Appeal by defendant from judgment entered 17 October 1996 by Judge Beverly T. Beal in Caldwell County Superior Court. Heard in the Court of Appeals 13 January 1998.
The opinion of the court was delivered by: Walker, Judge.
Defendant was convicted of first-degree murder and sentenced to life imprisonment without parole. At trial, the State's evidence tended to show that in 1995 defendant was employed as a deputy with the Caldwell County Sheriff's Department (the sheriff's department). Sometime in June of 1995, defendant became aware that his wife (the victim) was seeing a co-worker, Robert Jackson (Jackson).
Defendant's uncle, Lieutenant David Bates (Bates) of the Sheriff's Department, testified that on 19 June 1995 he was in the parking lot of the sheriff's department when he saw defendant drive in and park his patrol car. Defendant started into the building, hesitated, and then turned around and walked over to where Bates was standing. At that time, defendant told Bates that earlier in the evening he had waited at Jackson's place of business and followed Jackson out of the parking lot. After stopping Jackson's car, defendant approached the vehicle and asked Jackson about his relationship with the victim. When Jackson laughed at defendant, defendant punched Jackson and hit him with a flashlight, bloodying Jackson's face. Bates immediately suspended defendant from duty and took his badge, weapon and the keys to his patrol car. On the following day, defendant resigned from the sheriff's department.
Bates further testified that the victim called him on 25 July 1995 and asked if he would take her to the Shelter Home of Caldwell County (the shelter), a battered women's shelter. Thereafter, Bates drove the victim to her house (the residence) to get some clothing and then took her to the shelter.
When she arrived at the shelter, the victim met Kathy Kennedy (Kennedy), who described the victim as "shaking and crying when she arrived." On the following morning, the victim spoke with Jane Haas (Haas), a court advocate for the shelter. With Haas' assistance, the victim obtained an ex parte domestic violence order against defendant on 26 July 1995, with a hearing on the order scheduled for 4 August 1995. Thereafter, Haas and Bates went with the victim to the residence to obtain some clothing and other items, and then returned to the shelter.
On the morning of 4 August 1995, Haas and Kennedy accompanied the victim to the domestic violence hearing where defendant was present. After the hearing, the victim made arrangements with Bates to retrieve some additional belongings from the residence. After leaving the courthouse, the victim went with her sister-in-law, Terri Austin (Austin), to Austin's house where they waited before going to meet Bates. While the victim was at Austin's house, defendant called to talk to her. Austin answered the telephone and informed defendant that she and the victim were going to be coming by the residence soon to retrieve the victim's belongings.
At approximately 4:30 p.m. the victim arrived at the residence accompanied by Bates, Austin and her brother, Steve Austin. Upon their arrival, defendant was present and Bates informed him that the victim was not returning to stay but rather was there to obtain her belongings.
While the victim and her family went into her bedroom to get her belongings, Bates stayed with defendant in the living room. Thereafter, the victim walked into the kitchen and was followed by Bates and defendant. There, defendant demanded the victim return her house keys. As defendant approached her, the victim turned to face him when suddenly defendant grabbed her by the head, pulled her towards him and fired four fatal shots with a handgun. Bates, who was standing only a few feet away, drew his weapon before seeing a semi-automatic, 9 millimeter pistol drop from defendant's hand and hit the floor. Defendant was immediately arrested and taken into custody.
In his first two assignments of error, defendant contends that the trial court erred by (1) denying his motion to challenge the jury array in that the pool of potential jurors was selected in a racially discriminatory manner, and (2) allowing the State to strike the lone black juror from the pool in violation of the rule in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
Defendant contends that his motion to challenge the jury array should have been allowed since blacks constituted approximately 5.5% of the Caldwell County population, while less than 2% of the jury pool was black.
N.C. Gen. Stat. § 9-2 (1986) outlines the statutory requirements for the selection of jurors and is designed to provide "a jury system completely free of discrimination to any cognizable group." State v. Cornell, 281 N.C. 20, 37, 187 S.E.2d 768, 778 (1972). Further, our Supreme Court has stated that:
In order to establish a prima facie case that there has been a violation of the requirement that a jury be composed of persons who represent a fair cross-section of the community, defendant must document that the group alleged to have been excluded is a distinctive group; that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and that this under-representation is due to systematic exclusion of the group in the jury selection process.
State v. Price, 301 N.C. 437, 445, 272 S.E.2d 103, 109 (1980) (emphasis added). However, statistical evidence indicating a disparity between the number of minorities serving on a jury in relation to the number of minorities in the community, standing alone, is insufficient to prove that the under-representation is a product of systematic exclusion of the minority group. State v. Harbison, 293 N.C. 474, 481, 238 S.E.2d 449, 453 (1977).
Here, the trial court conducted a hearing at which the assistant clerk of Caldwell County Superior Court testified that the jury pool was randomly selected from voter registration and drivers' license lists pursuant to N.C. Gen. Stat. § 9-2. Further, she testified that fifty-three potential jurors reported for jury duty for the current term and that only one of those potential jurors was black. The trial court then made findings of fact consistent with this evidence, concluded that defendant had failed to show a systematic exclusion or underrepresentation of blacks in the jury pool, and denied defendant's motion. After a careful review, we conclude that ...