State v. Belton

IN THE SUPREME COURT STATE OF NORTH CAROLINA KENNETH EARL and EUGENE BELTON SADLER, WELDON JR.

No. 693A84 (Filed 1986) August against joinder multiple charges prop- § 1. Criminal Law 92.2— two defendants — er joining rape, robbery kidnapping, did not err in for trial trial court defendants, against and sex offenses two and there was merit to one de- no (1) joinder deprived him fendant’s contention of a fair trial antagonistic other defendant’s defense was to his relied on because he weakness of the case while State’s the codefendant relied on an affirmative de- (2) alibi; testimony fense which evidence an included the codefendant’s “im- plicated” placing possession defendant the crimes him in and control of victim, “impliedly” calling question the vehicle from the stolen into defendant’s (3) silence; joinder incredibility forced defendant to “have to suffer the and im- (4) account”; plausibility testimony the codefendant’s codefendant’s] [the him, applicable connecting only only him to stolen vehicle was testimony directly codefendant’s connected defendant to the vehicle. N.C.G.S. 15A-926(b)(2) (c)(2). § Rape § rape by rape by 5— defendant —simultaneous codefendant —conviction supported by for both crimes evidence rape Evidence was sufficient to convict defendant both for he com- twenty mitted and for the simultaneous his codefendant some committed away feet where evidence tended to show that defendants committed all pursuant purpose; plan the crimes both victims to a or common to- they they gether kidnapped agreed sexually the victims whom had earlier molest; rapes completed, after and sex were offenses defendants left arrested; together they together they in a vehicle which used stolen until were having throughout rampage, acted concert their criminal each was guilty of all crimes committed either. flight proper § 3. Criminal Law 46.1— of defendants —evidence and instructions properly The trial evidence court admitted and instructed con- immediately cerning flight from a law defendants’ enforcement officer before arrest, was no and there merit to one defendant’s contentions that he did police instinctively only officer was a know that the officer that he ran ran; furthermore, might because his even if codefendant defendants have had fleeing guilt other reasons than crimes consciousness for the for which tried, of, weight, admissibility being this went not the flight. the evidence of 60; Jury 4. Constitutional Law 7.14— exclusion of blacks from —failure racial to show discrimination deliberately There merit to contention was no defendants’ that the State solely qualified petit jury black excluded men and women from the on the THE SUPREME COURT IN challenges peremptory because through exercise of basis of their race raping kidnapping white women charged men involved black jurors; prospective four challenged five white six black and the State since twelve, finally petit a re- jurors jurors eight white sat on black County make-up where closely paralleled the racial Cumberland which sult chosen; jurors, challenged two the State jurors as for alternate were sat; one; and the chal- passed black and one white alternate one blacks and affirmatively other than race complained demonstrated concerns lenges prosecutor. must have motivated &emdash; 34; degree kidnap- Kidnapping 1 for first convictions 5. Constitutional Law jeop- kidnapping&emdash;double degree rape&emdash;rape ping used as element of and first ardy jeopardy precluded defend- prohibition double The constitutional degree kidnapping being the first and first de- ants from convicted for both victims, only rape sexual gree rape since the of one victim was the of two degree formed the sexual assault element of the first assault which could have her, kidnapping involving were indicted for convictions and since defendants victim, rape though one of the other the evidence tended and convicted of fellatio, raped perform twice forced to but the to show that the victim was jury, being assume that the without instructed that it could do court could not so, unanimously beyond a reasonable doubt that defendants in fact com- found they rape against that it mitted a the victim for which were not indicted and rape supply in used the unindicated the sexual assault element the crime of degree kidnapping first of the second victim. 6&emdash; Rape deadly weapon aiding abetting 6. or defendants each use of &emdash;instruction disjunctive improper other prosecution degree rape degree In a for first and first sex offense where that, rapes if the trial court instructed in the and sex offenses defendants another, deadly they employed weapon or were aided or abetted could be offense, guilty degree rape degree found of first and first sex there was no charge given disjunctive merit to defendants’ contention en- abled the to render a nonunanimous verdict. 1.2&emdash; Kidnapping asportation victims&emdash;sufficiency support of evidence kidnapping degree conviction defendants, confined, gunpoint, Evidence that restrained and removed they length military victims for some of time while from a drove reserva- Springs County they raped tion to Eureka where Cumberland and other- sexually support wise assaulted their victims was sufficient to a conviction of confinement, degree kidnapping, defendants for first and the restraint and integral part inherently necessary removal was not an of for the commission of the crimes of and first sex offense of which also con- victed. dissenting part. Justice Martin join dissenting opinion.

Justices M~YERand MITCHELL in the dissenting part. Justice ME~ER IN THE SUPREME COURT 7A-27(a) by defendants pursuant Appeal to N.C.G.S. from §

judgments life imposing sentences entered on September J., by Johnson (Lynn), joint after a jury trial at the 29 August 1984 Criminal Session of CUMBERLAND County Superior Court. Belton’s petition bypass the Court of Appeals with to a regard judgment imposing twenty-year sentence allowed on 13 Febru- ary 1985. General,

Lacy Broome, H. Thornburg, Attorney by David E. Jr., General, Assistant Attorney the state. Stein, Defender, Widenhouse,

Adam Appellate by Gordon Assist- Defender, ant Appellate appellant Belton. for defendant James R. Parish appellant Sadler. for defendant EXUM, Justice. (1) This raises appeal questions involving propriety (2) trial;

joining defendants for the sufficiency of the evidence to (3) show aiding abetting; admissibility and of evidence of and (4) flight; instructions on whether the state’s peremptory chal- of certain lenges jurors black unconstitutionally defend- deprived (5) ants of a representative jury; whether defendants’ rights under the constitutional prohibition against double jeopardy were (6) violated; whether a instruction in the disjunctive violated (7) verdict; defendants’ to a rights unanimous whether there was sufficient evidence of kidnapping. We find a violation of defendants’ rights under constitutional prohibition against double and remand for a new jeopardy hearing. Other- sentencing wise we find no error in the trial.

I. Each upon defendant was tried a multi-count bill of indict- ment1 him charging with two counts of two counts of kidnapping, first degree rape, robbery, two counts of armed and one count of sex offense.

The state’s evidence to show: adduced trial tended On White, May evening Nunnery Doris and Rebecca both twenties, Raeford, Carolina, white in their females left North 83CRS23571; Sadler’s, 1. Belton’s No. No. indictment 83CRS23581. COURT THE SUPREME IN Dragon Toyota went to the 1979 brown Célica Nunnery’s Club, at Fort military reservation on the located nightclub a black male armed Club Dragon At North Carolina. Bragg, A man Toyota. into second both women with ordered pistol or- One the men shotgun appeared. armed with a sawed-off seat, and driver’s back seat behind the get White to in the dered Bel- later identified as pistol, The with the she assailant complied. seat, ton, he Nunnery passenger’s the front get to told they Dragon seat. As left the Club’s himself in the driver's got lot, his pistol accomplice the driver handed his parking Sadler, seat, guns who on White identified as held both rear later route, in the car. While en time the four were the entire they man what wanted. When one women asked their assailants they them take the money, wanted the women told replied that else, car, money, with men to anything pleaded release them. Fort through rural areas several miles from traveling After minutes, twenty thirty stopped the four on a de-

