State v. Harbison, 1

• Decision Date: 11 November 1977
• Docket Number: No. 1,1
• Citation: 293 N.C. 474,238 S.E.2d 449
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William HARBISON, Jr.

Page 449

238 S.E.2d 449

293 N.C. 474

STATE of North Carolina v. William HARBISON, Jr.

No. 1.

Supreme Court of North Carolina.

Nov. 11, 1977.

James C. Fuller, Jr., Charlotte, and John H. McMurray, Morganton, for defendant-appellant.

HUSKINS, Justice:

When this case was called for trial on the morning of 30 August 1976 defendant moved for a continuance "to allow him reasonable opportunity and time to investigate and produce evidence, if such exists, in respect to the allegation of racial discrimination as to the petit jury as set forth in this motion." The unverified motion alleges that: (1) Thirty-two persons had been summoned and appeared for jury service, all of the white race and none of the Negro race; (2) more than 10 percent of the total population of Burke County are members of the Negro race; (3) lack of a reasonable number of members of the black race on the petit jury panel indicates systematic exclusion of members of the Negro race from jury service in Burke County; and (4) the number of Negroes, if any, on the petit jury for this session of criminal court of Burke County was unknown to defendant until such jurors appeared in the courtroom for jury service.

The motion for continuance was denied. This constitutes defendant's first assignment of error.

The record shows that the names of sixty prospective jurors, corresponding to numbered decals drawn from the box, were taken from the master jury list and certified on 6 July 1976. Those names were available to the public generally and to defense counsel particularly from and after that date. On 30 August 1976, the date this case was called for trial, thirty-two of the sixty prospective jurors appeared in court ready to serve. All were members of the white race. Of the twenty-eight persons who did not report for jury duty, there is no evidence to show how many had died or moved away and were not summoned due to the sheriff's inability to locate them. There is no evidence of record to show how many rendered an excuse and were excused from jury duty by the chief district judge. There is nothing in the record to indicate how many, if any, were Negroes. The record does show that several members of the Negro race served on the jury during the previous week.

Defendant was represented by Attorney McMurray who was appointed on 27 April 1976 and also by Attorney Fuller whose firm had been privately retained on a date not shown by the record. Both are able, experienced attorneys, and Mr. McMurray has practiced law in Burke County for more than twenty years.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). However, if the motion is based on a right guaranteed by the federal and state constitutions, it presents a question of law and the order of the court is reviewable. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970). Defendant urges as error denial of his constitutional right to a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic exclusion of Negroes because of their race from serving on the petit jury in his case, citing State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970), as authority. For reasons which follow, we find no merit in this contention.

Decisions both state and federal hold that: (1) a defendant is not entitled to a proportionate number of his race on the jury which tries him, on the venire from which petit jurors are drawn, or even to have a representative of his race on the jury; (2) a defendant 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; and (3) a defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic 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. The authorities 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 his argument to the trial court in support of the motion for a continuance, defense counsel stated: "As I understand the cases, they provide that if this motion is made, even though it's made and the court is of the opinion that it's made purely for the purpose of a continuance, due process State vs. Spencer holds, as I understand it, that the defendant is entitled to additional time to make that investigation." The statement is erroneous; counsel is acting under a misapprehension of the law. Upon the facts disclosed by the record in this case, defendant had "a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic exclusion of Negroes" from serving on the petit jury in his case. Attorney McMurray was appointed on 27 April 1976. The sixty-member venire was drawn and made public on 6 July 1976. The case was duly calendared and thereafter called for trial on 30 August 1976. At 11:15 a. m. that morning defendant's motion for a continuance was filed. Admittedly, no investigation concerning the jury selection process had been undertaken and no evidence had been compiled, statistical or otherwise, tending to establish that blacks were under-represented in the jury box or on the jury, or that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few Negroes had served on the juries of Burke County notwithstanding a substantial Negro population therein. The only evidence urged in support of the motion for continuance is the naked fact that sixty prospective jurors were drawn from the box and thirty-two of them, all white, appeared for jury duty. This fact alone does not even suggest a systematic exclusion of Negroes from the petit jury. "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)." State v. Brower, 289 N.C. 644, 653, 224 S.E.2d 551, 558-59 (1976).

It places no undue burden on defense counsel to require them to make investigations into jury composition and selection procedures prior to the time of trial, so long as the time between retention or appointment of counsel, the date the jury panel is drawn, and the date of trial is not so brief as to make such investigation impractical. Compare State v. Inman, 260 N.C. 311, 132 S.E.2d 613 (1963); State v. Perry, 248 N.C. 334, 103 S.E.2d 404 (1958). The jury list from which petit jurors are selected is prepared biennially, G.S. 9-2, is a public record, G.S. 9-4, and the jury commissioners who possess knowledge of the sources from which the master jury list is compiled are local residents. G.S. 9-1. Persons who wish to be excused from jury duty must apply to the chief district judge, or another district judge designated by him, at a publicly announced time and place. G.S. 9-6(b). The record here shows that the names of the sixty jurors were publicly known for fifty-five days prior to the time the case was called for trial. This afforded defense counsel reasonable time and opportunity to inquire into the race of each juror, the composition of the jury box, the procedures for drawing the jury, the race and number of jurors not summoned by the sheriff and the reason therefor, the race and number of jurors excused, and the practices and procedures employed by the chief district judge when passing upon excuses. Failure to make such inquiry creates no constitutional right, in the name of Due Process, to additional time for such investigation simply because all jurors who reported for jury duty on the day defendant's case was called for trial were white. An automatic continuance for such inquiries, upon motion lodged for the first time when the case is called for trial, would fatally disrupt every session of court.

Under the facts of this case defendant has not been deprived of a reasonable opportunity to investigate the "possibility" of systematic exclusion of blacks from the petit jury. The lateness of the motion for a continuance suggests only a natural reluctance to go to trial and affords no basis to conclude that the trial judge abused his discretion or violated defendant's...