*1 CASES ARGUED AND DETERMINED IN THE SUPREME COURT
North Carolina
AT G RALE I H SPRING TERM 1975 STATE OF NORTH CAROLINA v. HAROLD GEROME WHITE
No. 90 (Filed February 1975) — degree sufficiency 1. Homicide 21—§ first murder of evidence prosecution The State’s evidence was sufficient for the degree for first murder where tended to it show that defendant had decedent, owner, an price a restaurant over the of two dogs, hot that when stated, defendant left the restaurant “You back; get you,” s.o.b. will be I will that a woman who left the restau- rant with defendant returned restaurant and stated gone get shotgun coming had back, defendant and was and that shotgun, returned to the restaurant with a stated that decedent, had to kill come and shot decedent to death with the shot- gun. — capital jury argument judicial 2. Criminal Law 102—§ case about executive review capital case, any argument by private In a made the solicitor or prosecution appearing suggests for the State which depend upon judicial any can either or executive review to correct verdict, responsibility it, errors in their and to share their is an privilege abuse of to the defendant. IN THE SUPREME COURT v. White *2 — argument jury’s capital not case that verdict 102—§ 3. Criminal Law — — objection duty disposition of court final absence of jury’s a for the counsel State In a death case intimations prej- necessarily disposition of the case are so a final not verdict is udicial that timely objection not waive malee counsel’s failure to duty judge being right object, of the trial to it defendant’s correct and, imprоpriety time in the trial if such an abuse at some gross, at once. be to interfere — argument prosecutor’s jury capital about case 102—§ 4. Criminal Law appeal guilty verdict capital private prosecutor Argument case that “If in a Supreme gets appeal guilty, Court he an automatic found any court, necessary. is made If error North Carolina —it improper; say,” of such the harmful effect was and Court will objection judge argument sustained an not removed when the trial was not to consider “what and instructed the begin- Court,” or the trial at the when said about objection, charge stated, ning want this ease. take facts “The reason I sustained that of his review is that Court will all to understand case I mаde a mis- would send the back if That They legal question. the decisions of the will not review on a sole of the facts of this law- The is the trier suit.” — prosecutor competency employment private Law 86—§ 5. Criminal bias to show degree prosecution, the court erred murder trial first In this whether of decedent’s wife as to of cross-examination exclusion the she private employed in the case since such evidence counsel had against part competent bias on her defendant. to show was Copeland hearing participate Exum did not in the Justices case. decision concurring in result. Justice Lake dissenting. Justice Huskins
Appeal Winner, 7A-27(a) from under G.S. defendant Superior Special Court Session /., 3 December S. Spring argued Term docketed Alamance, 83. No. Case indictment, under upon drawn G.S. tried an Defendant was Langley charged of Howard the murder 15-144, him with which August and defendant offered evi- Both the State 1973.
on 11 tended to show the facts summarized evidence The State’s dence. below. Langley (Langley), deceased, owned Howard High- Drive-In, a restaurant located operated Farmer’s SPRING TERM 1975 v. White way p.m. about No. 87 nine miles south of Graham. About 6:00 August carrying on 11 defendant came into Drive-In proceeded counter, approxi- a small child. He which mately directly Langley, 32 feet back from the entrance. counter, appeared behind noticed stagger approached. as he When defendant sat down on stool beer, Langley ordered told him he did not think needed one. Defendant denied that he was drunk and had said he staggered carrying Langley because he was the child. served baby Thereafter, played him the beer. with the and en- gaged laughing in a conversation with defendant. *3 hotdogs Soon defendant “ordered three draft beers and two go.” Langley, to taurant, prepared Mrs. in the worked with her husband res- dogs. defendant,
the hot handed them She to kitchen, directly and returned to the behind the counter. Defend- Langley price dogs ant reply asked of the hot and the was “seventy-three cents.” Defendant retorted that “he did not want buy just cow, hotdogs.” to a two Then “one word led anothеr.” brought Langley
Their loud voices Mrs. from kitchen in say time to hear her husband that he man had never cheated a long as he had been in business and he would not start now. dogs pay Langley Defendant said, “No, said he would for the hot but my hotdogs I keep keep your money.” will and response was, my matter, whitey, Defendant’s is the “What isn’t money good enough you?” Langley replied that “this” had nothing whatsoever to do with it and he would like for him to got “yelling swearing” leave. defendant When off the stool Langley, at a black woman came from a booth the entrance near him, on; go.” and said to attempted pull “Come let’s She him “pulled her,” finally toward the door. He back from but she got him out of the door. At Langley the door defendant called to to “come on out.” Langley said, Mrs. s. o. restrained her husband and defendant “You back; get you.”
