State v. Jackson

Decision Date05 May 1988
Docket NumberNo. 477A87,477A87
Citation368 S.E.2d 838,322 N.C. 251
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. James Wallace JACKSON.

Lacy H. Thornburg, Atty. Gen., by Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.

Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WEBB, Justice.

This appeal brings to the Court two questions. The first is whether there was error in the finding of the superior court that this black defendant's right to the equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution has not been violated by the discriminatory exclusion of members of his race from the petit jury. The second question involves the procedure which was used in the superior court to determine if such a violation had occurred.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, 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. Batson, 476 U.S. 98, n. 21, 106 S.Ct. 1724 n. 21, 90 L.Ed.2d 89, n. 21.

In this case the prosecutors stated as their criteria for selecting jurors that they be "stable, government oriented, employed and had sufficient ties to the community, and a mind-set ... that would pay more attention to the needs of law enforcement than the fine points of individual rights." In addition to this statement of the State's criteria for jury selection, other factors which the court may have taken into account were (1) one of the principal witnesses for the State was a black police officer, (2) the first peremptory challenge was to a white juror, (3) the State left a black person on the jury when it still had three peremptory challenges, and (4) there were no comments by either prosecutor which would indicate a discriminatory intent by the State. With the criteria advanced by the State and taking into account all circumstances of the case, we cannot hold, after paying special deference to the findings of the superior court, that it was error to deny the defendant's motion for mistrial.

In reaching this conclusion we have been helped by cases from other jurisdictions. In United States v. Cartlidge, 808 F.2d 1064 (5th Cir.1987), the following explanations were held sufficient: an excused juror was young, single and unemployed; another excused juror avoided eye contact; a third excused juror was divorced and appeared to have a low income occupation. In United States v. Mathews, 803 F.2d 325 (7th Cir.1986), rev'd on other grounds, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), a prosecutrix' statement was held to be a sufficient explanation for peremptory challenges to two jurors. The prosecutrix said one juror was late coming to court which indicated a lack of commitment to the importance of the proceedings. In the courtroom she did not seem to be attentive to the proceedings at hand. A second juror spent a great deal of time looking at the prosecutrix in what she felt was a hostile way. The prosecutrix felt she would be "strongly for or against her position." In People v. Cartagena, 128 A.D.2d 797, 513 N.Y.S.2d 497 (1987), a prosecutor's affidavit was held to be a sufficient explanation. The prosecutor said in his affidavit that he excused four black jurors based on "their educational backgrounds, their employment history, the employment of their spouses and children, and criminal record, if any." In Chambers v. State, 724 S.W.2d 440 (Tex.Ct.App.1987), no error was found when the prosecutor explained challenges to four jurors. He said one juror's religious preference was Church of Christ which the prosecutor felt was a "little bit away from the mainstream," he had not served on a jury before, the space on the jury card for name of husband or wife was marked "not applicable" and the space for number of children was unmarked, and his handwriting was not very legible. The explanation for excusing the second juror was that he had misspelled "Baptist," he was very young (23 years of age) and his name "rang a bell." A third juror was excused because she was a Jehovah's Witness which the prosecutor felt was a fringe religious group and her juror card indicated she was unmarried with two children. A fourth juror was excused because the prosecutor "just didn't feel like the juror was really attentive to what was going on. I had a feeling he was nodding his head a little too much towards you, and not enough towards me."

The defendant, relying on Slappy v. State, 503 So.2d 350 (Fla.App. 3d 1987), argues that the only legitimate criterion articulated by the State for challenging jurors was of a person more likely to value the needs of law enforcement than the rights of individuals. He says that only two of the excused jurors, one white and one black, fit this category. He contends that the criteria used by the State "sweep too broadly" to be valid. The defendant also argues that the criteria advanced by the State were not applied except to excuse black jurors. He contends the State gave disparate treatment to white and black jurors. Two black unemployed persons were challenged by the State and two white unemployed jurors were passed by the State. The defendant says this illustrates the disparate treatment. The State said stability was one criterion of its jury profile and the defendant assumes this means long term residency. Two blacks who had lived twenty and thirty years respectively in the community were excused. Two whites, one of whom had lived two years and the other had lived five years in the community, were kept on the jury. The defendant says this showed the disparate treatment by the State of prospective jurors.

We disagree with the defendant as to the validity of the criteria used by the State in its profile of acceptable jurors. We believe the profile showed, as found by Judge Ellis, that the State wanted a jury that was "stable, conservative, mature, government oriented, sympathetic to the plight of the victim, and sympathetic to law enforcement crime solving problems and pressures." These are legitimate criteria in picking a jury.

As to the two unemployed black jurors who were excused, there were additional factors which distinguished them in the eyes of the prosecution from the two unemployed whites who were not excused. One of the excused blacks had been a counselor at Shaw University and the State felt this might make her sympathetic to the defendant. The other was excused by the prosecution because her non-verbal communication suggested hostility and indifference. She had lived in the community for thirty years but the State did not feel this compensated for her hostility. The other black juror who was excused had lived in the community for twenty years but she had a son who was of the approximate age of the defendant. The prosecution stated it felt this might make her sympathetic to the defendant.

We might not have reached the same result as the superior court but giving, as we must, deference to its findings, we hold it was not error to deny the defendant's motion for mistrial.

The defendant also assigns error to the quashing of the subpoenas to Judge Stephens and Ms. Joan Byers, the prosecutors in the case. The defendant contends under this assignment of error that he was not allowed to put on evidence at the hearing. The record does not reveal evidence offered by the defendant other than testimony which might have been elicited from Judge Stephens and Ms. Byers. The only question raised by this assignment of error is whether the defendant had the right to examine the prosecutors in a hearing to determine if there has been a Batson violation.

In Batson the Supreme Court declined to formulate procedures to be followed in determining whether a constitutional violation had occurred. The question of examining the prosecutor was not raised in the cases cited above. In two cases federal courts have held that the judge could conduct an in camera hearing out of the presence of the defendant to let the prosecutor explain his reasons for peremptorily challenging black jurors. United States v. Tucker, 836 F.2d 334 (7th Cir.1988); and United States v. Davis, 809 F.2d 1194 (6th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987). In United States v. Thompson, 827 F.2d 1254 (9th Cir.1987) and United States v. Gordon, 817 F.2d 1538 (11th Cir.1987), vacated in part on other grounds, 836 F.2d 1312 (11th Cir.1988), it was held that a defendant is entitled to an in-court hearing but neither of these cases held the defendant is entitled to examine the prosecutor. The defendant relies on Roman v. Abrams, 608 F.Supp. 629 (S.D.N.Y.1985), mod. on other grounds, 790 F.2d 244 (2nd Cir.1986). We do not...

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