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North Carolina v. McKoy9/7/1988
ter is taking everything down so that it is a matter of public record, that it will be mailed down to the Supreme Court so that the Supreme Court can review "what we're doing up here in Stanly County," reasonable jurors could easily believe, as stated by this Court, in State v. Jones, 296 N.C. 495, 500, 251 S.E.2d 425, 428, "that the Supreme Court would share with them a burden and responsibility which was in fact their sole responsibility." This belief is further encouraged when the court overrules defendant's objection to the prosecutor's argument that if convicted defendant can appeal on points of law. As Chief Justice Sharp intimated in White, jurors may not fully comprehend "the nature of the Supreme Court's review of a case upon appeal and . . . the difference between 'triers of the facts' and judges of the law." White, 286 N.C. at 404, 211 S.E.2d at 450. Here, the trial judge both directly told the jury that its verdict was subject to appellate review and, subsequently, sanctioned the State's comments on that subject by overruling defendant's timely objection. Given those facts and the prior holdings of this Court, defendant's conviction and sentence of death should be vacated and this case remanded for a new trial.
I also disagree with the majority's treatment of defendant's contention that the trial court erred by allowing the prosecutor, during voir dire, to "stake out" the jurors by obtaining commitments from them to disregard defendant's intoxication in determining the existence of premeditation and deliberation and to
reject his voluntary intoxication defense. The purpose of voir dire examination of prospective jurors is to secure an impartial jury. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978). To assure that end, this Court has repeatedly held it improper for counsel to "stake out" jurors during voir dire by posing hypothetical questions designed to elicit in advance what a juror's decision will be under a certain state of evidence or upon a given state of facts. See, e.g., State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985); State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1981); State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), modified as to death penalty, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976).
The prosecutor asked the prospective jurors "if it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you in your opinion to have sympathy for him and allow that sympathy to affect your verdict?" The jurors assured the prosecutor that they would not let that fact influence their decision. Further, at the sentencing stage, the prosecutor stated "he was drinking liquor and I told you before you were chosen as a juror that if it is shown that he's intoxicated, were you going to have sympathy, sympathetic to his cause. As I recall, you said you wouldn't."
Allowing the prosecutor to seek and obtain commitments from the jurors was tantamount to asking them to ignore evidence of intoxication in reaching their verdict and in determining the appropriate sentence. The evidence of defendant's intoxication was overwhelming. Deputy Sheriff Lambert went to defendant's home in response to a report that defendant was drunk and firing a shotgun. Deputy Lambert testified that defendant wo
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