ARTICLE 1. Jury Commissions, Preparation of Jury Lists, and Drawing of Panels.

Sec.

§ 9-1. Jury commission in each county; membership; selection; oath; terms; expenses of jury system.

Not later than July 1, 1967, there shall be appointed in each county a jury commission of three members. One member of the commission shall be appointed by the senior regular resident superior court judge, one member by the clerk of superior court, and one member by the board of county commissioners. The appointees shall be qualified voters of the county, and shall serve for terms of two years. Appointees may be reappointed to successive terms. A vacancy in the commission shall be filled in the same manner as the original appointment, for the unexpired term. Each commissioner shall take an oath or affirmation that, without favor or prejudice, he will honestly perform the duties of a member of the jury commission during his term of service. The compensation of commissioners shall be fixed by the board of county commissioners, and shall be paid from the general fund of the county. All expenses necessary to carry out the provisions of this Chapter and to administer the jury system, including all data processing, document processing, supplies, postage, and other similar expenses, except as otherwise provided in this Chapter, shall be paid from the general fund of the county, except that the clerk of superior court shall furnish clerical or other personnel assistance, as the commission may reasonably require.

History

(1967, c. 218, s. 1; 1981, c. 720, s. 3; 1991, c. 729, s. 1.)

Legal Periodicals. - For case law survey as to jury composition and unfair tribunal, see 45 N.C.L. Rev. 927 (1967).

For comment discussing the constitutionality of North Carolina's nuisance abatement statute, see 61 N.C.L. Rev. 685 (1983).

For article, "Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims,” see 68 Duke L.J. Online 149 (2019).

CASE NOTES

Deviations from the statutory norm do not automatically constitute reversible error absent an express statutory provision to the contrary. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

In order to justify a motion to quash an indictment upon grounds that statutory procedures were violated in the compilation of the jury list, a party must show corrupt intent, systematic discrimination in the compilation of the list, or irregularities which affect the actions of the jurors actually drawn and summoned. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

Compilation of Jury List by Two-Person Commission. - Defendant failed to present any evidence that the two-person commission which acted when the third commissioner was killed acted with corrupt intent, or that the use of a two-person instead of three-person commission resulted in either systematic discrimination in the compilation of the jury list or irregularities which affected the actions of the jurors actually drawn and summoned. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

Cited in State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977); State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978); State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982); State v. Moore, 100 N.C. App. 217, 395 S.E.2d 434 (1990); Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222 (2001).


§ 9-2. Preparation of master jury list; sources of names.

  1. It shall be the duty of the jury commission during every odd-numbered year to prepare a master list of prospective jurors qualified under this Chapter to serve in the biennium beginning on January 1 of the next year. Instead of providing a master list for an entire biennium, the commission may prepare a master list each year if the senior regular resident superior court judge requests in writing that it do so.
  2. In preparing the master list, the jury commission shall use the list of registered voters and persons with drivers license records supplied to the county by the Commissioner of Motor Vehicles pursuant to G.S. 20-43.4. The commission may use fewer than all the names from the list if it uses a random method of selection. The commission may use other sources of names deemed by it to be reliable.
  3. ,   (d) Repealed by Session Laws 2003-226, s. 7(d), effective January 1, 2004.
  4. The jury commission shall merge the entire list of names of each source used and randomly select the desired number of names to form the master list.
  5. The master list shall contain not less than one and one-quarter times and not more than three times as many names as were drawn for jury duty in all courts in the county during the previous biennium, or, if an annual list is being prepared as requested under subsection (a) of this section the master list shall contain not less than one and one-quarter times and not more than three times as many names as were drawn for jury duty in all courts in the county during the previous year but in no event shall the list include fewer than 500 names, except that in counties in which a different panel of jurors is selected for each day of the week, there is no limit to the number of names that may be placed on the master list.
  6. Repealed by Session Laws 2003-226, s. 7(d), effective January 1, 2004.
  7. As used in this section "random" or "randomly" refers to a method of selection that results in each name on a list having an equal opportunity to be selected.
  8. To facilitate random selection of jurors, all the names on the master list may be sorted into random order before the first panel is drawn. Thereafter, names may be selected sequentially from the randomized list without further randomization, except as required by G.S. 15A-1214.
  9. The procedure for performing the preparation of the master list shall be in writing, adopted by the jury commission, and kept available for public inspection in the office of the clerk of court. The procedure must effectively preserve the authorized grounds for disqualification, the right of public access to the master list of prospective jurors as provided by G.S. 9-4, and the time sequence for drawing and summoning a jury panel.
  10. In counties utilizing electronic data processing equipment, the functions of preparing and maintaining custody of the master list of prospective jurors, the procedure for drawing and summoning panels of jurors, and the procedure for maintaining records of names of jurors who have served, been excused or disqualified, or whose service has been deferred may be performed by this equipment, except that decisions as to mental or physical competence of prospective jurors shall continue to be made by jury commissioners.

History

(1806, c. 694, P.R.; Code, ss. 1722, 1723; 1889, c. 559; 1897, cc. 117, 539; 1899, c. 729; Rev., s. 1957; C.S., s. 2312; 1947, c. 1007, s. 1; 1967, c. 218, s. 1; 1969, c. 205, s. 1; c. 1190, s. 49 1 / 2 ; 1973, c. 83, ss. 1, 2; 1981, c. 430, s. 1; c. 720, s. 1; 1981 (Reg. Sess., 1982), c. 1226, s. 1; 1983, c. 197, s. 2; 2003-226, s. 7(d); 2007-512, s. 1; 2012-180, s. 1.)

Editor's Note. - Sessions Laws 2021-47, s. 2, provides: "Notwithstanding G.S. 9-2(f), the master jury list for the 2022-2023 biennium shall contain not less than one and one-quarter times and not more than three times as many names as were drawn for jury duty in all courts in the county during the 2018-2019 biennium if the jury commission determines that those numbers would be more representative of the required number of jurors than the number of names drawn during the previous biennium. Notwithstanding G.S. 9-2(f), in a county preparing an annual master jury list for 2022 as authorized by G.S. 9-2(a), the master jury list shall contain not less than one and one-quarter times and not more than three times as many names drawn during 2019 if the jury commission determines that those numbers would be more representative of the required number of jurors than the number of names drawn during the previous year. A master jury list for the 2022-2023 biennium or for the 2022 year shall not include fewer than 500 names. In counties in which a different panel of jurors is selected for each day of the week, there is no limit to the number of names that may be placed on the master jury list for the 2022-2023 biennium or 2022 year."

Sessions Laws 2021-47, s. 18, contains a severability clause.

Effect of Amendments. - Session Laws 2007-512, s. 1, effective October 1, 2007, added the second sentence in subsection (b).

Session Laws 2012-180, s. 1, effective July 12, 2012, in the section catchline, added "master"; in subsection (a), added "master" three times, and substituted "during every" for "on July 1 of every"; in subsection (b), added "master" in the first sentence, and deleted the second sentence, which read: "The commission shall remove from the list the names of those residents of the county who are recently deceased, which shall be supplied to the commission by the State Registrar under G.S. 130A-121(a)."; substituted "master list" for "jury list" once in subsection (e) and three times in subsection (f); and added subsections (i) through (k).

Legal Periodicals. - As to racial discrimination in selection of jury, see 26 N.C.L. Rev. 185 (1948).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the annotations under this section are from cases decided prior to the 1981 amendments.

The plan in this section for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

Constitutionality of Former Chapter. - See State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

Power of State to Prescribe Qualifications of Jurors. - Absent discrimination by race or other identifiable group or class, a State is at liberty to prescribe such qualifications for jurors as it deems proper without offending U.S. Const., Amend. XIV. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

The legislative intent of this section is to provide a system for objective selection of veniremen. State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).

The procedure set forth in this Article is objective and systematic. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980).

Technical and insubstantial violations of the statutes regulating jury selection in this Chapter are not sufficient to vitiate a jury list or afford a challenge to the array. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Deviations from the statutory norm do not automatically constitute reversible error absent an express statutory provision to the contrary. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

In order to justify a motion to quash an indictment upon grounds that statutory procedures were violated in the compilation of the jury list, a party must show corrupt intent, systematic discrimination in the compilation of the list, or irregularities which affect the actions of the jurors actually drawn and summoned. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

Provisions of Former G.S. 9-1 as to Jury List Directory and Not Mandatory. - See State v. Smarr, 121 N.C. 669, 28 S.E. 549 (1897); State v. Perry, 122 N.C. 1018, 29 S.E. 384 (1898); State v. Bonner, 149 N.C. 519, 63 S.E. 84 (1908); State v. Brown, 233 N.C. 202, 63 S.E.2d 99, cert. denied, 341 U.S. 943, 71 S. Ct. 997, 95 L. Ed. 1369 (1951); State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Special Statute Allowing Other Method. - Where a statute creating a special criminal court for certain counties allows every facility to the accused for getting a fair and impartial jury, it is not unconstitutional because it does not follow the same methods of drawing the jury which are provided for by the superior courts. State v. Jones, 97 N.C. 469, 1 S.E. 680 (1887).

The trial judge in a murder trial did not err in denying defendant's motion for funds to employ a statistician to review the jury venire in the county over a substantial period of time to determine whether the jury commission failed to perform its statutory duty when compiling the jury venire from which defendant's jury would be selected where defendant presented no evidence that the new jury selection process in the county was discriminatory, or that the services of a statistician would have resulted in the selection of a more favorable jury. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Applied in State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63 (1973); State v. Hubbard, 19 N.C. App. 431, 199 S.E.2d 146 (1973); State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. Corpening, 129 N.C. App. 60, 497 S.E.2d 303 (1998); State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Cited in Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92 (1970); State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978); State v. Mayes, 323 N.C. 159, 371 S.E.2d 476 (1988); Armstrong v. North Carolina State Bd. of Dental Exmrs., 129 N.C. App. 153, 499 S.E.2d 462 (1998), cert. denied, 525 U.S. 1103, 119 S. Ct. 869, 142 L. Ed. 2d 770 (1999).

II. SOURCES OF LIST.

A jury commission is not limited to the sources specifically designated by this section. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Selection of Names only from Certain Letters of Alphabet. - Names for the list of grand and petit jurors were not chosen arbitrarily or nonsystematically in violation of this section where every fourth name from the tax list was taken only from the letters A, B, C, D and M rather than from the entire alphabet. However, the practice of choosing names only from certain letters of the alphabet is not approved, since this section seems to contemplate systematic selection of names from the entire alphabet. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).

Jury List Not Discriminatory Because Made from Tax List. - A jury list is not discriminatory merely because it is made from the tax list. The tax list is perhaps the most comprehensive list available for the names of male citizens. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Even if the tax lists contained a disproportionate male-female ratio, such disproportion did not result from a systematic, arbitrary and intentionally discriminatory process on the part of the jury commission. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

But commissioners are not limited to use of tax list, and the use of other lists might result in the selection of more women jurors. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

Failure to Use List of Names Not Appearing on Tax Lists. - The fact that the county commissioners did not also use a list of names of persons who do not appear on the tax lists does not show racial discrimination in the selection of prospective jurors. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

Use of a jury box containing only the names of property owners is not per se discriminatory as to race and does not unfairly narrow the choice of jurors so as to impinge defendant's statutory or constitutional rights. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

Mere irregularity on the part of the jury commissioners in preparing the jury list, unless obviously, designedly or intentionally discriminatory, will not vitiate the list or afford a basis for a challenge to the array. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

Jury Commission Need Not Ascertain Validity of Procedures Used in Compiling Lists. - To hold that a jury commission must ascertain the validity of the procedures used by independent bodies in compiling tax and voter registration lists before using such lists as sources of names of prospective jurors would be to impose an impossible burden. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

Removal of Certain Names from Lists. - Where commissioners laid aside names of several persons, otherwise qualified, because they did not know whether they were residents of the county, and the jury list was completed by the names of other duly qualified persons, if there was any irregularity it did not affect the action of the jurors so drawn and summoned. State v. Wilcox, 104 N.C. 847, 10 S.E. 453 (1889) (decided under former G.S. 9-1).

Merely purging the jury list of the names of those who had not paid their taxes, without adding any new names thereto, does not vitiate the venire in the absence of bad faith or corruption on the part of the county commissioners. State v. Dixon, 131 N.C. 808, 42 S.E. 944 (1902) (decided under former G.S. 9-1).

Rejection of prospective jurors for want of good moral character and sufficient intelligence was available to the county commissioners as a general objection only when the jury list was being prepared, and not after the names were in the box. State v. Speller, 229 N.C. 67, 47 S.E.2d 537 (1948); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

Compilation of List in 1981. - Commission was not required to use as a source of names the list of licensed drivers residing in the county, where in accord with subsection (a) of this section, the jury list for the county for the biennium beginning January 1, 1982, was compiled November 23 and 24, 1981, as at that time subsection (c) of this section was not in effect, even though the trial began in October 1983. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

III. PROOF OF DISCRIMINATION.

.