Ib. will I be pulled Defendant left in a car with the woman who had him out of the door. She returned in about ten minutes and went child, a booth where woman, another black and a black sitting. Langley male were Mrs. heard her tell the black man in gone get shotgun booth defendant had and was coming Upon hearing back. occupants this all the booth Langley sheriff, Langley left. Mrs. called the locked the door. THE COURT IN SUPREME v. White “thinking minutes, the other col-
However, 20-25 in about stop not come him and that defendant would ored man would Langley later, about 7:00 back,” unlocked the door. Minutes holding restaurant p.m., defendant enterеd the double barrel shotgun, pointed to the floor. Langley behind the counter
At that time Mrs. was said, Langley kitchen behind her. When him,” kill that white of a bitch? came to son “Where emerged Langley wife “to from the kitchen. He told his opened storeroom, into the back,” started to the which dining shotgun end of the counter. His double barrel room at south deep freeze. was in a corner of the storeroom dining Langley fired at from about center Defendant area when storeroom. At was shotgun. Holding Langley the door to the was between kitchen and gun. Langley As that time he had not reached his get falling managed his into the storeroom and to reach defend-
onto the storeroom door fired and ant fired. agreed all, were fired in all that three shots
The witnesses succession, rapid the thrée shots were two in and that two of They agree (some uncertain) did not were fired whether the shot defendant. falling as he was the second fired Langley fired at defend- or third shot which was fired. When ant, patrons “like it looked to one of the seated in the restaurant *4 with it kind of dazed defendant a little He turned around bit.” nearly toward them and that “scared them to death.” barrel standing on For a moment thereafter defendant remained shooting. Langley spot had fallen from which he had been Looking said, him backward into the at defendant storeroom. got you.” “I and now I have told would be back With away in truck. he left the restaurant and drove his оld Chevrolet Lang- p.m. deputy A sheriff at Drive-In at 7:12 arrived immediately ley bleeding profusely. was still alive but He was county autopsy hospital sent to was dead on arrival. An but gunshot had revealed that he bled to death from wounds which jugular vein. lacerated the Shortly away after defendant drove from the restaurant gun- being county hospital for found him at the treated officers shot wounds. They Hilliard, found Mrs. also Mr. and W. H. eating supper at the Drive-In. At the time of
had been shooting standing had in front of their booth. been TERM 1975 SPRING gunshot Both Mrs. had Mr. and Hilliard received wounds in legs. testifying gave Defendant, behalf, own a witness in his evidence which tends to show: companions began drinking He and several noon on before August and, drinks, after 2-3 hours and 4-5 went he was
“high.” Therеafter he to the home of Hattie Morrow and he, she, from there and her to the Farmer’s three children went Drive-In, he where ordered a At that time he still beer. was “feeling drunk,” Langley what he had but when told him was he high taking baby he said he had “stumbled from drinking was all was paying it, said.” After the beer and for baby away he took the from the counter and returned order to dogs asking price. two hot without He didn’t care what money he pay cost because anything had the to for them. He never said Langley price to dogs, reference hot but friend, Ray (a Hattie’s), did remark to his Morrow cousin of —high dogs, hamburger, that all meat hot and steak. Langley, overhearing remarks, misinterpreting Mr. his hotdogs defendant,” “snatched the his wife had set front buy gеt thing” told him he did not have to “a damn and “to place.” dogs hell out his pay Defendant for the offered to hot Langley sorry than more thing. Langley once and told he was about the whole accept apology kept saying, to refused his get Defendant, say “You however, the hell out of here.” did not to word back him or his peacefully, raise voice. He left with- resisting Hattie, out and went back to her house. En route he going get gun Langley. did her not tell to kill his got went M. C. When defendant out of car he Hattie’s boys” Morrow’s trailer go advised him not where “some of the you.” back to the Drive-In “because that man will shoot How- ever, go talking Langley he decided to wasn’t back and tell dogs. got him about the hot the home of his He first in his truck and drove hoped employer, Harrelson, whom he Mr. finding “would talk to him.” Mr. Not Harrelson home, cousin, Jerry White, defendant and his first returned shotgun to the Drive-In. There defendant took his from under *5 (where put previously seat his truck he had it in order get gun repaired). the stock He took the into the restaurant him, anybody not because he intended to hurt but because “just carrying Langley thought he might felt safer it in. With it he him; previously.”
