State v. Vaughn, 57

• Decision Date: 29 December 1978
• Docket Number: No. 57,57
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Hugh Lee VAUGHN.

Page 210

250 S.E.2d 210

296 N.C. 167

STATE of North Carolina v. Hugh Lee VAUGHN.

No. 57.

Supreme Court of North Carolina.

Dec. 29, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Donald W. Stephens, Raleigh, for the State.

Hartsell, Hartsell & Mills by W. Erwin Spainhour, Concord, for defendant-appellant.

MOORE, Justice.

Defendant first insists that the trial court erred in denying his motion to dismiss the indictment, pursuant to G.S. 15A-606, on the ground that no probable cause hearing was held prior to indictment. This same contention was made in State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978), and was answered contrary to defendant's position in this case. There, the Court quoted with approval from the Official Commentary to G.S. 15A-611, as follows:

"In view of the preexisting jurisdictional law and the fairly clear legislative intent . . . it seems certain that no probable-cause hearing may be held in district court once the superior court has gained jurisdiction through the return of a true bill of indictment."

The Court then continued:

"We find the logic of this Comment persuasive and therefore hold that G.S. 15A-606(a) requires a probable cause hearing only in those situations in which no indictment has been returned by a grand jury."

In present case indictments were returned on 3 January 1977. At that time defendant was serving time in South Carolina for another murder committed in that state. No probable cause hearing was necessary. This assignment is overruled.

Next, defendant contends that the trial court erred in denying defendant's motion to quash the indictments on the grounds that the jury commission selected prospective grand jury members in a method contrary to law, and in failing to make findings of fact and conclusions of law in denying said motion.

Since 1 October 1967, each county in North Carolina has had a jury commission of three members. G.S. 9-1. G.S. 9-2 specifies the manner in which the jury commission is to prepare a list of prospective jurors. Defendant does not contend that the jury commission did not follow a systematic selection procedure in drawing up a tentative jury list, in violation of G.S. 9-2. Instead, he contends that G.S. 9-3 was not followed in the selection of names for a tentative jury list.

G.S. 9-3 describes those persons entitled to serve as jurors, as follows:

"All persons are qualified to serve as jurors and to be included on the jury list who are citizens of the State and residents of the county, who have not served as jurors during the preceding two years, who are 18 years of age or over, who are physically and mentally competent, who have not been convicted of a felony or pleaded guilty or nolo contendere to an indictment charging a felony (or if convicted of a felony or having pleaded guilty or nolo contendere to an indictment charging a felony have had their citizenship restored pursuant to law), and who have not been adjudged non compos mentis. Persons not qualified under this section are subject to challenge for cause."

G.S. 15A-622(a) provides that the mode of selecting and empaneling grand jurors is governed by Chapter 15A, Article 31, and by Chapter 9 of the General Statutes. G.S. 15A-1211 requires a trial judge to decide all challenges to the panel and all questions concerning the competency of the jurors. G.S. 15A-1211 also provides that a challenge to the panel may be made only on the ground that the jurors were not selected or drawn according to law.

Defendant insists that persons who were qualified under G.S. 9-3 were unlawfully excluded by the jury commission. In order to reach a determination of this issue we must look to the evidence elicited at the hearing on defendant's motion to quash. John Robinson, Chairman of the Jury Commission of Cabarrus County, testified that in November 1975 the jury commission drew up a tentative jury list by extracting every tenth name from tax listing books and every seventh name from voter registration lists. He said that, from this resulting list of several thousand names, the jury commission checked each name with death certificates from the register of deeds and removed names of deceased persons from the list. He also testified that the commission consulted various people to determine those persons on the raw list who no longer resided in the county; the post office was frequently consulted in this matter. Mr. Robinson then testified that the sheriff of Cabarrus County had assisted him on occasion in making a determination of those persons on the list who were disqualified under G.S. 9-3 from jury service by virtue of their felonies or pleas of Nolo contendere. The sheriff would also help him determine those persons who were physically or mentally incompetent, based on his knowledge of persons he had transported to Dix Hospital. The chairman further testified that two deputy sheriffs who acted as the chiefs of police of Concord and Kannapolis had also helped him in this manner at times in the past. These men would go through the cards selected by the systematic procedure and would put a red check by the name of those persons they felt disqualified. The chairman said that he was present when such names were checked, and that in most instances he would inquire why the names had been checked. Regarding those checked for reasons of having committed a felony, the commissioner said that he did not make further inquiry to see if such persons had in fact been convicted of a felony. He further testified that, regarding those names that had been checked, he often assumed, without inquiry, that such persons should be disqualified.

