State v. Brower

• Citation: 289 N.C. 644,224 S.E.2d 551
• Decision Date: 14 May 1976
• Docket Number: No. 25,25
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Charles Alvin BROWER and James Cannon Johnson.

Page 551

224 S.E.2d 551

289 N.C. 644

STATE of North Carolina v. Charles Alvin BROWER and James Cannon Johnson.

No. 25.

Supreme Court of North Carolina.

May 14, 1976.

Charles H. Dorsett, Troy, for defendant-appellant Brower.

Carl W. Atkinson, Jr., Troy, for defendant-appellant Johnson.

Rufus L. Edmisten, Atty. Gen., and James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Defendants move to quash the petit jury array on the ground that potential Negro jurors were systematically excluded solely on the basis of race. In support of their motion to quash defendants submitted identical affidavits alleging that 24 percent of the population of Montgomery County is black (1970 Census of Population, 'General Population Characteristics of North Carolina,' Table 34, page 125, marked Defendants' Exhibit A), while only 8 (or .1360 percent) of the 59 veniremen drawn and available to serve were black. The trial court denied the motion on the ground that the supporting affidavits were insufficient to establish a basis for quashal. Defendants argue that the court erred in summarily denying their motion to quash without giving them an opportunity to offer further evidence and without requiring the State to show affirmatively an absence of systematic exclusion. This is the first assignment discussed in defendants' briefs.

Defendants correctly assert that when the array is challenged on the ground of systematic racial exclusion the challenger is entitled to reasonable time and opportunity to investigate and present evidence. See State v. Perry, 248 N.C. 334, 103 S.E.2d 404 (1958). Even so, there is no evidence in this record that defendants were not accorded that right. Counsel was appointed on 28 February 1975. Almost five months had elapsed during which defendants could have investigated all aspects of the alleged systematic exclusion of Negroes from the jury box of Montgomery County. Yet they supported their motion only with inadequate affidavits, and the record contains nothing to suggest that defendants desired more time to procure additional evidence on the question. We perceive no error incident to undue haste in passing upon the challenge to the array.

Defendants' argument presupposes that the affidavits were sufficient to make out a prima facie case of systematic racial exclusion which the State was required to rebut. We now examine the disputed validity of that supposition.

The following established legal principles have long been approved by both state and federal courts:

1. If the conviction of a Negro is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race, the conviction cannot stand.

2. If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it. But once he establishes a prima facie case of racial discrimination, the burden of going forward with rebuttal evidence is upon the State.

3. A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn.

4. A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged intentional exclusion of Negroes because of their race from serving on the grand or petit jury in his case. Whether he was afforded a reasonable time and opportunity must be determined from the facts in each particular case.

5. The mere denial by officials charged with the duty of listing and summoning jurors that there was no intentional, arbitrary or systematic discrimination on the ground of race is insufficient to overcome a prima facie case.

6. A jury list is not discriminatory because it is drawn from the tax list of the county. Nor is a jury commission limited to sources specifically designated by the statute.

7. An accused has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded.

Decisions, both state and federal, supporting these principles are cited and discussed in State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970), and State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972). In the case before us defendants contend that their showing by affidavits that 24 percent of the population of Montgomery County is black while only 13.56 percent of the veniremen called were black makes out a prima facie case of systematic racial exclusion. Not so.

The courts have never announced precise mathematical standards for demonstrating systematic racial exclusion. Rather, they emphasize a case-by-case factual analysis. Even when there is 'striking' statistical evidence of disparity between the ratio of the races in population and jury service, or of the progressive elimination of potential Negro jurors through the selection process, the courts have considered such evidence, Standing alone, insufficient to constitute a prima facie case of systematic discrimination. See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Accord, State v. Cornell, supra. To establish a prima facie case, defendants are generally required to produce not only statistical evidence establishing that blacks were underrepresented on the jury but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few Negroes have served on the juries of the county notwithstanding a substantial Negro population therein, or both. See Alexander v. Louisiana, supra; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); State v. Cornell, supra; State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968); State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968); State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870, Appeal dismissed and cert. denied, 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

Defendants' evidence in this case establishes at most that blacks were approximately 11 percent underrepresented on the venire from which the petit jury was drawn. There is no evidence as to what portion of the 24 percent black population of Montgomery County was actually eligible for jury service. There is no evidence disclosing the sources from which the names of the veniremen were chosen and no evidence that such sources identified prospective jurors by race. In short, there is no evidence that the selection procedures in any manner 'provided a clear and easy opportunity for racial discrimination.' Alexander v. Louisiana, supra. There is no evidence disclosing the number of Negroes serving on juries in Montgomery County prior to the selection of the venire in question and no evidence of repeated substantial discrepancies between the number of Negroes drawn for jury duty and the number to be anticipated in view of the racial ratio in the source materials. In short, there is no evidence to support a finding that for a substantial period of time there has been only token representation of the Negro race upon the juries of Montgomery County. In the absence of such evidence, '(w)e cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10 percent.' Swain v. Alabama, supra. Accord, State v. Cornell, supra.

Defendants have failed to carry the burden of establishing a prima facie case of intentional racial discrimination in the composition of the jury. Hence the State had nothing to rebut, and the trial judge correctly denied the motion challenging the array. This assignment is overruled.

The next assignment of error discussed in defendants' briefs is addressed to denial of their motion for a change of venue or, in the alternative, for a special venire from another county. G.S. § 1--84; G.S. § 9--12.

Motions for change of venue or special venire are addressed to the sound discretion of the trial judge and, absent abuse of discretion, his rulings will not be disturbed on appeal. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

In support of their motion defendants attached two newspaper articles appearing in the Montgomery Herald on 20 February 1975, one day after the commission of the crime, and on 17 July 1975, less than one week before the term of court at which defendants were tried. These newspaper accounts are factual--not inflammatory--in nature and appear to be well within the bounds of propriety. See State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1976); State v. Thompson, supra; State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973). Moreover, although several of the jurors stated they had read Exhibits A and B, every juror questioned stated unequivocally that he had formed no preconceived notions of defendants' guilt or innocence and could render a verdict uninfluenced by anything he read in the newspaper. Furthermore, the record does not disclose that defendants exhausted their peremptory challenges or that they accepted any juror objectionable to them. Thus, neither abuse of discretion nor prejudice has been shown. State v. Thompson, supra. This assignment is without merit and is overruled.

We now turn to the question whether the...