# State v. McKoy > Supreme Court of North Carolina · September 7, 1988 · 323 N.C. 1 URL: https://www.frixlaw.com/law-library/cases/9567448 ## Case - **Full name:** STATE OF NORTH CAROLINA v. DOCK McKOY, JR., A/K/A DOCK McCOY, A/K/A DOCK McKAY, A/K/A PAUL McCOY - **Court:** Supreme Court of North Carolina - **Decided:** September 7, 1988 - **Citations:** 323 N.C. 1; 372 S.E.2d 12; 1988 N.C. LEXIS 583 - **Precedential status:** Published - **Opinion:** Dissent by Frye - **Judges:** Whichard, Martin, Frye, Exum - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by McKoy v. North Carolina, 494 U.S. 433 (1990). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567448 ## How later opinions describe it (automated extraction) - holding that trial court did not err in admitting statements made two hours after defendant’s blood alcohol level was 0.26 when trial court found that, during questioning, the defendant was coherent and that his answers “ ‘were extremely reasonable, responsive and appropriate’ ” ## Opinion text Justice FRYE dissenting. Believing that the defendant has not received a fair and impartial trial, I dissent from the majority’s decision in both the guilt-innocence and sentencing phases of the trial. First, I am convinced that under the totality of the circumstances, defendant’s oral confession was not knowingly and voluntarily made and, for that reason, its admission in evidence against him was error. These circumstances are set out in some detail in the dissenting opinion of Justice Martin in which he concludes that the defendant is entitled to a new trial. I concur in that portion of his opinion. I also conclude that the defendant is entitled to a new sentencing hearing as stated in the dissenting opinion of the Chief Justice for the reasons stated in his dissenting opinion. I write separately because I disagree with the majority’s treatment of two other issues which bear directly upon the guilt- *58 innocence phase of the trial and indirectly, if not directly, upon the jury’s determination of whether the defendant should receive life imprisonment or the death penalty. My first difference with the majority relates to its treatment of the fact that both the trial court and the prosecutor informed the jury that the trial was subject to appellate review. Defendant argued that the fact that both the trial court and the district attorney informed the jury that defendant’s trial was subject to appellate review constitutes reversible error; that conveying that information to the jury fatally undermined the reliability of the jury’s determination that defendant was guilty of murder in the first degree and the jury’s conclusion that death was the appropriate punishment. The majority responds by reviewing this Court’s decisions in State v. White, 286 N.C. 395 , 211 S.E. 2d 445 (1975), and State v. Jones, 296 N.C. 495 , 251 S.E. 2d 425 (1979), and the United States Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320 , 86 L.Ed. 2d 231 (1985), concluding that those cases stand for the proposition that statements by the trial court or prosecutor that tend to dilute the jury’s sense of responsibility for its determinations by suggesting that its verdict will be reviewed, or that the punishment imposed will be withheld, are impermissible and prejudicial. See 75 Am. Jur. 2d Trial § 230 (1974) (‘[comments ... on the power of the court to suspend sentence or to set the jury’s verdict aside, or statements that a higher court has the power to review the finding of the jury on the weight of the evidence, are calculated to induce the jury to disregard their responsibility, and are improper.’). The majority then proceeds to distinguish the above cases from the instant case. I find those cases controlling. In White , the prosecutor told the jury that “[if] any error is made in this court, [the Supreme] Court will say.” White, 286 N.C. at 402 , 211 S.E. 2d at 449 . Here, the prosecutor argued, “[t]here is a right of appeal to any interpretation of laws and application of laws which are present in this case.” Further, in White the court stated to the jury that “the Supreme Court will review this case.” Id. at 402 , 211 S.E. 2d at 449 . This Court concluded that by that “positive statement . . . *59 the jury was bound to have understood that the court assumed [that] their verdict would be guilty.” Id. at 404 , 211 S.E. 2d at 450-51 . Here, the judge told the jurors that the court reporter will be taking down everything that’s said or done during the trial so that everything is a matter of public record and then she can type up a transcript of a trial and they mail it down to the Supreme Court and the Supreme Court can review what we’re doing up here in Stanly County. The majority draws a distinction between the use of the words “will review” in White and “can review” in