*3 HEDRICK, Chief Judge. By Assignment of Error No. based upon Exception No. 5,
defendant contends the trial judge erred in failing to quash de fendant’s indictment because discrimination against blacks in jury selection of grand foremen abridged defendant’s due process and equal protection as rights by guaranteed the North Carolina and United States Constitutions.
It is well settled that purposeful discrimination against blacks in the selection grand jury foremen is forbidden Fourteenth Amendment to the United States Constitution. Rose Mitchell, 545, (1979). 443 U.S. 99 S.Ct. 61 L.Ed. 2d narrow question raised is whether the evidence of discrimination in the record sufficient to us require to reverse a conviction. We think the evidence before us is insufficient. The presumption is public officials have performed their fair, duties in a legal Wilson, and constitutional manner. State v. 419, 423, 262 N.C. 137 S.E. 2d In order to rebut this presumption selection, the context of grand jury foreman the defendant must give testimony covering significant period of time showing the number of different individuals serving foremen, jury the number of blacks serving as grand jury foremen, the relative size of the black population in the relevant district, judicial and a sufficiently large disparity between the percentage of blacks in the population and the percentage of blacks jury serving foremen to demonstrate that racial Mitchell, factors entered into the process. selection Rose v. U.S. 99 S.Ct. 61 L.Ed. Uncontradicted testimonial sixty-one evidence indicates that percent of Northampton County is black. R. J. White testified nearly during years in eighteen which he has served as Clerk, County Northampton Superior Court one person black served as grand foreman. The black grand foreman served two six-month terms July 1979. starting The record however, today, before us does not indicate the number of per- sons who have served as grand jury foremen over the relevant held, time period. As the United States Supreme has Court “[ijnasmuch as there is no evidence in the record of the number of foremen appointed, it is not possible to perform the calculations and comparisons needed to permit to conclude statistical case of discrimination has been made out and proof 571-572, under the ‘rule of exclusion’ fails.” Id. at 99 S.Ct. at (1979) (citations omitted). 61 L.Ed. 2d Even if a violation of the Fourteenth Amendment could be foremen, found selection of reversal of an other wise valid conviction is not mandated precedent binding fact, on this In Court. the United States Supreme Court has in *4 dicated that as long itself is properly “[s]o con stituted, there is no risk that the appointment one of its members as foremen will distort the overall composition of the ar ray or otherwise taint the operation judicial process.” Hob States, ---- U.S. ----, ----, United 104 S.Ct. the prosecutor, over the 17-20, defendant contends that By Assignment of Error No. defendant’s “[t]he based upon Exceptions Nos. trial court erred in allowing objections, engage cross-examination of the defendant which improperly insinuated to the the prosecutor’s opinion the credibility.”
The pertinent portions of the cross examination are as follows: Q. Cofield, Mr. you I’ll ask if on June twenty-fifth, you if didn’t talk Lynn with Debora in the same con- OF COURT you are there
vincing sitting testifying manner to the jury. members of the
Mr. Object. Livermon:
The Court: Sustained.
Q. you you And ask step I’ll if didn’t then convincingly grab inside then her around her she arm so that couldn’t move. your if
Mr. Object, Honor please. LIVERMON: The Court: Overruled. No,
A. sir. Q. And, Cofield, you Mr. I’ll ask then you if didn’t stand just you there are doing right now at her looking with your nothing on face and tell her —ask her —tell her that she was going to her tell husband and her father.
Mr. Object, your if Honor please. And Livermon: specifically my objection direct Mr. point that Beard defendant, comments on the actions of the as he is seated in the witness chair.
The COURT:Well —I’m going objection to overrule question. the last No,
A. sir. Q. you you And I’ll ask if again just weren’t as convinc- today ing you were June twenty-fifth you on when talked with her at her front door. Object.
Mr. Livermon:
The Court: Sustained.
You don’t have to answer that. clearly The transcript shows that the trial court sustained defend- *5 objections ant’s upon Exceptions which Nos. 17 20 were based. The trial court’s prompt any action removed possibility of reversible error in regard to these two exceptions. State v. Brown, 706, denied, 39 N.C. 251 S.E. App. disc. rev. 302, 254 S.E. N.C. 2d 923 we Exceptions scope
As to
Nos.
note that
discretion,
firmly
in the trial
lodged
judge’s
cross examination
and that a new trial will not be ordered unless the verdict was in-
without
improper questions. Assuming
deciding
fluenced
improper,
issue were
did not have the
questions
inflammatory
necessary
to mandate a new trial.
degree
impact
(1980),
that at Carolina By sentencing his final two Fair Sentencing the trial assignments Act, court failed to adhere to G.S. 15A-1340.1 error, defendant et seq. Defendant the North contends non- following finding the trial court erred contends that factor: statutory aggravating
(a)
degree
of second
the offense
committing
That after
was going
to the victim that she
stating
thereafter
rape
then choked
hung,
him and have him
to tell on
she was unconscious.
her until
an of-
finding is
in the trial court’s
conduct described
The commission
charge.
with the
joinable
but
separate
fense
factor
as an
aggravating
not be used
offense
joinable
of a
*6
Puckett,
under
Fair Sentencing
v.
Act. State
N.C. App.
Therefore,
need
reach
defendant’s contention that
the trial
er
roneously
found
an aggravating factor that
the victim con
mentally
suffer
emotionally
tinues to
from this incident. The
law regulating
question
this
is clear.
impact
The
crime
of the
on
is
the victim
question
relevant
of
Where
sentencing.
properly
trial court
finds physical
injury
or
excess
emotional
in
of
offense,
normally present
that
in an
injury
he
consider the
an additional
in aggravation
factor
as proof
or
the offense
heinous, atrocious,
Blackwelder,
was especially
cruel.
or
State
309 N.C.
No error in remanded resentencing.
