The Court reversed this capital murder case, finding that the State’s “[t]wo peremptory strikes on the basis of race are two more than the Constitution allows.” The defendant was convicted of capital murder and sentenced to death in a Georgia court. Jury selection proceeded in two phases: removals for cause and peremptory strikes. The first phase whittled the list of potential jurors down to 42 “qualified” prospective jurors. Five were black. Before the second phase began, one of the black jurors—Powell—informed the court that she had just learned that one of her close friends was related to the defendant; she was removed, leaving four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. The defendant immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted the defendant and sentenced him to death. After the defendant unsuccessfully pursued his Batson claim in the Georgia courts, the U.S. Supreme Court granted certiorari. Before the Court, both parties agreed that the defendant demonstrated a prima facie case and that the prosecutor had offered race-neutral reasons for the strikes. The Court therefore addressed only Batson’s third step, whether purposeful discrimination was shown. The defendant focused his claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. With respect Garrett, the prosecutor had told the trial court that Garrett was “listed” by the prosecution as “questionable” and its strike of her was a last-minute race-neutral decision. However, evidence uncovered after the trial showed this statement to be false; the evidence showed that the State had specifically identified Garret in advance as a juror to strike. In fact, she was on a “definite NO’s” list in the prosecution’s file. The Court rejected attempts by the State “to explain away the contradiction between the ‘definite NO’s’ list and [the prosecutor’s] statements to the trial court as an example of a prosecutor merely ‘misspeak[ing].’” Regarding Hood, the Court noted that “[a]s an initial matter the prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.” It further found that the State’s asserted justifications for striking Hood “cannot be credited.” In the end, the Court found that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

During a state murder trial, the defendant was denied the opportunity to exercise a peremptory challenge against a female juror because the trial judge erroneously, but in good faith, believed that the defendant’s use of a peremptory challenge violated Batson. The Due Process Clause does not require an automatic reversal of a conviction when a state trial court committed a good-faith error in denying the defendant’s peremptory challenge of a juror and all jurors seated in the trial were qualified and unbiased.

In this Cumberland County case, the Supreme Court affirmed the trial court’s determination that under the inquiry established by Batson v. Kentucky, 476 U.S. 79 (1986), no purposeful discrimination in jury selection occurred when the state used peremptory challenges to strike three black jurors.

This matter was originally considered in State v. Hobbs (Hobbs I), 374 N.C. 345 (2020), where the Supreme Court remanded to the trial court with specific directions to conduct a hearing under the third step of the three-step Batson inquiry to determine whether defendant had proven purposeful discrimination. After the hearing, the trial court concluded defendant had not proven purposeful discrimination. In the current opinion, the Supreme Court considered whether the trial court’s conclusions were “clearly erroneous.”

The Supreme Court first noted that under both the U.S. and North Carolina constitutions the striking of potential jurors for race through peremptory challenges is forbidden, and that it has expressly adopted the Batson three-prong test for review of peremptory challenges. Here only the third prong was at issue, where the trial court “determines whether the defendant, who has the burden of proof, established that the prosecutor acted with purposeful discrimination.” Slip Op. at 4. The court then explained the basis of its review and detailed the instructions from Hobbs I for the trial court to consider when performing its analysis. Walking through the evidence for each stricken juror, the court found that the trial court considered the relevant factors and “conducted side-by-side juror comparisons of the three excused prospective jurors at issue with similarly situated prospective white jurors whom the State did not strike,” creating an analysis for each juror. Id. at 9. 

In addition to the evidence regarding specific jurors, the court pointed out that “the State’s acceptance rate of black jurors was 50% after the State excused [the last juror under consideration] which did not support a finding of purposeful discrimination.” Id. at 20. Reviewing additional evidence, the court noted that “the trial court found that the relevant history of the State’s peremptory strikes in the jurisdiction was flawed and therefore misleading.” Id. This referred to a study by Michigan State University regarding the use of peremptory strikes in North Carolina. The trial court found that all of the Batson challenges in cases referenced in the study were rejected by North Carolina appellate courts, and the study had three potential flaws: 

(1) the study identified juror characteristics without input from prosecutors, thus failing to reflect how prosecutors evaluate various characteristics; (2) recent law school graduates with little to no experience in jury selection evaluated the juror characteristics; and (3) the recent law school graduates conducted their study solely based on trial transcripts rather than assessing juror demeanor and credibility in person.

Id. at 8-9. Based on the court’s review of the entire evidence, it affirmed the trial court’s conclusion of no Batson violation. 

Justice Earls, joined by Justice Morgan, dissented, and would have found a Batson violation. Id. at 22. 

The defendant was tried for armed robbery and possession of firearm by felon in Wake County. When the prosecution struck two Black jurors from the panel, defense counsel made a Batson challenge. The prosecution argued the strikes were based on the jurors’ body language and failure to look at the prosecutor during questioning. The prosecution also pointed to one of the juror’s answer of “I suppose” in response to a question on her ability to be fair, and to the other juror’s former employment at Dorothea Dix, as additional race-neutral explanations for the strikes. The trial court initially found that these reasons were not pretextual and overruled the Batson challenge. After the defendant was convicted at trial, the Court of Appeals affirmed in an unpublished opinion, agreeing that the defendant failed to show purposeful discrimination. The defendant sought review at the North Carolina Supreme Court. In a special order, the Court remanded the case to the trial court and retained jurisdiction of the case.

