State v. Cannon

• Decision Date: 20 December 1988
• Docket Number: No. 888SC342,888SC342
• Citation: 374 S.E.2d 604,92 N.C.App. 246
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Cornelius CANNON, David Lee Redmond (Redman).

Page 604

374 S.E.2d 604

92 N.C.App. 246

STATE of North Carolina v. Cornelius CANNON, David Lee Redmond (Redman).

No. 888SC342.

Court of Appeals of North Carolina.

Dec. 20, 1988.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Robert G. Webb, and Associate Atty. Gen. E. Burke Haywood, Raleigh, for the State.

Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant, appellant Cannon.

William D. Spence, Kingston, for defendant, appellant Redmond.

HEDRICK, Chief Judge.

Defendants Cannon and Redmond both assign error to the "[t]rial court's determination before trial and before the sentencing hearing of the sentence to be imposed upon defendant[s] in the event of a conviction, on the grounds that such determination was grossly improper and violated defendants' right to due process under the North Carolina Constitution and N.C.Gen.Stat. 15A-1340.3, 1340.4." The record indicates defendants' attorneys and the prosecutor had discussed plea bargains, but that the defendants refused to bargain and insisted on pleading not guilty, whereupon the trial judge made the following statement to the attorneys: "They've been put on notice and I hope that both of you gentlemen have indicated to your clients what I have indicated to you would be the penalty in the event of a conviction in this case." Citing State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977), defendants seem to argue they are entitled to new sentencing hearings because the judge determined before the trial what the sentences would be. In Boone, the record disclosed that the sentence imposed by the trial judge was in part induced by defendant's decision to plead not guilty and to demand a jury trial. The Supreme Court remanded the case for a resentencing hearing and, quoting the Court of Appeals, stated that "[t]he trial judge may have sentenced defendant quite fairly in the case at bar, but there is a clear inference that a greater sentence was imposed because defendant did not accept a lesser plea proffered by the State." Id. at 712, 239 S.E.2d at 465.

While the judge's statement set out in the record may have been inappropriate, we do not award defendants a new trial or a resentencing hearing. The events at the trial in the present case may bear some similarity to the factual situation in Boone, but in our opinion, Boone has no application here because it was decided before the Fair Sentencing Act took effect. Appellate review of sentences imposed under the Fair Sentencing Act differs from review of pre-Fair Sentencing Act sentences.

G.S. 15A-1444(al) states:

A defendant ... is entitled to appeal as a matter of right the issue of whether his sentence is supported by evidence introduced at the trial and sentencing hearing only if the prison term of the sentence exceeds the presumptive term ... and if the judge was required to make findings as to aggravating or mitigating factors....

Under the Fair Sentencing Act, the trial judge is required to make a record of aggravating and mitigating factors. This gives the reviewing court a means by which to decide whether the sentence is supported by sufficient evidence and whether the judge abused his discretion in weighing aggravating and mitigating factors. Pre-Fair Sentencing Act sentences were reviewed without the benefit of such a record. The following standard of review applied to a trial judge's determination of sentence:

There is a presumption that the judgment of a court is valid and just. The burden is upon appellant to show error amounting to a denial of some substantial right. A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. (Citations omitted).

State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).

In Boone, once the reviewing court decided that the judge considered improper matter in determining the sentence, it had little choice but to remand for a resentencing hearing. There was no record from which to evaluate the basis for the sentence imposed. Here, the circumstances are different and do not compel the same result. Following the jury's verdict of guilty, the trial judge considered each defendant's aggravating and mitigating factors. Upon finding that each defendant's aggravating factors outweighed his mitigating factors, the judge imposed sentences in excess of the presumptive term. Defendants have shown no abuse of discretion. These assignments of error have no merit.

Defendants assign error to "[t]he exclusion of six (6) black jurors from the jury on the grounds that the court implicitly found the exclusions to be prima facie evidence of a violation of defendant's right to equal protection and the state failed to rebut the prima facie showing; alternatively on the grounds that the exclusions were in fact prima facie evidence of a violation of defendant's right to equal protection." During jury selection, the State exercised a total of six peremptory challenges to members of the jury panel. Each of the six peremptory challenges was used to dismiss a black person. Defendants objected to the State's use of peremptory challenges, arguing that they were denied the right "to have [their] case heard by a representative cross section of the community." The trial judge overruled defendants' objections.

In their briefs, defendants argue they are entitled to a new trial because the State's use of peremptory challenges violated their constitutional right to equal protection of the laws as set out in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and State v. Jackson, 322 N.C. 251, 368 S.E.2d 838 (1988).

Our Supreme Court in Jackson stated:

In Batson v. Kentucky ... the United States Supreme Court overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and held a prima facie case of purposeful discrimination in the selection of a petit jury may be established on evidence concerning the prosecutor's exercise of peremptory challenges at the trial. In order to establish such a prima facie case the defendant must be a member of a cognizable racial group and he must show the prosecutor has used peremptory challenges to remove from the jury members of the defendant's race. The trial court must consider this fact as well as all relevant circumstances in determining whether a prima facie case of discrimination has been created. When the trial court determines that a prima facie case has been made, the prosecution must articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group. The prosecutor's explanation need not rise to the level of justifying a challenge for cause. At this point the trial court must determine if the defendant has established purposeful discrimination. Since the trial court's findings will depend on credibility, a reviewing court should give those findings great deference. (Citations omitted).

Id. at 254-55, 368 S.E.2d at 839-840.

Defendant Cannon also argues in his brief that he is entitled to a new trial because the State's use of peremptory challenges violated his rights under Article I, Section 26 of the North Carolina Constitution which states that "[n]o person shall be excluded from jury service on account of sex, race, color, religion, or national origin." In Jackson v. Housing Authority of High Point, 321 N.C. 584, 364 S.E.2d 416 (1988), our Supreme Court held that this provision of the State Constitution prohibits the use of peremptory challenges to exclude jurors on the basis of race.

We note at the outset that defendants have provided only a minimal record for review. The transcript shows the defendants' objections to the State's peremptory challenges to six black veniremen and the State's explanations for those challenges. However, we do not know the racial composition of either the jury venire or the jury that tried and convicted the defendants, nor do we have a transcript of the jury voir dire. The record before us shows that following the State's peremptory challenge to three black veniremen, defendants objected, and without any request from the court, the State offered explanations for dismissing those three veniremen. There is nothing in the record to indicate that the judge found that defendants had made the prima facie showing of purposeful discrimination as to those three veniremen. Following the State's peremptory challenge to three additional black veniremen, defendants again objected, and at this point the court directed the State to explain its reasons for those three dismissals.

Defendants argue that the State's explanations for its use of peremptory challenges are insufficient to rebut the presumption of purposeful discrimination. Defendant Redmond merely argues that all the State's explanations were "frivolous and did not show a non-discriminatory motive." Defendant Cannon contends these explanations were a pretext "to eliminate anyone who regularly walks the streets of the black community, that is, all black persons."

The trial court overruled defendants' objections to the State's challenges to the six black veniremen, finding that the peremptory challenges were not made with a purpose to discriminate. We have reviewed the explanations offered by the State for exercising its peremptory challenges against each of the six veniremen so challenged. The question before us is whether the trial court erred in finding the State's explanations sufficient to rebut any prima facie showing of purposeful discrimination that may have been made by defendants.

After paying special deference to the findings of the trial court as mandated by Jackson, we hold the court did not err in finding the State's explanations sufficient to...