State v. Price

272 S.E.2d 103, 301 N.C. 437, 1980 N.C. LEXIS 1185

• Court: Supreme Court of North Carolina
• Decided: December 2, 1980
• Docket: NO. 44
• Status: Published

Opinion

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 underrepresen-tation 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 under-representation 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 G.S. §§ 9-1 to -7 (1969 and Cum. Supp. 1979). 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 faeie 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, 58 L. Ed. 2d 579, 99 S. Ct. 664 (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 (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 (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 (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, 55 L.Ed. 2d 234, 98 S. Ct. 1029 (1978); Peters v. Kiff, 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (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 in the population of Wayne County of blacks and young people and the representation of these groups in the pertinent jury pool. However, a criminal defendant is not entitled to a jury of any particular composition, nor is he entitled to be tried before a jury which mirrors the presence of various and distinctive groups within the community. Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 (1972); Fay v. New York, 332 U.S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613 (1947). In other words, the right to trial by jury carries with it the right to be tried before a body which is selected in such a manner that competing and divergent interests and perspectives in the community are reflected rather than reproduced absolutely. Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). In the present case, the disparity which is demonstrated by the data does not establish that the components of the population of Wayne County are not reflected fairly and reasonably in the jury pool. We are compelled to observe that the disparity about which defendant now complains is not significantly greater than that which we approved in State v. Avery, supra, where there was an underrepre-sentation of blacks of 9 percent, or State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972), where the disparity which was challenged amounted to 10 percent.

Nor do we conclude that the underrepresentation is the product of systematic discrimination. When a defendant makes a sixth amendment challenge alleging that the jury pool does not represent a fair cross-section of the community, there is no requirement that a discriminatory purpose or intention be proven. Duren v. Missouri, 439 U.S. at 366, 58 L. Ed. 2d at 588, 99 S. Ct. at 669; State v. Avery, 299 N.C. at 141, 261 S.E. 2d at 812 (Exum, J., dissenting). Instead, it must be demonstrated that the absence of a fair cross-section of the community in the process is the inherent product of the particular method of selection utilized. Duren v. Missouri, supra.

Defendant has failed to demonstrate that the data base employed in Wayne County inevitably dictates an unfair and unreasonable underrepresentation of blacks and young adults. Similarly, defendant has not established that the data base was employed in such a manner as to forecast underrepresentation of the groups in question. No single data base can assure complete representation of the community. To so demand is unreasonable because that is not the pertinent objective. Rather, the data base must be such that the competing perspectives in the community are given a reasonable opportunity to participate in the judicial process through service on a jury. The usage of property tax listings and voter registration records serves to create a broad, as well as an extensive, data base which may be appropriately employed so that this objective may be fulfilled.

In that he has failed to establish the prima facie case set forth by Duren v. Missouri, supra, we conclude that defendant’s challenge to the Wayne County jury pool is without merit.

By his second assignment of error, defendant contends that the trial court erred by excluding evidence which purportedly bolstered his claim of self-defense. There are two prongs to this argument. Initially, defendant maintains that the trial court erred in excluding the testimony of three law enforcement officers concerning statements defendant made to them at the time of his arrest and shortly thereafter concerning the double homicide in Wayne County. Second, defendant asserts that the trial court erred in excluding evidence concerning decedent Glenn Cashwell’s predisposition to violent behavior. Neither argument is meritorious.

Defendant’s initial challenge is directed at the testimony of three law enforcement officers: Officer Johnston Livingston of the Stantonsburg Police Department, Sergeant Ronnie Batts of the Wilson County Sheriff’s Department, and Special Investigator Stan Flowers of the Wayne County Sheriff’s Department. Officer Livingston arrested defendant after he and Officer Roger Reason of the Stantonsburg Police Department had stopped his car. Sergeant Batts arrived shortly thereafter and assisted in handcuffing defendant, after which he transported defendant to the sheriff’s office in Wilson. Officer Livingston was asked on cross-examination whether defendant had told him at the time of the arrest that the killings had been in self-defense. The objection of the state was sustained, and the officer answered for the record, in the absence of the jury, that defendant had told him that he had acted in self-defense. Sergeant Batts was asked the identical question, and he answered the question affirmatively before the state could interpose an objection. The subsequent objection by the district attorney was sustained and the jury was given a limiting instruction. Special Investigator Flowers was asked on cross-examination whether defendant had told him that Mrs. Cashwell had a shotgun in her possession at the time of the shooting.