Discrimination on Account of Race. - See State v. Daniels, 134 N.C. 641, 46 S.E. 743 (1904); State v. Brown, 233 N.C. 202, 63 S.E.2d 99, cert. denied, 341 U.S. 943, 71 S. Ct. 997, 95 L. Ed. 1369 (1951); Miller v. State, 237 N.C. 29, 74 S.E.2d 513, cert. denied, 345 U.S. 930, 73 S. Ct. 792, 97 L. Ed. 1360 (1953); Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

How Prima Facie Case of Purposeful Discrimination Established. - The petitioner has the initial burden of establishing a prima facie case of purposeful discrimination. A prima facie case of jury discrimination can be established through a showing of a substantial disparity between the percentage of black residents in the county as a whole and on the jury lists, or by a showing of such disparity between the percentages of black residents on the tax rolls, from which the jury lists are drawn, and on the jury lists. Such a showing is strengthened where the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

The disparity between the percentage of black residents over 21 years of age in a county (45.5%) and on the jury list (4.5%) constituted a prima facie case of systematic exclusion of black residents from the county grand and petit jury lists. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

To establish a prima facie case of systematic racial exclusion, defendants are generally required to produce not only statistical evidence establishing that black residents were underrepresented on the jury, but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few black residents have served on the juries of the county notwithstanding a substantial black population therein, or both. State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

In order to establish a prima facie case that there has been a violation of the requirement that a jury be composed of persons who represent a fair cross section of the community, defendant must document that the group alleged to have been excluded is a distinctive group; that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and that this underrepresentation is due to systematic exclusion of the group in the jury selection process. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Distinctiveness of Excluded Group. - In determining whether a group is distinctive or cognizable for the purpose of a challenge to a jury selection plan, three factors which must be considered are whether there is some quality or attribute in existence which defines or limits the membership of the alleged group, whether there is a cohesiveness of attitudes, ideas, or experiences which serves to distinguish the purported group from the general social mileau, and whether a community of interest must be present within the alleged group which may not be represented by other segments of the populace. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

The North Carolina Supreme Court does not recognize "young people" between the ages of 18 and 29 as a distinct group for the purpose of determining whether a jury panel represents a fair cross section of the community. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Effect of State's Failure to Justify Disparity. - If a prima facie case of jury discrimination is proven, the State must justify the disparity. However, the State's failure to do so does not mean that a guilty defendant must go free. The State may indict and try him again by the procedure which conforms to constitutional requirements. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

Sample of 40 Jurors Insufficient. - A small sample of 40 jurors from the master list of jurors of a county alone was insufficient to establish a systematic exclusion of blacks from the jury pool. State v. McNeill, 326 N.C. 712, 392 S.E.2d 78 (1990).

Discrimination Not Established. - There was no systematic exclusion of blacks, women and 18- through 21-year-olds where jury commissions used a neutral systematic selection procedure (e.g., every 6th name) in selecting names from the source lists as required by this section, and it appeared that the only criteria used in striking names from the jury lists were the permissible disqualifications set out in G.S. 9-3. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

Although the defendant's proof showed that during the period in question blacks made up 17.1 percent of the jury pool but 31.1 percent of the county's population, and young people between the ages of 18 and 29 made up 22.5 percent of the jury pool but 33.3 percent of the county's population, the defendant failed to show that such misrepresentation was the result of a systematic exclusion of those groups by the jury selection process, since the jury commission had fairly and reasonably selected every second name from the county tax listing and every third name from the county voter registration list. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Where the evidence showed that jury lists were compiled in strict compliance with this section, the mere fact that only 15 percent of the jury pool was black in a county in which the population was 24 percent black was insufficient to show systematic discrimination. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 104 S. Ct. 37, 77 L. Ed. 2d 1456 (1983).

Where defendant failed to present evidence showing a gross discrepancy between the percentage of non-whites in a jury venire randomly selected by computer from the county voter registration list prescribed by this section as a master list, defendant's challenges under U.S. Const., Amends. VI and XIV to the grand jury and petit jury venire would be rejected. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), aff'd, 315 N.C. 1, 383 S.E.2d 591 (1989).

Where although the jury commissioners failed to strictly comply with this section and G.S. 9-2.1 [now repealed] and 9-5, all of the evidence tended to negate any corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned, and the trial judge found, on competent evidence, that the jurors were randomly selected, both from the voter list and the driver's license list, and that the selection of the master jury list was in substantial compliance with the law, there was no justification for a dismissal of the indictment or challenge to the array on grounds that statutory procedures were violated in the compilation of the jury list. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Requiring Defense Counsel to Investigate Jury Selection Procedures. - It places no undue burden on defense counsel to require them to make investigations into jury composition and selection procedures with regard to possible systematic racial exclusion prior to the time of trial, so long as the time between retention or appointment of counsel, the date the jury panel is drawn, and the date of trial is not so brief as to make such investigation impractical. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

Reasonable Time Allowed Defendant to Investigate Improper Procedures. - A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic exclusion of black persons because of their race from serving on the grand or petit jury in his case. Whether he was afforded a reasonable time and opportunity must be determined from the facts in each particular case. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

IV. DECIDED UNDER FORMER G.S. 9-2.1

.

To establish a prima facie case of violation of the requirement that a jury be composed of persons who represent a fair cross-section of the community, the defendant must document (1) that the group alleged to have been excluded is a distinctive group, (2) that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676 (1986).

Noncompliance with Statutory Requirement Not Necessarily Discrimination. - Where defendant did no more than allege that the requirement in this section that the procedure for composing the jury list be available for public inspection in the clerk's office was violated, defendant did not make a prima facie case of discrimination. The mere failure to follow the statutory requirement, without a showing or allegation of how such failure affected defendant, is not a sufficient basis to quash the jury list. State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676 (1986).

Discrimination Not Established. - Where although the jury commissioners failed to strictly comply with this section and G.S. 9-2 and 9-5, all of the evidence tended to negate any corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned, and the trial judge found, on competent evidence, that the jurors were randomly selected, both from the voter list and the driver's license list, and that the selection of the master jury list was in substantial compliance with the law, there was no justification for a dismissal of the indictment or challenge to the array on this basis that statutory procedures were violated in the compilation of the jury list. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Surgeon in a malpractice action was not prejudiced by the use of the alternative method for selecting a jury pool authorized by G.S. 9-2.1 merely because civilian employees of the county sheriff's office entered a password that commanded data processing equipment to randomly produce a list of prospective jurors. Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222 (2001).

Opinions of Attorney General

Use of Less Than All Names on Tax and Voter Registration Lists. - See opinion of Attorney General to Mr. Fred P. Parker, Wayne County Attorney, 40 N.C.A.G. 129 (1969).

Commission's Control of List Ceases Upon Preparation of List. - See opinion of Attorney General to Honorable Louise S. Allen, 42 N.C.A.G. 260 (1973).

§ 9-2.1: Repealed by Session Laws 2012-180, s. 2, effective July 12, 2012.

History

(1977, c. 220, s. 1; 1981, c. 430, s. 3; 1985, c. 368; repealed by 2012-180, s. 2, effective July 12, 2012.)

Editor's Note. - Former G.S. 9-2.1 pertained to the alternate procedure for jury selection in certain counties.

§ 9-3. Qualifications of prospective jurors.

All persons are qualified to serve as jurors and to be included on the master jury list who are citizens of the State and residents of the county, who have not served as jurors during the preceding two years or who have not served a full term of service as grand jurors during the preceding six years, who are 18 years of age or over, who are physically and mentally competent, who can understand the English language, who have not been convicted of a felony or pleaded guilty or nolo contendere to an indictment charging a felony (or if convicted of a felony or having pleaded guilty or nolo contendere to an indictment charging a felony have had their citizenship restored pursuant to law), and who have not been adjudged non compos mentis. Persons not qualified under this section are subject to challenge for cause.

History

(1806, c. 694, P.R.; Code, ss. 1722, 1723; 1889, c. 559; 1897, cc. 117, 539; 1899, c. 729; Rev., s. 1957; C.S., s. 2312; 1947, c. 1007, s. 1; 1967, c. 218, s. 1; 1971, c. 1231, s. 1; 1973, c. 230, ss. 1, 2; 1977, c. 711, s. 10; 2011-42, s. 1; 2012-180, s. 3; 2013-148, s. 1.)

Cross References. - For constitutional provision relating to jury service, see N.C. Const., Art. I, § 26.

Effect of Amendments. - Session Laws 2011-42, s. 1, effective July 1, 2011, deleted "hear and" preceding "understand the English language" near the middle of the section.

Session Laws 2012-180, s. 3, effective July 12, 2012, inserted "master" before "jury list".

Session Laws 2013-148, s. 1, effective January 1, 2014, inserted "or who have not served a full term of service as grand jurors during the preceding six years" in the first sentence.

CASE NOTES

The North Carolina plan which imposes a two-year lapse in preparation of new jury lists is constitutional and provides a jury system completely free of discrimination to any cognizable group. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, appeal dismissed, 281 N.C. 761, 191 S.E.2d 363 (1972).

Constitutionality of Excusal Based on Language. - An excusal, under this section, based on a juror's inability to understand the English language, is not a violation of N.C. Const., Article 1, § 26. State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

Excuse Based on Age. - Statutory scheme allowing trial judge to exercise his discretion to excuse jurors over the age of 65 has a rational basis and is not constitutionally infirm. State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve, and while such a juror had a right under G.S. 9-6.1 to request an exemption, the trial judge had discretion whether to excuse any juror. The language of G.S. 9-6.1 and 9-6(a) gave the court considerable latitude to deal with prospective jurors and particular problems, and the trial judge, after questioning the prospective juror, genuinely exercised his judicial discretion in refusing to excuse her. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve, and while such a juror had a right under G.S. 9-6.1 to request an exemption, the trial judge had discretion whether to excuse any juror. Judge asked juror if she was able to sit and listen to the evidence, she said that she was, and the court did not abuse its discretion in not excusing her. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve. It was also clear from the text of G.S. 9-3, 9-6(a), and 9-6.1, that whether a juror should be excused from jury service is a decision which rests in the sound discretion of the trial court, and after questioning the prospective juror as to whether or not she thought that she could sit and listen to the evidence, the trial court did not abuse its discretion in allowing her to sit as a juror. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

Inability to Understand English. - The defendant was not entitled to a mistrial after a prospective juror who responded to two of the prosecutor's questions in Spanish was excused for cause, because his subsequent English responses revealed that his inability to understand English made him unqualified to serve as a juror under this section; any arguable error in not ordering the minimal dialogue in Spanish to be translated for the record was, given the wholly proper excusal, without prejudicial effect. State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

The law guarantees the right of trial by a proper jury; that is to say, a jury possessing the qualifications contemplated by law. It was the manifest purpose of the legislature that all those and only those citizens who possess the proper qualifications of character and intelligence should be selected to serve on juries. State v. Ingram, 237 N.C. 197, 74 S.E.2d 532 (1953).

Mere Showing of Violation of Statutory Procedures Does Not Merit Quashing Indictment. - In the absence of statutory language indicating that preparation of jury lists shall be void if the directions of the act be not strictly observed, a mere showing of a violation of the statutory procedures will not merit the quashing of an indictment. State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S. Ct. 2060, 60 L. Ed. 2d 665 (1979).

Corrupt Intent, Discrimination or Irregularities Must Be Shown. - In order to justify a dismissal of an indictment on grounds that statutory procedures were violated in the compilation of the jury list, a party must show either corrupt intent, discrimination, or irregularities which affect the actions of the jurors actually drawn and summoned. State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S. Ct. 2060, 60 L. Ed. 2d 665 (1979).

And even a showing that certain qualified persons were improperly disqualified would not require a dismissal of an indictment absent a showing of corrupt intent or systematic discrimination in the compilation of the list, or a showing of the presence upon the grand jury itself of a member not qualified to serve. State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S. Ct. 2060, 60 L. Ed. 2d 665 (1979).

The judge is not required to make findings in the absence of evidence that any qualified person was excluded from jury service, and in the absence of contradictory and conflicting evidence as to the material facts. State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S. Ct. 2060, 60 L. Ed. 2d 665 (1979).

There was no systematic exclusion of blacks, women and 18- through 21-year-olds where jury commissions used a neutral systematic selection procedure (e.g., every 6th name) in selecting names from the source lists as required by G.S. 9-2, and it appeared that the only criteria used in striking names from the jury lists were the permissible disqualifications set out in this section. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

In order for a defendant to preserve his exception to the court's denial of a challenge for cause, he must (1) excuse the challenged juror with a peremptory challenge, (2) exhaust his peremptory challenges before the panel is completed, and (3) thereafter seek, and be denied peremptory challenge to an additional juror. State v. Spencer, 37 N.C. App. 739, 246 S.E.2d 837 (1978).

