State v. Hardy

• Decision Date: 14 July 1977
• Docket Number: No. 23,23
• Citation: State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (N.C. 1977)
• Parties: STATE of North Carolina v. Robert Louis HARDY and Wilbur William Folston, Jr.,
• Court: North Carolina Supreme Court

Page 828

235 S.E.2d 828

293 N.C. 105

STATE of North Carolina v. Robert Louis HARDY and Wilbur William Folston, Jr.,

No. 23.

Supreme Court of North Carolina.

July 14, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

J. Bruce McKinney and Claude S. Sitton, Morganton, for defendant Hardy.

H. Dockery Teele, Jr., and W. Harold Mitchell, Valdese, for defendant Folston.

COPELAND, Justice.

Defendants, through counsel, moved the court to quash the indictments against them on the ground that there was arbitrary and systematic exclusion of blacks, women, and 18 through 21 year olds from the grand and petit juries. Defendants claim the court erred by ruling that there was no evidence of arbitrary or systematic exclusion of certain classes of people from the grand or petit juries and by denying their motions to quash. In this assignment of error, we are concerned with the grand jury selection process in Burke County, the county where the bills of indictment were returned, and the petit jury selection process in Cleveland County, the county to which the cases were transferred for trial.

A defendant has the burden of establishing discrimination in the composition of the jury. State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972). Both defendants concede that they failed to offer any evidence of discrimination against any groups in the selection of petit juries in Cleveland County. Consequently, defendants are not entitled to relief on this ground. Instead, defendants rely on evidence of alleged discrimination in the selection of Burke County grand juries.

In its latest pronouncement on the subject of grand jury selection, the United States Supreme Court indicated the elements that must be shown by a defendant in order to make out a prima facie case of discrimination against a particular group.

"(I)n order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws as written or as applied. (Citation omitted.) Next, the degree of under-representation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. (Citations omitted.) . . . Once the defendant has shown substantial under-representation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." Castaneda v. Partida, --- U.S. ----, ----, 97 S.Ct 1272, 1280, 51 L.Ed.2d 498, 510-11 (1977); accord, State v. Cornell, supra; State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

The only evidence presented by the defendants on their motions was the lists of the grand jurors who served terms in Burke County expiring during the years 1973 through 1976. According to defendants' calculations, during this four-year period only 14 of the 51 grand jurors who served, or 27%, were women (by our calculations only 17 of 69 grand jurors, or 25%, were women). Of those grand jurors who served during 1976 and returned the indictments upon which defendants were tried, 4 of 18, or 22%, were women. Defendants did not introduce evidence of the proportion of women in the total population of Burke County but ask us to take judicial notice "of the fact that women make up at least 50% of our population, and in fact, in most instances, constitute more than one-half of the population." The percentage of women in a given county is not properly the subject of judicial notice. Without this element of proof, defendants have failed to show any under-representation of women on grand juries in Burke County and no prima facie case of discrimination against women has been made out.

Some question arises as to whether defendants, who are all male, have any right to complain of under-representation of women on grand juries, assuming it were proven. Defendants cite us to Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which held that a male defendant could challenge the exclusion of women from a petit jury. Clearly, Taylor v. Louisiana is distinguishable from the case at bar because the challenge was to the composition of a petit jury and the decision was bottomed on a defendant's Sixth and Fourteenth Amendment right to an impartial jury trial in a criminal case, which the United States Supreme Court interpreted to mean a trial by a representative cross section of the community. By contrast, a challenge to the composition of a grand jury is necessarily based on either a Fourteenth Amendment due process or equal protection claim. From the language of Castaneda v. Partida, supra, it would appear a defendant must show that he belongs to the under-represented group before he can maintain an equal protection challenge to the grand jury composition. But see Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) which indicates that a due process claim can be maintained by a nonmember of an excluded group.

By the same token, we question whether a grand jury system which excluded 18 to 21 year olds would violate defendant Hardy's right to equal protection under the laws, defendant Hardy being 24 years of age at the time crimes were allegedly committed. We also have serious reservations as to whether the 18 to 21 year age group would be considered a constitutionally identifiable group under Castaneda v. Partida, supra. It is doubtful that every characteristic that distinguishes one group of people from another is constitutionally significant. It may be that the exclusion of a group would not render invalid an indictment by a grand jury so long as there is no reasonable basis for the conclusion that the ineligible group would bring to the jury a point of view not otherwise represented upon it. See Taylor v. Louisiana, supra; Peters v. Kiff, supra; State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967). In any event, defendants failed to introduce any evidence of the proportion of 18 to 21 year olds serving on the grand juries in Burke County or of their percentage in the population of the county.

Likewise, defendants did not present evidence of under-representation of members of their race on the grand juries of Burke County. Defendants claim that because Burke County keeps no records of the race of the members of the jury list or of persons actually selected to serve on juries it is difficult, if not impossible, for them to meet this burden of proof. Defendants acknowledge that this record keeping system reduces the possibility of intentional racial discrimination but claim that it precludes any examination of whether the procedures are inherently discriminatory with respect to blacks.

As support, defendants cite State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970), which held that a defendant must be allowed a reasonable time and opportunity to inquire into and present evidence of racial discrimination in jury selection. State v. Spencer and the cases cited therein involved denials of a defendant's motion for a continuance to gather evidence of discrimination. In the present case, defendants never moved for a continuance and apparently never attempted by any means to ascertain the racial composition of the past grand juries. Where there is absolutely no evidence presented of racial discrimination and defense counsel has made no efforts to produce proof, this Court will not presume it. See State v. Wright, supra; State v. Ray, supra.

Defendants argue that the trial judge erred in not making findings of fact supporting his ruling on their motions to quash. To the contrary, the court found that there was no evidence before it to indicate that the jury commission in either county had intentionally, systematically or arbitrarily discriminated against any of the groups mentioned. The court's finding was sufficiently supported by the evidence (or lack of it). Moreover, the judge is only required to make findings when the evidence is contradictory and conflicting as to material facts. State v. Wilson, supra. Here there were no contradictions or conflicts in the evidence presented. Defendants' evidence did not show any discrimination.

Although it was not required to come forward with evidence because no prima facie showing of discrimination had been made, the State offered evidence tending to show that the institution and management of the jury system in both counties was not in fact discriminatory. State v. Wilson, supra. Letters from the jury commission in each county indicated that the statutory procedure for the selection of jurors prescribed in Chapter 9 of the General Statutes was followed. We have held that the North Carolina statutory plan for the selection of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group. State v. Cornell, supra ; State v. Wilson, supra.

These statutes leave little to the exercise of official discretion. Although under G.S. 9-2, the jury commissions could have used sources of names other than the voter registration records and tax lists of the counties in the preparation of the lists of jurors, they did not. Both jury commissions used a neutral systematic selection procedure (e. g. every sixth name) in selecting names from the source lists as required by G.S. 9-2, and it appears that the only criteria used in striking names from the jury lists were the permissible disqualifications set out in G.S. 9-3. The trial court properly denied defendants' motions to quash and the assignment of error is overruled.

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