Bragg for vicinity road in of Eureka Belton ordered Springs. serted dirt clothing. the women to remove their Sadler in the rear seat then be pistol again returned the driver’s him. women asked to released, unharmed, they and the men would replied released be sexual relations but not before had men. get Belton told to out of the car and told White to fol- Sadler him. Sadler White into a area low took wooded approximately her, twenty aiming shotgun feet from the car. While his he made consent, lie where ground engaged, her down on the he without her White, shotgun

in sexual intercourse. Still his holding on him, he her fellatio perform made on and then in sexual engaged ordeal, a intercourse second time. White’s During Belton confined her, Nunnery in the holding pistol automobile. While his on he en- in gaged sexual intercourse with her her will. car, men in Nunnery’s

The two left some of which contained wallets, the women’s and their clothing pocketbooks containing cash, cards, identification, A photographs, credit and makeup. baby was in carriage stored the trunk. motorist,

White in a flagging succeeded down who took the nearby two to a phone they women booth where for telephoned ultimately and help. received v. Belton Payne Alfred F. of the Spring

On June Detective a at 410 Lake duplex Police went to located Department Lake Toyota a bearing near where a brown Célica automobile Avenue Payne was Detective noticed plate parked. license Virginia in on inside the car dry bag hanging a cleaner’s a hook clothes “E. Sadler.” went to the rear bearing with a ticket name He he for and saw defendants duplex of the where radioed assistance Sadler, knew, park whom a trailer on crossing he standing. link from he was side of a chain fence where other Payne they ran in the other direction. When saw defendants chase, other Lake officers Spring police appre- After a brief Nunnery. to Toyota The belonged automobile hended defendants. shell, shotgun clothing a be- shotgun, a sawed-off It contained to was plate The license affixed it Virginia longing Sadler. 5,000 miles approximately odometer showed stolen. car’s Nunnery had last driven it. more than when in she day, Nunnery lineup viewed a which Later live The next morning, Belton as her assailant. identified defendant line- Sadler another independently White identified defendant identify was the other her Neither victim able to assailant. up in the lineups. assailant victim’s no presented evidence.

Defendant Belton he playing cards Sadler testified Defendant May 1983 until 11:30 evening of 21 Lake Spring friends witnesses cor- when he and Belton left. Other or midnight, p.m. he Belton hitchhiked testimony. said Sadler roborated named they meet man Jackson where were to park trailer his girlfriend him Belton drive from so could and borrow a car li- with a Toyota Virginia Célica They brown Miami. borrowed Sadler use Belton and $100 to the car. Jackson plate, paying cense Lake Spring at about a.m. girlfriend Belton’s picked up then Miami, days. stayed Upon they where three drove to $50, Carolina, kept Jackson another paid return North County Sadler until their arrest. and remained Cumberland car stolen, was car knowing car or stealing denied shotgun. Other the sawed-off owning ever possessing denied to attempt defendants did testified that witnesses defense Toyota. conceal testimony presented The state rebuttal that Alvin Renna

Jackson, Sadler indicated loaned person defendants automobile, tall, Toyota considerably was 5 feet inches shorter than the victims’ of either descriptions perpetrator. Jackson testify unavailable to at trial.

The jury found each defendant It guilty charged. found Sadler guilty of first degree kidnapping, degree rape, robbery armed of both victims White Nunnery. It also found him guilty a first sex offense against White. The found defendant Belton of first guilty degree kidnapping, first de- gree rape, robbery and armed of both victims White and Nun- nery. It also found him guilty of a first degree sex offense against White. aiding Theories of and abetting were used to convict Bel- ton and sex offense rape Sadler personally committed against White and to convict Sadler of the rape Belton personally Nunnery. committed against

Judge Johnson consolidated for judgment both of Belton’s kidnapping convictions with his rape conviction against White and sentenced him to life He imprisonment. also for judg- consolidated ment Belton’s rape against conviction Nunnery and his first degree sex offense conviction White and him sentenced term, a second life to begin at the expiration of the Finally first. he consolidated for both judgment of Belton’s robbery armed con- victions and him twenty years’ sentenced imprisonment begin at the expiration of his second life sentence. Judge Johnson consolidated for judgment both of Sadler’s kidnapping convictions with his rape conviction of White and sentenced him to life impri- sonment. He then consolidated for judgment both of Sadler’s robbery armed convictions with his conviction for the Nunnery and the sex him offense against White and sentenced a life term to begin at the expiration of the first life sentence.

We first consider assignments of error advanced by de- fendant Belton. Next we consider those assignments advanced defendants, both defendant Sadler not having any made argu- ments not also made defendant Belton.

II. A. ^[1] Defendant Belton first challenges joinder of his and Sadler’s trials. He moved before trial and made repeated motions IN THE 147 SUPREME COURT

State v. Belton severance, denied, trial for all of which were and moved during for mistrial because the severance motions were not Bel- granted. ton these him of a fair trial. He claims argues rulings deprived him of joint deprived presumption trial the innocence and on right rely his to the weaknesses of the state’s case and forced “tacitly theory him defendant Sadler re- accept [defense] merit, veracity, gardless poten- faith either its [Belton’s] in joining tial for success.” We conclude there was no error these for nor in defendants trial Belton’s motion for severance denying or mistrial. out joinder

The rules for of cases for trial are set permissible (b)(2) provides: 15A-926. Subsection of this statute N.C.G.S. § two Upon prosecutor, charges against written motion may joined or more be for trial: defendants charged a. When each of the defendants is with account- ability for each offense. accountability for each charged

Here since each defendant is offense, De- statutory are prerequisites joinder present.2 contrary. fendant Belton does not contend is, rather, that his motions for severance Belton’s argument 15A-927(c)(2) pursuant should have been N.C.G.S. granted § or in- guilt determination “necessary a fair promote [his] nocence.” Id. to be held ac sought

Where two or more defendants are crimes, joinder per not is for the same crime or countable statute, compels strongly “public policy but missible under exception.” than the as the rule rather consolidation 586, 629, Nelson, 573, cert. denied 639 298 260 S.E. 2d N.C. 979, Carolina, 282 64 L.Ed. 2d 446 Jolly nom. v. North U.S. sub (9th 1193, (1980); accord, States, F. 2d Parker v. United 1968), denied, 22 L.Ed. 2d cert. 394 U.S. Cir. statute, to sever whether under the joinder permissible When the discretion within lodged is a deny joinder question or to trials appeal on will not be disturbed judge rulings of the trial whose it, appropri- affirmatively we assume Although show the record does not does prosecutor. Defendant joinder was made motion for ate written not made. ground a motion was joinder such contest of a joinder deprived unless it is demonstrated S.E. Boykin, fair trial. State 372, (1982); 222 S.E. “Ab- Alford, 289 N.C. State of a fair trial deprived has been showing sent a discretionary on the by ruling question joinder, judge’s the trial 586, Nelson, 298 at 260 S.E. will N.C. not be disturbed.” State 277, 640; Fox, accord, 163 S.E. 2d 2d at (1968). State v. N.C. him of a fair trial for several joinder deprived Belton claims First, says antagonistic reasons. he Sadler’s defense was to Bel- relied on the weakness of the state’s ton’s because Belton and Sadler on an affirmative defense which included evidence of Second, argues testimony an alibi. Belton that Sadler’s “impli- by Belton in the crimes in placing possession cated” Belton victim, control of the vehicle stolen from the “impliedly” calling Third, into silence. question says joinder Belton’s Belton forced Belton “to have to the incredibility suffer implausibility Finally, argues testimony Sadler’s account.” that Sadler’s Toyota connecting “only Sadler to the stolen was applicable Sadler,” testimony directly Sadler’s connected Belton to Toyota. discretionary Recognizing propriety joinder rests case,” Nelson, ultimately “upon the circumstances of each at 260 S.E. 2d at we are completely satisfied that there are no circumstances here which join- demonstrate that der deprived Belton of a fair trial. Mere inconsistencies defenses necessarily do not amount to the kind of antagonism be- tween joined defendants for trial that deprives one or the other Rather, of a fair trial. at Id. S.E. 2d 629. the defenses must be “so irreconcilable that ‘the will unjustifiably infer that this conflict alone demonstrates that both are . . . guilty’ [or] so discrepant as to an pose evidentiary contest more between de- fendants themselves than between the State and the defendants . . . [resulting spectacle where the stands simply a] and witnesses ‘a combat which the defendants [attempt] ” destroy each other.’ Id. at 260 S.E. 2d at 640.