Mere Summons Does Not Disqualify Person for Two Years. - It is actual service as a juror rather than a mere summons for jury duty which disqualifies him for service for the next two years. State v. Berry, 35 N.C. App. 128, 240 S.E.2d 633, cert. denied, 294 N.C. 737, 244 S.E.2d 155 (1978).

The absence from the jury list of the names of persons between the ages of 18 and 21 during the period from July 21, 1971, the effective date of the amendment of this section lowering the age requirement for jurors from 21 years to 18 years, and September 21, 1971, the date of defendant's trial, was not unreasonable and did not constitute systematic exclusion of this age group from jury service. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Harris, 281 N.C. 542, 189 S.E.2d 249 (1972); State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, cert. denied, 283 N.C. 106, 194 S.E.2d 634 (1973).

The petit jury which served at the trial of a 20-year-old defendant was not invalidated by the fact that the jury list had not been revised to include the names of persons under 21 years of age. State v. Long, 14 N.C. App. 508, 188 S.E.2d 690 (1972).

Alienage. - Alienage is disqualification of a juror. Hinton v. Hinton, 196 N.C. 341, 145 S.E. 615 (1928).

Juror No Longer Resident of County. - Trial court properly executed its authority under G.S. 15A-1211(b) to determine that a prospective juror failed to meet the statutory requirements to sit as a juror in a trial; the court excused the prospective juror from the jury because she was no longer a resident of the county where the trial took place. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Defendant waived any challenge to the fact that a juror was not a resident of Durham County by failing to object at trial as required by G.S. 9-3. State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21.

That a juror had forfeited his citizenship by reason of conviction of a criminal offense was ground for challenge of the juror for cause under former G.S. 9-1. Young v. Southern Mica Co., 237 N.C. 644, 75 S.E.2d 795 (1953).

Challenges in Particular Actions for Bias, etc. - Former G.S. 9-1, providing that good and lawful men, required by the Constitution to serve on juries, should be men found by the county commissioners to have paid taxes for the preceding year, of good moral character, and of sufficient intelligence, did not abolish challenges to jurors, in particular actions, for bias, interest, kinship, etc. State v. Vick, 132 N.C. 995, 43 S.E. 626 (1903).

Juror Must Qualify to Be Sworn in at the Beginning of Court. - Court committed no error in excusing a juror, where the transcript revealed that at the time jury selection commenced, the juror had previously served on a federal jury within two years and was not immediately qualified to serve in the instant case; the court could not, as defendant suggested, move the juror to a later panel and then swear her in at the time she was called. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Dismissal of Jurors Held Harmless. - The court's dismissal of six prospective jurors after unrecorded, private bench discussions was harmless where the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. State v. Cummings, 353 N.C. 281, 543 S.E.2d 849 (2001).

Waiver - On appeal from defendant's convictions on charges of first-degree murder and robbery with a firearm, the state supreme court refused to consider defendant's argument that the trial court erred by dismissing a juror for cause after the juror informed the court that he was convicted in Texas of committing several felonies in the 1970s, because defendant did not raise the argument that the juror's citizenship rights were restored by G.S. 13-1(5), when the trial court dismissed the juror for cause. State v. Haselden, 357 N.C. 1, 577 S.E.2d 594 (2003).

Applied in State v. Hubbard, 19 N.C. App. 431, 199 S.E.2d 146 (1973).

Cited in Glover v. North Carolina, 301 F. Supp. 364 (E.D.N.C. 1969); Broughton v. North Carolina, 717 F.2d 147 (4th Cir. 1983); United States v. McLean, 904 F.2d 216 (4th Cir. 1990); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999).

Opinions of Attorney General

Person's Mental and Physical Competency Must Be Considered Each Time Person's Name Appears on Prospective Jury List. - See opinion of Attorney General to Mr. J.C. Taylor, 43 N.C.A.G. 292 (1973).

§ 9-4. Preparation and custody of alphabetized list; access to list.

  1. As the master jury list is prepared, the name of each qualified person selected for the list shall be recorded and alphabetically arranged. The alphabetized list shall be maintained in the office of the clerk of court,  together with a statement of the sources used and procedures followed in preparing the list. The alphabetized list shall be kept under lock and key, but shall be available for public inspection during regular office hours. The clerk of court may elect to store an electronic copy of the alphabetized list for the county.
  2. Public access to juror information shall be limited to the alphabetized list of the names. The addresses and dates of birth of prospective jurors are confidential and not subject to disclosure without an order of the court.

History

(1967, c. 218, s. 1; 1969, c. 205, s. 2; 2009-518, s. 1; 2012-18, s. 1.1; 2012-180, s. 4; 2013-166, s. 2.)

Effect of Amendments. - Session Laws 2009-518, s. 1, effective August 26, 2009, added the last sentence.

Session Laws 2012-18, s. 1.1, effective July 1, 2012, in the first sentence, substituted "recorded and alphabetically arranged" for "written on a separate card"; deleted the former second and third sentences; in the fourth sentence, substituted "The list" for "They" and "office of the clerk of court" for "register of deeds of the county"; and in the sixth sentence, substituted "clerk of court" for "register of deeds."

Session Laws 2012-180, s. 4, effective July 12, 2012, in the section catchline, substituted "alphabetized list; access to list" for "list"; designated the existing provisions as subsection (a); in subsection (a), added "master", deleted "and address" following "the name", substituted "arranged. The alphabetized list shall be maintained in the office of the clerk of court" for "arranged, written on a separate card. The cards shall then be alphabetized and permanently numbered, the numbers running consecutively with a different number on each card. These cards shall constitute the jury list for the county. The list shall be filed with the office of the clerk of court, register of deeds of the county", added "alphabetized" in the third sentence, and substituted "alphabetized" for "jury" in the fourth sentence; and added subsection (b).

Session Laws 2013-166, s. 2, effective June 19, 2013, added "and dates of birth" in the second sentence of subsection (b).

CASE NOTES

It places no undue burden on defense counsel to require them to make investigations into jury composition and selection procedures with regard to possible systematic racial exclusion prior to the time of trial, so long as the time between retention or appointment of counsel, the date the jury panel is drawn, and the date of trial is not so brief as to make such investigation impractical. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

Reasonable Time Allowed Defendant to Investigate Improper Procedures. - A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic exclusion of black persons because of their race from serving on the grand or petit jury in his case. Whether he was afforded a reasonable time and opportunity must be determined from the facts in each particular case. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).


§ 9-5. Procedure for drawing panel of jurors.

At least 30 days prior to any session or sessions of superior or district court requiring a jury, the clerk of superior court or assistant or deputy clerk shall prepare or have electronically prepared a randomized list of names from the master jury list equal to the number of jurors required for the session or sessions scheduled. The clerk of superior court may decrease the number of randomized names to account for the addition of names of previously selected jurors whose service has been deferred to this session. For each week of a superior court session, the senior resident superior court judge for the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located shall specify the number of jurors to be drawn. For each week of a district court jury session, the chief district judge of the district court district in which the county is located shall specify the number of jurors to be drawn. Pooling of jurors between or among concurrent sessions of various courts is authorized in the discretion of the senior regular resident superior court judge. When pooling is utilized, the senior regular resident superior court judge, after consultation with the chief district judge when a district court jury is required, shall specify the total number of jurors to be drawn for such concurrent sessions. When grand jurors are needed, at least nine additional names shall be drawn.

The clerk of superior court shall either (i) prepare and issue the summonses or (ii) deliver the printed summonses or the list of names and addresses of jurors to the sheriff, who shall issue the summonses in accordance with the provisions of G.S. 9-10(a). The persons so summoned may serve as jurors in either the superior or the district court, or both, for the week for which summoned. Jurors who serve each week shall be discharged at the close of the weekly session or sessions, unless actually engaged in the trial of a case, and then they shall not be discharged until their service in that case is completed.

History

(1806, c. 694, P.R.; 1868-9, c. 9, ss. 5, 6; c. 175; Code, ss. 1726, 1727, 1731; 1889, c. 559; 1897, c. 117; 1901, c. 28, s. 3; c. 636; 1903, c. 11; 1905, c. 38; c. 76, s. 4; c. 285; Rev., ss. 1958, 1959; C.S., ss. 2313, 2314; 1967, c. 218, s. 1; 1969, c. 205, s. 3; 1987 (Reg. Sess., 1988), c. 1037, s. 38; 2012-180, s. 5.)

Effect of Amendments. - Session Laws 2012-180, s. 5, effective July 12, 2012, deleted "; numbers drawn" at the end of the section catchline; deleted the former first and third paragraphs; in the present first paragraph, substituted "assistant or deputy clerk shall prepare or have electronically prepared a randomized list of names from the master jury list" for "his assistant or deputy shall, in public, after thoroughly shaking the box, draw therefrom the number of discs, squares, counters, or markers" in the first sentence, added the second sentence, and substituted "at least nine additional names" for "nine additional numbers" in the last sentence; and, in the present second paragraph, rewrote the former first two sentences as the present first sentence.

CASE NOTES

No language in this Chapter requires the clerk personally, or through an assistant or deputy clerk, to make the random drawing of names of those on the panel from the box so as to render illegal such drawing by someone else. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3204, 49 L. Ed. 2d 1206 (1976).

Former G.S. 9-3 Partly Mandatory and Partly Directory. - See State v. Watson, 104 N.C. 735, 10 S.E. 705 (1889); State v. Perry, 122 N.C. 1018, 29 S.E. 384 (1898); Moore v. Navassa Guano Co., 130 N.C. 229, 41 S.E. 293 (1902); State v. Banner, 149 N.C. 519, 63 S.E. 84 (1908).

Technical and insubstantial violations of the statutes regulating jury selection in this Chapter are not sufficient to vitiate a jury list or afford a challenge to the array. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

No Discrimination Established. - Where although the jury commissioners failed to strictly comply with this section and G.S. 9-2 and 9-2.1 [now repealed], all of the evidence tended to negate any corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned, and the trial judge found, on competent evidence, that the jurors were randomly selected, both from the voter list and the driver's license list, and that the selection of the master jury list was in substantial compliance with the law, there was no justification for a dismissal of the indictment or challenge to the array on the basis that statutory procedures were violated in the compilation of the jury list. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Applicability of Notice Provision. - The thirty day notice provision in this section did not apply to the trial court's selection of supplemental jurors under G.S. 9-11. State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997).


§ 9-6. Jury service a public duty; excuses to be allowed in exceptional cases; procedure.

  1. The General Assembly hereby declares the public policy of this State to be that jury service is the solemn obligation of all qualified citizens, and that excuses from the discharge of this responsibility should be granted only for reasons of compelling personal hardship or because requiring service would be contrary to the public welfare, health, or safety.
  2. Pursuant to the foregoing policy, each chief district court judge shall promulgate procedures whereby he or any district court judge of his district court district designated by him, prior to the date that a jury session (or sessions) of superior or district court convenes, shall receive, hear, and pass on applications for excuses from jury duty. The procedures shall provide for the time and place, publicly announced, at which applications for excuses will be heard, and prospective jurors who have been summoned for service shall be so informed. In counties located in a district or set of districts as defined in G.S. 7A-41.1(a) which have a trial court administrator, the chief district judge may assign the duty of passing on applications for excuses from jury service to the administrator. In all cases concerning excuses, the clerk of court or the trial court administrator shall notify prospective jurors of the disposition of their excuses.
  3. A prospective juror who is summoned for jury service in a session of court scheduled during a period of time when the prospective juror is taking classes or exams as a full-time student enrolled at an out-of-state postsecondary public or private educational institution, including any out-of-state trade or professional institution, college, or university, shall be excused from jury service upon request made pursuant to G.S. 9-6.1(a) and supported by documentation showing enrollment at the out-of-state educational institution.
  4. A prospective juror excused by a judge in the exercise of the discretion conferred by subsection (b) of this section or excused pursuant to subsection (b1) of this section may be required by the judge to serve as a juror in a subsequent session of court. If required to serve subsequently, the juror shall be considered on such occasion the same as if he were a member of the panel regularly summoned for jury service at that time.
  5. A judge hearing applications for excuses from jury duty shall excuse any person disqualified under § 9-3.
  6. The judge shall inform the clerk of superior court of persons excused under this section, and the clerk shall keep a record of excuses separate from the master jury list.
  7. The discretionary authority of a presiding judge to excuse a juror at the beginning of or during a session of court is not affected by this section.

