{ "id": 2496946, "name": "STATE OF NORTH CAROLINA v. BOBBY RAY HIGHTOWER", "name_abbreviation": "State v. Hightower", "decision_date": "1992-06-25", "docket_number": "No. 1A89", "first_page": "636", "last_page": "648", "citations": [ { "type": "official", "cite": "331 N.C. 636" } ], "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": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "34 L. Ed. 2d 493", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "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": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "391 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767501 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0510-01" ] }, { "cite": "303 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573603, 8573637, 8573542, 8573575, 8573552 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/303/0319-04", "/nc/303/0319-05", "/nc/303/0319-01", "/nc/303/0319-03", "/nc/303/0319-02" ] }, { "cite": "278 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "585" } ], "opinion_index": 1 }, { "cite": "52 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170109 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/52/0166-01" ] }, { "cite": "214 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "771" } ], "opinion_index": 1 }, { "cite": "287 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562870 ], "year": 1975, "pin_cites": [ { "page": "387" } ], "opinion_index": 1, "case_paths": [ "/nc/287/0377-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "71" }, { "page": "71" }, { "page": "71" }, { "page": "72" } ], "opinion_index": 1 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "49 L. Ed. 2d 1205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 1 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "202 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "284 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564781 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/nc/284/0670-01" ] }, { "cite": "400 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "401" } ], "opinion_index": 1 }, { "cite": "328 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539317 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0191-01" ] }, { "cite": "403 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 1 }, { "cite": "328 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541546 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0668-01" ] }, { "cite": "34 L. Ed. 2d 493", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 1 }, { "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": 1, "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": 1 }, { "cite": "281 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574647 ], "year": 1972, "pin_cites": [ { "page": "227" } ], "opinion_index": 1, "case_paths": [ "/nc/281/0221-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/320/0020-01" ] } ], "analysis": { "cardinality": 866, "char_count": 27069, "ocr_confidence": 0.723, "pagerank": { "raw": 4.6875540571078016e-07, "percentile": 0.9283261302106802 }, "sha256": "cf1b0397bedbd8a8f0f79f9aade2c53b31c50f4a310c07cc420ddcb6d2d3196b", "simhash": "1:5763f462b71a8e7e", "word_count": 4703 }, "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.", "Justice WHICHARD joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY RAY HIGHTOWER" ], "opinions": [ { "text": "WEBB, Justice.\nThe defendant has brought forward seventeen assignments of error. We shall discuss two of them.\nIn his first assignment of error he contends it was error not to allow a challenge for cause to a juror. The defendant preserved his right to bring forward this assignment of error by following the procedure of N.C.G.S. \u00a7 15A-1214(h). He peremptorily challenged the juror. He then exhausted his peremptory challenges and renewed his challenge for cause to the juror, which was denied.\nDuring the selection of the jury the following colloquy occurred:\nMr. LIND:\u2014 Okay, well, I appreciate that. That brings me to the next question is, Bobby very well may not take the witness stand. We may not present any evidence. Now, do you feel like if he didn\u2019t take the witness stand, do you feel like that might affect your ability to give him a completely fair and impartial trial because you might feel like you want to hear both sides before you could decide the case?\nJUROR BROWNING:\u2014 Yes, I would like to hear both sides, but\u2014\nMr. LIND:\u2014 Well, if he \u2014 that\u2019s why I\u2019m asking this now. There\u2019s a good chance that he probably will not testify. So, knowing that, do you feel like you could \u2014 that that would affect your ability to give him a fair and impartial trial?