Appeal by defendant from Seay, J., 19 June 1978 Session of Alexander Superior Court. This case was docketed and argued as No. 19 at the Spring Term 1979.
Branch, Chief Justice. Justice Exum dissenting in part.
Defendant first contends that the trial judge erred in construing G.S. 15A-2000 and G.S. 15A-2001 as not allowing a defendant to enter a plea of guilty on condition that his sentence be life imprisonment. We are of the opinion that the pertinent provisions of the statutes involved support the trial judge's ruling which, in effect, recognized that he had no authority to waive the requirement that a jury be impaneled to recommend punishment when a defendant enters a plea of guilty. G.S. 15A-2000(a)(2) provides in pertinent part that: "If the defendant pleads guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose." [Emphasis added.] G.S. 15A-2001 provides:
Capital offenses; plea of guilty. -- Any person who has been indicted for an offense punishable by death may enter a plea of guilty at any time after his indictment, and the judge of the superior court having jurisdiction may sentence such person to life imprisonment or to death pursuant to the procedures of G.S. 15A-2000. Before sentencing the defendant, the presiding judge shall impanel a jury for the limited purpose of hearing evidence and determining a sentence recommendation as to the appropriate sentence pursuant to G.S. 15A-2000. The jury's sentence recommendation in cases where the defendant pleads guilty shall be determined under the same procedure of G.S. 15A-2000 applicable to defendants
who have been tried and found guilty by a jury. [Emphasis added.]
In this jurisdiction, it is a well-established rule of statutory construction that where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must adhere to its plain and definite meaning. State ex rel. Utilities Comm'n v. Edmisten, 291 N.C. 451, 232 S.E.2d 184 (1977). The statutes in question provide in part that, "If the defendant pleads guilty, a sentencing proceeding shall be conducted before a jury . . ." and "the presiding judge shall impanel a jury." [Emphasis added.] As used in statutes, the word "shall" is generally imperative or mandatory. Black's Law Dictionary 1541 (4th rev. ed. 1968). Accord: Poole v. Board of Examiners, 221 N.C. 199, 19 S.E.2d 635 (1942); Davis v. Board of Education, 186 N.C. 227, 119 S.E. 372 (1923); State ex rel. Battle v. Rocky Mount, 156 N.C. 329, 72 S.E. 354 (1911). It is clear from the language of the statutes that upon a plea of guilty in a capital case the trial judge is required to impanel a jury to determine the sentence to be imposed. In instant case, the trial judge properly followed the legislative mandate expressed in Article 100 of Chapter 15A.
Defendant assigns as error the ruling of the trial judge permitting the District Attorney to challenge for cause seven prospective jurors because of their disbelief in capital punishment. The record indicates that the trial judge excused the seven individuals in question only after their assertion that under no circumstances would they return a verdict which would result in the imposition of the death penalty. Based on Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), we held in State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), that excusal for cause of any juror who states that under no circumstances would he return a verdict which would result in the imposition of the death penalty is constitutionally permissible. Thus, in instant case, the trial judge properly excused the challenged prospective jurors.
Defendant next contends that the trial court erred in denying his motion for individual voir dire and sequestration of jurors during voir dire. In his brief, defendant cites no authority in support of this contention. G.S. 15A-1214(j) provides that: "In capital cases the trial judge for good cause shown may direct that jurors
be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." This provision vests in the trial judge discretion to allow individual voir dire and sequestration of jurors during voir dire. It is well settled in North Carolina that the trial judge has broad discretion to see that a competent, fair and impartial jury is impaneled and rulings of the trial judge in this regard will not be reversed absent a showing of abuse of discretion. State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977); State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904. Defendant argues that collective voir dire of jurors in panels as to their familiarity with the crime, the victim or the probability of defendant's guilt or innocence will make all jurors aware of prejudicial and possibly incompetent material, thereby rendering it impossible to select a fair and impartial jury. He further argues that collective voir dire precluded the candor and honesty on the part of the jurors which was necessary in order for counsel to intelligently exercise his peremptory challenges. This is mere speculation on defendant's part, and he has made no showing that the trial judge's denial of his motion amounted to an abuse of discretion. This assignment of error is overruled.
Defendant assigns as error the trial court's refusal to grant his motion to require the State to refute the defense of insanity. Defendant argues that Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), requires reallocation of the burden of proof with respect to the defense of insanity. We expressly rejected the same argument in the recent case of State v. Caldwell, 293 N.C. 336, 237 S.E.2d 742 (1977), cert. denied, 434 U.S. 1075. Defendant acknowledges that Caldwell is contrary to his position and has shown nothing which requires reconsideration of that decision.