On remand, the defense noted that the “I suppose” answer used to justify the prosecutor’s strike was in fact a mischaracterization of the juror’s answer—the juror in question responded with that answer to a different question about her ability to pay attention (and not about whether she could be fair). The defense argued this alone was enough to establish pretext and obviated the need to refute other justifications for the strike. As to the other juror, the defense noted that while the juror was asked about her past work in the mental health field, no other juror was asked similar questions about that field. The defense argued with respect to both jurors that the prosecutor’s body language and eye contact explanations were improper, pointing out that the trial court failed to make findings on the issue despite trial counsel disputing the issue during the initial hearing. It also noted that the prosecutor referred to the two women collectively when arguing this explanation and failed to offer specific reasons for why such alleged juror behavior was concerning. This evidence, according to the defendant, met the “more likely than not” standard for showing that purposeful discrimination was a substantial motivating factor in the State’s use of the strikes.

The State argued that it struck the juror with a history in mental health as someone who may be sympathetic to the defendant but did not argue the juror’s body language or eye contact as explanations for its use of that strike at the remand hearing. As to the other juror, the State reiterated its original explanations of the juror’s body language and eye contact. It also explained that the mischaracterization of the juror’s “I suppose” answer was inadvertent and argued that this and another brief answer of “I think” from the juror during voir dire indicated a potential inability of the juror to pay attention to the trial.

The trial court ruled that the strike of the juror with previous employment in the mental health field was supported by the record, but that the prosecution’s strike of the other juror was not. It found it could not rely on the mischaracterized explanation, and that the body language and eye contact justifications were insufficient explanations on their own without findings by the trial court resolving the factual dispute on the issue. The trial court therefore determined that the prosecutor’s justifications failed as to that juror. The trial court considered the defendant’s statistical evidence of racial discrimination in the use of peremptory strikes in the case and historical evidence of racial discrimination in voir dire statewide. It also noted disparate questioning between Black and White jurors on the issue of their ability to pay attention to the trial but found this factor was not “particularly pertinent” under the facts of the case. The trial court ultimately concluded that this evidence showed the prosecutor’s explanation was improper as to the one juror, but nonetheless held that no purposeful discrimination had occurred, distinguishing the case from others finding a Batson violation.  Thus, the objection was again overruled, and the defendant again sought review at the North Carolina Supreme Court.  

A majority of the Court reversed, finding a Batson violation by the State. The prosecutor’s shifting and mischaracterized explanation for the strike of the juror who answered “I suppose”—initially argued as an indication the juror could not be fair, but later argued as going to her ability to pay attention—indicated the reason was pretextual, and the trial court correctly rejected that justification for the strike. The trial court also correctly determined that the demeanor-based explanations for the strike of this juror were insufficient without findings of fact on the point. However, the trial court erred in several critical ways. For one, when the trial court rejects all of the prosecutor’s race-neutral justifications for use of a strike, the defendant’s Batson challenge should be granted. According to the Court:

If the trial court finds that all of the prosecutor’s proffered race-neutral justifications are invalid, it is functionally identical to the prosecutor offering no race-neutral justifications at all. In such circumstances, the only remaining submissions to be weighed—those made by the defendant—tend to indicate that the prosecutor’s peremptory strike was ‘motivated in substantial part by discriminatory intent.’ Clegg Slip op. at 47.

Further, while the trial court correctly recited the more-likely-than-not burden of proof in its order, it failed to meaningfully apply that standard. While the present case involved less explicit evidence of racial discrimination in jury selection than previous federal cases finding a violation, it is not necessary for the defendant to show “smoking-gun evidence of racial discrimination.” Clegg Slip op. at 41. The trial court also erred in reciting a reason for the strike not offered by the prosecution in its order denying relief. Finally, there was substantial evidence that the prosecutor questioned jurors of different races in a disparate manner, and the trial court failed to fully consider the impact of this evidence. Collectively, these errors amounted to clear error and required reversal. Because the Court determined that purposeful discrimination occurred as to the one juror, it declined to consider whether discrimination occurred with respect to the strike of the other juror.

The conviction was therefore vacated, and the matter remanded to the trial court for any further proceedings. A Batson violation typically results in a new trial. The defendant here had already served the entirety of his sentence and period of post-release, and the Court noted the statutory protections from greater punishment following a successful appeal in G.S. 15A-1335. In conclusion, the Court observed:

[T]he Batson process represents our best, if imperfect, attempt at drawing a line in the sand establishing the level of risk of racial discrimination that we deem acceptable or unacceptable. If a prosecutor provides adequate legitimate race-neutral explanations for a peremptory strike, we deem that risk acceptably low. If not, we deem it unacceptably high. . . Here, that risk was unacceptably high. Clegg Slip op. at 56-57.

Justice Earls wrote separately to concur. She would have considered the Batson challenge for both jurors and would have found clear error with respect to both. She also noted that this is the first case in which the North Carolina Supreme Court has found a Batson violation by the State. Her opinion argued the State has been ineffective at preventing racial discrimination in jury selection and suggested further action by the Court was necessary to correct course.

