{ "id": 2498038, "name": "STATE OF NORTH CAROLINA v. JOHN D. LOCKLEAR", "name_abbreviation": "State v. Locklear", "decision_date": "1992-04-22", "docket_number": "No. 610A90", "first_page": "239", "last_page": "249", "citations": [ { "type": "official", "cite": "331 N.C. 239" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "345 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "212", "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) and State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778695 ], "year": 1986, "pin_cites": [ { "page": "218", "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) and State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0206-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "426" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "364" }, { "page": "363" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "298 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "346 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "317 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772331 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0457-01" ] }, { "cite": "114 L. Ed. 2d 432", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6224653 ], "year": 1991, "pin_cites": [ { "page": "452", "parenthetical": "discussing the doctrine of transferred intent" } ], "opinion_index": 0, "case_paths": [ "/us/500/0391-01" ] }, { "cite": "420 N.W.2d 223", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10658931 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nw2d/420/0223-01" ] }, { "cite": "474 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "394 Mass. 101", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 385144 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/mass/394/0101-01" ] }, { "cite": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "255 Ga. 565", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1207301 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ga/255/0565-01" ] }, { "cite": "226 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "669", "parenthetical": "felony murder rule makes premeditation and deliberation immaterial and does not violate due process by establishing a presumption of premeditation and deliberation" } ], "opinion_index": 0 }, { "cite": "290 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561569 ], "year": 1976, "pin_cites": [ { "page": "407", "parenthetical": "felony murder rule makes premeditation and deliberation immaterial and does not violate due process by establishing a presumption of premeditation and deliberation" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0383-01" ] }, { "cite": "180 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "139", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "278 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560822 ], "year": 1971, "pin_cites": [ { "page": "519", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0513-01" ] }, { "cite": "273 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564256, 8564233, 8564290, 8564187 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0107-03", "/nc/301/0107-02", "/nc/301/0107-04", "/nc/301/0107-01" ] }, { "cite": "268 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "300 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562770 ], "year": 1980, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0494-01" ] }, { "cite": "442 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531962 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0510-01" ] }, { "cite": "471 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202354 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "313" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/us/471/0307-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "364" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "93 L. Ed. 2d 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6340738, 6339651, 6341187, 6340166, 6341416, 6339181, 6341774, 6340368, 6339954, 6340948, 6338904, 6339482, 6339803, 6341597, 6338527 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0836-10", "/us/479/0836-05", "/us/479/0836-12", "/us/479/0836-08", "/us/479/0836-13", "/us/479/0836-03", "/us/479/0836-15", "/us/479/0836-09", "/us/479/0836-07", "/us/479/0836-11", "/us/479/0836-02", "/us/479/0836-04", "/us/479/0836-06", "/us/479/0836-14", "/us/479/0836-01" ] }, { "cite": "340 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "year": 1986, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] } ], "analysis": { "cardinality": 989, "char_count": 22296, "ocr_confidence": 0.776, "pagerank": { "raw": 3.263590159126524e-07, "percentile": 0.8696593894084172 }, "sha256": "4a83c646591daaf69b07a66aa04f106c8480fad362dab029068245e18c26ab99", "simhash": "1:933b461ab5d491d4", "word_count": 3739 }, "last_updated": "2023-07-14T15:05:46.767853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice LAKE did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN D. LOCKLEAR" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe defendant was tried upon proper indictments for the first-degree murder of Geraldine H. Donovan and for assault with a deadly weapon with intent to kill inflicting serious injury on Victoria Kay Donovan. The jury found the defendant guilty of both offenses as charged. At the conclusion of a capital sentencing proceeding, the jury recommended a sentence of life imprisonment be entered for the conviction of murder in the first degree. The trial court, as required by law, imposed a life sentence for that offense pursuant to the jury\u2019s recommendation. The trial court also entered a judgment sentencing the defendant to a consecutive term of imprisonment of twenty years for the assault conviction. The defendant appealed his conviction and life sentence for murder to this Court as a matter of right. We allowed the defendant\u2019s motion to bypass the Court of Appeals on his appeal of the assault conviction and sentence.