History

(1967, c. 218, s. 1; 1969, c. 205, ss. 4, 5; 1971, c. 377, s. 30; 1979, 2nd Sess., c. 1207, s. 1; 1981, c. 430, s. 2; 1985, c. 609, s. 2; 1987 (Reg. Sess., 1988), c. 1037, s. 47; 2012-180, s. 6; 2015-210, s. 2.)

Effect of Amendments. - Session Laws 2012-180, s. 6, effective July 12, 2012, substituted "shall keep a record of excuses separate from the master" for "within 10 days shall so notify the register of deeds, who shall note the excuse on the juror's card and file it separately from the" in subsection (e).

Session Laws 2015-210, s. 2, effective August 11, 2015, and applicable to requests for excusal from jury service made on or after that date, added subsection (b1); and inserted "of this section or excused pursuant to subsection (b1) of this section" in the first sentence of subsection (c).

Legal Periodicals. - For article, "Filling the Box: Responding to Jury Duty Avoidance," see 23 N.C. Cent. L.J. 1 (1997).

CASE NOTES

Communication which constitutes harassment of jurors is not protected speech. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001).

Judges' Power to Excuse Jurors. - Although subsection (f) of this section provides that superior court judges have the power to excuse jurors, this power must be exercised within the constraints of constitutional requirements. State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992).

This section places the process of juror excusals within the discretion of the district court judge, and a defendant is not entitled to a new trial for improper jury excusals in the absence of evidence of corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned. State v. Leary, 344 N.C. 109, 472 S.E.2d 753 (1996).

Decisions concerning the excusal of prospective jurors are matters of discretion left to the trial court. State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, 522 U.S. 1125, 118 S. Ct. 1072, 140 L. Ed. 2d 131 (1998).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve. It was also clear from the text of G.S. 9-3, 9-6(a), and 9-6.1, that whether a juror should be excused from jury service is a decision which rests in the sound discretion of the trial court, and after questioning the prospective juror as to whether or not she thought that she could sit and listen to the evidence, the trial court did not abuse its discretion in allowing her to sit as a juror. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve, and while such a juror had a right under G.S. 9-6.1 to request an exemption, the trial judge had discretion whether to excuse any juror. The language of G.S. 9-6(a) gave the court considerable latitude to deal with prospective jurors and particular problems, and the trial judge, after questioning the prospective juror, genuinely exercised his judicial discretion in refusing to excuse her. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

Excuse Based on Age. - Statutory scheme allowing trial judge to exercise his discretion to excuse jurors over the age of 65 has a rational basis and is not constitutionally infirm. State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).

Failure to Strictly Comply with Section Not Grounds for New Trial. - Although it was clear that the district court judge failed to strictly comply with the provisions of this section governing the excusal of jurors, the alleged statutory irregularities did not constitute error; defendant was not entitled to a new trial because the evidence tended to negate any corrupt intent, discrimination or irregularities which affected the action of the jurors actually drawn and summoned. State v. Murdock, 325 N.C. 522, 385 S.E.2d 325 (1989).

But Compliance with Section Suggested. - Although the actions of the trial judge did not result in error, the Supreme Court would suggest that district court judges excuse jurors only in keeping with the language and the spirit of this section. State v. Murdock, 325 N.C. 522, 385 S.E.2d 325 (1989).

Admonishment of Juror. - It is not improper for a judge to admonish a prospective juror for taking a position solely for the purpose of being excused from jury duty. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

The selection process authorized by subsection (b) is essentially a pretrial screening process which is delegated to the district court, rather than a part of the capital trial. State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert denied, 517 U.S. 1110, 116 S. Ct. 1332, 134 L. Ed. 2d 482 (1996).

Right to Be Present at Pretrial Jury Selection. - The Supreme Court declined to extend the unwaivable right to be present at every stage of a capital trial to pretrial jury selection matters. State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert denied, 517 U.S. 1110, 116 S. Ct. 1332, 134 L. Ed. 2d 482 (1996).

The Dismissal of Jurors Outside of Defendant's Presence Before Trial Upheld. - The trial court did not commit error in excusing prospective jurors prior to the calling of defendant's case as the defendant had no right to be present at that time because his trial had not yet begun. Furthermore, the defendant failed to demonstrate corrupt intent or that he was prejudiced by the jury that was impaneled. State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775 (2001).

Juror Properly Excused. - Where prospective juror had a medical history including coronary bypass surgery and an addiction to Valium and stated that thinking about the case was "bringing the problem back" and stated that the stress of being a prospective juror awakened him in the middle of the night, the trial court properly exercised its discretion in excusing a prospective juror whose health was possibly in jeopardy. State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, 522 U.S. 1125, 118 S. Ct. 1072, 140 L. Ed. 2d 131 (1998).

Trial judge's failure to record his ex parte communication with one prospective juror as required by G.S. 15A-1241 was harmless error, where the record adequately revealed the substance of the unrecorded conversation, and the juror was properly excused under subsection (a) of this section and G.S. 9-6.1 because "he was over sixty-five." State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999).

Cited in State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969); State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977); State v. Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997); State v. Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997).


§ 9-6.1. Requests to be excused.

  1. Any person summoned as a juror who is a full-time student and who wishes to be excused pursuant to G.S. 9-6.1(b1) [G.S. 9-6(b1)] or who is 72 years or older and who wishes to be excused, deferred, or exempted, may make the request without appearing in person by filing a signed statement of the ground of the request with the chief district court judge of that district, or the district court judge or trial court administrator designated by the chief district court judge pursuant to G.S. 9-6(b), at any time five business days before the date upon which the person is summoned to appear.
  2. Any person summoned as a juror who has a disability that could interfere with the person's ability to serve as a juror and who wishes to be excused, deferred, or exempted may make the request without appearing in person by filing a signed statement of the ground of the request, including a brief explanation of the disability that interferes with the person's ability to serve as a juror, with the chief district court judge of that district, or the district court judge or trial court administrator designated by the chief district court judge pursuant to G.S. 9-6(b), at any time five business days before the date upon which the person is summoned to appear. Upon request of the court, medical documentation of any disability may be submitted. Any privileged medical information or protected health information described in this section shall be confidential and shall be exempt from the provisions of Chapter 132 of the General Statutes or any other provision requiring information and records held by State agencies to be made public or accessible to the public.
  3. A person may request either a temporary or permanent exemption under this section, and the judge or trial court administrator may accept or reject either in the exercise of discretion conferred by G.S. 9-6(b), including the substitution of a temporary exemption for a requested permanent exemption. In the case of supplemental jurors summoned under G.S. 9-11, notice may be given when summoned. In case the chief district court judge, or the judge or trial court administrator designated by the chief district court judge pursuant to G.S. 9-6(b), rejects the request for exemption, the prospective juror shall be immediately notified by the trial court administrator or the clerk of court by telephone, letter, or personally.

History

(1979, 2nd Sess., c. 1207, s. 2; 1981, c. 9, ss. 1, 2; c. 430, ss. 4, 5; 2005-149, s. 1; 2011-42, s. 2; 2012-180, s. 7; 2015-210, s. 3.)

Editor's Note. - The bracketed reference in subsection (a) was inserted at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-149, s. 1, effective October 1, 2005, and applicable to persons summoned for jury service on or after that date, rewrote the section.

Session Laws 2011-42, s. 2, effective July 1, 2011, added the subsection (a) designation, and therein inserted "business" in the last sentence; added subsection (b); and added the subsection (c) designation.

Session Laws 2012-180, s. 7, effective July 12, 2012, in subsection (a), substituted "any time" for "anytime"; and, in subsection (b), added the third sentence.

Session Laws 2015-211, s. 3, effective August 11, 2015, and applicable to requests for excusal from jury service made on or after that date, inserted "who is a full-time student and who wishes to be excused pursuant to G.S. 9-6.1 (b1) or" preceding "who is 72 years or older" in subsection (a); and made a minor stylistic change in subsection (a).

CASE NOTES

Constitutionality - There is no constitutional infirmity in the statutory scheme as it relates to excusal of jurors over the age of 65 [now 72]. State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).

Juror Properly Excused. - Trial judge's failure to record his ex parte communication with one prospective juror as required by G.S. 15A-1241 was harmless error, where the record adequately revealed the substance of the unrecorded conversation, and the juror was properly excused under this section and G.S. 9-6(a) and 9-6.1 because "he was over sixty-five." State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999).

Excuse Based on Age. - Statutory scheme allowing trial judge to exercise his discretion to excuse jurors over the age of 65 [now age 72] has a rational basis and is not constitutionally infirm. State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve, and while such a juror had a right under G.S. 9-6.1 to request an exemption, the trial judge had discretion whether to excuse any juror. Judge asked juror if she was able to sit and listen to the evidence, she said that she was, and the court did not abuse its discretion in not excusing her. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

There was no error in defendant's murder case when a trial judge refused to disqualify a juror who was over the age of 65; a prospective juror over that age had a right under G.S. 9-3 to serve. It was also clear from the text of G.S. 9-3, 9-6(a), and 9-6.1, that whether a juror should be excused from jury service is a decision which rests in the sound discretion of the trial court, and after questioning the prospective juror as to whether or not she thought that she could sit and listen to the evidence, the trial court did not abuse its discretion in allowing her to sit as a juror. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).


§ 9-7. Notation on master jury list of names of jurors who have served; retention.

  1. The names of persons summoned for jury service and the date or dates on which each person served shall be noted on the master jury list. This information shall be retained for two years, and persons shall be exempt from jury service for a period of two years from the date on which they were discharged from their prior service, except as provided in subsection (b) of this section.
  2. The names of persons summoned for jury service who served a full term on the grand jury pursuant to G.S. 15A-622, the date or dates on which each person served, and a notation that the person served the full term of service as a grand juror shall be noted on the master list. This information shall be retained for six years, and persons shall be exempt from jury service for a period of six years from the date on which they were discharged from their prior service.

History

(1967, c. 218, s. 1; 2012-180, s. 8; 2013-148, s. 2.)

Effect of Amendments. - Session Laws 2012-180, s. 8, effective July 12, 2012, rewrote the section catchline, which formerly read "Removal of names of jurors who have served from jury list; retention"; and rewrote the section.

Session Laws 2013-148, s. 2, effective January 1, 2014, designated the former provisions of this section as subsection (a) and added "except as provided in subsection (b) of this section" at the end; and added subsection (b).

§ 9-7.1. Trial court administrator may assist clerk with performance of duties.

Upon the request of the clerk of superior court and with the agreement of the clerk of superior court and the senior resident superior court judge, the duties and responsibilities of the clerk of superior court under this Article may be assigned to the trial court administrator pursuant to G.S. 7A-356.

History

(2012-180, s. 10.)

§§ 9-8, 9-9: Repealed by Session Laws 1967, c. 218, s. 1.

ARTICLE 2. Petit Jurors.

Sec.

§ 9-10. Summons to jurors.

  1. The clerk of court shall serve the summons by first-class mail, or shall deliver either printed summonses or the list of the panel of prospective jurors to the sheriff of the county, who shall summon the persons named therein. The summons shall be served personally, or by leaving a copy thereof at the place of residence of the juror, or by telephone or first-class mail, at least 15 days before the session of court for which the juror is summoned. Service by telephone, or by first-class mail if mailed to the correct current address of the juror on or before the fifteenth day before the day the court convenes, shall be valid and binding on the person served, and he shall be bound to appear in the same manner as if personally served. The summons shall contain information as to the time, place, and authority before whom applications for excuses from jury service may be heard.
  2. All summons served personally or by mail under this section or under G.S. 9-11 shall inform the prospective juror that persons 72 years of age or older are entitled to establish in writing exemption from jury service for good cause, shall contain a statement for claiming such exemption and stating the cause and a place for the prospective juror's signature, and shall state the mailing address of the clerk of superior court and the date by which such request for exemption must be received.

History

(1779, c. 157, ss. 4, 6, P.R.; R.C., c. 31, s. 29; 1868-9, c. 9, s. 12; Code, s. 1733; Rev., s. 1976; C.S., s. 2320; 1967, c. 218, s. 1; 1979, 2nd Sess., c. 1207, s. 3; 1985, c. 609, s. 3; 2006-226, s. 8; 2006-264, ss. 30(a), 30(c); 2012-180, s. 9.)

Cross References. - As to penalty for disobeying summons, see G.S. 9-13.

Effect of Amendments. - Session Laws 2006-226, s. 8, effective August 10, 2006, substituted "72 years" for "65 years" in subsection (b).

Session Laws 2012-180, s. 9, effective July 12, 2012, substituted "The clerk of court shall serve the summons by first-class mail, or shall deliver either printed summonses or the list of the panel of" for "The register of deeds shall, within three days after the receipt of numbers drawn, deliver the list of" in the first sentence of subsection (a).