the instant case. The distinction, in context, is too fine. As this Court made clear in White , a jury in a capital case must weigh the evidence and find the facts on the assumption that whatever verdict they render will be the final disposition of the case. When the judge tells the jurors that the court reporter is taking everything down so that it is a matter of public record, that it will be mailed down to the Supreme Court so that the Supreme Court can review “what we’re doing up here in Stanly County,” reasonable jurors could easily believe, as stated by this Court, in State v. Jones, 296 N.C. 495, 500 , 251 S.E. 2d 425, 428 , “that the Supreme Court would share with them a burden and responsibility which was in fact their sole responsibility.” This belief is further encouraged when the court overrules defendant’s objection to the prosecutor’s argument that if convicted deféndant can appeal on points of law. As Chief Justice Sharp intimated in White , jurors may not fully comprehend “the nature of the Supreme Court’s review of a case upon appeal and . . . the difference between ‘triers of the facts’ and judges of the law.” White, 286 N.C. at 404 , 211 S.E. 2d at 450 . Here, the trial judge both directly told the jury that its verdict was subject to appellate review and, subsequently, sanctioned the State’s comments on that subject by overruling defendant’s timely objection. Given those facts and the prior holdings of this Court, defendant’s conviction and sentence of death should be vacated and this case remanded for a new trial. I also disagree with the majority’s treatment of defendant’s contention that the trial court erred by allowing the prosecutor, during voir dire, to “stake out” the jurors by obtaining commitments from them to disregard defendant’s intoxication in determining the existence of premeditation and deliberation and to *60 reject his voluntary intoxication defense. The purpose of voir dire examination of prospective jurors is to secure an impartial jury. State v. Banks, 295 N.C. 399 , 245 S.E. 2d 743 (1978). To assure that end, this Court has repeatedly held it improper for counsel to “stake out” jurors during voir dire by posing hypothetical questions designed to elicit in advance what a juror’s decision will be under a certain state of evidence or upon a given state of facts. See, e.g., State v. Rogers, 316 N.C. 203 , 341 S.E. 2d 713 (1986); State v. Avery, 315 N.C. 1 , 337 S.E. 2d 786 (1985); State v. Phillips, 300 N.C. 678 , 268 S.E. 2d 452 (1981); State v. Vinson, 287 N.C. 326 , 215 S.E. 2d 60 (1975), modified as to death penalty, 428 U.S. 902 , 49 L.Ed. 2d 1206 (1976). The prosecutor asked the prospective jurors “if it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you in your opinion to have sympathy for him and allow that sympathy to affect your verdict?” The jurors assured the prosecutor that they would not let that fact influence their decision. Further, at the sentencing stage, the prosecutor stated “he was drinking liquor and I told you before you were chosen as a juror that if it is shown that he’s intoxicated, were you going to have sympathy, sympathetic to his cause. As I recall, you said you wouldn’t.” Allowing the prosecutor to seek and obtain commitments from the jurors was tantamount to asking them to ignore evidence of intoxication in reaching their verdict and in determining the appropriate sentence. The evidence of defendant’s intoxication was overwhelming. Deputy Sheriff Lambert went to defendant’s home in response to a report that defendant was drunk and firing a shotgun. Deputy Lambert testified that defendant would mumble but he could not understand him and that defendant, though standing, was “wobbly.” The emergency room physician testified that defendant had a strong odor of alcohol, did not respond coherently to the doctor’s questions, and, notwithstanding a laceration to his skull and a wound to his left buttocks, did not complain of any pain and was not given any medication for pain. Defendant had a blood alcohol level of .264 shortly after the shooting. Dr. Robert Rollins, clinical director of the Dorothea Dix forensic psychiatry unit, included among defendant’s diagnoses: “episodic alcohol abuse,” “alcohol intoxication, recovered,” and *61 “organic delusional syndrome.” In Dr. Rollins’ professional opinion, defendant could not distinguish between right and wrong at the time of the offense and could not have formed the specific intent to kill the officer. In the opinion of Dr. Patricio Lara, another Dorothea Dix Hospital psychiatrist who also examined defendant, his intoxication, together with his limited intellectual functioning and personality disorder, resulted in an impairment of his ability, at the time of the offense, to conform his conduct with the requirements of the law. Intoxication, even