\nJuror Browning:\u2014 Yes.\nTHE COURT:\u2014 All right, Mr. Browning, as you may have heard me say earlier, under our law, the defendant is presumed to be innocent. He\u2019s not required to prove his innocence, and our law and the Constitution gives him the right not to testify if he so elects, and the law also says that that decision, if he should make that, not to testify, is not to be held against him, and that you, as a juror, are not to consider his silence in anyway in your deliberations. Now, I don\u2019t care whether you agree with that law or disagree with it, or whether you don\u2019t like it or do like it, or whether it doesn\u2019t make sense to you or whatever. That\u2019s not the issue. I don\u2019t want to debate that law. My question is, could you follow that law whether you like it or not?\nJUROR BROWNING:\u2014 I\u2019m just trying to think and give you a fair answer.\nThe COURT:\u2014 I know that\u2019s a difficult question, and I\u2019ll tell you, when we get into the case, I\u2019ll tell you that your duty as a juror is to follow the law of North Carolina as I give it to you and not as you think it is and not as you might like it to be. So, what I\u2019m saying is, it doesn\u2019t matter whether you like it or not like it. The bottom line is, can you follow the law as I explain it to you and not as you might like it to be or think it ought to be?\nJuror Browning:\u2014 Yeah, I could follow it, if it\u2019s the law.\nThe COURT:\u2014 And if I tell you that the law 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?\nJuror Browning:\u2014 I 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\nThe COURT:\u2014 But you would make every effort to follow the law?\nJuror Browning:- Right.\nThe COURT:\u2014 And you think you could follow the law?\nJuror Browning:\u2014 Yes.\nTHE COURT:\u2014 You just have some reservation about whether or not that would stick in the back of your mind?\nJuror' Browning:- Right.\nThe COURT:\u2014 Well, let\u2019s go back to the silence of the defendant one more time. You understand that he has that right under the law?\nJuror Browning:- Right, uh huh.\nThe COURT:\u2014 And you \u2014 let me just ask you, could you follow that law or could you not?\nJuror Browning:\u2014 Like I say, I could follow the law, but I\u2019m not going to \u2014 you know, it could stick in the back of my mind. I could\u2014\nThe COURT:\u2014 Well, it\u2019s obviously going to be in your mind. I mean, you can\u2019t erace [sic] it, but could you ignore it and follow the law as I explain it to you and not let it \u2014 it\u2019s going to be there, obviously. If 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?\nJUROR BROWNING:\u2014 I 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.\nMr. LIND:\u2014 The fact that your feelings about him not taking the witness stand and testifying could substantially impair your deciding the case. Despite your best efforts to try to follow that Judge\u2019s instructions, that would still be in your mind, and that would still be in your mind, and you would have some severe concerns that it might affect your ability to give him a fair trial, correct?\nJuror Browning:\u2014 Right.\nMr. LIND:\u2014 Okay, I don\u2019t have any other questions.\nTHE COURT:\u2014 Go back and forth forever with this. Do you want to ask him some questions?\nMr. KlMEL:\u2014 I just want to get his answer to the last question.\nTHE COURT:\u2014 What was your last answer?\nJUROR Browning:\u2014 He asked me what I said, or, you know, whether it would stick, and I said yes, and he asked me if I could follow the law, and I said yes, so\u2014\nMr. KlMEL:\u2014 I don\u2019t have anything else. The issue is if he can follow the law.\nMr. LlND:\u2014 I asked \u2014 my question was, I asked if his feeling in the back of his mind would substantially impair him, despite his best efforts to follow the law, and he said he couldn\u2019t follow the law.\nJuror Browning:\u2014 I would try to follow the law.\nTHE COURT:\u2014 You would make every effort whatsoever to follow the law, whether you agree with it or not, would you not?\nJuror Browning:\u2014 Yes, right.\nTHE COURT:\u2014 I\u2019m going to Deny the challenge for cause.\nN.C.G.S. \u00a7 15A-1212 provides in part:\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.\nWe have held that N.C.G.S. \u00a7 15A-1212(8), which is a codification of the rule in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968), applies to the qualification of jurors in all cases. State v. Kennedy, 320 N.C. 20, 26, 357 S.E.2d 359, 363 (1987).\nThe defendant\u2019s challenge for cause should have been allowed under both section (8) and (9) of N.C.G.S. \u00a7 15A-212. When 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 Mr. Lind\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.