Folston v. Allsbrook

• Decision Date: 01 November 1982
• Docket Number: No. 82-6116,82-6116
• Citation: 691 F.2d 184
• Parties: 11 Fed. R. Evid. Serv. 1874 Wilbur William FOLSTON, Jr., Appellant, v. Harry L. ALLSBROOK; State of North Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 184

691 F.2d 184

11 Fed. R. Evid. Serv. 1874

Wilbur William FOLSTON, Jr., Appellant, v. Harry L. ALLSBROOK; State of North Carolina, Appellees.

No. 82-6116.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1982.

Decided Sept. 27, 1982.

Rehearing Denied Nov. 1, 1982.

Dan T. Coenen, Charlotte, N. C. (Fleming, Robinson, Bradshaw & Hinson, P. A., Charlotte, N. C., on brief), for appellant.

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten Atty. Gen., of North Carolina, Raleigh, N. C., on brief), for appellees.

Before HAYNSWORTH, Senior Circuit Judge, and MURNAGHAN and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

Wilbur Folston, Jr., appeals the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. He contends the district court erred in not conducting an evidentiary hearing on his claim that the grand jury was unconstitutionally constituted, and in not finding constitutional error in the admission of certain evidence in the state court trial. We affirm.

A Cleveland County, North Carolina, jury convicted Folston of first degree murder and armed robbery in connection with the 1975 shooting death of a service station attendant. Folston originally was sentenced to death, but the North Carolina Supreme Court subsequently vacated his sentence and substituted a sentence of life imprisonment.

The evidence at trial was that Folston, Robert Hardy and Kevin Green were traveling together by car in the early morning of July 31, 1975. Hardy, the driver, pulled into a service station near Morganton, North Carolina, about 4:30 a.m. The attendant was forced by Folston and Green to empty the cash register at gunpoint, and then was shot to death. Folston, Hardy and Green were apprehended later the same day, following a high speed chase.

Folston and Hardy entered pleas of not guilty; Green was permitted to plead guilty to second degree murder in exchange for his agreement to testify against his codefendants. Prior to trial Folston moved to quash his indictment alleging, among other things, that women had been systematically underrepresented on the grand jury which indicted him. This motion was denied; Folston also was unsuccessful in his efforts to have his trial severed from Hardy's.

At trial, Green testified regarding his version of events at the service station, and also testified, over defense objections, to conversations which occurred while all three codefendants were held in the same cell in late November, 1975.

Following his conviction and affirmance by the North Carolina Supreme Court, Folston brought this habeas corpus action, contending that the state trial judge erred in refusing to quash the indictment and sever the trials, and in admitting Green's testimony regarding the jailhouse conversations. The district court judge rejected all of Folston's contentions and dismissed his petition without holding an evidentiary hearing on his grand jury claim, finding that he was required to accept the result of the state court determination under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1968). We agree.

In Townsend the Court held that a district court evidentiary hearing on a state prisoner's federal habeas corpus claim is not necessary, provided the prisoner received a full and fair evidentiary hearing in a state court, either at the time of trial or in a collateral proceeding. The Court set forth the specific circumstances under which an evidentiary hearing becomes mandatory:

If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Id. at 313, 83 S.Ct. at 757.

Folston contends that an evidentiary hearing was required in his case because (2) the state factual determination was not fairly supported by the record and (5) material facts were not adequately developed at the state court hearing.

The evidence presented by Folston at the state hearing on his motion to quash the indictment was that only four out of eighteen Burke County ¹ grand jury members were female in each of the years 1974, 1975 and 1976. In 1973, there were six female grand jury members. The state introduced evidence that the grand jury selection procedures in Burke County were in accordance with the requirements of state law, ² and that the grand and petit juries were selected from the same pool. The master list was composed of every sixth name from the voting list, and every eighth name from the tax list, minus those statutorily excluded from service. Based on this evidence, the state trial court denied Folston's motion to quash, ruling that "there is no evidence before the Court to indicate that the Jury Commission in either County has intentionally, systematically or arbitrarily discriminated against females ... when it acted in connection with securing the jury list or following the applicable statutes in connection with the makeup of the jury list in either county." The North Carolina Supreme Court affirmed, ruling that a prima facie case of discrimination against women was not made out because the defendants failed to introduce evidence of the percentage of women in the total county population. State v. Hardy, 293 N.C. 105, 114, 235 S.E.2d 828, 834 (1977). Folston points to this ruling as the basis for his second Townsend contention-that material facts were not adequately developed at the state court hearing.

The state court's finding of no discrimination is fully supported by the record. This would remain the case even if Folston had introduced evidence as to the percentage of women in the county; thus, the fact is not "crucial to the adequate consideration of the constitutional claim," as is required under the Townsend exception for material facts.

The requirements for establishing a prima facie case of systematic discrimination in the grand jury context are set forth in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977):

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied.... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.... Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.... Once the defendant has shown substantial underrepresentation of his group, he has made a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut the case.

Assuming, arguendo, that Folston made a prima facie case, the State's evidence rebutted any inference of intentional discrimination. Unlike the "key-man" system at issue in Castaneda, the North Carolina system was predicated on a random selection process; it was completely impartial. The State presented evidence of how the jury commissions operated and of how the potential jurors were selected, thereby dispelling any inference of intentional discrimination.

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