*1 FALL TERM State v. Bernard
STATE OF NORTH v. LARRY CAROLINA BERNARD
No. 5 (Filed 1975) 7 October — Jury jurors opposed capital — punishment equivocal 1. 7— to § answers excusa! for cause prospective jurors properly Two were excused for cause where questions concerning their answers to on voir dire their attitudes penalty, although equivocal, toward the death contextually show when considered regardless that of the evidence neither would have voted penalty, to convict if conviction meant of the death — Jury general penalty 2. 7— reservations § about death excusal for cause — error harmless excusing prospective juror court erred in for cause a only penalty he who stated that did not believe in death and prospective “thought” another who said he would auto- matically penalty regardless vote of the death evidence; however, of the in error so function the exclusion of such did not result prejudicial (1) as warrant a to new trial since the sole guilt punish- was to decide or innocence and not ment, systematic (2) there exclusion of all veniremen opposed capital punishment by proper standard, challenges. application the intentional of an im- (3) peremptory and did not exhaust his penalty upon guilty 3. Law 138— §§ Criminal death verdict of of — — rape give refusal instruction harmless error n Thetrial rape court in a case erred in the denial of defendant’s request penalty an written for. instruction that would be imposed upon guilty rape the return of a verdict of of since G.S. mandatory give 15-17614makes that it the trial the instruction upon request party; however, prej- of either such error was not nothing udicial where record indicates was confused uncertain, punishment as to or which would result the return rape, impaneled juror of of crime verdict each length at as examined to his attitude toward death the record reveals be each knew charge rape. if a on verdict was returned — Rape 36; rape § § 4. Constitutional Law 7— death consti- tutionality rape Imposition of the death for the crime of did not con- prohibited by Eighth stitute cruel and unusual I, Fourteenth Amendments of U. S. Constitution and Article 24 of the N. C. Constitution. §§ Copeland Justice Chief SHARP and Exum dissent Justices sentence. IN THE SUPREME COURT *2 Appeal Tillery, J., September by from defendant 1974 Superior Court. Hanover Session New charging upon him was tried bills of indictment Defendant robbery automobile kidnapping, armed and felonious rape, with larceny. charges defendant were consolidated for trial and The guilty charges. plea of not to each of the entered tended show that on 30 November The State’s Faye p.m., Mrs. Alice Lee was at Woolco about 9:30 1973 at County Hanover and as she entered her hus- parking lot in New way by automobile, his into the and defendant forced car band’s keys, to her throat obtained the automobile of a knife held use money her then drove to a wooded area of from took by county her threat to kill with the will and where then forced relations with Mrs. Lee. He he had sexual knife her to Defendant nearby post. get of the car and tied her to a fence out Lee’s left in Mr. automobile and Mrs. Lee thereafter police. and went to a trailer where she called freed herself Wilmington, later in North was arrested short time Defendant emerged Carolina, from Mr. Lee’s automobile. On the lineup. night, in a At Mrs. Lee identified defendant six-man same wearing identification, defendant Lee’s was Mr. the time ring kidnapping the time was on directional at of the which signal concerning made confessison Lee Defendant a full automobile. charged and at trial these state- all of crimes judge con- into evidence after the trial ments were admitted hearing found that the statements were a voir dire ducted voluntarily. understandingly trial, At Mrs. Lee freely, made positive identification of defendant. There was in-court made a medical evidence night showing examined on the that Mrs. Lee was sperm male found 1973 and that live of 30 November vagina. cor- The State offered other cumulative and in her Defendant offered no evidence. roborative evidence. charges jury on returned verdicts all
The rape in the case and im- Defend- posed on the other verdicts. consecutive sentences judgments appealed from all entered. ant Special Edmisten, by Deputy Attorney L. General Rufus Speas, Attorney Attorney Jr., E. M. and Associate General Byers, the State. Joan H. for appellant.