\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.\nDefendant\u2019s second assignment of error is that the trial court erred in denying his pretrial motion to exclude testimony from various people, including his own statements, regarding Naomi Donnell\u2019s pregnancy and his knowledge thereof. He contends that such evidence was irrelevant, had no probative value to any fact of consequence in the case, and its probative value was substantially outweighed by its prejudicial and inflammatory effect on the jury. We disagree.\nN.C.G.S. \u00a7 8C-1, Rule 402 (1988) provides \u201c[a]ll relevant evidence is admissible[ ]\u201d except if it is excluded by some other exclusionary rule. \u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1988). The prosecution may offer evidence of motive as circumstantial evidence to prove its case where the commission of the act is in dispute when \u201c[t]he existence of a motive is, however, a circumstance tending to make it more probable that the person in question did the act[.]\u201d 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 83 (3d ed. 1988).\nIn the instant case, the evidence of Donnell\u2019s pregnancy is relevant because it tended to support the State\u2019s theory of the defendant\u2019s motive for the murder. It is also relevant to prove that the murder was premeditated and deliberate and not a frenzied stabbing. The fact that Donnell threatened to tell everyone that defendant was the father of her baby, that defendant knew this, and that defendant had reconciled with his wife, tended to prove that defendant\u2019s plan and motive for the murder were to eliminate Donnell and her pregnancy as a potential threat to his reconciled marriage.\nFurther, the probative value as to motive and premeditation and deliberation substantially outweighed any prejudice. \u201c[Relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it as evidence.\u201d State v. Eason, 328 N.C. 409, 421, 402 S.E.2d 809, 814 (1991). The evidence of Donnell\u2019s pregnancy enhanced the State\u2019s case against the defendant. This evidence will be admissible at the new trial. This assignment of error is overruled.\nWe do not discuss the defendant\u2019s other assignments of error because the questions they raise may not arise at a new trial.\nNew trial.\nJustice LAKE did not participate in the consideration or decision of this case.", "type": "majority", "author": "WEBB, Justice." }, { "text": "Justice MEYER\ndissenting.\nI do not agree with the majority that the trial court erred in denying defendant\u2019s challenge for cause of prospective juror Browning. Having reviewed the transcript of the proceedings, the record on appeal, the briefs of both parties, and the oral arguments, I find no error in the guilt phase of defendant\u2019s trial; however, I believe that defendant is entitled to a new sentencing proceeding for error committed during the penalty phase of defendant\u2019s trial, a matter not addressed by the majority.\nUntil today, it has been well established that \u201c[t]he question of the competency of jurors is a matter within the trial judge\u2019s discretion\u201d and that the trial judge\u2019s ruling on a challenge for cause may be reversed only upon a showing of abuse of discretion. 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); see also State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991); State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death penalty vacated, 428 U.S. 902, 49 L. Ed. 2d 1205 (1976). Although not explicitly delineated in our prior opinions, the reason for giving such great deference to a trial judge\u2019s ruling on a challenge for cause is clearly grounded upon the fact that the trial judge, as opposed to an appellate court, is in a much better position to decide whether a prospective juror will be fair, impartial, and able to render a decision based upon the laws of our state.\nA trial judge \u201cis not required to remove from the panel every potential juror\u201d whose initial voir dire testimony supports a challenge for cause pursuant to N.C.G.S. \u00a7 15A-1212. State v. Cummings, 326 N.C. 298, 308, 389 S.E.2d 66, 71 (1990). Once a challenge for cause has been made based upon the juror\u2019s voir dire, it is the trial judge\u2019s responsibility to determine whether, in his or her opinion, the juror would be able to exercise properly his duties as a juror and base his findings upon the evidence presented at trial. Black, 328 N.C. at 196, 400 S.E.2d at 401; State v. Young, 287 N.C. 377, 387, 214 S.E.2d 763, 771 (1975). As Judge (later Justice) Harry C. Martin stated in State v. Wright, 52 N.C. App. 166, 278 S.E.2d 579, disc. rev. denied, 303 N.C. 319 (1981), \u201c[a] juror\u2019s answers need not be completely unequivocal or unambiguous for the judge to make his determination.