State v. Brown
State v. Brown
Opinion of the Court
This is the second time that this case has been on appeal before this Court. In the former trial, defendant Brown, after a plea of not guilty, was found guilty of murder in the second degree. From a sentence of imprisonment, he appealed to this Court. The opinion in. the first appeal, was filed 15 January 1965, and is reported in 263 N.C. 327. According to the record in the first appeal, he did not challenge the validity of the grand jury that found the indictment, either in the trial, court or in this Court. On 26 July 1966, the Honorable Eugene A.' Gordon, United States District Judge, handed down a memorandum opinion, which is not reported but is set forth verbatim in the case on appeal, in which he recites that petitioner has filed with his court a petition for writ of habeas corpus, accompanied by an affidavit of poverty. He further recites in his memorandum opinion: “The evidence of the petitioner tended to show that the 1960 census indicates that the white population was 56,369 and the Negro population was 5,105 in Randolph County. A compilation of the jury lists covering the period from February 1, 1960, to September 1, 1964, from the County Commissioners and the Clerk of the Superior Court of Randolph County reflect that
The practice in a habeas corpus hearing by District Courts of the United States of vacating months or years later indictments upon a point which should have been raised and decided in the trial court or in the Supreme Court of the state does not tend to inculcate respect for law and order or the reasonably prompt administration of justice. It seems that with countless petitions by defendants to review their trials upon a point that they had an opportunity to raise and did not in the trial court means that there is no end to criminal litigation. This is an utter negation of the legal principle interest reipublicce ut sit finis litium.
The indictment vacated and set aside by Judge Gordon was found at the 22 June 1964 Session of Randolph County Superior Court. The indictment in the present case was found at the 28 November 1966 Session of Randolph County Superior Court. Before pleading to the bill of indictment, the defendant moved to quash the second indictment because Negroes were systematically excluded from service on juries in Randolph County because of their race, and assigns the following reasons for his motion: (1). At the No
The defendant introduced in evidence the memorandum opinion of Judge Gordon, and affidavits showing that there was only one Negro on the jury panel at the September 1966 Criminal Session of Randolph and two on the jury panel at the November 1966 Session, and affidavits showing the racial balance in Randolph County establishing that Negroes number about nine per cent of the population of that County.
When the defendant rested, the solicitor for the State offered the evidence of Ira L. DcDowell, who testified as follows:
“As chairman of the Board of Commissioners of Randolph County I did supervise the compiling of the jury list that is now in effect in Randolph County. The grand jury for the 1966 terms of the Criminal Court of Randolph — the names were taken from this present jury list.
“The exact procedure that was used, and where the information was obtained, in making up the jury list that is now in effect in this county is as follows: The information was obtained from the books in the Board of Elections office — the registration books. And every person who had registered in Randolph County’s (sic) name was copied. Then, when that was done, the list was taken to the tax office, and compared with the ones in the tax office, and the ones that didn’t appear on this first list was taken then and put in the box.
“The jury list that is now in effect is a list taken from the registration lists and the tax records of Randolph County. Every name that appeared on either of these two lists was placed in the box. In preparing this list, there was not any designation on any of the jury lists as to race, creed or color. We copied the names and address and township. This is all that appears on the cards.
*255 “You can not tell, when you’ré drawing a jury list from Randolph County, from this .list,, the race or color. of the individual’s name you draw from the box. The jury list for the December — or for the November 28th Criminal Term of Randolph County, 1966 was drawn from this list. This list was put into effect April 20th, 1965. All of the jurors for the Superior Court of Randolph County since that date have been drawn from this list.”
He testified on cross-examination:
“No effort has been made to include on this jury list such people as those who are on the welfare, welfare recipients, or people who have utilities, use public utilities, in Asheboro and Randolph County. I have not checked to see if there are people using public utilities, such as Carolina Power and Light or tele'phone service, whose names are not on the voter registration list. And, specifically since July 26th, 1966, the date of- Judge Gordon, United States District Court Judge (sic) I have done nothing to correct the disparity in the number of Negro names in this jury list and bring it more into proportion with the.number of Negro citizens in Randolph County.”