listen to he had not listened THE IN SUPREME COURT y. White gun carrying the down entered the Drive-In Defendant ceiling. pointing leg, toward the He his with the barrel beside made Langley’s inquiry and made no no as to whereabouts hurting anyone. However, threats; after had no intention of got couple steps into the restaurant he shot in he had taken a managed leg, thigh, and the side. He fell but the left prop gun. burning stinging on his He felt a and and himself very only thought regain not see well. His was to his could get out, up but when he looked he saw “a flare or balance thought something move and his first was he would be gun got again and he He did not raise his until he shot shot.” hit. many know how He does not shots he fired. He remembers going shooting once, and at Mr. he remembers out the Chapel “he his mind is a blank until was in door. Thereafter hospital.” Hill Connty Hospi-
Defendant from the Alamance was removed Hospital Chapel Memorial at Hill for tal to the North Carolina surgery repair pellet abdomen, knee, wounds his left surgical right thigh. team, operated A on de- member of the fendant, that at time he received these wounds testified pain. hospital in the defendant suffered intense After six weeks satisfactorily. recovered defendant had Morrow, included Other defendant Hattie witnesses Ray Jerry Ricky Douglas Morrow, White, Garner, Durham. testimony defendant. Hattie Morrow’s corroborated that, taking home, she also testified defendant to her She after get cousin, baby, and sev- returned to the Drive-In to “her her girls” eral more of the who went with her to the restaurant. Ray Morrow, denied that she told who went to the Drive-In She during group with her and remained there time she anyone coming away, else, that defendant with a back gun. had “no idea” that he intended to return there. He was She trip when she started on her return Hаrrelson’s again Drive-In, and did not him until after he had been she see home, then in shot. He was his truck in front of her cousin’s boys put and she had the him her car so that she could take county hospital. him the Ray testimony Morrow’s corroborated both Jerry into the Hattie. testified he declined to White gun; heard Drive-In with defendant because he had the that he get steps “had time to three shots after defendant about four *6 TERM SPRING y. State White being- two”; in the.door.” He “heard one and then the last two one after the other.
Ricky Garner testified that he arrived at the Drive-In on evening August just leaving 11of as defendant was (the time). cursing loudly saying At first that time he was having hamburger be back. Garner was he.would twenty-five beer when defendant returned about later minutes gun with a in his hand and asked where was. Douglas patron, Durham, another said that was in the p.m. p.m.; restaurant from 4:00 until 8:00 that he saw defendant time first he came to the restaurant and he saw him leave. During ing, cursing yell- argument, the time defendant was there he heard no twenty-five When, or threats. minutes, about de- gun, fendant returned to the Drive-In with a Durham “hit the gun floor” because was scared of the and did not know what going defendant was to do. foregoing testimony In addition to the defendant offered testimony tending good. to show that his character was Judge Winner instructed the to return one of four Guilty guilty degree, verdicts: of murder in the of murder first degree, guilty voluntary manslaughter, in the second of or not guilty. jury upon pertaining He instructed the the law to sеlf- killing passion. jury’s defense and a in the heat of sudden “guilty degree.” verdict was murder the first From the imposed upon appeals sentence death that verdict defendant to this Court. pertinent Additional facts to decision will be stated in the
opinion. Morgan, Attorney General, Robert Ray, William B. Assist- Attorney General, ant Morgan, Attorney, John Associate the State. Aldridge, Jr., appellant. Thomas V. for defendant SHARP, Chief Justice. appellant purports bring twenty In his brief forward assignments comply error, none of which Rule with 28 of the Rules of Practice in This Court, 254 N.C. 810. requires appellant’s properly contain, rule brief “shall grounds exception assignment
numbered, the several THE COURT IN SUPREME transcript printed pages the au- error reference *7 assignment.” (-Empha- under each thorities relied classified by added.) However, capital case, is a aided the sis because this diligence Attorney of the members of the General’s staff who gave prepared de- the the references State’s brief and us which assignment omitted, fendant’s counsel have considered each we necessary only However, we deem it to note four. error. jury the submission of the State’s evidence “was not sufficient [1] and further that the Defendant’s assignments capital evidence charge of error was not sufficient of first carry 21 degree the case to the 22, murder to that support the jury,” are overruled. The resume of the evidence at beginning opinion clearly sufficiency of this demonstrates its nonsuit, to withstand all motions for and itself eliminates the necessity any discussion. ant’s two At the close of the evidence [4] opening lawyers. argument Mr. Harold to the jury. Dodge, the solicitor He counsel followed privately employed for the defend made argument. solicitor,