\u201d Id. at 172, 278 S.E.2d at 585. The trial judge has the opportunity to hear the potential juror\u2019s responses and to observe the demeanor of the juror during voir dire examination. From this, the trial judge must determine what weight and credibility should be given to the potential juror\u2019s voir dire responses \u00bfnd assess independently the potential juror\u2019s ability to perform his duties as a juror. If, in the trial judge\u2019s opinion, the prospective juror \u201ccredibly maintains\u201d that he will be able to set aside any bias he may have and render a fair and impartial verdict based on the evidence presented at trial, \u201cthen it is not error for the court to deny defendant\u2019s motion to remove [the] juror for cause.\u201d Cummings, 326 N.C. at 308, 389 S.E.2d at 71.\nOn at least two prior occasions, we have had the opportunity to decide whether a challenge for cause must be granted when a prospective juror indicates that the defendant\u2019s failure to offer evidence at trial might influence his or her decision. In Cummings, the initial voir dire examination of juror Walters showed that \u201cWalters was a close friend and supporter of state\u2019s witness, Sheriff Barrington, had knowledge of the case based upon newspaper and television coverage and could potentially be biased against defendant if he elected to offer no evidence at trial.\u201d Cummings, 326 N.C. at 308, 389 S.E.2d at 71. Despite the potential bias of Walters, we held that the trial judge did not abuse his discretion in denying the defendant\u2019s challenge for cause because the juror subsequently stated that he could set aside his preconceived opinions as to defendant\u2019s guilt or innocence and decide the case based upon the evidence presented at trial. Id. at 308, 389 S.E.2d at 72.\nIn State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991), we were faced with determining the propriety of the trial judge\u2019s denial of a challenge for cause of prospective juror Hayes. At the outset, we noted that the transcript of Hayes\u2019 voir dire indicated some confusion on her part. At one point during the questioning, Hayes indicated that she would require defendant to present evidence in his defense. Following her response, however, Hayes asked that the question be repeated. After further questioning, Hayes ultimately indicated \u201cthat if the State did not meet its burden of proof she could find defendant not guilty even though he presented no witnesses in his behalf.\u201d McKinnon, 328 N.C. at 677, 403 S.E.2d at 479. The defendant argued that the trial court should have allowed his challenge for cause of juror Hayes because of her conflicting and ambiguous responses. We rejected the defendant\u2019s argument, concluding, \u201c[t]he responses of juror Hayes indicated that she would be able to hold the State to its burden of proof without requiring defendant to present evidence; therefore, the trial court did not abuse its discretion in refusing to excuse her for cause.\u201d Id. at 677-78, 403 S.E.2d at 479.\nAs in McKinnon, the voir dire of Browning, the prospective juror challenged in this case, indicates some confusion on his part. Upon initial questioning by both the court and the State, Browning unequivocally responded that he \u201ccould ... be completely fair and impartial and render a fair decision in both stages [of defendant\u2019s trial],\u201d that he \u201c[c]ould . . . follow the [c]ourt\u2019s instructions on the legal concepts of burden of proof and reasonable doubt in [the] case,\u201d and that he understood that \u201cthe State has to prove the defendant\u2019s guilt, and [defendant is] presumed innocent.\u201d When questioned by defense counsel concerning the possibility that defendant might not testify or present any evidence at trial, Browning stated, \u201cYes, I would like to hear both sides, but \u2014 \u201d (Emphasis added.) Before Browning was able to finish answering the question, defense counsel interrupted, following up with a question that first appeared to ask whether Browning could remain fair and impartial but switched mid-question to inquire whether defendant\u2019s failure to testify would affect Browning\u2019s ability to be fair and impartial:\nWell, if he \u2014 that\u2019s why I\u2019m asking this now. There\u2019s a good chance that he probably will not testify. So, knowing that, do you feel like you could\u2014 that that would affect your ability to give him a fair and impartial trial?