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100 N.C. App. 217

State v. Moore

Court of Appeals of North Carolina

Decided September 4, 1990

Court of Appeals of North Carolina · decided 1990-09-04

Cited by 2 later decisions — most recently March 2000

2 state decisions

Relies on Caldwell v. Mississippi · State v. Bridges

Good law ✅— No negative treatment on recordhow we know

Decided 1990-09-04

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Judge DUNCAN

¶1dissenting.

¶2An expert witness was appointed to study the jury-selection process in Rutherford and McDowell Counties to determine whether there existed a basis for defendant’s charge of discrimination in jury selection. After he conducted a preliminary study, the expert determined that there was a “reasonable possibility” that the voter-registration and licensed-drivers lists did not include a proportional representation of all categories of the population of those counties. The expert specified that misrepresentation on the basis of race and gender was “especially likely.” He concluded, however, that “additional study [was] necessary to determine this.” Defendant, consequently, moved that the expert be appointed to perform the additional study. A different judge summarily denied that motion and, today, the majority summarily holds that, because the jury-selection procedure complied with statutory requirements, “[t]he expert’s preliminary conclusion . . . does not show a reasonable likelihood that a further study would show that blacks are systematically excluded from the venire.” Because I do not share the majority’s certainty about what additional study might or might not reveal, I dissent.

¶3The majority refrains from articulating what more this defendant could have done to make a sufficient showing of necessity for the expert’s continued assistance. At the outset, Judge Owens was satisfied that defendant had adequately demonstrated the need *226for a preliminary study of the jury-selection systems. With that study having shown a basis for further investigation, it is illogical to hold that defendant, at this point, has somehow failed to demonstrate a need for expert help. We are not faced here with “ ‘little more than undeveloped assertions that the requested assistance would be beneficial.’ ” State v. Bridges, 325 N.C. 529, 532, 385 S.E.2d 337, 338 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323-4 n.1, 86 L. Ed. 2d 231, 236 n.1 (1985)). Rather, we have a neutral expert who is of the opinion that there is a “reasonable possibility” that certain groups are under-represented on the lists from which grand and petit juries are drawn in McDowell and Rutherford Counties. In my view, defendant should have been allowed the continued assistance of the expert and, therefore, I dissent.

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