CASE NOTES

Jury Summons Not Improper. - Where the clerk's office mailed jury summons to prospective jurors and many of the people summoned did not send back a notification of service, the fact that the clerk's office and the sheriff's department attempted to contact some of the prospective jurors did not create a suspicion of impropriety. State v. Barnard, 346 N.C. 95, 484 S.E.2d 382 (1997).


§ 9-11. Supplemental jurors; special venire.

  1. If necessary, the court may, without using the jury list, order the sheriff to summon from day to day additional jurors to supplement the original venire. Jurors so summoned shall have the same qualifications and be subject to the same challenges as jurors selected for the regular jury list. If the presiding judge finds that service of summons by the sheriff is not suitable because of his direct or indirect interest in the action to be tried, the judge may appoint some suitable person in place of the sheriff to summon supplemental jurors. The clerk of superior court shall keep a record of the names of those additional jurors who are so summoned and who report for jury service.
  2. The presiding judge may, in his discretion, at any time before or during a session direct that supplemental jurors or a special venire be selected from the jury list in the same manner as is provided for the selection of regular jurors. Jurors summoned under this subsection may be discharged by the court at any time during the session and are subject to the same challenges as regular jurors, and to no other challenges.

History

(1779, c. 156, s. 69, P.R.; 1830, c. 27; R.C., c. 31, s. 29; c. 35, ss. 30, 31; Code, ss. 1733, 1738, 1739, 1740; 1887, c. 53; 1889, c. 441; 1897, c. 364; Rev., ss. 1967, 1968, 1973, 1974, 1975, 3265, 3602; 1911, c. 15; 1913, c. 31, ss. 1, 2; 1915, c. 210; C.S., ss. 2321, 2322, 2338, 2339, 2340, 4635; 1967, c. 218, s. 1; 1969, c. 205, s. 6; 2012-180, s. 11.)

Cross References. - As to qualifications of jurors, see G.S. 9-3.

Effect of Amendments. - Session Laws 2012-180, s. 11, effective July 12, 2012, substituted "keep a record of" for "furnish the register of deeds" in the fourth sentence of subsection (a).

CASE NOTES

The language of this section is clear and unambiguous, and its provisions authorize the trial judge to order the summoning of supplemental jurors in order to ensure orderly, uninterrupted, and speedy trials. State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985).

Discretion of Judge. - See State v. Brogden, 111 N.C. 656, 16 S.E. 170 (1892); State v. Smarr, 121 N.C. 669, 28 S.E. 549 (1897); State v. Levy, 187 N.C. 581, 122 S.E. 386 (1924); State v. Casey, 212 N.C. 352, 193 S.E. 411 (1937), overruled on other grounds, 248 N.C. 695, 104 S.E.2d 837 (1958); State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948).

A motion for a change of venue or for a special venire from another county, upon the ground that the minds of the residents in the county in which the crime was committed had been influenced against the defendant, is addressed to the sound discretion of the trial court. State v. Ledbetter, 4 N.C. App. 303, 167 S.E.2d 68 (1969).

The section neither explicitly nor impliedly requires the judge to wait a certain amount of time so that a particular number of summonses can be served. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, cert. denied, 332 N.C. 670, 424 S.E.2d 414 (1992).

Discretion of Selecting Officer. - Where an officer is empowered to select and summon talesmen he is vested with some discretion. It is his right and duty to use his best judgment in securing men of intelligence, courage, and good moral character, but he must act with entire impartiality. State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969); State v. Nolen, 144 N.C. App. 172, 550 S.E.2d 783 (2001).

Sheriff Not Always Disqualified Where Deputy Testifies. - The legislature did not intend to disqualify sheriffs from summoning extra jurors in all cases in which deputy sheriffs testify. If this were so, the legislature would have designated some other official to summon extra jurors. If the sheriff were disqualified from summoning jurors in every case in which a defendant feels the sheriff is harassing him, there would be few if any sheriffs qualified to summon a juror. State v. Yancey, 58 N.C. App. 52, 293 S.E.2d 298 (1982).

Testimony by a person in the sheriff's office does not disqualify the sheriff from summoning supplemental jurors to hear the matter. State v. Barnard, 346 N.C. 95, 484 S.E.2d 382 (1997).

The mere fact that the sheriff and the chief deputy were testifying in case did not preclude members of the department from contacting jurors who failed to acknowledge their service of the summons. State v. Barnard, 346 N.C. 95, 484 S.E.2d 382 (1997).

Clerical Communications. - Where prospective jurors were contacted by the sheriff himself from a list he had received, and the sheriff merely asked the persons contacted if they had received their summons and if they intended to appear in court, the communication was pretrial and simply a clerical one assuring that the prospective jurors had been served with the summons. State v. Barnard, 346 N.C. 95, 484 S.E.2d 382 (1997).

There is no statutory or case authority prescribing the methods by which tales jurors must be selected. State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969).

Nowhere in the statute is there a provision delineating discretionary restrictions to be placed on an officer in fulfilling the court's order. The statutory recognition that tales jurors may be needed and the statutory language used contemplate a system easily and expeditiously administered. To place procedural restrictions unnecessarily on their selection would defeat the purpose of the system, which is to facilitate the dispatch of the business of the court. State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969).

Tales jurors are selected infrequently and only to provide a source from which to fill the unexpected needs of the court. They must still possess the statutory qualifications and are still subject to the same challenges as regular jurors and may be examined by both parties on voir dire. In order to retain the flexibility needed in the administration of such a system, the summoning official must be permitted some discretion, whether he be located in a relatively small community or a more heavily populated area, and to restrict the discretion placed in the summoning official, without proven cause, is to presume he is not worthy of the office which he holds. State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969).

Mere Possibility of Discrimination Does Not Make Panel Objectionable. - Obviously it would be possible for a sheriff, sent out to execute an order of the court under this section to discriminate in the selection of persons to be summoned. This mere possibility does not make the panel actually summoned by him objectionable where the record shows that he did not so discriminate. State v. White, 6 N.C. App. 425, 169 S.E.2d 895 (1969).

Accused was not prejudiced because he was not furnished a list of persons called as supplemental jurors, where it became necessary to summon them after the court had properly excluded jurors from the original venire. State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972).

Discretion of Sheriff. - Absent proof that a sheriff violated the discretionary trust placed in him by G.S. 9-11, he should remain free to use his best judgment in carrying out the orders of the court. State v. Nolen, 144 N.C. App. 172, 550 S.E.2d 783 (2001).

The defendant was not prejudiced when the trial court ordered the sheriff to randomly recruit jurors in the middle of the jury selection process, in light of the fact that the defendant failed to exhaust his peremptory challenges. At this time, only one juror remained to be seated. The twelfth juror seated was one of the supplemental jurors, but the defendant still had one peremptory challenge remaining. State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985).

Special Venire Selected Without Partiality. - A challenge to the array on the ground that the sheriff and his deputies, under instructions by the sheriff, selected for the special venire freeholders of good character, who had not served on the jury within the past two years and who lived in townships in the county other than the township in which the crime was committed and townships contiguous thereto, was properly refused, the action of the sheriff and the deputies showing no partiality, misconduct and irregularity in making out the list. State v. Dixon, 215 N.C. 438, 2 S.E.2d 371 (1939).

A challenge to jury selection under G.S. 9-11 is sustainable when there is a partiality or misconduct on the sheriff's part or some irregularity in making out the list. State v. Nolen, 144 N.C. App. 172, 550 S.E.2d 783 (2001).

The failure of the trial judge to sign the order for a special venire does not alone invalidate the special venire, it having been ordered and summoned in all other respects in conformity with statute. State v. Anderson, 228 N.C. 720, 47 S.E.2d 1 (1948).

Order Substantially a Special Writ of Venire Facias. - A written order entitled as of the action, commanding the sheriff to summon a special venire of twenty-five freeholders from the body of the county to appear on a specified date to act as jurors in the case, is in substance a special writ of venire facias. State v. Anderson, 228 N.C. 720, 47 S.E.2d 1 (1948).

Challenge for Cause. - Under this section where a special venire has been ordered by the court for the trial of a capital felony, the veniremen, being selected by the sheriff in his discretion, not from the jury box, are subject to the same challenges for cause as tales jurors. State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932).

Objections Made by Challenges to the Array. - Objections to the special venire based on partiality, misconduct of the sheriff, or irregularity in making out the jury list, are properly made by challenges to the array. State v. Shaw, 284 N.C. 366, 200 S.E.2d 585 (1973).

A motion challenging the array of special jurors was properly denied where the motion did not challenge the order of the court directing the sheriff to select six supplemental jurors, nor the action of the sheriff in selecting the jurors, nor contend that black persons were systematically excluded by the sheriff in his selection of the six jurors. State v. Hollingsworth, 11 N.C. App. 674, 182 S.E.2d 26 (1971).

Special Venire Exhausted. - When a special venire is exhausted without completing the jury, the court may order a further venire to be summoned at once from the bystanders. State v. Stanton, 118 N.C. 1182, 24 S.E. 536 (1896).

Accessory May Be Tried by Special Venire. - Where two persons are indicted for murder, one as principal and the other as accessory before the fact, the latter may be tried by a jury selected from a special venire ordered in the case. State v. Register, 133 N.C. 746, 46 S.E. 21 (1903).

Applicability of Notice Provision. - The thirty day notice provision in G.S. 9-5 did not apply to the trial court's selection of supplemental jurors under this section. State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997).

Applied in State v. Brown, 13 N.C. App. 261, 185 S.E.2d 471 (1971).

Cited in State v. Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997).


§ 9-12. Supplemental jurors from other counties.

  1. On motion of any party or the State, or on his own motion, any judge of the superior court, if he is of the opinion that it is necessary in order to provide a fair trial in any case, and regardless of whether he will preside over the trial of that case, may order as many jurors as he deems necessary to be summoned from any county or counties in the district or set of districts as defined in G.S. 7A-41.1(a) in which the county of trial is located or in any adjoining district or set of districts. These jurors shall be selected and shall serve in the manner provided for selection and service of supplemental jurors selected from the jury list. These jurors shall be subject to the same challenges as other jurors, except challenges for nonresidence in the county of trial.
  2. Transportation may be furnished in lieu of mileage.
  3. Repealed by Session Laws 1971, c. 377, s. 32.

History

(1913, c. 4, ss. 1, 2; C.S., s. 473; 1931, c. 308; 1933, c. 248; 1961, c. 110; 1967, c. 218, s. 1; 1971, c. 377, s. 32; 1987 (Reg. Sess., 1988), c. 1037, s. 48.)

CASE NOTES

Editor's Note. - Some of the cases below were decided under former G.S. 1-86.

Discretion of Court. - The trial judge, when he refused defendant's motion to remove an action for homicide to another county, in the exercise of his sound discretion, could have had the jurors summoned from any adjoining county, or from any county in the same judicial district, or had jurors drawn from the jury box of such county. State v. Kincaid, 183 N.C. 709, 110 S.E. 612 (1922); State v. Baxter, 208 N.C. 90, 179 S.E. 450 (1935), decided under former G.S. 1-86.

The granting of a solicitor's (now district attorney's) motion that the jury be drawn from the body of another county is within the court's discretion. State v. Shipman, 202 N.C. 518, 163 S.E. 657 (1932).

A motion for change of venue or, in the alternative, that a jury be summoned from another county, on the ground that defendant could not obtain a fair trial because of widespread and unfavorable publicity, was addressed to the discretion of the trial court, and where the record disclosed that the trial judge conducted a hearing, read all the affidavits, and examined the press releases, juror selected stated that he could render a verdict uninfluenced by the publicity, and defendant did not exhaust his peremptory challenges, abuse of discretion in denying the motion was not disclosed. State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967), decided under former G.S. 1-86.

The motion of the defendants that a jury be summoned from another county was addressed to the sound discretion of the presiding judge. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

A defendant's motion for a change of venue and his alternative motion for a special venire from another county were addressed to the sound legal discretion of the trial court. State v. Penley, 6 N.C. App. 455, 170 S.E.2d 632 (1969).

This section places the matter of ordering jurors to be summoned from another county in the sound discretion of the judge of the superior court. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974).

Order Tantamount to Denial of Motion to Remove. - When the judge entered an order directing that venire of jurors be drawn from another county to serve as jurors in the trial, it was tantamount to a denial of a motion to remove the cases to another county for trial. State v. Moore, 258 N.C. 300, 128 S.E.2d 563 (1962), decided under former G.S. 1-86.

Order Justified. - Due to the prior trials and the widespread publicity, the court on motion of the State was justified in ordering the trial jury drawn from another county. State v. Cutshall, 281 N.C. 588, 189 S.E.2d 176 (1972).

Review of Discretion. - A judge's order, entered by virtue of authority vested in him by this section, is not reviewable, unless there has been a manifest abuse of his discretion. State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971), decided under former G.S. 1-86.