\nThe defendant brings forward three assignments of error. First, he contends that the trial court\u2019s instruction on transferred intent with regard to the assault charge denied him due process of law by applying a conclusive presumption. Next, he argues that the trial court erred in failing to instruct the jury on second-degree murder as a lesser-included offense under the indictment against him for the murder of Geraldine Donovan. Finally, he maintains that the trial court erred in removing three prospective jurors for cause due to their relationship with the defendant. We conclude that the defendant\u2019s assignments of error are without merit.\nThe State\u2019s evidence tended to show, inter alia, that for approximately two years prior to her death on 16 May 1988, Geraldine Donovan had been involved in a relationship with the defendant John D. Locklear. The relationship was described as being \u201con and off.\u201d Geraldine\u2019s fifteen-year-old daughter, Vickie Donovan, testified that on 16 May 1988, the relationship between the defendant and her mother could be seen as being \u201coff.\u201d\nAround 9:00 a.m. on 16 May 1988, the defendant Locklear was seen by his friend Stanton Lewis. Later that afternoon, the defendant came by Lewis\u2019 house and asked him if he wanted to ride to the store with the defendant. The two men then headed toward Laurinburg. The defendant\u2019s automobile contained clothes on a hanger, a laundry basket with clothes and a shaving kit. On the way towards Laurinburg, the defendant pulled a .25 caliber handgun out of the laundry basket. The defendant stopped at a K-Mart in Laurinburg and purchased a box of .25 caliber ammunition. He asked Lewis to load the gun as they proceeded out of town to Shaw Woods to test-fire the gun. They drove down a path into the woods, where the defendant got out and fired the gun approximately six times.\nThe defendant drove back to Lewis\u2019 house. On the way, Lewis reloaded the gun. They arrived at Lewis\u2019 house around 6:00 p.m. As the defendant was leaving, he told Lewis \u201cto take care of myself, that \u2014 he might not never [sic] see me again.\u201d\nThe defendant Locklear then went to the Donovan residence, where he arrived at about 6:20 p.m. He entered the house through the side door which opens into the kitchen. He walked past Vickie Donovan in the kitchen and went into the living room where her mother, Geraldine Donovan, was standing. Geraldine and the defendant then went into an adjacent bedroom where Geraldine began putting on make-up and fixing her hair. Vickie went into her bedroom directly across a small hallway.\nMoments later Vickie heard her mother yell, \u201cNo, John, don\u2019t.\u201d Vickie went to the door of her room. As she opened it, she heard what sounded like a firecracker going off. When she heard the sound, she stepped back from the door and saw her mother come running into the room with the defendant right behind her holding a handgun. Just before the shots stopped, Vickie peeped over the bed at her mother who was down on her knees in the closet holding the doorknob. Geraldine looked at Vickie, took a breath and fell backwards. Vickie stayed curled up on the floor until the shooting stopped. When the shooting did stop, she looked up and the defendant was gone.\nVickie went into the next room to call the police. As she sat there, she looked up and saw the defendant standing in the doorway reloading the gun. The defendant told Vickie, \u201cGet off the damn phone.\u201d Vickie closed the bedroom door in his face.\nAfter closing the door, Vickie proceeded to dial the police. While doing so, she heard more shots coming from her bedroom. She put down the phone and went into her bedroom where she found the defendant standing in front of the closet with the gun pointed at Geraldine Donovan. Vickie pleaded with the defendant, and he stopped shooting and walked out of the house. As Vickie went back to call the police, she noticed blood on her own neck.\nAt approximately 8:30 p.m., Deputy Benjamin Williams of the Moore County Sheriff\u2019s Department answered a call regarding a man acting suspiciously at the Fast Mart in Pine Bluff. Williams found the defendant there and, upon being informed that the defendant was wanted by authorities in Scotland County, transported him to the Moore County Sheriff\u2019s Department. While in the defendant\u2019s presence, Williams observed that the defendant\u2019s speech was not slurred. Although the defendant had the odor of cigarettes and alcohol about him, he did not have any problem communicating with the deputy.\nThe defendant was returned to Scotland County and processed by Detective Paul Lemmond. During the booking process, the defendant asked the detective, \u201cIs she dead?\u201d Detective Lemmond responded, \u201cYes, sir.