State v. Cofield

• Decision Date: 19 November 1985
• Docket Number: No. 856SC327,856SC327
• Citation: 77 N.C.App. 699,336 S.E.2d 439
• Parties: STATE of North Carolina v. Ernest Richard COFIELD.
• Court: North Carolina Court of Appeals

Page 439

336 S.E.2d 439

77 N.C.App. 699

STATE of North Carolina v. Ernest Richard COFIELD.

No. 856SC327.

Court of Appeals of North Carolina.

Nov. 19, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. W.F. Briley, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Louis D. Bilinois, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

By Assignment of Error No. 4 based upon Exception No. 5, defendant contends the trial judge erred in failing to quash defendant's indictment because discrimination against blacks in selection of grand jury foremen abridged defendant's due process and equal protection rights as guaranteed by the North Carolina and United States Constitutions.

It is well settled that purposeful discrimination against blacks in the selection of grand jury foremen is forbidden by the Fourteenth Amendment to the United States Constitution. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.E.2d 739 (1979). The narrow question raised by defendant is whether the evidence of discrimination in the record is sufficient to require us to reverse a conviction. We think the evidence before us is insufficient.

The presumption is that public officials have performed their duties in a fair, legal and constitutional manner. State v. Wilson, 262 N.C. 419, 423, 137 S.E.2d 109, 113 (1964). In order to rebutt this presumption in the context of grand jury foreman selection, the defendant must give testimony covering a significant period of time showing the number of different individuals serving as grand jury foremen, the number of blacks serving as grand jury foremen, the relative size of the black population in the relevant judicial district, and a sufficiently large disparity between the percentage of blacks in the population and the percentage of blacks serving as grand jury foremen to demonstrate that racial factors entered into the selection process. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979).

Uncontradicted testimonial evidence indicates that sixty-one percent of Northampton County is black. R.J. White testified that during the nearly eighteen years in which he has served as Northampton County Superior Court Clerk, only one black person served as grand jury foreman. The black grand jury foreman served two six-month terms starting in July of 1979. The record before us today, however, does not indicate the number of persons who have served as grand jury foremen over the relevant time period. As the United States Supreme Court has held, "[i]nasmuch as there is no evidence in the record of the number of foremen appointed, it is not possible to perform the calculations and comparisons needed to permit a court to conclude that a statistical case of discrimination has been made out and proof under the 'rule of exclusion' fails." Id. at 571-572, 99 S.Ct. at 3008, 61 L.E.2d at 759 (1979) (citations omitted).

Even if a violation of the Fourteenth Amendment could be found in the selection of grand jury foremen, reversal of an otherwise valid conviction is not mandated by any precedent binding on this Court. In fact, the United States Supreme Court has indicated that "[s]o long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foremen will distort the overall composition of the array or otherwise taint the operation of the judicial process." Hobby v. United States, 468 U.S. ----, ----, 104 S.Ct. 3093, 3098, 82 L.E.2d 260, 268 (1984).

By Assignment of Error No. 9, based upon Exceptions Nos. 17-20, defendant contends that "[t]he trial court erred in allowing the prosecutor, over the defendant's objections, to engage in a cross-examination of the defendant which improperly insinuated to the jury the prosecutor's opinion of the defendant's credibility."

The pertinent portions of the cross examination are as follows:

Q. Mr. Cofield, I'll ask you if on June the twenty-fifth, 1984, if you didn't talk with Debora Lynn in the same convincing manner that you are sitting there testifying to the members of the jury.

MR. LIVERMON: Object.

THE COURT: Sustained.

Q. And I'll ask you if you didn't convincingly then step inside then and grab her around her arm so that she couldn't move.

MR. LIVERMON: Object, if your Honor please.

THE COURT: Overruled.

A. No, sir.

Q. And, Mr. Cofield, I'll ask you then if you didn't stand there just as you are doing right now looking at her with nothing on your face and tell her--ask her--tell her that she was going to tell her husband and her father.