Justice Berger dissented, joined by Chief Justice Newby and Justice Barringer. The dissenting Justices would have affirmed the trial court’s finding that a Batson violation did not occur in the case.

The defendant was tried capitally in Cumberland County and convicted of first-degree murder (among other offenses). On appeal, he argued the trial court erred in denying his Batson challenges to three peremptory strikes used by the State against black jurors during jury selection. The Court of Appeals unanimously affirmed (here). On discretionary review, the North Carolina Supreme Court reversed in a 6-1 divided opinion.

Under Batson v. Kentucky, 476 U.S. 79 (1986), when a defendant objects that the State has struck a juror for racially discriminatory reasons, the court undertakes a three-step hearing. First, the court determines whether the defendant made a prima facia showing that the exercise of the peremptory strike was discriminatory. The defendant meets that hurdle “by showing that the totality of the relevant facts give rise to an inference of racial discrimination [and] is not intended to be a high hurdle . . .” Slip op. at 8-9. At this stage, the defendant’s burden is one of production, not persuasion. If the defendant meets that burden, the State must then provide a race-neutral justification for the use of the strike. If the State provides facially neutral explanations, then the court proceeds to the third step, allowing the defendant an opportunity to rebut the State’s explanation and show purposeful discrimination by the State in its exercise of the strike.  At this stage, the court must consider all of the evidence and determine whether the prosecution’s use of the strike “was motivated in substantial part by discriminatory intent.” Id. at 12.

(1) As to the defendant’s first two Batson objections, the trial court ruled against the defendant at the first stage, finding that he did not make a prima facia case. However, the trial court proceeded to the second and third steps of the analysis, asking the State to justify its use of the strikes and then denying the Batson challenge on the merits. The Court of Appeals held that the issue of whether the defendant made a prima facia case was not moot and agreed with the trial court that a prima facia case had not been established. This was error, as that issue was moot. See, e.g. State v. Robinson, 330 N.C. 1, 17 (1991) (so holding). “When the trial court has already ruled that a defendant failed in his ultimate burden of proving purposeful discrimination, there is no reason to consider whether the defendant has met the lesser burden of establishing a prima facia case of discrimination.” Hobbs slip op. at 13 (citations omitted). These circumstances were distinguishable from other cases cited in the Court of Appeals decision where the trial court ruled on the first step but did not conduct a complete Batson analysis.

(2) The trial court and the Court of Appeals failed to properly weigh the defendant’s evidence of purposeful discrimination. As to the first two challenges, the Court of Appeals did not consider purposeful discrimination at all, ruling only that the defendant did not make a prima facia showing. Since that issue was moot, the Court of Appeals should have conducted a full Batson analysis. While the trial court purported to conduct a “full hearing” on the Batson claims for the first two challenged jurors, its analysis of purposeful discrimination also failed to consider all of the evidence. The trial court noted the races of the defendant, the victims, and witnesses, and observed that the State had used three-fourths of its peremptory challenges on black venire members. It also noted that the defendant had exercised nearly half of his peremptory challenges to excuse black venire members. The trial court listed the State’s race-neutral justifications and stated that it “considered” the defendant’s argument that comparative answers between jurors struck and jurors kept by the State rebutted those justifications. It concluded no discrimination had occurred and did not specifically address the defendant’s argument regarding historical evidence of discrimination in jury selection in the county. Multiple errors in this analysis required a new Batson hearing.

One, the defendant’s use of peremptory challenges is irrelevant to determining the State’s intention in striking the juror, and it was improper for the trial court to consider that evidence. Second, the trial court failed to address all of the defendant’s evidence of discriminatory intent, including evidence of a pattern of historical discrimination in voir dire within the county. Without explaining how this evidence was weighed, the trial court’s analysis was incomplete. Finally, the trial court erred by failing to conduct comparative analysis of the answers of the jurors struck and of those passed on by the State. The trial court examined the different questions asked by the State of the jurors but failed to meaningfully compare the jurors’ answers in response. Evidence in the record suggested that white jurors passed by the State gave answers similar to those given by similar black jurors who were excused by the State. This was relevant and should have been addressed. In the court’s words:

Evidence about similar answers between similarly situated white and nonwhite jurors is relevant to whether the prosecutor’s stated reasons for exercising a peremptory strike are mere pretext for racial discrimination.  Potential jurors do not need to be identical in every regard for this to be true. ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step’. Id. at 21-22 (citations omitted).

These errors required reversal and remand to the trial court for new hearing. The same errors affected the trial court’s denial of the defendant’s third Batson claim. On remand, the trial court was instructed to conduct another Batson hearing as to all three claims, taking into account the totality of the evidence, including comparative analysis of juror answers and the historical evidence regarding racial discrimination. The trial court was further instructed to make findings of fact and conclusions of law, and to certify its order to the North Carolina Supreme Court within 60 days or “within such time as the current state of emergency allows.” Id. at 24.

Justice Newby dissented and would have affirmed the trial court and Court of Appeals. [Prior to the Supreme Court’s decision, Emily Coward blogged about this case, here.]