At this point, counsel for defendant and the solicitor for the State said that was all the evidence they had. The court said: “I will deny your motion to quash the bill.” In denying the motion, Judge Johnston entered an order in which he finds the following pertinent facts:
“2. The court has heard the evidence offered by the de-, fendant and the arguments of counsel.
“3. That the Grand Jury who returned the bill of indictment a true bill was drawn from the jury box of Randolph County in the manner provided by law.
“4. That the jury box was prepared on July 1, 1965, with names taken from the tax records and voter registration records of Randolph County of July 1, 1965, and that each name that appeared on either of these records was placed in the jury box, but without duplication, at that time.
“5. That the names were on separate paper slips and that there was nothing on any of the names or paper slips that were placed in this box to indicate the person’s race, creed, or color.
“6. That there is no sufficient evidence before this court to indicate in what proportion members of the white and Negro races’ names appeared in the jury box.
*256 “7. That the Grand Jury who returned the bill of indictment a true bill was all white.
“8. That there is no sufficient information before the court as to the number of Negroes on the panel from which the Grand Jury was drawn, but that there was at least one Negro on the panel.”
Based upon his findings of fact, he made this conclusion:
“The Court is of opinion that there was no systematic exclusion of Negroes from the Grand Jury of Randolph County that returned this bill of indictment a true bill and that no person was excluded because of race, color or creed.”
Whereupon, he ordered that the motion to quash the indictment be and it hereby is denied. Defendant excepted and assigns that as error. After that was done, counsel for the defendant moved to quash the whole jury panel. The court denied the motion to quash the entire jury panel. After the denial of his motion to quash the indictment and the jury panel, the defendant entered a plea of not guilty. The defendant assigns as error the denial of his motion to quash the indictment and the denial of his motion to quash the panel of jurors..
Defendant is a Negro. As a Negro defendant he has no right to insist that he be indicted or tried by juries composed of persons of his race, nor to have a person of his race on the juries which indicted and tried him. But he has a constitutional right to be indicted and tried by juries from which persons of his race have not been systematically excluded — juries selected from qualified persons regardless of race. S. v. Wilson, 262 N.C. 419, 137 S.E. 2d 109; Miller v. State, 237 N.C. 29, 74 S.E. 2d 513; S. v. Brown, 233 N.C. 202, 63 S.E. 2d 99; S. v. Koritz, 227 N.C. 552, 43 S.E. 2d 77; Hernandez v. Texas, 347 U.S. 475, 98 L. Ed. 866; Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469. The burden of proving discriminatory jury practice is upon defendant. S. v. Wilson, supra; S. v. Covington, 258 N.C. 495, 128 S.E. 2d 822; Miller v. State, supra; Akins v. Texas, 325 U.S. 398, 89 L. Ed. 1692. But this does not relieve the prosecuting attorney of the duty of going forward with the evidence when the defendant has made out a prima facie case.
In S. v. Wilson, supra, Judge Moore, speaking for the Court, said:
“When, at a hearing upon a motion to quash the bill of indictment, there is a showing that a substantial percentage of the population of the county from which the grand jury that returned the*257 bill was drawn is of the Negro race and that no Negroes, or only a token number, have served on the grand juries of the county over a long period of time, such showing makes out a prima facie case of systematic exclusion of Negroes from service on the grand jury because of race. Arnold v. North Carolina, 12 L. Ed. 2d 77; Eubanks v. Louisiana, 356 U.S. 584; Norris v. Alabama, 294 U.S. 587. The mere denial by the officials charged with the duty of listing, selecting and summoning jurors that there was any intentional, arbitrary or systematic discrimination because of race, is not sufficient to overcome such prima facie case. Hernandez v. Texas, 347 U.S. 475; Smith v. Texas, 311 U.S. 128; Norris v. Alabama, supra. To overcome such prima facie case, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts.”
