{ "id": 8527972, "name": "STATE OF NORTH CAROLINA v. TERRY LEE SCALES", "name_abbreviation": "State v. Scales", "decision_date": "1994-05-17", "docket_number": "No. 9118SC412", "first_page": "735", "last_page": "742", "citations": [ { "type": "official", "cite": "114 N.C. App. 735" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "333 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545924, 2545002, 2547716, 2545701 ], "year": 1993, "opinion_index": -1, "case_paths": [ "/nc/333/0348-02", "/nc/333/0348-01", "/nc/333/0348-04", "/nc/333/0348-03" ] }, { "cite": "331 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496946 ], "year": 1992, "opinion_index": -1, "case_paths": [ "/nc/331/0636-01" ] }, { "cite": "418 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": -1 }, { "cite": "106 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "year": 1992, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "426 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": -1 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "opinion_index": -1, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "34 L. Ed. 2d 493", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "409 U.S. 1043", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6465475, 6464804, 6464645, 6465064, 6465259, 6464717, 6464877, 6464975, 6465584, 6465361, 6465138, 6464474, 6464543 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/1043-12", "/us/409/1043-05", "/us/409/1043-03", "/us/409/1043-08", "/us/409/1043-10", "/us/409/1043-04", "/us/409/1043-06", "/us/409/1043-07", "/us/409/1043-13", "/us/409/1043-11", "/us/409/1043-09", "/us/409/1043-01", "/us/409/1043-02" ] }, { "cite": "188 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "281 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574647 ], "year": 1972, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0221-01" ] }, { "cite": "405 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "329 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553398 ], "year": 1991, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0001-01" ] }, { "cite": "417 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 14, "year": 1992, "pin_cites": [ { "page": "238" }, { "page": "238" }, { "page": "239" }, { "page": "239" }, { "page": "240" }, { "page": "240" }, { "page": "240" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772623 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0602-01" ] }, { "cite": "331 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496946 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0636-01" ] }, { "cite": "418 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "year": 1992, "opinion_index": 0 } ], "analysis": { "cardinality": 629, "char_count": 13955, "ocr_confidence": 0.755, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20559982454575537 }, "sha256": "174e71a94164bd552d7309c9057a951650d68365c814cd74e85c157df23e8d8a", "simhash": "1:1773f264560e8465", "word_count": 2424 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY LEE SCALES" ], "opinions": [ { "text": "ORR, Judge.\nIn his first assignment of error, defendant contends that the trial court erred in denying his challenge for cause to three jurors. In this Court\u2019s original opinion in this action, we found that defendant had preserved his right to bring forward this assignment of error by following the procedures of N.C. Gen. Stat. \u00a7 15A-1214(h) and (i) which states:\n(h) In order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:\n(1) Exhausted the peremptory challenges available to him;\n(2) Renewed his challenge as provided in subsection (i) of this section; and\n(3) Had his renewal motion denied as to the juror in question.\n(i) A party who has exhausted his peremptory challenges may move orally or in writing to renew a challenge for cause previously denied if the party either:\n(1) Had peremptorily challenged the juror; or\n(2) States in the motion that he would have challenged that juror peremptorily had his challenges not been exhausted.\nThe judge may reconsider his denial of the challenge for cause, reconsidering facts and arguments previously adduced or taking cognizance of additional facts and arguments presented. If upon reconsideration the judge determines that the juror should have been excused for cause, he must allow the party an additional peremptory challenge.\nWe also found, however, that defendant had failed to show why these jurors were unable to be fair and impartial. Thus, based on State v. Sanders, 317 N.C. 602, 346 S.E.2d 451 (1986), we overruled defendant\u2019s assignment of error and found no error with the judgment of the trial court.\nWe now reconsider our decision in light of State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992). The facts in Hightower show that defendant assigned as error the denial of his challenge for cause as to one juror, Juror Browning. During the selection of the jury, counsel for defendant informed Juror Browning that the defendant might not present any evidence. Then counsel for defendant stated: \u201cNow, do you feel like if [defendant] didn\u2019t take the witness stand, do you feel like that might affect your ability to give him a completely fair and impartial trial . . . ?\u201d Id. at 637, 417 S.E.2d at 238. Juror Browning answered, \u201cYes[.]\u201d Id. After the trial court explained to Juror Browning that \u201cour law and the Constitution gives [defendant] the right not to testify if he so elects, and [that] the law also says that that decision . . . not to testify, is not to be held against him, and that [he], as a juror, [was] not to consider [defendant\u2019s] silence in anyway [sic] in [his] deliberations,\u201d the trial court asked Juror Browning whether he could follow that law. Id. at 638, 417 S.E.2d at 238. Juror Browning stated, \u201cI\u2019m just trying to think and give you a fair answer.