Defendant then introduced a document sent by the jury commission to the register of deeds, stating that the jury commission and the Cabarrus County Sheriff's Department had "checked the raw lists to remove persons deceased, or known to be disqualified under the statutes, and deemed to be Undesirable." (Emphasis added.) On cross-examination by the State, the chairman testified that, by "undesirable," he meant those who were mentally incompetent, guilty of felonies, or "persons who were incompetent for a number of reasons." He said that the sheriff never told him that he had checked a name because he did not like the person.

The sheriff of Cabarrus County testified that he was not sure whether he assisted Mr. Robinson in November 1975, but that he had done so in the past. He said that he had never checked off a name for any other reason except where he knew that a person was a felon, someone he had taken to the State hospital, someone who had moved out of the county, or one whom he knew to be too old or crippled to serve. He testified that the sheriff's department was merely recommending to the jury commission persons they thought unfit, and that the final decision always rested with the commission. The chiefs of police of Concord and Kannapolis, both deputy sheriffs, testified that they did not participate in the compilation of the jury list in November 1975.

After the conclusion of the hearing defendant moved to quash the indictment on grounds that the grand jury which indicted him was improperly constituted due to improper procedures used in November 1975 in drawing up the final jury list from which members of the grand jury were selected. The trial judge denied his motion without making findings of fact. Defendant now argues that the trial court erred in denying his motion, that he put on sufficient evidence to show that G.S. 9-3 had been violated in that persons qualified to serve as jurors had been excluded, and that, due to a violation of G.S. 9-3, he is entitled to have his conviction reversed and the indictment against him dismissed.

Defendant's argument is without merit. To begin with, defendant has not presented evidence which would tend to make out a Prima facie case for his claim that qualified jurors were unlawfully excluded from the list. Cf. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). Though testimony by the chairman of the jury commission would indicate that, in certain instances, the commission did not make proper inquiry before disqualifying certain individuals, but instead simply took the sheriff on his word that such persons were disqualified, there is no evidence which would indicate that persons qualified to serve under G.S. 9-3 were disqualified from the list. See State v. Yoes And Hale v. State, 271 N.C. 616, 157 S.E.2d 386 (1967). Furthermore, there is absolutely no evidence here that the sheriff was unlawfully delegated the responsibility, and given the final say, of determining the jury list. All the evidence shows that the sheriff was called in simply to assist the commission with his recommendations regarding those persons he thought disqualified for service. Such procedure would be entirely proper under the statutes. The fact that the commission may have, improperly, failed to inquire of the sheriff the reasons for his recommendations of disqualification does not, by itself, merit a dismissal of this indictment.

Furthermore, even if there had been a showing that certain qualified persons were improperly disqualified, this would not require a dismissal of the indictment absent a showing of corrupt intent or systematic discrimination in the compilation of the list, or a showing of the presence upon the grand jury itself of a member not qualified to serve. State v. Yoes et al., supra; State v. Perry, 122 N.C. 1018, 29 S.E. 384 (1898); State v. Haywood, 73 N.C. 437 (1875); Cf. State v. Hardy, supra. This Court has held on numerous occasions that, in the absence of statutory language indicating that preparation of jury lists shall be void if the directions of the act be not strictly observed, a mere showing of a violation of the statutory procedures will not merit the quashing of an indictment. See State v. Yoes, et al., and cases cited therein. The fact that these cases were decided prior to the various 1967 amendme...