State v. Rogers, 20

• Decision Date: 11 July 1969
• Docket Number: No. 20,20
• Citation: 168 S.E.2d 345,275 N.C. 411
• Parties: STATE of North Carolina v. Lewis Thomas ROGERS, Jr.
• Court: North Carolina Supreme Court

Page 345

168 S.E.2d 345

275 N.C. 411

STATE of North Carolina v. Lewis Thomas ROGERS, Jr.

No. 20.

Supreme Court of North Carolina.

July 11, 1969.

Willis P. Whichard, Durham, for defendant appellant.

Robert Morgan, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

HUSKINS, Justice.

Defendant moved to quash the bill of indictment on the ground that jurors opposed to capital punishment were challenged for cause, asserting that it was error to permit individual jurors to be questioned as to their belief in capital punishment. The record contains the following entry with respect to selection of the jury: 'Immediately prior to the presentation of the State's evidence, the jury was duly selected as required by law. During the interrogation of the individual jurors the State inquired of each juror: 'Do you believe in capital punishment in certain cases as provided by law? " No objection was made and no exception taken to the Manner in which the jury was selected. The record fails to show how many prospective jurors, if any, were excused for cause--any cause. It is not error to ask a prospective juror whether he believes in capital punishment. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241. Even Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, does not prohibit the question. This assignment has nothing of record to support it. Only assignments of error based on exceptions duly taken are considered. Langley v. Langley, 268 N.C. 415, 150 S.E.2d 764; State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666; State v. Mallory, 266 N.C. 31, 145 S.E.2d 335, 18 A.L.R.3d 1340, cert. den., 384 U.S. 928, 86 S.Ct. 1443, 16 L.Ed.2d 531. Questions not embraced in an exception duly taken at the trial may not be presented on appeal. Wilson v. Wilson, 263 N.C. 88, 138 S.E.2d 827; Hennis Freight Lines, Inc. v. Burlington Mills Corp. and Brooks v. Burlington Mills Corp., 246 N.C. 143, 97 S.E.2d 850; Park Terrace, Inc. v. Phoenix Indemnity Co., 241 N.C. 473, 85 S.E.2d 677.

Defendant moved to quash the bill of indictment on the ground that Negroes were systematically excluded from the grand jury which indicted him. In support of the motion, the court reporter at defendant's request read into the record in this case the testimony of J. M. Mangum and Murray Upchurch taken April 10, 1967, before Judge Carr in another case entitled 'State v. Edward Theodore Ray,' the same motion having been made in that case. There is no further evidence in this record to support this motion. At the conclusion of the reading of the evidence of these two witnesses, the motion was denied and defendant assigns this ruling of the court as error.

This assignment has no merit. There is no evidence to show that the grand jury in the Ray case and the grand jury which returned the bill of indictment in this case were one and the same. If we assume the same grand jury acted in both cases, the question of systematic exclusion of Negroes from said grand jury was fully considered in State v. Ray, 274 N.C. 556, 164 S.E.2d 457, and decided adversely to defendant. The assignment is therefore overruled.

Defendant moved to quash the bill of indictment on the ground that Negroes are systematically excluded from the administration of the court system. In support of the motion he examined Sheriff J. M. Mangum who testified that for thirty-four years no Negro superior court judge has presided over Durham County Superior Court; that no Negro solicitor has prosecuted the criminal docket; and that no Negro court reporter has served in said court. Defendant contends this deprived him of a fair trial but offers no specifics in that respect.

Superior court judges in North Carolina are elected by the people of the State and solicitors by the voters of the solicitorial district. G.S. § 7--41; G.S. § 7--43; N.C.Const. art. IV, secs. 7, 16. Court reporters are appointed in each judicial district by the senior regular resident superior court judge. G.S. § 7A--95(e). Eligible persons of all races may be candidates or applicants for these positions. There is no evidence in the record that any Negro has sought these positions, or any other administrative position, in the court system of Durham County and been denied on account of race. This assignment is devoid of merit and therefore overruled.