Mathias P. Hunoval State v. Bernard
BRANCH, Justice. principal assignment Defendant’s of error is that his consti- rights by tutional were violated the exclusion of only general objections voiced penalty. to the death He relies Witherspoon the rule forth Illinois, set 391 U.S. L.Ed. 2d Witherspoon, 1770. S.Ct. responsibilities: (1) entrusted with two to determine whether (2) defendant was determine whether his sentence would be or innocent and if guilty, found imprisonment or death. prosecution nearly eliminated one-half the venire *3 successfully challenging any expressed any venireman who qualms capital punishment. about The found defendant penalty and fixed his at death. Thereafter the Court petition corpus dismissed his for habeas Supreme and the Court Supreme of Illinois affirmed. The Court allowed certiorari and reversing Supreme Court of held Illinois that a sentence of death could not be carried out if the which or by excluding recommended it was chosen who veniremen for cause simply general objections penalty voiced or ex- religious pressed against scruples conscientious or infliction. its However, prosecution it Court made clear that could challenge jurors feelings concerning capital who state that their making prevent impartial would them from an de- guilt prosecution cision as to defendant’s and that could challenge any for cause venireman who said that he could never impose vote to the death or would refuse its to consider imposition in case before him. briefly jurors prospective voir consider dire of challenged by jury panel exclusion
whose from the the de- fendant. Prospective juror automati- that she would Corbett stated cally against regardless vote Prospective
of vote Dobson stated that would the evidence. regard capital punishment without both these to the It seems that the statements of evidence. clear jurors impartial decision disclose that neither could make an guilt they defendant’s and that would refuse to consider regardless might disclose. what properly excluded for These were cause. IN COURT THE SUPREME The Durant concluding portion was as follows: the examination of prospective religious you any Durant, or do have Mrs..
Q. PUNISH- OR BELIEFS AGAINST CAPITAL MORAL SCRUPLES MENT? I
A. DON’T IT. BELIEVE IN telling you no cir- me under are is Q. What CAPITAL PUNISH- YOU TO IMPOSE WOULD VOTE cumstances OF THE IS ? WHAT EVIDENCE MENT REGARDLESS A. NO. challenge I
Mil. Cobb: her cause. you Durant, you, I’ll let Thank Mrs. The Court: FOR THAT CASE. ASIDE STEP pros- portion examination of pertinent of the voir dire following: disclosed the
pective Smith you you telling me that or would Are Q. A A CAPITAL CASE OF GUILTY IN TO RETURN VERDICT NOT VOTE A .REASONABLE HE BEYOND DOUBT WAS IF YOU ARE SATISFIED *4 you guilty? to return of vote verdict Would A TO PERSON THE DEATH SENTENCE WHICH WOULD' MEAN GIVE OR NOT?
A. No.
Q. SO REGARDLESS YOU OF THE WOULD NOT EVIDENCE' IF IT THE IMPOSI- TO SOMEBODY WOULD MEAN CONVICT .VOTE OF A DEATH SENTENCE? TION
A. NO. difficulty deciding jurors The in Durant and Smith whether interpret- improperly panel in excluded from the lies were equivocal jurors’ The voir seem the record. answers on dire only examined; portions when ever, awkwardly isolated the record are how- of contextually, responses to the rather
when considered the questions phrased prospec- leave little doubt the jurors expressed attitudes the tive Durant and Smith toward required their exclusion from the death which judge clearly interpreted panel. to the answers mean that
State regardless juror the of evidence neither would vote to convict if penalty. conviction meant portantly, of More im- interpreted defense must counsel have the answers sought in the same manner since at trial he no clarification and interposed objection judge’s no excusing action in prospective jurors. We, therefore, prospective conclude that properly and Durant were Smith excluded for cause. tive quote portion Gantt: voir dire examination of prospec DO YOU ANY RELIGIOUS OR