This case presents none of this kind of antagonism between Indeed, defendants. we perceive no real antagonism at all be- tween defendants at trial. Sadler’s testimony exculpate tended to IN THE SUPREME COURT was, least, both defendants and on its face favorable to both Sadler got and Belton. Belton of it without having benefit testify and subject himself to cross-examination. Although the it, jury chose ultimately not to believe Sadler’s version of the events was not on inherently its face so implausible Sadler’s very of it telling deprived Belton of a fair trial. Neither was Sad- ler’s testimony directly all that Belton with connected the stolen vehicle. The victims of the crimes positively identified both Bel- ton and Sadler as their assailants and the thieves who took the car. Rather than being all that Belton in implicated the theft car, testimony Sadler’s was all that how explained he and Bel- ton might have gained possession the car a lawful manner rather than in the unlawful manner described the victims of Finally, the crimes. Belton was not to accept story forced Sadler’s tacitly or story, otherwise. Belton had a to tell his own right right which for freely whatever reason he chose not to exercise. 258, Belton relies on Boykin, State v. 296 S.E. 2d N.C. Alford, and State v. N.C. S.E. 2d of support his that of argument joinder his cases with those of Sadler de- him prived of a fair trial. In both and Boykin this Court Alford found error in the consolidation and awarded defendants new easily trials. Both cases are In distinguishable. both and Boykin that joinder against Gourt concluded trials two de- Alford fendants prevented one of the defendants from offering exculpa- tory evidence which not would have been available had the cases joined. been This joinder precluded record does indicate that Belton from which offering exculpatory evidence would have been available had he been tried separately.

B. ^[2] his motion Defendant Belton dismiss for assigns insufficiency error to the trial court’s of evidence the charges denial degree against and first sex offense committed rape White. He insufficient to show Bel argues the evidence was against ton aided and abetted Sadler in these crimes committing only White because it tended to show that Sadler committed where, Nunnery’s twenty these crimes some feet from automobile simultaneously, Nunnery. was raping Belton McKinnon, disagree, finding

We State v. McKinnon was con- controlling point. S.E. 2d 118 on this COURT THE SUPREME IN simultaneous for the and he committed rape both for victed McKinnon, Rich, nearby. committed Rich Andrew his cohort rape two males and of three group approached had and others The armed assailants car. in a parked seated who were females disrobe, be- personal robbed them victims all the ordered Rich then from the females. males separated longings, raped the while McKinnon females one of the to rape proceeded his mo- denying erred the trial court argued McKinnon other. of Rich’s victim him of against charges to dismiss tions aided and to show he was insufficient the evidence ground on the saying: argument McKinnon’s rejected Rich. We abetted was not that defendant plenary for the State Evidence An- the crimes committed scene of at the present actively encouraging aiding, he was drew Rich but victims, the robbery stripping of all the participating an area girls the removal of of their clothes took where the sex crimes male victims separate from Rich were that defendant and indicates The evidence place. Graham was Angela another while to one in close proximity girls ordered the Both defendants sexually assaulted. being pos- both had firearms clothes and to remove their had the fire- that Rich and defendant McCoy testified session. added.) Clearly, defendant (Emphasis arms ‘drawed on them.' committed in the crimes participant was an active Thus, there is sufficient evidence by Rich. Graham unlawful community pur- and Rich shared necessary aiding abetting. pose McKinnon, S.E. 293 2d at 125. 306 at N.C. arrived defendants and their victims

So it is here. After Belton, who was driv- car at on a dirt road place the deserted to do they going seat whether were asked Sadler in the back ing, they not have they what time; Sadler did planned. replied, had are, said, then yes, “Hell we too.” Belton whereupon undress, of the car get both to told Sadler to out ordered women twenty feet Sadler. Some and told the victim White to follow of- and committed a first sex raped from the car Sadler fense White. against actually or construc- person “An aider abettor is a who is or aids, advises, crime and who

tively at the scene of the present counsels, instigates encourages or to another commit the offense.” Barnette, 447, 458, (1981). S.E. N.C. Obviously the evidence was enough to a permit reasonably scene, to infer that Belton present was both at the and instigated encouraged the sexual assaults against Sadler committed White.

We are in our by buttressed view another decision in which this Court held: not, therefore,

It necessary any a defendant par- do ticular act at constituting least a part of crime in to be order convicted of that under the concerted action principle .crime so as he is long present scene of crime and the evi- dence is sufficient to he is together show another acting necessary who the acts does to constitute the crime pursuant plan a common or to commit the purpose crime. 349, 357, 255 S.E. 2d Joyner, Sadler Clearly defendants and Belton all committed crimes pursuant both victims pur- common plan victims, pose. they Together they earlier kidnapped had agreed sexually rapes molest them. After the and sex offenses vehicle, defendants left completed, together stolen which they Having used until acted together were arrested. throughout concert their criminal each is of all rampage, guilty crimes committed either. Belton. assignment

We therefore overrule of error III. A. ^[3] Both defendants assign error the trial court’s admission flight evidence and from law concerning instructions trial, At immediately officer their arrest. enforcement before Payne Police A1 for the state that Spring Lake Detective testified Toyota near Nunnery’s parked while he was investigating Lake, approach Lake Avenue he observed defendants Spring link fence. high him from the other of a chain ing side four-foot Payne, Other officers they spotted police When defendants ran. later. Belton in his brief pair minutes Defendant apprehended COURT IN THE SUPREME he at the because was unaware is irrelevant this evidence claims instinctively officer and Payne law enforcement was a time that Sadler on unre- previously Payne questioned had Sadler. followed Sadler, entering. Defendant who breaking charges lated of testified, he to arrest us about the coming was thought “We had off,” only of flight pertains we claims the evidence B E so took & not proba- and thus is unrelated break-ins the above-mentioned to charged of the crimes herein. evidence of guilt tive support there is no arguments, As for Belton’s evidence no not know evidence Belton did them. record contains instinctively only ran officer or that he be Payne police is, indeed, Payne had ar There evidence that cause Sadler ran. days flight “a of on a couple Belton’s before” rested brother if have might But even Sadler and Belton had larceny. charge for fleeing guilt reasons than consciousness of other for tried, only this for were being goes crimes which of, admissibility not the evidence of State weight, flight. (1977). Irick, 291 231 S.E. N.C. 2d Irick contended flight from alleged police pertain evidence his could his vehicle, reportedly of a the time stolen rather than operation his of and certain which knowledge participation burglaries, he denied. This said: Court is jurisdiction. not the law this So position