In this Buncombe County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and malicious maiming, arguing error in overruling his Batson objection and denying his motions for mistrial. The Court of Appeals found no prejudicial error.  

During voir dire for defendant’s trial in June of 2019, the State used a peremptory strike on a black potential juror who expressed reservations about the death penalty. Defendant raised a Batson objection, and the trial court conducted the three-step analysis (this exchange is reproduced on pages 6-11 of the opinion). The trial court found that there had not been a sufficient showing of race as a motivating factor in the third step of the Batson analysis, overruling the objection. After the denial but during the trial, one of the State’s witnesses was killed. One juror learned of the killing through a press release issued by the DA’s office, and was excused for cause. Defendant moved for a mistrial, and the motion was denied. After the verdict, defendant learned another juror had heard of the killing, and moved for a mistrial again; the trial court denied this motion as well.  

Beginning with the Batson issue, the Court of Appeals explained the procedural requirements for a Batson objection as clarified by State v. Hobbs, 374 N.C. 345, 356 (2020). The court then turned to the scope of review, explaining “we base our analysis on a review of the whole record, engaging in a full, written analysis of all arguments raised by Defendant at trial.” Slip Op. at 19. The court considered and rejected defendant’s argument that striking jurors for their views on race was equivalent to striking jurors for their actual race, but noted that “to the extent Defendant offers [the juror’s] views about race and the views of the three stricken white jurors as context to support an allegation that the strike of [the juror] was pretextual, we consider his argument for that limited purpose.” Id. at 21. Moving to the actual Batson analysis, the court examined the questioning of white jurors along with the black juror who triggered the Batson objection. Although the court noted that “the case is close,” it could not establish clear error in denying the Batson objection, pointing out that the black juror who was struck shared many similarities with a white juror who was struck for her views on the death penalty. Id. at 32. 

Considering the motions for mistrial, the court could not find an abuse of discretion by the trial court in denying either motion. The court noted that the trial court issued a curative instruction about the use of cell phones, and that the juror in question for the second motion only saw a headline and did not express any issue with being fair and impartial. The court likewise rejected defendant’s argument that the trial court should have recused itself from the second mistrial motion, explaining the judge did not act as a witness on the question of whether the juror could perform his duties impartially. 

Chief Judge Stroud and Judge Zachary concurred in the result only. 

In this Rowan County case, defendant argued error in overruling his objection under Batson v. Kentucky, 476 U.S. 79 (1986) to the prosecution peremptorily striking two black jurors. The Court of Appeals found no error. 

Defendant, a black man, reached trial in June of 2021 for charges of misdemeanor assault on a government official/employee. Relevant for the consideration of the objection, the victim of the assault was a white police officer. During jury selection, only four black potential jurors were a part of the jury pool; one black juror was struck for cause, and then the prosecutor used two peremptory challenges on two remaining black potential jurors. At this point, defense counsel objected and the trial court proceeded with the inquiry required by Batson.

The Court of Appeals reviewed defendant’s arguments, initially noting that under both the U.S. and North Carolina constitutions, the use of peremptory challenges for racially discriminatory reasons is prohibited, and courts in North Carolina apply the Batson analysis to determine if a violation occurred. Here, defendant only challenged the third step of the Batson inquiry, where the trial court determined that the prosecutor’s peremptory strikes were not motivated by discriminatory intent. Defendant also argued in the alternative that the trial court failed to sufficiently explain the basis of its ruling. 

The court found no issue with the trial court’s description of the basis for its ruling, and denied remand. Using the analogy of a scale, the court found that “[h]ere, unlike in [related Batson precedent], the trial court placed all the factors presented to it by the parties on the scale, and thus we do not need to remand.” Slip Op. at 17. The court walked through the considerations made by the trial court, including the consideration of issues not raised by either party, and satisfied itself that the trial court “adequately accounted for all the factors presented to it at Batson’s third step.” Id. at 21. 

The court then looked directly at the conclusion of no discriminatory purpose in the third step, reviewing the relevant factors to determine if the trial court committed clear error. After conducting a lengthy review spanning pages 22 to 41 of the opinion, the court concluded that "[t]he statistics of strike rates and susceptibility of the case to racial discrimination both weigh on the side of discriminatory intent,” but the lack of disparate questioning and investigation, and the race-neutral reasons given by the prosecutor for striking the jurors both weighed on the side of no discrimination. Id. at 40-41. Based on this review, the court could not find clear error to support defendant’s Batson challenge. 

