State v. Golphin8/25/2000
ation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. Id., quoted in Bowman, 349 N.C. at 468, 509 S.E.2d at 434.
In the instant case, defendants claim, according to the 1990 Census data, 60% of the residents of Cumberland County are Caucasian, and 31.8% are African-American; and 80% of the residents of Johnston County are Caucasian, and 17.5% are African-American. Thus, defendants contend, African-Americans were underrepresented in the jury pool by 45%.
There is no question in the instant case that defendants satisfied the first prong of the Duren test because African-Americans are unquestionably a "distinct" group for purposes of the Duren analysis. See Peters v. Kiff, 407 U.S. 493, 498-99, 33 L. Ed. 2d 83, 91 (1972).
In determining whether there is disproportionate representation under the second prong of Duren, this Court considers absolute disparity figures on a case-by-case basis. See State v. Hough, 299 N.C. 245, 252, 262 S.E.2d 268, 273 (1980). "Absolute disparity" in the instant case is the percentage of African-Americans in Cumberland County minus the percentage of African-Americans in Johnston County. See id. at 251, 262 S.E.2d at 272. Defendants, however, calculated the comparative disparity, or the percentage of absolute disparity between the counties divided by the percentage of African-Americans in Cumberland County. See id. at 251-52, 262 S.E.2d at 272. To calculate the absolute disparity, we subtract 17.5% (the percentage of African-Americans in Johnston County) from 31.8% (the percentage of African-Americans in Cumberland County); thus, the absolute disparity is 14.3%, much lower than the 45% comparative disparity reported by defendants.
This Court has held various percentages of absolute disparity, standing alone, are not unfair and unreasonable. See Bowman, 349 N.C. at 468, 509 S.E.2d at 434 (absolute disparity of 16.17%); State v. Price, 301 N.C. 437, 447, 272 S.E.2d 103, 110 (1980) (absolute disparity of 14%). The reasoning is that a defendant is "`not entitled to a jury of any particular composition, . . . [or to] a jury which mirrors the presence of various and distinctive groups within the community.'" Bowman, 349 N.C. at 468, 509 S.E.2d at 434 (quoting Price, 301 N.C. at 448, 272 S.E.2d at 110-11); see also Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184 (1972). In addition, the trial by jury right "`carries with it the right to be tried before a body which is selected in such a manner that competing and divergent interests and perspectives in the community are reflected rather than reproduced absolutely.'" Bowman, 349 N.C. at 468-69, 509 S.E.2d at 434 (quoting Price, 301 N.C. at 448, 272 S.E.2d at 111); see also Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690 (1975).
As we stated in Bowman and Price, defendants are not entitled to a special venire from the population of a county which exactly mirrors the population of Cumberland County as long as the venire was selected in a manner in which various interests were represented. While the population of Johnston County is not the mirror image of the population of Cumberland County, African-Americans were represented in Johnston County, and there is only a 14.3% absolute disparity. Therefore, we cannot say the absolute disparity between Cumberland County and Johnston County, standing alone, is unfair or unreasonable.
As to the third prong of Duren, this Court has held " he fact that a particular jury or series of juries does not statistically reflect the racial
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