{
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  "name": "STATE OF NORTH CAROLINA v. RANDY MILLER DAVIS",
  "name_abbreviation": "State v. Davis",
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    "judges": [
      "Chief Judge HEDRICK and Judge WEBB concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RANDY MILLER DAVIS"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant brings forth two assignments of error. One challenges the jury selection process. Defendant\u2019s case was tried as a capital case, and during jury voir dire the prosecutor was allowed to challenge for cause those jury venirepersons who voiced opposition to the death penalty. Defendant argues that this procedure violated his right, guaranteed by both the federal and state constitutions, to a fair and impartial jury made up of a cross section of the community. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968). Empirical studies have been conducted which have shown that so-called \u201cdeath-qualified\u201d juries are more likely to convict a defendant than those not culled of people opposing the death penalty, and at least one of the United States Courts of Appeals has determined that this evidence was enough to show a violation of defendant\u2019s right to a fair trial. See Grigsby v. Mabry, 758 F. 2d 226 (8th Cir. 1985), cert. granted sub nom., Lockhart v. McCree, --- U.S. ---, 106 S.Ct. 59, 88 L.Ed. 2d 48 (1985). However, the Court of Appeals for this circuit and our own Supreme Court have consistently rejected this argument. E.g., Keeten v. Garrison, 742 F. 2d 129 (4th Cir. 1984); State v. Payne, 312 N.C. 647, 325 S.E. 2d 205 (1985). Moreover, our Supreme Court has recently refused to reconsider its holdings on this issue in light of Grigsby. State v. Peacock, 313 N.C. 554, 330 S.E. 2d 190 (1985). We, therefore, overrule this assignment of error.\nDefendant\u2019s other assignment of error is that the trial court erred in failing to declare a mistrial after certain improper questions were asked by the prosecutor. During the redirect examination of State\u2019s witness Janice Gail Edwards, one of the people in the car with defendant at the time of the shooting, the following exchange occurred:\nQ. Now, did you inform Mr. Hyler (defendant\u2019s attorney) you had given a statement to the police?\nA. Yes, I did.\nQ. What did he say about that statement?\nMr. Hyler: Objection.\nMr. BROWN: He\u2019s opened the door to this, Your Honor.\nCOURT: Sustained.\nQuestions by Mr. Brown:\nQ. Did you inform Mr. Hyler you had given a statement to\nthe police two years before?\nA. Yes, I did.\nQ. Did he tell you to forget about this statement?\nMr. Hyler: Objection.\nCOURT: Sustained.\nQ. Did he say you could say something else other than what was in this statement?\nMr. Hyler: Objection.\nCOURT: Sustained.\nQ. Did he have a discussion with you about perjury?\nMr. Hyler: Objection.\nCOURT: Sustained.\nDefendant contends that this line of questioning was calculated only to prejudice defendant by planting in the minds of the jurors the thought that defense counsel had attempted to procure perjured testimony. A prosecutor \u201cmay not place before the jury through insinuating questions, argument or other means any evidence which is incompetent and prejudicial and not legally admissible in evidence.\u201d State v. Herndon, 292 N.C. 424, 430, 233 S.E. 2d 557, 562 (1977). While the prosecutor\u2019s questioning of the witness in this case violated his \u201cduty to refrain from improper methods calculated to bring about a wrongful conviction,\u201d State v. Britt, 288 N.C. 699, 711, 220 S.E. 2d 283, 291 (1975), quoting 63 Am. Jur. 2d, Prosecuting Attorneys, { 27 (1972), the prejudice to defendant resulting from the questioning was not so great as to require the trial judge to declare a mistrial ex mero motu.\nThe cases cited by defendant in support of his argument all involved prosecutorial misconduct far more flagrant than that involved here. The trial judge in this case sustained defendant\u2019s objections to the questioning. No motion was made for a mistrial. Control of the conduct of counsel during a trial is left largely to the discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466 (1949). In our view, the judge below acted properly in sustaining defendant\u2019s objections to the questions and did not abuse his discretion by failing to declare a mistrial. This assignment of error is overruled.\nDefendant attempts to argue a third assignment of error. However, we note that this assignment was not contained in the record on appeal and that defendant\u2019s motion to amend the record to include a new assignment of error was denied. Therefore, the purported assignment of error is not properly before us, and we shall not consider it. N.C. Rule App. Proc. 10(a).\nNo error.\nChief Judge HEDRICK and Judge WEBB concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg by Assistant Attorney General Thomas B. Wood for the State.",
      "Acting Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Gordon Widenhouse for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RANDY MILLER DAVIS\nNo. 8528SC861\n(Filed 1 April 1986)\n1. Constitutional Law \u00a7 63; Jury 8 7.11\u2014 jurors excluded for death penalty views\nDefendant\u2019s constitutional right to a fair and impartial trial was not denied by the trial court\u2019s allowing the prosecutor to challenge for cause potential jurors who voiced opposition to the death penalty.\n2. Criminal Law \u00a7 102.5\u2014 prosecutor\u2019s improper questions \u2014 mistrial not required\nThe trial court acted properly in sustaining defendant\u2019s objections to the prosecutor\u2019s questions designed to plant in the minds of the jurors the thought that defense counsel had attempted to procure perjured testimony, and the trial judge did not abuse his discretion by failing to declare a mistrial.\nAPPEAL by defendant from Gaines, Judge. Judgment entered 14 February 1985 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 3 March 1986.\nDefendant was indicted for the first-degree murder of Salva-dore Montez, Jr. The evidence showed that defendant and Montez had had a sort of \u201crunning feud\u201d going on between them and that each had threatened to kill the other. On the day of the murder, defendant forced some friends to accompany him as he drove to several different places around Asheville, possibly searching for Montez. They testified that they had gone with defendant because he had displayed a gun to them and that they had felt threatened.\nDefendant finally spotted Montez in the parking lot of the Pisgah View Apartments, a public housing project in Asheville. He shouted at Montez, who stopped and walked up to defendant\u2019s car. The two argued briefly and defendant shot Montez, killing him. The testimony of the witnesses varied as to where each of the antagonists were when the shot was fired. Also, the testimony differed as to whether Montez had pulled a knife just before he was shot. However, all of the witnesses agreed that there was an argument and that defendant shot Montez.\nThe defendant argued that the shooting was self-defense. The trial judge instructed the jury on first degree murder, second degree murder, voluntary manslaughter and not guilty by reason of self-defense. The jury returned a verdict of guilty of second degree murder and the trial judge sentenced defendant to thirty years imprisonment. Defendant appeals.\nAttorney General Lacy H. Thornburg by Assistant Attorney General Thomas B. Wood for the State.\nActing Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Gordon Widenhouse for defendant-appellant."
  },
  "file_name": "0143-01",
  "first_page_order": 171,
  "last_page_order": 175
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