State v. Mitchell

• Decision Date: 09 March 1988
• Docket Number: No. 273A86,273A86
• Citation: 321 N.C. 650,365 S.E.2d 554
• Parties: STATE of North Carolina v. Larry Ray MITCHELL.
• Court: North Carolina Supreme Court

Page 554

365 S.E.2d 554

321 N.C. 650

STATE of North Carolina v. Larry Ray MITCHELL.

No. 273A86.

Supreme Court of North Carolina.

March 9, 1988.

Lacy H. Thornburg, Atty. Gen., by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for the State.

James L. Dellinger, Jr. and Terry L. Collins, Dobson, for defendant-appellant.

MITCHELL, Justice.

The defendant was tried upon proper indictments and convicted of murder in the first degree, armed robbery, aiding and abetting in armed robbery, and felonious conspiracy. In the murder case the jury found the defendant guilty on both the theory of felony murder and the theory of premeditation and deliberation. At the sentencing hearing the jury found that the aggravating circumstances outweighed the mitigating circumstances and that the aggravating circumstances were "sufficiently substantial to call for the imposition of the death penalty." N.C.G.S. § 15A-2000(c)(2) (1983). The trial court entered judgments on 28 March 1986 sentencing the defendant to death for murder in the first degree and to imprisonment in each of the other cases. The defendant appealed his murder conviction and death sentence to this Court as of right pursuant to N.C.G.S. § 7A-27(a). We allowed the defendant's motion to bypass the Court of Appeals as to the appeals of the other convictions in an order entered 26 May 1987.

On appeal the defendant makes numerous assignments of error relative to the guilt-innocence phase and the sentencing phase of his trial. We conclude that one assignment has merit. The trial court's refusal at each phase of this capital trial to permit both counsel for the defendant to address the jury in the defendant's final argument constituted prejudicial error per se. Accordingly, the defendant is awarded a new trial.

The State's evidence at trial tended to show that on 30 January 1985, the defendant was with Don Love and Davie Reynolds in a car driving along U.S. 52 and Cook School Road in Surry County near Pilot Mountain, North Carolina. The defendant told the driver of the vehicle, Reynolds, to pull the car over to the side of Cook School Road within view of Arnold's Amoco Store. The defendant then asked whether Arnold's Amoco Store would be a good place to "hit." The defendant asked Reynolds if he was "game" for robbing the store. Reynolds said that he was not. The defendant then asked Love if he was "game" to rob the store. Love said that he was. The defendant asked Love if he had his "piece" (referring to his gun) with him and told Reynolds to drive by Arnold's Amoco so he could look at the store. As the car drove past the store, the defendant slid down in his seat and told Reynolds to pull off on the next road past the store and stop. The defendant then asked Reynolds to go down to the Arnold's Amoco and see if there was a back door and also see how many people were in the store. After Reynolds returned from the store, the defendant said he would "handle" the cash register in the store. Love said he would "handle" the people. The defendant pulled out the gun he was carrying and placed it in an outside pocket. The defendant and Love then proceeded toward Arnold's Amoco on foot.

As the defendant and Love walked toward the store, the defendant took out his pistol, a .25 caliber automatic, and pulled back on the weapon to place a bullet in the chamber. The defendant said that he "wouldn't leave nobody talking." Inside the store were Howard Bryant, Frank Jones, and Charlie Hunter. The defendant and Love entered the store with their guns concealed. The defendant asked Bryant if the store sold beer. Bryant said that they did not. Subsequently, the defendant drew his gun, grabbed Hunter around the neck, pointed the gun at Bryant and told him to open the cash register. The defendant said that he had "killed two the night before and it don't make no difference if I kill any more." After the cash register was open, the defendant forced Bryant and Hunter to lie face down on the floor. The defendant took approximately $1,000 from the store's cash register. The defendant then put his gun to the back of Bryant's head, searched his pockets, and took five silver dollars from him. Love also drew his pistol, a .22 revolver, and forced Jones to give him his wallet containing $270 in cash.

