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Docketing Information on this case


45W (42+3)

State v. Perkins

No. 60A94

(Filed 10 February 1997)

1.    Jury §§ 223, 226 (NCI4th)-- capital trial -- jury selection -- death penalty views -- excusal for cause -- rehabilitation not allowed

    The trial court did not err in excusing a prospective juror for cause based on the juror's answers to the court's death-qualification questions where the juror told the court that he could follow the law as explained to him by the court with respect to the sentencing procedure, but he also stated that he did not know whether he "could vote on the death penalty" and that he was "unable to respond" to a question asking whether he would be able or unable to recommend a death sentence if the State proved its case beyond a reasonable doubt. Nor did the trial court err in refusing to allow defendant to attempt to rehabilitate this juror since the juror did not know his position on the issue, and it cannot be concluded that he would likely have answered the dispositive questions differently if the court had allowed defendant to ask him additional questions.

     Am Jur 2d, Jury § 279.

     Comment note on beliefs regarding capital punishment as disqualifying juror in capital case--post-Witherspoon cases. 39 ALR3d 550.

2.    Jury § 226 (NCI4th)-- capital trial -- jury selection -- death penalty views -- excusal for cause

    The trial court did not err in excusing for cause in a capital trial three prospective jurors who were unequivocal about their inability to vote for the death penalty without allowing defendant to attempt to rehabilitate the jurors since additional questioning by defendant would not likely have procured different responses.

     Am Jur 2d, Jury § 279.

     Comment note on beliefs regarding capital punishment as disqualifying juror in capital case--post-Witherspoon cases. 39 ALR3d 550.

3.    Jury § 232 (NCI4th)-- capital trial -- death penalty views -- excusal for cause -- larger percentage of blacks excluded -- no violation or equal protection or fair cross-section

    Defendant's rights to equal protection and to a jury selected from a fair cross-section of the community were not violated by the fact that only five percent of white veniremen were excused for their opposition to the death penalty while thirty-five percent of black veniremen were so excused where defendant did not prove that any prospective juror was excluded on the basis of his or her race. Merely showing a disproportionate impact on the racial composition of the jury is not sufficient to establish a violation of federal or state constitutional rights.

     Am Jur 2d, Criminal Law § 684; Jury § 244.

     Use of peremptory challenge to exclude from jury persons belonging to a class or race. 79 AL43d 14.

     Use of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury--post-Batson state cases. 20 ALR5th 398.

4.    Jury § 215 (NCI4th)-- capital trial -- jury selection -- juror "more than likely" to vote for death -- rehabilitation -- denial of challenge for cause

    The trial court did not err by failing to excuse for cause a prospective juror who asserted during individual voir dire about pretrial publicity that he would "more than likely" vote for death if defendant were convicted where, later in the voir dire after the jury's duties had been more fully explained, the juror stated that he would not automatically vote for the death penalty regardless of the evidence if defendant were convicted of first-degree murder, and the juror also told the court that he would follow the law of North Carolina as the court would explain it as to the sentence recommendation to be made by the jury.

     Am Jur 2d, Criminal Law § 685.

     Comment note on beliefs regarding capital punishment as disqualifying juror in capital case--post-Witherspoon cases. 39 ALR3d 550.

5.    Jury § 201 (NCI4th)-- jury selection -- all elements not proven -- hesitancy to return not guilty verdict -- ability to follow law -- denial of challenge for cause

    The trial court did not err by its denial of defendant's challenge for cause of a juror who stated that he might be hesitant about returning a verdict of not guilty if the State proved three of the four elements of a crime and the three heavily outweighed the one where, during the colloquy about finding defendant not guilty if all the elements of the crime were not proven, the juror stated unequivocally that he would follow the law as explained to him by the court, and the juror subsequently stated unequivocally that even if he thought defendant might be guilty but was not satisfied beyond a reasonable doubt, he would not hesitate to find defendant not guilty. The prospective juror's answers did not demonstrate that he would be unable to properly apply the law on the presumption of innocence or that he would not be a fair and impartial juror.

