Appeal by defendant from judgment dated 23 May 2001 by Judge
Jerry Cash Martin in Robeson County Superior Court. Heard in the
Court of Appeals 21 January 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ellen B. Scouten, for the State.
Eddie Hatcher defendant appellant pro se.
BRYANT, Judge.
Eddie Hatcher (defendant) appeals a judgment dated 23 May 2001
entered consistent with a jury verdict finding him guilty of first-
degree murder for a drive-by shooting into an occupied residence
that killed one person and injured another. Although defendant's
brief to this Court includes several appellate rule violations, we
invoke Rule 2 of the North Carolina Appellate Rules to reach the
merits of defendant's appeal. See N.C.R. App. P. 2 (allowing for
suspension of rules). The facts pertinent to our analysis are set
out below.
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The issues we address in this appeal are whether: (I) the
trial court abused its discretion by not making further inquiry
into a juror's past dealings with the district attorney and whetherthat juror failed to honestly answer a material question on voir
dire; (II) the trial court erred in allowing a witness for the
State to plead the Fifth Amendment during cross-examination; and
(III) the State improperly withheld exculpatory evidence.
I
Defendant takes issue with juror Yolanda Barnwell's (Barnwell)
voir dire testimony. During voir dire, the trial court asked
Barnwell if she knew or had any previous contact with the district
attorney in this case or any member of his staff. Barnwell
answered “I know him” and explained it was “[f]rom a while ago
[when she] had to testify [i]n a murder case of [her] best friend”
approximately a year before defendant's trial. When the trial
court inquired whether anything about that case would keep her from
being a fair and impartial juror, Barnwell said “no.” During the
State's voir dire of Barnwell, the following exchange took place:
THE STATE: You and I are acquainted
because you testified as a witness in a murder
trial about a year ago.
BARNWELL: Uh-huh.
. . . .
THE STATE: Is there anything about that
experience that you believe would prevent you
from being fair in this case?
BARNWELL: No, sir.
. . . .
THE STATE: Other than when you testified
in that other case, have you ever had to come
to court about anything else?
BARNWELL: No.
The record in this case includes a criminal record check on
Barnwell. That document indicates Barnwell pled guilty to several
traffic misdemeanors and infractions. It also shows she had been
charged with possession with intent to sell and deliver cocaine, a
felony, on 7 July 1999, but the charge had been dismissed by the
State on 19 August 1999.
Defendant argues in his brief to this Court that:
when the trial judge was made aware by Juror
Barnwell that she had served as a State's
witness[,] his experience would surely [have
told] him that it is customary practice for
district attorney[s] to grant favors and deals
to persons testifying on behalf of the State
and his experience should have led him to make
further inquiry in that area.
We disagree.
“Due process requires that a defendant have 'a panel of
impartial, indifferent jurors.'” State v. Williams, 330 N.C. 579,
583, 411 S.E.2d 814, 817 (1992) (citation omitted). “The nature
and extent of the inquiry made of prospective jurors on voir dire
ordinarily rests within the sound discretion of the trial court.”
State v. Hill, 331 N.C. 387, 404, 417 S.E.2d 765, 772 (1992).
Thus, “'in order to establish reversible error, a defendant must
show prejudice in addition to a clear abuse of discretion on the
part of the trial court.'” State v. Meyer, 353 N.C. 92, 109, 540
S.E.2d 1, 11 (2000) (citation omitted).
In this case, Barnwell admitted to knowing the district
attorney from a prior murder trial in which she testified.
Barnwell also stated there was nothing about that case that wouldkeep her from being a fair and impartial juror in the present
proceeding. As such, this testimony raised absolutely no red flags
the trial court should have acted upon. Moreover, defendant's
assertion that there may have been a deal between Barnwell and the
State to induce her to testify in the previous murder trial, which
could have led to favoritism for the State in this case, was never
explored by defendant during voir dire. Thus, based on the
exchange above, we conclude the trial court did not abuse its
discretion in failing to make further inquiry into Barnwell's
contact with the district attorney.
Defendant also contends Barnwell failed to honestly answer a
material question, thereby concealing her criminal record and
raising issues of her possible bias in favor of the State. The
statement on which defendant bases his argument is Barnwell's
denial of ever having had to “come to court about anything else.”
Defendant claims this statement must be false because Barnwell had
pled guilty to several traffic misdemeanors and infractions and had
been charged with possession with intent to sell and deliver
cocaine. Defendant further argues that because the State dismissed
the 1999 felony charge against Barnwell, “there was surely a sense
of allegiance and debt felt by [Barnwell] for the district
attorney.”
A new trial based upon a misrepresentation by a juror during
voir dire will not be granted unless the defendant shows the
following:
“(1) the juror concealed material informationduring voir dire; (2) the moving party
exercised due diligence during voir dire to
uncover the information; and (3) the juror
demonstrated actual bias or bias implied as a
matter of law
(See footnote 1)
that prejudiced the moving
party.”
State v. Chavis, 134 N.C. App. 546, 552, 518 S.E.2d 241, 246 (1999)
(quoting Buckom, 126 N.C. App. at 380-81, 485 S.E.2d at 327).