(1) The defendant, on trial for multiple drug charges, challenged the prosecutor’s peremptory strike of the only Black juror in the venire under Batson v. Kentucky. The trial court overruled the defendant’s objection, finding that although the “100 percent rejection rate of African American jurors” established a prima facie showing of discrimination, the State gave credible race-neutral reasons for striking the prospective juror, and the defendant therefore did not prove purposeful discrimination. The defendant appealed, arguing that the trial court erred in denying his Batson challenge or, in the alternative, failed to make adequate findings of fact as required by State v. Hobbs, 374 N.C. 345 (2020). The Court of Appeals rejected the State’s argument that the defendant had not preserved the issue because the record did not disclose direct evidence of the race of the challenged juror and the jury selection process was not recorded. The Court held that the record sufficed to permit appellate review when the record of the Batson hearing included express statements, undisputed by the State, that the defendant was African American and that the lone African American in the jury pool was excluded. On the merits of the Batson challenge, the Court concluded that the trial court failed to make sufficient findings of fact on its comparative analysis of the answers regarding prior criminal history given by the stricken Black juror (who had a previous child abuse charge dismissed) and a White juror passed by the State (who had a prior drug charge dismissed). The trial court also failed to make findings of fact on the defendant’s argument that the State’s purported concern about the defendant’s “tone of voice” suggested racial bias. The Court remanded the matter to the trial court for specific findings, including, but not limited to the details of the court’s comparative juror analysis and on the defendant’s assertion that the prosecutor’s statements regarding the defendant’s answers to questions and tone of voice evinced racial bias. (2) The trial court erred by assessing costs in each of the four judgments against the defendant. Under State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the trial court should assess costs only once for cases adjudicated together in the same hearing or trial regarding multiple charges arising from the same underlying event or transaction.

This case involves a first-degree murder conviction previously upheld by the Court of Appeals, ___ N.C. App. ___, 838 S.E.2d 660 (2020), back before the court for reconsideration in light of the Supreme Court’s recent decisions in State v. Hobbs, ___ N.C. ___, 841 S.E.2d 492(2020), and State v. Bennett, ___ N.C. ___, 843 S.E.2d 222 (2020). 

At his murder trial, the defendant raised a Batson challenge in response to the State’s use of three of its four peremptory challenges to strike African American prospective jurors. The trial judge said that he did not find that the defendant established a prima facie case of discrimination, but he nonetheless ordered the State to give reasons for its challenges, which the State did. After hearing the State’s explanations, the trial court reiterated its finding that the defendant had not made a prima facie showing of purposeful discrimination and denied his Batson challenge. The defendant was convicted of first-degree murder and appealed.

The Court of Appeals first rejected the State’s motion to dismiss the appeal in light of the defendant’s failure to include in the appellate record a transcript of jury selection proceedings. At trial, the defendant’s lawyer made a motion for recordation of all proceedings, but specifically noted that she was not requesting recordation of jury selection. The appellate court concluded that the record was minimally sufficient to permit appellate review here, but emphasized that it will generally be extremely difficult for a defendant to prevail on a Batson argument without a transcript of jury selection. 

The Court of Appeals next determined that the scope of its review was limited to step one of the Batson analysis—that is, the trial judge’s finding that the defendant had failed to establish a prima facie case of discrimination. The court distinguished this case from State v. Williams, 343 N.C. 345 (1996) (step one becomes moot when the State volunteers the reasons for its peremptory challenges before the trial court rules on whether the defendant has made a prima facie showing), and State v. Hobbs, ___ N.C. App. at ___, 841 S.E.2d at 499–501 (step one becomes moot when the trial judge rules that the defendant has not established a prima facie case but nonetheless orders the State to provide nondiscriminatory reasons for its peremptory challenges and then enters findings on those reasons). Unlike Williams, the State did not volunteer reasons before the trial court ruled on step one; the State was ordered to give reasons after the court ruled. And unlike Hobbs, the trial judge never conducted a full hearing or made findings on the State’s proffered reasons. The step one inquiry therefore was not rendered moot, and Court of Appeals majority thus considered itself precluded from consideration of the State’s proffered nondiscriminatory reasons. The court concluded that the trial court’s order addressing only step one of the inquiry was not facially deficient when that was the only step of the inquiry the trial court technically reached.

On the merits, the court concluded that based on the limited available record, the defendant had not established that the trial court erred in finding that the defendant failed to make a prima facie showing. The transcript showed only the race of the defendant and that the State used three of its four peremptory challenges to remove prospective African American jurors. It did not provide other information about the so-called Quick factors (derived from State v. Quick, 341 N.C. 141 (1995)), such as the race of the victim, the questions and statements of the prosecutor during jury selection, or the final racial composition of the jury. The court noted its concern that the State used seventy-five percent of its peremptory challenges on African American prospective jurors, but said that alone was not sufficient to establish a prima facie case of discrimination. 

A judge dissenting in part would have concluded that the rate at which the State used its peremptory challenges on African American jurors obligated the trial court to conduct a more thorough analysis of the defendant’s objection. He therefore would have remanded the case for specific findings of fact in order to permit a meaningful appellate review.

