State v. Boykin

229 S.E.2d 914 (1976)

291 N.C. 264

STATE of North Carolina v. Margie C. BOYKIN.

No. 29.

Supreme Court of North Carolina.

December 7, 1976.

*916 Atty. Gen. Rufus L. Edmisten by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

*917 Knox V. Jenkins, Jr., and Thomas S. Berkau, Smithfield, for defendant-appellant.

COPELAND, Justice.

Defendant contends that the trial court erred in denying her motion for a change of venue as provided in G.S. 15A-957 or in the alternative, for a special venire panel under G.S. 15A-958. At the pretrial motion hearing, defense counsel argued that prejudice against the defendant in Johnston County would not allow her to obtain a fair and impartial trial. In support of his motion, counsel filed five affidavits and seventy-three unsworn statements of county residents. The form statements, printed in advance, contained a number of rumors concerning the defendant which had allegedly circulated throughout Johnston County. The person being asked to sign a statement was apparently requested to choose from the following rumors about the defendant those he had heard: "(1) That she hired some blacks to kill her husband; (2) That she killed her first husband; (3) That she killed her husband's brother-in-law and fed him to some hogs; (4) That she killed an individual formerly married to her daughter; (5) That she had performed abortions and a girl died; (6) That she was instrumental in the death of her son's former fiancée who was killed in an automobile accident; (7) That she was involved in the theft of television sets from Sylvania." Defendant had never been charged with or convicted of any of these crimes, other than those involved in the present case. The trial judge agreed to consider the unsworn statements in support of defendant's motion.

Defendant also offered as Exhibit No. 80 a "color-coded" map of townships in Johnston County. We were not provided a key to the map and thus cannot determine its significance. At the motion hearing the trial judge indicated that he would exclude jurors from "two particular townships in that area," provided the defendant and the district attorney agreed. Whether or not this precaution was followed does not appear of record. Presumably, Exhibit No. 80 had something to do with this.

A motion for change of venue or for a special venire panel "is addressed to the sound discretion of the trial judge, and abuse of discretion must be shown before there is any error." State v. Harrill, 289 N.C. 186, 190, 221 S.E.2d 325, 328 (1976); accord State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

At the pretrial hearing no mention was made of any adverse publicity in newspapers, magazines, radio or television. In fact, defendant candidly admits that newspaper accounts in this case have not been inflammatory. All of our previous criminal cases were directed toward this type of unfavorable publicity. We find no criminal cases in North Carolina or elsewhere dealing with word-of-mouth publicity.

"Due process requires that the accused receive a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966). While every criminal case that we have been able to find in which change of venue was in issue has dealt with prejudice resulting from pretrial media publicity, we believe the constitutional requirement of a fair trial is not so limited. Nor are our statutes which require a change of venue or a special venire panel where prejudice is so great as to prevent a fair trial, restricted to media inspired prejudice. As the late Mr. Justice Holmes once wrote:

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by outside influence, whether of private talk or public print." (Emphasis added.) Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879, 881 (1907); accord, Sheppard v. Maxwell, supra, 384 U.S. at 351, 86 S. Ct. at 1516, 16 L. Ed. 2d at 614.

The burden of showing "so great a prejudice against the defendant that he cannot obtain a fair and impartial trial" *918 falls on the defendant. G.S. 15A-957. In Sheppard v. Maxwell, supra, involving pretrial press publicity, the United States Supreme Court held, where there is a "reasonable likelihood" that prejudicial news prior to trial will prevent a fair trial, the trial judge should transfer the case to another county not so permeated with publicity. The same standard of proof should apply where the prejudice alleged is attributable to word-of-mouth publicity. If, under the evidence presented, there is a reasonable likelihood that a fair trial cannot be had, it is an abuse of discretion to fail to grant a change of venue or a special venire panel.

In considering the type of prejudice here alleged for the first time this court is sensitive to the difficulty of proving prejudice generated by "private talk." At the same time, this court must be solicitous of the potential for manufacture and manipulation of proof of this type of prejudice. By this statement we do not imply that the able trial counsel engaged in this type of conduct. In the case of adverse media publicity, a trial judge in arriving at his determination can easily examine the allegedly inflammatory articles and take evidence on the number of copies circulated in the county and the number of county residents. These figures are objective.

With printed statements of rumors as were used in this case, defense counsel should, at a minimum, introduce evidence of the number of persons approached, if any, who had not heard the rumors concerning this defendant. Here no evidence was offered of the total number of persons contacted before seventy-three individuals returned statements saying that they had heard at least one prejudicial rumor about the defendant. Nor was any evidence presented as to how the individuals "solicited" were chosen. Were they selected at random from voter registration lists or off the streets from all sections of the county?

In essence, defendant attempted with her unsworn statements to introduce a public opinion poll without giving the trial judge the vital statistics necessary for him to judge the likelihood of pretrial prejudice throughout the county. It should also be remembered that the critical questions are whether the person interviewed thought the defendant was guilty of the crimes charged and whether the person questioned believed the defendant could receive a fair trial in the county. None of the affiants or statement makers indicated that they had any preconceived opinion as to defendant's guilt. With the exception of defense attorney's own affidavit, none of the statements or affidavits expressed any opinion on the possibility of defendant's receiving an impartial trial in Johnston County.

A disturbing aspect of this case involves the type of prepared statements used by defense counsel. The forms printed in advance with seven rumors about the defendant obviously helped to resurrect and disseminate stories about the defendant. Certainly, when anyone who had never heard the rumors was shown one of the forms, he could no longer truthfully say he had not heard them and probably he and others who viewed the form went on to spread the rumors to even greater audiences.

