State v. Brown

• Citation: 271 N.C. 250,156 S.E.2d 272
• Decision Date: 25 August 1967
• Docket Number: No. 577,577
• Parties: STATE, v. Livingston BROWN.
• Court: United States State Supreme Court of North Carolina

Page 272

156 S.E.2d 272

271 N.C. 250

STATE, v. Livingston BROWN.

No. 577.

Supreme Court of North Carolina.

Aug. 25, 1967.

Atty. Gen. T. W. Bruton and Staff Atty., Theodore C. Brown, Jr., for the State.

John Randolph Ingram, Asheboro, for defendant appellant.

PARKER, Chief Justice.

This is the second time that this case has been on appeal before this Court. In the former trial, defendant Brown, after a plea of not guilty, was found guilty of murder in the second degree. From a sentence of imprisonment, he appealed to this Court. The opinion in the first appeal was filed 15 January 1965, and is reported in 263 N.C. 327, 139 S.E.2d 609. According to the record in the first appeal, he did not challenge the validity of the grand jury that found the indictment, either in the trial court or in this Court. On 26 July 1966, the Honorable Eugene A. Gordon, United States District Judge, handed down a memorandum opinion, which is not reported but is set forth verbatim in the case on appeal, in which he recites that petitioner has filed with his court a petition for writ of habeas corpus, accompanied by an affidavit of poverty. He further recites in his memorandum opinion: 'The evidence of the petitioner tended to show that the 1960 census indicates that the white population was 56,369 and the Negro population was 5,105 in Randolph County. A compilation of the jury lists covering the period from February 1, 1960, to September 1, 1964, from the County Commissioners and the Clerk of the Superior Court of Randolph County reflect that white persons numbered approximately 1,587 and Negroes numbered approximately 33. Further evidence reflects that Negroes on the jury lists were designated by 'c' or 'col.' Also, the grand jury which indicted petitioner and the petit jury which convicted him were 'all white.' The fact that the Negro population of Randolph County represents approximately nine per cent of the entire population and that only thirty-three Negroes have been placed on the jury lists in a 3 1/2 year period established a prima facie case that there was systematic exclusion of Negroes from grand juries and petit juries because of race. (Citing authority.) The fact that the designations of 'c' or 'col.' were used on the jury lists to indicate Negroes also presents a prima facie case of systematic exclusion. (Citing authority.) The law of North Carolina is in accord. (Citing authority.) Since the petitioner established a prima facie case, the burden of going forward with the evidence is upon the respondent. (Citing authority.) The respondent offered no evidence on the issue of systematic exclusion of Negroes. * * *' Whereupon, he decreed and adjudicated as follows: 'As petitioner has established a prima facie case of systematic exclusion of Negroes from the grand jury and petit jury due to race and the respondent has not shown by competent evidence that the institution and management of the jury system of the county was not in fact discriminatory, the indictment upon which he was tried and his conviction and judgment pronounced thereon should be vacated and set aside. The respondent, if it so elects, may reindict and retry the petitioner, provided such action is taken within the next six months. Otherwise, the petitioner will be discharged.'

The practice in a habeas corpus hearing by District Courts of the United States of vacating months or years later indictments upon a point which should have been raised and decided in the trial court or in the Supreme Court of the state does not tend to inculcate respect for law and order or the reasonably prompt administration of justice. It seems that with countless petitions by defendants to review their trials upon a point that they had an opportunity to raise and did not in the trial court means that there is no end to criminal litigation. This is an utter negation of the legal principle Interest reipublicae ut sit finis litium.

The indictment vacated and set aside by Judge Gordon was found at the 22 June 1964 Session of Randolph County Superior Court. The indictment in the present case was found at the 28 November 1966 Session of Randolph County Superior Court. Before pleading to the bill of indictment, the defendant moved to quash the second indictment because Negroes were systematically excluded from service on juries in Randolph County because of their race, and assigns the following reasons for his motion: (1) At the November 1966 Criminal Session of the Superior Court of Randolph County the solicitor presented a bill to the grand jury that was all white, selected from a panel that had only one Negro on it. This was the grand jury that found the bill in the present case. (2) According to the 1960 Census for Randolph County, North Carolina, the Negro population of Randolph County was 5,106 and the white population was 56,360. (3) Since Judge Gordon's order, no effort has been made by the County Commissioners of Randolph County to correct this disparity between the number of Negro citizens in Randolph County and the disproportionate few in number selected to serve on juries, and the same token selection of Negroes has prevailed since Judge Gordon's order as proved by the September 1966 Criminal Session jury panel.