Judge concurs. Parker
Judge BECTON in part part. concurs dissents in in Judge concurring part dissenting part. in BECTON majority’s in all issues except concur resolution of equal issue. made protection Believing prima that defendant out case of blacks in of against discrimination the selection facie equal protection foremen violation of defendant’s as guaranteed Carolina and States rights the North United Constitutions, I dissent. race, all aspects, basis of odious in
Discrimination on the justice. Selec- especially pernicious the administration of because are race members of one tion of of destroys justice appearance there- not another judicial integrity process. casts doubt on the jury service Negroes, group exclusion from OF APPEALS COURT Coiield serve, confidence impairs qualified otherwise justice. As administration this Court public *7 only repeatedly emphasized, has such discrimination “not is and laws enacted under but violates our Constitution the it a society war basic a and concepts at of democratic with our only . . . harm is representative government.” to the accused, is a jury he a from which segment indicted community society has been is as a the excluded. It to whole. injury “The is not limited to defendant —there is the institution, jury system, to to the law as an com- the munity and ideal large, at to the democratic in the reflected processes of courts.” our 545, 555-56, 739, 749, Mitchell, v. 443 U.S. 61 99
Rose L.Ed. 2d (citations omitted). (1979) 2993, S.Ct. 3000
I A a establishes case prima defendant that he has been facie denied law equal protection of the he pro- when shows that the jury cedure employed in the selection of foremen is grand suscep- racially tible to abuse is not neutral results substantial underrepresentation of his race or of identifiable group the to 565, Mitchell, which he 755, v. belongs. Rose 443 U.S. 61 2d at L.Ed. at 3005; Partida, 482, 494, 99 430 S.Ct. Castaneda U.S. 51 498, 510, 97 S.Ct. 1280 The burden then shifts to the rebut case. prima State to facie brief,
In capsulates analyzes its the uncon- unrebutted, facie, tradicted evidence a establishing prima case of blacks unconstitutional exclusion of from the position of County thusly: foremen Northampton years 18
During prior to the return of the indictment against July only defendant on one black served as grand jury foreman in County. Northampton person That — i.e., year served for one During two terms. same period, was presented opportunity court ap- with to point 36 some While county’s foremen. 61% of population black, a black member community held posi- tion of foreman 5.6% of the time. view, drastic, my
In disparity statistically signifi- cant showing establishes presumption underrepresentation 707 Castaneda; constitutional dimension. See Georgia, Sims U.S. I L.Ed. Simply put, reject S.Ct. the State’s brief a black assertion its the fact man was appointed July “totally foreman on any vestige stigma of racial conceivably obliterated which could be said have prior to existed respect to with to selection of One honey foremen.” bee not make does nor does the Fable, sighting of presage Aesop’s swallow “The spring. Spend- thrift the Swallow.”
II justice system Our remedy provide must those whose equal protection rights have been Consequently, violated. believe the trial erred failed quash when it the indict- *8 does, ment in is majority this case. as enough It not to assert the p. ante that “reversal of an valid is otherwise conviction all, by any mandated precedent on binding this After Court.” the issue in precise Moreover, raised this appeal has not been this before Court. the
quashing the case is far indictment on facts of this less egregious evidence suppressing than or un- confessions constitutionally thereby even if will obtained the State be unable Indeed, successfully to convict the defendant. social the cost of dismissing quashing in the indictment this case is no different the than social cost associated a new granting with the of trial for prejudicial error during committed the course a trial. of
In the of an equal context protection challenge, . the United Supreme v. States Court indicated in Rose Mitchell that the costs retrying by attendant to are “outweighed the strong consistently the policy recognized Court has combating of racial justice.” in discrimination of 443 U.S. administration at 61 L.Ed. 2d 99 Hobby at S.Ct. 3001. in v. Nothing at United States, U.S. -, (1984), 82 L.Ed. S.Ct. which cites, majority undermines sound and policy substantial reasons impelled Hobby that the Rose v. Mitchell was a decision. (not process by due equal protection) an case brought white male procedure who challenged grand selection foremen in federal The court. States ex Supreme United Court plained the distinction: by
Rose a claim brought involved two Negro defendants under As Equal Protection Clause. members class of the COURT OF foremen, excluded from service
allegedly stigmatization injuries had suffered the defendants Rose The racial prejudice associated with discrimination. held to long provide Clause has been Equal Protection such claims in the mechanism vindication of context for the juries. challenges petit at ----, 468 U.S. S.Ct. at Hobby, (citations omitted). majority’s opin- I
Finally, practical of the fear that the effect court who wrong signal superior judges ion will to send the every six in once jury foremen the counties appoint grand accurately employed is familiar and procedure months. County Clerk Northampton of Court who testified detailed usually whomever he Most judge confers with wants to. that “the time, up he calls clerk sheriff and whoever it’s the opinion an simply bench.” cannot concur in tells effect, they in can obliterate superior judges, blacks appointing racial discrimination vestige years county year every in a eighteen foremen for one Hobby in As said in dissent black. Marshall his 61% Justice States, justice our of criminal institutions United operate, our the manner which exemplify, serve to fairness and our central faith fundamental notions of They we demand of reflect what ourselves democratic norms. equality to fairness the enforce- as a Nation committed *9 “is why especially law. That discrimination ment why justice,” effects its administration pernicious institution,” why its law an an “to the constitute ef- and branch the most root must eradicated presence available. means fective (footnote at ----,82 3100-01
468 omitted). S.Ct. U.S.