We note that all jurors questioned on voir dire stated that they could give the defendant a fair trial and that defendant did not exhaust her peremptory challenges.

Although the trial judge would have been fully justified in allowing either of defendant's motions, we cannot say he abused his discretion in denying the motions under the circumstances. While recognizing that there may be cases where widespread, word-of-mouth publicity may be as damaging to a defendant's right to an impartial trial as mass media publicity, we will be reluctant to conclude that there was a "reasonable likelihood" that a fair trial could not be had until defendant has demonstrated that steps were taken to insure the reliability of the opinion poll and that defendant did not aggravate the publicity problem. No abuse of discretion having been shown, the assignment of error is overruled.

At the pretrial hearing, the trial judge indicated that defense counsel would have the opportunity to ask each juror whether *919 or not he could give the defendant a fair and impartial trial and that if the juror could not do so, then he would be subject to challenge for cause. In the course of the hearing, counsel for defendant, inquired of the court "Can I ask them what they have heard about it, about her?" The court replied: "No, Sir. That would not be a competent question to pose to the jurors or prospective jurors." Defendant contends that the court committed error in this ruling.

The record does not disclose the manner in which the jury was chosen. In recent years it has become the practice in North Carolina to choose jurors in capital cases as well as others by placing twelve jurors in the jury box in the manner approved by our Court in State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970). Prior to that case, it had been the custom in capital cases in North Carolina to require each prospective juror to be separately sworn and separately examined, touching his or her fitness to serve on the trial panel. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970).

Nothing else appearing, we assume that the jury in this case was selected in the manner approved by State v. Perry, supra. That being so, we cannot conceive of the able trial counsel asking a prospective juror whether he or she had heard any of the rumors set forth in the affidavits or unsworn statements. Had counsel done so and the answers been unfavorable, the rest of the jurors in the jury box might have been prejudiced and defense counsel would have then been importuning the court for a continuance.

"Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him." State v. Perry, supra, 277 N.C. at 177, 176 S.E.2d at 731. However, "[i]n this jurisdiction counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision. The regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. [Citation omitted.] The overwhelming majority of the states follow this rule." State v. Bryant, 282 N.C. 92, 96, 191 S.E.2d 745, 748 (1972), cert. denied 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973); accord, State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).

If defendant wished to pursue a line of questioning concerning the rumors to ascertain whether there existed grounds for challenge for cause or to enable her to exercise intelligently the peremptory challenges allowed by law, she should have requested that the prospective jurors be separately sworn and separately examined. No such request appearing in the record, we must assume that it was not made.

We reiterate that jurors accepted by the defendant all stated that they could give the defendant a fair and impartial trial and that defendant did not exhaust her peremptory challenges. Although a few of the jurors on the panel indicated that they had heard this case discussed prior to trial, of those, none had apparently heard the defendant's reputation discussed. Pretrial discussion of a case does not necessarily render a prospective juror impartial, especially where the discussion is limited to information appearing in noninflammatory newspaper articles. In Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 756 (1961), the United States Supreme Court said:

"It is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case."

In the absence of a request to have the jurors examined separately, we cannot hypothesize what the jurors heard concerning this case prior to trial. This Court finds itself in a position analogous to that presented when a trial judge sustains an *920 objection to a question and examining counsel fails to have recorded what the answer would have been.

The evidence in this case was overwhelming, and thus we cannot conceive of any prejudice resulting to this defendant. We conclude that the convincing quality of the State's evidence would have certainly produced the same result if the jury could have been chosen from Cherokee County, the most distant point from Johnston County. If error there be in either of these assignments, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

The attorney general's office in its brief calls to our attention the imposition of the death penalty. In Woodson v. North Carolina, ___ U.S. ___, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum.Supp.1975) under which defendant was sentenced. Ex mero motu and by authority of the provisions of 1973 Sess.Laws, c. 1201 § 7 (1974 Session), a sentence of life imprisonment is substituted for the death penalty in this case.

This case is remanded to the Superior Court of Johnston County with directions (1) that the presiding judge, without requiring the presence of the defendant, enter a judgment imposing life imprisonment for the murder of which defendant has been convicted; and (2) in accordance with this judgment, the Clerk of Superior Court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the clerk furnish to the defendant and her attorney a copy of the judgment and commitment as revised in accordance with this opinion.

Because of the serious nature of this case, we have searched the record for errors other than those assigned and have found none prejudicial to the defendant other than the failure of defense counsel to assign error under Woodson v. North Carolina, supra.

In the trial we find

NO ERROR.

Death sentence vacated and, in lieu thereof, life sentence imposed.

SHARP, Chief Justice (dissenting).

Despite defendant's inadequate and unscientific methods of garnering evidence in support of her motion for a change of venue, the record convinces me that the motion should have been allowed and that the court's failure to grant it entitles her to a new trial. When rumors have begun to circulate, so damaging to the defendant that her counsel dares not ask a prospective juror if he has heard them, it seems to me that neither counsel's failure to exhaust his peremptory challenges nor to request that prospective jurors be separately examined on voir dire can constitute a waiver of defendant's right to a change of venue. The separate examination of jurors, which the majority suggests as the solution in such a situation, could be a safeguard only if every juror examined and excused were held incommunicado until the trial jury had been impaneled and committed to the bailiff's custody. In a case like this such a procedure would seem to be obviously impractical.

Nor should we say that, because the evidence of defendant's guilt is so overwhelming that any jury anywhere would have returned a verdict of "guilty as charged," an error of law which otherwise would have been grounds for a new trial is harmless. Such an approach nullifies both the presumption of innocence and the requirements of due process, and it harbors the implication that the trial itself was unnecessary. I therefore respectfully dissent and vote for a new trial.

EXUM, J., joins in this dissent.