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North Carolina v. McLaughlin9/7/1988
for jury selection expert upheld because no showing of particularized need). See also State v. Hickey, 317 N.C. 457, 342 S.E.2d 646
(1986); State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986). This assignment of error is rejected.
Defendant's final contention in the area of pretrial matters is that the trial court erred in denying his challenge to the jury array. Specifically, he argues that he made a prima facie showing that blacks had been excluded from the jury pool and that the burden of proof should then have shifted to the State to show that the jury selection process in Duplin County for defendant's trial was not discriminatory. State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965). Defendant's argument is based on the trial court's finding that Duplin County's black population is 34.02% and that the prospective jurors were only 24% black. Defendant is black and so were his three victims. Since the State offered no competent evidence of nondiscrimination, defendant contends that the trial court should have ruled that the jury array was improper. We disagree.
A defendant has a constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. He does not, however, have a constitutional right to be indicted or tried by a jury of his own race or even to have a representative of his race on the petit jury. State v. Brower, 289 N.C. 644, 653, 224 S.E.2d 551, 558 (1976), motion for reconsideration denied, 293 N.C. 259, 243 S.E.2d 143 (1977). The burden is upon the defendant to show a prima facie case of racial discrimination. Id. In the case sub judice, defendant has failed to show that the jury selection procedure was not racially neutral or that there is a history of relatively few blacks serving on Duplin County juries. According to defendant's statistics, 34% of Duplin County's population is black. Of the 78 prospective jurors, only 24% were black. Defendant has failed to show, however, what portion of the county's 34% black population is actually eligible to serve as jurors. Therefore no correlation can be made between the total black population and the percentage of blacks in the venire. The record brought forward by defendant is insufficient to make out a prima facie case of racial discrimination. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (evidence insufficient where blacks approximately 11% underrepresented on venire from which petit jury drawn). See also State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980). Defendant's assignment of error is overruled.
At this point, we turn to defendant's motion to amend the record on appeal, filed one week before oral argument on his case. We reserved our ruling on the motion until after the case was argued. The motion contains defendant's contention that his indictments stemmed from a grand jury in which the selection of the foreman was racially exclusive of blacks. We permitted defendant to address the issue at oral argument. Defendant's motion is based on State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987), in which we held that where racial discrimination in the selection of the foreman of the grand jury which indicted the defendant can be demonstrated, the defendant's indictment will be vitiated and the judgment against him arrested. Id. at 304, 357 S.E.2d at 626-27. A defendant can make out a prima facie case by showi
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