A motion for change of venue or for a special venire may be granted or denied in the discretion of the trial judge, and his decision in the exercise of such discretion is not reviewable in the Court of Appeals unless gross abuse of discretion is shown. State v. Ledbetter, 4 N.C. App. 303, 167 S.E.2d 68 (1969).

A defendant's motions for a change of venue or for a special venire from another county, on the ground that he could not get a fair and impartial trial in the county because of extensive publicity and public discussion of the cases, were addressed to the sound legal discretion of the trial court, whose ruling in denying these motions was not disturbed on appeal because (1) the newspaper articles filed in support of the motions were not unduly inflammatory in nature, (2) the articles were published three months prior to the trial and there was no evidence of repeated or excessive publication, and (3) those of the prospective jurors who had read the newspaper accounts stated that they could return an impartial verdict. State v. Penley, 6 N.C. App. 455, 170 S.E.2d 632 (1969).

The courts have consistently held that a motion for removal to an adjacent county or to cause a jury to be selected from an adjacent county on the grounds of unfavorable publicity is addressed to the sound discretion of the court, and that, absent a showing of abuse of discretion, the decision of the trial court is not reviewable. State v. Jackson, 24 N.C. App. 394, 210 S.E.2d 876, rev'd on other grounds, 287 N.C. 470, 215 S.E.2d 123 (1975).

Motions for change of venue or special venire are addressed to the sound discretion of the trial judge and, absent abuse of discretion, his rulings will not be disturbed on appeal. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977).

Applied in State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970); State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975); Kinston City Bd. of Educ. v. Board of Comm'rs, 29 N.C. App. 544, 225 S.E.2d 145 (1976).

Cited in State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973).


§ 9-13. Penalty for disobeying summons.

Every person summoned to appear as a juror who has not been excused, and who fails to appear and attend until duly discharged, shall be subject to a fine of not more than fifty dollars ($50.00), to be imposed by the court, unless he renders an excuse deemed sufficient. The forfeiture so imposed if not paid forthwith shall be entered as a judgment against the defaulting juror, and the clerk of superior court shall issue an execution against his estate.

History

(1779, c. 157, s. 4, P.R.; 1783, c. 189, P.R.; 1806, c. 694, P.R.; R.C., c. 31, s. 30; Code, ss. 405, 1734; Rev., s. 1977; C.S., s. 2323; 1967, c. 218, s. 1.)

Legal Periodicals. - For article, "Filling the Box: Responding to Jury Duty Avoidance," see 23 N.C. Cent. L.J. 1 (1997).

§ 9-14. Jury sworn; judge decides competency.

The clerk shall, at the beginning of court, swear all jurors who have not been selected as grand jurors. Each juror shall take (i) the oath required by Section 7 of Article VI of the Constitution of North Carolina, by swearing or affirming to support and maintain the Constitution of the United States and the Constitution and laws of North Carolina not inconsistent therewith and (ii) the oath required under G.S. 11-11, by swearing or affirming to truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before the juror and give true verdicts according to the evidence. Nothing herein shall be construed to disallow the usual challenges in law to the whole jury so sworn or to any juror; and if by reason of such challenge any juror is withdrawn from a jury being selected to try a case, his place on that jury shall be taken by another qualified juror. The presiding judge shall decide all questions as to the competency of jurors.

History

(1790, c. 321, P.R.; 1822, c. 1133, s. 1, P.R.; R.C., c. 31, s. 34; Code, s. 405; Rev., s. 1966; C.S., s. 2324; 1967, c. 218, s. 1; 2013-164, s. 1.)

Effect of Amendments. - Session Laws 2013-164, s. 1, effective October 1, 2013, in the second sentence, substituted "take (i) the oath required by Section 7 of Article VI of the Constitution of North Carolina, by swearing or affirming to support and maintain the Constitution of the United States and the Constitution and laws of North Carolina not inconsistent therewith and (ii) the oath required under G.S. 11-11, by swearing or affirming to" for "swear or affirm that he will," and "the juror and give" for "him and render." For applicability, see Editor's note.

Legal Periodicals. - For note on allowing challenge for cause to a prospective juror opposed to capital punishment, see 45 N.C.L. Rev. 1070 (1967).

For comment on constitutional restrictions on the imposition of capital punishment, see 5 Wake Forest Intra. L. Rev. 183 (1969).

CASE NOTES

I. GENERAL CONSIDERATION.

Administering Oath to Prospective Jurors. - The phrase "at the beginning of court," as it applies to the swearing of prospective jurors, refers to the beginning of the term of court, as opposed to the beginning of an individual trial, which may be civil or criminal. State v. McNeill, 349 N.C. 634, 509 S.E.2d 415 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307, 68 U.S.L.W. 3225 (1999).

The presiding judge has the duty to supervise the examination of prospective jurors. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988); State v. Green, 336 N.C. 142, 443 S.E.2d 14, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994).

Regulation of the manner and extent of inquiries on voir dire rests largely in the trial judge's discretion. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988); State v. Green, 336 N.C. 142, 443 S.E.2d 14, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994).

Administration of Oath During Voir Dire. - The State's failure to administer an oath requiring prospective jurors to "tell the truth" during voir dire did not taint jury selection or violate defendant's right to a fair and impartial trial, where the jurors took the statutorily prescribed oath prior to trial and there was no evidence to show that the jury was unqualified to sit, or that he had been prejudiced in any way. State v. McNeill, 349 N.C. 634, 509 S.E.2d 415 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307, 68 U.S.L.W. 3225 (1999).

The trial court was not required to ask prospective jurors to swear to tell the truth during jury voir dire State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775 (2001).

Juror Must Qualify to Be Sworn in at the Beginning of Court. - Court committed no error in excusing a juror, where the transcript revealed that at the time jury selection commenced, the juror had previously served on a federal jury within two years and was not immediately qualified to serve in the instant case; the court could not, as defendant suggested, move the juror to a later panel and then swear her in at the time she was called. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

A defendant is not entitled to a jury of his selection or choice, but only to a jury selected pursuant to law and without unconstitutional discrimination against a class or substantial group of the community from which the jury panel is drawn. He has no vested right to a particular juror. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Applied in State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975); In re Wellnitz, 350 N.C. 109, 512 S.E.2d 720 (1999), cert. denied, 528 U.S. 941, 120 S. Ct. 351, 145 L. Ed. 2d 274 (1999).

Cited in State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971); State v. Moye, 12 N.C. App. 178, 182 S.E.2d 814 (1971); State v. Zigler, 42 N.C. App. 148, 256 S.E.2d 479 (1979); State v. Wright, 52 N.C. App. 166, 278 S.E.2d 579 (1981); State v. Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997).

II. CHALLENGE TO JURORS.

The right of challenge is not one to accept, but to reject. It is not given for the purpose of enabling the defendant, or the State, to pick a jury, but to secure an impartial one. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

It has been held in many cases that the right to challenge a juror for cause is given to afford a litigant fair opportunity to remove objectionable jurors, and was not intended to enable him to select a jury of his own choosing. See Blevins v. Erwin Cotton Mills Co., 150 N.C. 493, 64 S.E. 428 (1909).

A party has no right to seat a particular juror, but only to reject one who is prejudiced against him. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981).

Opinion of Juror. - The expression of an opinion is sometimes ground for challenge, but is not if the juror states that the opinion could be eliminated and a fair and impartial verdict rendered. State v. Bailey, 179 N.C. 724, 102 S.E. 406 (1920); State v. Winder, 183 N.C. 776, 111 S.E. 530 (1922).

The challenge for this cause can be made only by that party against whom the opinion was formed and expressed. State v. Benton, 19 N.C. 196 (1836).

A juror may be examined as to opinions honestly formed, and honestly expressed, manifesting a bias of judgment, not referable to personal partiality, or malevolence; but if the opinion has been made up and expressed under circumstances which involve dishonor and guilt, and where such expression may be visited with punishment, he ought not to be required to testify so as to incriminate himself. State v. Benton, 19 N.C. 196 (1836); State v. Mills, 91 N.C. 581 (1884).

In an indictment for illegal sale of liquor, challenges for cause, in that the jurors belonged to the Anti-Saloon League, were properly disallowed, where the jurors had taken no part in prosecuting or aiding in the prosecution of the defendant. State v. Sultan, 142 N.C. 569, 54 S.E. 841 (1906).

The desire of a prospective juror to affirm rather than take an oath is not, of itself, cause for challenge in this State. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

Relationship Between Juror and Party. - A juror, who was related to the defendant by blood or marriage within the ninth degree of kinship, was properly rejected when challenged by the State for cause on that ground. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Relationship Between Juror and Witness. - A relationship within the ninth degree between a juror and a State's witness, standing alone, is not legal ground for challenge for cause. Where such relationship exists and is known and recognized by the juror, a defendant's challenge for cause should be rejected only if it should appear clearly that, under the circumstances of the particular case, the challenged juror would have no reason or disposition to favor his kinsman by giving added weight to his testimony or otherwise. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Relationship of Juror to District Attorney. - The trial court did not err in the denial of defendant's challenge for cause directed to the district solicitor's (now district attorney's) father-in-law being a juror, where the challenge was denied only after the juror stated, upon being questioned by the court, that he would not convict on his relationship to the solicitor (now district attorney), and after it was ascertained that the district solicitor (now district attorney) was not prosecuting defendant's case. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

As to exclusion of juror for nonresidence, see State v. Bullock, 63 N.C. 570 (1869); State v. Upton, 170 N.C. 769, 87 S.E. 328 (1915).

As to exclusion for employment by party, see Oliphant v. Atlantic C.L.R.R., 171 N.C. 303, 88 S.E. 425 (1916).

Excluding Jurors for Opposition to Capital Punishment. - Under the decision of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. State v. Ruth, 276 N.C. 36, 170 S.E.2d 897 (1969).

Judgment of the superior court sentencing defendant to death for first-degree murder had to be vacated under the decision of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), where the trial court allowed the State's challenges for cause to seven prospective jurors who stated simply a general objection to or conscientious scruples against capital punishment, notwithstanding the trial occurred prior to the Witherspoon decision, since that decision was fully retroactive. State v. Ruth, 276 N.C. 36, 170 S.E.2d 897 (1969).

A trial judge should allow challenge for cause when a venireman is not willing to consider all possible penalties provided by State law and when the venireman is unalterably committed to vote against the death penalty, regardless of the evidence which might be presented at trial. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

In a capital case, if a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212 (1976).

In a capital case a juror may be properly challenged for cause if he indicates he could not return a verdict of guilty knowing the penalty would be death, even though the State proved to him by the evidence and beyond a reasonable doubt that the accused was guilty of the capital crime charged. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976).

In a first-degree murder trial, where prospective juror stated that knowing that the death penalty would be imposed he did not feel that he could vote for a verdict of guilty even though he was satisfied of defendant's guilt, the trial judge, in his discretion, and at the request of the prospective juror, in excusing the prospective juror did not commit prejudicial error. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Time of Challenge. - The court may, in its discretion, permit a juror to be challenged by the State for cause, after he has been tendered to the defendant and before the jury is impaneled. State v. Green, 95 N.C. 611 (1886).

Excusing Unchallenged Juror. - The trial judge could excuse a juror, before the jury was impaneled, although the solicitor (now district attorney) had passed him to the defendant and had not challenged him for cause. State v. Vick, 132 N.C. 995, 43 S.E. 626 (1903).

It is the right and duty of the court to see that a competent, fair and impartial jury is impaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party. It is immaterial that this is done as the result of information voluntarily disclosed by the prospective juror without questioning. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

It is the duty of the trial judge to see that a competent, fair and impartial jury is impaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Method of Taking Advantage of Error. - The action of a trial judge in determining the qualifications of a juryman, if erroneous, was ground for a challenge to the array by a motion to quash and set aside the entire panel, and in the absence of such challenge a defendant could not be allowed to take advantage of the alleged error after trial and judgment. State v. Moore, 120 N.C. 570, 26 S.E. 697 (1897).

The erroneous allowance of an improper challenge for cause did not entitle the adverse party to a new trial, so long as only those who were competent and qualified to serve were actually impaneled upon the jury which tried his case. This was especially true where the adverse party did not exhaust his peremptory challenges. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

III. COMPETENCY OF JURORS.

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The question of whether a juror is competent is one for the trial judge to determine in his discretion, and his rulings thereon are not reviewable on appeal unless accompanied by some imputed error of law. State v. Blount, 4 N.C. App. 561, 167 S.E.2d 444 (1969); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972); State v. Cameron, 17 N.C. App. 229, 193 S.E.2d 485 (1972), aff'd, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976).

