Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/03/2022
E.g., 10/03/2022

In this murder case resulting in a death sentence, the Court held that the trial court committed clear error in concluding that the State’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent.  The defendant Flowers, who is black, allegedly murdered four people at a furniture store in Winona, Mississippi, three of whom were white.  Flowers was tried six separate times for the murders; the same lead prosecutor conducted each of the trials.  A conviction in the first trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct, with the court not reaching a Batson challenge raised in that proceeding.  A conviction in the second trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct.  A conviction in the third trial was reversed by the Mississippi Supreme Court on grounds that the State violated Batson.  The fourth and fifth trials ended in hung jury mistrials.  A Batson challenge arising in the sixth trial is the basis of the instant case.

Under principles of equal protection, Batson v. Kentucky, 476 U.S. 79 (1986), prohibits the use of peremptory strikes in a racially discriminatory manner.  A Batson challenge is a three-step process. First, the party asserting the challenge must make a prima facie case of discrimination in the use of a peremptory strike.  If a prima facie case is established, the burden shifts to the party subject to the challenge to provide a race-neutral reason for the strike.  In the third step, the trial judge assesses whether purposeful discrimination has been proved, examining as part of this assessment whether the proffered race-neutral reasons for the strike in fact are pretext for discrimination.

In assessing the Batson issue in the instant case, the Court said that four categories of evidence loomed large:

(1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial.

The Court addressed each of these categories in turn.  With regard to the history from Flowers’ trials, the court first noted that under Batson a challenger need not demonstrate a history of discriminatory strikes in past cases – purposeful discrimination may be proved solely on evidence concerning the exercise of peremptory challenges at the particular trial at issue.  However, Batson does not preclude use of such historical evidence, and the “history of the prosecutor’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that his use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent.  Over the course of the first four trials, the State “used its available peremptory strikes to attempt to strike every single black prospective juror that it could have struck.”  The Court further noted that a Batson challenge in the second trial was sustained by the trial court and that the Mississippi Supreme Court reversed the conviction obtained in the third trial because of a Batson violation.

Turning to the events of the sixth trial, the Court noted that the State struck five of six black prospective jurors and that this, in light of the history of the case, suggested that the State was motivated in substantial part by discriminatory intent.  The Court also noted the State’s “dramatically disparate questioning of black and white prospective jurors.”  The five black prospective jurors who were struck were asked a total of 145 questions by the State.  In contrast, the State asked the 11 seated white jurors a total of 12 questions.  With regard to this disparate questioning, the Court found that the record refuted the State’s argument that differences in questioning was explained by differences in the jurors’ characteristics.  Finally, with regard to a particular black prospective juror, Carolyn Wright, the Court found that the State’s peremptory strike was motivated in substantial part by discriminatory intent.  The State said that it struck Wright in part because she knew several defense witnesses and worked at a Wal-Mart where Flowers’ father also worked.  The Court noted that Winona is a small town and that several prospective jurors knew many individuals involved in the case.  It further noted that the State did not engage in a meaningful voir dire examination on this purported basis for striking Wright with similarly situated white potential jurors.  The State also misstated the record while attempting to provide a race-neutral explanation of its strike of Wright to the trial court.  The Court explained that “[w]hen a prosecutor misstates the record in explaining a strike, that misstatement can be another clue showing discriminatory intent.”  The court concluded its analysis of the State’s strike of Wright by explaining that its precedents require that the strike be examined “in the context of all the facts and circumstances,” and that in this light “we conclude that the trial court clearly erred in ruling that the State’s peremptory strike of Wright was not motivated in substantial part by discriminatory intent.”

Justice Thomas, joined in part by Justice Gorsuch, dissented.  In Thomas’s view, “[e]ach of the five challenged strikes was amply justified on race-neutral grounds timely offered by the State at the Batson hearing.”

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.”

Thaler v. Haynes, 559 U.S. 43 (Feb. 22, 2010)

When an explanation for a peremptory challenge is based on a prospective juror’s demeanor, the trial judge should consider, among other things, any observations the judge made of the prospective juror’s demeanor during the voir dire. However, no previous decisions of the Court have held that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the prospective juror’s demeanor.

