McNeil v. State of North Carolina

• Decision Date: 08 September 1966
• Docket Number: No. 10557.,10557.
• Parties: Sandy Lee McNEIL, Appellant, v. STATE OF NORTH CAROLINA and Major William C. Brown, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

368 F.2d 313 (1966)

Sandy Lee McNEIL, Appellant, v. STATE OF NORTH CAROLINA and Major William C. Brown, Appellees.

No. 10557.

United States Court of Appeals Fourth Circuit.

Argued June 21, 1966.

Decided September 8, 1966.

Walter Erwin Fuller, Jr., Raleigh, N. C., Court-assigned counsel, for appellant.

Theodore C. Brown, Jr., Asst. Atty. Gen. of North Carolina (Thomas Wade Bruton, Atty. Gen. of North Carolina, on brief), for appellees.

Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

The crucial question raised by this appeal is whether the petitioner waived his constitutional right to indictment and to trial by juries from which Negroes had not been systematically excluded. In June of 1959, the petitioner was convicted of second degree burglary in a jury trial in Lenoir County, North Carolina, and sentenced to 33 years in the state penitentiary. The issue of systematic exclusion of Negroes from the grand and petit juries of Lenoir County was not raised before or at his trial. A direct appeal was withdrawn. In 1963, a post-conviction proceeding in the state courts, which was dismissed after plenary hearing, did not raise this issue.¹ In 1964, in the case of Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77, the Supreme Court reversed a conviction on the ground that there had been systematic exclusion of Negroes from the lists from which the juries of Lenoir County were chosen. The period covered by the testimony in that case included the time when this petitioner was tried. The district court, without requiring the state to answer or holding a plenary hearing, assumed the fact of systematic exclusion but pointed out that the record before him showed neither a motion to quash the indictment nor a challenge to the petit jury array. The court also pointed out that it had been the law of the land for almost eight decades that discrimination against Negroes as to jury service was unconstitutional; that petitioner's counsel, a resident of the community, was aware of the local practice and that the petitioner himself, a local resident must have been aware of the custom and was, therefore, in a position to call the matter to the attention of his counsel if systematic discrimination existed.² The court concluded that since both the petitioner and his counsel were chargeable with knowledge of any violation of the petitioner's constitutional rights, their failure to raise the issue at the trial constituted a waiver of the privilege. We hold that this is not the proper standard for deciding this issue.

In Johnson v. Zerbst, 304 U.S. 458, at page 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the Court defined a waiver as "an intentional relinquishment or abandonment of a known right or privilege." In that opinion, the Court reminded the bench and the bar that every reasonable presumption against a waiver of fundamental constitutional rights should be indulged. Again, in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the Court pointed out that mere silence of the record raised no presumption of waiver, nor should waiver be found in the absence of some affirmative conduct on the part of a defendant evidencing a deliberate and conscious rejection of a constitutional guarantee. The Court said: "Where, as in this case, the constitutional infirmity of trial without counsel is manifest, and there is not even an allegation, much less a showing, of affirmative waiver, the accused is entitled to relief from his unconstitutional conviction." Id. at 517, 82 S.Ct. at 890.

It remained for the Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963), to restate in emphatic language what it had said about waiver in earlier decisions. Mr. Justice Brennan, writing for the Court in this landmark decision, declared that:

"The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 — `an intentional relinquishment or abandonment of a known right or privilege\' — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits * * *. At all events we wish it clearly understood that the standard of waiver here put forth depends on the considered choice of the petitioner. * * * A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court\'s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question." 372 U.S. at 439, 83 S.Ct. at 849. (Emphasis added.)

We cannot agree that the failure to object at his trial to the jury's composition was the considered choice of Sandy Lee McNeil. There is no evidence which shows that Sandy Lee McNeil, after intelligent consultation with his attorney, understandingly and knowingly forewent the privilege of being indicted and tried by constitutionally selected juries. In short, given the Fay v. Noia standard, there is no basis of support for the conclusion that Sandy Lee McNeil waived the fundamental constitutional right he now asserts. We hold, therefore, that there was no intentional relinquishment of a known right, and for the state to subject a defendant to this situation amounts to a denial of due process and equal protection of the law guaranteed by the Fourteenth Amendment. Cobb v. Balkcom,³ 339 F.2d 95 (5 Cir. 1964).

One of the primary cases upon which the court below relied was this court's decision in United States ex rel. Jackson v. Brady, 133 F.2d 476, cert. denied, 319 U.S. 746, 63 S.Ct. 1029, 87 L.Ed. 1702 (1943). That case involved an appeal by two Negroes from the district court's dismissal of their petitions for writs of habeas corpus. The two defendants charged that there had been racial discrimination in the selection of the grand jury which indicted and the petit jury which tried and convicted them. No objection to the method of selection of the grand jurors was made at any time during the state court proceedings, and the objection to the composition of the petit jury took the form of only a general challenge to the array.

When the Brady case was before the lower court, the district judge took evidence on the jury discrimination point and found as an ultimate fact that there had been no intentional and...