State v. Spencer

• Citation: 276 N.C. 535,173 S.E.2d 765
• Decision Date: 13 May 1970
• Docket Number: No. 46,46
• Parties: STATE of North Carolina v. Allen SPENCER, Alvin Spencer, Henry Johnson, Jr., Preston Simmons, BenjaminPhelps and Samuel Bryant.
• Court: United States State Supreme Court of North Carolina

Page 765

173 S.E.2d 765

276 N.C. 535

STATE of North Carolina v. Allen SPENCER, Alvin Spencer, Henry Johnson, Jr., Preston Simmons, BenjaminPhelps and Samuel Bryant.

No. 46.

Supreme Court of North Carolina.

May 13, 1970.

Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, Charlotte, for defendants-appellants.

Bobert Morgan, Atty. Gen., and Burley B. Mitchell, Jr., Staff Atty., Raleigh, for the State.

HUSKINS, Justice.

Prior to entering any plea the following colloquy occurred between defense counsel and the court:

'MR. FERGUSON: I want to make a motion to quash the jury venire and would like to make a showing on it.

THE COURT: If you want to offer evidence I will bear it now. I think you have had ample time.

MR. FERGUSON: I would like for the record to reflect that counsel requested an opportunity to make a showing.

THE COURT: Let the record show that and further show that the court is now willing to hear any evidence defendants wish to offer on that question and denies the motion for continuance or delay to gather evidence on the question.

MR. FERGUSON: Let the record show that the only evidence we have at this time is the makeup of the jury.

THE COURT: Let the record show that of those present on the regular jury panel and the supplemental jurors, upon a roll call the Clerk reports that 54 are white and 20 Negro.'

Defendants contend the trial court violated their right to due process and equal protection under the Fourteenth Amendment by denying the motion to quash and 'by refusing to allow defendants to make an evidentiary showing on their motion.' All six defendants are members of the Negro race.

At the outset, it is noted that the motion to quash was made orally and no grounds for it were stated. The record is silent in that respect. A jury venire may be illegal for many reasons. We can only surmise that the motion itself suggested systematic exclusion of Negroes from the petit jury because of their race. Although appellate courts are not required to speculate in such fashion, we assume Arguendo that the motion was intended to suggest that Negroes had been systematically excluded from the jury box in Hyde County because of their race. We examine this assignment of error on that assumption.

Both state and federal courts have long approved the following propositions:

1. If the conviction of a Negro is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race, the conviction cannot stand. State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. Wright, 274 N.C. 380, 163 S.E.2d 897; State v. Brown, 271 N.C. 250, 156 S.E.2d 272; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.

2. If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it. State v. Ray, supra; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386; State v. Brown, supra; Whitus v. Georgia, supra; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. But once he establishes a Prima facie case of racial discrimination, the burden of going forward with rebuttal evidence is upon the State. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109; State v. Ray, supra.

3. A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; State v Wilson, supra; State v. Arnold, 258 N.C. 563, 129 S.E.2d 229, reversed on other grounds, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77.

4. A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged intentional exclusion of Negroes because of their race from serving on the grand or petit jury in his case. State v. Wright, supra, 274 N.C. 380, 163 S.E.2d 897; State v. Belk, 272 N.C. 517, 158 S.E.2d 335; State v. Inman, 260 N.C. 311, 132 S.E.2d 613; State v. Covington, 258 N.C. 495, 128 S.E.2d 822; State v. Perry, 248 N.C. 334, 103 S.E.2d 404; Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Speller, 230 N.C. 345, 53 S.E.2d 294. 'Whether a defendant has been given by the court a reasonable time and opportunity to investigate and produce evidence, if he can, of racial discrimination in the drawing and selection of a * * * jury panel must be determined from the facts in each particular case.' State v. Perry, supra.