Rivera v. Illinois, 556 U.S. 148 (Mar. 31, 2009)

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.

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.

State v. Bennett, 374 N.C. 579 (June 5, 2020)

The defendant was charged with possession of a firearm by a felon and multiple drug crimes including drug trafficking. During jury selection, the State peremptorily challenged two potential jurors who were black before accepting a white juror. The defendant made a Batson motion, arguing that there was no basis aside from race for excusing the first two jurors. The trial court concluded that the defendant had not made a prima facie showing of racial discrimination, noting in particular that the State had “excused two, but kept three African Americans.” The defendant was convicted and appealed. The Court of Appeals affirmed the trial court, holding that the defendant failed to make a prima facie case that the State’s challenges were racially motivated. State v. Bennett, 262 N.C. App. 89 (2018).

On discretionary review, the Supreme Court reversed the Court of Appeals. As a preliminary matter, the Court agreed with the Court of Appeals that the record contained sufficient information about the relevant jurors’ race to permit a substantive review of the defendant’s Batson claim. There was no dispute among counsel for the parties or the trial judge concerning the racial identity of the relevant jurors, resulting in what amounts to a stipulation to their racial identity. The Court then concluded that the Court of Appeals erred in upholding the trial court’s rejection of the defendant’s Batson claim. After noting that a numerical analysis of strike patterns with respect to race is not necessarily dispositive, the Court said that the pattern here—where the State had challenged two of five African American prospective jurors but no white jurors, and where all of the State’s peremptory challenges were used to excuse black prospective jurors—was sufficient to raise an inference of purposeful discrimination when there was no other immediately obvious justification for the challenges. The Court rejected the State’s argument that the State’s acceptance rate for African American prospective jurors (three out of five) was higher than in many previous cases affirming trial court findings of no purposeful discrimination. Those cases included other distinguishing facts beyond the acceptance rate, such as the State using peremptory challenge on at least one white prospective juror, or a juror expressing reservations about the death penalty. Having found that the trial court erred at step one of the Batson analysis, the Court remanded the matter for a hearing to complete the second and third steps of the required analysis.

Justice Newby dissented, writing that the defendant did not preserve the race of the jurors for the record, and that Court therefore should not have reached the merits of his claim. And even if the issue had been preserved, he would have concluded that the trial court did not clearly err.

State v. Hobbs, 374 N.C. 345 (May. 1, 2020)

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.]

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

The trial court did not err in denying a capital defendant’s Batson challenge when the defendant failed to established a prima facie case that the prosecutor’s use of a peremptory challenge against Juror Rogers, an African-American female, was motivated by race. Because Ms. Rogers was the first prospective juror peremptorily challenged, there was no pattern of disproportionate use of challenges against African-Americans. Ms. Rogers was the only juror who stated, when first asked, that she was personally opposed to the death penalty. (2) The trial court did not err in denying a capital defendant’s Batson challenge to the State’s peremptory challenge of a second juror. There did not appear to be a systematic effort by the State to prevent African-Americans from serving when the State accepted 50% of African-American prospective jurors. The prosecutor’s race-neutral reasons were that the juror had not formulated views on the death penalty, did not read the newspaper or watch the news, had been charged with a felony, and gave information regarding disposition of that charge that was inconsistent with AOC records. Considering these reasons in the context of the prosecutor’s examination of similarly situated whites who were not peremptorily challenged, the court found they were not pretextual and that race was not a significant factor in the strike. (3) The court rejected the defendant’s argument that a remand was required for further findings of fact under Snyder v. Louisiana, 552 U.S. 472 (2008). Unlike in Snyder, the case at hand did not involve peremptory challenges involving demeanor or other intangible observations that cannot be gleaned from the record. However, the court stated that “[c]onsistent with Snyder, we encourage the trial courts to make findings . . . to elucidate aspects of the jury selection process that are not preserved on the cold record so that review of such subjective factors as nervousness will be possible.”