\u201d Id.\nSubsequently, the trial .court again asked Juror Browning whether he could follow the law, and Juror Browning stated, \u201cYeah, I could follow it, if it\u2019s the law.\u201d Id. at 638, 417 S.E.2d at 239. The trial court then asked Juror Browning if the \u201claw says that you\u2019re not to use, or consider in anyway, the defendant\u2019s silence against him in your deliberations, you could do that, is that what you\u2019re saying?\u201d Id. Juror Browning responded, \u201cI still feel like it might stick in the back of my mind, even though I \u2014 you know, I\u2019ll try to discount it, but I \u2014.\u201d Id. Thereafter, the trial court asked Juror Browning if he would make every effort to follow the law, and he stated that he would but indicated again that the fact that defendant did not take the stand would stick in the back of his mind. The trial court asked Juror Browning, \u201cIf you know something, you can\u2019t erace [sic] it completely, but could you \u2014 even being aware of that, could you just not let it affect your decision in anyway [sic]?\u201d Id. at 639, 417 S.E.2d at 239. Juror Browning answered:\nI can\u2019t tell you for sure, because if the, you know, first degree murder charge is pretty serious, and I don\u2019t want \u2014 I want to give an impartial decision, and I don\u2019t want anything to hinder it, and I\u2019m afraid that might hinder it.\nId.\nAt the outset, our Supreme Court set out the applicable provisions of N.C. Gen. Stat. \u00a7 15A-1212 that:\nA challenge for cause to an individual juror may be made by any party on the ground that the juror:\n(8) As a matter of conscience, regardless of the facts and circumstances, would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.\n(9) For any other cause is unable to render a fair and impartial verdict.\nId. at 640, 417 S.E.2d at 240.\nThereafter, our Supreme Court concluded that \u201cdefendant\u2019s challenge for cause should have been allowed under both section (8) and (9) of N.C.G.S. \u00a7 15A-212 [sic].\u201d Id. at 641, 417 S.E.2d at 240. In reaching this conclusion, our Supreme Court stated:\n[w]hen the defendant\u2019s attorney first asked if the defendant\u2019s failure to testify would affect the juror\u2019s ability to give him a fair and impartial trial, the juror said \u201c[y]es.\u201d When the court questioned the juror, he said on one occasion that he could follow the law as given to him by the court but he repeatedly said the defendant\u2019s failure to testify would \u201cstick in the back of my mind\u201d while he was deliberating. On one occasion he told the court, \u201cI want to give an impartial decision, and I don\u2019t want anything to hinder it, and I\u2019m afraid that might hinder it.\u201d In [counsel for defendant\u2019s] last question to the juror, he asked if the juror had serious concerns that the defendant\u2019s failure to testify \u201cmight affect your ability to give him a fair trial[.]\u201d The juror said \u201c[r]ight.\u201d We can only conclude from the questioning of this juror that he would try to be fair to the defendant but might have trouble doing so if the defendant did not testify. In this case the defendant did not testify.\nWe have said that the granting of a challenge for cause of a juror is within the discretion of the judge. State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991); State v. Watson, 281 N.C. 221, 227, 188 S.E.2d 289, 293, cert. denied, 409 U.S. 1043, 34 L. Ed. 2d 493 (1972). Nevertheless, in a case such as this one, in which a juror\u2019s answers show that he could not follow the law as given to him by the judge in his instructions to the jury, it is error not to excuse such a juror. It was error for the court not to allow the challenge for cause to Juror Browning in this case.\nId. at 641, 417 S.E.2d at 240.\nAfter concluding that the denial of the challenge for cause to Juror Browning constituted error, the trial court addressed the question of whether this error was prejudicial error. The Court stated:\nThe question we next face is whether the failure to allow this challenge for cause was prejudicial error. After the challenged juror was excused and the defendant had exhausted his peremptory challenges, he renewed his challenge for cause to Juror Browning and told the court he would peremptorily challenge the juror then being questioned if he had not exhausted his peremptory challenges. Although this juror might not have been subject to a challenge for cause, it was the prerogative of the defendant as to whether to exercise a peremptory challenge. He was deprived of this right and for this reason there must be a new trial.\nId.\nIn the present case, defendant contends in part that the trial court erred in denying his challenge for cause as to juror number 10, a member of the district attorney\u2019s staff for Guilford County. The following dialogue is reflected in the transcript of the voir dire:\nMr. Lind: [Juror number 10], do you feel because of your position, it might be difficult for you to give [defendant] a completely fair and impartial trial?\nJUROR NO. 10: I think it might be difficult, but I think I can follow the law.\nMr. LIND: Well, wouldn\u2019t you tend to \u2014 wouldn\u2019t you say you\u2019re prosecution oriented?\nJUROR No. 10: I\u2019m a prosecutor by profession.\nMr. LIND: Right, and you\u2019ve been doing it how many years now?\nJUROR No. 10: I\u2019ve been in this office for about six years.\nMR. LlND: And wouldn\u2019t you agree that it would- be difficult for you to really be totally fair and impartial and give [defendant] a fair trial?\nJUROR No. 10:1 think I indicated . . . that there\u2019s a certain amount of difficulty, but I think I could follow the law.\nMr. LlND: Well, you\u2019d attempt to follow the law, but it would be a rather difficult and awkward position for you?