In State v. Belk, supra, 272 N.C. 517, 158 S.E.2d 335, defendant was initially denied but belatedly offered an opportunity by the trial judge to present evidence in support of a motion to quash on the ground that members of defendant's race were systematically excluded from the grand jury, but defendant declined to present evidence during the term in support of the motion. Held: No error. Defendant was offered an opportunity to avoid any disadvantage resulting from the initial denial. 'From the record it appears doubtful that the motion was originally made in good faith, and it is quite obvious that the defendant seeks to rely upon technicalities that have no merit.'

In State v. Inman, supra, 260 N.C. 311, 132 S.E.2d 613, defense counsel had been employed in the case for approximately four weeks when the case was called for trial. Before pleading, defendant moved to quash the indictments on the ground that Negroes had been systematically excluded from serving on the grand jury that returned the bills against him. The court summarily overruled the motion and defendant assigned this as error. Defense counsel then asked for sufficient time to substantiate his motion and this was denied. Held: Error in refusing to grant defendant sufficient time to offer evidence in support of his motion to quash the indictments on the ground that members of his race, by reason of their race, were systematically excluded from serving on the grand jury that returned the indictments. 'Whether defendant can establish the alleged racial discrimination or not, due process of law demands that he have his day in court on this matter, and such day he does not have unless he has a reasonable opportunity to produce his evidence, if he has any.'

In State v. Covington, supra, 258 N.C. 495, 128 S.E.2d 822, defendant was charged in a warrant drawn and served on 9 March 1962 with a violation of law which was included in the bills of indictment. The case was set for trial at the May 1962 Criminal Session, Superior Court of Union County. Defendant, a Negro, prior to pleading, moved to quash the indictments on the ground that members of the Negro race had been systematically excluded because of their race from service upon the grand jury. In his written motion defendant further moved for a reasonable time to inquire into the facts and requested the court to issue process to require certain named officers of Union County to appear in court and testify with respect to the selection of grand juries for Union County and to bring with them all books, documents, and records pertinent to the inquiry. This motion was supported by an affidavit of defense counsel. The trial court denied the motion to quash and the motion for a reasonable time to inquire into the alleged facts with respect to jury selection. Held: Defendant was denied a reasonable opportunity to produce evidence, if any such evidence existed. 'Whether he can establish his contention or not, he must have his day in court on his motion to quash the indictments.'

In State v. Perry, supra, 248 N.C. 334, 103 S.E.2d 404, defendant, a Negro doctor, was arrested 13 October 1957 on a warrant charging him with performing an abortion. He was bound over to the Superior Court of Union County after a hearing on 18 October 1957. The superior court convened on 28 October 1957 for a two-weeks term. The trial judge denied a motion to remove and ordered a special venire from Anson County to appear on 30 October 1957. On 29 October, defendant moved for a continuance and, failing that, on 30 October moved to quash the indictment. In support of the motion to quash was an affidavit of counsel to the effect that 'the grand jury which indicted the defendant was unlawfully constituted for that Negroes solely because of their race have been systematically excluded from serving on grand juries of Union County for many years' and that opportunity was needed 'to inquire into the matter of such exclusion, and to gather evidence to present to the court on the matter.' The motions for continuance and to quash the indictment were denied. Held: 'After a careful examination of all the facts in the instant case, it is our opinion that the trial court denied the defendant a reasonable opportunity and time to investigate and produce evidence, if such exists, in respect to the allegations of racial discrimination as to the grand jury set forth in the motion to quash and in the supporting affidavit * * *.'

The facts in Belk, Inman, Covington and Perry are readily distinguishable from the facts in the case before us.

The facts in this case reveal that defendants were arrested on 11 November 1968. Four of them were tried in the District Court of Hyde County on 2 January 1969 and the remaining two on 15 January 1969. Attorney James E. Ferguson, II, represented defendants in their district court trials and noted an appeal to superior court. The cases were called for trial in the Superior Court of Hyde County at the next ensuing term of that court which convened on 19 May 1969. Thus it affirmatively appears...