*1 IN THE SUPREME COURT 245
STATE v. MOORE STATE OF NORTH CAROLINA v. STEPHEN LOUIS MOORE
No. 511A90 (Filed 1991) 12 June — — (NCI3d) Jury § 1. Grand selection of black foreman of black defendant to challenge
A black defendant has standing object to the removal of a white foreman of the grand jury and the replacement of him with a black person on the ground that the new foreman was selected in racially a discriminatory manner in violation of Art. 26 of the N. C. Constitution. § 2d, 22, Am Jur Jury §§ Grand 24. (NCI3d)— Jury §
2. Grand 3.3 selection of black foreman —racial A black foreman of the grand jury was selected ap- and pointed solely on the basis of race violation of Art. 26 of the N. C. Constitution where the black defendant moved § the indictment on the ground that the white foreman of the grand jury was selected manner; the attorney district informed the presiding judge that no had ever been foreman of the grand jury county suggested that the white foreman be asked to resign and that a specific black grand foreman; appointed as this was done and the judge; evidence shows that the person named as foreman was the only person by the district to the presiding judge. 2d,
Am 14, 22, Jur Jury §§ Grand 24.
Justice Webb
dissenting.
7A-30(2)
by the
Appeal
pursuant
defendant
to N.C.G.S.
§
Rule 14 of the North Carolina Rules of Appellate Procedure from
a decision of a divided panel of the
Appeals,
Court
(1990),
App.
STATE *2 (1991)] [329 Graves, General, Debra C. Attorney by Lacy Thornburg, H. General, the State. Attorney Assistant for Jr., Hunter, Defender, Daniel R. by Ray Appellate Malcolm Pollitt, Defender, defendant-appellant. Appellate Assistant for
MARTIN, Justice. properly trial denied Appeals judge
The found that the Court of of indictment. to the 5 October 1987 bill quash defendant’s motion Appeals. the the of reverse decision of Court disagree and February charge 1985 on the of Defendant was indicted 25 1987, July of Louise Tate. On this degree murder in the first its State v. opinion filed in (1987), in in held discrimination a case which we that racial I, article sections 19 foremen violates grand jury the selection of September In 26 of the North Constitution. and defendant, Carolina black, grounds moved the indictment on quash
who is to grand jury of white foreman of the that the selection the When racially discriminatory manner. in a accomplished Cofield attention, attorney’s he informed Judge the district opinion came to were person, a white that there Gudger that the foreman was no black grand jury, on the and that persons two black in grand jury foreman of the Rutherford appointed had ever been Judge Gudger The to that County. district to foreman and that requested resign the white foreman be as Wilkerson, black, This was done. foreman. indictment, substance, the first A new bill of identical to that 1987. Defendant moved to bill was returned 5 October was selected in a grounds that the foreman upon denied, defendant was This motion was manner. to degree. Upon appeal convicted of murder second no error was in the trial. Appeals, Court of found validity by determining appeal Because we resolve indictment, necessary we it to recite the evidence do not find of offense concerning charged. the substantive [1] At the threshold, the State that because defendant argues the removal of a white object he no to to is black has of him with a replacement and the grand jury foreman of the allega be relevant to an argument might While this person. clause of our Con- equal protection of under the tion STATE v. MOORE N.C. 245 stitution, resolve, a question we do not it is irrelevant the issue Here, before us the instant case. we are applying article section of our Constitution the facts of this case. weAs held in State v. Cofield:
Article section 26 does more than protect individuals unequal from treatment. people North have Carolina provision declared they will not corrup- tolerate the racism, tion their juries sexism and similar forms of prejudice. They irrational have recognized system of society a democratic operate evenhandedly must *3 if it is to respect command the support subject of those jurisdiction. to its It must also perceived to operate evenhandedly.