In this case, defendant has not demonstrated any of these
three factors. Because Barnwell's infractions and traffic
misdemeanors could have been settled by an attorney or by payment
of a fine, they did not necessarily require her physical presence
in court. In addition, the cocaine charge was dismissed a month
after Barnwell had been charged, and there is no indication from
the record on appeal that she was arrested or had to appear in
court at any time on that charge. Thus, it has not been shown that
Barnwell's answer was not truthful. Moreover, defendant did not
question Barnwell about her record or dealings with the State. Theonly questions posed by defendant to Barnwell related to her
knowledge of someone acquainted with the defense attorneys. As
such, defendant did not exercise due diligence to uncover the
information he now presents to this Court. See id. Finally,
defendant's allegations of Barnwell's bias based on her record and
alleged dealings with the district attorney are completely
hypothetical. Because defendant has failed to present a sufficient
showing of juror bias, this assignment of error is overruled.
II
Defendant next argues the trial court denied him the right of
confrontation by allowing a witness for the State to plead the
Fifth Amendment during cross-examination.
At trial, the State called Phillip Quinn Smith (Smith) to
testify about his contact with defendant on the day of the
shooting. On cross-examination, Smith testified he had been
charged but not yet tried in unrelated and separate matters for the
first-degree murder of a Kenneth Bell and for firing into occupied
property. The murder indictment stated Smith had “unlawfully,
willfully, and feloniously . . . , with malice [a]forethought,
kill[ed] and murder[ed] Kenneth [] Bell.” When questioned by
defendant, “And it[ is] true, is it not, that you were charged with
killing Mr. Bell, shooting him to death, a single gunshot wound to
his head with a high-caliber weapon,” Smith invoked his Fifth
Amendment right to silence. Defendant objected and moved for a
mistrial. The trial court denied the motion and granted Smith's
request to invoke his Fifth Amendment right. Defendant then askedSmith if he had reached any agreement with the State with respect
to the charges pending against him. Smith replied the State had
agreed not to try him capitally and to stipulate to a statutory
mitigating factor in the event he was convicted of any offense
other than first-degree murder.
The privilege against self-incrimination guaranteed by the
Fifth and Fourteenth Amendments “applies to both civil and criminal
proceedings 'wherever the answer might tend to subject to criminal
responsibility him who gives it,' and 'should be liberally
construed.'”
In re Jones, 116 N.C. App. 695, 698-99, 449 S.E.2d
221, 223 (1994) (quoting
McCarthy v. Arndstein, 266 U.S. 34, 40, 69
L. Ed. 158, 161 (1924) and
Allred v. Graves, 261 N.C. 31, 35, 134
S.E.2d 186, 189 (1964)). “The privilege against self-incrimination
extends 'not only to answers that would in themselves support' a
criminal conviction, but also 'embraces those which would furnish
a link in the chain of evidence needed to prosecute the claimant'
for a crime.”
Id. at 699, 449 S.E.2d at 223 (quoting
Hoffman v.
United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 1124 (1951)).
This protection further covers “evidence which an individual
reasonably believes could be used against him in a criminal
prosecution.”
Trust Co. v. Grainger, 42 N.C. App. 337, 339, 256
S.E.2d 500, 502 (1979). The privilege is available to everyone,
defendants and witnesses alike.
See Jones, 116 N.C. App. at 699,
449 S.E.2d at 223.
In this case, Smith refused to answer defendant's question
whether he had been “charged with killing Mr. Bell, shooting him todeath, a single gunshot wound to his head with a high-caliber
weapon.” As posed, this question does not ask about the
charge
against Smith, a question Smith would have been required to and did
in fact answer earlier, but seeks to elicit specific and possibly
incriminating facts about a murder for which Smith was yet to be
tried and which was completely unrelated to this case. As such,
Smith was entitled to invoke his Fifth Amendment privilege.
See
id.;
State v. Eason, 328 N.C. 409, 419, 402 S.E.2d 809, 813 (1991)
(witness had a valid claim of privilege and the trial court did not
err in denying the defendant's motion to compel her to testify
where the witness was being asked to testify about the very
incident which led to her conviction and for which she still faced
trial de novo).
Defendant nevertheless contends he was prejudiced
because the invocation of the privilege prevented him from
exploring the issue of bias and motive to fabricate based on
Smith's agreement with the State. This argument is without merit
as the trial transcript clearly indicates that defendant
cross-examined and Smith testified extensively regarding the
agreement he had reached with the State. Accordingly, this
assignment of error is overruled.
III
Defendant also contends the State improperly withheld
exculpatory evidence. Defendant refers to certain handwritten
notes in the record he contends Detective Donald Britt made
following an interview with the girlfriend of the deceased, which
indicate the deceased had been threatened by two other individualsshortly before his death and which defendant claims he never
received before or during the trial. Having reviewed the notes at
issue, we observe that they do not indicate who wrote them and when
or even which particular witness made the statement regarding the
threats. Furthermore, there is nothing in the record that would
show at which time (before, during, or after trial) the notes were
turned over to defendant. Without such information, we have no
basis to review this assignment of error. Accordingly, it is also
overruled.
We have thoroughly reviewed defendant's remaining contentions
in his brief to this Court and find them to be without merit.
No error.
Judges WYNN and STEELMAN concur.
Footnote: 1