Judge Gordon’s memorandum opinion dealt with the composition of the grand jury that found the bill of indictment at the 22 June 1964 Session of Randolph County Superior Court. A new jury list was put into effect 20 April 1965 for Randolph County, as set forth above, and from this jury list were selected the grand jury that found the bill of indictment in the instant case and the petit jury that tried defendant. “Former errors cannot invalidate future trials.” Brown v. Allen, supra. If racial discrimination in Randolph County was formerly practiced, as found by Judge Gordon in his memorandum opinion, but the jury list was thereafter properly revised and the law administered without discrimination, the former errors and practices would not affect the validity of an indictment returned after proper revisal of the jury system. Judge Johnston’s findings of fact on the motion to quash are supported by ample competent evidence and are conclusive on appeal, “in the absence of some pronounced ill consideration” of the evidence by Judge Johnston. S v. Wilson, supra; S. v. Perry, 250 N.C. 119, 108 S.E. 2d 447; S. v. Speller, 229 N.C. 67, 47 S.E. 2d 537, cert. den. 340 U.S. 835, 95 L. Ed. 613; S. v. Kirksey, 227 N.C. 445, 42 S.E. 2d 613; S. v. Henderson, 216 N.C. 99, 3 S.E. 2d 357; S. v. Bell, 212 N.C. 20, 192 S.E. 852; Akins v. Texas, supra; Thomas v. Texas, 212 U.S. 278, 53 L. Ed. 512. In other words, the findings of a trial judge will not be disturbed unless so grossly wrong as to amount to an infraction of the Constitution of the United States. S. v. Wilson, supra; S. v. Cooper, 205 N.C. 657, 172 S.E. 199.
In Akins v. Texas, supra, it is said:
*258 “While our duty, in reviewing a conviction upon a complaint that the procedure through which it was obtained violates due process and equal protection under the Fourteenth Amendment, calls for our examination of evidence to determine for ourselves whether a Federal constitutional right has been denied, expressly or in substance and effect, Norris v. Alabama, 294 U.S. 587, 589, 590, 79 L. ed. 1074, 1076, 1077, 55 S. Ct. 579; Smith v. Texas, 311 U.S. 128, 130, 85 L. ed. 84, 86, 61 S. Ct. 164, we accord in that examination great respect to the conclusions of the State judiciary, Pierre v. Louisiana, 306 U.S. 354, 358, 83 L. ed. 757, 760, 59 S. Ct. 536. That respect leads us to accept the conclusion of the trier on disputed issues ‘unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process.’ Lisenba v. California, 314 U.S. 219, 238, 86 L. ed. 166, 182, 62 S. Ct. 280, or equal protection.”
The record shows that Mr. Ingram showed by affidavit a list of jurors that served at the September 1966 Session of Randolph County Superior Court and at the November 1966 Session of Randolph County Superior Court, and that out of the fifty on the September panel one was a Negro, and that out of the thirty-six on the November panel two were Negroes. That is all the information in the record in respect to panels of jurors drawn from the jury boxes since the new list was prepared on 20 April 1965. This is said in Anno. 1 A.L.R. 2d 1291, at 1314: “There is abundant authority that the mere absence from a particular grand or petit jury, or from a particular jury panel, of members of the defendant’s class or race is insufficient, in and of itself, to show discrimination against the defendant in the selection of the jury.” In support of this statement, many cases are cited from the Supreme Court of the United States and from 15 state courts. Defendant’s proof falls far short of showing that there has been any discrimination against the defendant because of his color or race, and does not show any exclusion of Negroes from serving on the grand jury of Randolph County or a trial jury of Randolph County for some considerable period of time, after a new jury list was put into effect on 20 April 1965. The tax list is perhaps the most comprehensive list available for the names of citizens, because in this day and time women as well as men are substantial taxpayers in this Nation. S. v. Wilson, supra. In this case the jury boxes, after the revision of the same on 20 April 1965, contained the names of all people on the tax list and on the voters’ list. The fact that the chairman of the Board of County Commissioners testified that “no effort has been made to include on this
In Arnold v. N. C., 376 U.S. 773, 12 L. Ed. 2d 77, and in Eubanks v. Louisiana, 356 U.S. 584, 2 L. Ed. 991, the Court found that there had been a systematic exclusion of Negroes from the jury service for a considerable period of time. Such is not the case here.
