*1 IN THE SUPREME COURT Boykin State v. bar, Judge Lupton In the at conducted an extensive case hearing passing He heard the statement made before sentence. by Busby testimony officers other for the State. witnesses, including defendant, testified in defend- Several any money accepting Defendant denied from ant’s behalf. McVey, assisting obtaining Busby or or in manner them in cashing forged driver’s licenses or in the of fictitious checks. Further, evidence was introduced that defendant was on federal having involving probation, convicted two cases transportation probation of interstate a stolen motor vehicle. His concerning good testified defendant’s officer behavior while on good probation. witnesses testified as to Other defendant’s char- acter. sentence, hold that which was
We determined after hearing, prescribed statute, within and was the limits by Judge imposed Lupton. properly
A prej- careful review of the entire record discloses no superior udicial error the trial court. The decision of Appeals of Court is therefore reversed. Reversed.
STATE OF NORTH CAROLINA v. MARGIE C. BOYKIN
No. 29 (Filed 1976) 7 December — 30; change 1. Constitutional Law Criminal § Law 15—fair trial § — publicity venue word-of-mouth Prejudice resulting to a defendant word-of-mouth publicity publicity may as well as from media violate the constitutional requirement require change of a special fair or trial of venue or a venire under N. statutes. C. 30; change 2. Constitutional § Law Criminal Law § venue or 15— special venire If, presented upon change under evidence a motion for a special venue publicity, venire because word-of-mouth there is a reasonable likelihood that a fair cannot be had because publicity, such is an abuse of discretion for the court to fail grant special of venue or a venire. FALL TERM N.C.]
State v. *2 — publicity of of denial 15—word-of-mouth Law § 3. Criminal special venire or venue degree not his judge murder case did abuse in a first The trial change of venue of motion for a the denial defendant’s discretion in alternative, special or, of word- for venire because in the a seventy-three presented printed publicity where defendant of-mouth by county signed the of trial in which residents of form statements the residents indicated listed they of one more seven rumors had heard concerning participation the in defendant’s in the statement activities, charged was criminal but there or in various other crime by persons were how contacted defendant no evidence to show the contacted, chosen, persons or that defendant did number of the total county residents, by aggravate publicity problem poll her of not the signing persons them that none the statements indicated the and of opinion guilt any preconceived crime as to defendant’s the had charged; by furthermore, prejudiced defendant was not the denial of- they give jurors on voir dire that all the stated could her motion since trial, peremptory failed exhaust her fair defendant defendant a convincing quality challenges, State’s evidence would and the produced jury same if had been chosen from result have county. another — jurors Jury questioning of rumors about § 4. 6— degree did in in a first murder case not err The trial prospective jurors refusing permit to ask whether defense counsel they where rumors about defendant defendant did had heard certain separately request prospective and sworn not by juror might separately since unfavorable answer a examined remaining jurors prejudiced in box. have 36; imprison- of life Homicide 31—substitution § § Law 5. Constitutional penalty death ment for imprisonment penalty life is substituted for death Sentence of . degree imposed upon murder. defendant’s first conviction dissenting. Chief Justice SHARP joins Exum in the dissent.