The trial court did not err by denying the defendant’s Batson challenges in this capital case. The two victims and the eyewitness were Palestinian and the defendant was black. The State exercised a peremptory strike against Juror 2, a black male. When questioned about the death penalty, Juror 2 stated that he would not agree to the death penalty under any circumstances, elaborating that he was a pastor and that agreeing with the death penalty would make him a hypocrite; he added that he might hypothetically agree to the death penalty in one specified gruesome scenario. Reservations concerning ability to impose the death penalty constitute a racially neutral basis for exercising a peremptory challenge. The State exercised a peremptory strike against Juror 10, a black female. After the defendant raised a Batson challenge, the State provided reasons for the strike: Juror 10’s thoughts about the death penalty; her failure to disclose her criminal charges; reservations about whether law enforcement treated her brother fairly; and her lack of eye contact when asked whether her brother’s prosecution would affect her ability to be fair and impartial. These are racially neutral reasons for striking a juror. The State exercised a peremptory strike against Juror 11, a black male; it did not strike Juror 12, a white male. Jurors 11 and 12 were charged with writing worthless checks and driving while license revoked in the past and both knew a potential witness in the case. However, Juror 12 responded directly to questions about his criminal charges while Juror 11 minimized his criminal history; Juror 11 avoided questions regarding his family members’ criminal charges; Juror 12 had a business relationship with the witness whereas Juror 11 spoke with him on multiple occasions and his grandniece worked for the witness. The trial court did not commit clear error in rejecting the defendant’s Batson challenges

The trial court did not err by dismissing the defendant’s Batson objection. The prosecutor’s explanation for its peremptory challenge to the black juror was that she was unemployed and that the prosecutor recognized the juror’s name, possibly from a prior domestic violence case. The court noted that the State accepted a white juror who was unemployed. However, a review of the record revealed that the trial court conducted a full Batson inquiry and its conclusion that there was no purposeful discrimination was not erroneous.

The court rejected the defendant’s argument that the State used six of its peremptory challenges to excuse prospective African-American jurors in violation of Batson. At a Batson hearing, the State offered race-neutral explanations as to why it excused each juror, including unresponsiveness, deceit, failure to make eye contact, alleged acquaintance with the defendant’s former girlfriend, an extensive history of purchasing pawn tickets, and prior employment at the store where the crime occurred. After weighing these race-neutral explanations, the trial court found that the defendant had not demonstrated purposeful discrimination. The court concluded that “[a]fter careful review, we cannot find error that would justify overturning the trial court’s ruling.”

The defendant arranged a meeting with the victim through an app for the purchase of a phone. The victim left his home to go get the phone and was later found shot and killed. Communications found on the app led police officers to the defendant, who was 15 years old at the time.

Officers contacted the defendant’s mother and arranged to meet with the defendant as a witness in a larceny case. The officers met with and questioned the defendant in the presence of his parents. During the questioning, the defendant told the officers about the meeting that had been arranged for the purchase of the phone, and eventually disclosed that one of his companions wanted to rob the victim. Although the defendant carried a gun at the time of the incident, the defendant insisted that his own plan was not to rob the victim but rather sell him the phone.

The defendant was found guilty of attempted robbery with a dangerous weapon and first-degree murder. The defendant was found not guilty of conspiracy to commit robbery with a firearm.

(1) On appeal, the defendant argued that the trial court erred by denying the defendant’s challenge for cause to dismiss a juror. The Court of Appeals held that the defendant failed to preserve the issue for appeal because he did not adhere to the procedures established by G.S. 15A-1214(i). Specifically, the defendant did not (1) previously peremptorily challenge the juror; or (2) state in his motion to renew his challenge for cause that he would have challenged that juror peremptorily had his challenges not been exhausted.

(2) The defendant’s next argument on appeal was that the trial court erred by denying his motion to suppress his confession. The defendant contended that detectives gained access to him, a fifteen-year-old boy, by deceiving his mother, repeatedly told the defendant that he was lying, and capitalized on the presence of his parents to extract the confessions from him. Based on the trial court’s findings of fact, the Court of Appeals concluded that the defendant was in a non-custodial setting in his grandmother’s home with his parents, was informed the discussion was voluntary, was not handcuffed or otherwise restrained, and was not coerced, deceived, or threatened. The defendant did not challenge any of the trail court’s findings of fact. The Court of Appeals held that the trial court’s findings of fact fully support its conclusions of law, and based upon the totality of the circumstances, held that the defendant’s statement was voluntary. The Court affirmed the trial court’s denial of the defendant’s motion to suppress his non-custodial statement.

(3) The defendant argued that the trial court erred by failing to instruct the jury on second-degree murder as a lesser-included offense of first-degree murder because there was evidence that supported the instruction. In rejecting this argument, the Court of Appeals noted that there was no evidence that the victim was killed other than in the course of an attempted robbery. The Court concluded that there was no evidence in the record from which a rational juror could find the defendant guilty of second-degree murder and not guilty of felony murder.

(4) The defendant’s final argument was that the trial court erred by failing to order a discretionary transfer hearing as a matter of due process. The defendant argued that the juvenile petition did not contain facts indicating that he committed first-degree murder, so a discretionary transfer hearing should have occurred as required under G.S. 7B-2203. The Court of Appeals rejected this argument, noting that the defendant already had a transfer hearing in district court, and the defendant did not appeal the district court’s order to superior court as required by G.S. 7B-2603.

The defendant also contended that the trial court violated his right to due process by allowing the State to prosecute him under felony murder because felony murder is based on deterrence, which is not effective for and should not apply to juveniles. However, the Court of Appeals considered the argument abandoned because the defendant failed to cite any law indicating a juvenile may not be convicted of felony murder.

Chief Judge Stroud dissented in part to say that because there was a conflict in the evidence regarding an element of felony murder, specifically whether or not the defendant planned to rob the victim, the evidence supported an instruction for the lesser included offense of second-degree murder.