\n(Emphasis added.) Following Browning\u2019s affirmative response and without questioning Browning further about this subject, defense counsel asked the court to excuse Browning because of \u201chis feelings as far as if [defendant] didn\u2019t testify.\u201d\nIn fulfillment of his responsibility to determine whether Browning could be fair and impartial, the trial judge then attempted to clarify Browning\u2019s response by inquiring of Browning\u2019s ability to follow the law:\nThe COURT:\u2014 All right, Mr. Browning, as you may have heard me say earlier, under our law, the defendant is presumed to be innocent. He\u2019s not required to prove his innocence, and our law and the Constitution give[] him the right not to testify if he so elects, and the law also says that that decision, if he should make that, not to testify, is not to be held against him, and that you, as a juror, are not to consider his silence in anyway in your deliberations. Now, I don\u2019t care whether you agree with that law or disagree with it, or whether you don\u2019t like it or do like it, or whether it doesn\u2019t make sense to you or whatever. That\u2019s not the issue. I don\u2019t want to debate that law. My question is, could you follow that law whether you like it or not?\nJUROR Browning:\u2014 I\u2019m just trying to think and give you a fair answer.\nThe COURT:\u2014 I know that\u2019s a difficult question, and I\u2019ll tell you, when we get into the case, I\u2019ll tell you that your duty as a juror is to follow the law of North Carolina as I give it to you and not as you think it is and not as you might like it to be. So, what I\u2019m saying is, it doesn\u2019t matter whether you like it or not like it. The bottom line is, can you follow the law as I explain it to you and not as you might like it to be or think it ought to be?\nJuror Browning:\u2014 Yeah, I could follow it, if it\u2019s the law.\nTHE COURT:\u2014 And if I tell you that the law 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?\nJuror Browning:\u2014 I 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 .\nTHE COURT:\u2014 But you would make every effort to follow the law?\nJuror Browning:\u2014 Right.\nTHE COURT:\u2014 And you think you could follow the law? Juror Browning:- Yes.\nThe COURT:\u2014 Well, let\u2019s go back to the silence of the defendant one more time. You understand that he has that right under the law?\nJuror Browning: Right, uh huh.\nTHE COURT:\u2014 And you \u2014 let me just ask you, could you follow that law or could you not?\nJuror Browning:\u2014 Like I say, I could follow the law, but I\u2019m not going to \u2014 you know, it could stick in the back of my mind. I could \u2014\n(Emphasis added.) As evidenced by a portion of the voir dire omitted from the majority opinion, Browning, upon inquiry by the State, once again reiterated that he could follow the court\u2019s instructions regarding defendant\u2019s right to not testify. Later, Browning did give ambiguous and somewhat contradictory responses when questioned by defense counsel. However, it is clear from the voir dire transcript that Browning became confused by defense counsel\u2019s questions. Another portion of the voir dire transcript omitted from the majority opinion reveals that Browning asked defense counsel to repeat the following question asked of Browning:\nAnd so, there is some real question in your mind that that fact [that defendant may not testify] might impair your ability\u2014 substantially impair your ability to give him a completely fair and impartial trial in this matter, isn\u2019t that true?\nDefense counsel then rephrased the question, asking the following confusing and compound question:\nThe fact that your feelings about him not taking the witness stand and testifying could substantially impair your deciding the case. Despite your best efforts to try to follow the Judge\u2019s instructions, that would still be in your mind, and you would have some severe- concerns that it might affect your ability to give him a fair trial, correct?\nAlthough Browning responded affirmatively, it is clear that Browning did not understand defense counsel\u2019s question. When asked by the court what his response was to that question, Browning stated, \u201cHe asked me what I said, or, you know, whether it would stick, and I said yes, and he asked me if I could follow the law, and I said yes, so \u2014 .\u201d (Emphasis added.)