State v. HoneycuttAnnotate this Case
203 S.E.2d 844 (1974)
285 N.C. 174
STATE of North Carolina v. Billy HONEYCUTT.
Supreme Court of North Carolina.
April 10, 1974.
*846 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood and Associate Atty. Archie W. Anders, Raleigh, for the State.
Russell J. Lanier, Jr., Kenansville, for defendant appellant.
Defendant by his first assignment of error contends that the jury selection process in this case deprived him of a truly representative and impartial jury as guaranteed by the Sixth Amendment to the United States Constitution.
*847 Defendant seeks to support this assignment of error with several separate arguments.
The record contains only the following statement concerning jury selection:"JURY SELECTION It is stipulated and agreed by counsel for the defendant and the solicitor for the State, that the following questions are true and accurate questions asked by the State in the selection of the jury that tried Billy Honeycutt. 1. Do you have any moral or religious scruples about capital punishment? 2. On account of these moral or religious scruples, would it be impossible, under any circumstances, and in any event, for you to return a verdict of guilty as charged even though the State proves the defendant guilty beyond a reasonable doubt? 3. Would you automatically vote against the imposition of capital punishment without regard to any evidence that might develop at the trial? 4. You would not vote in favor of the death penalty under any circumstances, no matter how aggravated the case was and no matter what the facts were? It is further stipulated and agreed that no objections were interposed at the time the above questions were asked the jury during the jury selection of this case. It is further stipulated and agreed that the defendant did not exhaust his peremptory challenges to the jury in the jury selection in this case. EXCEPTION NO. 1 That the court erred in allowing the State's challenge for cause of jurors who had conscientious objections to capital punishment and who stated that their objection to capital punishment would not allow them to return a guilty verdict in this case."
This record does not disclose the answers given by any juror. Neither does it reveal that any juror was excused for cause because of his opposition to capital punishment. An appellate court is bound by the record as certified and ordinarily can judicially know only what appears of record. 1 N.C.Index 2d, Appeal and Error § 42.
Our consideration of this assignment of error must therefore be limited to the effect of the inquiries to prospective jurors concerning their views on capital punishment.
We find no merit in defendant's contention that a juror cannot be excused under any circumstances because of his convictions concerning capital punishment. It is now well established that in a capital case a juror may be properly challenged for cause if he indicates he could not return a verdict of guilty knowing the penalty would be death, even though the State proved to him by the evidence and beyond a reasonable doubt that the accused was guilty of the capital crime charged. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, reh. den. 393 U.S. 898, 89 S. Ct. 67, 21 L. Ed. 2d 186; State v. Washington, 283 N.C. 175, 195 S.E.2d 534; State v. Cook, 280 N.C. 642, 187 S.E.2d 104; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Doss, 279 N.C. 413, 183 S.E.2d 671; State v. Sanders, 276 N.C. 598, 174 S.E.2d 487.
Defendant further contends that excluding veniremen opposed to capital punishment denied him an impartial and representative jury. He argues that polls and studies establish that a large part of contemporary society has some scruples about capital punishment and that employing a jury selection process which excludes such persons does not reflect a "cross section of the community" and is impermissible. He specifically contends that a jury without scrupled jurors is unbalanced or weighted toward conviction.
The United States Supreme Court addressed this same question in Witherspoon *848 v. Illinois, supra. There the defendant contended that such a jury, unlike one chosen at random from a cross section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the State's version of the facts and return a verdict of guilty.
After considering surveys cited by defendant in his brief, the Court in Witherspoon said:". . . We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was."
In instant case petitioner presents the same argument without additional evidence or authority. Logic and the weight of authority require that we reject this argument.
Defendant argues that in capital cases there should be no voir dire examination of prospective jurors.
The purpose of the voir dire examination and the exercise of challenges, either peremptory or for cause, is to eliminate extremes of partiality and to assure both the defendant and the State that the persons chosen to decide the guilt or innocence of the accused will reach that decision solely upon the evidence produced at trial. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759; Logan v. United States, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429; State v. Spence, 274 N.C. 536, 164 S.E.2d 593.
Defendant's arguments in support of this assignment of error run counter to the well-recognized principle that both the State and the defendant are entitled to a trial by an impartial jury. Tuberville v. United States, 112 U.S.App.D.C. 400, 303 F.2d 411, cert. den. 370 U.S. 946, 82 S. Ct. 1607, 8 L. Ed. 2d 813; State v. Childs, 269 N.C. 307, 152 S.E.2d 453.
In the recent case of State v. Crowder, N.C., 203 S.E.2d 38, we find the following pertinent statement:"In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment."
Here, the questions asked the prospective jurors by the Solicitor were permissible under both Federal and State decisions, and were necessary to insure trial by an impartial and representative jury.
This assignment of error is overruled.
Although assigned as error, defendant does not argue in his brief that the Court erred in denying his motion for a directed verdict of not guilty. We think it sufficient to state that the trial judge properly denied defendant's motion since there was ample, substantial evidence of every essential element of the crime of murder in the first degree to carry the case to the jury.
Finally, defendant contends that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
This Court has declared that upon conviction any person who commits the crime of burglary in the first degree, first degree murder, arson or rape after 18 January 1973 shall suffer the penalty of death. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19. We fully considered the constitutionality *849 of the death sentence in light of the Eighth and Fourteenth Amendments to the United States Constitution in the case of State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721, and there reaffirmed the holding of Waddell. See also State v. Noell, 284 N.C. 670, 202 S.E.2d 750; State v. Dillard, N.C., 203 S.E.2d 6; State v. Henderson, N.C., 203 S.E.2d 10; State v. Crowder, supra. The holdings in Waddell, Jarrette, Noell, Dillard, Henderson and Crowder control this assignment of error.
This assignment of error is overruled.
Examination of each assignment of error, every argument offered by counsel for defendant and a careful review of the entire record discloses that defendant has received a fair trial, free from prejudicial error.
BOBBITT, C. J., and HIGGINS and SHARP, JJ., dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974).