State v. Adcock

• Citation: 310 S.E.2d 587,310 N.C. 1
• Decision Date: 10 January 1984
• Docket Number: No. 121A83,121A83
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Billy Raye ADCOCK.

Page 587

310 S.E.2d 587

310 N.C. 1

STATE of North Carolina v. Billy Raye ADCOCK.

No. 121A83.

Supreme Court of North Carolina.

Jan. 10, 1984.

Rufus L. Edmisten, Atty. Gen. by Donald W. Stephens, Asst. Atty. Gen., Raleigh, for the State.

Robert W. Wyrick, Jerry B. Clayton and Susan F. Olive, Durham, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the failure of the trial judge to quash the indictment charging him with murder and to quash the petit jury panel. He contends that the grand and petit jurors were selected in a discriminatory manner and did not represent a cross section of the community. By this assignment of error he also argues that the trial judge erred by refusing to order at State's expense an update analysis of Durham County jury panel and master jury list.

In support of the first portion of this assignment of error, defendant relies upon Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), for the proposition that the sixth amendment guarantees that an accused must be tried by a jury composed of individuals who reflect a cross section of the community in which the crime was committed.

The defendant must carry the burden of showing a prima facie violation of this requirement by demonstrating that a distinctive group was clearly underrepresented as a result of the jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). A person who seeks to carry this burden does not need to be a member of the discriminated class to assert his rights to a representative petit jury. Taylor v. Louisiana, 419 U.S.

                522, 95 S.Ct. 692, 42 L.Ed.2d 690.   When a defendant establishes such a prima facie case, the burden shifts to the State to rebut the established prima facie case.  State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977)
                

In order to establish a prima facie case of violation of the fair cross section principle a defendant must show that: (1) the group alleged to have been excluded is a distinctive group; (2) 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) 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); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); see also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Price, we held that a fourteen percent absolute disparity, standing alone, was not sufficient to show that black citizens were not fairly reflected in the jury pool. In Cornell, we found that purposeful discrimination based on race was not shown by evidence of underrepresentation of blacks on the jury panel by as much as ten percent. Swain v. Alabama, supra, held likewise.

Evidence of underrepresentation requires a comparison of the proportion of the identifiable group in the total population to the population called for jury service. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980).

In instant case, defendant, a white man tried by an all white jury, relied solely upon data prepared by Mr. James O'Reilly, of the Duke University Sociology Department, which tended to show an absolute disparity of 7.8 percent of underrepresentation of black citizens in Durham County on the jury panel. We therefore conclude that defendant has failed to offer evidence tending to show that the representation of the group in question within the venire was not fair and reasonable with respect to the number of such persons in the community; furthermore, defendant has offered no evidence to show that there was any systematic exclusion of the group in the jury selection process. He has therefore failed to establish a prima facie case showing violation of the fair cross section principle set forth in Price, Avery, and Cornell.

Neither do we find merit in defendant's contention that the trial judge erred in denying his motion for a fee for Mr. O'Reilly to update his data as to Durham County from 1979 to the date of the trial.

In State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), we in part stated:

There are, then, no constitutional or legal requirements that private investigators or expert assistance always be made available simply for the asking. (Citation omitted.) Our statutes, G.S. 7A-450(b) and 7A-454, as interpreted in Tatum [State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976) ] and Montgomery [State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976) ] require that this kind of assistance be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. Neither the state nor the federal constitution requires more.

292 N.C. at 278, 233 S.E.2d at 911. (emphasis in original).

We glean from our search of the transcript that defense counsel was of the opinion that he could establish a ten percent absolute disparity of underrepresentation of black citizens on the jury in Durham County if Mr. O'Reilly were paid for two days additional work. Assuming this to be true, we hereinabove have demonstrated that such evidence would not aid in establishing the prima facie case which defendant sought to raise. Further, defendant has failed to show a reasonable likelihood that Mr. O'Reilly's additional services would have materially assisted defendant in his defense or that without such evidence he probably would not have received a fair trial.

This assignment of error is overruled.

By his second assignment of error defendant contends that the jury selection procedures at trial deprived him of a fair and impartial trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

In support of his position defendant first avers that the trial court erred by denying his motion to prohibit death qualification of jurors.

This Court has consistently rejected this argument. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976). Defendant cites no precedent or argument which would persuade us to overrule this well-established line of authority.

We further find no merit in defendant's contention that the trial judge erred by denying his motion to limit the questions asked of jurors concerning their views on capital punishment.

It is well recognized in this jurisdiction that both the State and defendant have a right to question prospective jurors about their views on the death penalty so as to insure a fair and impartial verdict. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974), modified, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1207 (1976). The extent and manner of inquiry into prospective jurors' qualifications in a capital case is a matter that rests largely in the trial judge's discretion and his rulings will not be disturbed absent a showing of an abuse of that 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). Here defendant has failed to show any abuse of discretion on the part of the trial judge.

Under this assignment of error defendant next contends that the trial judge erred by denying his motion for individual voir dire of prospective petit jurors.

In support of this position defendant cites State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). Both of these cited cases stand for the proposition that a motion to examine prospective jurors individually is directed to the trial judge's sound discretion and his ruling will not be disturbed absent a showing of abuse of that discretion. Accord State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983); State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). Again, defendant has shown no abuse of discretion on the part of the trial judge in instant case.

Defendant filed a pretrial motion requesting the trial judge to instruct each juror prior to his voir dire examination as follows:

(Members of the jury). You may be asked questions concerning your attitude towards capital punishment. In this regard, I give you the following instructions. In the event that the defendant is found guilty of first degree murder, and only in that event, the law requires that the jury consider, on the basis of factors as to which I will instruct you, whether or not the death penalty should be imposed.

Thus, in the event the defendant is found guilty of first degree murder, the law requires that even if you are absolutely opposed to capital punishment, you should consider whether a sentence of death should be imposed. You must not lightly disregard your obligation as a juror. Where possible, you should subordinate your personal feelings about capital punishment to the duty imposed by law. I repeat that this duty is that you consider whether a death sentence should be imposed in the case before you.

In responding to the questions which will be put to you regarding the death penalty, you must keep in mind your duty as a juror as I have just explained it to you.

Defendant cites no authority to support this motion and our research discloses none. Again, defendant seeks to invade the discretionary This assignment of error including subsections a through d is overruled.

power of the trial judge's duty to supervise and control the course of the trial. We find no abuse of discretion in the denial of this motion. Neither do we find error of omission or commission in the court's instructions to the jury concerning their...