Defendant’s reasonably long as there is some evidence in the sup- record theory that fled porting the after commission of crime properly the instruction is The fact charged, given. may there be other explanations reasonable defend- ant’s improper. conduct does render the instruction See 196 S.E. Lampkins, In flight North evidence of create Carolina does not but is some presumption guilt guilt evidence of which may be considered the other facts circumstances determining guilt. 494, Id. at S.E. 2d at alone, Although flight, proof standing never sufficient to id., guilt,

establish the evidence of flight per- the instruction thereto taining properly jury’s submitted for the considera- tion and evaluation. We overrule therefore assignment error both defendants. IN THE SUPREME COURT

State v. Belton B. ^[4] Defendants claim the state deliberately excluded qualified black men jury solely and women from the petit on the basis of their race the exercise through peremptory challenges because this case involves black men charged raping and kidnapping white women. Both defendants argue that Judge Johnson commit ted reversible error in denying their motion for a mistrial based on this procedure, they which claim violated their rights under the North Carolina and United States Constitutions drawn from a fair cross-section of the community. rely solely

Defendants on the fact that the state used eight its fourteen peremptory challenges, including challenges to alter- nates, jurors. excuse black The record reveals the following: When voir dire for selection began, box consisted of six whites and six blacks. The state challenged three black jurors peremptorily passed three. Belton peremptorily challenged jurors one of the three black passed by the state juror but this by was replaced ultimately black who by was all accepted par- ties. Later defendant Belton peremptorily challenged another nine, juror passed black the state in seat number but again a all, juror black all passed parties ultimately sat in In this seat. alternates, including twelve jurors ultimately black tendered to the state. Of these the state peremptorily challenged six and six. The passed state five peremptorily challenged white jurors. jurors Four black eight jurors finally white sat on the In petit jury twelve. the selection of two jurors, alternate three blacks were called. The state peremptorily challenged two and one. The state also passed peremptorily one white challenged pro- spective ultimately alternate. One black and one white alternate were seated. In the selection of petit jury both the of twelve and jurors, two peremptorily alternate the state challenged eight seven. passed blacks and It six white peremptorily challenged jurors. Court,

Since this in this argued case the United States has held: Supreme Court

Just as the Protection States to ex- Equal Clause forbids the persons assumption clude black from the venire on the jurors blacks as a are to serve ... so unqualified it group forbids to strike black veniremen on the assump- the States will be biased in a particular simply

tion because the defendant black. —,—, 69, 88 476 U.S. Kentucky,

Batson v. L.Ed. also a procedural determining Batson established framework for whether the state’s were based on peremptory challenges view jurors unqualified they that black because were simply framework, black. Under this may

a defendant a prima establish facie case of purposeful jury solely discrimination in selection of the petit on evidence exercise concerning prosecutor’s chal- peremptory case, lenges at the defendant’s trial. To establish such a defendant he is first must show that a member of a cogniza- Partida, 494, ble racial group, Castaneda v. U.S. at [430 482] 498, 1272, 51 L.Ed. 2d 97 S.Ct. prosecutor has exercised peremptory challenges to remove from the venire Second, members of the defendant’s race. en- fact, rely titled to on the as to which there can be no dispute, that peremptory challenges constitute a prac- selection permits tice that ‘those to a discriminate who are of mind to 562, discriminate.’ Avery v. U.S. Georgia, 599] L.Ed. 891. Finally, S.Ct. the defendant must show any these facts and other relevant circumstances raise an inference that the prosecutor used that practice to ex- clude the veniremen from the petit on account of their race. —, 90 87-88.

Id. at L.Ed. 2d at Alabama, Batson overruled Swain 380 U.S. 13 L.Ed. denied, 381 U.S. reh’g L.Ed. 2d Swain had held in a single, given case peremptorily challenging merely blacks because of membership in the group de- nial equal The protection. Swain Court noted that peremptory challenges were often normally exercised on grounds thought irrelevant to legal action, race,

proceedings namely, or official religion, na- tionality, occupation affiliations of people summoned for duty .... Hence veniremen always are not judged sole- ly as individuals purpose of exercising peremptory challenges. Rather are challenged in light of the limited IN THE SUPREME COURT them, may counsel has of which include their knowledge affiliations, in the context of group the case to be tried. 220-21, 380 U.S. at 13 L.Ed. 2d at 772-73. The Court Swain said: mind, With these considerations we cannot hold that in a is a striking Negroes particular case denial of In equal protection of the laws. for an quest impartial white, Catholic, qualified jury, Protestant are Negro subject alike without To being challenged subject cause. any prosecutor’s challenge particular case to the de- mands and traditional standards of the Equal Protection change Clause would entail a radical the nature and opera- tanto, challenge. challenge, tion of the The would no pro every be each and longer peremptory, challenge being open examination, either at the time of the challenge or at hearing prosecutor’s judgment underlying afterward. subject scrutiny each be challenge would for reasonable- sincerity. great many ness and And a uses of the challenge would be banned.

Swain, 221-22, 13 L.Ed. 2d at 773. U.S. at any in said that in case there particular Court Swain using was a that the state was its chal- presumption peremptory try impartial jury “to obtain a fair and the case before lenges court,” 773. presumption the U.S. at L.Ed. 2d at This “by allegations” not be overcome that all blacks were could they jury from the or that were removed because removed result, think, a rule “Any other we would establish were blacks. system as we know wholly peremptory challenge at odds with the 2d at 773-74. The refer- it.” U.S. at L.Ed. Swain Court follows: red to its decision as to insulate from in- permissible

We that it is have decided a on the particular from quiry Negroes the removal con- acting acceptable is on that the assumption prosecutor particular he is the de- trying, siderations to the case related charged. the crime particular fendant involved and 13 L.Ed. 2d at U.S. for a defend- might possible said that it be The Swain Court the protecting prosecutor” “presumption ant to rebut the county, in a prosecutor given that a showing IN THE SUPREME COURT circumstances, case, the case whatever the whatever in after be, may or the is re- and whoever the defendant victim crime who have been selected Negroes for the removal sponsible . . . have for jurors challenges and who survived qualified cause, no serve Negroes petit result that ever on the .... If has not seen leave a juries single the State fit to case, any jury pro- on in a criminal the Negro presumption may well be Such tecting proof overcome. prosecutor ex- a inference are Negroes reasonable that might support wholly reasons unrelated to the out- juries cluded from case on particular peremptory come of the trial deny system Negro is used to same being right justice in the administration of en- opportunity participate white These joyed peremptory ends the population. justify. to facilitate or challenge designed is not 223-24, 13 at 774. The 380 U.S. at L.Ed. 2d Swain Court noted county petit black had served on a that no person about 1950. The a civil a criminal case since question either enough held to show the state’s denial of Court this fact prosecutors par- because both and defendants equal protection process, selection the record did not ticipated which prosecutors the extent alone caused this demonstrate result. surrounding facts the exercise peremp-

