Opinion
No. 07-1490.
Filed 15 July 2008.
Beaufort County No. 03 CRS 52636.
Appeal by Defendant from judgments entered 26 July 2007 by Judge Alma L. Hinton in Beaufort County Superior Court. Heard in the Court of Appeals 30 April 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State. Geoffrey W. Hosford for Defendant.
On 6 October 2003, Defendant was indicted on one count each of first-degree rape, first-degree kidnapping, and robbery with a dangerous weapon. The State subsequently dismissed the kidnapping charge. On 26 July 2007, a jury found Defendant guilty of the rape and robbery charges, and the trial court entered judgment on the verdicts. Defendant timely appealed to this Court. We find no error in Defendant's trial.
BACKGROUND
Before the trial began, Defendant filed a motion to change venue on the ground that he could not receive a fair trial because of pretrial publicity. The trial court denied the motion, stating that there was "insufficient evidence to conclude that . . . media coverage has created so great a prejudice against the Defendant that Defendant could not receive a fair and impartial trial."
At the call of the case for trial, Defendant, an African-American, made a motion to strike the entire jury pool on the ground that African-Americans were under represented in the venire. Subsequently, the prosecutor called a deputy clerk of Beaufort County Superior Court to testify about how the jury pool was selected. The deputy clerk testified that she uses a computer program to randomly select each jury pool from a consolidated electronic list she receives from the "[v]oter registration and DMV." The trial court denied Defendant's motion.
At trial, "Jane" testified for the State as follows: On 11 July 2003 at approximately 9:45 a.m., Jane arrived for work at The Pink Petal, a gift and shoe store located in downtown Washington, North Carolina, where she was employed as a sales associate. The store's owner had not yet arrived, and Jane was alone in the store. A man entered the store, asked Jane about a piggy bank in the store's display window, and decided to purchase the bank. While Jane wrote out a receipt for the bank, the man came behind the counter with a handgun and instructed Jane to give him the contents of the cash register. The man then forced Jane into a back room, ordered her to get undressed, and raped her. Later, Jane identified Defendant as her assailant from a photographic lineup.
We use the pseudonym, "Jane," to protect the woman's privacy.
A Washington Police Department detective also testified for the State. Outside the presence of the jury and prior to examining the detective, the prosecutor asked the court how to pose a question to the detective concerning the acquisition of Defendant's photograph which was used in the lineup. The court stated that the detective would "not be allowed to testify that he got [the photograph] from another investigation or make any reference to the [D]efendant having been arrested or the subject of another investigation." In the presence of the jury, the prosecutor asked the detective, "[a]nd what did you do with that photograph?" The detective replied, "[o]btained the picture from the jail and asked them again. . . ." Defendant objected to this testimony. The court sustained the objection and instructed the jury to "disregard where [the detective] obtained the photograph from."
Other facts pertinent to this appeal will be discussed below.
DISCUSSION
On appeal, Defendant argues: (1) the trial court lacked jurisdiction to try and to enter judgment on the robbery charge because the indictment on that charge was fatally defective; (2) the trial court erred in denying his motion to change venue; (3) the trial court erred in denying his motion to strike the jury pool; and (4) the trial court should have declared a mistrial after the detective testified that he obtained Defendant's photograph from the jail.
1. Robbery Indictment
Defendant argues that the trial court lacked jurisdiction to try and to enter judgment on the charge of robbery with a dangerous weapon because the indictment on that charge did not allege that the property taken belonged to The Pink Petal. The indictment stated:
[Defendant] unlawfully, willfully and feloniously did steal, take and carry away and attempt to steal, take and carry away another's personal property, US currency of the value of $283.00 dollars, from the presence and person of [Jane], employee of The Pink Petal business. The defendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, to wit, a semi-automatic handgun, whereby the life of [Jane] was endangered and threatened.
This issue may be raised for the first time on appeal, and we review de novo. State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416, disc. review improvidently allowed, 349 N.C. 289, 507 S.E.2d 38 (1998) (per curiam).
