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North Carolina v. McKoy9/7/1988
, would this cause you to have sympathy for him and allow that sympathy to ffect your verdict?
Each juror responded negatively to the question.
Counsel is allowed wide latitude in examining jurors on voir dire; regulation of the form of the questions lies within the trial court's discretion. State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975), modified as to death penalty, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976). A defendant seeking to establish reversible error must demonstrate prejudice as well as a clear abuse of that discretion. State v. Avery, 315 N.C. 1, 20, 337 S.E.2d 786, 797 (1985).
In Vinson, we explained:
ypothetical questions so phrased as to be ambiguous and confusing or containing incorrect or inadequate statements of the law are improper and should not be allowed. Counsel may not pose hypothetical questions designed to elicit in advance what the juror's decision will be under a certain state of the evidence or upon a given state of facts. . . . The court should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote, under a given state of facts.
Types of questions which have been considered improper include "those asking a juror what his verdict would be if the evidence were evenly balanced; if he had a reasonable doubt of a defendant's guilt; if he were convinced beyond a reasonable doubt of a defendant's guilt; or questions asking him
whether he would, in a specified hypothetical situation, vote in favor of the death penalty. . . ."
Vinson, 287 N.C. at 336-37, 215 S.E.2d at 68 (citations omitted); accord State v. Avery, 315 N.C. at 20, 337 S.E.2d at 797.
The questions here were properly allowed as an inquiry into the jurors' sympathies toward an intoxicated person. They did not contain incorrect or inadequate statements of law, nor were they ambiguous or confusing. Moreover, they did not tend to "stake out" the jurors as to their potential verdict or how they would vote under a given state of facts. The questions did not "fish for answers to legal questions before the judge ha instructed the jury." State v. Clark, 319 N.C. 215, 221, 353 S.E.2d 205, 208 (1987).
Addressing the propriety of similar questions, our Court of Appeals has upheld the State's questioning prospective jurors as to whether they could be fair and impartial in a case involving a proposed sale of marijuana. State v. Williams, 41 N.C. App. 287, 254 S.E.2d 649, disc. rev. denied, 297 N.C. 699, 259 S.E.2d 297 (1979). It held that the State's questions tended only to "secure impartial jurors," while not causing them to commit to a future course of action. Id. at 291-92, 254 S.E.2d at 653.
As in Williams, the prosecutor here was simply inquiring into the sympathies of prospective jurors in the exercise of his right to secure an unbiased jury. See State v. Lee, 292 N.C. 617, 621, 234 S.E.2d 574, 577 (1977) (State entitled to unbiased jury; primary purpose of voir dire is to secure such). A promise not to sympathize with a defendant because of his intoxication is not the equivalent of a commitment to ignore the effect of intoxication in the resolution of legal issues. The questions and responses did not "stake out" the juror
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