Q. HAVE MORAL SCRUPLES OR BELIEFS AGAINST CAPITAL PUNISHMENT?
A.' I don’t Well, believe no. Sir? Q. I
A. DON’T PENALTY, THE DEATH BELIEVE IN NO. Q. It BE WOULD IMPOSSIBLE REGARDLESS OP THE EVI- DENCE FOR TO PUT US ENOUGH EVIDENCE THERE IN TO SATISFY A YOU TO BRING OF IF IN VERDICT GUILTY IT MEANT THE IM- OF PENALTY, POSITION THE DEATH IS THAT RIGHT? unequivocal
An question answer to the final asked prospective juror solicitor would determined have Gantt’s com- petence panel Witherspoon to serve on the so far rule might apply. However, this record discloses answer to the question ously opinion and we are this errone- was by excusing for cause. The trial erred also excused prospective thought Howell who said that he death, automatically regardless vote evidence. brought question We are thus exclu- whether the prospective jurors sion of Gantt and Howell for cause because of their attitude toward resulted in error so prejudicial as to warrant newa trial. We considered a similar question Monk, in the recent case of State v. *5 finding challenge 2d S.E. erroneously general 125. There after a for cause was prospective juror only expressed
allowed when the concerning reservations this Court stated: so, Witherspoon
Even are when the mandates fol- jurors, here, other lowed in the selection as errone- “the COURT IN THE SUPREME 326 challenge does not for cause improper of an ous allowance only long trial, those party to new so a adverse entitle the actually em qualified are to serve competent and are who paneled Atkin v. his case.” State which tried upon the (1969), on other rev’d 288, 2d 241 167 S.E. son, 275 N.C. 859, 91 2283 948, 2d S.Ct. 29 L.Ed. grounds, 403 U.S. right particular to a no “vested has (1971). A defendant (1913). 534, 295 Vann, 77 S.E. 162 N.C. juror.” v. State Patterson, 402 F. Accord, v. Bell this view. adhere to 955, denied, 29 L.Ed. 1968), 403 U.S. (10th cert. 2d 394 2d Cir. Conyers, (1971) ; 58 N.J. v. 2279 State 865, 91 S.Ct. Unpersuasive decisions contra (1971). 123, A. 2d 721 275 1970), (5th cert. Beto, 434 2d 29 Cir. v. F. Marion include ; (1971) 646, 91 1372 906, 2d S.Ct. denied, 28 L.Ed. 402 U.S. 1970) ; (6th Cir. Cardwell, 430 2d 978 v. Woodards F. 259, 1170, 2d 81 Washington, 459 P. People 2d v. 71 Cal. shown, systematic exclusion is Rptr. (1969). no When Cal. defendant’s him; prejudiced against only reject right is right prejudiced in his one to select he has no favor. (1973), 175, 2d 534 Washington, 283 195 S.E. v. State 757, 1132, 873 2d 568 L.Ed. 2d S.Ct. denied, 414 U.S. cert. Peele, 161 S.E. ; 274 N.C. (1974) State v. 590, 89 denied, 2d 21 L.Ed. (1968), 393 U.S. cert. improper Vann, supra. ; Thus the (1969) State S.Ct. prejudicial does not not Mrs. Lewis was exclusion assignment is Defendant’s first a new trial. necessitate overruled. us initially that the case before differs in mind it must be borne Witherspoon jury was called Witherspoon that the in from guilt whether if the defendant’s the issue of
to decide both imprisonment. Here death or would be whether defendant was to decide the sole function convincing compelling dis- A more or innocent. was Witherspoon before us for decision case between tinction systematic Witherspoon ex- was a there the fact that lies in clusion opposed capital punishment who of all veniremen improper application an action standard. Such intentional Finally, we appear in the record of the case before us. not does challenges; peremptory not exhaust defendant did his note that challenges peremptory exhaust the allotted nor did State strong impaneled was This is it. fact, dis- record does not prejudiced defendant. this vestige impaneled that a who was of evidence close *6 State v. Bernard qualified competent not to serve. For the stated, reasons assignment
this of error is overruled. again many problems note that growing of the out of prospective jurors’ attitudes toward the death could be attorneys avoided if district prepare and use in the voir prospective jurors dire questions examination of framed accord- language to the Witherspoon. clear request for verdict of nied him his constitutional will be by the Fifth and Fourteenth Amendments to the Constitution Defendant next imposed by guilty an instruction that to the this Court.” He assigns alleged right as error the denial of his written crime of “should of due argues you rape, process that [the this jury] guaranteed ruling return de of the United North Carolina Constitution. I, States and 19, Article 23 and 36 of §§ 15-176.4, July G.S. 197k, provides: effective jury consequences
Instruction on verdict.— aWhen is indicted for a crime for which the penalty is death, court, a sentence of upon request by party, jury either shall instruct imposed upon will be the return of a verdict of that crime. request
Defendant’s for this written instruction was filed 2on October 1974. Britt, State v. 285 N.C. 204 S.E. 2d filed
May 1974, we stated: judge jury ... or uncertain the trial observes that the [I]f is confused permissive as to whether one of its verdicts mandatory would result in sentence, opinion, in our compelling justify sufficient informing reason exists to his consequence possible of their verdicts. language This necessary indicates that the instruction was not if knew that one of verdicts its would result ain manda- tory death sentence. mandatory give judge G.S. 15-176.4 it makes that the trial request party. instruction is, therefore, of either It give.the erred obvious when refused to THE COURT IN SUPREME *7 equally by obvious It is mandated statute. instruction jury knew prejudice if the to the defendant there could be imposed upon of a the return death would be the sentence of Nothing rape. record in this of the crime of verdict of pun- as to was confused or uncertain that the indicates ishment which guilty the return of a verdict would result rape. impaneled Each examined the crime of penalty. length the death to her attitude toward at his or that the reveals that each knew Unquestionably this record imposed if be a verdict of was re- charge rape. prejudicial Thus there was no turned on give requested judge’s instruc- failure error in the tion.