Batson holds that tory may facie prima in a case make challenges single, given solely is blacks showing prosecutor challenging race, thereby regularity rebutting presumption basis of Swains challenges. the exercise of such Batson thus overrules be in order for than one must examined holding that more showing. Batson also overrules Swain to make this not a equal protection it violation holding proper solely in a single, given blacks challenge peremptorily may fa- by reason of their race harbor persons that such ground are members of same biases defendants who vorable toward group. Jackson, 317 N.C. 343 S.E. 2d This in State v. Court not retroac- applied has should be concluded that Batson those cases where the

tively and “will be applicable was rendered” on after decision selection took the Batson place 826. 343 S.E. 1986. 2d at Id. April y. not, course, relief; Defendants here rely do on Batson for Jackson, and under our holding Batson can afford them no re- They rely lief. an instead on argument from the Sixth emanating Amendment’s guarantee of an impartial jury, made applicable the states through the Fourteenth Amendment. See Taylor Louisiana, (1975); U.S. L.Ed. 2d 690 Duncan v. Loui- siana, 391 U.S. 20 L.Ed. 2d 491 Abrams, argument This is best expounded in McCray (2nd 1984). F. Cir. The Second Circuit in McCray conclud- although ed that then Swain controlled the question of the per- missibility of peremptory challenges on the basis of race under Clause, the Equal Protection . are not . . required to read “[w]e Swain as setting the standards for all other provisions of the Con- stitution.” 750 F. 2d at The Second Circuit relied on a num- ber of United Supreme States Court cases decided after Swain the Sixth construing Amendment’s guarantee impartial of an jury to conclude first that a criminal defendant is entitled to a venire from which distinctive groups of persons have not been excluded, systematically in order to insure insofar as practicable the venire a fair represents cross-section of community. Second, the Court concluded the purpose of this fair cross-section requirement as to the venire is to give the defendant a fair possibility tried a being petit jury which itself is represent- community. ative of the The Second Circuit the Sixth recognized Amendment as construed Supreme Court did guaran- petit jury fairly tee a of the representative community, but it con- cluded that it did guarantee fair chance at such a petit jury. The Court went on to McCray hold that a defendant could establish a facie violation of prima right his to the possibili- first, ty jury by of a representative petit showing that the group to have been excluded is a alleged “cognizable in the com- group second, munity” and there is a substantial likelihood that the challenges leading have been exclusion made on the basis of the individual any affiliation rather than in- venirepersons’ group because of inability of a possible dication to decide the case on the basis presented. of the evidence 1131-32.

Id. at IN THE SUPREME COURT 158 v. Belton

State the Swain have either adhered to Although most state courts defend- rejected argument have or for reasons other approach courts, make,3 whose cases were cited ants several state similar to that have reached conclusions in McCray, relied on challenge ques- regard peremptory to the McCray reach in jury guarantee provisions various trial the basis of tion on Wheeler, 22 Cal. 3d v. People state constitutions. respective (Fla. 1984); (1978); Neil, 258, 481 457 2d P. 748 v. So. 583 2d State (1979); 461, Soares, N.E. 499 377 387 2d v. Mass. Commonwealth (N.M. 1980). 486, 94 N.M. 612 P. 2d 716 App. v. Crespin, Sixth Second Circuit’s adopt Defendants ask us to that, and, analysis barring interpret McCray Amendment Constitution, I, guaran- 24 North Carolina section of the Article trial, right preclude to a a criminal defendant teeing solely jurors challenging peremptorily prospective from the state any race or affiliation in case. group on the basis of their however, not, reach in case question We need under either the employ whether we should Sixth Amendment I, 24 fair section of the North Carolina Constitution the Article analysis used the Second McCray cross-section Circuit California, Florida, courts in Massachusetts and New Mexico state cases cited. The reason is that even under this previously analysis surrounding defendant must demonstrate from facts likelihood,”4 in his “a “a strong selection substantial likelihood,”5 likelihood,”6 likely,”7 jurors pe- “a or “it is solely affilia- because of their race or remptorily challenged group any particular given rather than because of bias case. tion analysis Even under due must show process Batsons surrounding the circumstances exercise of prosecutor’s remove members defendant’s race peremptory challenges to “raise an inference that used that to ex- prosecutor practice clude the veniremen from the of their race.” petit account —, 476 90 88. v. U.S. at L.Ed. 2d Kentucky, Batson Neil, (Fla. 481, These cases are collected in State v. 3. 484 3 457 So. 2d n. 1984). (2d Abrams, 1984). McCray 4. 750 F. 1132 2d Cir. Wheeler, (1978). 258, 280, People

5. 583 P. Cal. 3d 2d Soares, 461, 490, Commonwealth v. 6. 387 N.E. Mass. 2d (Fla. 1984). Neil, So. In prosecutor the McCray had peremptorily challenged all who Hispanics blacks had been tendered to the state when defendant’s trial counsel objected, of identifying several these challenged any who were venirepersons excused without discerni- reason ble to believe only would be biased. Thereafter one juror eventually black was seated as an alternate. No blacks sat petit on the of twelve. jury The Second Circuit concluded these enough circumstances were to make out a prima facie showing of Wheeler, racially peremptory challenges. motivated Likewise white, case in which defendants were black and the victim the every prosecutor peremptorily challenged black called to the box Soares, resulting finally by in a trial an jury. all-white In another black, in which victim was white and defendants prosecutor challenged twelve of thirteen prospective jurors black of eleven resulting whites and one In black. Neil both victim defendant and the were black. The state its used peremp- jurors tories all prospective petit remove black from the eventually twelve. as of One black sat an The alternate. courts Wheeler, concluded, Soares and Neil respectively, that defendants made prima constitutionally had out at least facie cases imper- racially missible motivated In peremptory State challenges. (N.M. 1980), however, P. Crespin, App. prosecutor challenged juror peremptorily prospective black venire. The held this was Court fact make out a enough to a racially facie case of motivated prima peremptory challenge. We peremp- are confident the circumstances surrounding tory challenges in instant case show no likelihood and raise no solely challenges being inference that exercised on ac- twelve, of race. As for the petit passed count the state many blacks as it challenged. challenged It six black and five jurors. white Four prospective jurors eight black white twelve, finally sat jurors petit jury a result which close- County ly paralleled make-up the racial of Cumberland where the jurors, challenged were chosen.8 As for alternate the state jurors one. and one sat. two blacks and One black white alternate passed affirmatively complained demonstrate con- challenges County County percent percent 64.1 white 30.77 black. Cumberland (10th ed.). Belton, Book, City Supp. 1983 Defendant and himself, Data Statistical Abstract challenged passed peremptorily two who had been the state but blacks ultimately ultimately replaced passed by parties. who were blacks all SUPREME COURT IN THE v. Belton We, the prosecutor. must have motivated race other than ceras therefore, of error. assignment overrule C. jeopardy ^[5] Defendants next Fifth Amendment contend the prohibition against federal constitution9 double kid degree both the first convicted for being from them precludes the rea Nunnery and White. For napping Freeland, 316 N.C. in State recent decision sons stated in our (1986), 13, we agree. 340 S.E. 35 kidnapping, was of first degree Freeland convicted Defendant in We noted arising single out of a incident. rape sex offense Freeland: first charge degree

In mandate the on during his final other instructed among things, the trial judge, kidnapping must find guilty defendant it jury the that in order find sexually only sexual that he had assaulted [the victim]. assaults committed victim] [the which he con- rape separately the and sexual offense for Therefore, guilty degree victed. of first finding defendant relied on or sexual rape the must have the kidnapping satisfy the offense to sexual assault element. As a result unconstitutionally subjected punish- defendant was to double ment the same proscribing under statutes conduct. See State (1985) 297, Price, 863 327 S.E. 2d (proof N.C. the necessary satisfy rape not sexual assault element because defendant committed a sexual for which he separate assault was not prosecuted). 21, at at 39.