to assist made the final In it he said: “ you question . . . will answer the whether this defendant is guilty degree gets guilty, of first appeal If found auto murder. an Supreme matic to the of North Court Carolina —it is necessary. say.” any court, If error is made that Court will objected immediately, Counsel for defendant and the court summarily disposed objection by saying, “Sustained. jury, Members don’t consider what he said about Supreme Cоurt.” Dodge argument
As soon as Mr. concluded his defense coun- prejudice sel moved the court to declare mistrial for ant to defend- argument jury prosecution’s that from the verdict was not denied the At the this case final. The court motion. beginning charge jury of his instructed the as fol- lows: argument objected
“I that want to back to the argument in right of counsel has a Court The I sustained to send this case back on mistakes. reason objection, all to understand that the want is they review this case. That would send the case Court legal question. They on a will not back if I make a mistake SPRING TERM review the decisions the facts is sole trier of the facts this lawsuit.” given No further instruction was with reference to Mr.
Dodge’s argument, assignment which is defendant’s of error No. 24.'
pearing
it,
any
can
[2]
depend upon
errors in their
This Court
an abuse of
for the
made
has
State,
privilege
either
verdict,
consistently
solicitor,
which
judicial
and to share their
suggests
held
or executive review to correct
that,
private prosecution
to the defendant. See
in a
responsibility
capital
case,
any
ap
Hines,
Brown,
State v.
Walston
&
N.C.
S.E. 2d
in which Justice Branch
fully
collects the authorities which
*8
explain the reasons for the rule.
that the
jury.”
the case are so
Dockery,
make
the trial
State that a
objection
[3]
(1948). However,
When
timely objection
State v.
judge may
238
judge
such an
jury’s
N.C.
not waive
Hawley,
to correct such an abuse at some time in the
in a death casе intimations
verdict is not
correct the
argument
[as
In immediately each of the three cases cited a new above trial was solicitor, prosecution awarded private because the argued jury’s case; that the verdict not the end of the would others ecuted. review their verdict before the sentence was ex- In Dockery expressed both Little and the Court doubt that given the court could have an instruction thаt would re- have improper moved the harmful effect of the remarks from the jury. Hawley minds flatly of the In the Court said in- that no struction could have neutralized the harmful effect of the solici- argument tor’s put that before the defendant would be to death Supreme Court, Paroles, Commissioner of and in all probability personally, carefully the Governor would consider IN THE COURT SUPREME any “only percentage” case; that, event, certain finally
capital death. felons suffered argument not prosecution’s Private in this case did clearly Hawley, yet intended far as the it was solicitor’s went in jurors’ to guilty a verdict overcome the natural reluctance to render degree diluting responsi- their murder in the first bility consequences. course, say cannot, whether for its We its removed an immediate harmful effects could have been argument positive and improper; instruction to the that counsel’s other,gov- any Supreme that neither the nor Court agency responsibility ernmental for their ver- could share their duty weigh dict; required their them to the evidence assumption that whatever verdict find the facts they disposition rendered would the final of the case. Such be requirement, minimum instructions would have been the they given. were not
said, [4] When “Sustained. Members of the objection was made to Jury don’t consider the court what he merely Clearly was in this instruction said about the Court.” beginning transgression.” Later, adequate to “correct the charge judge said, that ob of his “The reason sustained jection, Court I want all to understand is would send back will review this case. That case legal They question. will not review the if I make on a a mistake facts is the sole trier decisions of the inadequate. likewise facts of this lawsuit.” This instruction was *9 quite appeal It Court considers is true that on foregoing yet instruc- questions law, apprehend the of we that enlighten fully jury nature of the not the as to the tion did differ- Supreme appeal and as to the review of a case on Court’s They judges the law. facts” and of ence between “triers of the Supreme “review understand, however, would the Court did case,” had told them so. the and counsel the for both Supreme Futhеrmore, positive “the Court his statement that jury case,” to have understood the was bound review guilty. their verdict would be that the court assumed assignment hold that No. we For the errors embraced assign- on this is entitled to a new trial. Our decision following episode the trial. and final ment bolstered the is the 6 December verdict on returned its Following judgment. recess of the court pronounced the court TERM 1975 SPRING Larzelere, panel that afternoon Mrs. E. R. member of a the jurors term, summoned for the but not a member of the defendant, reported below, which tried the incident detailed other, to defense and one counsel:
Mrs. Larzelere seated when the ver- courtroom jurors discharged dict in this case returned. werе When courtroom, jurors and directed to take seats in the one say, took a seat behind her. As he sat down she heard him “They always take it to the Court.” She did not see juror statement, but, opinion, made in her it was of defendant’s foreman Counsel told the what Larzelere court Mrs. had told him set, grounds “jury and moved to aside the verdict on Judge “accepted” misconduct.” Mrs. Winner Larzelere’s affi- she reported, davit in which swore to the she had facts but trial, denied defendant’s motion for a new because is “there nothing in either of those prejudicial instances that to de- argee that, standing alone, juror’s fendant.” comment, We “They always Supreme Court,” justify take it to the would not a does, however, new trial. It indiсate to us one more jurors did consider what counsel “said about the Court.”
[5] Since the case goes back, we consider defendant’s assign showing purpose of error ment No. 9. For the bias part Langley, deceased, of Mrs. the widow of the who testified eyewitness homicide, for the State as an defense counsel you cross-examination, privately her on employed asked counsel to “Have prosecute this case for ?” The court sustained the question. objection to the permitted State’s answer, Had she been to said, “Yes, Mrs. would have I did.” party may A proceeding a either civil or criminal elicit opposing from having particular an witness on cross-examination facts logical tendency show the witness is biased against him, cause, hostile to his or that is inter witness adversely litigation. ested to him in outcome of Ordi narily, prevent it is error to cross-examination of a clearly witness as facts from bias which would be inferred. Hart, 709, 711, v. (1954). 239 N.C. 2d 901 In S.E. disputably, employed private the fact that witness had counsel against prosecute logical tendency the case defendant has a *10 y “ against to show the him. witness’ bias toward [H] ostilit may party shown be the fact that the witness . em- has . . 406 IN THE SUPREME COURT prosecuting party.” ployed special to aid in the counsel McCor- (1972). C.J.S., See 98 Witnesses mick on Evidence § § (1957). excluding court erred in the evidence Mrs.
The private prosecution However, in employed had this case. deci- assignment unnecessary it No. makes to decide sion on in de- whether this error this case. Other of assignments but, have error merit since we deem fendant’s likely trial, the to reoccur at next we dis- none of them omit them. cussion trial.
New Copeland participate and Exum did not Justices in the hearing decision of case. concurring Lake result. in
Justice my opinion It that a new trial be had in this case must upon majority opinion the the but not for reason which rests. begun jury deliberations, After the had it did its which p.m. 5, jury the later than the returned to December request further as the ele- courtroom ments of instructions degree the first The stated crime of murder. hour, explain of the late law that because would nоt the relating at to that matter that time but would do so “the first morning” thing jury the and would let the in the meantime. in jury: all specifically He instructed “Be the careful observe you gave week, the first of talk instructions do not you again, the case. Let me caution not to about case even and discuss among yourselves until are back here tomorrow jury room.” back at 9 time
The trial a.m. on December which resumed court, request jury, response the jury instructed degree to the elements of de- first second murder gree thereupon, and, room murder sent to its to resume guilty of its The returned with verdict of deliberations. its degree and, upon verdict, murder in first court sen- the defendant death. tenced following day,