The defendant was convicted at trial of trafficking and other drug offenses in Sampson County. During voir dire, defense counsel made a Batson objection to the prosecutor’s peremptory strikes of two Black jurors. The trial court denied the motion, finding that the defendant had not made a prima facie showing of discrimination. The Court of Appeals affirmed that decision on appeal, but the North Carolina Supreme Court reversed. It found that the defendant had met the low bar for a prima facie showing and that the trial court erred in failing to conduct the remainder of the Batson analysis. The case was therefore remanded to the trial court for a full Batson hearing (Jamie Markham summarized that decision here).

On remand, the prosecution explained that one of the struck jurors was removed because the juror failed to disclose his criminal history. As to the other struck juror, the prosecution explained that some of her answers indicated confusion, and that the juror’s business was involved in an ongoing drug investigation. The defense pointed out that the juror’s criminal record was not in the record and argued this reason was not supported by the evidence. The trial court interrupted defense counsel and indicated that the existence of the juror’s criminal record was “gospel” to the court. Defense counsel moved on to argue the stated reasons for the strikes were pretextual. The defense also offered other evidence of purposeful discrimination, including the juror strike rates, historical evidence of discriminatory jury selection practices in the county, and the susceptibility of the case to racial bias as a drug offense involving a Black defendant. The trial court ultimately found that the prosecutor’s explanations for its use of the strikes were race neutral and determined that that the defendant failed to show purposeful discrimination. The defendant appealed to the North Carolina Supreme Court, who remanded the matter to the Court of Appeals for review.

A unanimous panel of the Court of Appeals affirmed the trial court. (1) The defendant argued that the trial court erred at the second step of the Batson analysis in finding that the prosecution’s stated reasons for its strikes were race-neutral. Specifically, the defendant argued that the prosecutor’s reasons were unsupported by the record. The State argued that the defendant had failed to preserve his challenge to this part of the analysis. The court noted that the discussions between the parties during the Batson hearing were not “neatly divided,” but determined that defense counsel’s attempt to argue the lack of record evidence in support of the prosecutor’s explanations sufficed to preserve the issue. Although the defense later argued that one of the prosecution’s reasons would have supported a challenge for cause (which would supply a race-neutral reason), this occurred during a discussion of the third step of the analysis and after the trial court had indicated the reason had been accepted by the court. The defendant’s challenge to the second step of the analysis was therefore preserved.

(2) At the second step of a Batson analysis, the State must supply a race-neutral explanation for its use of the challenged peremptory strikes. The State is required to do more than simply deny wrongful intent, but any explanation will suffice if it is race neutral. “[I]f not racially motivated, the prosecutor may exercise peremptory challenges on the basis of legitimate hunches and past experience. Notably, the reason does not have to be a reason that makes sense, but a reason that does not deny equal protection.” Bennett III Slip op. at 26 (cleaned up). Although the defendant may offer surrebuttal of the prosecutor’s reasons at step two, “this merely sets up” the third step of the analysis. The court noted the low bar for the prosecution at step two and observed the reason need not be supported by the record at this stage—scrutiny of the prosecutor’s explanation occurs at the final step of the Batson analysis.  Here, the reasons offered by the State for its strikes of both Black jurors were racially neutral. “Neither of those challenged explanations is inherently discriminatory because they do not rely on the jurors’ race or race-based discriminatory stereotypes.” Id. at 30.

(3) At the third and final step of the Batson analysis, the court must determine if the defendant has shown that the State’s peremptory challenges were more likely than not motivated by race by examining the totality of the circumstances, including any relevant evidence. Here, the trial court did not clearly err by concluding that the defendant failed to show purposeful discrimination. There was no clear error in the trial court’s ability to conduct a comparative juror analysis on the record before it and the trial court did not err in finding that one of the struck Black juror’s answers were not substantially similar to those of a White juror passed upon by the State. The trial court likewise did not err in determining that the case was not one susceptible to racial discrimination. The case was primarily about drugs and did not involve cross racial issues. According to the court, a case susceptible to racial discrimination is one where the defendant, victim, and witnesses are of different races. Such was not the case here. In the words of the court:

Where there is no evidence of any racial motivations or discrimination in the particular case under review, our precedent does not allow us to account in some sort of general philosophical way for ‘the effect of bias and racial stereotypes on jurors’ as Defendant wants us to consider. Id. at 55.

