State v. Pigott

• Decision Date: 22 April 1992
• Docket Number: No. 228A90,228A90
• Citation: 415 S.E.2d 555,331 N.C. 199
• Parties: STATE of North Carolina v. Henry Levi PIGOTT.
• Court: North Carolina Supreme Court

Page 555

415 S.E.2d 555

331 N.C. 199

STATE of North Carolina v. Henry Levi PIGOTT.

No. 228A90.

Supreme Court of North Carolina.

April 22, 1992.

Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Stephens, J., at the 14 August 1989 Special Criminal Session of Superior Court, Brunswick County, upon defendant's conviction by a jury of murder in the first degree. Defendant's motion to bypass the Court of Appeals as to convictions and sentences on lesser charges was allowed pursuant to N.C.G.S. § 7A-31(b). Heard in the Supreme Court 14 November 1990.

Lacy H. Thornburg, Atty. Gen., by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Constance H. Everhart, Asst. Appellate Defender, Raleigh, for defendant-appellant.

EXUM, Chief Justice.

Defendant was charged in proper indictments and, following a capital trial, found guilty by a jury of first-degree murder, armed robbery, first-degree arson, and first-degree kidnapping. Defendant was acquitted on a charge of burglary arising from the same circumstances. The jury recommended and the trial judge imposed a sentence of life imprisonment in the capital murder case. We find no error in defendant's trial, but because the sentencing judge failed to find a statutory mitigating factor supported by uncontradicted and manifestly credible evidence, we hold defendant is entitled to a new sentencing hearing in the noncapital cases.

Evidence presented by the State, including a voluntary statement by defendant, tended to show that, shortly after midnight, 25 September 1988, defendant visited his employer, Darwin Freeman, who lived in an apartment adjoining the office of his lumber business. Defendant asked Freeman for a fifty-dollar loan, but was refused. Defendant left but soon returned with a gun. Defendant forced Freeman to lie on the floor, bound his hands with the sash from his robe, and ransacked the apartment and office for money. Defendant subsequently bound Freeman's feet to his hands and shot him in the head. After looking around for more money, defendant located some kerosene with which he doused rags and furnishings, which he then ignited. Defendant left again and later returned with his girlfriend and some gasoline to Freeman's apartment, where he poured the gasoline throughout the bedroom and kitchen, ignited it and left. Freeman's body was discovered in the burning building shortly before 4:00 a.m. A pathologist who performed the autopsy testified that cause of death was probably the gunshot wound to the head although carbon monoxide was found in sufficient quantities in the bloodstream to have caused death. The pathologist testified that the level of carbon monoxide in the bloodstream indicated that Freeman had been alive and breathed fumes from the fire for some time. He admitted that some carbon monoxide could have entered Freeman's body through reflexive inhalation.

I.

Defendant first contends the trial court erred in denying his motion to dismiss all indictments. The Brunswick County Grand Jury returned indictments in all cases against defendant on 27 February 1989. Defendant was arraigned on 13 March 1989. According to the Certification of Arraignment defendant pled not guilty to all charges and was allowed 21 days to file motions. Defendant was tried at the 14 August 1989 Criminal Session of Superior Court in Brunswick County.

Defendant's motion to dismiss the indictments was filed on 10 August 1989 under N.C.G.S. § 15A-955 and challenges the array of the grand jury on the ground the foreman was chosen in a racially discriminatory manner. The motion alleged that defendant was black and the grand jury foreman was white. The motion acknowledged that under N.C.G.S. § 15A-952 it should have been filed at or before arraignment where, as here, the arraignment was held before the session of court at which trial was calendared. The motion asked, pursuant to the statute, that the trial judge grant relief from the untimely filing and grant defendant a hearing.

The motion was based on our decisions in State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987) (Cofield I ) and State v. Cofield, 324 N.C. 452, 379 S.E.2d 834 (1989) (Cofield II ).

In Cofield I we held that racial discrimination in the selection of the grand jury foreman violates both the North Carolina and United States Constitutions and is a sufficient ground to dismiss an indictment returned by that grand jury and to vitiate any verdict and judgment entered against defendant pursuant to that indictment. Defendant, of course, remains subject to the State's power to reindict. We also held that a defendant makes out a prima facie case of racial discrimination by showing either that the selection process was not racially neutral or that for a substantial period of time relatively few blacks served as grand jury foremen when blacks were substantially represented as grand jury members.

