State v. Gilbert

267 S.E.2d 378 (1980)

47 N.C. App. 316

STATE of North Carolina v. Forney Bumgarner GILBERT.

No. 8025SC78.

Court of Appeals of North Carolina.

June 17, 1980.

*379 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Alan S. Hirsch, Raleigh, for the State.

Matthews & Vaught by Phillip R. Matthews and Curt J. Vaught, Hickory, for defendant-appellant.

HILL, Judge.

The defendant contends that the jury received evidence in violation of her constitutional right to confront all witnesses against her and to receive a trial before an impartial jury panel and that she was thereby entitled to a new trial. G.S. 15A-1240 permits impeachment of a verdict as follows:

(a) Upon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined. * * * * * * (c) After the jury has dispersed, the testimony of a juror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a) only when it concerns: (1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witness against him; * * * * * *

G.S. 15A-1240 allows the trial judge to admit testimony for the purpose of impeaching the verdict of a jury and nothing more. The judge still has the responsibility to consider all the evidence before him and to decide whether the defendant received a fair trial.

It appeared from testimony on voir dire that the juror who knew of the defendant had first voted for second degree murder, but later joined in the vote with other jurors to make unanimous a vote for voluntary manslaughter. The trial judge swore the accused juror, who testified that while he was being examined as a prospective juror he was asked if he had heard anything about the case or the parties that would prejudice the case or affect his ability to be fair. His answer was that it would not. He further stated that he had heard a little but denied he had stated that the defendant was not fit to walk the streets of Catawba County and that the defendant ought to receive the maximum sentence; that he based his verdict on what came from the witness stand and arguments of counsel and the law given by the court.

The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal. State v. Moye, 12 N.C.App. 178, 191, 182 S.E.2d 814 (1971), citing 5 Am.Jur.2d, Appeal and Error, § 889.

In passing on a similar question, Justice Denny in the case of State v. Hill, 225 N.C. 74, 77, 33 S.E.2d 470 (1945), stated:

*380 The competency of jurors is a question to be passed upon by the trial judge, and the ruling herein on the evidence and facts therefrom is not reviewable. . . State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523, and the cases there cited.

"In North Carolina, in instances where the contention was made by the defendant that the jury has been improperly influenced, it has been held that it must be shown that the jury was actually prejudiced against the defendant, to avail the defendant relief from the verdict, and the findings of the trial judge upon the evidence and facts are conclusive and not reviewable." (Citations omitted.) (Emphasis added.) State v. Hart, 226 N.C. 200, 203, 37 S.E.2d 487, 489 (1946).

In the instant case the trial judge examined the jurors who heard the statements causing concern as well as the juror charged with making the statement, and found as a fact that there was no evidence which came to the attention of the jurors that would violate the defendant's constitutional right to confront the witnesses against her. We agree that the findings are conclusive and not reviewable in this case. Furthermore, we find that defendant suffered no prejudice. The juror who purportedly knew of the defendant was the only juror who voted for a sentence harsher than voluntary manslaughter. He was eventually swayed to the position of the other jurors. One of the jurors stated on voir dire that she and another juror who testified on voir dire ". . . were satisfied with the end result and didn't want to change [their] verdict from voluntary manslaughter."

The defendant contends that the trial court erred in its instruction to the jury concerning the defendant's claim of self-defense. The disputed portion of the charge is as follows:

In making that determination [the reasonableness of the defendant's belief that she was in danger of great bodily harm], you should consider the circumstances as you find them to [have] existed from the evidence, including the size and the age and the strength of the defendant as compared to Joan Seitz; the fierceness of the assault, if any, upon the defendant; whether or not Joan Seitz had a weapon in her possession; and the reputation of Joan Seitz, if any, for danger and violence.

The defendant's requested charge, which is quite similar to the court's actual charge, is set out as follows:

In making this determination, you should consider the circumstances as you find them to have existed from the evidence including the size, age, and strength of the defendant as compared to Joan Seitz and Roy Seitz, the fierceness of the assaults, if any, upon the defendant, whether or not Joan Seitz had a weapon or rock in her possession, the reputation, if any, of Joan Seitz for danger and violence and the previous acts of violence, if any, of Joan Seitz of which the defendant had knowledge . . . .

None of the witnesses other than the defendant testified that Roy Seitz seized the defendant by her hair prior to the shot. Nevertheless, the defendant's testimony must be included in the judge's charge for consideration by the jury.

The difference between the two charges is simple. The defendant believes that because her testimony indicated that Roy Seitz was holding her by the hair while the decedent, Joan Seitz, was bringing a rock down upon her head, that the jury should have been charged that the reasonableness of her apprehension should be based on the size, age, and strength of both Joan and Roy Seitz and upon the fierceness of both of their assaults.

The instruction given by the trial judge fully communicated the essence of the law of self-defense. The judge instructed the jury that it should consider ". . . the fierceness of the assault, if any, upon the defendant . . ." The judge also instructed the jury that the killing would be entirely excused on the grounds of self-defense if the ". . . circumstances as they appeared to the defendant at the time *381 were sufficient to create . . ." a belief that defendant had to shoot Joan Seitz in order to save herself. In making that determination, the jury was instructed to consider the circumstances as it found them to have existed from the evidence.

Defendant had testified that Roy Seitz was holding her head against her car window in such a way as to place her in danger of being hit in the head by a rock being wielded by Joan Seitz. The trial judge reminded the jury of this testimony in his summary of the evidence. The jury, if it had chosen to believe defendant's evidence, could have found from the circumstances as they were shown by the evidence to have existed, that both Roy and Joan Seitz's independent assaults operated to justify defendant's belief that she had to kill Joan in order to save herself. The instruction was proper.

The defendant contends the trial judge erred by allowing evidence of the deceased's propensity and reputation for peace and quiet. We do not agree. The defendant had testified that Roy Seitz had told her of several threats his wife had made to him and that she was afraid of Joan. In rebuttal, the State called witnesses as to the character and reputation of the deceased. The defendant objected, contending that such rebuttal evidence must be limited to the general reputation of the deceased for peace and quiet and that the rebuttal witnesses only knew deceased "on the job."

It not having been established that the witness had ever observed the deceased except while on the job, it seems obvious that the witness was not qualified to answer the questions, had they otherwise been proper inquiries. It would seem manifest that even a vicious and violent man would not likely display such propensities to or in the presence of his employer.

State v. Thomas, 5 N.C.App. 448, 451, 168 S.E.2d 459, 462 (1969).

It is settled that where there is evidence of self-defense the State may rebut the defendant's evidence of the deceased's character for violence by evidence of deceased's good character for peace and quiet. State v. Champion, 222 N.C. 160, 22 S.E.2d 232 (1942); State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967). Ordinarily, the objection of the defendant to the evidence offered would have been well taken. However, the defendant did not pursue her objections and move to strike the answers. Her objections were thus abandoned. Hudson v. Hudson, 21 N.C.App. 412, 414, 204 S.E.2d 697 (1974). Defendant further objects to portions of the charge made by the trial judge. We have examined the charge in these respects and find the objections to be without merit.

In the trial of the case we find

No Error.

ROBERT M. MARTIN and ARNOLD, JJ., concur.