State v. Green

406 S.E.2d 852 (1991)

329 N.C. 686

STATE of North Carolina v. Harvey Lee GREEN, Jr.

No. 385A84.

Supreme Court of North Carolina.

August 14, 1991.

*853 Lacy H. Thornburg, Atty. Gen. by James J. Coman, Sr. Deputy Atty. Gen., Joan H. Byers, Sp. Deputy Atty. Gen., William N. Farrell, Jr., Sp. Deputy Atty. Gen., and Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender and Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant-appellant.

E. Ann Christian and Robert E. Zaytoun, Raleigh, for North Carolina Academy of Trial Lawyers, amicus curiae.

John A. Dusenbury, Jr., Asheville, for North Carolina Ass'n of Black Lawyers, amicus curiae.

WEBB, Justice.

The defendant has made 23 assignments of error. The subjects most of these assignments of error cover should not recur at a new sentencing hearing and we shall not discuss them. We shall discuss two separate assignments of error under each of which the defendant contends the bills of indictment against him should be quashed on constitutional grounds.

The defendant first says that there was racial discrimination in the selection of the foreman of the grand jury which returned the bills against him. He contends this violates the rule of State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987) and the Constitution of North Carolina. With certain exceptions not applicable to this case a defendant who pleads guilty waives his right to challenge the plea on constitutional grounds. State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert, denied, 446 U.S. 941, 100 S. Ct. 2164, 64 L. Ed. 2d 795 (1980). The defendant, by pleading guilty, waived any right he had under Cofield. This assignment of error is overruled.

The defendant also contends that the manner in which our death penalty statute, N.C.G.S. § 15A-2000 (1988), is enforced violates the equal protection clauses of U.S. Const, amend. XIV and N.C. Const, art. I, § 19. He also contends it violates the U.S. Const, amend. VIII, which amendment proscribes cruel and unusual punishment. The defendant bases this argument on two statistical studies of the imposition of the death penalty. One of these studies was conducted by Professors Samuel Gross and Robert Mauro and is published as Gross and Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan.L.Rev. 27 (1984). The other study was made by Professors Barry Nakell and K. Hardy, The Arbitrariness of the Death Penalty (1987). The studies show that a person is more likely to be executed if the murder victim is white and the chance is more likely yet if the defendant is black.

Although the defendant has pled guilty he still faces a trial in which he may receive the death penalty. We shall consider this assignment of error which is directed at the way the death penalty is imposed.

The United States Supreme Court held in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), that general statistical studies of the operation of the death penalty in a given jurisdiction cannot alone establish a prima facie case of racial discrimination of the death penalty in a particular case tried in that jurisdiction under U.S. Const. amend. VIII or U.S. Const. amend. XIV. The studies which the defendant offered in this case are no more particularized than those offered in *854 McCleskey. We are bound by McCleskey to hold the defendant cannot show a violation of his rights under the eighth and fourteenth amendments by these statistical studies.

The defendant argues that nevertheless he has made a prima facie showing that his rights under N.C. Const, art. I, § 19 were violated. Because the statistical studies offered by the defendant do not relate specifically to North Carolina or to the district in which the defendant was tried, we hold that the defendant has failed to make a prima facie showing that the defendant's rights were violated under the North Carolina Constitution. This assignment of error is overruled.

We agree with the State and the defendant that there was prejudicial error pursuant to McKoy. For this reason the defendant must have a new sentencing hearing and we so order.

NEW SENTENCING HEARING.

MITCHELL, J., concurs in the result.