In Cofield II we held as follows:

A method of selecting a grand jury foreman that meets the racially neutral standard must ensure that all grand jurors are considered by the presiding judge for his selection and that his selection be made on a racially neutral basis.

Because we have for the first time interpreted our state Constitution to require that, in meeting the racially neutral standard for selecting the foreman of the grand jury, the trial judge must consider all the grand jurors, our holding in that regard will apply only to this case and cases in which the indicting grand jury's foreman is selected after the certification date of this opinion.

324 N.C. at 460, 379 S.E.2d at 839. Cofield II was certified on 28 June 1989. The foreman of the grand jury indicting defendant having been selected before the indictments were returned, the selection obviously occurred before certification of Cofield II and well after our decision in Cofield I.

The trial court denied defendant's Cofield motion on two grounds. The first was that the principle set out in Cofield II applies prospectively only to cases in which the grand jury foreman was selected after the certification date of the opinion. The second ground was that defendant's failure to move to dismiss at or before arraignment waived, under N.C.G.S. § 15A-952, his right to make the motion.

The trial court nevertheless permitted defendant to enter for the record evidentiary support for his motion. Defendant offered the testimony of the Clerk of Superior Court of Brunswick County, Hon. Diana Morgan, which tended to show as follows:

According to Division of Motor Vehicles records, the racial composition of licensed drivers in Brunswick County over eighteen years old is 14.7 percent black and 84.69 percent white. The Clerk thought these records were a good reflection of the racial composition of the county. The Clerk's opinion was that the racial composition of Brunswick County grand juries over the last ten to fifteen years reflected that of the county. The Clerk said that after Cofield I the presiding judge had not selected grand jury foremen upon recommendation of various court personnel, as had been the prior custom. Rather, since Cofield I presiding judges had asked the grand jury itself to recommend a foreman and the judges appointed whomever was so recommended. New foremen are selected every six months. During the last 15 years two blacks have served as foremen of the Brunswick County Grand Jury. The last black foreman served July 1979 to December 1979. The Clerk was "virtually positive" that the foreman of the grand jury which indicted defendant was chosen by the post-Cofield I method.

Defendant's evidence thus tended to show that over the past fifteen years seven percent of grand jury foremen had been black when blacks had made up approximately fifteen percent of grand jury membership. It also tended to show that the foreman of the indicting grand jury was recommended by the grand jury itself and the presiding judge followed the recommendation.

The trial court erred in summarily denying defendant's Cofield motion on the ground that the rule in Cofield II operated prospectively. The Cofield II rule is that to have a racially neutral selection process the appointing judge must give equal consideration to all eligible members of the grand jury in determining whom to select as foreman. This rule operates, as the case plainly holds and as the trial court recognized, only prospectively. The principles announced in Cofield I, however, were fully applicable to defendant's motion. Had his motion been timely filed, he would have been entitled to a hearing to determine whether there was in fact racial discrimination in the selection of the indicting grand jury foreman.

There is, however, no error in the trial court's summary denial of defendant's Cofield motion on the ground that it was not timely filed. The motion was a challenge to the grand jury array within the meaning of N.C.G.S. § 15A-955(1), and was expressly made pursuant to that statute. "A motion to dismiss or quash an indictment because of an irregularity in the selection of the grand jury is now governed by G.S. 15A-955." State v. Duncan, 30 N.C.App. 112, 114, 226 S.E.2d 182, 184, disc. rev. denied, 290 N.C. 779, 229 S.E.2d 34 (1976). More specifically, we analyzed the timeliness of a Cofield motion under the time limit requirements of N.C.G.S. § 15A-952(b)(4) in State v. Robinson, 327 N.C. 346, 361, 395 S.E.2d 402, 411 (1990), assuming that the motion was filed pursuant to N.C.G.S. § 15A-955(1). Under N.C.G.S. § 15A-952(b)(4), motions made pursuant to N.C.G.S. § 15A-955 are subject to the time limits of N.C.G.S. § 15A-952(c), which provides:

(c) Unless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at...