The statement to the officers at the time of defendant’s arrest that the shooting had been in self-defense was properly excluded from the consideration of the jury. The statement was inadmissible as substantive evidence because of its hearsay character. See generally 1 Stansbury’s North Carolina Evidence §§ 138, 140 (Brandis Rev. 1973). The characterization by the state of the statement in question as “self-serving” is an insufficient response to the argument. The statement was incompetent as substantive evidence in that it failed to come within any of the generally recognized exceptions to the hearsay rule. Nor was the statement admissible as corroborative evidence in that defendant had not yet taken the stand and testified in that manner.

Regarding the objection to the inquiry which had been directed at Special Investigator Flowers, we are compelled to observe that defendant has failed to make his record by making the answer that the witness would have given part of the record of the proceedings at trial. When an objection to a specific question asked on cross-examination is sustained, the answer the witness would have given must be made part of the record or the propriety of the objection will not be considered on appeal. E.g., State v. Martin, 294 N.C. 253, 240 S.E. 2d 415 (1978). Otherwise, this court is capable only of speculating as to what the answer of the witness would have been and whether the challenged evidentiary ruling was prejudicial.

By the second prong of his argument, defendant contends that the trial court erred by excluding evidence concerning the predisposition to violent behavior of decedents Glenn and Barbara Cash-well. It'is the general rule that where the defendant in a homicide prosecution pleads self-defense and there is evidence which tends to show that the killing was in self-defense, evidence of the character of the deceased as a violent and dangerous fighting person is admissible if such character was known to the defendant or the evidence is wholly circumstantial or the nature of the transaction is in doubt. E.g., State v. Barbour, 295 N.C. 66, 243 S.E. 2d 380 (1978); see generally 1 Stansbury’s North Carolina Evidence § 106 (Brandis Rev. 1973). We do not question the continued viability of this principle. However, our examination of the record leads us to conclude that the record will not support defendant’s assertions of error.

On cross-examination, Billy Cashwell was asked whether it was true that his father had been fired from Georgia-Pacific for striking another foreman. On direct examination, defendant himself was asked if he knew why Glenn Cashwell was unemployed on the day of the incident. In both instances, the objections of the state were sustained. In neither instance was the answer which the witness would have given placed in the record for our consideration. Accordingly, these particular exceptions will not be considered on appeal. E.g., State v. Martin, supra.

On direct examination, defendant testified that after he had let Billy Cashwell enter his trailer through the back door, the telephone rang. Billy answered the call and told defendant that it was his sister, Mrs. Williams. Thereupon defendant testified that his sister told him during the conversation that Mrs. Cashwell had gone to her home and had tried to fight her. At that point, the district attorney objected, and the presiding judge sustained the objection. However, there was no motion to strike made, and the judge did not instruct the jury that it was to disregard the testimony in question. Accordingly, the evidence was before the jury notwithstanding the objection, and defendant cannot reasonably complain of prejudicial error.

During the direct examination of defendant, he testified that he had occasion to hear the workers at Georgia-Pacific discuss Glenn Cashwell and that decedent had a reputation for violence among the workers at the plant. Thereupon, the following exchange took place:

Q. What was that reputation?

MR. JACOBS: OBJECT

A. The same thing.

THE COURT: OBJECTION SUSTAINED

EXCEPTION NO. 22.

Defendant asserts that for the court to have sustained the objection of the state was error in that it denied him the opportunity to present evidence of decedent’s violent disposition. First, we again note that there was no motion to strike. Therefore, the evidence was before the jury for its consideration because of the absence of an instruction directing them to disregard the testimony, and there was no prejudice in the sustaining of the objection. Second, the question was subject to challenge in that it was repetitive because it immediately followed another question of the same import. See State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911 (1967).