when voluntary, may constitute a valid defense to the charge of murder in the first degree. See, e.g., State v. Lowery, 309 N.C. 763 , 309 S.E. 2d 232 (1983) (if defendant was intoxicated to a degree precluding premeditation and deliberation, he cannot be found guilty of murder in the first degree); State v. Medley, 295 N.C. 75 , 243 S.E. 2d 374 (1978) (defendant cannot be convicted of murder in the first degree if intoxicated to a degree sufficient to preclude forming a specific intent to kill). This Court has held that “[a] juror who reveals that he is unable to accept a particular defense or penalty recognized by law is prejudiced to such an extent that he can no longer be considered competent.” State v. Leonard, 296 N.C. 58, 62-63 , 248 S.E. 2d 853, 855 (1978). Thus, permitting defendant to be tried for his life by a jury whose members had expressly committed themselves to disregard what proved to be substantial evidence that defendant was highly intoxicated at the time the fatal shot was fired infringed upon his fundamental right to be tried by an impartial jury. As stated by the Supreme Court of Mississippi in Stringer v. State, 500 So. 2d 929 (1986): It is improper influence to put the jury in a ‘box’ by voir dire tactics which extract a promise, prior to trial, to ignore evidence favorable to the defendant. This promise or pledge prevents the jurors from considering all facts relevant to the verdict. The jurors are then called upon during closing arguments to fulfill that promise, and the effect — whether calculated or not — is to shame or coerce the jury into rejecting factors which would tend to mitigate against the death penalty- Id., 500 So. 2d at 936-37. *62 For all of the reasons indicated herein, and for the reasons set forth in the dissenting opinion of Justice Martin, defendant should be given a new trial. Even if his conviction is upheld, he should be given a new sentencing hearing for the reasons stated in the dissenting opinion of the Chief Justice. Proportionality Because I do not believe that defendant has received a fair trial free of prejudicial error, I would not reach the question of proportionality. However, since the majority reaches that question and finds that the death sentence is not disproportionate in this case, I write to express my disagreement with that conclusion also. As the majority correctly states, in conducting proportionality review, we “determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.” State v. Brown, 315 N.C. 40, 70 , 337 S.E. 2d 808, 829 (1985). There are four cases in the proportionality pool in which defendants killed law enforcement officers engaged in the performance of their official duties. Those cases are: State v. Payne, 312 N.C. 647 , 325 S.E. 2d 205 (1985), State v. Hill, 311 N.C. 465 , 319 S.E. 2d 163 (1984); State v. Abdullah, 309 N.C. 63 , 306 S.E. 2d 100 (1983), and State v. Hutch-ins, 303 N.C. 321 , 279 S.E. 2d 788 (1981). In Payne , defendant murdered a detective who had earlier arrested him on a drug charge. He handcuffed the detective’s hands behind his back and pushed him into a river to drown. The jury returned a verdict of life imprisonment. In Hill , a policeman chased and tackled the defendant who was suspected of having committed a felony. During the ensuing struggle, defendant managed to get possession of the officer’s pistol and shot and killed him. This Court found the death sentence disproportionate and sentenced defendant to life imprisonment. In Abdullah , defendant conspired with others to commit an armed robbery and shot the policeman several times during the course of the robbery, killing him. The jury returned a verdict of life imprisonment. In Hutch-ins , the defendant shot and killed two officers and then shot and killed a third officer who was attempting to arrest him. This Court upheld the sentence of death. *63 When considering the crime and the defendant and comparing this case with the crime and the defendants in the other four cases involving the killing of law enforcement officers, I find the instant case more like Abdullah, Hill, and Payne than Hutchins. Thus, I agree with defendant that to conclude that he deserves to die, when the defendants in Abdullah, Payne, and Hill were spared that ultimate penalty, would defeat the purpose of proportionality review mandated by the legislature, which, as this Court stated in State v. Jackson, 309 N.C. 26, 46 , 305 S.E. 2d 703, 717 (1983), “is to serve as a check against the capricious or random imposition of the death penalty.” Thus, were I to reach proportionality, I would find the death sentence in the instant case disproportionate as a matter of law and sentence defendant to life imprisonment. Chief Justice Exum joins in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567448. Public record. Not legal advice.