State v. Golphin8/25/2000
composition of the community does not in itself make out an invidious discrimination forbidden by the [Equal Protection] Clause." Washington v. Davis, 426 U.S. 229, 239, 48 L. Ed. 2d 597, 607 (1976), quoted in State v. Avery, 299 N.C. 126, 130, 261 S.E.2d 803, 806 (1980); see also Bowman, 349 N.C. at 469, 509 S.E.2d at 434-35 (holding the defendant "failed to present any evidence showing that the jury-selection process was tainted by the systematic exclusion of African-Americans from the jury pool"). Moreover, " tatistics concerning one jury pool, standing alone, are insufficient to meet the third prong of Duren." Bowman, 349 N.C. at 469, 509 S.E.2d at 435.
Likewise, in the instant case, the fact that the racial composition of Johnston County differs from that of Cumberland County is not sufficient to show "systematic exclusion." The statistics concerning this one jury pool cannot satisfy the "systematic exclusion" requirement of the third prong of Duren. See id. Therefore, defendants have failed to establish a prima facie case of disproportionate representation, and these assignments of error are overruled.
By assignments of error, both defendants challenge the sufficiency of the short-form murder indictments. Kevin argues the trial court committed constitutional error by entering judgment on his first-degree murder convictions where the indictments were insufficient to charge this offense. Tilmon argues the trial court erred in denying his motion to dismiss the murder indictments. Both defendants contend the short-form indictments do not allege the specific elements of first-degree murder that defendants acted with premeditation and deliberation in violation of their federal constitutional rights.
We recently addressed this issue in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), and State v. Braxton, ___ N.C. ___, ___ S.E.2d ___ (July 13, 2000) (No. 2A98), and we decline to revisit the issue in the instant case. Defendants' arguments that the short-form murder indictments were insufficient are overruled.
By assignments of error, both defendants argue the trial court erred by failing to require the State to disclose the aggravating circumstances on which it intended to rely at sentencing. Defendants contend the indictment should have contained the aggravating circumstances, and the trial court erred in denying their pretrial motions for disclosure of aggravating and mitigating circumstances. Specifically, defendants rely on Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and argue that because aggravating circumstances may increase the penalty for first-degree murder from life imprisonment to death, defendants are entitled to pretrial notice, within the indictment or other binding instrument, of the aggravating circumstances the State intends to use at sentencing. We disagree.
The United States Supreme Court has previously held an indictment "need not set forth facts relevant only to the sentencing of an offender found guilty of the charged crime." Almendarez-Torres v. United States, 523 U.S. 224, 228, 140 L. Ed. 2d 350, 358 (1998). In Jones, the Supreme Court recognized the difference between elements of an offense and sentencing factors when it stated, "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment." Jones, 526 U.S. at 232, 143 L. Ed. 2d at 319 (emphasis added).
On the same issue, this Court has held "the State need not set forth in an indictment the aggravating circumstances upon which it will rely in seeking a sentence of death." State v. Young, 312 N.C. 669, 675, 325 S.E.2d 181, 185 (1985). In
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