Justice Dependant (a) judg- appeals pursuant 7A-27 G.S. J., Brewer, the 1 entered at 1975 Session ment December County Superior conviction of Court. Defendant’s Johnston appellate conspiracy murder certified for initial to commit was pursuant (a) Supreme 7A-31 on Court to G.S. review May 1976. charged indictments, proper form,
On degree conspiracy first murder and convicted of and to commit imposed sentence was murder murder. The death convic- years imprisonment conspiracy of ten for the tion and term degree expiration of the first conviction to commence at the murder sentence. THE SUPREME COURT Boykin
State following: tended to evidence for show deceased, Boykin, Daniel Defendant was married to S. Boykin. August Shortly midnight known “Chick” after on 15 1975, neighbor, Davis, Daniel at home arrived hysterical telephone defendant, response in saying to a from the call that she and husband been robbed had Boykin’s killed. Davis “Chick” examined “Chick” body lying pool which was of blood in the bathroom living found it to be almost cold. defendant, room with the While say god-dam Davis heard her “Is that son-of-a-bitch dead, god-dam hope I son-of-a-bitch dead.” *3 reported
The defendant to officers who later arrived on the scene that she and her husband had been in the was red around her left robbed and of it in the
course she knocked head. face Defendant’s eye. Garland employed by Sanders testified that he was the bargain plea defendant to her murder husband. Under a ar- rangement State, with the he received a life sentence in return guilty degree plea a for second to murder. Sanders was first maid, year introduced to the defendant her Dublin, Minnie and a half before the He revealed murder. that he had a num- ber during with conversations defendant at Minnie house Dublin’s Boykin. which she solicited him to kill “Chick” first At Sanders indicated that inquired he was not interested and she anyone if he knew brought who would else do it. Later she him pistol gun. a .22 caliber and got said “Here is the I have the gun you you for I want to kill him with.” Sanders continued pistol to decline and give returned the to Minnie to to the de- Finally, agreed job” fendant. he do Thursday, to “the on August 1975, $2,000. provided Defendant Sanders a rifle and some She bullets. ring instructed to Sanders go the front door bell and then around to the back of the house. She told him gloves, that door, mask- ing tape, shotgun and would be at key the back to her 1974 225 Electra ignition Buick would be in switch, back door would floodlight and unlocked would be out. get The defendant told Sanders to someone to drive him the Boykin arranged home so he Johnny to have drop Edmondson p.m. him off about 11 going night, Before house Sanders called defendant phone. a service station She “Everything said FALL TERM 1976 N.C.J Boykin A half hour later right, in about 30 minutes.” to come on is Boykin at the house. Armed with left Edmondson Sanders gloves which rifle, put on the to the back door and Sanders went doorsteps. rang the He front doorbell. on then he found Returning floodlight was out where the back gauge masking tape up the promised, picked he single shotgun be on which defendant had said would barrel window, it and steps. came to raised Defendant the back watching in, up on front television.” Mr. said “Come opened door, opened the storm “Chick”
When Sanders “shoot,” and, shot, door. Defendant said after the first wooden again.” He was first hit under left arm. “shoot “Chick” fell to the floor and Sanders shot him two more times up with the carrying head. Defendant tape then instructed Sanders to tie refused, got but her car and drove off Sanders shotgun. Johnny Later met Edmond- rifle and the Sanders pawned the and abandoned defendant’s car. Edmondson son rifle and shotgun. murder, gave after the
About two weeks San- containing $1,100 envelope ders an money in cash. He used $343 get deposited garage out of the his car $700 payments Defendant further in the Micro bank. made no but pay pro- promised Sanders balance out of the insurance *4 ceeds. direct and evidence numer-
Substantial circumstantial every ous sources corroborated Sanders in minute detail. Expert testimony disclosed that the three removed bullets body Boykin’s from “Chick” were fired from a rifle which was belonging Boykin identified “Chick” and which Sanders he used in said the murder. A $1,200 bank that cashier testified withdrew including August
in cash ten bills on 28 1975. $100 The defendant’s evidence tended show that noth- she had ing to do with murder of her husband. She contended large shotgun amount of cash and “Chick’s” and rifle were night money, stolen the of the murder. She said $900 August which she from the bank withdrew on 28 1975 after the murder, son, to her loaned but he was unable to account for it. THE SUPREME COURT
Other relevant to facts the decision will be discussed in opinion. Attorney Magner, General L. Edmisten James E. Rufus
Jr., Attorney Assistant General the State. Jenkins, Jr., Knox V. and Thomas S. Berkau for defendant appellant.