An indictment must describe the crime charged "with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation." N.C. Gen. Stat. § 15A-924(a)(5) (2005). "[T]he purpose of an indictment is to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial." State v. Thrift, 78 N.C. App. 199, 201, 336 S.E.2d 861, 862 (1985), disc. review denied and appeal dismissed, 316 N.C. 557, 344 S.E.2d 15 (1986). "An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property." State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972). The indictment at issue here is clear as to the crime charged, and does not hinder Defendant's ability to prepare his defense. The indictment alleges that Defendant committed the offense by threatening Jane with a handgun and taking $283.00, "another's personal property," from Jane, an employee of the store. These allegations sufficiently show that the $283.00 was the subject of a robbery and negate the idea that Defendant was taking his own property. See State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968) (indictment that identified cashier employed at supermarket as the victim of the robbery upheld as sufficient even though the $415.00 taken was the property of the store and not the cashier), overruled on other grounds by State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987). Moreover, the evidence tendered by the State was consistent with the allegations contained in the indictment. This assignment of error is overruled.
2. Change of Venue
Defendant argues that the court below erred by denying his motion to change venue. Section 15A-957 of our General Statutes states:
If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:
(1) Transfer the proceeding to another county in the prosecutorial district . . . or to another county in an adjoining prosecutorial district . . ., or
(2)Order a special venire under the terms of G.S. 15A-958.
N.C. Gen. Stat. . 15A-957 (2005). "[T]he burden of proving that a fair and impartial trial cannot be received due to pretrial publicity falls on the defendant." State v. Jerrett, 309 N.C. 239, 251, 307 S.E.2d 339, 345 (1983). A defendant "must show inter alia that jurors with prior knowledge decided the case, that [defendant] exhausted his peremptory challenges, and that a juror objectionable to [defendant] sat on the jury." State v. Wallace, 351 N.C. 481, 510, 528 S.E.2d 326, 345 (quotation marks and citation omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001). A trial court should grant a motion to change venue if "it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed." Jerrett, 309 N.C. at 255, 307 S.E.2d at 347. The decision to grant "[a] motion for a change of venue, or for a venire from another county, is [within] the sound discretion of the trial court and its ruling thereon will not be disturbed absent a showing of abuse of discretion." Id. at 250, 307 S.E.2d at 345. Additionally, our Supreme Court has held that a defendant must show a "gross" abuse of discretion. State v. Dobbins, 306 N.C. 342, 344, 293 S.E.2d 162, 164 (1982).
As Defendant acknowledges, this Court is unable to fully review the trial court's order denying his motion to change venue because the transcript of the hearing on the motion is not included in the record on appeal. As our review is limited to information contained in the record, State v. Moore, 75 N.C. App. 543, 331 S.E.2d 251, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985), we must determine if the trial court abused its discretion in entering the order based solely upon the motion, the order, and the results of the jury selection.
Upon our review, we conclude that nothing in the motion or order reflects an abuse of discretion, nor do the results of the jury selection process. Only three members of the jury pool had prior knowledge of the case. One of these potential jurors was excused by the court. The other two potential jurors were accepted by Defendant for the jury panel before Defendant exhausted his peremptory challenges. Of these two, the first juror only recalled hearing Defendant's name sometime in the past. The second juror only remembered reading or hearing on the news that The Pink Petal had been robbed and she confirmed that this knowledge would not "impair [her] ability to be fair and impartial in this . . . case." At the close of the jury selection process, defense counsel accepted the selected jury and stated, "We're satisfied, Your Honor." Defendant did not meet his burden, and we discern no abuse of discretion in the trial court's denial of Defendant's motion. Defendant's assignment of error is overruled.
3. The Venire
Next, Defendant argues that the trial court erred by denying his motion to strike the jury pool on the grounds that the venire disproportionately represented the African-American population of Beaufort County. Only two of the thirty-nine individuals who reported for jury duty were African-American. Defendant, citing no authority, asserts that African-Americans comprise 40% of Beaufort County's population. The State, citing United States Census Bureau data, maintains that African-Americans comprise 27.5% of the county's population. In either instance, we reject Defendant's argument.
Sixty jurors were available for duty, but only thirty-nine reported to the trial court; two jurors were deferred.
