State v. Scales

443 S.E.2d 124, 114 N.C. App. 735, 1994 N.C. App. LEXIS 507
CourtCourt of Appeals of North Carolina
DecidedMay 17, 1994
DocketNo. 9118SC412
StatusPublished

This text of 443 S.E.2d 124 (State v. Scales) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scales, 443 S.E.2d 124, 114 N.C. App. 735, 1994 N.C. App. LEXIS 507 (N.C. Ct. App. 1994).

Opinion

ORR, Judge.

In his first assignment of error, defendant contends that the trial court erred in denying his challenge for cause to three jurors. In this Court’s original opinion in this action, we found that de[737]*737fendant had preserved his right to bring forward this assignment of error by following the procedures of N.C. Gen. Stat. § 15A-1214(h) and (i) which states:

(h) In order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:
(1) Exhausted the peremptory challenges available to him;
(2) Renewed his challenge as provided in subsection (i) of this section; and
(3) Had his renewal motion denied as to the juror in question.
(i) A party who has exhausted his peremptory challenges may move orally or in writing to renew a challenge for cause previously denied if the party either:
(1) Had peremptorily challenged the juror; or
(2) States in the motion that he would have challenged that juror peremptorily had his challenges not been exhausted.
The judge may reconsider his denial of the challenge for cause, reconsidering facts and arguments previously adduced or taking cognizance of additional facts and arguments presented. If upon reconsideration the judge determines that the juror should have been excused for cause, he must allow the party an additional peremptory challenge.

We also found, however, that defendant had failed to show why these jurors were unable to be fair and impartial. Thus, based on State v. Sanders, 317 N.C. 602, 346 S.E.2d 451 (1986), we overruled defendant’s assignment of error and found no error with the judgment of the trial court.

We now reconsider our decision in light of State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992). The facts in Hightower show that defendant assigned as error the denial of his challenge for cause as to one juror, Juror Browning. During the selection of the jury, counsel for defendant informed Juror Browning that the defendant might not present any evidence. Then counsel for defendant stated: “Now, do you feel like if [defendant] didn’t take the witness stand, do you feel like that might affect your ability to [738]*738give him a completely fair and impartial trial . . . ?” Id. at 637, 417 S.E.2d at 238. Juror Browning answered, “Yes[.]” Id. After the trial court explained to Juror Browning that “our law and the Constitution gives [defendant] the right not to testify if he so elects, and [that] the law also says that that decision . . . not to testify, is not to be held against him, and that [he], as a juror, [was] not to consider [defendant’s] silence in anyway [sic] in [his] deliberations,” the trial court asked Juror Browning whether he could follow that law. Id. at 638, 417 S.E.2d at 238. Juror Browning stated, “I’m just trying to think and give you a fair answer.” Id.

Subsequently, the trial .court again asked Juror Browning whether he could follow the law, and Juror Browning stated, “Yeah, I could follow it, if it’s the law.” Id. at 638, 417 S.E.2d at 239. The trial court then asked Juror Browning if 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?” Id. Juror Browning responded, “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 —.” Id. Thereafter, the trial court asked Juror Browning if he would make every effort to follow the law, and he stated that he would but indicated again that the fact that defendant did not take the stand would stick in the back of his mind. The trial court asked Juror Browning, “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 [sic]?” Id. at 639, 417 S.E.2d at 239. Juror Browning answered:

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.

Id.

At the outset, our Supreme Court set out the applicable provisions of N.C. Gen. Stat. § 15A-1212 that:

A challenge for cause to an individual juror may be made by any party on the ground that the juror:
[739]*739(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.

Id. at 640, 417 S.E.2d at 240.

Thereafter, our Supreme Court concluded that “defendant’s challenge for cause should have been allowed under both section (8) and (9) of N.C.G.S. § 15A-212 [sic].” Id. at 641, 417 S.E.2d at 240. In reaching this conclusion, our Supreme Court stated:

[w]hen 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 [counsel for defendant’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.

[740]*740Id. at 641, 417 S.E.2d at 240.

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Related

State v. Quick
405 S.E.2d 179 (Supreme Court of North Carolina, 1991)
State v. Hightower
417 S.E.2d 237 (Supreme Court of North Carolina, 1992)
State v. Sanders
346 S.E.2d 451 (Supreme Court of North Carolina, 1986)
State v. Watson
188 S.E.2d 289 (Supreme Court of North Carolina, 1972)
Ford v. California State Personnel Board
409 U.S. 1043 (Supreme Court, 1972)

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Bluebook (online)
443 S.E.2d 124, 114 N.C. App. 735, 1994 N.C. App. LEXIS 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scales-ncctapp-1994.