The North Carolina Supreme Court recently approved of the relevance and use of historical and statistical data in Batson challenges, but trial courts remain to free to weigh such evidence against contemporary practices and policies of a district. Although the trial court’s reasons here for discounting a study evidencing historical racial discrimination in jury selection in the county were improper, this did not amount to clear error under the facts of the case. According to the court:

Side-by-side comparisons of the potential jurors are more powerful than ‘bare statistics,’ and those comparisons here support the prosecutor. Further, we have already concluded the lack of susceptibility of this case to racial discrimination favors the prosecutor’s reasoning as well. Id. at 65.

Finally, the trial court also did not err in assigning weight to the fact that the State passed on five Black jurors. Three Black jurors were accepted before the Batson challenge, and two more were seated afterwards. The trial court found this supported an inference that the challenged strikes were not racially motivated. Unlike other cases where the prosecution only passed a Black juror after a Batson challenge, the early sitting of multiple Black jurors could be weighed in support of the State’s explanations. Additionally, the empaneled jury was more racially diverse than the population of the county itself, which further weighed in the State’s favor. In light of the whole record, the court concluded that the trial court committed no clear error, and its judgment denying the Batson challenge was affirmed.

(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.

State v. Hood, 273 N.C. App. 348 (Sept. 1, 2020)

In a first-degree felony murder case, the trial court did not err by denying the defendant’s motion to strike the initial jury panel and the Court of Appeals remanded the case to the trial court for a proper Batson hearing consistent with State v. Hobbs, 374 N.C. 345 (2020).  Before jury selection, the clerk provided the State and the defendant with a list of the first 12 prospective jurors to be called from the master jury list – 11 had surnames beginning with the letter “B” and the twelfth had a surname beginning with the letter “C.”  After defense counsel’s oral motion on the first day of voir dire to strike the first 12 prospective jurors based on concerns about whether they had been randomly selected in accordance with relevant statutes was denied, defense counsel made a motion in writing on the second day of voir dire to strike the jury panel for lack of randomness.  The trial court denied that written motion.  On the third day of voir dire, the trial court summarily denied the defendant’s Batson challenge to the State’s exercise of a peremptory strike against an African-American prospective juror.  With respect to the denial of the written motion to strike the jury panel, the Court of Appeals determined that even if the mandatory statutory procedure for calling jurors had been violated, the defendant did not show that any such violation was prejudicial because he did not strike any of the first 12 jurors for cause or with a peremptory challenge.  With respect to the Batson challenge, the court reviewed Hobbs, other precedent, and the proceedings in the trial court on its way to determining that the trial court erred by summarily denying the challenge without making specific findings of fact and conclusions of law.  The court remanded the case with instructions to the trial court to conduct a proper Batson hearing.

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.

In this first-degree murder case, defense counsel objected to the State’s use of peremptory challenges to strike three African American prospective jurors. The trial court denied defense counsel’s Batson challenge, finding that the defendant had not established a prima facie case that the State acted in a racially discriminatory manner. The Court of Appeals found no error, first denying the State’s motion to dismiss the appeal for failing to include a verbatim transcript of jury selection in the appellate record. A transcript is not required—although the court noted that it is “extremely difficult” to prevail on a Batson argument without one. Here, the Court of Appeals concluded that the narrative summary of jury selection proceedings in the appellate record was “minimally sufficient” to enable the court to review whether the defendant established a prima facie Batson claim by presenting factors relevant to the claim (so-called Quick factors, listed by the Supreme Court in State v. Quick, 341 N.C. 141 (1995), including the defendant’s race, the victim’s race, the race of key witnesses, and information about the State’s use of peremptory challenges to strike jurors based on race). On the merits, however, the court concluded over a dissent that without more information about the Quick factors (the narrative summary did not state the victim’s race, the race of key witnesses, or the final racial composition of the jury), it lacked sufficient information to conclude that the trial court erred. The court “urge[d] all criminal defense counsel that the better practice is to request a verbatim transcription of jury selection if they believe a Batson challenge might be forthcoming.” The court declined to consider the State’s proffered nondiscriminatory reasons for striking three prospective African American jurors, because those reasons were provided only after the judge had already ruled that the defendant had failed to establish a prima facie case of discrimination. (The court distinguished situations where the State volunteers nondiscriminatory reasons before the judge rules on the question of a prima facie case, or where the court requires the State to give reasons before actually ruling on the first question.)

