STATE of North Carolina
v.
Julius CORNELL et al.
No. 9.
Supreme Court of North Carolina.
April 12, 1972.*773 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Jacob L. Safron, and Associate Atty. Gen. Edwin M. Speas, Jr., for the State.
James E. Ferguson, II, Chambers, Stein, Ferguson & Lanning, Charlotte, and James E. Keenan, Paul & Keenan, Durham, for defendants.
BRANCH, Justice.
The primary question presented by this appeal is whether the trial judge correctly quashed the bills of indictment and the petit jury venire on the grounds of systematic and arbitrary exclusion of qualified Negroes from the jury list.
The State first contends that the trial judge erred in basing critical findings of fact on the testimony of the witness Foltz as to his recollection concerning the contents of records which he had prepared. The State seeks to invoke the best evidence rule, which declares that a writing is the best evidence of its contents. It is ordinarily required that the writing itself be produced unless its nonproduction is excused. In re Will of Knight, 250 N.C. 634, 109 S.E.2d 470; Harris v. Singletary, 193 N.C. 583, 137 S.E. 724. However, this rule applies only where the contents or terms of the document are in question. State v. Ray, 209 N.C. 772, 184 S.E. 836; Overby v. Overby, 272 N.C. 636, 158 S.E.2d 799.
In State v. Ray, supra, this Court stated:
"The appellant directs a number of exceptions to the court's permitting the State to introduce, over his objection, parol evidence to establish the contents of Norfolk Southern freight car No. 20635, when there was evidence to the effect that the records of the railroad company showed such contents, upon the theory that such records were the best evidence of the fact sought to be proved. While it is generally agreed that writings themselves furnish the best evidence *774 of their contents, the `best evidence rule' has no application here, since the fact sought to be proved was whether certain cigarettes had been put in a certain car, and had no relation whatsoever to the contents of any writing or record. No problem of primary and secondary evidence was presented. The making of a record did not prohibit a witness, who loaded the car and saw what went into it, from testifying as to its contents."
We do not think that the witness Foltz was prohibited from testifying as to his recollection of what he had personally observed simply because he had made a record of his observations. Further, the State runs afoul of the technical rule which declares that when an objection to evidence is made on a specific ground, the competency of the evidence will be determined on appeal solely on the basis of the grounds specified. Existence of another ground for the objection makes no difference unless the evidence was completely without purpose. Pratt v. Bishop, 257 N. C. 486, 126 S.E.2d 597; Stansbury, N.C. Evidence, § 27 (2d ed., 1963). Here the Solicitor based his objection on the specific ground that the records in question were not official.
We therefore conclude that the evidence of witness Foltz was competent and admissible.
It is well recognized that the trial court's findings of fact will not be disturbed if there is competent evidence to support them. However, the trial court's conclusions of law are subject to review, and where rulings are made under a misapprehension of the law, the orders or rulings of the trial judge may be vacated and the case remanded for further proceedings, modified or reversed, as the rights of the parties and the applicable law may require. Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812; Horton v. Redevelopment Commission, 264 N.C. 1, 140 S.E.2d 728; Textile Insurance Co. v. Lambeth, 250 N. C. 1, 180 S.E.2d 36; Morris v. Wilkins, 241 N.C. 507, 85 S.E.2d 892.
We first consider whether the trial judge acted under a misapprehension of the law when he concluded:
"Upon such findings of fact, the court concludes that under the United States Supreme Court decisions of Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599; Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634, and Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25, and under the applicable provisions of the United States Constitution, the defendants are entitled to allowance of their motions to quash their bills of indictment and to quash the petit jury venire."
In State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, this Court unanimously approved the following statement:
"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 *775 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."
The following propositions of law are equally well established:
(1) The mere denial by officials charged with the duty of listing and summoning jurors that there was no intentional, arbitrary or systematic discrimination on the ground of race is not sufficient to overcome a prima facie case. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109; Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866; Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84; Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074.
(2) A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county. Nor is a jury commission limited to the sources specifically designated by the statute. State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; Brown v. Allen, 344 U.S. 443, 73 S. Ct. 379, 97 L. Ed. 469; State v. Wilson, supra.
(3) A person has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. State v. Yoes, supra; State v. Wilson, supra; Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759; Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075.
The trial court and defendants rely upon the cases of Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599; Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634; Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25, to support the order quashing the indictments and the jury venire. Jones v. Georgia, supra, and Sims v. Georgia, supra, were per curiam opinions factually similar to and decided on the authority of Whitus v. Georgia, supra.