Defendant contends that the trial judge erred in denying his motion for appointment of associate counsel. Defendant cites no authority in support of this contention but states that additional counsel should have been appointed. As in the case of providing private investigators or other expert assistance to indigent defendants, we think the appointment of additional counsel is a matter within the discretion of the trial judge and required only upon a showing by a defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of
his defense or that without such help it is probable that defendant will not receive a fair trial. See State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976). There is nothing in the record to indicate that his court appointed counsel handled his appeal other than in a competent manner. While the trial judge could, in his discretion, have appointed additional counsel, his refusal to do so can by no stretch of the imagination be deemed an abuse of discretion.
Defendant assigns as error the trial court's refusal to increase the number of his peremptory challenges. He contends that substantial pretrial publicity and the State's successful challenge for cause of prospective jurors opposed to capital punishment were advantages which benefited the State, and his motion for additional challenges should have been allowed to offset those advantages. Defendant cites no authority in support of his contention, and we can find none. G.S. 15A-1217 provides that in capital cases each defendant is entitled to fourteen peremptory challenges. The statute does not authorize trial judges to permit either the State or a defendant to exercise more peremptory challenges than specified by statute. In instant case, the record does not reveal how many peremptory challenges, if any, defendant used. Moreover, defendant does not contend that the trial judge's denial of his motion resulted in the acceptance of any jurors over defendant's challenge. Even if the trial judge had authority to increase the number of peremptory challenges, a power which is precluded by G.S. 15A-1217, we fail to perceive any prejudice to defendant resulting from the denial of this motion.
Defendant next contends that the trial court erred in denying his motion to suppress his in-custody confession which he argues flowed from and was tainted by the State's acquisition of a .38 caliber pistol used by defendant in an unrelated homicide. Prior to trial, the trial judge conducted a voir dire hearing to determine the admissibility of defendant's confession. Captain Webster of the Caldwell County Sheriff's Department testified that on 31 October 1977 defendant was a suspect in the murder of one Mabel Sherrill. On that same day, Webster took defendant into custody in Hickory, North Carolina, and asked defendant if he would accompany him to Caldwell County. Defendant agreed to return to Caldwell County, and Captain Webster informed him
on his rights. After stating that he understood his rights, defendant told Webster that he had a. 38 caliber pistol at his brother's house. The two men went to the brother's house and obtained the pistol which had belonged to the deceased, Mabel Sherrill. After obtaining the pistol, Webster again informed defendant of his rights. Defendant was again informed of his rights at the Caldwell County Sheriff's Department by members of that department to whom he confessed killing both Mrs. Sherrill and Bobby Bartlette.
Defendant testified on voir dire that Captain Webster did not inform him of his rights until he had asked and been told about the .38 caliber pistol which had belonged to Mrs. Sherrill. Defendant thus contends that the pistol and the confessions which flowed from its recovery were tainted evidence which should have been excluded. We do not agree. Based upon the evidence offered on voir dire, the trial judge found as a fact that no information was obtained from defendant until after he had been advised of his rights and concluded that defendant's statements were understandingly and voluntarily made after he was advised of all of his constitutional rights. The trial judge's finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971); State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971).
In instant case, defendant concedes that there was sufficient evidence to support the trial judge's ruling.
Defendant contends that the trial court erred in allowing the State's challenge for cause of Mrs. Alva Adams in violation of the rule set forth in Witherspoon v. Illinois, supra. The record indicates the following exchange during the voir dire of prospective juror Adams:
Q. Do you have any moral or religious scruples against the use of capital punishment in a situation you think calls for it?
A. Well, I'm not sure. I just can't make up my mind.
Q. . . . Do you just feel like, maybe you couldn't do that even if it was so bad that you felt it called for it?
A. Well, I'm not sure whether I could say capital punishment or not.
A. I'm not sure whether I could say the gas chamber or not.
Q. So you feel like, then, that you would not vote in favor of the death penalty under any facts or circumstances no matter what the aggravation was. Is that right?
Q. All right. We'll challenge her for cause.
The Court: All right, stand aside, ma'am.
At this time, the defendant objected to this challenge for cause and requested permission to ask the excused juror a series of questions inquiring into her feelings concerning capital punishment, which request was denied.
Mr. Hedrick: I would like to ultimately ask the juror if the Judge instructed her regarding the law, and recognizing her sworn duty as a juror, as much as she might dislike it, could she consider a verdict which might result in the death penalty? I submit that if she could do that, then she is not challengeable for cause under the Witherspoon decision.
The juror being recalled, was questioned and answered as follows:
Q. Mrs. Adams, do you have any moral scruples against the use of capital ...