# State v. Cofield > Court of Appeals of North Carolina · November 19, 1985 · 77 N.C. App. 699 URL: https://www.frixlaw.com/law-library/cases/9853471 ## Case - **Full name:** State of North Carolina v. Ernest Richard Cofield - **Court:** Court of Appeals of North Carolina - **Decided:** November 19, 1985 - **Citations:** 77 N.C. App. 699; 336 S.E.2d 439; 1985 N.C. App. LEXIS 4369 - **Precedential status:** Published - **Opinion:** Concurring in part by Becton - **Judges:** Hedrick, Parker, Becton - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by State v. Cofield, 320 N.C. 297 (1987). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9853471 ## Opinion text Judge BECTON concurring in part and dissenting in part. I concur in the majority’s resolution of all issues except the equal protection issue. Believing that defendant made out a prima facie case of discrimination against blacks in the selection of grand jury foremen in violation of defendant’s equal protection rights as guaranteed by the North Carolina and United States Constitutions, I dissent. Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group *706 otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has emphasized, such discrimination “not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.” . . . The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. “The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” Rose v. Mitchell, 443 U.S. 545, 555-56 , 61 L.Ed. 2d 739, 749 , 99 S.Ct. 2993, 3000 (1979) (citations omitted). I A defendant establishes a prima facie case that he has been denied equal protection of the law when he shows that the procedure employed in the selection of grand jury foremen is susceptible to abuse or is not racially neutral and results in substantial underrepresentation of his race or of the identifiable group to which he belongs. Rose v. Mitchell, 443 U.S. at 565 , 61 L.Ed. 2d at 755 , 99 S.Ct. at 3005 ; Castaneda v. Partida, 430 U.S. 482, 494 , 51 L.Ed. 2d 498, 510 , 97 S.Ct. 1272, 1280 (1977). The burden then shifts to the State to rebut the prima facie case. In its brief, defendant capsulates and analyzes the uncon-tradicted evidence establishing a prima facie, and unrebutted, case of unconstitutional exclusion of blacks from the position of grand jury foremen in Northampton County thusly: During the 18 years prior to the return of the indictment against the defendant on July 2, 1984, only one black served as grand jury foreman in Northampton County. That person served for one year — i.e., two terms. During that same period, the court was presented with the opportunity to appoint some 36 foremen. While 61% of the county’s population was black, a black member of the community held the position of foreman for only 5.6% of the time. In my view, the disparity is drastic, and the statistically significant showing establishes a presumption of underrepresentation of *707 constitutional dimension. See Castaneda; Sims v. Georgia, 389 U.S. 404 , 19 L.Ed. 2d 634 , 88 S.Ct. 523 (1967). Simply put, I reject the State’s assertion in its brief that the fact that a black man was appointed grand jury foreman on 1 July 1979 “totally obliterated any vestige of racial stigma which could conceivably be said to have existed prior to 1979 with respect to selection of grand jury foremen.” One bee does not make honey nor does the sighting of a swallow presage spring. Aesop’s Fable, “The Spendthrift and the Swallow.” II Our justice system must provide a remedy to those whose equal protection rights have been violated. Consequently, I believe the trial court erred when it failed to quash the indictment in this case. It is not enough to assert as the majority does, ante p. 702, that “reversal of an otherwise valid conviction is not mandated by any precedent binding on this Court.” After all, the precise issue raised in this appeal has not been before this Court. Moreover, quashing the indictment on the facts of this case is far less egregious than suppressing evidence or confessions unconstitutionally obtained even if the State thereby will be unable successfully to convict the defendant. Indeed, the social cost of dismissing or quashing the indictment in this case is no different than the social cost associated with the granting of a new trial for prejudicial error committed during the course of a trial. In the context of an . equal protection challenge, the United States Supreme Court indicated in Rose v. Mitchell that the costs attendant to retrying a defendant are “outweighed by the strong policy the Court consistently has recognized of combating racial discrimination in the administration of justice.” 443 U.S. at 558 , 61 L.Ed. 2d at 751 , 99 S.Ct. at 3001 . Nothing in Hobby v. United States, 468 U.S. -, 82 L.Ed. 2d 260 , 104 S.Ct. 3093 (1984), which the majority cites, undermines the sound and substantial policy reasons that impelled the Rose v. Mitchell decision. Hobby was a due process (not an equal protection) case brought by a white male who challenged the selection procedure of grand jury foremen in federal court. The United States Supreme Court explained the distinction: Rose involved a claim brought by two Negro defendants under the Equal Protection Clause. As members of the class *708 allegedly excluded from service as grand jury foremen, the Rose defendants had suffered the injuries of stigmatization and prejudice associated with racial discrimination. The Equal Protection Clause has long been held to provide a mechanism for the vindication of such claims in the context of challenges to grand and petit juries. Hobby , 468 U.S. at ----, 82 L.Ed. 2d at 267 , 104 S.Ct. at 3098 (citations omitted). Finally, I fear that the practical effect of the majority’s opinion will be to send the wrong signal to superior court judges who appoint grand jury foremen in the counties once every six months. The procedure employed is familiar and was accurately detailed by the Northampton County Clerk of Court who testified that “the judge usually confers with whomever he wants to. Most of the time, it’s the clerk and the sheriff and whoever he calls up to the bench.” I simply cannot concur in an opinion that tells superior court judges, in effect, that they can obliterate the vestige of racial discrimination by appointing blacks as grand jury foremen for one year every eighteen years in a county that is 61% black. As Justice Marshall said in his dissent in Hobby v. United States, our institutions of criminal justice serve to exemplify, by the manner in which they operate, our fundamental notions of fairness and our central faith in democratic norms. They reflect what we demand of ourselves as a Nation committed to fairness and equality in the enforcement of the law. That is why discrimination “is especially pernicious in the administration of justice,” why its effects constitute an injury “to the law as an institution,” why its presence must be eradicated root and branch by the most effective means available. 468 U.S. at ----, 82 L.Ed. 2d at 271 , 104 S.Ct. 3100 -01 (footnote omitted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853471. Public record. Not legal advice.