A judge concurring in part and dissenting in part agreed with the majority that the narrative summary in the record sufficed to deny the State’s motion to dismiss the appeal, but would have concluded that the State’s use of three out of four peremptory challenges on African American jurors was a sufficient basis on which to remand the case for the trial court to conduct a Batson hearing and make specific factual findings on whether the defendant made a prima facie case.

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

State v. Hurd, 246 N.C. App. 281 (Mar. 15, 2016)

In this capital murder case involving an African American defendant and victims, the trial court did not err by sustaining the State’s reverse Batson challenge. The defendant exercised 11 peremptory challenges, 10 against white and Hispanic jurors. The only black juror that the defendant challenged was a probation officer. The defendant’s acceptance rate of black jurors was 83%; his acceptance rate for white and Hispanic jurors was 23%. When the State raised a Batson challenge, defense counsel explained that he struck the juror in question, Juror 10, a white male, because he indicated that he favored capital punishment as a matter of disposition. Yet, the court noted, that juror also stated that being in the jury box made him “stop and think” about the death penalty, that he did not have strong feelings for or against the death penalty, and he considered the need for facts to support a sentence. Also, the defendant accepted Juror 8, a black female, whose views were “strikingly similar” to those held by Juror 10. Additionally, the defendant had unsuccessfully filed a pretrial motion to prevent the State from exercising peremptory strikes against any prospective black jurors. This motion was not made in response to any discriminatory action of record and was made in a case that is not inherently susceptible to racial discrimination. In light of the record, the court concluded that the trial court did not err by sustaining the State’s Batson objection.

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 trial court did not err by failing to conduct a Batson hearing where the defendant failed to establish a prima facie case of discrimination. At the time the defendant objected, the State's acceptance rate, excluding jurors dismissed for cause, was 25% for African Americans, and 80% for whites. This was the only factor asserted by the defendant. The court noted that the defendant and both murder victims were African American and that the State questioned all the prospective jurors in the same manner, there were no racially motivated comments made or questions asked during jury selection, and the responses of the prospective jurors provided reasonable justification for exclusion.

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 trial court did not err by rejecting the defendant’s Batson challenge as to two black jurors. The prosecutor's explanation with respect to both jurors included the fact that both had a close family member who was incarcerated and had not been "treated fairly." The court rejected the defendant’s argument that the State accepted a white male juror whose father had been incarcerated, noting that the white juror indicated that he was not close to his father and that his father had been treated fairly. The court also rejected the defendant’s argument that the State's peremptory challenges left the defendant, who was black, with an all-white jury, concluding that Batson requires purposeful discrimination; it is not enough that the effect of the challenge was to eliminate all or some African-American jurors.

The trial court did not err by overruling the defendant’s Batson objection to the State’s peremptory challenge of an African-American juror. The defendant, who is African-American, was tried for murder. In response to the defendant’s Batson objection, the prosecutor explained to the trial court that the juror was challenged because he was heavily tattooed and dressed in baggy, low hanging jeans decorated with a blood-red colored splatter. The prosecutor expressed concern over what the juror chose to wear to court and “his choice of applying . . . that much ink.” The court found the State’s reason for striking the juror to be race-neutral. It also held that the trial court did not err by finding that the defendant failed to prove purposeful discrimination. The court determined that the defendant’s statistical evidence was not helpful because the jury pool contained only one or two African-Americans. Although defense counsel had suggested to the trial court that there were “racial overtones” in the defendant’s prior trials, no evidence of this was presented. The court also rejected the defendant’s argument that the State’s explanation for excluding the juror was pretextual. Finally, the court noted that both the victim and the defendant were African-American, the State asked no racially motivated questions, the State’s method of questioning the juror did not differ from its method of questioning other jurors, the State used only two peremptory challenges and contemporaneously challenged both a black and white prospective juror, the defendant left unresolved the question whether one of the jurors accepted by the State was African-American, and the defendant failed to show that any other prospective jurors wore clothing or had tattooing similar to that displayed by the juror in question.