Id. 340 S.E. 2d that Recognizing kidnapping statute made the an element of the first rape kidnapping, degree statute, legislature, we held when it Freeland enacted the did intend for a defendant to be convicted both punished (the for the elemental crime rape) and the crime of which it was (first an element degree We for kidnapping).10 remanded Freeland jeopardy prohibition 9. The applicable Fifth Amendment’s double to the Maryland, through Amendment. Benton v. states Fourteenth 395 U.S. (1969). L.Ed. 2d Gardner, 10. Id. 340 S.E. 2d at 40-41. But see State S.E. 2d where this Court of a reached a different result in the context (1) resentencing, suggesting trial court could either ar- judgment rest the first degree conviction and kidnapping re- (2) for sentence defendants degree second kidnapping arrest in either judgment rape or sex For offense convictions. Mason, similar on similar result see facts 315 N.C. 340 S.E. 2d 430 As to both defendants and both victims trial court in- structed the order to convict of first degree kidnap- find, ping must other among things, the respective sexually victim “had been assaulted.” With regard to the victim assault, Nunnery, only there was one sexual the first degree rape. Nunnery Since was the sexual assault which have could formed the “sexual element of assault” the first de- her, gree kidnapping convictions under involving Freeland de- fendants could not be convicted and punished both crimes. Judge

Here Johnson consolidated for judgment Belton’s two convictions for first kidnapping with his conviction for White, degree rape the latter of which carries a mandato- 14-27.2(b) 14-l.l(a)(2) (1981). (1981); ry life sentence. N.C.G.S. He §§ did same for like Sadler’s convictions. He then sentenced both life defendants imprisonment respective consolidated convictions, therefore, cases. Defendants’ degree first kidnapping did not augment sentences.

Nevertheless, we conclude defendants’ for convictions both degree first kidnapping rape violate the prohibition against jeopardy double found the United States Constitution. may

Where be punished prohi- two crimes because of the against jeopardy, may bition double for neither convictions both States, 856, crimes stand. Ball v. 470 U.S. 84 L.Ed. 740 United 2d (1985); Freeland, 13, 35; 340 State 316 N.C. S.E. 2d 229, 154 N.C. S.E. 2d 66 Midyette, In we said: Freeland general “The rule is jeopardy double clause of Feder- ‘ protects al an “from being subjected Constitution individual trial possible the hazards of more than for an conviction once ’ ” Freeland, 21, offense.” 340 S.E. 2d at alleged Hunter, 359, U.S. quoting Missouri L.Ed. larceny breaking perceived a case on basis of what this Court to be dif- legislative intent. ferent THE SUPREME IN COURT v. Belton ours). (1983) a convicted of held Midyette (emphasis resisting also be convicted of deadly weapon a cannot assault with by which the pub means when the assault public a officer said in Court Supreme was resisted. The United States lic officer “ that, must be jeopardy purposes, ‘punishment’ double Ball simply imposi and not of a criminal conviction equivalent 470 U.S. at L.Ed. 2d at a sentence.” tion of in defendants’ convic- jeopardy find double violations We also White. There is evidence that crimes the victim against tions of (Belton by abetting) raped aiding Sadler and Belton reason in- once but were perform twice and forced her to fellatio White and first degree rape dicted for and convicted of one first sex White. degree offense rape is made that since the unindicted argument as- jury been used the “sexual supply

White could have viola- jeopardy sault” element of the White no double kidnapping, rape and that kidnapping tion results from convictions both and convicted. The dif- White for which defendants indicted ficulty to assume argument requires with this that it Court so, jury, being without instructed that it could do found unanimously beyond a reasonable doubt defendants fact White for which rape against committed were not indicted. Secondly, us requires jury, it to assume the again being without so, instructed do it could used the unindicted of White the sexual assault element in the crime of supply White. kidnapping against liberty

We are make In assumptions. not at such analogous situations when alternative theories of have conviction been available to a and it cannot be discerned from the jury in- theory structions or verdict which upon the form the relied, this Court has held that it cannot assume the adopted state; instead, theory favorable to the the Court has construed ambiguity in favor of defendant. Silhan, 223, (1981), In State 302 N.C. 275 S.E. 2d 450 the Court said:

When a defendant is convicted of first murder rule, felony pursuant to the murder and a verdict is guilty of felony, also returned on the underlying this latter conviction 163 an provides no basis for additional merges sentence. It into conviction, the murder any judgment imposed on the un- felony When, derlying must be arrested. [Citations omitted.] however, a defendant has been convicted of first degree murder a theory on premeditation of and deliberation process commits some other felony, felony the other is not an element of the murder conviction although the other felony may be part the same continuous transaction. may Defendant in such cases be sentenced both upon murder conviction and the felony other conviction. State v. Tatum, (1976). 291 N.C. 229 S.E. 562 2d But when a properly upon instructed both theories premeditation murder, felony deliberation and and returns a first degree murder verdict without specifying whether it relied either theories, or both if is treated the jury relied felony ujpon the murder theory for purposes applying the merger rule. Judgment imposed on a conviction for the felony must be underlying arrested. State v. McLaughlin, 286 (1975), vacated, 213 S.E. 238 N.C. 2d death sentence U.S. 903 261-62, Id. S.E. at 477-78. Likewise, Gardner, in State v. N.C. S.E. 2d

(1986), in determining whether defendant’s conviction and sentenc- felony ing breaking for both or entering felony larceny violated the prohibition against Meyer, double Justice jeopardy, Court, writing following made the observation: felony larceny felony charge, On the two theories were 14-72(b) presented to alternative —N.C.G.S. § (2), 14-72(a), entering, or and N.C.G.S. breaking property § specify theory $400.00. worth more than did not would pure suggest it relied and it be upon, speculation We, therefore, theory upon. which it for the purposes relied case, verdict ambiguous construe this deciding Williams, defendant, favor of the larceny felony S.E. 2d 1 and assume that verdict committed predicated was that defendant upon finding Thus, larceny breaking or we as- pursuant entering. to the entering predicate breaking sume that crime IN THE SUPREME 164 COURT v. Belton

State larceny compound the crime of charge raise the used to felony larceny. 450-51, 706. 340 S.E. 2d at

Id. at 738, Moore, 315 N.C. in State v. position, with this Consistent (1986), kidnap- reversed a conviction for 340 S.E. the Court that, re- of the three the purposes we found ping because was victim which the allowed to straint consider, removal of the by the Although the evidence. supported one was not if have conviction the supported would purposes other two either, we reliance on said: jury had indicated its of purposes not which the three The did indicate basis for its ver- allowed to consider formed the that it was jury was al- which the Although purposes dict. two evidence, supported we cannot lowed to consider say purpose was not based er- upon the verdict roneously submitted. 408. 340 S.E. 2d at

Id. at has long recognized Court Supreme United States merely sup- because it could have been stand conviction cannot another, jury if invalid theory to the by one submitted ported jury’s guilty and the verdict theory general submitted also was theory its verdict. which the based upon does not specify (1942); Carolina, 317 U.S. 87 L.Ed. Williams v. North California, 283 U.S. 75 L.Ed. Stromberg Price, 327 S.E. 2d runs In defendant was all above authorities. Price counter of the degree based kidnapping of first and first degree rape convicted abducted, cunnilingus and performed he raped, evidence that on was neither indicted for nor convicted of victim. Defendant on the Nevertheless, cunnilingus. based the act of any offense on have relied the cunnil- jury might that since the held Court of- satisfy kidnapping the sexual assault element of the ingus fense, required satisfy this element rape of the “[p]roof Therefore, was vio- double principle jeopardy crime. no both entry judgments defendant committed lated first Id. at degree.” kidnapping 305, S.E. 2d at holding The on the double jeopardy issue Price departs radically from Court’s consistently theretofore view adopted assume, that appellate courts cannot because simply jury exist, could have found a fact to that so. it did We now decide that Price should no longer be considered on authoritative question. Insofar as is Price inconsistent with our herein holding on the question, double it is jeopardy overruled. case,

