State v. BrinsonAnnotate this Case
177 S.E.2d 398 (1970)
277 N.C. 286
STATE of North Carolina v. Clark BRINSON and Johnny Johnson.
Supreme Court of North Carolina.
November 18, 1970.
*401 Parker & Dickens, by William F. Dickens, Jr., Enfield, for defendant appellant Johnson.
Charlie D. Clark, Jr., Roanoke Rapids, for defendant appellant Brinson.
Robert Morgan, Atty. Gen., Burley B. Mitchell, Jr., and Charles D. Lloyd, Staff Attys., Raleigh, for the State.
Defendants' first assignment of error is based on denial of their motion to quash the bills of indictment. Defendants are Negroes and allege that members of their race had been systematically excluded from the grand jury.
The question of systematic exclusion of Negroes from grand juries has been repeatedly considered by this Court, most recently in State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). There we outlined the familiar rules of law applicable to such situations. We said that the conviction of a Negro based on an indictment or verdict of a jury from which Negroes were systematically excluded because of their race cannot stand. The burden is on the defendant to establish such racial discrimination; once a prima facie case is established, the burden of going forward *402 with rebuttal evidence is on the State. A defendant must be allowed a reasonable opportunity to present evidence regarding the alleged exclusion, and failure to do so is reversible error. See State v. Spencer, supra, and cases cited therein.
In rebutting the evidence of a defendant that there has been such systematic discrimination, the State may not rely on general assertions that its officers performed their statutory duties in good faith. There are further affirmative duties: "First, they are obliged, as a constitutional duty of their office, to familiarize themselves with all of the community's elements in which qualified jurors may be found so as to make certain that none is omitted from full and equal consideration for jury service. Second, they may not pursue a `course of conduct' which, whether so intended or not, has the natural tendency to exclude a group that may not be constitutionally excluded." Roger S. Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235 at 258 (1968); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964); State v. Lowry and Mallory, 263 N.C. 536, 139 S.E.2d 870 (1964); Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1945); Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942); Annotation, Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 A.L.R.2d 1291 (1948).
What is necessary to establish a prima facie case of systematic exclusion by reason of racial discrimination? In Avery v. Georgia, supra, a prima facie case was established by showing that the population of the county in question was twenty-five percent Negro; that the tax list from which jurors were chosen was fourteen percent Negro; that the resulting jury list was five percent Negro; that names drawn were typed on white or colored paper, according to race; and that only a negligible number of Negroes were ever called to jury duty. In the venire in question, all sixty jurors were white. In a Fourth Circuit case, Witcher v. Peyton, 382 F.2d 707 (1967), the following situation was deemed sufficient to establish a prima facie case: "Of the thirty-seven grand juries impaneled from January 1957 through September 1962, ten were all white, and none of the other twenty-seven included more than one Negro juror."
North Carolina cases follow the same pattern. In State v. Lowry and Mallory, supra, "[d]efendants made out a prima facie case of systematic exclusion by showing the population ratio and that only a token number of Negroes had served on the grand jury, never more than one on any grand jury, sometimes none, and that such Negroes as were approved on the biennial list were designated `col.'" In State v. Brown, 271 N.C. 250, 156 S.E.2d 272 (1967), it was suggested that the fact that only three out of eighty-six jurors called in two successive months were Negroes in a county where the Negro population was 5,106 and the white population was 56,360, was not sufficient to make out a prima facie case. In State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968), it was held insufficient to show that the sheriff of the county could identify, from the jury lists of the last ten years, only one to three Negroes on each grand jury, with the exception of two grand juries from which he could identify no Negroes. There, as here, the lists from which the jury list was taken carried racial designations pursuant to statute.
What must be shown is a systematic course of conduct resulting in apparent systematic discrimination against persons of the defendant's race. Thereupon the State must go forward and explain the apparent discrimination. State v. Wright, supra. Merely showing that names on the tax lists from which the jury list is compiled carry racial designations, and that there were a disproportionate number of whites on a particular jury, is insufficient. Here, movants produced no population figures, no evidence of disproportionate representation on past juries, and *403 no evidence of actual discrimination. This assignment is overruled.
The problem of unequal treatment of minorities in an imperfect judicial system is a continuing one and will not likely be eradicated as long as the human mind plays a role in it. Even so, the revision of jury selection procedures embodied in Chapter 218 of the 1967 Session Laws, codified as Chapter 9 of the General Statutes, is designed to remove, within the bounds of practicality, any likelihood of discrimination in the selection of jurors in North Carolina.
For interesting discussions of refined but impractical techniques designed to establish prima facie discrimination in jury selection and suggesting various remedial approaches to the problem, see Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv.L.Rev. 338 (1966); Kuhn, supra, pp. 266-282.
Defendants next assign as error the refusal of the court to order a change of venue based on prejudicial pretrial publicity amounting to a denial of due process. The record discloses that an article in a local newspaper had stated that "there were several murder cases on the docket and among them were these and that this is the third or fourth time they have been up and not been tried." Nothing else is offered. The showing presents nothing approaching prejudicial pretrial publicity. The motion was properly denied. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966).
Each defendant contends his constitutional rights were violated in that the trial court admitted in evidence the extrajudicial confessions wherein each implicated the other in the crime for which they were both on trial. Each asserts this violated his Sixth Amendment right "to be confronted with the witnesses against him." This constitutes defendants' third assignment of error.