During the course of the robbery, Danny Hall drove into the parking lot of Arnold's Amoco with his wife, intending to cash a check. Hall opened the front door of the store and started to enter. As Hall was entering the store, he noticed the robbery in progress. The defendant ordered Hall to "get in here," but Hall turned and started to run. The defendant grabbed him, but Hall broke lose and continued to run. Hall said, "Don't shoot me." The defendant said, "No you don't, come back here." The defendant then fired his gun at Hall twice, and one of the shots struck Hall killing him. The defendant then left, firing another shot toward the store. He and Love got into the car and were driven away by Reynolds. The defendant later told George France and Craig Simmons that he had killed someone and showed Simmons how he had shot Hall in the back.

The defendant offered no evidence at the guilt-innocence phase of the trial. During the sentencing phase, he offered the testimony of his sister as to his bad family life. The State presented as aggravating circumstances that the defendant had a previous conviction for second degree murder in 1971, and one for assault with a deadly weapon with intent to kill inflicting serious bodily injury in 1985.

The defendant, a thirty-three-year-old black male, first assigns as error the exclusion of black jurors on the basis of race. On 27 February 1986 the defendant filed a motion to prohibit the State from peremptorily challenging black jurors. This motion was denied. The defendant also filed a motion to require the court reporter to note the race of every potential juror examined to perfect the record and determine if there was a substantial likelihood that any jurors were challenged on the basis of race. This motion was also denied. The defendant argues that in denying his motion to prohibit the State from peremptorily challenging black jurors, the trial court set no limits concerning the basis upon which the prosecutor could peremptorily challenge any juror. He contends that the denial of this motion violated his right to trial by an impartial jury under the sixth amendment and article 1, section 24 of the Constitution of North Carolina.

It is now a well-settled principle that the use of peremptory challenges to exclude potential jurors solely on account of their race is unconstitutional. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986). Indeed, this principle is so fundamental that it extends to discrimination in the selection of grand jury foremen, State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987), and to the selection of jurors in civil cases, Jackson v. Housing Authority, 321 N.C. 584, 364 S.E.2d 416 (1988).

In Batson the Supreme Court of the United States held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Batson, 476 U.S. at 89, 106 S.Ct. at 1718-19, 90 L.Ed.2d at 83. The Court established a three-part test for a defendant to establish a prima facie case of purposeful discrimination:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' (citations omitted). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. Thus, the burden is on a criminal defendant who alleges racial discrimination in the selection of the jury to establish an inference of purposeful discrimination. The defendant must provide the appellate court with an adequate record from which to determine whether jurors were improperly excused by peremptory challenges at trial. Statements of counsel alone are insufficient to support a finding of discriminatory use of peremptory challenges. Jackson v. Housing Authority, 321 N.C. at ---, 364 S.E.2d at 417.

The defendant here, however, does not rely on Batson for relief. He relies instead on an argument based upon rights emanating from the sixth amendment's guarantee of an impartial jury as expounded in McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984). In McCray the United States Court of Appeals for the Second Circuit interpreted the sixth amendment's guarantee of an impartial jury to mean that a criminal defendant is entitled to a jury from which distinctive groups of persons have not been systematically excluded, to ensure insofar as practicable that the jury represents a fair cross-section of the community. The Second Circuit recognized that the sixth amendment does not guarantee a jury fairly representative of the community, but concluded that it does guarantee a defendant a fair chance at such a jury. The McCray Court went on to hold that a defendant could establish a prima facie violation of his right to the possibility of a representative jury by showing: (1) that the group excluded is a "cognizable group in the community;" and (2) that there is a "substantial likelihood" that jurors were peremptorily challenged solely because of their race. Id. at 1131-32. As in State v. Belton, 318 N.C. 141, 347 S.E.2d 755, however, we need not decide today whether to employ, under either the sixth...