\u201d\nAn autopsy was performed on the body of Geraldine Donovan by Dr. Robert L. Thompson in the presence of Dr. John Butts. During the autopsy, six gunshot entry wounds were located in the victim\u2019s body. Two exit wounds were also noted. Four projectiles were recovered from the body. In the opinion of Dr. Butts, Geraldine Donovan died as a result of the six gunshot wounds.\nAs a result of the defendant\u2019s attack upon her on 16 May 1988, Vickie Donovan was treated by Dr. James S. Mitchner for a gunshot wound to her neck. The projectile which struck Vickie entered the back right side of her neck passing through and exiting from the back left side of her neck.\nState Bureau of Investigation Agent Steve Carpenter testified as an expert in latent firearms examination and ballistics. From his examination, he concluded that a .25 caliber semi-automatic Raven pistol recovered from the defendant\u2019s car fired all of the projectiles linked to the events which had occurred in the Donovan residence.\nThe defendant did not present any evidence during the guilt-innocence determination phase of the trial.\nIn his first assignment of error, the defendant contends that the trial court erred in instructing the jury on the doctrine of transferred intent as related to the charge against him for assault with a deadly weapon with intent to kill inflicting serious injury upon Vickie Donovan. He argues that this instruction directed the jury to apply a conclusive presumption against him and, thereby, unconstitutionally shifted the burden of persuasion on the element of specific intent to harm Vickie Donovan to the defendant.\nThe complained-of instruction occurred when the trial court instructed the jury on the elements of assault with a deadly weapon with the intent to kill inflicting serious injury. The trial court instructed that: \u201cConsidering the defendant\u2019s intent, the jury is instructed that if the defendant intended to harm one person, but actually harmed a different person, the legal effect would be the same as if he had harmed the intended victim. This is called the doctrine of transferred intent.\u201d The defendant recognizes that this instruction was consistent with North Carolina law and conformed with the pattern jury instruction on transferred intent. See N.C.P.I. \u2014Crim. 104.13. However, he contends that the challenged instruction amounted to a mandatory conclusive presumption which unconstitutionally relieved the State of its burden of proving each element of the offense charged, denying him due process. We do not agree.\n\u201cElements of criminal offenses present questions of fact which must be resolved by the jury upon the State\u2019s proof of their existence beyond a reasonable doubt.\u201d State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 469, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). The Supreme Court of the United States has stated that the Due Process Clause of the Fourteenth Amendment \u201cprotects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.\u201d In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970). This principle prohibits the use of evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Francis v. Franklin, 471 U.S. 307, 313, 85 L. Ed. 2d 344, 352 (1985); Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39 (1979); State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489, reh\u2019g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). The instruction in the present case did not have the effect of relieving the State of any part of its burden of persuasion on an essential element; instead, it merely stated the substantive law of this state. 2 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 201 (3d ed. 1988).\nIn the present case, the trial court merely explained the common law doctrine of transferred intent to the jury. Under that doctrine,\n[i]t is an accepted principle of law that where one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as [if] the fatal act had caused the death of his adversary. It has been aptly stated that \u201cThe malice or intent follows the bullet.\u201d\nState v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (citations omitted).\nThe doctrine of transferred intent does not require or permit one fact to be presumed based upon the finding of another fact. Instead, under the doctrine of transferred intent, it is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law. Id.; cf. State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652, 669 (1976) (felony murder rule makes premeditation and deliberation immaterial and does not violate due process by establishing a presumption of premeditation and deliberation); 2 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 215 (3d ed. 1988) (distinguishing presumptions arising upon evidence from matters of substantive law). No presumption of any kind arose here where the trial court merely fulfilled its duty by explaining the well-established rule of substantive law known as the doctrine of transferred intent, as it applied to the assault charged. Therefore, no unconstitutional burden shifting, such as those disapproved in Francis and Sandstrom, occurred in this case. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986); Commonwealth v. Puleio, 394 Mass. 101, 474 N.E.2d 1078 (1985); State v. Livingston, 420 N.W.2d 223 (Minn. App. 1988); cf. Yates v. Evatt, 500 U.S. \u2014, \u2014, 114 L. Ed. 2d 432, 452 (1991) (discussing the doctrine of transferred intent). This assignment of error is overruled.