COPELAND, Justice.
denying
Defendant contends that
the trial court erred in
her
for a
provided
motion
of venue as
in G.S. 15A-957
alternative,
special
or in the
panel
for a
venire
under G.S.
hearing,
argued
15A-958. At the
motion
defense counsel
prejudice against
County
the defendant
in Johnston
would
not allow her to obtain a fair
support
trial.
motion,
seventy-three
his
counsel filed five affidavits and
un-
county
sworn
statements
statements,
residents. The form
printed
advance,
concerning
in
contained a number of rumors
allegedly
throughout
defendant which had
circulated
Johns-
County.
being
person
sign
ton
asked to
a statement was
apparently requested
following
to choose from the
rumors about
“(1)
those he had heard:
That
hired
she
some
husband;
(2)
blacks to kill her
That she killed
first hus-
band;
(3) That she killed her husband’s
fed
brother-in-law and
hogs;
(4)
him to some
married
formerly
That she killed an individual
daughter;
(5)
performed
to her
That she had
abortions
girl died;
(6)
and a
That she was instrumental
in the death
of her son’s former fiancee who was killed in an automobile
accident;
(7) That she was involved in the theft of television
Sylvania.”
charged
sets from
Defendant had never been
with
crimes,
or convicted of
of these
other than those involved
present
judge agreed
case. The trial
to consider the un-
support
sworn
statements
of defendant’s motion.
Defendant also offered as Exhibit No. 80 a “color-coded”
map
townships
County.
Johnston
provided
We were not
*5
key
map
to the
significance.
thus cannot determine its
hearing
judge
At the motion
the trial
indicated that he would ex-
particular
clude
townships
from “two
area,” pro-
in that
agreed.
vided the
attorney
defendant and the district
Whether
precaution
or not this
appear
was followed does not
of record.
Presumably,
something
Exhibit
80No.
to do with this.
269
1976
TERM
FALL
N.C.]
v.
State
panel
special venire
change
or for a
of venue
A motion for
judge, of the trial
discretion
sound
addressed
“is
any error.”
is
there
must
before
be shown
of discretion
abuse
;
325,
(1976)
186, 190,
2d
328
221 S.E.
Harrill, 289 N.C.
v.
State
2d 742
303, 214 S.E.
publicity in case newspaper in this candidly accounts admits cases inflammatory. previous criminal All our have not been find publicity. We type unfavorable toward this were directed dealing with elsewhere North Carolina or criminal cases no publicity. word-of-mouth
Maxwell, [1] impartial “Due 384 U.S. process requires free from outside 333, 362, 86 S.Ct. the accused influences.” 1507, 1522, receive a Sheppard v. 16 L.Ed. trial by 2d every that we have (1966). case 600, criminal While change has dealt in issue of venue was find in which able with pretrial publicity, we be resulting from media prejudice not requirement so of a fair the constitutional lieve require of venue our statutes which Nor are limited. pre great as to panel prejudice is so where special venire or a inspired As trial, prejudice. to media restricted a fair vent once wrote: Holmes late Mr. Justice to be system theory conclusions of our is that the “The argu- only by be induced evidence and in a case will
reached influence, court, open whether and not outside ments added.) Pat- print.” (Emphasis public private talk or Attorney General, 205 Colorado ex rel. terson v. State of (1907) ; 462, 556, 558, 879, 454, 27 S.Ct. L.Ed. U.S. 1516, Maxwell, Sheppard supra 351, at accord, v. at 86 S.Ct. 2d at 614. 16 L.Ed.