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 defendant in this case was convicted of first-degree murder on four different theories, along with three counts each of armed robbery and kidnapping, and one count of conspiracy to commit armed robbery. The trial court sentenced the defendant for the murder and two robberies, and arrested judgment on the remaining convictions. Since the only issues raised on appeal concerned jury selection and a clerical error in one of the judgments, the appellate court declined to “recount the especially brutal and horrific factual background” leading to the defendant’s convictions. The facts are summarized in the parties’ briefs available here and here.

On appeal, the defendant argued that the trial court erred by refusing to excuse a prospective juror for cause after the juror indicated that she would not be able to apply the presumption of innocence. The defendant’s motion to excuse the juror for cause was denied at trial, so she was excused by the defense with a peremptory challenge. The motion was renewed later in the jury selection process after all the defendant’s peremptory challenges were exhausted, when the defendant was unable to excuse another juror he otherwise would have.

The appellate court reviewed the trial court’s ruling under an abuse of discretion standard, and found no error. Since this case had received extensive pretrial publicity, around 200 prospective jurors were called for jury selection. After excusing a number of jurors for hardships, the remaining 146 were divided into two panels for jury selection. Many of those potential jurors were subsequently excused for cause due to their exposure to pretrial publicity, inability to be fair and impartial, and concerns over the gruesome nature of the evidence. The juror at issue in this appeal had no prior knowledge of the facts, but during voir dire she stated that her father was retired from the Highway Patrol and acknowledged that she may have difficulty being fair to the defendant since she would be inclined to trust and give greater weight to testimony from a law enforcement witness. However, after further questioning by the attorneys and the trial judge, the prospective juror also stated that she was capable of setting her bias aside and “applying the presumption of innocence to defendant and the burden of proving guilt beyond a reasonable doubt to the State.” Viewing the juror’s answers in their entirety under case precedent such as State v. Cummings, 361 N.C. 438 (2007), along with the fact that (unlike much of the venire) this juror also had no prior knowledge of the case, the appellate court concluded that the trial court did not abuse its discretion in finding that the juror could follow the law as instructed, and did not err in declining to excuse her for cause.

The case was remanded to correct a clerical error on one of the judgments, which incorrectly listed the defendant’s active sentence as 77 to 100 months, instead of 73 to 100 months.

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.

State v. Carr, 229 N.C. App. 579 (Sept. 17, 2013)

The trial court did not abuse its discretion by denying the defendant’s challenge for cause. Although the juror initially voiced sentiments that would normally make her vulnerable to a challenge for cause, she later confirmed that she would put aside prior knowledge and impressions, consider the evidence presented with an open mind, and follow the applicable law.

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.

The trial court did not abuse its discretion by denying the defendant’s motion to strike a juror for cause or his request for an additional peremptory challenge. The defendant argued that a juror should have been excused for cause based on his comments during voir dire that he knew “things that [he] probably shouldn’t know, knowing some of the details.” Asked to elaborate, he indicated that he had read about the case in the newspaper. The trial court and the defendant then inquired further as to whether the juror could follow the law and be impartial. The juror indicated that he could put aside what he had read and make a decision based on the evidence. The court noted that the trial court was very careful to give considerable attention to its determination of whether the juror’s prior knowledge of the case would impair his ability to fairly evaluate the evidence and in accordance with trial court’s instructions.

In an impaired driving case, the trial court did not abuse its discretion by allowing the State’s challenge for cause of a juror while denying a defense challenge for cause of another juror. The juror challenged by the State had a pending impaired driving case in the county and admitted to consuming alcohol at least three times a week, and stated that despite his pending charge, he could be fair and impartial. The juror challenged by the defense was employed with a local university police department as a traffic officer. He had issued many traffic citations, worked closely with the District Attorney’s office to prosecute those and other traffic cases, including impaired driving cases, and had never testified for the defense. He indicated that he could be fair and impartial. Distinguishing State v. Lee, 292 N.C. 617 (1977), the court noted that the juror challenged by the defense did not have a personal relationship with any officer involved in the case and never indicated he might not be able to be fair and impartial. The court rejected the notion that a juror must be excused solely on the grounds of a close relationship with law enforcement.

