appreciate that. That brings me to the next question is, Bobby very well may not take the witness stand. We may not present any evidence. Now, do you feel like if he didn’t take the witness stand, do you feel like that might affect your ability to give him a completely fair and impartial trial because you might feel like you want to hear both sides before you could decide the case?

JUROR BROWNING:— Yes, I would like to hear both sides, but—

Mr. LIND:— Well, if he — that’s why I’m asking this now. There’s a good chance that he probably will not testify. So, knowing that, do you feel like you could — that that would affect your ability to give him a fair and impartial trial?

Juror Browning:— Yes.

THE COURT:— All right, Mr. Browning, as you may have heard me say earlier, under our law, the defendant is presumed to be innocent. He’s not required to prove his innocence, and our law and the Constitution gives him the right not to testify if he so elects, and the law also says that that decision, if he should make that, not to testify, is not to be held against him, and that you, as a juror, are not to consider his silence in anyway in your deliberations. Now, I don’t care whether you agree with that law or disagree with it, or whether you don’t like it or do like it, or whether it doesn’t make sense to you or whatever. That’s not the issue. I don’t want to debate that law. My question is, could you follow that law whether you like it or not?

JUROR BROWNING:— I’m just trying to think and give you a fair answer.

The COURT:— I know that’s a difficult question, and I’ll tell you, when we get into the case, I’ll tell you that your duty as a juror is to follow the law of North Carolina as I give it to you and not as you think it is and not as you might like it to be. So, what I’m saying is, it doesn’t matter whether you like it or not like it. The bottom line is, can you follow the law as I explain it to you and not as you might like it to be or think it ought to be?

Juror Browning:— Yeah, I could follow it, if it’s the law.

The COURT:— And if I tell you that the law says that you’re not to use, or consider in anyway, the defendant’s silence against him in your deliberations, you could do that, is that what you’re saying?

Juror Browning:— I still feel like it might stick in the back of my mind, even though I — you know, I’ll try to discount it, but I—

The COURT:— But you would make every effort to follow the law?

Juror Browning:- Right.

The COURT:— And you think you could follow the law?

Juror Browning:— Yes.

THE COURT:— You just have some reservation about whether or not that would stick in the back of your mind?

Juror' Browning:- Right.

The COURT:— Well, let’s go back to the silence of the defendant one more time. You understand that he has that right under the law?

Juror Browning:- Right, uh huh.

The COURT:— And you — let me just ask you, could you follow that law or could you not?

Juror Browning:— Like I say, I could follow the law, but I’m not going to — you know, it could stick in the back of my mind. I could—

The COURT:— Well, it’s obviously going to be in your mind. I mean, you can’t erace [sic] it, but could you ignore it and follow the law as I explain it to you and not let it — it’s going to be there, obviously. If you know something, you can’t erace [sic] it completely, but could you — even being aware of that, could you just not let it affect your decision in anyway?

JUROR BROWNING:— I can’t tell you for sure, because if the, you know, first degree murder charge is pretty serious, and I don’t want — I want to give an impartial decision, and I don’t want anything to hinder it, and I’m afraid that might hinder it.

Mr. LIND:— The fact that your feelings about him not taking the witness stand and testifying could substantially impair your deciding the case. Despite your best efforts to try to follow that Judge’s instructions, that would still be in your mind, and that would still be in your mind, and you would have some severe concerns that it might affect your ability to give him a fair trial, correct?

Juror Browning:— Right.

Mr. LIND:— Okay, I don’t have any other questions.

THE COURT:— Go back and forth forever with this. Do you want to ask him some questions?

Mr. KlMEL:— I just want to get his answer to the last question.

THE COURT:— What was your last answer?

JUROR Browning:— He asked me what I said, or, you know, whether it would stick, and I said yes, and he asked me if I could follow the law, and I said yes, so—

Mr. KlMEL:— I don’t have anything else. The issue is if he can follow the law.

Mr. LlND:— I asked — my question was, I asked if his feeling in the back of his mind would substantially impair him, despite his best efforts to follow the law, and he said he couldn’t follow the law.

Juror Browning:— I would try to follow the law.

THE COURT:— You would make every effort whatsoever to follow the law, whether you agree with it or not, would you not?