[2] The burden showing “so great prejudice against trial” falls fair and that he cannot obtain a Maxwell, supra, Sheppard G.S. 15A-957. on the defendant. Supreme involving press publicity, United States preju held, likelihood” that is a “reasonable where there Court trial, prevent prior will a fair the trial to trial dicial news county permeated to another not so the case should transfer apply proof should where The same publicity. standard with *6 THE SUPREME COURT State alleged prejudice publicity. the is attributable to word-of-mouth If, presented, under the evidence there is a likeli- reasonable had, hood a fair trial cannot be is an abuse of discretion grant special panel. fail to of venue or a venire considering type prejudice alleged the the of In here for difficulty first time proving this court is sensitive to the of prejudice generated by “private time, this talk.” At the same potential court must manipulation of be solicitous the for manufacture proof type prejudice. By of of this of state- this imply engaged ment we do not the trial counsel in able type this of In publicity, conduct. the case of adverse media judge arriving easily trial at his determination can examine allegedly inflammatory articles and take evidence on copies county number circulated and the number county figures objective. These residents. are case, [3] With defense counsel printed statements of rumors as should, at a minimum, introduce evidence were used in this any, of the persons approached, number of if who had not heard concerning the rumors this Here defendant. no evidence persons seventy- offered of number the total contacted before saying three they returned individuals statements had prejudicial heard at least one rumor Nor about defendant. any presented was were evidence how individuals solicited they registra chosen. Were selected at random from voter tion county? lists off the streets all sections essence, attempted with her unsworn state- public opinion poll ments to giving introduce a without trial judge necessary vital statistics him likeli- throughout hood of prejudice county. also It should questions per- remembered that critical are whether the thought son guilty interviewed the defendant was of the crimes charged person questioned and whether believed county. defendant could receive a fair trial None of affiants or they statement makers any pre- indicated that opinion guilt. conceived defense as to exception defendant’s With the attorney’s affidavit, own none of the affi- statements or expressed opinion davits receiving possibility on the of defendant’s County. in Johnston disturbing A aspect of type pre- this case involves the pared statements used printed defense counsel. The forms in advance with obviously seven rumors about the defendant FALL TERM. N.C.] y. Boykin about the defendant. stories disseminate
helped resurrect *7 rumors anyone heard the who had never Certainly, when say longer truthfully he forms, no he could of the shown one who viewed and others probably he and heard them had not greater audi- spread rumors to even the on to the form went ences. that questioned dire stated jurors on voir all note that
We that defendant give fair trial and they the defendant could challenges. peremptory did not exhaust fully justified Although judge would have been the trial say motions, he allowing we cannot of defendant’s in either denying the cir- the motions under in his discretion abused recognizing may where that be cases there While cumstances. damaging publicity may to a be as widespread, word-of-mouth publicity, right impartial mass media to an trial as defendant’s a “reasonable that there was be reluctant to conclude will we had until that a fair trial could not be likelihood” reliability steps were taken to insure that demonstrated has aggravate the poll did not opinion and that defendant having shown, problem. No abuse of discretion publicity assignment error is overruled. fense whether [4] At the counsel would have or not he could pretrial hearing, give the defendant a the trial opportunity to fair and indicated ask each juror de juror so, then he would be if the could not do hearing, challenge of the subject for cause. In the course to defendant, inquired I them of the ask court “Can counsel replied: it, they The court have heard about about her?” what pose competent question to “No, be a to That would not Sir. jurors.” prospective jurors Defendant contends ruling. error in this committed court jury in record does not disclose manner which the years practice North it has in was chosen. recent become by jurors capital to in cases as well as others Carolina choose jurors jury approved placing box in the manner twelve Perry, 174, by in 2d 729 State v. 277 N.C. 176 S.E. our Court case, capital (1970). in Prior to that has been the custom require juror prospective in North each cases Carolina touching separately examined, separately his or sworn Roseboro, panel. her fitness to serve on the trial State v. (1970). 185, 2d 886 171 S.E. N.C. THE SUPREME. COURT
State v. Nothing appearing, jury else we assume that in this Perry, approved case was selected in the manner State v. supra. being so, That we cannot of the conceive able trial coun- asking juror prospective sel whether he or she had heard rumors set forth or unsworn affidavits statements. Had unfavorable, counsel done so and the answers been might rest of the prejudiced box have been importuning and defense would have counsel then been the court for a continuance. opportunity “Each entitled to full to face prospective diligent jurors, inquiry make into their fitness serve, right challenge and to exercise his those who are ob-
jectionable
Perry, supra
177,
to him.” State v.
at
176 S.E. 2d at
*8
counsel’s,
However,
jurisdiction
731.
this
exercise of
“[I]n
right
inquire
jurors
subject
to
into
fitness of
judge’s
supervision.
regulation
close
The
of the
manner and
inquiry
largely
extent of
judge’s
rests
in the trial
discre-
overwhelming
tion.
majority
The
[Citation omitted.]
states
Bryant,
92, 96,
follow
rule.”
this
State v.