     Am Jur 2d, Jury §§ 226, 291.

6.    Jury § 203 (NCI4th)-- jury selection -- knowledge of another murdered girl -- strong feelings -- ability to be impartial -- denial of challenge for cause

    The trial court in a prosecution for the first-degree murder and rape of a seven-year-old girl did not err by the denial of defendant's challenge for cause of a prospective juror who stated during voir dire that he had known a young girl who was murdered and that he had strong feelings about it which he would likely take i nto the jury room where the juror thereafter told the court that his strong feelings would not prevent him from being a fair and impartial juror.

     Am Jur 2d, Jury §§ 226, 291.

     Fact that juror in criminal case, or juror's relative or friend, has previously been victim of criminal incident as ground of disqualification. 65 ALR4th 743.

7.    Criminal Law § 78 (NCI4th Rev.)-- pretrial publicity -- denial of venue change

    The trial court in a prosecution for the first-degree murder and rape of a seven-year-old girl did not err in denying defendant's motion for a change of venue on the ground of pretrial publicity where ten prospective jurors who indicated that they had formed an opinion based on pretrial publicity were excused; several of the jurors selected to serve had not heard of the case; and those jurors who had learned of the case through television, newspapers, or word of mouth stated that they had not formed an opinion about the case and that they could set aside any such information. N.C.G.S. § 15A-957.

     Am Jur 2d, Criminal Law §§ 389, 390, 688, 841; Homicide § 204; Venue § 59.

     Pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.

8.    Criminal Law § 532 (NCI4th Rev.)-- alleged juror misconduct -- conversation with baby-sitter -- mistrial denied

    The trial court in a first-degree murder case did not err by the denial of defendant's motion for a mistrial or, in the alternative, for the removal of a juror for misconduct when it was reported to the court during the trial that the juror had told her baby-sitter that the jury had decided that defendant was guilty and, except for one holdout, believed that defendant should be put to death where the court conducted a hearing out of the presence of the jury; the evidence was unclear regarding when the purported conversation took place and what, if anything, was said about the case; the juror testified that she had not been to the baby-sitter's home the day the conversation allegedly took place; upon extensive examination by the court, all jurors denied having formed or expressed any opinion as to defendant's guilt or the sentence to be imposed if he were found guilty; and the trial court found that it could not determine the content of the conversation between the juror and her baby-sitter, that all jurors denied having formed an opinion as to the guilt or innocence of defendant or the punishment to be imposed, and that no juror misconduct had occurred. Even if the incident happened as described by the baby-sitter, no outside influence was exerted on the jury.

     Am Jur 2d, Criminal Law § 914.

     Contacts between alternate and other jurors or outsiders as reversible error. 84 ALR2d 1288.

9.    Evidence and Witnesses § 3070 (NCI4th)-- videotaped interview -- admissibility for impeachment -- exclusion not prejudicial error

    Assuming that a child psychologist's videotaped interview of a seven-year-old murder and rape victim's brother, who was present in the room when his sister died, was properly authenticated and admissible to impeach a juvenile investigator's testimony that the brother had told her that defendant had bitten his finger, watched a "nasty" tape, and "made [the victim] dead," and that he mentioned a pillow, defendant was not prejudiced by the trial court's exclusion of the videotape where the videotape shows that, although the brother did have some difficulty expressing himself and answering questions, he did state that defendant put a "pillow on [the victim's] head" and "her died," which comments were consistent with the investigator's testimony; defendant admitted placing a pillow on the victim's face; the physical evidence suggested the victim had been smothered and raped; the victim's cousin testified that he saw defendant on top of the victim, that a pillow was on the victim's face, and that defendant was having sex with her; and no reasonable possibility exists that the result would have been different but for the trial court's failure to admit the videotape.

     Am Jur 2d, Appellate Review § 759; Constitutional Law § 848; Criminal Law § 196; Homicide § 560.