In say we cannot that present jury’s verdict of guilty of first degree kidnapping upon was based its be- finding yond a reasonable doubt that the defendant Sadler raped Ms. time, White a second for there is in the nothing trial in- judge’s in the jury’s struction or verdict to indicate that it made that we finding. say Because cannot that jury’s verdict first degree kidnapping was based a upon sexual assault other than convictions, ones forming the basis for the other two the ver- ambiguous is must dict and be construed in favor of the defend- ant. is result that defendants’ of both convictions first degree

kidnapping rape against Nunnery both cannot Their stand. of first degree convictions kidnapping both first degree rape sex degree and first offense against White cannot all stand. This true though even the combination of convictions because of the they manner in which judgment consolidated for resulted punishment any no additional attributable of the kidnapping cases.

We remand both defendants’ cases to the trial court. That may court arrest judgment degree both first kidnapping charges as to each enter defendant and instead two verdicts of of second as to guilty degree kidnapping each defendant and re- alternative, defendants In accordingly. sentence the trial may judgments court arrest the rape against Nunnery and the rape or sex offense White against each defendant and resen- accordingly. defendants tence

D. ^[6] Defendants next challenge Judge Johnson’s instructions if in sex rapes and offenses defendants em another, deadly weapon were aided and abetted ployed they degree could be found of first guilty disjunctive charge given that the They argue offense.

sex verdict; is, some a nonunanimous to render enables deadly weapon only used that defendants could find jurors This instruc- and abetted one another. aided others claim, tion, ver- a unanimous right violated defendants dict. defendants has been resolved argument This legal Creason, 326 S.E. and Jones Co., 325 S.E. 2d 237 312 N.C. Insurance

All American Life unanimously in the case at bar that the We further note by Belton rape Sadler of the committed guilty found defendant unanimously Nunnery. Likewise it found defendant against the and sex offense committed Sadler of guilty unanimously thus have found White. The must was aided and of of these crimes each defendant commission each by the abetted other. is, therefore, in of error. no merit this assignment

There

E. ^[7] dismiss the Finally, both defendants kidnapping charges argue for 93, the insufficient trial court erred evidence. in failing They Irwin, rely 282 S.E. 2d 439 in in asportation which we held that an which is an inherent and of crime for which has convicted tegral part some been other than will not conviction kidnapping support separate robbery for Irwin involved the armed of a store. Dur kidnapping. robbery forcibly the armed ing course of clerk moved in We robbery. to the back the store order to facilitate held be an such inherent and of the asportation integral part robbery would not support separate it conviction kid napping. from the case at bar. Here defend- distinguishable

Irwin military on the ants accosted their victims reservation Fort They North forced the victims at Bragg, then gunpoint Carolina. into one of victims’ traveled through automobiles and rural thirty at a twenty areas for minutes until deserted dirt road in vicinity they sexually of Eureka Springs raped and otherwise Even if North has jurisdiction assaulted victims. Carolina no reservation, over crimes occurring on the Fort Bragg military argue, defendants can judicial we take notice that Eureka Springs is some distance off the reservation and in County. Cumberland confined, Defendants restrained and removed their victims for some length of time while drove from military reserva- confinement, tion to Eureka Springs County. Cumberland This restraint, and removal was not an integral part inherently necessary for the commission of the crimes of rape and first de- gree sex offense.

We find no merit this assignment of error.

Conclusion violations, Except jeopardy for the double we find no error in violations, the trial of this case. Because jeopardy double we remand the case to the trial court in order that a new sentenc- ing be hearing conducted and sentences imposed conformity with this opinion. trial;

No error remanded sentencing for new hearing. Justice MARTIN dissenting in part.

I dissent from respectfully part reasoning conclu- sion of section majority’s III.C. opinion. Preliminarily, I slip note that on 31 of its page opinion the majority upon relies State v. 270 154 S.E. Midyette, N.C. that, 66 without to acknowledging response recent deci- States,

sions of the of Supreme Court the United Midyette was Gardner, 444, 454, expressly overruled N.C. (1986). Freeland, 13, 23, S.E. 2d State v. Accord 340 S.E. 2d In the instant case the found that Belton and Sadler guilty rape Nunnery. were both of and kidnapping of victim Nunnery Because each of was rape defendant’s only possible “sexual assault” the fifth of establishing element I agree in the first under the and kidnapping degree, Freeland (a) of rape Nunnery Mason cases that either Belton’s conviction of must vacated or his be conviction of be reduced from kidnapping to kidnapping degree kidnapping degree the second (b) Nunnery and that either Sadler’s of of must rape conviction be COURT IN THE SUPREME kidnap- from be reduced kidnapping of or his conviction vacated degree. second kidnapping in the first ping (a) however, that majority’s with conclusions I disagree, White, count of one rape one count of of of Belton’s convictions White, White of kidnapping count of of one sexual assault (b) convictions of Sadler’s simultaneously, and that stand cannot White, White, of sexual assault of of of one count rape count one stand simultaneous- of of White cannot kidnapping one count of White “sexual assault” the record showed that ly. Had in the first degree fifth of kidnapping which element provided of which each of or of sexual offense rape the crime been either ma- I with the agree convicted would separately, was Here, however, was there sub- Freeland. conclusion. See jority’s of White with Belton rape by of a second Sadler stantial evidence was con- which neither defendant abetting aiding —of sufficient to establish the fifth ele- provided proof victed —which at that after Sadler forced her gunpoint ment. White testified legs spread, lie on the with her ground disrobe A. me. raped [H]e

Q. any any part you him enter of part Did time? Yes,

A. sir. Q. you? What what part part him entered my A. His penis vagina. entered Q. your Was consent? No, sir,

A. it not.

Q. What next? happened then, minutes, A. He after a he told me to couple my legs and he me spread again raped again vaginaily. Price, virtually This identical situation (1985), S.E. 2d which this Court held unani- mously that evidence of an unindicted sexual assault of the victim support sufficient the fifth element kidnapping This degree. having squarely issue been considered and de- cided just year, Court last it should not be so lightly over- ruled. salutary certainty need for stability in the law

requires, in the interest of sound public that the policy, deci- values, sions of a court of last resort . . . affecting social consideration, deliberately made after ample should not be disturbed, decisis, under the doctrine of stare for the except most .... cogent reasons (1976) (footnotes 1 Strong’s N.C. Index 3d Appeal Error 69§

omitted). For this reason I dissent. Meyer Justices join in this dissenting opinion. Mitchell Meyer Justice dissenting in part.