On the December before end judgment term, made a the defendant motion vacated be granted of misconduct of more a new trial because one or alleged brought jurors. misconduct had been *11 TERM 1975 SPRING imposition defendant, attention of counsel for after by jury panel sentence, Larzelere was Mrs. W. R. on the for the term not but was a member of the which tried this affidavit, Her defendant. which was submitted to the court in support motion, stated: “That when this Affiant arrived Courthouse on morning proceeded of December she hallway immediately to the rear of the Courtroom where being the Harold Gerome was tried White Case and between 8:30 and 9:00 o’clock there a.m. observed several individuals recognized at least thrеe in number, and at least one juror said individuals as on the Harold Gerome White approached group That Case. as Affiant this she commented climbing proceeded about the stairs and toward the Court- talking room door when the said individuals there to each discussing other were overheard her trial, present this Affiant commented that had she not been testimony all the but there seemed to her to be contradic- testimony, whereupon tions in the the white male in said recognized group juror which this Affiant as a on the White very emphatically Case stated that had heard all the open evidence and that it was an and shut case of murder.” duly thereupon The court had Mrs. Larzelere sworn. She grouр did testified she not know whether she observed talking jurors about the case contained more than one of the on that case but “there were at least two other men serving out talking “discussing up, there” and were when she came group case.” She testified that informed the she she thought “controversy testimony” there was some in the but testimony thereupon, and, she had not all of the the fore- heard thought made statement that he it was man open an and shut case of murder. Although jury, impro- the foreman of the thus accused priety present Larzelere, was Mrs. in the courtroom and making had therein her as the man she heard identified question, did not him statement in the court see fit call interrogate simply matter, as ing him about the stat- a witness nothing that there was in the incident that was and, therefore, denied motion for a new to the defendant trial. testimony, Larzelere, It Mrs. on her own is obviousthat guilty discussing gross with at least one case misconduct COURT THE IN SUPREME v. State White juror For mis- her to ease. person known be contempt she, herself, cited for could well have been conduct no action was taken. court such but
Taking
testimony
Larzelere
the
of Mrs.
as
the
affidavit
true,
do, the foreman
the circumstances we must
which under
given
jury clearly
the
proper
of
violated the
instructions
the
adjournment
jury by
not
the
5. He
court at
December
guilt prior
as to the defendant’s
to
stated his own conclusion
“dicussing
engaged
court,
in
the
this
of thе
he
final instructions
but
persons
may
may not
with other
or
have been
case”
concerning
jury. The nature
their
of the
of
discussion
members
record,
cannot, upon
determine
the
is not
case
known. We
prejudicial
to the defendant or not.
that discussion was
whether
guilty
capital
in
should not be allowed to
A
case
verdict
circumstances,
support
under these
stand
for a death sentence
granting
though, ordinarily,
the
of a mistrial
for misconduct
judge. See,
of the trial
in the sound discretion
this sort rests
95, 103,
Shedd,
I am unable to judge improper to correct statement taken trial argument prosecution jury. private his for the in to the counsel agreement dissenting matter, opin- I am in with the As to ion of Justice Huskins. argument, private prosecution In his counsel for the told jury: question “You answer the this Defendant will whether guilty Degree guilty, gets First Murder. an is automatic it is If found Supreme appeal to the Court of North Carolina— necessary. any Court, If error is made Court added.) say.” (Emphasis improper tended minimize because it That might jury’s importance of the verdict and from it the TERM 1975 SPRING v.
State White would be infer that its verdict reviewed Court. See, Hawley, 35, 167, v. 229 N.C. 2d v. S.E. and State Little, argu- 2d N.C. S.E. each which substantially objectionable ment solicitor was more than objection by present Upon prompt in the case. counsel for the defendant, responded: trial Jury, Members of the don’t consider what “Sustained, said about Court.” foregoing apparently very statement occurred at the concluding argument
end of The defendant’s thereupon mistrial, moved for a counsel the court which denied. asked, The court then “Do want me to instruct them not again, it consider not?” Counsel for replied, the defendant prejudice to mistrial,' “Without the defendant on motion its we ask Court instruct proper as to the law.” It appear hearing does not these remarks were in the *13 jury. immediately began The jury court its instructions the to charge opened its with this statement: Jury, argu- I “Members want to back the to objected argument that ment to in the of counsel that right the Court has a to send this case back on mistakes. The I objection, you reason sustained that I want to understand is that the Court will review this That would case. mistake on a send the I case back if make a legal They question. will not review the deci- jury sions the the The is the sole trier of facts this of (Emphasis added.) lawsuit.” the facts of say expression that opinion To this is an of the trial jury (or should) guilty court that the would very return of verdict my is, opinion, judge in strained construction of the what Only argument before, question a few in said. moments the had jury and, resulting to in flurry been made the view of the of excitement, jury suppose it to is reasonable the remembered may that, whatever it have remembered about the of rest coun- argument. was, guilty, gets That statement sel’s “If found (Emphasis appeal.” added.) an automatic In the remainder of charge, clearly jury the the trial court instructed the as to the proof of and as to the burden elements which the State must beyond prove justify a reasonable doubt in order to a verdict guilty. of my argument opinion, counsel,