The trial court has broad discretion in the voir dire selection of jurors, and the exercise of the party's right to examine prospective jurors should be carefully supervised by the trial court. State v. Wood, 20 N.C. App. 267, 201 S.E.2d 231 (1973).

The competency of jurors to serve is left largely to the sound legal discretion of the trial judge, and his rulings thereon are not subject to review on appeal unless accompanied by some imputed error of law. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Ruling on motion for competency of jurors is discretionary with the trial judge and will not be reviewed absent a showing of abuse of discretion or an error of law. State v. Moore, 24 N.C. App. 582, 211 S.E.2d 470 (1975).

Decisions as to a juror's competency at the time of selection and his continued competency to serve are matters resting in the trial judge's sound discretion and are not subject to review unless accompanied by some imputed error of law. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Unquestionably the trial judge is vested with broad discretionary powers in determining the competency of jurors and that discretion will not ordinarily be disturbed on appeal. State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977).

The trial judge is vested with broad discretion in determining the competency of the jurors. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981).

The trial judge is empowered to decide all questions regarding the competency of jurors. His decision as to a juror's competency is a matter vested in his sound discretion and will be reversed only upon a demonstration that he abused this discretion. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).

Review of Discretion. - The rulings of the judge on questions as to the competency of jurors are not subject to review on appeal unless accompanied by some imputed error of law. State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523 (1944); State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947); State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924 (1949); State v. Gibbs, 5 N.C. App. 457, 168 S.E.2d 507 (1969); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976); State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976).

Where a juror in a homicide trial had sister of deceased as one of his passengers in a four-mile automobile trip, the defendant moved to set aside the verdict. The juror stated upon oath that he did not know that his passenger was the sister of the deceased, and the court found upon investigation that the case was not discussed during the ride. It was held that exception to refusal of motion was not reviewable. State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924 (1949).

The trial court's findings, upon supporting evidence, that persons of defendant's race were not excluded from the petit jury on account of race, were conclusive on appeal, and defendant's exception to the overruling of his challenge to the array on that ground presented no reviewable question of law. State v. Reid, 230 N.C. 561, 53 S.E.2d 849, cert. denied, 338 U.S. 876, 70 S. Ct. 138, 94 L. Ed. 537 (1949).

Defendant moved for a new trial on the ground that during the trial he discussed the case with one of the jurors before recognizing him as a juror. The court found that the defendant had not shown that he was in anywise prejudiced by the occurrence, and denied defendant's motion for a new trial. The ruling of the court was not reviewable. State v. Scott, 242 N.C. 595, 89 S.E.2d 153 (1955).

A ruling in respect to the impartiality of a juror presents no question of law for review. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Defendant seeking to establish on appeal that the exercise of judicial discretion constituted reversible error must show harmful prejudice as well as clear abuse of discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).


§ 9-15. Questioning jurors without challenge; challenges for cause.

  1. The court, and any party to an action, or his counsel of record shall be allowed, in selecting the jury, to make direct oral inquiry of any prospective juror as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror until the party shall formally state that such person is so challenged.
  2. It shall not be a valid cause for challenge that any juror, regular or supplemental, is not a freeholder or has not paid the taxes assessed against him.
  3. In civil cases if any juror has a suit pending and at issue in the court in which he is serving, he may be challenged for cause, and he shall be withdrawn from the trial panel, and may be withdrawn from the venire in the discretion of the presiding judge. In criminal cases challenges are governed by Article 72, Selecting and Impaneling the Jury, of Chapter 15A of the General Statutes.

History

(1806, c. 694, P.R.; 1868-9, c. 9, s. 7; Code, s. 1728; Rev., s. 1960; 1913, c. 31, ss. 5, 6, 7; C.S., ss. 2316, 2325, 2326; 1933, c. 130; 1967, c. 218, s. 1; 1973, c. 95; 1977, c. 711, s. 11.)

CASE NOTES

I. IN GENERAL.

A motion to examine jurors individually, rather than collectively, is directed to the sound discretion which the trial court possesses for regulating the jury selection process. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Defendant seeking to establish on appeal that the exercise of judicial discretion constituted reversible error must show harmful prejudice as well as clear abuse of discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

The questioning of jurors in defendant's absence erroneously deprived defendant of his right to be present at his trial, but the error was harmless where the court was satisfied here beyond a reasonable doubt that defendant's absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

Applied in State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992).

Cited in State v. Crummy, 107 N.C. App. 305, 420 S.E.2d 448, cert. denied, 332 N.C. 669, 424 S.E.2d 411 (1992).

II. QUESTIONING PROSPECTIVE JURORS.
A. NATURE AND SCOPE OF INQUIRY.

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Purpose of Voir Dire. - The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: first, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976); In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978); State v. Brown, 39 N.C. App. 548, 251 S.E.2d 706, cert. denied, 297 N.C. 302, 254 S.E.2d 923 (1979); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981).

The purpose of the voir dire examination and the exercise of challenges, either peremptory or for cause, is to eliminate extremes of partiality and to assure both the defendant and the State that the persons chosen to decide the guilt or innocence of the accused will reach that decision solely upon the evidence produced at trial. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976).

The primary purpose of the voir dire of prospective jurors is to select an impartial jury. State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977); In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

The voir dire examination of jurors allowed by this section serves the dual purpose of ascertaining whether grounds exist for challenge for cause to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Brown, 53 N.C. App. 82, 280 S.E.2d 31, cert. denied, 304 N.C. 197, 285 S.E.2d 102 (1981).

Any party to an action, whether civil or criminal, is entitled to inquire into the fitness and competency of any prospective juror. State v. Wood, 20 N.C. App. 267, 201 S.E.2d 231 (1973).

The right of inquiry concerning a prospective juror's competency and fitness to serve may be exercised by or on behalf of the defendant as well as the State. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).

Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Prospective jurors may be asked questions which will elicit information not per se a ground for challenge in order that the party, propounding the question, may exercise intelligently his or its peremptory challenges. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1206 (1976).

Questions Regarding Right to Make a Will. - In view of the possibility that many people, for one reason or another, do not agree with the statutory right of a person to make a will, propounders of a will should be allowed to question prospective jurors with respect to their feelings on that question. In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

Questioning of Jurors by Court or by Counsel. - Although this section assures a defendant of the right to have due inquiry made as to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant. The trial judge, in his discretion, may decide which course to pursue in a particular case. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973); State v. Girley, 27 N.C. App. 388, 219 S.E.2d 301 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976).

Prohibiting Ambiguous or Confusing Questions. - Discretion over the inquiry on voir dire was properly exercised when the trial court prohibited ambiguous or confusing hypothetical questions. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978).

Refusal of Court to Ask Question Requested by Counsel. - If the court, when it conducted the questioning, declined to ask a question requested by the defendant's counsel, an exception should have been noted so that an appellate court could consider the propriety, pertinence and substance of such question. This procedure avoids repetitive questioning without precluding or restricting any inquiry suggested and requested by defendant's counsel, and is not violative of this section or otherwise objectionable. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972).

Effect of District Attorney's Improper Statements During Voir Dire. - In a capital case, improper statements made by a district attorney in the presence of prospective jurors during their voir dire examination may well be as prejudicial as a similar statement made by him during argument to the jury. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975).

Regulation of Voir Dire Rests in Trial Judge's Discretion. - Counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision, and the regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981).

Regulation of the manner and the extent of the inquiry on voir dire rests largely in the trial judge's discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

Counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision. The regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976).

The manner and extent of the inquiry of prospective jurors are matters committed largely to the discretion of the trial judge and are subject to his close supervision. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978).

Judge's Discretion Is Subject to Review. - While the regulation of the manner and extent of the inquiry on voir dire rests largely in the trial judge's discretion, his exercise of discretion is not absolute and is subject to review on appeal. In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

B. CONCERNING CAPITAL PUNISHMENT.

.

Voir Dire Should Be Based on Questions Phrased in Witherspoon Language. - Since Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) has so clearly specified the ultimate questions that must be answered, the voir dire examination of prospective jurors should be based on questions phrased in Witherspoon language, because unless this course is followed, new trials will often be necessary in cases otherwise free from prejudicial error. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

Propriety of Examining Jurors' Attitudes. - In order to ensure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

In a capital case both the State and the defendant may, on the voir dire examination of prospective jurors, make inquiry concerning a prospective juror's moral or religious scruples, his beliefs and attitudes toward capital punishment, to the end that both the defendant and the State may be ensured a fair trial before an unbiased jury. State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

In many capital cases solicitors (now district attorneys) may ask prospective jurors whether they have moral or religious scruples against capital punishment, and if so, whether they are willing to consider all of the penalties provided by law, or are irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).

There was no error in permitting questions to be propounded to prospective jurors concerning their views about the death penalty. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

It was not improper on voir dire for the prosecutor to determine if jurors would be willing to impose the death penalty and what their views were on the death penalty. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Scope of Inquiries Is Within Control and Supervision of Court. - The extent of the inquiries to prospective jurors concerning their attitudes toward capital punishment remains under the control and supervision of the trial judge. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

III. CHALLENGES FOR CAUSE.

.

Purpose. - The right to challenge is not given so as to allow a party to pick a jury, but so that he may obtain an impartial jury. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973).

Excluding Jurors for Opposition to Capital Punishment. - If a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

Jurors who indicated they were irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence were properly excused for cause. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Where juror voiced general reservations about the death penalty, but made no affirmative, unequivocal statement that she was unwilling to consider the death penalty or that she was irrevocably committed to vote against it regardless of the facts and circumstances that might be revealed by the evidence, she was erroneously excused for cause. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

In a first-degree murder trial where prospective juror stated that knowing that the death penalty would be imposed he did not feel that he could vote for a verdict of guilty even though he was satisfied of defendant's guilt, the trial judge, in his discretion, and at the request of the prospective juror, in excusing the prospective juror did not commit prejudicial error. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

It is settled law that a challenge for cause should be sustained where the venireman challenged states unmistakably that he would, by reason of the death penalty, automatically vote against conviction without regard to any evidence developed at trial. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction. State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Erroneous allowance of an improper challenge for cause did not entitle the adverse party to a new trial, so long as only those who were competent and qualified to serve were actually impaneled upon the jury which tried his case. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

Excusal of Juror Without Challenge by Party. - In spite of the last phrase of subsection (a) of this section, it is the right and duty of the court to see that a competent, fair and impartial jury is impaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party. State v. Smith, 290 N.C. 148, 226 S.E.2d 10 (1976), cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

IV. DISQUALIFIED JURORS.

.

Subsection (c) is designed to protect the prospective juror's adversary in his pending case rather than to protect parties to cases in which he might serve as a juror. State v. Williams, 293 N.C. 102, 235 S.E.2d 248 (1977).

Subsection (c) subjects a litigant, rather than a witness, to disqualification as a juror when he has a suit pending and at issue in the court in which he is called to serve as a juror. State v. Williams, 293 N.C. 102, 235 S.E.2d 248 (1977).


§ 9-16. Exemption from civil arrest.

No sheriff or other officer shall arrest under civil process any juror during his attendance at or going to and returning from any session of the superior or district court. Any such arrest shall be invalid, and the defendant on motion shall be discharged.

History

(1779, c. 157, s. 10, P.R.; R.C., c. 31, s. 31; Code, s. 1735; Rev., s. 1979, C.S., s. 2328; 1967, c. 218, s. 1.)

CASE NOTES

Section Does Not Repeal Common-Law Exemption. - This section does not by implication repeal the common-law exemption of nonresidents from service of process while in the State in attendance in court either as witnesses or as suitors. Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947 (1898). See Greenlief v. People's Bank, 133 N.C. 292, 45 S.E. 638 (1903).


§ 9-17. Jurors impaneled to try case furnished with accommodations; separation of jurors.

A jury, impaneled to try any cause, shall be put in charge of an officer of the court and shall be furnished with such accommodations as the court may order, and the accommodations shall be paid for by the parties or by the State, as ordered by the presiding judge. When sequestration of the jury is ordered in a criminal case, however, the State shall pay for all accommodations of jurors.

The presiding judge, in his discretion, may direct any jury to be sequestered while it has a case or issue under consideration.

History

(1876-7, c. 173; Code, s. 1736; 1889, c. 44; Rev., s. 1978, C.S., s. 2327; 1947, c. 1007, s. 2; 1967, c. 218, s. 1; 1977, c. 711, s. 12.)

CASE NOTES

No Federal Constitutional Issue Presented. - Petitioner's contention that he was denied a fair and impartial trial in that the jurors were not sequestered does not present a federal constitutional issue. It is a matter of state procedural law and does not reach constitutional proportions. Baldwin v. Blackledge, 330 F. Supp. 183 (E.D.N.C. 1971).