I join the dissent of Justice Martin. I am writing separate- ly my order to register dissatisfaction with the majority’s treatment of the defendants’ peremptory challenge claim. Specif- ically, I disagree with the analysis mode of employed majority in discussing the defendants’ argument that the prosecu- tor’s use of peremptory challenges to exclude blacks violated their sixth amendment to an right impartial jury selected from a fair community. cross-section of the notes,

As the majority correctly the defendants explicitly argue that this Court should adopt reasoning McCray v. (2d Abrams, 1984); Wheeler, 750 F. 2d 1113 Cir. People Cal. (1978); Soares, 3d 583 P. 2d 748 and Commonwealth v. Mass. 387 N.E. which hold that a prosecutor’s use of peremptory challenges to remove jurors on the basis of race can constitute violation of a right defendant’s to a However, selected from a fair cross-section of community. while devoting several to a discussion of pages holdings cases, majority unnecessary these concludes that it is to reach a decision as to whether to adopt fair McCray-Wheeler-Soares analysis cross-section due to the fact that the defendants have racially failed to make out a facie prima showing pe- motivated I remptory challenges. believe that this treatment constitutes an abdication of this responsibility highest appellate Court’s adjudicate court in this State to issues which are all completely I to it. realize that there are times that properly presented SUPREME COURT IN THE

State v. Belton the briefs issue when step” important an may wish to “side court is not the Such justice. the issue fail to do arguments and oral both defendants by counsel for this issue The here. briefs a adopt a request presented was This Court are excellent. request This cross-section claims. fair analyzing method of new well-researched, well-written scholarly, by accompanied I it is incumbent before us. think is squarely This issue briefs. made the contention reject or adopt to expressly this Court upon majority’s discussion lengthy by these defendants. it, virtu- accomplishes failure to decide and its ultimate question, course, is to accomplish pre- it does thing the one ally nothing. Of the same a future case presenting the issue for serve decision on thus jury, of the qualification” in the context of “death argument penalty to eviscerate our death an opportunity presenting statute. explicitly its failure to majority

Having criticized fair cross-section reject McCray-Wheeler-Soares or adopt I my I on this am of the analysis, position question. now set out analysis in cases fair cross-section utilized those that opinion by My is based on several rejected opinion be Court. should factors. I that the sixth amendment fair cross-

Initially, am convinced has eviscer analysis McCray completely set forth been section United States Lock ruling Supreme ated of the Court — (1986). —, McCree, In that case U.S. L.Ed. 2d hart v. jurors the removal for cause of unalter argued the defendant to the ably penalty prior guilt-innocence to the death opposed violated his sixth capital of a bifurcated trial phase determination jury selected from a right representative amendment to have a to utilize the community. of the The Court refused cross-section for- to invalidate the use of either requirement fair cross-section well-settled challenges and reaffirmed the peremptory cause require the fair cross-section does not guarantee principle — juries compo —as venires reflect petit opposed —, 147-48. community large. of the Id. at 90 L.Ed. 2d at sition Louisiana, 419 U.S. 42 L.Ed. 2d 690 Taylor also See holding Cray peremptory The ultimate Me the use —that of a defendant’s sixth challenges may constitute violation to a drawn from a fair cross-section of the right amendment community emphatically rejected Supreme Court —was IN THE SUPREME COURT clearly in accord with holdings majori McCree. This of the have ty of courts which addressed the issue that prosecutor’s of peremptory challenges use to exclude minorities from petit the infringe does not fair upon requirement. the cross-section (4th See, 1983); Whitfield, 715 F. 145 e.g., United States v. 2d Cir. (8th Childress, 1983), v. 715 F. United States 2d 1313 Cir. cert. de nied, 1063, (1984); Morris, 464 79 U.S. L.Ed. 2d 202 v. Weathersby (9th 1983), denied, 1046, F. 1493 708 2d Cir. 464 U.S. 79 cert. L.Ed. (11th (1984); Zant, 1983), 181 2d v. 720 F. 1212 Willis 2d Cir. cert. denied, 1256, (1984); 467 U.S. 82 L.Ed. 849 2d v. 586 Hardy, Allen (N.D. 1984); 525, F. 103 Ill. v. 144 Supp. Wiley, State Ariz. 698 P. (1985); (D.C. States, 1244 2d v. United 434 A. 449 Doepel 2d App.), denied, 1037, (1981); 454 70 U.S. L.Ed. 483 cert. 2d Blackwell v. State, 138, (1981); Williams, 281 248 S.E. 599 Ga. 2d v. 97 People 252, (1983), denied, 454 Ill. 2d N.E. 220 2d 466 cert. U.S. 80 denied, (1984); L.Ed. 2d 467 82 reh’g U.S. 2d 864 L.Ed. (La. Williams, 1984), denied, 458 v. 2d 1315 So. App. writ (La. 1985); State, 1317 463 So. 2d Nevius 699 P. Nev. (R.I. 1982). 2d (1985); 446 A. Raymond,

Furthermore, I, I do not believe that article section of the North Carolina Constitution be interpreted should in such a man- ner as adopt the McCray-Wheeler-Soares analysis cross-section I minority —the distinct view. am of the analysis that the opinion Wheeler, employed McCray, has practical Soares the effect of the fair extending cross-section requirement jury. petit the These cases acknowledge that the Supreme Court has never ex- tended the fair cross-section requirement petit to the jury, but requirement conclude the guarantee does a a defendant “fair I, jury. chance” such a The sixth and article amendment section of the North Carolina a guarantee Constitution do de- a “fair a jury fendant chance” at from representative selected a however, community. cross-section the This right, protected extension of the fair cross-section requirement to the petit jury, but through the effective protections afforded in selec- venire, venire, tion the large number in the and peremptory challenges. limited Through these protections, both a parties are accorded fair opportunity an impartial select representative jury. The possibility prosecutor syste- that a will matically a eliminate “fair defendant’s chance” representative at a by systematically cross-section blacks racial removing other SUPREME COURT IN THE Bumgardner

Jackson been eliminated ultimate concern —has McCray's minorities — — —, 2d 69 90 L.Ed. U.S. Kentucky, in Batson v. holding majority opinion. alluded to I, article section never construed has This Court re- cross-section extending the fair Constitution North Carolina counsel jury. Several considerations petit to the quirement First, from random venire is drawn so. because doing lists, list will will be times when the there is inevitable that it If fair cross- particular group. members of but a few include selection jury, the petit were extended to the requirement section necessary. jurors be might to serve as group of individuals of would be fraught individual selection This process impropriety par- appearance for abuse and potential Second, actually mirror tiality. requirement petit Third, community nightmare. would create an administrative might in- specific groups assigning jurors representatives dif- accentuating identifiable process fluence the deliberative Fourth, prospec- it is conceivable that a among jurors. ferences actual, an could not be ex- specific who evidences bias juror tive destroy the cross- representative if his removal would cluded Note, Limiting Peremptory Challenge: Represen- section. See Juries, 86 Petit Yale L.J. tation Groups reasons, I reject would vote to de- expressly For these both the United States argument fendants’ under Constitution and the North Constitution. Carolina L. H. v. HEATH D.

VARONICA JACKSON and RUFUS JACKSON BUMGARDNER

No. 670A84 (Filed 1986) August Physicians, Surgeons malpractice § Allied Professions 11— —failure to re- healthy sufficiency complaint place state claim 1UD—birth of child— recognizable complaint for medical Plaintiffs stated a claim this state injury malpractice complained improper where the of was defendant’s failure device, replace resulting plaintiff pregnancy an intrauterine wife’s healthy consequent birth of a child.

Case Details

Case Name: State v. Belton

Court Name: Supreme Court of North Carolina

Date Published: Aug 29, 1986

Citation: 347 S.E.2d 755

Docket Number: 693A84

Court Abbreviation: N.C.