In thе sum total of the the ruling objection, the of the court thereon and the instruction of THE IN SUPREME COURT prejudicial the to de- reference thereto was not the court with entirely possible occurred, it is Had none fendant. gone might their deliberations under the jurors have into the appeal. In impression that their verdict could be reviewed press upon in and said all that had been written view years concerning penalty in recent the death media news other judgments imposing death, sentences it appeals from and the any jury Carolina aware probable that in North would be is of the appeal and, a sentence death in of an from likelihood might thereon, jury well instruction be of some absence confused appeal. scope of The of counsel such as to prosecution improper ill private advised. Had for the ground corrected, would have for a new it been been it not judge clearly my but, opinion, the trial corrected it trial, effectively. perfectly clear was made It question appellate court was the final voice on the and not ruling guilt see no error or the instruc- or innocence. concerning argument. the trial tion of dissenting. Huskins Justice majority opinion provides recited in the over- evidence
whelming jury. Thus, support for verdict returned appear, error unless is made the verdict should upheld. be my majority view,
In the error relied on is inflated significance. proportion all out of Dodge, actual Granted that Mr. its argued employed prosecutor, privately erred when he “ jury: question . . whether this . will answer the degree guilty, guilty of first murder. If found *14 gets Supreme appeal an automatic to the Court of North Car- any necessary. court; olina —it is If error is made in this that say.” Upon objection the able and trial Court conscientious immediately judge jury, said: Members of the don’t “Sustained. Supreme what about the was consider said Court.” This suf- any mildly ficient, my opinion, effect remove harmful the argument might improper of But counsel have had. the beginning charge jury went further and at the of his argument objected “I back to the that stated: to in the want was argument Supreme of сounsel a that the Court has right this on The to send case back mistakes. reason I sustained objection, I want all understand is that the only the will review this case. That would send case Court legal question. They re- I a mistake on will not back if make TERM 411 1975 SPRING v. White State by jury view the the the decisions is sole facts (Emphasis added.) lawsuit.” trier the facts this While grammar good is not a model of instruction or sentence depict the words, structure and does not wisest choice of it never- jury language theless informs the in understandable that a re- by would view Court entail an examination law, “they errors of not case for errors of will not fact — jury.” review the of the decisions facts Thus it seems to any improper might me that effect decisively hаve had removed instructions done; I court. see little else the court could have and unless we say gross impropriety are to corrected, was so it could not be episode regarded
the effects of the should be as cured upheld. and the conviction significance Moreover, I attach no report whatever to the jury that, discharged, Mrs. Larzalere after the had been she jurors always say: “They heard one of the take it Su- discharged preme Court.” Once a its verdict cannot be
impeached by statements, statements, allegedly and rumors of jurors. Selph Selph, of the 635, made some v. 267 N.C. 148 ; (1966) Hollingsworth, 2d v. 158, S.E. 574 State 263 N.C. Strong’s (1964) ; 2d 235 Index 2d, 139 S.E. 7 N. C. Trial 46§ (1968). thorough agreement holding majority
I am in
permitted
should have bеen
to cross-examine Mrs.
employment
private
with reference to her
counsel.
s
competent
part
Thi evidence was
Langley,
to show
bias
of Mrs.
generally recognized
and the rule to that effect is so
require
authority.
so,
as to
no citation of
Even
defendant was
killing
Langley’s
on trial for
Mrs.
husband who was shot down
eyes,
every
her
member
before
she
knew
bitterly
against
intensely
biased
defendant and
interested in see
ing him convicted. Hence exclusion of evidence that she had
employed
prosecution
beyond
to assist the
counsel
was harmless
Florida,
v.
427,
a reasonable doubt. Schneble
2d
405 U.S.
31 L.Ed.
340,
; Harrington
(1972)
1056
California,
92
v.
S.Ct.
395
250,
284,
(1969) ; Fahy
23 L.Ed. 2d
89 S.Ct.
U.S.
v. Con
85,
necticut,
171,
;
(1963)
375 U.S.
L.Ed. 2d
majority opinion uphold new trial. vote to *15 conviction.