Lastly, on redirect examination, defendant was asked whether he had heard from his sister, Mrs. Williams, on the afternoon of 22 May 1979 concerning Mrs. Cashwell. The objection of the state was sustained, and the jury was excused. Over the renewed objection of the state, defendant testified for the record that his sister had told him that Mrs. Cashwell had been “pushing her around, wanting to fight her.” While this testimony is arguably relevant as to the predisposition toward violence of Mrs. Cashwell, we perceive no prejudice in its exclusion. The same evidence had already been placed before the jury during defendant’s direct examination. Furthermore, the incident was not the subject of any inquiry on cross-examination of defendant by the district attorney. While the objective of redirect examination is to clarify the subject matter of the direct examination and any new matter elicited on cross-examination, see, e.g., State v. Cates, 293 N.C. 462, 238 S.E. 2d 465 (1977), it ought not be used by counsel as a vehicle for merely repetition of evidence which is already before the trier of fact and which has not been challenged in any way during the presence of the particular witness on the stand.

Defendant further contends that the trial court erred in receiving certain testimony offered by Special Investigator Flowers. The officer testified that he had received a shotgun from an uncle of Billy Cashwell’s three months after the shootings. Billy had previously testified himself that he had taken a shotgun down from the family’s gun rack and had gone to the front door with it, but he had put the weapon aside when ordered to do so by defendant. During an interrogation, Billy told the investigator about the weapon, and he had been told that the officers who were investigating the incident needed the weapon. A short time later, Royce Roberts, an uncle of Billy’s who actually owned the weapon, delivered the gun to the authorities. Over objection, Officer Flowers testified that he had unsuccessfully attempted to test-fire the weapon. More specifically, he attempted to fire the weapon with five different shotgun shells at least three times each. Defendant asserts that this testimony was prejudicial error in that the “weapon obviously could have been used, tampered with, worked on or otherwise mistreated during the three-month period it was missing.” Defendant concludes that the results of any such test-firing were irrelevant and immaterial to the inquiry made by the jury. We disagree.

It is an established principle that in a criminal case, every circumstance which is reasonably calculated to throw light upon the alleged crime is admissible. E.g., State v. Bundridge, 294 N.C. 45, 239 S.E. 2d 811 (1978). During his direct examination, Billy Cashwell testified that the spring on the gun was weak and that as a result the firing mechanism would not discharge a shell. The testimony of Officer Flowers served to flesh out the account Billy offered concerning his conduct during the incident. Also, assuming, arguendo, that the relevance of this evidence is too attenuated for it to have been properly placed before the jury, defendant has failed to demonstrate how this evidence was prejudicial to his interests.

By his fourth assignment of error, defendant contends that the trial court erred in removing a juror, arguing that this action amounted to an abuse of discretion in that no grounds existed upon which to justify the action. It is our conclusion that the conduct of Judge Rouse in this regard was proper and served to prevent the trial proceedings from being subjected to even the slightest taint of suspicion.

On 5 November 1979, defense counsel was at his home asleep on the couch when he was called to the telephone by his thirteen-year-old son who told him that a woman had asked to speak with him. The attorney went to the phone and discovered that the caller was a female juror in the present case. The woman had called the attorney about thirty minutes earlier but had told the son, who had answered that call as well, not to disturb the lawyer when she had been informed that he was asleep. When the second call was received the son had awakened his father thinking that the matter was fairly important to have the same individual call again so quickly. During the second phone call, the woman persisted in discussing matters of a personal nature with defendant’s counsel, including his marital status. The attorney was able, after a short while, to end the conversation.

The next day, the attorney informed the presiding judge about the incident. Thereupon, Judge Rouse convened a hearing in chambers on Monday morning, 7 November 1979, before defendant’s trial resumed after the weekend recess. After hearing the lawyer’s account of the incident, the judge made findings of fact and concluded that the juror in question ought to be removed from the panel so as to assure a fair trial for defendant. When court reconvened, the alternate juror was substituted for her.

G.S. § 15A-1215(a) provides that the trial judge may substitute an alternate juror for another juror if the latter dies, becomes incapacitated or disqualified, or is discharged for any reason before final submission of the case to the jury. The exercise of this power rests in the sound discretion of the trial judge and is not subject to review absent a showing of an abuse of discretion. State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979); State v. Waddell, 289 N.C. 19, 220 S.E. 2d 293 (1975), death sentence vacated, 428 U.S. 904 (1976). This discretion ought to be used to the end that both the state and defendant receive a fair trial. State v. Nelson, supra; State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537, death sentence vacated, 429 U.S. 912 (1976).