Berghuis v. Smith, 559 U.S. 314 (Mar. 30, 2010)

The state supreme court did not unreasonably apply clearly established federal law with respect to the defendant’s claim that the method of jury selection violated his sixth amendment right to be tried by an impartial jury drawn from sources reflecting a fair cross-section of the community. The state supreme court assumed that African-Americans were underrepresented in venires from which juries were selected but went on to conclude that the defendant had not shown the third prong of the Duren prima facie case for fair cross section claims: that the underrepresentation was due to systemic exclusion of the group in the jury-selection process. The Court expressly declined to address the methods or methods by which underrepresentation is appropriately measured. For a more detailed discussion of this case, see the blog post.

The trial court did not err by denying the defendant’s motion to strike the jury venire. The defendant alleged that his venire was racially disproportionate to the demographics of Mecklenburg County, where he was tried, and therefore deprived him of his constitutional right to a jury of his peers. The court began by noting that the fact that a single venire that fails to proportionately represent a cross-section of the community does not constitute systematic exclusion. Rather, systematic exclusion occurs when a procedure in the venire selection process consistently yields non-representative venires. Here, the defendant argued that Mecklenburg County’s computer program, Jury Manager, generated a racially disproportionate venire and thus deprived him of a jury of his peers. Although the defendant asserted that there was a disparity in the venire, he conceded the absence of systematic exclusion and thus his claim must fail.

The trial court did not err by denying the defendant’s motion to discharge the jury venire on grounds that the defendants’ race (African-American) was disproportionately underrepresented. To establish a prima facie violation for disproportionate representation in a venire, a defendant must show that: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) 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) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Although the defendants met their burden with respect to the first prong, they failed to satisfy the other prongs. As to the second prong, the defendants failed to produce any evidence that the representation African-Americans was not fair and reasonable in relation to the number of such persons in the community. Defendants stated that the African-American population in the county was “certainly greater than . . . five percent” but produced no supporting evidence. As to the third prong, the defendants presented no evidence showing that the alleged deficiency of African-Americans in the venire was because of the systematic exclusion. Although the defendants noted that only three out of 60 potential jurors were African-American, this fact was insufficient to show systematic exclusion.

By failing to object, the defendant waived his right to appeal the issue of whether the trial court erred by informing prospective jurors, pursuant to G.S. 15A-1213, that the defendant had given notice of self-defense. During jury selection, the trial court stated: “Defendant, ladies and gentlemen, has entered a plea of not guilty and given the affirmative defense of self-defense.” The court rejected the defendant’s argument that the trial judge acted contrary to the statutory mandate of G.S. 15A-905(c), a discovery statute providing that on the State’s motion, the defendant must give notice of an intent to offer certain defenses at trial, including self-defense, and that the defendant’s notice of defense is inadmissible at trial. The court stated that the trial judge did not act contrary to the statutory mandate on orienting the jury in G.S. 15A-1213 and, in fact, the opposite was true. Therefore, as the defendant failed to preserve the issue, the court declined to address the merits of his argument on appeal.

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 a first-degree felony murder case, the trial court did not err by denying the defendant’s motion to strike the initial jury panel and the Court of Appeals remanded the case to the trial court for a proper Batson hearing consistent with State v. Hobbs, 374 N.C. 345 (2020).  Before jury selection, the clerk provided the State and the defendant with a list of the first 12 prospective jurors to be called from the master jury list – 11 had surnames beginning with the letter “B” and the twelfth had a surname beginning with the letter “C.”  After defense counsel’s oral motion on the first day of voir dire to strike the first 12 prospective jurors based on concerns about whether they had been randomly selected in accordance with relevant statutes was denied, defense counsel made a motion in writing on the second day of voir dire to strike the jury panel for lack of randomness.  The trial court denied that written motion.  On the third day of voir dire, the trial court summarily denied the defendant’s Batson challenge to the State’s exercise of a peremptory strike against an African-American prospective juror.  With respect to the denial of the written motion to strike the jury panel, the Court of Appeals determined that even if the mandatory statutory procedure for calling jurors had been violated, the defendant did not show that any such violation was prejudicial because he did not strike any of the first 12 jurors for cause or with a peremptory challenge.  With respect to the Batson challenge, the court reviewed Hobbs, other precedent, and the proceedings in the trial court on its way to determining that the trial court erred by summarily denying the challenge without making specific findings of fact and conclusions of law.  The court remanded the case with instructions to the trial court to conduct a proper Batson hearing.

