Opposition — CARTER v. NORTH CAROLINA (No. 75-6842)

SHERMAN EUGENE CARTER,

Petitioner

v.

STATE OF NORTH CAROLINA

Respondent.

ON WRIT OF CERTIORARI

TO THE

SUPREME COURT OF NORTH CAROLINA

BRIEF FOR THE RESPONDENT , 4/ @ ppasit,

THOMAS B. WOOD

Attorney for Respondent

North ~arolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

(919) 829-4185

—

TABLE OF CONTENTS

CITATION TO OPINIONS BELOW... .. «ss !

JURISDICTION .. ss ee eevee ° I

QUESTIONS PRESENTED. ... 1s se ewes 2

STATEMENT OF CASE. ... + s+ ss ees 0 2

REASON FOR NOT GRANTING THE WRIT

L THE COURT SHOULD NOT GRANT

CERTIORARI TO CONSIDER WHETHER

THE CARRYING OUT OF THE

SENTENCE OF DEATH FOR THE

CRIME OF MURDER VIOLATES THE

EIGHTH AND FOURTEENTH

AMENDMENTS TO THE

CONSTITUTION OF THE UNITED

STATES. - 2. sss eeseeeeves 2

Il. THE COURT SHOULD NOT GRANT

CERTIORARI TO CONSIDER WHETHER

AN ALL-WHITE JURY IS INDICATIVE

PER SE OF A SYSTEMATIC EXCLUSION

OF NON-WHITES AND RACIAL

DISCRIMINATION... . . + «se ee 3

CONCLUSION. ©. se ec eseeseeeves 6

CERTIFICATE OF SERVICE. ....-. s+ sees 7

TABLE OF AUTHORITIES .... + «+ ss ees ui

TABLE OF AUTHORITIES

Akins v. Texas, 325 U.S. 398, 89 L.Ed. 1692, 65 -—_.

1276 . . . . . . . . . . . . . . . . 4

American Jurisprudence - 24 Am. Jur., Grand

a ae om 38 CJS., Gus “san Se

ea ae ae eo . eo « of

Cassell v. Texas, 339 U.S. 282, 94 L.Ed. 839, 70 S.Ct.

629

. . . . . . . . . . . . i, 2 a J ae . 4

Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40

* & Ferree eerernerteean o

Hale v. State, 271 N.C. 616, at page 632. ...... 5

State v. Cormell, 281 N.C. 20. «2 we we ee ee 8

State v. Koritz, 227 N.C. $52, 43 SE2477..... $

State v. Lowry and State v. Mallory, 263 N.C. $36,

139 SE.24 870... 2 sw we ee eees 0 0 oS

Staie v. Miller, 237 N.C. 29, 74 SE.2d S13. .... $

State v. Speiler, 231 N.C. $49, 57 SE.2d 759%... . «5S

State v. Wilson, 262 N.C. 419, 137 S.E.24 109. . 4,°S

State v. Woodson and Waxton, Supreme Court of the

United States, Case No. 75-5491, (Argued at the

&0 So eee 3

State v. Yoes, 271 N.C. 616, 157 S.E.2d 386. . . 4, §

Swain v. Alabama, 380 U.S. 202, 85 S. Ct.

Gee Be bee BF WB ce cece eees 4, 5

Thiel v. See ee Gapay, a8 CS. 217, 90

See wee ese ses eeaeseeeetes 5

Thom-- v. Texas, 212 U.S. 278, 283, 53 L.Ed. $12,

$14, 29 S.Ct. 399 - ww we eee eevee enes 6

Federal Constitution

U. S. Constitution, Amendment VIll ........ 3

U. S. Constitution, Amendment XIV... . +++ -s 3

North Carolina General Statute: 1417. . . . «s+ + 2

iti

a

ee — e = md

ew

IN THE

SUPREME COURT OF THE UNITED STATES

Spring Term 1976

SHERMAN EUGENE CARTER,

Petitioner

v.

STATE OF NORTH CAROLINA,

Respondent.

ON WRIT OF CERTIORARI

TO THE

SUPREME COURT OF NORTH CAROLINA

RESPONSE OF RESPONDENT.

STATE OF NORTH CAROLINA,

IN OPPOSION TO

PETITION FOR WRIT OF CERTIORARI

CITATION TO OPINION BELOW

of the Supreme Court of North Carolina

The opinion

reported at 289 NC 372, —s_—sS.E. 2nd

976).

~

=e

JURISDICTION

Petitoner seeks to invoke the jurisdiction of this Court

pursuant to 28 A 1257(3).

QUESTIONS PRESENTED

L Is the death penalty set forth in the laws

of the State of North Carolina

unconstitutional as set forth in North

Carolina General Statute 14-17, because it

is cruel and unusual punishment and

contrary to the Constitution of the United

States?

fl. Did the trial court err in permitting the

defendant to be tried, not by jury of his

peers, but by a jury from which non-whites

had been systematically excluded?

STATEMENT OF CASE

The petitioner has filed with this court a Petition for

Writ of Certiorari to review the judgment of the Supreme

Court of North Carolina in denying the defendant's Petition

for Certiorari to review the trial court's alleged error in

permitting the defendant to be tried by a jury from which

non-whites had allegedly been systematically excluded. The

petitioner has, also, requested this court to review the

imposition of the sentence of death imposed upon him under

North Carolina General Statute 14-17 for murder in the first

degree.