One of the basic precepts of professional responsibility is that during the trial of a case, an attorney who is involved in the matter shall not communicate with any member of the jury. DR 7-108(B)(1). Otherwise, the impartiality of the tribunal which is at the foundation of the judicial process would be threatened, and the public’s confidence in that process would be undermined. EC 7-29. A concurrent ethical obligation is imposed upon an attorney to report to the court any improper conduct by a juror of which the attorney has knowledge. DR 7-108(G). The conduct of trial counsel in this regard was above reproach. While there is no evidence that any matter which related to the trial of defendant was discussed during the conversation, the exercise of discretion by Judge Rouse served to safeguard the trial of defendant from even the appearance of impropriety. See EC 9-6.

By his fifth assignment of error, defendant contends that the trial judge impermissibly expressed an opinion of the case before the jury on three separate occasions. We have carefully reviewed the record and conclude that there was nothing improper about the conduct of Judge Rouse.

First, defendant alleges that the trial judge expressed an opinion on the credibility of defendant and those of his relatives who testified on his behalf. During his charge, Judge Rouse instructed the jury in the following manner:

When you come to consider the evidence and the weight you will give to the testimony of the different witnesses, I instruct you that it is your duty to carefully consider and scrutinize the testimony of the defendant when he testifies in his own behalf; and also the testimony of those who are closely related to him. In passing upon the testimony of such witnesses, the jury ought to take into consideration the interest the witness has in the result of the action, but I instruct you that the law requires you to do so does not require you to object or impeach such evidence; and if you believe that such witness or witnesses have sworn to the truth, you will give to his or their testimony the same weight you would do that of any disinterested or unbiased witness. (R.p. 161).

The identical instruction was expressly approved by this court in State v. Eakins, 292 N.C. 445, 233 S.E. 2d 387 (1977), and we are not disposed to reexamine the propriety of that decision.

Second, defendant contends that the trial judge expressed an opinion by failing to reinstruct the jury on the elements of self-defense when the jury on two occasions returned to the courtroom and requested additional instructions on first-degree murder, second-degree murder, felony murder, and discharging a firearm into an occupied building. Defendant contends that the judge’s failure to repeat the pertinent instructions as to self-defense amounts to an expression of his opinion on the viability of that plea. This argument is without merit in that once a trial judge has complied with a request by the jury for additional instructions on a particular point of law, it is not necessary that he also repeat his instructions as to other features of the case which have already been correctly given. State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140 (1971).

Third, defendant argues that Judge Rouse expressed an opinion by instructing the jury that in the event defendant was convicted of first-degree murder, a separate sentencing proceeding would be conducted to determine whether defendant would be sentenced to life imprisonment or to death. The judge went on to instruct the jury that their only concern at that point in the proceeding was to determine the issue of defendant’s guilt or innocence. We do not agree with defendant’s contention that for Judge Rouse to have so instructed was an expression of disbelief in defendant’s claim of self-defense. G.S. § 15A-2000 et seq. contemplates a bifurcated proceeding in capital cases. It is only upon a guilty verdict that the second stage of the proceeding is convened. The instruction about which defendant now complains did nothing more than serve to acquaint the jury with the procedure which was to be followed upon their return of a verdict which found defendant guilty of first-degree murder. We cannot perceive that the judge’s comments precipitated a rush to judgment by the jury.

By his sixth and seventh assignments of error, defendant has preserved twenty-nine exceptions which are directed at portions of Judge Rouse’s charge not previously discussed in this opinion. We have carefully examined these instructions contextually and find them to be without prejudicial error.

There was no error in the denial of defendant’s motion to set aside the verdicts as being against the evidence. There was plenary evidence brought forward at trial by the state to establish its prima facie cases. Defendant was effectively and zealously represented by competent counsel.

In defendant’s trial and in the judgements appealed from, we find

No error.

Justice BROCK did not participate in the consideration or decision of this case.

1 Defendant has offered data concerning the 1976-1977 biennium also. While that data is entitled to consideration, particularly regarding a showing of systematic exclusion, it is not determinative of the question posed by this case.

2 In dealing with allegations that fair representation has been denied, it is appropriate to consider absolute disparity rather than comparative disparity. See State v. Hough, supra; State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976).