State v. Avery

• Citation: 261 S.E.2d 803,299 N.C. 126
• Decision Date: 01 February 1980
• Docket Number: No. 34,34
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Bernard AVERY.

Page 803

261 S.E.2d 803

299 N.C. 126

STATE of North Carolina v. Bernard AVERY.

No. 34.

Supreme Court of North Carolina.

Feb. 1, 1980.

Chambers, Stein, Ferguson & Becton by James C. Fuller, Jr., Charlotte, for defendant-appellant.

BROCK, Justice.

In his first argument to this Court defendant-appellant contends that the trial court denied him his Fourteenth and Sixth Amendment rights in failing to quash an allegedly discriminatory jury venire. Defendant contends that he made a prima facie showing of constitutional violations and thus the burden shifted to the State to rebut his prima facie case. For the reasons which follow we hold the defendant did not make such a showing.

The defendant brings forward an equal protection argument as well as an argument that he was denied a jury from a fair cross-section of the community. Defendant interchangeably cites numerous United States Supreme Court opinions as supporting both these contentions. In Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599, 603 (1967) in describing the defendant's claim of racial discrimination in violation of the Fourteenth Amendment the United States Supreme Court stated "(t)here is no controversy as to the constitutional principle. (' . . . (A) conviction cannot stand if it is based on an indictment of the grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race.' 385 U.S. at 549, 87 S.Ct. at 646, 17 L.Ed.2d at 603.) (T)he question involved is its application to the facts disclosed in this record."

The pertinent facts relating to the racial makeup of Mecklenburg County and the county's jury selection process follow. As prescribed by G.S. 9-2 the jury commissioners of Mecklenburg County used the tax list and voter registration list in compiling a master jury list. This raw list of 160,716 of which over 150,000 came from the voter registration list was fed into the computer of the Mecklenburg County data processing department which randomly selected every 2nd, 4th, 8th, 12th and 15th name. This selection produced a final list containing 53,572 names. A card was then punched by the computer for each name and these cards were alphabetized and locked in a file kept in the custody of the Mecklenburg County Register of Deeds. In his argument to this Court defendant-appellant is not questioning the validity of the selection system per se. This argument was raised earlier in State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972) and this Court found that a jury list was not discriminatory nor unlawful simply because it was drawn from the tax list of the county. It is the racial composition of the list employed of which the defendant is complaining. In 1978 the total population of Mecklenburg County was 400,000 and of this total figure 24% Were blacks. Defendant contends use of the tax lists and voter registration lists in selecting the jury pool fails to adequately represent Mecklenburg County's black population. In 1978 there were 240,000 persons possibly eligible to vote in Mecklenburg County, of these 184,293 persons were actually registered to vote. This figure of 184,293 may be broken down into 156,036 white voters and 28,257 black voters. In other words, 15% Of the registered voters in Mecklenburg County were blacks. The evidence presented at the voir dire on defendant's motion to quash the jury pool showed that there was no attempt to discourage blacks from voting, and that voter registration was easily available. However, when presented with the opportunity 84% Of the white population registered to vote while only 51% Of the black population registered. The defendant offered evidence which tended to show the jury commissioners knew the percentage of black voters was lower than white voters. The defendant complains that the percentage of blacks on the tax list is even lower than the voter registration list but agrees that 15% Black in the jury pool is a workable figure. Thus the statistics presented by the defendant show Mecklenburg County with a population of 24% Black and a jury pool with a composition of 15% Black. This creates a 9% Deviation between the percentage of blacks in Mecklenburg County and the percentage of blacks in the jury pool. It is on these facts that we must determine the validity of defendant's claims of constitutional violation.

We turn first to defendant's Fourteenth Amendment right to be free from racial discrimination. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879) held that Negroes were an identifiable class, and as noted earlier if the defendant was convicted by a jury from which Negroes were systematically excluded on account of their race then his conviction cannot stand. Whitus v. Georgia, supra; State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). The defendant however is not entitled to a jury of any particular composition, nor is there any requirement that the jury actually chosen must mirror the community and reflect various and distinctive population groups. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). At the outset it must be noted that:

" . . . (T)he fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the (equal protection) Clause. 'A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race, or by unequal application of the law to such an extent as to show intentional discrimination.' (Citations omitted.) Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597, 607 (1976). See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, n.26, 58 L.Ed.2d 579, 589 (1979); Castaneda v. Partida, 430 U.S. 482, 509-10, 97 S.Ct. 1272, 1288, 51 L.Ed.2d 498, 520 (1977) (Powell, J.; dissenting)."

The evidence offered by the defendant in this case fails to show a discriminatory purpose on the part of the Mecklenburg County jury commission. In fact, the voir dire testimony tended to show exactly the opposite. Charles Williams, a jury commissioner, stated that the commission gave more weight to the voter list for it presented a fairer cross-section of the community. Presentation of this evidence which showed an attempt by the jury commission not to discriminate along with a showing that the jury commissioners followed the guidelines of G.S. 9-2 does not make a prima facie showing of purposeful systematic exclusion in violation of the Fourteenth Amendment.

Defendant relies on cases where the United States Supreme Court found an identifiable group was the subject of systematic exclusion. All of these cases are distinguishable from the case at bar; first, due to a much greater statistical deviation between the total population of the identifiable group and its membership in the jury venire, and secondly, because in cases relied on by the defendant, the jury selection system was one of personal preference or subjective selection on the part of the commissioners, and therefore subject to much greater abuse.

The case of Castaneda v. Partida, supra, concerns systematic exclusion of Mexican Americans in Hidalgo County, Texas. Hidalgo County contained a Mexican American population totaling 79.1%, yet the percentage of Mexican American grand jurors was only 39%, creating a 40% Disparity between actual population and jury service. In selecting its juries the Hidalgo County jury commission utilized what was known as "the key man" system. This selection process allowed the jury commissioners to select individuals whom they personally felt were moral and forthright, and would make good jurors. As Mr. Justice Marshall pointed out in his concurring opinion, the selection system was entirely discretionary with Spanish surnamed persons being easily identifiable and thus excludable. By showing such a large numerical disparity of 40% And a totally subjective selection procedure, the defendant made out a prima facie case for selective exclusion requiring the State to rebut the showing.

The two other cases principally relied on by the defendant in advancing his Fourteenth Amendment claim are Whitus v. Georgia, supra, and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). Turner was a class action brought by a Negro school child and her father. The case arose in Taliaferro County, Georgia which has a population composed 60% Of Negroes, the statistics from Taliaferro County showed that while Negroes composed 60% Of the general population, they composed only 37% Of the list from which the grand jury was drawn. This created a disparity in the jury pool of 23%. Coupled with this high percentage of disparity was the totally subjective method in which jurors were selected. Potential jurors were placed into the jury pool "whenever a jury commissioner thought a voter . . . qualified as a potentially good juror." 396 U.S. at 350, 90 S.Ct. at 535, 24 L.Ed.2d at 573. No name was selected for the jury pool unless personally known to one of the jury commissioners as "upright or intelligent." In Turner the United States Supreme Court noted a background of racial discrimination, and based upon this background, statistical evidence of a 23% Disparity between total population and percentage in the jury pool, and a selection system grossly susceptible to abuse, the court found that the defendant had made a prima facie showing of systematic exclusion. In the case at bar the defendant presents no evidence comparable to that presented to the United States Supreme Court in Turner.

In Whitus v. Georgia, supra, the same jury selection procedure was employed with selection being based on the jury commissioner's...