At the time these defendants were tried in 1965 it was permissible in both state and federal courts to admit the extrajudicial confession of one defendant, even though it implicated a codefendant against whom it was inadmissible, provided the trial judge instructed the jury to consider the confession only against the confessor. State v. Lynch, 266 N.C. 584, 146 S.E.2d 677 (1966); State v. Bennett, 237 N.C. 749, 76 S.E.2d 42 (1953); Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957). But this is no longer the rule. Since the trial of this case, the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), overruled Delli Paoli and held that in a joint trial the admission of the confession of one defendant who did not take the stand, implicating his codefendant, violated the codefendant's right of cross examination secured by the Confrontation Clause of the Sixth Amendment. The decision in Bruton is retroactive, Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968), and the right of confrontation is made obligatory on the states by the Fourteenth Amendment to the Federal Constitution. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). These principles were recognized and applied by this Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), and State v. Parrish, 275 N.C. 69, 165 S.E.2d 230 (1968).
In State v. Fox, supra, the post Bruton rule in North Carolina was summarized by Sharp, Justice, as follows:"The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra [250 N.C. 113, 108 *404 S.E.2d 128 (1959)]), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation."
In the instant case, Brinson and Johnson were together when they confessed, and the statement of each was made in the presence of the other. The State contends this rendered each confession competent against both defendants, relying on State v. Bryant, supra, referred to by Justice Sharp in the Fox case. There, seven defendants were charged in separate bills of indictment with the crime of rape. The solicitor's motion to consolidate all seven cases for trial was allowed over objection and defendants assigned the ruling as error. Speaking to that assignment the Court said: "* * * [A]ll of the defendants who were convicted by the jury were together when they made their confessions, and each defendant, according to the evidence, expressly admitted in the presence of the others that he did have sexual intercourse with the prosecuting witness, forcibly and against her will. This assignment of error is overruled." The Bryant case therefore is authority only for the propriety of the consolidation. It is not pertinent on the question of admissibility of the extrajudicial confession of one defendant which implicates a codefendant when the confessor does not take the stand. The rule now applicable in North Carolina was dictated by Bruton, declared by Justice Sharp in State v. Fox, supra, and reaffirmed in State v. Parrish, supra. Applying that rule to the facts here, we hold that it was error to admit those portions of Brinson's confession that implicated Johnson and those portions of Johnson's confession that implicated Brinson. Neither defendant took the stand, and each was therefore denied his constitutional right of confrontation and cross examination guaranteed by the Sixth and Fourteenth Amendments.
Nevertheless, all federal constitutional errors are not prejudicial. Some constitutional errors in the setting of a particular case "are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. * * * [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In deciding what constituted harmless error in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), the Court said: "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." In a factual situation similar to the case before us, the harmless constitutional error test fashioned by Chapman was applied in Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).
Applying the foregoing standard to the facts in this case, we hold that the admission of those portions of Brinson's and Johnson's confessions wherein each implicated the other was harmless beyond a reasonable doubt. Brief analysis of the competent evidence fortifies this conclusion. Each defendant confessed to having participated in the murderous conspiracy. Each said he helped block the road. Each said he was present when Taylor was shot. Each admission of personal participation in the crime is corroborated by the eyewitness testimony of Harper and by other evidence as well. After establishment of the corpus delicti each confession is in itself sufficient to convict the confessor of murder in the first degree. Each confession in all these respects is competent evidence against the confessor. "`In this setting, the fact that each defendant was also implicated by his codefendant's confession cannot realistically have contributed to either conviction.'" People v. McFadden, 4 Cal. App. 3rd 672, 84 Cal. Rptr. 675 (1970). Rather, the tainted portion of each confession was merely cumulative and contained no evidence which had not already been presented against each *405 defendant through other evidence. The impact of the tainted portion on the mind of an average juror in face of the overwhelming evidence of guilt was "so unimportant and insignificant" that it may be deemed harmless. Chapman v. California, supra. This assignment of error is accordingly overruled.
For informative discussions of the Chapman and Harrington cases, see: Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814 (1970); Note, Harmless Constitutional Error, 30 U.Pitt. L.Rev. 553 (1969); Philip J. Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn.L. Rev. 519 (1969). For treatment of Bruton as affected by Harrington, see: Note, The Admission of a Codefendant's Confession after Bruton v. United States: The Questions and a Proposal for their Resolution, 1970 Duke L.J. 329. As to Bruton, see also: 35 Mo.L.Rev. 125 (1970); 47 Tex.L. Rev. 143 (1968); 82 Harv.L.Rev. 231 (1968); Annotation, Federal Constitutional Right to Confront WitnessesSupreme Court Cases, 23 L. Ed. 2d 853 (1970).
The trial judge failed to caution the jury to scrutinize the testimony of Arthur Harper, an accomplice, and defendants assign same as error. No request was made for such an instruction, and the State contends the omission was therefore not error. The State is correct.
"The rule is that in the absence of a special request, the failure of the court to charge the jury to scrutinize the testimony of an accomplice will not be held for error, the matter being a subordinate and not a substantive feature of the case." State v. Andrews, 246 N.C. 561, 99 S.E.2d 745 (1957); State v. Stevens, 244 N.C. 40, 92 S.E.2d 409 (1956); State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956); State v. Henderson, 206 N.C. 830, 175 S.E. 201 (1934); State v. Roux, 266 N.C. 555, 146 S.E.2d 654 (1966); Stansbury, North Carolina Evidence (2nd Ed. 1963) § 21. If a request is made for a specific instruction as to the rule of scrutiny with respect to the testimony of an accomplice, failure to so charge is error. State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961). This assignment is overruled.
Defendants having failed to show prejudicial error, the verdict and judgment must be upheld.