282
191
N.C.
745,
(1972),
2d
denied,
987,
S.E.
2d
497,
748
cert.
410 U.S.
36 L.Ed.
184,
(1973)
;
93
accord,
Carey,
1516
S.Ct.
State v.
N.C.
285
(1974).
stated that could fair and trial and that peremptory defendant did not exhaust her chal- lenges. Although jurors few panel of the on the indicated they prior had heard this trial, those, case discussed apparently reputation none had heard the defendant’s discussed. necessarily Pretrial discussion aof case does not pros- render a pective juror impartial, especially where the discussion is limited appearing noninflammatory information newspaper ar- Dowd, 722, ticles. In Irvin 366 717, 1639, 1642, U.S. 81 S.Ct. 6 751, (1961), 2d Supreme L.Ed. the United States Court said: FALL TERM 1976
N.C.]
State v.
required
“It
is not
jurors
totally
. . . that
ignorant of the facts
days
and issues involved. In these
swift, widespread
communication,
and diverse methods of
important
expected
case can be
arouse
interest
public
vicinity,
scarely any
of those best
qualified
jurors
to serve as
will not have formed some im-
pression
opinion
as to the
merits
the case.”
request
the absence of
jurors
to have the
examined
separately,
hypothesize
we
cannot
what
heard con-
cerning
prior
this case
to trial. This Court finds itself in a
position analogous
presented
when a trial
sus-
objection
tains an
question
examining
to a
counsel fails
to have recorded what the answer would have been.
The evidence in
overwhelming,
this case was
and thus we
cannot
prejudice resulting
conceive of
to this defendant.
convincing
We
quality
conclude that the
of the State’s evidence
certainly produced
would have
the same result if the
could
have been chosen from
County,
Cherokee
point
most distant
County.
from Johnston
If error
there be in either of these
assignments,
beyond
Chap
was harmless
a reasonable doubt.
Calif.,
man v.
18,
705,
386 U.S.
17 L.Ed. 2d
State v. case, of this we have searched of serious nature Because assigned found other than those have the record errors prejudicial to other than the failure of de- none the defendant Carolina, assign North to error under Woodson v. fense counsel swpra. find
In the trial we error.
No thereof, and, in lieu life Death sentence vacated sentence imposed. Sharp dissenting. Justice
Chief inadequate and methods Despite defendant’s unscientific garnering change support of evidence in for a of venue, motion should me the motion have been the record convinces that grant her to allowed and the court’s failure to it entitles begun damaging circulate, rumors have so a new trial. When prospective that her dares not ask a counsel them, juror me has heard that neither if he seems counsel’s challenges request peremptory nor to failure to exhaust his prospective separately dire examined on voir can con- be right a stitute waiver of defendant's separate of venue. a majority suggests jurors, as examination which safeguard only situation, if such a could the solution every juror examined and were held incommunicado excused impaneled and committed to until the custody. procedure In a this such case like would bailiff’s obviously impractical. seem to be that, say Nor should we because evidence defend- overwhelming guilt any jury anywhere ant’s is would so charged,” “guilty an law have verdict error of returned grounds would have been for a new trial which otherwise approach presumption nullifies both the harmless. Such process, requirements of due and it harbors innocence and unnecessary. I implication that the trial itself was therefore vote respectfully dissent and for a new trial. *10 joins in Exum dissent.
Justice this