Defendant assigns as error the court’s denial of his motion for a change of venue because of newspaper publicity of such nature that he would be unable to have a fair trial in Randolph County. The record shows that before the jury was impanelled several jurors stated that they had read articles in the Courier-Tribune about this case, whereupon the court made the following statement:
“Court: Now, members of the jury, as has already been suggested, the purpose of these questions that have been propounded to you by counsel in the case has been to obtain an entirely fair jury. Is there any member of this jury as it is presently constituted that knows of any reason — whether you have been asked about it or not — why you feel that you couldn’t render to the State of North Carolina, and to this defendant, a completely fair and impartial verdict? If so, the court would like for you to indicate by raising your hand.”
There was no response. Whereupon, the jury was impanelled. Defendant’s motion for a change of venue was addressed to the sound legal discretion of Judge Johnston, and in the light of what Judge Johnston said to the jury before they were impanelled and the fact that no juror raised his hand in respect to the question does not show any abuse of discretion. This assignment of error is overruled. S. v. Porth, 269 N.C. 329, 153 S.E. 2d 10; S. v. Scales, 242 N.C. 400, 87 S.E. 2d 916.
The evidence for the State in the present record is substantially similar to the evidence in the record as set forth in the opinion in this case on the first appeal. S. v. Brown, supra. For that reason it would serve no useful purpose to set it forth in detail again in this case. The State’s evidence in brief summary is that Lucille Currie was admitted about 2:15 a.m. on 16 March 1964 in the emergency room of Randolph Hospital in Asheboro with severe burns over about 70% of her body, from which she died some 25 hours thereafter. While in the hospital she made dying declarations to the effect that defendant poured gasoline on her, struck a match, and set her on fire.
Defendant assigns as error the admission of evidence in respect to a search of defendant’s automobile after he was arrested and placed in jail, and to the testimony of an officer that they opened the doors of the automobile and looked inside and there was a strong odor of gasoline in the car. The officer testified that the defendant gave permission for the search. This assignment of error is overruled. It is well-settled law that a person may waive his right to be free from unreasonable searches and seizures. “No rule of public policy forbids its waiver.” Manchester Press Club v. State Liquor Com., 89 N.H. 442, 200 A. 407, 116 A.L.R. 1093. It has been repeatedly decided in this jurisdiction, in the United States Supreme Court, and the Courts of this Nation that one can validly consent to a search of his premises, and consent will render competent evidence thus obtained. S. v. Hamilton, 264 N. C. 277, 141 S.E. 2d 506; S. v. Coffey, 255 N.C. 293, 121 S.E. 2d 736; S. v. McPeak, 243 N.C. 243, 90 S.E. 2d 501, cert. den. 351 U.S. 919, 100 L. Ed. 1451; S. v. Moore, 240 N.C. 749, 83 S.E. 2d 912; Zap v. United States, 328 U.S. 624, 90 L. Ed. 1477; United States v. Mitchell, 322 U.S. 65, 88 L. Ed. 1140; United States v. Page, 302 F. 2d 81; Nelson v. United States, 208 F. 2d 505; People v. Preston, 341 Ill. 407, 173 N.E. 383, 77 A.L.R. 631; State v. King, 44 N.J. 346, 209 A. 2d 110, 9 A.L.R. 3d 847, and Annotation thereto in A.L.R. 3d, ibid, beginning at p. 858; 79 C.J.S., Searches and Seizures, § 62; 47 Am. Jur., Searches and Seizures, §§ 71-72; Annot. 31 A.L.R. 2d 1078.