\nBy his next assignment of error, the defendant contends that the trial court erred in its instructions on the first-degree murder charge when it denied his request to instruct the jury to consider a verdict finding him guilty of the lesser-included offense of second-degree murder. We find no error in this regard.\nWe have disavowed any rule that would require the trial court to instruct on second-degree murder as a lesser-included offense in all first-degree murder cases in which the State, as here, relies on the theory that the murder was committed with premeditation and deliberation. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); State v. Strickland, 307 N.C. 274, 298 S.E.2d 646 (1983). To determine whether it should instruct on the lesser-included offense in such cases, the trial court must examine the State\u2019s evidence to see if it is \u201cpositive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged.\u201d Strickland, 307 N.C. at 284, 298 S.E.2d at 652. \u201cThe trial court is required to charge on a lesser-included offense only when there is evidence to support a verdict finding the defendant guilty of such lesser offense.\u201d Hickey, 317 N.C. at 470, 346 S.E.2d at 655. On the other hand, when all the evidence tends to show the defendant committed the crime charged and did not commit a lesser offense, the trial court is correct in refusing to charge on the lesser-included offense. Id.\nThe State\u2019s evidence in this case tended to show that on the day he killed the victim, the defendant purchased ammunition for a .25 caliber handgun and went with his friend Stanton Lewis to some woods to test-fire the gun. Later that day, the defendant went to the Donovan residence where he entered through the side door and went into a bedroom to talk with Geraldine Donovan. Moments later, Vickie Donovan heard her mother yell, \u201cNo, John, don\u2019t.\u201d Vickie heard what sounded like a firecracker going off, and then saw her mother running from the room with the defendant right behind her holding a handgun. After the shots stopped, Vickie went to another room to use the telephone. The defendant followed her and told her to get off the telephone. Vickie got up and closed the door, then began to dial the number for the police department. At that point, she heard more shots coming from her bedroom. She put the telephone down and went to her bedroom, where she found the defendant still pointing the gun at her mother. She yelled at the defendant and, at that point, he stopped shooting and walked out of the house.\nBased on the evidence in this case, the only rational verdicts a jury could have returned were a verdict finding the defendant guilty of first-degree murder on the basis of premeditation and deliberation or, if the jury did not believe the evidence, a verdict finding him not guilty. The trial court properly refused to submit the lesser-included offense of second-degree murder.\nBy his final assignment of error, the defendant contends that the trial court improperly removed three prospective jurors for cause following voir dire examination. We conclude that the trial court committed no error in this regard.\nWhether to allow a challenge for cause in jury selection is a decision ordinarily left to the sound discretion of the trial court which will not be reversed on appeal except for abuse of discretion. State v. Kennedy, 320 N.C. 20, 28, 357 S.E.2d 359, 364 (1987). The primary goal of the jury selection process is to ensure selection of a jury comprised only of persons who will render a fair and impartial verdict. Id. at 26, 357 S.E.2d at 363.\nThe transcript in the present case reveals that the first juror excused for cause, Roy Yarborough, knew the defendant through Alcoholics Anonymous. He also said that he knew the defendant\u2019s mother and father \u201creal well.\u201d He indicated that he thought a lot of the defendant\u2019s parents and considered the defendant a friend. When asked by the prosecutor if his relationship with the defendant\u2019s family would impair his ability to be fair to both sides, Yarborough responded, \u201cYes, sir.\u201d The prosecutor then asked if Yarborough thought that his bias would be substantial enough that he could not be impartial, to which Yarborough replied, \u201cI think so.\u201d On rehabilitative questioning by the defendant, Yarborough indicated that he \u201cmaybe could\u201d hear the evidence in the case and do what the court instructed him to do.\nThe State\u2019s voir dire questioning of the second juror excused for cause, John Hudson, revealed he had been represented by Mr. Horne, co-counsel for the defendant, in two previous legal matters. Hudson considered Horne his lawyer and had confidence in his abilities. Hudson then agreed with the prosecutor\u2019s statement that because he held Horne in such high regard, he could not be fair and impartial to both sides. On rehabilitative questioning by the defendant, Hudson agreed that he could listen to what the court said and could be fair to both the State and the defendant.\nThe third juror excused for cause, Gregory Pegues, indicated he knew the defendant\u2019s sister, Lucille Brock, through his employment. He had known her for five years and considered her a good friend. The defendant\u2019s sister attended the entire trial and testified at the sentencing proceeding. The prosecutor questioned Pegues as to whether the fact that he knew Mrs. Brock would prevent him from being fair to both sides in this case. Pegues initially responded, \u201cI don\u2019t think so.