. . . The effect of racial discrimination the on outcome of the proceedings is immaterial. Our state constitutional guarantees against racial in jury discrimination service are intended to protect values other reliability than the the of proceedings. outcome of the protections, Central to these as noted, already we have the perception is of evenhandedness in the justice. administration of Article par- section 26 in is ticular intended to the protect judicial system, of the integrity reliability not the just of the in particular conviction obtained a therefore, The question, case. is not whether discrimination in the foreman selection process affected the outcome the of rather, jury grand proceedings; question is whether there was racial discrimination in the selection of this officer all. at . . system
.
integrity
of
is at
stake
situation, just
as it is when the entire grand jury is selected
Thus,
discriminatory
a
manner.
if racial
discrimination
case,
the selection of the
can
foreman
be demonstrated in this
against
fatally
proceedings
defendant were
flawed.
(footnote
302-04,
omitted).
Cofield,
STATE v. the 5 by October his motion to raise issue indictment.1
[2] argue In its brief and oral that foreman Wilkerson was argument selected in a the State does not racially seriously neutral Mr. Wilkerson was evidence shows that The unchallenged process. attorney to the by presiding the district only person solely him on selected and judge judge, and Judge It is the district of race. true that the basis custom in Ruther were to correct historical Gudger attempting grand of persons black as foremen County failing appoint of ford was indeed their method con pure, Their motives were but juries. stitutionally erroneous. process selecting blacks in the of against discrimination
Racial by corrected the selection a jury foreman cannot be grand a racially discriminatory method. Arti- foreman a person as our mandates that selection section 26 of Constitution cle manner, foreman be done neutral grand is, of the race of the selected. hold regardless in the selection of foreman evident that racial procedure that the selection itself was Wilkerson for the reason racially neutral. See State v. not (1989). *4 any equal protec- State that violation of defendant’s argues The beyond reasonable doubt. rights constitutional harmless tion I, reject this found error under article sec- argument. Having Constitution, necessary 26 we do not find it tion the North Carolina respect error with to argument to discuss the State’s harmless the State raises a harmless equal protection Although violations. argue it did not concerning error issue article section had argument propounded, its brief. Even if such been issue in in opinion, As out this inappropriate. it have been set above would reliability article section 26 involve more than the violations of system The of the proceedings. integrity of the result of the issue, analysis under circumstances at and a harmless error these is is inapposite. to, in, necessary upon appeal, Although nor relied our resolution of not Supreme holding note States Court reached similar result we that United jurors challenge trial a white had to the excusal of black
that defendant — —, Ohio, L. v. 112 Ed. 2d for reasons. Powers U.S. (1991). 411 249 v. CUMMINGS STATE 249 independent and solely upon adequate Our decision is based 1032, 463 U.S. Michigan Long, v. grounds. State constitutional (1983). Therefore, necessary to we not find it do Ed. L. 2d With arguments. federal constitutional decide defendant’s discuss or unnecessary it we further find appeal, disposition of error. remaining assignments any of defendant’s discuss the verdict quashed, is The indictment of October Appeals is of the Court of decision and sentence' vacated. State v. may defendant. The State reindict reversed. 309, 357 at 629. S.E.2d
N.C. at
Reversed. dissenting.
Justice WEBB my dissenting opinion I for the reasons stated dissent (1987). Cofield, v. 320 N.C. State v. RAY JERRY CUMMINGS OF CAROLINA STATE NORTH 65A87 No. 1991) (Filed 12 June (NCI4th)— —sentencing—McKoy § 1352 murder 1. Criminal Law error for murder sentencing when defendant
The trial court erred cir- mitigating its decisions as to by instructing the evidence upon Based must be unanimous. cumstances case, beyond a could not conclude Supreme constitutionally erroneous instruc- doubt reasonable finding from one of least one did not at prevent tion exist, it giving circumstances mitigating the submitted value, rather than imprisonment for life voting mitigating *5 penalty. the death 2d, § Law
Am Jur Criminal where punishment in criminal case Unanimity as to 1 ALR3d 1461. lesser penalty. recommend can