The Sixth Amendment does not "'guarantee [Defendant] the right to a jury composed of members of a certain race or gender.'" State v. Blakeney, 352 N.C. 287, 296, 531 S.E.2d 799, 808 (2000) (quoting State v. Norwood, 344 N.C. 511, 527, 476 S.E.2d 349, 355 (1996), cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500 (1997)), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001).
[T]he fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the [Equal Protection] Clause. A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race, or by unequal application of the law to such an extent as to show intentional discrimination.
State v. Avery, 299 N.C. 126, 130, 261 S.E.2d 803, 806 (1980) (quoting Washington v. Davis, 426 U.S. 229, 239, 48 L. Ed. 2d 597, 607 (1976)) (internal quotations and citations omitted).
The United States Supreme Court has set out a three-prong test to be used in determining if there has been a prima facie violation of the right to a jury that fairly represents a cross-section of the community. Duren v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579 (1979). A defendant must show
(1)that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation 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. at 364, 58 L. Ed. 2d at 587. "Statistics concerning one jury pool, standing alone, are insufficient to meet the third prong of Duren." State v. Bowman, 349 N.C. 459, 469, 509 S.E.2d 428, 435 (1998), cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999). In Bowman, the North Carolina Supreme Court stated that "we cannot conclude that [a 16.17% disparity], standing alone, is unfair or unreasonable." Id. at 468, 509 S.E.2d at 434. In State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980), the Court held that a 14% disparity did not "establish that the components of the population of [the county] are not reflected fairly and reasonably in the jury pool." Id. at 448, 272 S.E.2d at 111.
Defendant's data led to a 16.17% disparity, whereas the State's data led to a 14.8% disparity.
There is no dispute that Defendant has met the first prong of the Duren test; African-Americans are a distinctive group. See Price, 301 N.C. at 447, 272 S.E.2d at 110 (stating that it is "settled that [African-Americans] constitute a cognizable group"). As for the second prong of the test, Defendant did not provide any documentation to either the trial court or this Court which supports his assertion that African-Americans comprise 40% of the county's population. According to the State's evidence, there was a 22.5% disparity between the percentages of African-Americans in the jury pool and in the county's population. This disparity is comparable to the 14% and 16.17% disparities that were found to be acceptable in Price and Bowman, respectively. However, we need not determine whether this disparity, or the disparity allegedly shown by Defendant's unsupported allegation, demonstrates that African-Americans were underrepresented in the jury pool because Defendant fails the third prong of the Duren test. That is, Defendant presented no evidence that the county systematically excludes African-Americans from the county's jury selection process. On the contrary, the evidence established that a deputy clerk used a computer program to randomly select the jury pool from a consolidated electronic list she received from the "[v]oter registration and DMV." Defendant argues that merely "[t]he disproportionate representation in this case is drastic enough to demonstrate some systematic exclusion of African-Americans from the jury venire." The deputy clerk's uncontroverted testimony regarding the jury pool selection process, however, is evidence that there is not a "systematic exclusion" of African-Americans from the jury pool. Duren, 439 U.S. at 364, 58 L. Ed. 2d at 587. This assignment of error is overruled.
4. Detective's Testimony
Lastly, Defendant argues that the court committed plain error by not declaring a mistrial after the detective testified that he obtained Defendant's photograph from the jail. Defendant argues that the detective's testimony prejudiced the jury against him by informing the jury that Defendant had past arrests. The trial court sustained Defendant's objection to the testimony and instructed the jury to "disregard where he obtained the photograph from." Defendant did not ask the trial court to declare a mistrial.
Plain error constitutes an error "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
[T]he North Carolina Supreme Court has restricted review for plain error to issues "involv[ing] either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence." State v. Cummings, 346 N.C. 291, 314, 488 S.E.2d 550, 563 (1997) (citing State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998).
State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004). The trial court's failure to declare a mistrial is neither a ruling on the admissibility of evidence nor an instruction to the jury. "Since plain error review is not available here, this assignment of error is waived." Id.
CONCLUSION
For the reasons stated above, we conclude that Defendant received a fair trial.
NO ERROR. Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).