The defendant introduced in evidence the memorandum opinion of Judge Gordon, and affidavits showing that there was only one Negro on the jury panel at the September 1966 Criminal Session of Randolph and two on the jury panel at the November 1966 Session, and affidavits showing the racial balance in Randolph County establishing that Negroes number about nine per cent of the population of that County.

When the defendant rested, the solicitor for the State offered the evidence of Ira L. McDowell, who testified as follows:

'As chairman of the Board of Commissioners of Randolph County I did supervise the compiling of the jury list that is now in effect in Randolph County. The grand jury for the 1966 terms of the Criminal Court of Randolph--the names were taken from this present jury list.

'The exact procedure that was used, and where the information was obtained, in making up the jury list that is now in effect in this county is as follows: The information was obtained from the books in the Board of Elections office--the registration books. And every person who had registered in Randolph County's (sic) name was copied. Then, when that was done, the list was taken to the tax office, and compared with the ones in the tax office, and the ones that didn't appear on this first list was taken then and put in the box.

'The jury list that is now in effect is a list taken from the registration lists and the tax records of Randolph County. Every name that appeared on either of these two lists was placed in the box. In preparing this list, there was not any designation on any of the jury lists as to race, creed or color. We copied the names and address and township. This is all that appears on the cards.

'You can not tell, when you're drawing a jury list from Randolph County, from this list, the race or color of the individual's name you draw from the box. The jury list for the December--or for the November 28th Criminal Term of Randolph County, 1966 was drawn from this list. This list was put into effect April 20th, 1965. All of the jurors for the Superior Court of Randolph County since that date have been drawn from this list.

He testified on cross-examination:

'No effort has been made to include on this jury list such people as those who are on the welfare, welfare recipients, or people who have utilities, use public utilities, in Asheboro and Randolph County. I have not checked to see if there are people using public utilities, such as Carolina Power and Light or telephone service, whose names are not on the voter registration list. And, specifically since July 26th, 1966, the date of Judge Gordon, United States District Court Judge (sic) I have done nothing to correct the disparity in the number of Negro names in this jury list and bring it more into proportion with the number of Negro citizens in Randolph County.'

At this point, counsel for defendant and the solicitor for the State said that was all the evidence they had. The court said: 'I will deny your motion to quash the bill.' In denying the motion, Judge Johnston entered an order in which he finds the following pertinent facts:

'2. The court has heard the evidence offered by the defendant and the arguments of counsel.

'3. That the Grand Jury who returned the bill of indictment a true bill was drawn from the jury box of Randolph County in the manner provided by law.

'4. That the jury box was prepared on July 1, 1965, with names taken from the tax records and voter registration records of Randolph County of July 1, 1965, and that each name that appeared on either of these records was placed in the jury box, but without duplication, at that time.

'5. That the names were on separate paper slips and that there was nothing on any of the names or paper slips that were placed in this box to indicate the person's race, creed, or color.

'6. That there is no sufficient evidence before this court to indicate in what proportion members of the white and Negro races' names appeared in the jury box.

'7. That the Grand Jury who returned the bill of indictment a true bill was all white.

'8. That there is no sufficient information before the court as to the number of Negroes on the panel from which the Grand Jury was drawn, but that there was at least one Negro on the panel.'

Based upon his findings of fact, he made this conclusion:

'The Court is of opinion that there was no systematic exclusion of Negroes from the Grand Jury of Randolph County that returned this bill of indictment a true bill and that no person was excluded because of race, color or creed.'

Whereupon, he ordered that the motion to quash the indictment be and it hereby is denied. Defendant excepted and assigns that as error. After that was done, counse...