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North Carolina v. Elkerson

Filed: January 12, 1982.

STATE OF NORTH CAROLINA
v.
GEORGE E. ELKERSON



Appeal by defendant from Brown, J., at the 29 September 1980 Special Session of Granville Superior Court. The State also appealed assigning as error the trial judge's failure to submit any aggravating circumstances at the sentencing phase of the trial.

Branch, Chief Justice.

Branch

Defendant assigns as error the denial of his motion for mistrial because of the arraignment of two of his co-conspirators in the presence of the prospective jurors from whom the jury for defendant's trial was chosen.

In support of this assignment of error, defendant first relies upon the last sentence of G.S. 15A-943(a), which provides that "[n]o cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared."

The North Carolina Court of Appeals considered this portion of G.S. 15A-943(a) in State v. Brown, 39 N.C. App. 548, 251 S.E.2d 706 (1979). There the defendant argued that the trial judge contravened this portion of G.S. 15A-943(a) and violated his right to trial by an impartial jury. The Court of Appeals rejected this contention and concluded that defendant's trial by a jury panel which had the opportunity to hear guilty pleas and the presentation of evidence and sentencing thereon in other cases on the day defendant was tried did not contravene the language and objectives of G.S. 15A-943 nor did such procedure violate defendant's right to be tried by an impartial jury. The Court reasoned that the legislative intent in enacting G.S. 15A-943 was to minimize the imposition on the time of jurors and witnesses, not to insure the impartiality of jurors. We adopt the holding and reasoning set forth in Brown.

Defendant nevertheless argues that Brown differs because it considered unrelated charges as compared to instant case where two of defendant's co-conspirators were arraigned on the same day and immediately before defendant was tried. We do not think this is a viable distinction.

No inference of prejudice arises from the mere awareness by the jury that a witness has been charged with complicity in the crime for which defendant is being tried. In State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978), the Court permitted a co-defendant to withdraw his not guilty plea, enter a plea of guilty to a lesser offense, and then testify against defendant. Noting that the defendant had full opportunity to cross-examine the former co-defendant, this Court found no prejudicial error. Similarly, in State v. Cameron, 284 N.C. 165, 200 S.E.2d 186 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153, 94 S. Ct. 3195 (1974), we found no error in the trial judge's ruling which permitted an accomplice who was not on trial to testify against defendant even though it was brought out on redirect examination that the witness intended to plead guilty to the charge against him.

Defendant next points to G.S. 15A-1212(3) which permits a challenge for cause on the ground that a juror "has been or is a party, a witness, a grand juror, a trial juror, or has otherwise participated in civil or criminal proceedings involving a transaction which relates to the charge against the defendant." At the time defendant's co-conspirators were arraigned, the prospective jurors simply did not come within the language of the statute. There is nothing in this record to show whether defendant on voir dire of the prospective jurors ascertained that any juror recognized any connection between defendant and the co-conspirators when they were arraigned or that any one of the jurors finally chosen was even in the courtroom when the arraignments took place. Neither does the record reveal whether defendant challenged any juror for cause pursuant to the statute nor does the record disclose that he exhausted his peremptory challenges. Thus, defendant's reliance on this portion of the statute is misplaced.

By his next argument, defendant avers that the arraignment of defendant's co-conspirators was violative of the provision in G.S. 15A-1213 which, in part, provides that "[t]he judge may not

read the pleadings to the jury." An examination of the entire statute and the application of that statute to the facts of this case require that we reject this argument. We quote the full statute:

§ 15A-1213. Informing prospective jurors of case. -- Prior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant's plea to the charge, and any affirmative defense of which the defendant has given pretrial notice as required by Article 52, Motions Practice. The judge may not read the pleadings to the jury.

It has been held, and we think correctly so, that the purpose of this statute when read contextually and considered with the Official Commentary to the statute is to avoid giving jurors a distorted view of a case because of the stilted language of most indictments. State v. Laughinghouse, 39 N.C. App. 655, 251 S.E.2d 667 (1979).

It is presumed that the trial judge obeyed the mandate of G.S. 15A-1213, and there is nothing in the record to the contrary. 1 N.C. Index 3d, Appeal and Error § 46 (1976). We therefore presume that the judge, in understandable language, explained the charges against defendant to the jury and did not read the indictments, thus avoiding placing in the minds of the jurors any distorted view of the case that might have resulted had they heard the language of the pleadings. The pleas of the co-conspirators, whether heard by the prospective jurors or not, had no relationship to defendant's plea or to his guilt or innocence. Both co-conspirators later testified as witnesses against defendant and were subjected to strenuous cross-examination. The burden of showing prejudicial error or the denial of a fair trial is on the defendant. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). This he has failed to do.

Defendant contends that the court erred in denying his motion to require the clerk to provide him with the racial makeup of the jury panel.

Defendant's position seems to be that because more blacks oppose the death penalty than do whites, a larger number of

blacks should have been included in the venire. He reasons that a disproportionate number of blacks could be expected to be removed from the jury because they generally would not vote to impose the death penalty under any circumstances. This argument, as novel as it is spurious, requires neither application nor prolonged discussion of the well-recognized rules governing motions to quash an indictment or dismiss a jury because of racial discrimination in the drawing or selection of a jury panel. These rules are fully discussed and applied in our cases. State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 50 L. Ed. 2d 765, 97 S. Ct. 760 (1977); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). However, we briefly note and paraphrase two of the propositions set forth in the above-cited cases, viz: A defendant is not entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire from which petit jurors are drawn. He is entitled to a reasonable time and opportunity to inquire into and present evidence regarding intentional and systematic exclusions from the grand or petit jury on the basis of race.

We glean from the record that defendant was indicted on 9 June 1980. After a determination of indigency, counsel was appointed for defendant on 12 June 1980, and the motion before us was lodged with the court after the jury was selected at the 22 September 1980 term of Granville Superior Court. Defendant offered no evidence in support of his motion. We have nothing before us to indicate that defendant took any action prior to making this motion. Neither does the record reveal that he ever asked for a continuance for the purpose of inquiring into or presenting evidence concerning the racial makeup of the jury.

It is common knowledge in the legal profession that the information which defendant sought by this motion is accessible to counsel as soon as it is available to court officials. We therefore take judicial notice of that ...


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