\nContrary to the majority\u2019s conclusion, the denial of defendant\u2019s challenge for cause of prospective juror Browning was not error. After carefully examining and clarifying Browning\u2019s responses, the trial judge determined that Browning could remain fair and impartial and render a verdict based on the evidence presented at defendant\u2019s trial. Having observed the demeanor of Browning and having heard the questions propounded to Browning, the trial judge was in a much better position than are we to determine the meaning of Browning\u2019s ambiguous responses and to assess Browning\u2019s ability to perform his duties as a juror. Like the prospective jurors challenged in Cummings and McKinnon, Browning repeatedly stated that he could follow the law as he was instructed by the court. From this, one can only conclude that the trial judge\u2019s decision to deny the challenge for cause was amply supported by reason and was therefore a proper exercise of the trial judge\u2019s discretion. It is only by discarding our well-established principle that challenges for cause are reviewable only for abuse of discretion that the majority is able to reach its conclusion that \u201c[i]t was error for the court not to allow the challenge for cause to Juror Browning in this case.\u201d\nIn conclusion, I agree with the majority that the evidence of Donnell\u2019s pregnancy was relevant and admissible to show defendant\u2019s motive and intent to kill Donnell, and I therefore concur in that portion of the majority opinion. However, I conclude that the trial judge properly exercised his discretion in denying defendant\u2019s challenge for cause of prospective juror Browning, and I therefore dissent from the portion of the majority opinion that grants defendant a new trial on this basis. With respect to defendant\u2019s other assignments of error, I have conducted a thorough examination of the transcript of the proceedings, the record on appeal, the briefs of both parties, and the oral arguments. I find no error in defendant\u2019s trial warranting reversal of defendant\u2019s conviction. However, I conclude that defendant is entitled to a new sentencing hearing based on the trial court\u2019s erroneous instruction that the jury could not reject the sole aggravating circumstance submitted unless the jurors unanimously agreed that the evidence presented did not prove the existence of the aggravating circumstance.\nJustice WHICHARD joins in this dissenting opinion.", "type": "dissent", "author": "Justice MEYER" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY RAY HIGHTOWER\nNo. 1A89\n(Filed 25 June 1992)\n1. Jury \u00a7 7.9 (NCI3d( \u2014 defendant\u2019s failure to testify \u2014 consideration by juror \u2014 denial of challenge for cause \u2014 prejudicial error\nThe trial court erred in denying a challenge for cause of a prospective juror who indicated that he would try to be fair to the defendant but might have trouble doing so if the defendant did not testify. Moreover, the failure to allow this challenge for cause was prejudicial error where defendant exhausted his peremptory challenges in excusing this juror, and defendant renewed his challenge for cause to this juror and told the court that he would peremptorily challenge the juror then being questioned if he had not exhausted his peremptory challenges. N.C.G.S. \u00a7\u00a7 15A-1212(8) and (9).\nAm Jur 2d, Jury \u00a7\u00a7 213 et seq.\n2. Evidence and Witnesses \u00a7 177 (NCI4th)\u2014 pregnancy of murder victim \u2014evidence of motive and premeditation and deliberation\nEvidence of a murder victim\u2019s pregnancy and defendant\u2019s knowledge thereof was relevant and admissible to show that defendant\u2019s motive for the murder was to eliminate the victim and her pregnancy as a potential threat to his reconciled marriage and to show that the murder was premeditated and deliberate. Furthermore, the probative value of this evidence substantially outweighed any prejudice. N.C.G.S. \u00a7 8C-1, Rules 401 and 402.\nAm Jur 2d, Homicide \u00a7 273.\nJustice MEYER dissenting.\nJustice WHICHARD joins in this dissenting opinion.\nJustice LAKE did not participate in the consideration or decision of this case.\nAPPEAL as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing the sentence of death entered by Freeman, J., at the 14 November 1988 Criminal Session of Superior Court, GUILFORD County. Heard in the Supreme Court 10 September 1991.\nThe defendant was tried for his life for first degree murder. The State\u2019s evidence showed that the defendant stabbed Naomi Donnell to death and threw her body into a river. The jury found the defendant guilty and recommended the death penalty be imposed. The defendant was sentenced to death.\nThe defendant appealed to this Court.\nLacy H. Thornburg, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant appellant." }, "file_name": "0636-01", "first_page_order": 678, "last_page_order": 690 }