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North Carolina v. Duvall

Filed: December 1, 1981.


On defendant's petition for discretionary review, pursuant to G.S. 7A-31, of the decision of the Court of Appeals (Judge Harry C. Martin, with Judges Webb and Whichard concurring), reported at Copeland, J., Meyer, J., Branch, J., Carlton, J., Huskins, J., dissenting.


This is another of the three cases, arising out of the same hit-and-run accident in Dare County, which our Court decides today. See State v. Charles Fearing, 304 N.C. 471, 284 S.E.2d 487 (1981); State v. Malcolm Fearing, 304 N.C. 499, 284 S.E.2d 479 (1981). In pertinent part, we have already determined that the defendants in the Fearing cases, supra, must be tried again for error in the instructions on the essential elements of the hit-and-run offense

under G.S. 20-166 because the judges did not correctly explain the element of the driver's guilty knowledge. The Court of Appeals held that the particular instructions given in the instant case, when read in context, adequately informed the jury that the State had to show that the driver knew that a person had been injured or killed in an accident to establish his guilt of felony hit-and-run.*fn1 We do not agree. Rather, we find that Justice Britt's holding upon this point in State v. Charles Fearing, supra, is equally applicable upon this record. That being so, the Court of Appeals erred in not sustaining defendant's assignment of error to the instructions, and this defendant must also be given a new trial.

The occasion of defendant's re-trial impels us to consider his additional assignment of error regarding Judge Brown's order for a special jury venire. The pertinent facts are summarized as follows.

On 16 May 1979, the State moved for a special jury venire in defendant's case to insure a fair and impartial trial in Dare County. In support of its motion, the State alleged, among other things, that: (1) defendant was a well-known, lifelong resident of Dare County, related by blood and marriage to a large number of citizens in the county, who had served as a deputy sheriff for more than fifteen years; (2) Charles Fearing and Malcolm Keith Fearing (cousins), who were charged in connection with the same hit-and-run accident, were also well-known, lifelong residents of Dare County with extensive familial and business ties therein; (3) defendant and the Fearings had been active in county politics, as members of the Democratic Party,*fn2 and that the jury list was compiled in part from voter registration lists which demonstrated an overwhelming affiliation to the Democratic Party in Dare County; (4) Charles Fearing had moved for, and been granted, a

change in venue to Chowan County on the grounds that he could not receive a fair trial in his home county and that his motion therefor had been supported by the affidavit of C. E. Bray, Chief of the Kill Devil Hills Police Department; and (5) there had been substantial pre-trial discussion and publicity of the charges against defendant and the Fearings. In further support of its venire motion, the State submitted seventeen affidavits, fifteen from county residents and two from non-residents, in which each affiant stated an opinion, in identical language, that "a fair and impartial administration of justice" required the drawing of a special jury venire from outside Dare County. The affidavits were taken from eight relatives of the victim killed in the hit-and-run accident, two public officials, seven operators of local businesses and an employee of a local radio station.

In response to the State's motion and proof, defendant filed the opposing affidavits of thirty-nine citizens of Dare County stating, in identical language, their opinion that, despite defendant's familial, political and public connections and the publicity surrounding his case, both defendant and the State of North Carolina "could receive a fair and impartial trial in Dare County by a Dare County jury." Of these affiants, nine were public officials, four of which were members of the Dare County Sheriff's Department, including Sheriff Frank Cahoon.

Upon this evidence, Judge Browning entered an order denying the venire motion on 7 June 1979. In his order, he specifically found: "that the news media coverage, as presented to the court . . . is factual and non-inflammatory, and has not prejudiced the rights of either the State of North Carolina or the defendants . . . that while it [the court] does not tend to disbelieve the affidavits and the testimony of the State that there is substantial reason . . . to believe [from defendants' affidavits] that the defendants can in fact, and the State can in fact, obtain a fair trial in Dare County." Judge Browning therefore concluded that the State had not met its burden upon the motion for a special jury venire from another county.

On 3 December 1979, nearly six months later, the State verbally renewed its pre-trial motion for special jury venire in the cases before another superior court judge, Judge Brown. The State alleged essentially the same supporting grounds it had previously presented upon its original motion, see supra. After

some argument by both sides upon the oral motion, the court ordered a short recess. Apparently, during that respite, the prosecutor, with the court's permission, removed from the court file one of the affidavits filed in June to use as a model for drafting the "rather hurried affidavits" of eight law enforcement officials*fn3 and a newspaper reporter residing in Dare County.

Upon this additional evidence, Judge Brown granted the State's renewed venire motion on 4 December 1979 and ordered the selection of one hundred special veniremen from Perquimans County for defendant's trial on 25 February 1980. [Incidentally, another one hundred veniremen from Perquimans County had also been summoned to serve at the trial of Malcolm Fearing set for 11 ...

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