Whether or not a jury is to be sequestered is within the discretion of the trial court. There being no showing of an obvious abuse of discretion, the matter is not subject to review. Baldwin v. Blackledge, 330 F. Supp. 183 (E.D.N.C. 1971).

A motion for the sequestration of witnesses is addressed to the discretion of the court. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976).

Effect on Verdict of Refusal to Furnish Refreshments. - Where a jury retired at 11 A.M., to consider their verdict, which was returned at 3 P.M. such verdict could not be impeached on the grounds that the sheriff declined to give them refreshments, except water, until they agreed on a verdict, or until the judge should tell him to take them to dinner. Gaither v. Hascall-Richards Steam Generator Co., 121 N.C. 384, 28 S.E. 546 (1897).

Applied in State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).


§ 9-18. Alternate jurors.

  1. Civil Cases. Whenever the presiding judge deems it appropriate, one or more alternate jurors may be selected in the same manner as the regular trial panel of jurors in the case. Each party shall be entitled to two peremptory challenges as to each such alternate juror, in addition to any unexpended challenges the party may have after the selection of the regular trial panel. Alternate jurors shall be sworn and seated near the jury with equal opportunity to see and hear the proceedings and shall attend the trial at all times with the jury and shall obey all orders and admonitions of the court to the jury. When the jurors are ordered kept together in any case, the alternate jurors shall be kept with them. An alternate juror shall receive the same compensation as other jurors and, except as hereinafter provided, shall be discharged upon the final submission of the case to the jury. If before that time any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. If more than one alternate juror has been selected, they shall be available to become a part of the jury in the order in which they were selected.
  2. Criminal Cases. Procedures relating to alternate jurors in criminal cases are governed by Article 72, Selecting and Impaneling the Jury, of Chapter 15A of the General Statutes.

History

(1931, c. 103; 1939, c. 35; 1951, cc. 82, 1043; 1967, c. 218, s. 1; 1977, c. 406, ss. 3-5; c. 711, s. 13; 1979, c. 711, s. 2.)

Legal Periodicals. - For comment, "An Historical Analysis of Mandatory Capital Punishment," see 7 N.C. Cent. L.J. 306 (1976).

CASE NOTES

The essential attributes of trial by jury guaranteed by former N.C. Const., Art. I, § 13 (now see N.C. Const., Art. I, § 24), are the number of jurors, their impartiality and a unanimous verdict, the alternate not being technically a juror until a member of the jury has died or been discharged and the alternate is made a juror by order of the court, and the verdict being finally returned by the unanimous verdict of 12 good and lawful persons. State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934).

Requirements of this section and N.C. Const., Art. I, § 24 are mandatory. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975).

Defendant Cannot Assent to Trial by More Than 12 Jurors. If a defendant in a felony trial cannot consent to a trial by fewer than 12 jurors, it is clear that he cannot assent to deliberations by more than 12. State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976).

Participation of Alternate Juror in Deliberation Is Error. - A decision that a deliberation by 13 jurors is error is compelled both by this section and by the appellate decisions of the State. State v. Alston, 21 N.C. App. 544, 204 S.E.2d 860 (1974).

And Alternate Juror's Presence in Jury Room Is Reversible Error Per Se. - Where the alternate juror was not discharged when the jury retired as required by this section, and although the record showed that the court corrected its mistake after only three or four minutes had elapsed, and the alternate did not participate in the deliberation and verdict of the other 12, his brief visit to the jury room was reversible error per se. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975); State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976).

At any time an alternate juror is in the jury room during deliberations, he participates by his presence and, whether he says little or nothing, his presence will void the trial. State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976).

The presence of an alternate juror, either during the entire period of deliberation preceding the verdict, or his presence at any time during the deliberations of the 12 regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict, if rendered. And this is the result notwithstanding the fact that the defendant's counsel consented, or failed to object, to the presence of the alternate. State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976).

The presence of an alternate juror in the jury room during the jury's deliberations violates N.C. Const., Art. I, § 24 and this section, and constitutes reversible error per se. State v. Turner, 48 N.C. App. 606, 269 S.E.2d 270 (1980).

If alternate juror's presence in jury room is inadvertent and momentary, and it occurs under circumstances from which it can be clearly seen or immediately determined that the jury has not begun its function as a separate entity, then the rule of per se reversible error is not applicable. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975).

Inquiry into Effect of Presence of Alternate Juror. - If the judge, from his trial experience and knowledge of the circumstances of the particular case, believes it probable that the jury has not begun its consideration of the evidence, he may properly recall the jury and the alternate and, in open court, inquire of them whether there had been any discussion of the case. If the answer is "no," the alternate will be excused and the jury returned to consider its verdict. If the answer is "yes," there must be a mistrial. No inquiry into the extent or nature of the deliberations is permissible. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975).

Cited in State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Godwin, 95 N.C. App. 565, 383 S.E.2d 234 (1989); State v. Swink, 252 N.C. App. 218, 797 S.E.2d 330 (2017).


ARTICLE 3. Peremptory Challenges.

Sec.

§ 9-19. Peremptory challenges in civil cases.

The clerk, before a jury is impaneled to try the issues in any civil suit, shall read over the names of the prospective jurors in the presence and hearing of the parties or their counsel; and the parties, or their counsel for them, may challenge peremptorily eight jurors without showing any cause therefor, and the challenges shall be allowed by the court.

History

(1796, c. 452, s. 2, P.R.; 1812, c. 833, P.R.; R.C., c. 31, s. 35; Code, s. 406; Rev., s. 1964; C.S., s. 2331; 1935, c. 475, s. 1; 1965, c. 1182; 1967, c. 218, s. 1.)

CASE NOTES

Peremptory Challenge Defined. - A peremptory challenge is a challenge which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or being required to assign a reason therefor. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951).

Peremptory Challenges on Basis of Race Prohibited. - N.C. Const., Art. I, § 26, proscribes peremptory challenges to jurors on the basis of race in civil cases as well as criminal cases. Jackson v. Housing Auth., 321 N.C. 584, 364 S.E.2d 416 (1988).

Reasons for Challenge Need Not Be Given. - A party's reason for peremptorily challenging could not be inquired into. Dupree v. Virginia Home Ins. Co., 92 N.C. 417 (1885).

Not a Right to Select Jurors. - As in the case of challenges for cause, the right is given to challenge but such right does not constitute the right to select jurors. Ives v. Atlantic & N.C.R.R., 142 N.C. 131, 55 S.E. 74 (1906); Medlin v. Simpson, 144 N.C. 397, 57 S.E. 24 (1907).

A litigant cannot exercise more peremptory challenges than the number allowed to him by law. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951).

Number of Plaintiffs or Defendants Immaterial. - Whether there are one or more plaintiffs or defendants, only eight peremptory challenges to the jury on either side are allowable. Bryan v. Harrison, 76 N.C. 360 (1877); State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951).

In a quo warranto proceeding, the general statutory right to eight peremptory challenges devolving upon the relators as all the parties on one side of the case was not annulled or impaired by their assertion that justice lay with one of the defendants or by the latter's concurrence in that assertion. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951).

Challenge After Acceptance. - Where a juror has been accepted it is error to permit a peremptory challenge. Dunn v. Wilmington & W.R.R., 131 N.C. 446, 42 S.E. 862 (1902).

Transcript of Jury Voir Dire Must Be Provided to Reviewing Court. - As a rule of practice, counsel who seek to rely upon an alleged impropriety in the jury selection process must provide the reviewing court with the relevant portions of the transcript of the jury voir dire. Jackson v. Housing Auth., 321 N.C. 584, 364 S.E.2d 416 (1988).


§ 9-20. Civil cases having several plaintiffs or several defendants; challenges apportioned; discretion of judge.

  1. When there are two or more defendants in a civil action, the presiding judge, if it appears that there are antagonistic interests between the defendants, may in the judge's discretion apportion among the defendants the challenges now allowed by law, or the judge may increase the number of challenges to not exceeding six for each defendant or class of defendants representing the same interest.
  2. When there are two or more plaintiffs in a civil action, the presiding judge, if it appears that there are antagonistic interests between the plaintiffs, may, in the judge's discretion, apportion among the plaintiffs the challenges now allowed by law, or the judge may increase the number of challenges to not exceeding six for each plaintiff or class of plaintiffs representing the same interest.
  3. Whenever a judge exercises the discretion authorized by subsection (a) or (b) of this section to increase the number of challenges for either the plaintiffs or the defendants, the judge may, in the judge's discretion, increase the number of challenges for the opposing side, not to exceed the total number given to the other side.

History

(1905, c. 357; Rev., s. 1965; C.S., s. 2332; 1967, c. 218, s. 1; 2007-210, s. 1.)

Effect of Amendments. - Session Laws 2007-210, s. 1, effective October 1, 2007, and applicable to actions called for trial on or after that date, inserted "plaintiffs or several" in the section heading; designated the previously undesignated provisions as subsection (a); in subsection (a), substituted "the judge's" for "his," substituted "the judge" for "he," and deleted the last two sentences which read: "In either event, the same number of challenges shall be allowed each defendant or class of defendants representing the same interest. The decision of the judge as to the nature of the interests and number of challenges shall be final."; and added subsections (b) and (c).

CASE NOTES

No Authority to Allot a Defendant More than Six Challenges. - Having found that the interests of the defendants were antagonistic, this section authorized the trial judge in his discretion to either apportion between them the eight peremptory challenges allotted to the defendants or to increase the peremptory challenges of each defendant up to a maximum of six; it did not authorize the judge to allot either defendant more than six peremptory challenges. Shuford v. McIntosh, 104 N.C. App. 201, 408 S.E.2d 747 (1991).

Decision of Trial Judge is Final. - This section, which creates the exception to the general rule laid down by G.S. 9-19 regarding peremptory challenges, clothes with finality the decision of the trial judge as to how many challenges the several defendants will be allowed. State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951).


§ 9-21. Peremptory challenges in criminal cases governed by Chapter 15A.

Peremptory challenges in criminal cases are governed by Article 72, Selecting and Impaneling the Jury, of Chapter 15A of the General Statutes.

History

(22 Hen. VIII, c. 14, s. 6; 33 Edw. I, c. 4; 1777, c. 115, s. 85, P.R.; 1801, c. 592, s. 1, P.R.; 1812, c. 833, P.R.; 1826, c. 9; 1827, c. 10; R.S., c. 35, ss. 19, 21; R.C., c. 35, ss. 32, 33; 1871-2, c. 39; Code, ss. 1199, 1200; 1887, c. 53; Rev., ss. 3263, 3264; 1907, c. 415; 1913, c. 31, ss. 3, 4; C.S., ss. 4633, 4634; 1935, c. 475, ss. 2, 3; 1967, c. 218, s. 1; 1969, c. 205, s. 7; 1971, c. 75; 1977, c. 711, s. 14.)

Cross References. - For present provisions as to peremptory challenges in criminal cases, see G.S. 15A-1217.

CASE NOTES

Cited in State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).


ARTICLE 4. Grand Jurors.

§§ 9-22 through 9-26: Repealed by Session Laws 1973, c. 1286, s. 26.

Cross References. - For present provisions as to grand juries, see G.S. 15A-621 et seq.

§§ 9-27 through 9-31: Repealed by Session Laws 1967, c. 218, s. 1.

ARTICLE 5. Discharge of Jurors Prohibited.

Sec.

§ 9-32. Discharge of juror unlawful.

  1. No employer may discharge or demote any employee because the employee has been called for jury duty, or is serving as a grand juror or petit juror.
  2. Any employer who violates any provision of this section shall be liable in a civil action for reasonable damages suffered by an employee as a result of the violation, and an employee discharged or demoted in violation of this section shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
  3. The statute of limitations for actions under this section shall be one year pursuant to G.S. 1-54.

History

(1987, c. 702, s. 1.)

Legal Periodicals. - For article, "North Carolina Employment Law After Coman: Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

CASE NOTES

Dissent Erred In Claiming That Issue of Waiver Ex Mero Motu Could Be Addressed. - Dissent erred in raising an issue as to the waiver of sovereign immunity under G.S. 9-32 as the claim was not raised by the parties; the dissent's claim that issue of waiver ex mero motu could be addressed because the North Carolina Board of Nursing moved to dismiss the complaint pursuant to N.C. R. Civ. P. 12(b)(1) and 12(b)(2) was rejected as: (1) the Board only moved to dismiss a negligent infliction of emotional distress claim pursuant to Rule 12(b)(1) and 12(b)(2), (2) the Board moved to dismiss the violation of G.S. 9-32 claim pursuant to N.C. R. Civ. P. 12(b)(6), and (3) the parties stipulated that the trial court had both subject matter jurisdiction and personal jurisdiction. Abbott v. N.C. Bd. of Nursing, 177 N.C. App. 45, 627 S.E.2d 482 (2006).