# Opposition — CARTER v. NORTH CAROLINA (No. 75-6842) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0219%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1976 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0219%3A2. Public record. Not legal advice.