In Whitus v. Georgia, supra, defendant attacked his murder conviction on the ground that the State systematically excluded members of his race from the grand jury which indicted him and the petit jury which convicted him. There, the jury commissioners made up the jury list from tax records which listed Negroes on yellow paper and whites on white paper. Later, the same commission reconstituted the jury box with names taken from a tax listing which denoted the names of Negro taxpayers by a "(c)" being placed opposite the name. The population of the county was 27.1% black, 42.6% of the potential (by age and sex) jurors were black. One of nineteen grand jurors was black, and seven of ninety petit jurors were black. The State offered no evidence tending to show or explain that the discrepancy was not the result of arbitrary, systematic exclusion of blacks. The United States Supreme Court, in reversing the judgments, inter alia, stated:
"Under such a system the opportunity for discrimination was present and we cannot say on this record that it was not resorted to by the commissioners. Indeed, the disparity between the percentage of *776 Negroes on the tax digest (27.1%) and that of the grand jury venire (9.1%) and the petit jury venire (7.8%) strongly points to this conclusion. Although the system of selection used here had been specifically condemned by the Court of Appeals, the State offered no testimony as to why it was continued on retrial. The State offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of `upright and intelligent' Negroes as the statutory qualification required. In any event the State failed to offer any testimony indicating that the 27.1% of Negroes on the tax digest were not fully qualified. The State, therefore, failed to meet the burden of rebutting the petitioners' prima facie case."
In instant case defendants contend that their showing that the black adult population in Forsyth County amounted to approximately 20% of the population of that county, when coupled with the testimony of the witness Foltz to the effect that during the biennium beginning January 1970 approximately 10% of the petit jurors appearing for service in the courtroom in which he was employed were Negro, made out a prima facie case of racial discrimination.
The State, on the other hand, contends that such disparity, standing alone, is not sufficient to make out a prima facie case of racial discrimination.
The case of Swain v. Alabama, supra, strongly supports the State's argument. There the petitioner sought to quash the indictment and strike the trial jury venire on the ground of racial discrimination in the selection of all juries. He presented evidence showing that Negro males over twenty-one years of age constituted 26% of the age group in the county in which he was tried and that only 10% to 15% of the grand and petit juries drawn from the jury books since 1953 had been Negroes. There were four or five Negroes on the Grand Jury panel of approximately thirty-five persons which indicted defendant and there were eight Negroes on the petit jury venire, although none actually served in defendant's trial. The law of Alabama required the commissioners to place on the jury roll all male citizens over twenty-one years of age, reputed to be honest, intelligent menesteemed for their integrity, good character and sound judgment. Each commissioner produced names of persons from various lists who in his judgment were qualified to serve as jurors. The United States Supreme Court held that the trial court properly denied defendant's motion to quash. Mr. Justice White delivered the Court's majority opinion, and Mr. Justice Goldberg, with whom Chief Justice Warren and Mr. Justice Douglas joined, delivered a separate dissenting opinion. The majority opinion, in part, stated:
". . . We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. See Thomas v. State of Texas, 212 U.S. 278, 283, 29 S. Ct. 393, 394, 53 L. Ed. 512, 514; Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; Cassell v. State of Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839. . . . There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. *777. . . We do not think that the burden of proof was carried by petitioner in this case."
The basis for the dissenting opinion is that the showing of the disparity in racial representation of the jurors made out a prima facie case, and that since the State had greater access to the evidence which would negative its involvement in discriminatory jury selection, the State must assume the burden of going forward with evidence to show how the exclusion came about.
Swain v. Alabama, supra, amply supports a holding under the facts of this case that the showing of underrepresentation of Negroes on the juries of Forsyth County was not sufficient to establish a prima facie case of racial discrimination. Even had a prima facie case been made out on the theory of underrepresentation of Negroes on the juries, defendants' own evidence relieved the State of the burden of going forward with the evidence. Defendants also argue that the system of jury selection in Forsyth County presented "opportunity for discrimination" merely because the jury commissioners admitted that, in some instances, they could determine from the address shown on the raw jury list card that the person there named lived in a predominantly white or a predominantly black neighborhood. We note in passing that a person who would qualify to serve on a jury commission would of necessity possess this knowledge of his county in order to impose the objective statutory criteria in preparing the jury list.