The trial court did not abuse its discretion by denying the defendant’s challenges for cause of two prospective jurors. The defendant asserted that the first juror stated that he would form opinions during trial. Because the juror stated upon further questioning that he would follow the judge’s instructions, the trial court did not abuse its discretion by denying the challenge of this juror. Next, the defendant argued that the trial court erred when it denied his for-cause challenge to a second juror who was a Marine with orders to report to Quantico, Virginia, before the projected end of trial. The trial court did not abuse its discretion in refusing to allow the for-cause challenge where the juror twice asserted that despite his orders to report, he could focus on the trial if he was selected as a juror.

In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by denying three of the defendant’s challenges for cause during jury selection. The defendant failed to preserve for appellate review challenges as to two of the jurors. As to the third, his challenge was based on the juror’s hearing problems. However, the trial court obtained a hearing device for the juror’s use and tested its effectiveness in court.

In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and four counts of discharging a weapon into an occupied vehicle, arguing error in (1) allowing certain text messages into evidence, and (2) denying his challenge to the jury pool. The Court of Appeals found no error. 

In May of 2022, trial began on defendant’s charges; during jury selection, defendant challenged the makeup of the jury pool, arguing members of defendant’s race (Black) were underrepresented. Defendant offered statistical evidence to support his argument, but the trial court denied defendant’s challenge. During the trial, the State offered text messages between an accomplice of defendant and a third party, attempting to show motivation for the robbery that eventually led to the murders. Defendant objected to the messages, and the trial court only allowed admission of the accomplice’s text messages, not those from the third party. Defendant was subsequently convicted and appealed.  

Before reaching the merits of defendant’s arguments in (1), the Court of Appeals considered the basis for its review. At trial, defendant objected to the text messages “because they were hearsay, were not illustrative, and lacked a proper foundation.” Slip Op. at 6. However, on appeal, defendant did not raise these three issues, but instead argued the text messages were irrelevant, unfairly prejudicial, and violated the Confrontation Clause and defendant’s right to a fair trial. Because defendant attempted to change his arguments on appeal, he was limited to the plain-error standard; however, the court noted that defendant “failed to ‘specifically and distinctly . . . argue plain error.’” Id., quoting State v. Frye, 341 N.C. 470, 496 (1995). As a result, defendant was limited to the grounds under which he originally objected to the evidence at trial. But as noted above, defendant did not argue the three issues from trial on appeal. This meant that defendant had no valid arguments on appeal, and the court dismissed issue (1). 

Moving to (2), the court explained that under applicable precedent on the fair-cross-section requirement, statistical evidence about the composition of the jury pool alone is not enough to prove systematic exclusion of that group. Here defendant acknowledged that he did not admit sufficient evidence of all three factors under Duren v. Missouri, 439 U.S. 357 (1979), but attempted to reference other cases and the pervasive problem of disparity in jury pools across North Carolina. The court was not swayed by this argument, concluding defendant “only offers statistical evidence as proof of systematic exclusion, and without more, he fails to establish a fair-cross-section claim under Duren.” Slip Op. at 8-9. 

In this Guilford County case, the trial judge improperly expressed personal opinion and injected a discussion of race in remarks to the venire during jury selection. The defendant was charged with fleeing to elude and obtaining the status of habitual felon, along with other traffic offenses. During jury voir dire, a potential juror indicated that his religious beliefs as a non-denominational Baptist prevented him from judging the defendant. In response, the trial court stated:

Okay. I’m going -- we’re going to excuse him for cause, but let me just say this, and especially to African Americans: Everyday we are in the newspaper stating we don’t get fairness in the judicial system. Every single day. But none of us -- most African Americans do not want to serve on a jury. And 90 percent of the time, it’s an African American defendant. So we walk off these juries and we leave open the opportunity for -- for juries to exist with no African American sitting on them, to give an African American defendant a fair trial. So we cannot keep complaining if we’re going to be part of the problem. Now I grew up Baptist, too. And there’s nothing about a Baptist background that says we can’t listen to the evidence and decide whether this gentleman, sitting over at this table, was treated the way he was supposed to be treated and was given -- was charged the way he was supposed to be charged. But if your -- your non-denomina[tional] Baptist tells you you can’t do that, you are now excused. Campbell Slip op. at 3.

The defendant was convicted at trial of the most serious offenses and sentenced to a minimum term of 86 months in prison. On appeal, he argued that his right to an impartial judge was violated, resulting in structural error.

To the extent this argument was not preserved at trial or by operation of law, the defendant sought to invoke Rule 2 of the Rules of Appellate Procedure to obtain review. The State joined the request to suspend the normal preservation rules, and a majority of the court agreed to do so. The State further agreed that the trial judge’s comments amounted to structural error, requiring a new trial without regard to any prejudice to the defendant. The majority of the panel again agreed. In its words:

Here, the trial court’s interjection of race and religion could have negatively influenced the jury selection process. After observing the trial court admonish [the excused juror] in an address to the entire venire, other potential jurors—especially African American jurors—would likely be reluctant to respond openly and frankly to questions during jury selection regarding their ability to be fair and neutral, particularly if their concerns arose from their religious beliefs. Id. at 9.