Defendant sought to elicit from V. L. Bounds, Director of Prisons for North Carolina, his 'expert opinion' that the death penalty constitutes cruel and unusual punishment and to support his opinion by quotations from leading authors in the field of criminology and penology. The Court refused to allow it and held that the death penalty is not cruel and unusual punishment per se. Defendant asserts error.

Cruel or unusual punishments are prohibited by Article I, Section 14, of the Constitution of North Carolina and by the Eighth Amendment to the Constitution of the United States which is now applicable to the several states. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, reh. den. 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166.

What constitutes cruel and unusual punishment is a question of law for the court and not subject to proof by expert opinion evidence. When punishment does not exceed the limits fixed by statute it cannot be classified as cruel and unusual in a constitutional sense (State v. Davis, 267 N.C. 126, 147 S.E.2d 570; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216; State v. Greer, 270 N.C. 143, 153 S.E.2d 849), unless the punishment provisions of the statute itself are unconstitutional. State v. Bruce, supra; State v. Robinson, 271 N.C. 448, 156 S.E.2d 854.

G.S. § 14--21 in pertinent part provides that '(e)very person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will * * * shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.' Here, the jury so recommended and defendant was sentenced to life imprisonment. The sentence does not exceed the limit fixed by statute. The death penalty, or its alternative when the jury so recommends, is not prohibited as cruel and unusual in the constitutional sense, and its imposition upon conviction of the crime of rape is not unconstitutional per se. State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386.

In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, the Supreme Court of the United States said: 'Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment--and they are forceful--the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.' It follows that an expert opinion and quotations from authors on criminology and penology are completely irrelevant. This assignment is overruled.

Defendant moved to quash the bill on the ground the death penalty is used in a discriminatory manner against Negroes thereby depriving defendant of the equal protection of the law in violation of the Fourteenth Amendment. In support of this motion defendant elicited from J. D. Wilson, Supervisor of Consolidated Records Section, State Prison Department, testimony to the effect that in North Carolina 110 Negroes and 17 whites have been sentenced to death for the crime of rape since 1910; that 66 Negroes and 5 whites have been executed; that the death sentence of 38 Negro and 9 white defendants were commuted to life imprisonment; that 66% Of all Negroes and 33% Of all whites sentenced to death for rape are executed; that since 1910 the total number of executions for all capital crimes in North Carolina is as follows: 73 white males, 282 Negro males, 2 Negro females and 5 Indian males, for a total of 362; that aside from the report which the witness read, he doesn't know how many Negroes and whites have been convicted for rape and life sentences imposed; that the report deals only with death sentences; that he has no figures revealing the number of rapes committed by Negroes as compared to the number committed by whites, but according to the report from which the figures are taken, many more rapes were committed by Negroes than by members of the white race.

The foregoing evidence is wholly ineffective on the question posed by this motion. It is merely a collection of statistics and nothing more. The motion itself is a Non sequitur. Its fallacious rationale seems to be that since a certain percentage of white criminals commit rape and go unpunished it invalidates the law against rape and licenses a proportionate number of Negroes in that field. The motion as well as the evidence supporting it is totally irrelevant to the validity of the bill of indictment.

Defendant's motion to quash the bill of indictment on the ground that non-property owners were systematically excluded from the jury list in Durham County was denied, and defendant assigns same as error.

Article I, Section 13, of the Constitution of North Carolina requires 'a jury of good and lawful persons.' The Sixth Amendment to the Constitution of the United States specifies a right to trial 'by an impartial jury.' And the Fourteenth Amendment provides that no State shall deprive any person of his life, liberty or property 'without due process of law.'

The record shows that the County Commissioners of Durham County used only the names on the tax records in making up the jury list and the jury box from which was drawn the grand jury and petit jury in this case. The fact that the commissioners did not also use 'a list of names of persons who do not appear upon the tax lists' as directed by G.S. § 9--1 does not show racial discrimination in the selection of prospective jurors. State v. Brown, 233 N.C. 202, 63 ...