The record contains 104 assignments of error and more than 104 exceptions. A number of these assignments of error are that the court sustained an objection to a question asked the witness by defendant’s counsel, but the record does not disclose what the reply of the witness would have been if he had been permitted to answer; consequently, it is impossible for us to know whether the ruling was prejudicial to the defendant or not. The burden is upon the appellant not only to show error but to show that such error was prejudicial to him. All assignments of error of this nature are overruled. S. v. Poolos, 241 N.C. 382, 85 S.E. 2d 342.
“76. The court erred in overruling defendant’s objection. ExceptioN No. 75 (R. p. 187).
“76. The court erred in overruling defendant’s objection. Exception No. 76 (R. p. 191).
“77. The court erred in overruling defendant’s objection. Exception No. 77 (R. p. 191).
“78. The court erred in overruling defendant’s objection. Exception No. 78 (R. p. 196).
“79. The court erred in overruling defendant’s objection. Exception No. 79 (R. p. 201).
“While the form of the assignments of error must depend largely upon the circumstances of each case, they should clearly present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is. Thus, they must specifically show within themselves the questions sought to be presented, and a mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient.” 1 Strong’s N. C. Index 2d, Appeal and Error, § 24. All assignments of error of this character are overruled.
The defendant in his brief cites very meager authority in support of his contentions. All defendant’s assignments of error have been carefully examined and all are overruled,
The judgment of the court in the first case was that defendant should be confined in the State’s prison for a period of 20 to 25 years. This is the judgment in the instant case: “It is the judgment of this court that the defendant be confined in State’s Prison for a term of twenty-five (25} years. It appearing to the court that upon a previous conviction that the defendant has served a period of time between January 25, 1965, and July 26, 1966, which conviction was set aside July 26, 1966 by the Federal Court. It is the intention of the court for the Prison Department to give the defendant credit for time served under the previous sentence which was vacated by the Federal Court on July 26, 1966.” It is the order of this Court that the prison Department shall give the defendant credit for time served under the previous sentence which was vacated by the Federal Court on 26 July 1966. S. v. Weaver, 264 N.C. 681, 142 S.E. 2d 633.
In respect to the increased sentence on the second trial, this is
Defendant has shown no error by his 104 assignments of error that would justify a new trial.
In the trial below we find
No error.
Concurring Opinion
concurring:
Here we have another example of the right of unbridled, unrestricted and unlimited appeal.
The facts set forth in the previous appeal by our able Chief Justice Parker show that the defendant suspected his girl friend of two-timing him. Without proof, he condemns her to die. He forces her into his car, telling her he is going to kill her. Having procured a half gallon of gasoline for his savage purpose two hours earlier, he deliberately throws it on her clothes and strikes a match to ignite them. She dies in agony a day later, after telling the above story several times. The defendant has yet to deny its truth except by his formal plea of not guilty.
Upon the first trial his life was saved when the State did not seek the death penalty. Upon conviction of second degree murder the court imposed less than the maximum penalty for that offense. With that, the defendant should have been content — if not exuberant.
But no! With the tendencies of some courts (not this one) to protect the “rights” of criminals — and, by corollary — to overlook and ignore the rights of the public, and the victims, he seeks and obtains a new trial. He has nothing to lose, and all to gain. He can never be tried again for more than second degree murder; his appeal is at the public expense for the cost of the record and a State-paid lawyer to represent him. Why should he not pursue, and continue to pursue, even after this, his all-to-gain and nothing-to-lose, opportunities?
His complaint at this time (he will have others on his later, all-expense-paid motions and appeals) is that he was discriminated against because the grand jury and trial jury contained too few
No one would deny that a person charged with crime should have his rights fully protected. But neither can it be denied that the object of government and law is primarily to protect the public from murder, burglary, rape and other offenses. From my viewpoint, it would seem that the latter has been relegated to an unrealistic and impractical position and that the criminals are given more than their “rights” while the safety and security of our good citizens are, to an alarming degree, diminished.
I fully concur with the opinion.
Reference
- Full Case Name
- State v. Livingston Brown
- Cited By
- 21 cases
- Status
- Published