\n[STATE:] We Object. Now he\u2019s arguing with the juror.\nThe Court: Objection is Sustained. Mr. Lind, he\u2019s told you that it would be difficult, but that he could do \u2014 he could perform the duties of a juror. That\u2019s not a ground for challenge.\nOur review of the answers given by Juror Browning in Hightower shows that these answers are distinguishable from the answers given by juror number 10 in the case sub judice. Unlike Juror Browning, juror number 10 never stated that he would be unable to give defendant a fair and impartial trial or that he was afraid that he would hinder defendant from receiving a fair and impartial trial. Instead, juror number 10 stated that although it might be difficult, he thought he could follow the law. Also unlike Juror Browning, juror number 10 gave no indication that he would have any thoughts \u201csticking in the back of his mind\u201d that would prevent him from'giving defendant a fair and impartial trial. Accordingly, we conclude that as a matter of law, the answers given by juror number 10 did not fall within the rule set out in Hightower and that the trial court did not abuse its discretion in denying defendant\u2019s challenge to juror number 10 for cause.\nAdditionally, we find that the holding in Hightower is not controlling as to defendant\u2019s challenges to juror number 6 and juror number 12 for cause and again find that the trial court did not abuse its discretion in denying defendant\u2019s challenge for cause as to these jurors.\nAs to defendant\u2019s other assignments of error, the Supreme Court has not required us to reconsider these assignments of error, as Hightower does not address the issues involved. Accordingly, for the reasons stated in our original opinion, we find no error as to the remaining assignments of error. See State v. Scales, (No. 9118SC412, filed 7 July 1992), 106 N.C. App. 707, 418 S.E.2d 716.\nNo error.\nJudges EAGLES and COZORT concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Donald W. Lat\u00f3n, for the State.", "Assistant Public Defender Frederick G. Lind for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY LEE SCALES\nNo. 9118SC412\n(Filed 17 May 1994)\nJury \u00a7 203 (NCI4th) \u2014 prospective juror \u2014 member of district attorney\u2019s staff \u2014 challenge for cause denied\nThe trial court in a burglary prosecution did not err by denying defendant\u2019s challenge for cause of a prospective juror who was a member of the district attorney\u2019s staff and who stated that it might be difficult for him to give defendant a fair and impartial trial because of his position but that he thought he could follow the law. Unlike the juror in State v. Hightower, 331 N.C. 348, 426 S.E.2d 712, the juror in this case never stated that he would be unable to give defendant a fair and impartial trial, that he was afraid that he would hinder defendant from receiving a fair and impartial trial, or that he would have any thoughts \u201csticking in the back of his mind\u201d that would prevent him from giving defendant a fair and impartial trial.\nAm Jur 2d, Jury \u00a7\u00a7 279 et seq., 294 et seq.\nAppeal by defendant from judgment entered 12 December 1990 by Judge Marvin K. Gray in Guilford County Superior Court. Heard in the Court of Appeals 16 January 1992 and upon reconsideration pursuant to an order from the Supreme Court issued 11 February 1993 and transmitted to this panel on 12 April 1994.\nDefendant was charged with second degree burglary in violation of N.C. Gen. Stat. \u00a7 14-51. The State\u2019s evidence tended to show the following: Michelle Marie Daniels and Jennifer Alver King shared an apartment at 4812 Brompton Drive in Greensboro. Both Daniels and King testified that on 8 June 1990 they left their apartment around 3:00 a.m. with two acquaintances. When they left the apartment the front and back doors were locked. When the women returned approximately an hour to an hour and a half later, Daniels noticed that her VCR was gone. Daniels called the police, and a detective came to investigate. He discovered that the lock on the back door was loose and broken. After the detective left, the women discovered other items were missing from the apartment. These items included $45.00 in cash, three rings, a camera and a watch.\nDale Maynard, president of Kernersville Pawnbrokers, testified that the three rings were brought to his shop on 11 June 1990 as collateral for a loan. Maynard asked for personal identification and was shown a North Carolina driver\u2019s license bearing defendant\u2019s name. Maynard also testified that he had an independent recollection of defendant as the person who brought the rings to his shop.\nThe State also introduced into evidence defendant\u2019s written confession in which he admitted breaking into the apartment and taking a VCR, a camera and jewelry. In the statement, defendant admitted pawning the jewelry and selling the VCR to a third party. The statement also reflected defendant\u2019s recollection that he saw people leave the apartment between 8:00 and 9:00 p.m.\nThe defendant presented no evidence. Defendant was convicted and sentenced to 16 years in prison. From this judgment, defendant appealed, and in an unpublished opinion, this Court found no error. State v. Scales, 106 N.C. App. 707, 418 S.E.2d 716 (1992) (unpublished). However, our Supreme Court remanded the case with the following specific instruction: \u201cthe case is remanded to the Court of Appeals for reconsideration in light of State v. Hightower, 331 N.C. 636 (1992).\u201d State v. Scales, 333 N.C. 348, 426 S.E.2d 712 (1993).\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Donald W. Lat\u00f3n, for the State.\nAssistant Public Defender Frederick G. Lind for defendant-appellant." }, "file_name": "0735-01", "first_page_order": 763, "last_page_order": 770 }