ARGUMENT

I

THE TRIAL COURT DID NOT ERR IN

DENYING DEFENDANT CARTEP'S MOTION

TO LENGE THE CONSTITUTIONALITY

OF NORTH CAROLINA'S DEATH PENALTY.

The petitioner asserts that the penalty of death is cruel

and unusual punishment. He also urges that the revision of G.S.

14-17, through the removal of the jury's discretion in

sentencing in capital cases, has not changed the cruel and

unusual character of the death penalty as being violative of

the Eighth and Fourteenth Amendments to the Constitution

of the United States.

This court has received briefs and heard oral arguments

on this question as raised by the petitioner in the case of State

vy. Woodson and Waxton, No. 75-5491, 1976 Term. The

by ths ,

concerning the cruel and unusual character of the death penalty

should be dependant upon the outcome of the Woodson case,

and the petition to grant certiorari in the present case should

THE TRIAL COURT DID NOT ERR IN

PERMITTING THE DEFENDANT TO BE

TRIED BY AN ALL-WHITE JURY.

argument to the effect that the all-white jury in Mecklenburg

County that tried these black defendants was constituted

through systematic exclusion of blacks from the jury by the

prosecutor's staff. This contention, of course, is based upon

(3) A person has no right to be indicted or tried

by a jury of his own race or even to have a

representative of his race on the jury. He does

have

from which members of his own race have not

been

State v. Yoes, 271 NC 616, 157 SE 2d 386; State

y. Wilson, 262 NC 419, 137 SE 2d 109: Swain

vy. Alabama, 380 US 202, 85 S.Ct. 824, 13 L.Ed.

2d 759; Gibson v Mississippi, 162 US 565, 16

S.Ct. 904, 40 L.Ed. 1075....In instant case

defendants contend that their showing that the

black adult population in Forsyth County

amounted to approximately 20% of the

population of that County, when coupled with

the testimony of the wit ss Foltz to the effect

that during the biennum beginning January |970

approximately !0% of the petit jurors appearing

for service in the courtroom in which he was

employed were Negro, made out a prima facie

case of racial discrimination... The case of Swain

v. Alabama, supra, strongly supports the State's

argument... the United States Supreme Court held

that the trial court properly denied defendant's

motion to quash. Mr. Justice White delivered the

Court's majority opinion, and Mr. Justice

Goldberg, with whem Chief Justice Warren and

Mr. Justice Doug ined, delivered a separate

dissenting opinion. {he majority opinion, in part,

stated:

"..We cannot say that purposeful discrimination

based on race alone is satisfactorily proved by

showing that an identifiable group in a

community is underrepresented by as much as

10%. See Thomas v. Texas, 212 US 278, 283,

53 L.Ed. 512, 514, 29 S.Ct. 393; Akins v. Texas;

325 US 398, 89 L.Ed. 1692, 65 S.Ct. 1276;

Cassell v. Texas, 339 US 282, 94 L.Ed. 839, 70

S.Ct. 629..There is no evidence that the

commissioners applied different standards of

qualifications to the Negro community than they

did to the white community. Nor was there any

meaningful attempt to demonstrate that the same

proportion of Negroes qualified under the

standards being administered by the

commissioners. It is not clear from the record

that the commissioners even knew how many

Negroes were in their respective areas, or on the

oy

jury roll or on the venires drawn from the jury

box. The overall percentage disparity has been

small, and reflects no studied attempt to include

exclude a specified number of Negrocs.... We

not think that the burden of proof was carried

petitioner in this case.’ Swain v. Alabama,

amply supports a holding under the facts

this case that the showing of

underrepresentation of Negroes on the juries of

Forsyth County was not sufficient to establish

@ prima facie case of racial discrimination.”

A very definitive statement on this subject and directly

in point with regard to the case at hand was made by this

in the case of State v. Yoes, and Hale v. State reported

at 271 NC 616 at page 632:

:

"It is not required that the Negro race be

represented on a jury panel in the same ratio to

toal membership the Negro population of

24 513; 24 Am. Jur., Grand Jury, Sec. 27; 38

C.J.S., Grand Juries, Sec. 12. ‘It is not the right

of any party... to be tried (or indicted) by a jury

of his own race, or to have a representative of

any particular race on the jury. It is his right to

be tried by a competent jury from which

members of his race have not been unlawfully

excluded.’ Stacy, C.J. speaking for the Court in

State v. Koritz, 227 NC $52, 43 SE 2d 77. To

the same effect, see: State vy. Wilson, supra; State

vy. Miller, supra; State v. Speller, 231 NC 549,

$7 SE 2d 759; and Thiel v. Southern Pacific

Company, 228 US 217, 90 L.Ed. 1181."

CONCLUSION

It is therefore respectfully submitted that the questions

concerning the alicged systematic exclusion of non-whites from

the defendant's jury has not been shown by the defendant nor

has it been held by the Supreme Court of the United States

that such a jury composition does establish a prima facie case

of racial discrimination. The State would also contend that,

inasmuch as the question of the constitutionality of the death

penalty is already before this Court, the petitioner's Petition

‘or Writ of Certiorari upon the crucl and unusual aspects of

the death penalty should also be denied.

Respectfully submitted,

RUFUS L. EDMISTEN

| Attorney General ()

THOMAS B. WOOD

Assistant Attorney General

. COUNSEL FOR RESPONDENT

North Carolina Department

of Justice

P. O. Box 25201

Raleigh, North Carolina 27611

Telephone (919) 829-4185

el