State v. Price

• Decision Date: 02 December 1980
• Docket Number: No. 44,44
• Citation: 301 N.C. 437,272 S.E.2d 103
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Larry Wade PRICE.

Page 103

272 S.E.2d 103

301 N.C. 437

STATE of North Carolina v. Larry Wade PRICE.

No. 44.

Supreme Court of North Carolina.

Dec. 2, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

John W. Dees, Goldsboro, for defendant-appellant.

BRITT, Justice.

By his first assignment of error, defendant contends that the trial court erred in denying his pretrial motion challenging the jury pool on the ground that blacks as well as young people between the ages of 18 and 29 were underrepresented in the pool. He argues that he was denied due process of law. There was no error in the denial of the motion.

At the hearing on the motion, defendant presented the testimony of Mr. James O'Reilly, a doctoral candidate in the field of sociology with an emphasis in demography at Duke University. Mr. O'Reilly conducted studies on the demographics of the Wayne County jury pool for the periods of 1976-1977 and 1978-1979. The purpose of these studies was to determine the correlation between the racial makeup of the jury pool for these periods and the population of the county as a whole. The studies also sought to determine whether the composition of the jury pool for the periods in question reflected the composition of the county's population by age group. The study was based upon data which had been obtained from the 1970 United States Census.

After the data was adjusted for an undercount of 2 percent for whites and 8 percent for blacks, the population of Wayne County over the age of eighteen was 68.9 percent white and 31.1 percent black. The census data further indicated that those persons between the ages of 18 and 29 made up 33.3 percent of the population which was subject to service as jurors.

The surveys indicate that the 1976-1977 jury pool was 79 percent white and 21 percent black and that the racial composition of the 1978-1979 jury pool was 82.9 percent white and 17.1 percent black. In other words, the two surveys reflected an underrepresentation of blacks by 10.1 percent and 14 percent, respectively. The studies further revealed that members of the 18 to 29-year-old group composed 20 percent of the 1976-1977 jury pool and 22.5 percent of the 1978-1979 jury pool. Again, the surveys demonstrated an underrepresentation of a segment of the community's population in the amount of 13 percent and 10.5 percent respectively.

At the hearing, the state introduced evidence which established that the Wayne County Jury Commission for 1978-1979 drew a jury list by selecting every second name from the Wayne County tax roll, excluding non-personal listings of corporations and associations, and every third name from the Wayne County voter registration list. Both sources of data were stored in the facilities of the Wayne Computer Center. At the direction of the jury commission, the Computer Center provided the commission with data cards which indicated the names and addresses of the persons who had been selected by the computer in accordance with the procedure set out above. The cards contained no information concerning the age or the race of the person so selected. The cards were then locked in the vault of the Wayne County Register of Deeds where they were blindly selected whenever it became necessary to draw a venire.

In all respects, the procedure followed by the Wayne County Jury Commission comported with the statutory requirements for constituting a jury pool. See generally §§ 9-1 to -7 (1969 and 1979 Cum.Supp.). However, that observation does not serve to resolve the issue in the case sub judice. Defendant does not contend that the statutory procedures were not followed but instead argues that his Sixth Amendment right to trial by jury was infringed upon by the procedure so employed in that it served to deny to him the right to be tried before a jury which was composed of a fair cross-section of the community. Our analysis of the facts of the present case in light of the pertinent case law compels us to disagree.

In order to establish a prima facie case that there has been a violation of the requirement that a jury be composed of persons who represent a fair cross-section of the community, defendant must document that the group alleged to have been excluded is a distinctive group; that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).

In determining whether a group is distinctive or cognizable for the purposes of a challenge to a jury selection plan, three factors must be weighed as being pertinent to the decision. First, there must be some quality or attribute in existence which defines or limits the membership of the alleged group; second, there must be a cohesiveness of attitudes, ideas, or experiences which serves to distinguish the purported group from the general social milieu; and third, a community of interest must be present within the alleged group which may not be represented by other segments of the populace. United States v. Smith, 463 F.Supp. 680 (E.D.Wis.1979); United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973). When defendant's claim is evaluated in light of the relevant considerations, blacks are cognizable as a distinctive group for the purpose of fair cross-section analysis. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879); State v. Hough, supra; State v. Avery, supra. We are unable to conclude, however, that young people between the ages of 18 and 29 constitute such a group.

On numerous occasions, courts have been requested to recognize "young people" as a distinct group for the purpose of determining whether a jury panel represents a fair cross-section of the community. With one exception, United States v. Butera, 420 F.2d 564 (1st Cir. 1970), they have refused to do so. United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971); United States v. DiTommaso, 405 F.2d 385 (4th Cir.), cert. denied, 394 U.S. 934, 89 S.Ct. 1209, 22 L.Ed.2d 465 (1968). If the jury system is to fulfill its historic mission to bring the common sense of the community to the application and enforcement of the substantive law, it is of manifest necessity that the attitudes and perspectives of the pertinent community be fairly represented in the process. See Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed. 234 (1978); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). However, we are unable to agree with defendant's argument that young people between the ages of 18 and 29 bring to the judicial process potentially unique and varied perspectives. We base our decision in this regard on three distinct grounds. First, the parameters of such a group are difficult to ascertain, as evidenced by the widely varying ages which have been used to define it. See United States v. Ross, 468 F.2d at 1217. Second, defendant has failed to demonstrate that the values and attitudes of this purported group are substantially different from those of other segments of the community, nor has he demonstrated that the values and attitudes of the members of the purported group are cohesive and consistent. Third, the membership of the purported group is constantly in flux, with persons aging out of it, as well as growing into it. In other words, an individual is not a member of this group once and for all.

Though it is settled that blacks constitute a cognizable group for purposes of fair cross-section analysis, and even if we were to accept defendant's argument that young people between the ages of 18 and 29 ought to be deemed such a group, two more elements of the Duren test must be established for defendant to successfully challenge the Wayne County jury pool. Not only must the group in question be cognizable, it must also be affirmatively documented that the representation of that group within the venire is not fair and reasonable with respect to the group's presence within the relevant community. That misrepresentation, in turn, must be the result of a systematic exclusion of that group by the jury selection process. It is our conclusion that defendant has utterly failed to meet his burden with respect to either of the latter two prongs of the Duren test. See State v. Hough, supra; State v. Avery, supra; State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

While it is undisputed that the Wayne County jury pool for the 1978-1979 biennium does underrepresent the percentage of blacks and young people living in the county ¹, we are unable to conclude as a matter of law that the applicable percentages are sufficient to establish that the representation of these groups is not fair and reasonable in light of their presence in the community. During this time period, blacks made up 17.1 percent of the jury pool. This representation compares with the fact that the population of Wayne County was 31.1 percent black. In other words, there is an absolute disparity of 14 percent. ² Turning to the representation of young adults between the ages of 18 and 29, the data indicates that members of this age group comprised 22.5 percent of the jury pool. According to the 1970 United States Census, young people between the ages of 18 and 29 made up 33.3 percent of the population which was subject to service as jurors. Again, there is an absolute disparity of 10.8 percent.

It is apparent that the data adduced by defendant in support of his challenge indicates a disparity between the presence...