Juror Browning:— Yes, right.

THE COURT:— I’m going to Deny the challenge for cause.

N.C.G.S. § 15A-1212 provides in part:

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

(8) As a matter of conscience, regardless of the facts and circumstances, would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.

(9) For any other cause is unable to render a fair and impartial verdict.

We have held that N.C.G.S. § 15A-1212(8), which is a codification of the rule in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968), applies to the qualification of jurors in all cases. State v. Kennedy, 320 N.C. 20, 26, 357 S.E.2d 359, 363 (1987).

The defendant’s challenge for cause should have been allowed under both section (8) and (9) of N.C.G.S. § 15A-212. When the defendant’s attorney first asked if the defendant’s failure to testify would affect the juror’s ability to give him a fair and impartial trial, the juror said “[y]es.” When the court questioned the juror, he said on one occasion that he could follow the law as given to him by the court but he repeatedly said the defendant’s failure to testify would “stick in the back of my mind” while he was deliberating. On one occasion he told the court, “I want to give an impartial decision, and I don’t want anything to hinder it, and I’m afraid that might hinder it.” In Mr. Lind’s last question to the juror, he asked if the juror had serious concerns that the defendant’s failure to testify “might affect your ability to give him a fair trial[.]” The juror said “[r]ight.” We can only conclude from the questioning of this juror that he would try to be fair to the defendant but might have trouble doing so if the defendant did not testify. In this case the defendant did not testify.

We have said that the granting of a challenge for cause of a juror is within the discretion of the judge. State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991); State v. Watson, 281 N.C. 221, 227, 188 S.E.2d 289, 293, cert. denied, 409 U.S. 1043, 34 L. Ed. 2d 493 (1972). Nevertheless, in a case such as this one, in which a juror’s answers show that he could not follow the law as given to him by the judge in his instructions to the jury, it is error not to excuse such a juror. It was error for the court not to allow the challenge for cause to Juror Browning in this case.

The question we next face is whether the failure to allow this challenge for cause was prejudicial error. After the challenged juror was excused and the defendant had exhausted his peremptory challenges, he renewed his challenge for cause to Juror Browning and told the court he would peremptorily challenge the juror then being questioned if he had not exhausted his peremptory challenges. Although this juror might not have been subject to a challenge for cause, it was the prerogative of the defendant as to whether to exercise a peremptory challenge. He was deprived of this right and for this reason there must be a new trial.

Defendant’s second assignment of error is that the trial court erred in denying his pretrial motion to exclude testimony from various people, including his own statements, regarding Naomi Donnell’s pregnancy and his knowledge thereof. He contends that such evidence was irrelevant, had no probative value to any fact of consequence in the case, and its probative value was substantially outweighed by its prejudicial and inflammatory effect on the jury. We disagree.

N.C.G.S. § 8C-1, Rule 402 (1988) provides “[a]ll relevant evidence is admissible[ ]” except if it is excluded by some other exclusionary rule. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1988). The prosecution may offer evidence of motive as circumstantial evidence to prove its case where the commission of the act is in dispute when “[t]he existence of a motive is, however, a circumstance tending to make it more probable that the person in question did the act[.]” 1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 83 (3d ed. 1988).

In the instant case, the evidence of Donnell’s pregnancy is relevant because it tended to support the State’s theory of the defendant’s motive for the murder. It is also relevant to prove that the murder was premeditated and deliberate and not a frenzied stabbing. The fact that Donnell threatened to tell everyone that defendant was the father of her baby, that defendant knew this, and that defendant had reconciled with his wife, tended to prove that defendant’s plan and motive for the murder were to eliminate Donnell and her pregnancy as a potential threat to his reconciled marriage.

Further, the probative value as to motive and premeditation and deliberation substantially outweighed any prejudice. “[Relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it as evidence.” State v. Eason, 328 N.C. 409, 421, 402 S.E.2d 809, 814 (1991). The evidence of Donnell’s pregnancy enhanced the State’s case against the defendant. This evidence will be admissible at the new trial. This assignment of error is overruled.

We do not discuss the defendant’s other assignments of error because the questions they raise may not arise at a new trial.

New trial.

Justice LAKE did not participate in the consideration or decision of this case.