\u201d However, when the prosecutor rephrased the question to ask if the fact the defendant was Lucille\u2019s brother would prevent him from being fair to both sides, Pegues said, \u201cI think it might.\u201d Pegues then agreed that his friendship with the defendant\u2019s sister would not allow him to be fair and impartial in this case. During rehabilitative questioning by the defendant, Pegues stated that he \u201cwould want to be\u201d fair to both sides if he sat as a juror.\nIn Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841 (1985), the Supreme Court of the United States held that a potential juror\u2019s bias does not have t\u00f3 be shown with \u201cunmistakable clarity\u201d before a challenge for cause may be granted. The Court stated that great deference should be shown the trial court in these situations because \u201cthere will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.\u201d Id. at 426, 83 L. Ed. 2d at 852.\nIt is true that the conflicting answers given by the three prospective jurors here did not establish their bias with unmistakable clarity. But there is no doubt that the answers they gave could have left the trial court with a quite reasonable impression that they would be \u201cunable to faithfully and impartially apply the law.\u201d Id. The abuse of discretion standard of review is applied to situations, such as this, which require the exercise of judgment on the part of the trial court. The test for abuse of discretion requires the reviewing court to determine whether a decision \u201c \u2018is manifestly unsupported by reason,\u2019 or \u2018so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) and State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)). From the record in the present case, it is clear that the trial court did not abuse its discretion in excusing the three prospective jurors in question for cause under N.C.G.S. \u00a7 15A-1212(9).\nThe defendant received a fair trial free from prejudicial error.\nNo error.\nJustice LAKE did not participate in the consideration or decision of this case.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by John H. Watters, and G. Patrick Murphy, Assistant Attorneys General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Benjamin Sendor, Assistant Appellate Defender, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN D. LOCKLEAR\nNo. 610A90\n(Filed 22 April 1992)\n1. Assault and Battery \u00a7 31 (NCI4th)\u2014 assault \u2014 intent to kill-instruction on transferred intent\nThere was no unconstitutional burden shifting in a prosecution for murder and assault where the court instructed the jury on the doctrine of transferred intent as it related to the assault charge. The doctrine of transferred intent does not require or permit one fact to be presumed based upon the finding of another fact, and no presumption of any kind arose here where the trial court merely fulfilled its duty by explaining the well-established rule of substantive law known as the doctrine of transferred intent.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 18, 52; Homicide \u00a7 71.\n2. Homicide \u00a7 552 (NCI4th)\u2014 murder \u2014no instruction on second degree \u2014no error\nThere was no error in a prosecution for first degree murder where the court denied defendant\u2019s request to instruct the jury to consider a verdict finding him guilty of the lesser included offense of second degree murder. The only rational verdicts a jury in this case could have returned were guilty of first degree murder on the basis of premeditation and deliberation or not guilty.\nAm Jur 2d, Homicide \u00a7\u00a7 525, 526, 530.\n3. Jury \u00a7 7.10 (NCI3d)\u2014 murder \u2014 jury selection \u2014 removal for cause \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a prosecution for murder and assault by removing for cause three prospective jurors who knew defendant, defendant\u2019s family members, or defendant\u2019s co-counsel. Although the conflicting answers given by the three prospective jurors did not establish their bias with unmistakable clarity, there is no doubt the answers they gave could have left the trial court with the quite reasonable impression that they would be unable to faithfully and impartially apply the law.\nAm Jur 2d, Jury \u00a7\u00a7 251, 267, 313, 314.\nJustice Lake did not participate in the consideration or decision of this case.\nAPPEAL as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment imposing a life sentence for first-degree murder entered on 9 February 1990 by Hudson, J., in Superior Court, SCOTLAND County. The defendant\u2019s motion to bypass the Court of Appeals on the appeal of judgment and sentence entered against him for assault with a deadly weapon with intent to kill inflicting serious injury was allowed by the Supreme Court on 3 July 1991. Heard in the Supreme Court on 13 November 1991.\nLacy H. Thornburg, Attorney General, by John H. Watters, and G. Patrick Murphy, Assistant Attorneys General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Benjamin Sendor, Assistant Appellate Defender, for the defendant-appellant." }, "file_name": "0239-01", "first_page_order": 281, "last_page_order": 291 }