In attacking the jury selection system, defendants offered the testimony of all members of the Forsyth County Jury Commission, the Clerk of Superior Court of Forsyth County and the Register of Deeds of Forsyth County. By offering this testimony defendants exhausted the State's sources of information and affirmatively showed that the officials assiduously complied with the provisions of Article I, Chapter 9 of the General Statutes. We note that former Chapter 9 in 1949 contained substantially the same procedures as now. It was declared constitutional in the case of Brown v. Allen, supra, and was labeled "fair and nondiscriminatory" by this Court in State v. Wilson, supra. The rewrite of that chapter creating a jury commission to act in lieu of the county commissioners, designating the voter registration records as a source for preparing jury lists, and making other unsubstantial changes, preserves and enhances the fair and nondiscriminatory nature of its provisions. Chapter 9, Article I, of the General Statutes as it existed at the times herein complained of was obviously designed to require a minimum exercise of official discretion and to insure maximum protection against arbitrary abuse of such discretion.
Defendants' evidence further shows that there was no such "opportunity for discrimination" in the selection of the Forsyth County jury list as was found in Whitus and that the individual jury commissioners did not remove any name from the raw jury list solely on the basis of suspected race of the named person.
Thus, defendants' evidence fully demonstrates that any disparity in racial representation on the juries of Forsyth County did not result from discrimination in the preparation and drawing of the jury list. The rationale of the prima facie rule does not require the State to repetitiously present evidence already elicited by defendants. It was, therefore, not necessary for the State to "go forward" with further evidence.
We are cognizant of the decision in Alexander v. Louisiana, 405 U.S. ___, 92 S. Ct. 1221, 31 L.2d 536 (U.S. April 3, 1972) based upon Avery v. Georgia, supra, and Whitus v. Georgia, supra. Alexander is also distinguishable from instant case because of the differences in the Louisiana and North Carolina jury selection processes.
The trial judge erred in quashing the bills of indictment and the petit jury venire *778 on the ground of arbitrary and systematic exclusion of qualified Negroes from the jury list.
The only remaining ground for quashal of the bills of indictment and the petit jury venire which defendants bring forward and argue in their brief, and to which they have directed evidence, is the exclusion from the jury list of persons eighteen years old but not twenty-one years old.
At the time the jury list was prepared by the Forsyth County Jury Commission, G.S. § 9-3 provided:
Qualifications of prospective jurors. 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 twenty-one years of age or over, who are physically and mentally competent, who have not been convicted of a felony or pleaded nolo contendere to an indictment charging a felony, and who have not been adjudged non compos mentis. Persons not qualified under this section are subject to challenge for cause. (Emphasis ours)
The 1971 General Assembly amended G. S. § 9-3, effective 21 July 1971, so that the age requirement for voting was changed from twenty-one years or over to eighteen years or over. Therefore, we must determine whether there was intentional, arbitrary or systematic discrimination against this age group in the institution and management of the jury system. State v. Wilson, supra. At the time the jury list in question was prepared, the jury commissioners were precluded by the provisions of G.S. § 9-3 from placing the names of any persons under twenty-one years of age on the jury list. G.S. § 9-2 required that the jury commissioners "at least thirty days" prior to 1 January 1972 begin preparation of a new jury list for the ensuing biennium. Thus, if there be any discrimination against this age group, resulting in prejudice to these defendants, it must result from a failure of the jury commission to place names representing such group on the jury list during the period from 21 July 1971 to 21 September 1971.
We know of no reasonable method by which the Forsyth County Jury Commission could have obtained a fair cross-section of the age group in question within a period of two months and one day. None of the names of this age group appeared on the voter registration records; very few of such names appeared on the tax lists; a large number of this group would have been in school, and many of them, being still dependent upon their parents, would not have established an independent address.
The North Carolina plan imposes a two-year lapse in preparation of new jury lists as opposed to the five-year plan adopted by some federal courts. United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971). We also note, parenthetically, that as of 4 February 1972 the United States Congress had not amended 28 U.S.C.A. § 1865 to require the federal district courts to include the names of persons under twenty-one years of age on their jury lists.
The North Carolina statutory plan for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group.
The absence from the jury list of the names of persons between the ages of eighteen and twenty-one for the short period of time here complained of is not unreasonable, and does not constitute systematic and arbitrary exclusion of this age group from jury service.
The trial judge acted under a misapprehension of the law when he quashed the bills of indictment and ordered the jury commissioners of Forsyth County to prepare a new jury list for drawing of grand and petit jurors.
The order of 27 September 1971 entered by Judge Long in these cases is
Reversed.