prohibited Constitution Finally by of the United States defendant contending Eighth assigns it to be and Fourteenth Amendments of as error cruel and unusual by Article imposition I, §§ 19 and of the 24 This contention and North Carolina Constitution. of the arguments here made have heretofore been con supporting rejected by Vick, consistently v. this Court. State sidered 287 N.C. 335; 37, Armstrong, v. 213 2d State 287 N.C. S.E. 894; Vinson, 326, v. 287 215 60, 212 2d State N.C. S.E. 2d S.E. 6; Noell, Dillard, 72, 60; v. 285 N.C. 203 S.E. 2d State v. State 670, 750; Jarrette, 625, 202 2d State v. 284 S.E. N.C. 284 N.C. 721; Waddell, 431, State v. 282 N.C. 194 2d 19. 2d 202 S.E. S.E. assignment of error is overruled. This carefully imposed, we have Since warranting this entire record and find no error examined new that defendant examination discloses was accorded Such trial. jury’s and that the verdict was based on a fair trial overwhelm- including voluntary his own confession and irrefu- evidence identifying person him as the committed the table charged. crimes No error. Sharp dissenting Justice as to the death
Chief sentence: rape for which defendant has been convicted occurred January day 1973, 1973, on 30 November a date between 18 Waddell, 431, of the decision 282 194 2d N.C. S.E. 329; Clapp Pritchett v.
19, day April 1974, Assembly and 8 on which the General by rewrote 14-21 Chapter G.S. the enactment of 1201 of' the dissenting Session Laws of 1973. For the reasons stated in the opinion Jarrette, in State 625, seq., 284 666 N.C. et 202 S.E. 721, seq. (1974), 2d et I dissent as to the death sentence imposed upon the court below vote to remand for imprisonment. of a sentence of life Copeland
Justice dissents as to death sentence votes remand for imprisonment of a sentence of life dissenting opinion Williams, reasons stated in his in State v. (1975). 422 at 2d S.E. majority Justice Exum portion dissents from that opinion which affirms the death sentence and votes to remand *8 this case imprisonment in order that a sentence life can be dissenting opinion for the reasons stated in his in State Williams, 422, 439, v. other (1975), 2d S.E. relating Chapter than those to the effect of 8 of Section 1201 of the 1973 Session Laws. PRITCHETT, COOK,
LAURIE JAMES FAGAN L. JOHN D. Peti CLAPP, CHEEK, LEAK, tioners v. PAUL W. HAROLD R. O. H. BURFORD, and SAMUEL E. as Members of the Board of Examiners High Disability Fund, o f Point Policemen’s Pension and CITY OF HIGH POINT and HIGH POINT AND BANK TRUST Respondents COMPANY,
No. 85 (Filed 1975) 7 October — — policemen’s pension disability 1. Pensions— fund benefits defined disability unrestricted benefits “Benefits,” as that term is used in Section 3 of the Act establish- High Disability Fund, Point Policemen’s Pension and means specified 128-27, which, alia, provide the benefits G.S. inter both (G.S. 128-27(a)) disability service retirement benefits and unrestricted qualified (G.S. 128-27(c)), retirement benefits to the latter limited to formance of his duties as a members and under section, disability a member’s entitlement benefits is not disability resulting injury per- from in the actual sustained policeman. — policemen’s pension disability 2. Pensions— fund benefits same as System for State Retirement revising High Section of an Act to establish the Point Police- Disability Fund, Assembly men’s Pension and intended to General