MR. LIVERMON: Object, if your Honor please. And I specifically direct my objection to the point that Mr. Beard comments on the actions of the defendant, as he is seated in the witness chair.

THE COURT: Well--I'm going to overrule the objection to the last question.

A. No, sir.

Q. And I'll ask you again if you weren't just as convincing today as you were on June the twenty-fifth when you talked with her at her front door.

MR. LIVERMON: Object.

THE COURT: Sustained.

You don't have to answer that.

The transcript clearly shows that the trial court sustained defendant's objections upon which Exceptions Nos. 17 and 20 were based. The trial court's prompt action removed any possibility of reversible error in regard to these two exceptions. State v. Brown, 39 N.C.App. 548, 251 S.E.2d 706, disc. rev. denied, 297 N.C. 302, 254 S.E.2d 923 (1979).

As to Exceptions Nos. 18 and 19, we note that the scope of cross examination is firmly lodged in the trial judge's discretion, and that a new trial will not be ordered unless the verdict was influenced by improper questions. Assuming without deciding that the questions at issue were improper, they did not have the degree of inflamatory impact necessary to mandate a new trial. State v. Bailey, 49 N.C.App. 377, 271 S.E.2d 752 (1980), disc. rev. denied, 301 N.C. 723, 276 S.E.2d 288 (1981).

Defendant asserts that the trial court erroneously denied a motion to continue and thereby denied defendant any adequate opportunity to examine certain items of evidence. The only evidentiary ground given by defendant in support of his motion to continue was the unavailability of certain "non-testimonial identification test results" conducted to detect the presence of defendant's hairs at the scene of the crime. The test results uncovered no evidence of defendant's hairs and were introduced at trial by defendant, not the State. The length of time available to study these negative test results which tend to support defendant's case could not concievably prejudice the defendant.

Whether a defendant bases his appeal upon an abuse of judicial discretion or a denial of his constitutional rights, he must show both error and prejudice stemming from the denial of his motion to continue before he is entitled to a new trial. State v. Penley, 6 N.C.App. 455, 170 S.E.2d 632 (1969), disc. rev. denied, 276 N.C. 85 (1970). Here, neither error nor prejudice has been shown.

By his final two assignments of error, defendant contends that at sentencing the trial court failed to adhere to the North Carolina Fair Sentencing Act, G.S. 15A-1340.1 et seq. Defendant contends that the trial court erred in finding the following non-statutory aggravating factor:

(a) That after committing the offense of second degree rape and thereafter stating to the victim that she was going to tell on him and have him hung, the defendant then choked her until she was unconscious.

The conduct described in the trial court's finding is an offense separate but joinable with the rape charge. The commission of a joinable offense may not be used as an aggravating factor under the fair sentencing act. State v. Puckett, 66 N.C.App. 600, 312 S.E.2d 207 (1984). Therefore, this case must be remanded for resentencing.

Because this case must be remanded for resentencing, we need not reach defendant's contention that the trial court erroneously found as an aggravating factor that the victim continues to suffer mentally and emotionally from this incident. The law regulating this question is clear. The impact of the crime on the victim is relevant to the question of sentencing. Where the trial court properly finds physical or emotional injury in excess of that normally present in an offense, he may consider the injury as an additional factor in aggravation or as proof that the offense was especially heinous, atrocious, or cruel. State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983).

On resentencing, the trial court should also be aware that a certain degree of emotional injury is inherent in all rape and it is presumed that the Legislature was guided by this fact when it set the presumptive sentence for rape.

No error in trial, remanded for resentencing.

PARKER, J., concurs.

BECTON, J., concurs in part and dissents in part.

BECTON, Judge, concurring in part and dissenting in part.

I concur in the majority's resolution of all issues except the equal protection issue. Believing that defendant made out a prima facie case of discrimination against blacks in the selection of grand jury foremen in violation of defendant's equal protection rights as guaranteed by the North Carolina and United States Constitutions, I dissent.

Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the...