The convictions were therefore vacated, and the matter remanded for a new trial.

Judge Dillon dissented. He would have declined to invoke Rule 2 and would have held that the trial judge’s comments, while inappropriate, did not amount to structural or otherwise reversible error.

In this Alamance County case, defendant appealed his convictions for driving while impaired (DWI), resisting a public officer, and being intoxicated and disruptive, arguing error in (1) excusing potential jurors for cause, (2) denying defendant’s motion to dismiss the DWI charge, and (3) calculating the appropriate sentence. The Court of Appeals found no error in (1) and (2), but in (3) remanded for resentencing for the resisting a public officer and intoxicated and disruptive offenses. 

In April of 2021, police officers noticed a wrecked vehicle in the middle of the road and saw defendant attempting to hide behind a building nearby. Officers eventually arrested defendant, and found a key fob in his pocket that opened the doors of the wrecked vehicle. When defendant came to trial for the charges at superior court, he pleaded guilty to resisting an officer and being intoxicated and disruptive prior to the jury trial. During voir dire, the trial court dismissed two jurors for cause own its own initiative. Defense counsel did not object to either dismissal. Defendant was found guilty of the DWI charge, and the court sentenced defendant for all three charges. 

Taking up defendant’s argument (1), the Court of Appeals noted that the two dismissed jurors “both expressed strong emotions against law enforcement based upon their personal experiences with officers.” Slip Op. at 10. The court noted the defendant also did not use all of his peremptory challenges. Because there was no evidence that the empaneled jury was unfair, the court overruled defendant’s argument. 

Moving to (2), defendant argued that no evidence showed he operated or owned the wrecked vehicle involved in the DWI charge. The court disagreed, noting there was no direct evidence of defendant operating the car while impaired, but sufficient circumstantial evidence to support the conviction. The officers observed defendant near the wrecked vehicle, found a key fob corresponding to the vehicle in his pocket, and observed him at the Cook-Out intoxicated and with a fresh cut on his forehead. 

Finally, in (3) the court noted that defendant was sentenced to 120 days’ confinement for the resisting a public officer and intoxicated and disruptive misdemeanors, while “the maximum, combined sentence allowed by law is 80 days.” Id. at 14. The court remanded to allow resentencing based on the correct calculation of possible confinement. 

In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s questions during jury selection. The defendant objected to questions about whether jurors could consider testimony by witnesses who had criminal records, had received immunity deals for their testimony, and/or were uncharged participants in some of the criminal activities described at trial. The defendant also objected to questions about the jurors’ understanding of and feelings about the substantive law on felony murder.

In this Yadkin County case, two defendants, Defendant A and Defendant P, appealed their convictions for misdemeanor child abuse. Both defendants appealed trial court’s (1) denial of their motion to dismiss at the close of evidence and (2) denial of their motion to reopen voir dire of a juror for bias; Defendant A also appealed trial court’s imposition of conditions of probation while the appeal was pending. The Court of Appeals found no error with the denial of motions, but did find error in imposing conditions of probation while an appeal was pending. 

Defendants’ convictions arose from a 2018 incident in the parking lot of the Yadkin County Sheriff’s Office. An officer from the Yadkinville Police Department, located across the street, walked out of the police department to head home when he heard a commotion across the street, and observed Defendant A pulling on something in the back seat of a car. When the officer approached, he observed Defendant A and Defendant P were having a “tug of war” over their child in the back seat of a car; both defendants were tried and eventually convicted of misdemeanor child abuse in 2021.

The court first considered the motion to dismiss, reviewing whether substantial evidence of each element of child abuse under N.C.G.S. § 14-318.2 was present in the record. Because there was no dispute that the defendants were the parents of the child in question, and that the child was less than 16 years old, the only element in dispute was whether defendants “created or allowed to be created a substantial risk of physical injury” for the child. Slip Op. at ¶11, quoting State v. Watkins, 247 N.C. App. 391 (2019). The court noted the “paucity” of caselaw, observing that Watkins appears to be the only reported case on the “substantial risk” theory under N.C.G.S. § 14-318.2. Slip Op. at ¶13. However, after exploring Watkins and unreported caselaw, the court explained that even a brief period of time placing the child at risk of physical harm could represent “substantial risk,” justifying the jury’s consideration of the question. After examining the evidence against both defendants, the court found no error with the trial court. 

Examining the motion to reopen voir dire, the court explained that N.C.G.S. § 15A-1214(g) granted substantial leeway to the trial court when conducting an inquiry into possible juror bias. Here, the trial court directly questioned the juror during a period spanning two days, allowing the juror to consider the instructions overnight. Slip Op. at ¶30. Additionally, the trial court permitted arguments from counsel on both days of questioning the juror. The Court of Appeals found the trial court did not abuse its discretion in refusing to reopen voir dire in these circumstances. 

The Court of Appeals did find error when the trial court ordered Defendant A to enroll and complete co-parenting classes while the appeal in this matter was pending. Slip Op. at ¶34. Under N.C.G.S. § 15A-1451(a)(4), a defendant’s notice of appeal stays probation, meaning trial court’s imposition of the co-parenting condition was error. As a result, the court remanded for resentencing Defendant A only.