State v. Hough

• Citation: 299 N.C. 245,262 S.E.2d 268
• Decision Date: 01 February 1980
• Docket Number: No. 44,44
• Parties: STATE of North Carolina v. Curtis HOUGH.
• Court: United States State Supreme Court of North Carolina

Page 268

262 S.E.2d 268

299 N.C. 245

STATE of North Carolina v. Curtis HOUGH.

No. 44.

Supreme Court of North Carolina.

Feb. 1, 1980.

Karen Bethea Galloway and Susan E. Barco, Durham, for defendant.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Francis W. Crawley, Raleigh, for the State.

COPELAND, Justice.

By his second assignment of error, defendant contends that the trial judge erred in denying his motion to quash the indictment returned by the grand jury and to quash the petit jury venire on the grounds that the method of juror selection in Union County results in a significant under-representation of blacks ¹ in violation of the Sixth and Fourteenth Amendments. These contentions are without merit. We shall discuss defendant's Fourteenth Amendment equal protection claim first.

A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). He is constitutionally entitled not to have members of his race systematically excluded from grand juries and from petit jury venires. State v. Cornell, supra; State v. Spencer, supra. When the defendant alleges such racial discrimination, the burden is upon him to establish it. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

In order to establish a violation of equal protection, a defendant must show that he is a member of a recognizable, distinct class or group which has been purposely discriminated against and singled out for different treatment under the laws as written or applied. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The intentional discrimination may be proven by showing that the procedure employed for the selection of jurors has resulted in substantial under-representation of his race or identifiable group for a significant period of time. State v. Hardy, supra; Castaneda v. Partida, supra. In turn, this substantial under-representation must be proven by comparing the proportion of the group in the total population to the proportion called for service on the grand jury or placed on the petit jury venire. State v. Hardy, supra; Castaneda v. Partida, supra. This under-representation must be to such an extent as to show intentional discrimination. Washington v. Davis, supra.

Also, a showing that the selection procedure is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. See, Castaneda v. Partida, supra (selection procedure subject to abuse because jury commissioners subjectively chose those whom they felt were moral, upright and would make good jurors); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (significant statistical disparity and subjective selection method both shown); Whitus v. Georgia, 385 U.S 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (highly subjective selection method). Once the defendant has made out a Prima facie case of discriminatory purpose, the burden then shifts to the State to rebut that case. State v. Hardy, supra; Castaneda v. Partida, supra.

Here, defendant produced the following relevant evidence at the hearing on the motion to quash the indictment and the petit jury venire. For the 1976-77 biennium, the jury commission for Union County prepared a list of 6,000 names. They started at the last of the alphabet and worked back taking every fifth name from the voter registration list for Union County. They did the same with the tax list taking every third name. Seventy-four names were taken randomly from the telephone book.

They purged approximately 545 names from the list. This was accomplished by comparing the compiled list with the jury list from the previous biennium and deleting the names of those who were on the previous list. The commissioners also testified that, pursuant to additional instructions set forth in a manual published by the Institute of Government, Manual for Jury Commissioners, pp. 6-8 (1973), they deleted the names of those whom they knew were disqualified due to old age or physical disability.

The jury commissioners compiled this list by hand and secretaries in the office of the Clerk of Court typed up the approximately 6,000 names individually on index cards. These cards were then turned over to the Register of Deed's office. For the 1978-79 biennium, the list was compiled by computer according to procedures determined by the jury commission for that biennium. The tax list and voter registration list were again used, but this time they began at the beginning of the alphabet in systematically taking names by computer for the jury list.

The jury commissioners who testified stated that they did not know the percentage of blacks on the tax list, the voter registration list, on their compiled jury list, or in Union County. Addresses accompanied the names on one of the lists they used to compile the jury list. Some commissioners testified that they might be able to tell from an address whether a person lived in a predominantly white or black neighborhood but there was no indication that they followed any procedure other than the prescribed systematic procedure. Another commissioner testified that they did not have time to look at the addresses since they had to compile the list by hand for the 1976-77 biennium and, as noted above, the list was compiled systematically by computer for the 1978-79 biennium.

James Michael O'Reilly testified for the defendant that he took samples from the compiled jury list and compared them with the total black population in Union County eligible for jury service. He determined that 82.4 percent of the population of Union County eligible for jury service in 1977 was white and 17.6 percent was black. He found that 11.2 percent to 12.5 percent of the jury pool for the 1978-79 biennium was black. The percentage of eligible blacks in the county minus the percentage of blacks in the jury pool equals the absolute disparity in the representation of blacks on the jury list. Here, there is an absolute disparity of 5.1 percent to 6.4 percent.

He also computed comparative disparity figures. Absolute disparity divided by the percentage of eligible blacks in the county equals comparative disparity. He found that for the 1978-79 biennium blacks were from 28.6 percent to 36.5 percent less likely to be placed on the jury list than whites. For the 1976-77 biennium, he found an absolute disparity ranging from 3.2 percent to 4.7 percent and comparative disparities ranging from 18.4 percent to 27.6 percent.

We hold that this evidence fails to present a Prima facie case of racial discrimination in violation of the equal protection clause of the Fourteenth Amendment. Defendant is black and blacks constitute a cognizable group. State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, Cert. denied sub nom., 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). However, defendant has failed to show a substantial under- representation of blacks as required by Hardy and Castaneda.

Defendant maintains that in measuring this under-representation we should use comparative rather than absolute disparity figures. His argument is that absolute disparity figures fail to take into account the total eligible black population in the county. Thus, blacks in counties with a low black population will suffer more harm if we allow the same level of absolute disparity in those counties that we allow in counties with a larger black population.

We consider absolute disparity figures and we do so on a case by case basis. State v. Brower, supra. This means that we consider the percentage of blacks in the jury pool in light of the percentage of eligible blacks in the county's population. In Cornell, it was stated that 20 percent of the population of Forsyth County was black while the jury pool was 10 percent black. This 10 percent disparity was held insufficient to make out a Prima facie case of racial discrimination. We hold that, given a black population in Union County of 17.6 percent, an absolute disparity, which by defendant's calculation ranges no higher than 6.4 percent, is insufficient to make out a Prima facie case.

Furthermore, the disparities are not due to a subjective selection procedure that is subject to abuse as was the case in Castaneda, Turner and Whitus. The selection procedure for Union County for the past two bienniums was conducted in compliance with the objective, systematic procedure set forth in G.S. 9-2 Et seq. which was held to be constitutional in State v. Cornell, supra. The fact that some jury commissioners may have been able to identify the race of some of the potential jurors from their addresses was held insufficient in Cornell to show an opportunity for discrimination. We cannot say that purposeful discrimination has been proven by showing a disparity of 6.4 percent. State v. Cornell, supra; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (absolute disparity of 10 percent held insufficient to show purposeful racial discrimination).

Defendant also maintains that he has been denied his Sixth Amendment right (as applied to the States by the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, Rehearing denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968)) to a jury representing a fair cross-section of his community.

The Sixth Amendment does require that jury pools represent a fair cross-section of the community and that no identifiable group be systematically excluded. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In order to establish a Prima facie case of a violation of this requirement, ...