Although the trial court erred by failing to follow the statutory procedure for jury selection in G.S. 15A-1214 (specifically, that the prosecutor must pass 12 jurors to the defense), the defendant failed to show prejudice. The court rejected the defendant’s argument that the error was reversible per se.

Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on the juror, the trial court determined that there was no cause to remove her. The defendant then requested that he be allowed to use his remaining peremptory challenge, but this request was denied. The court reasoned that the trial court has discretion to re-open voir dire even after the jury has been empaneled. If that happens, each side has an absolute right to exercise any remaining peremptory challenges to excuse the juror.

The trial court erred by denying the defendant the opportunity to use his one remaining peremptory challenge after voir dire was reopened. After the jury was impaneled, the judge learned that a seated juror had attempted to contact an employee in the district attorney’s office before impanelment. The trial judge reopened voir dire, questioned the juror, allowed the parties to do so as well, but denied the defendant’s request to remove the juror. The court of appeals noted that after a jury has been impaneled, further challenge of a juror is in the trial court’s discretion. However, once the trial court reopens examination of a juror, each party has an absolute right to exercise any remaining peremptory challenges.

The defendant was tried for various federal crimes in connection with the collapse of Enron. The Court held that the defendant’s Sixth Amendment right to trial by an impartial jury was not violated when the federal district court denied the defendant’s motion to change venue because of pretrial publicity. The Court distinguished the case at hand from previous decisions and concluded that given the community’s population (Houston, Texas), the nature of the news stories about the defendant, the lapse in time between Enron’s collapse and the trial, and the fact that the jury acquitted the defendant of a number of counts, a presumption of juror prejudice was not warranted. The Court went on to conclude that actual prejudice did not infect the jury, given the voir dire process.

In this child sexual assault case, the court rejected the defendant’s argument that a statement made by a prospective juror violated his constitutional right to an impartial jury and constituted plain error. Specifically, the defendant argued that the prospective juror’s statement that her uncle was a local defense attorney who had told her his job was to “get the bad guys off” amounted to a comment on the defendant’s guilt from a reliable source. The court found that the statement in question was generic and did not imply any particular knowledge of the defendant’s case or the possibility that the defendant might be guilty.

State v. Maness, 363 N.C. 261 (June 18, 2009)

Trial court did not err in sustaining the prosecutor’s objection to an improper stake-out question by the defense. Defense counsel wanted to ask the juror in this capital case whether the juror could, if convinced that life imprisonment was the appropriate penalty, return such a verdict even if the other jurors were of a different opinion.

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 a case in which the defendant was charged with various crimes related to his shooting of his pregnant wife, the trial court did not err by limiting the defendant’s voir dire of prospective jurors. The charges against the defendant included first-degree murder of his child, who was born alive after the defendant’s attack on her mother but died one month later. Defense counsel attempted to ask prospective jurors about their views on abortion and when life begins, and whether they held such strong views on those subjects that they would be unable to apply the law. The trial court sustained the State’s objection to this questioning. These questions apparently confused prospective jurors as several inquired about the relevancy of their opinions on abortion. The trial court did not abuse its discretion by sustaining the State’s objection to questioning that was confusing and irrelevant.

The trial court did not improperly limit the defendant’s voir dire questioning with respect to assessing the credibility of witnesses and the jurors’ ability to follow the law on reasonable doubt. Because the trial judge properly sustained the State’s objections to the defendant’s questions, no abuse of discretion occurred. Even if any error occurred, the defendant suffered no prejudice.

The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly sustained objections to the defendant’s improper stakeout questions and questions tending to indoctrinate the jurors. Additionally, the trial court did not close the door on the defendant’s inquiry into whether the prospective jurors could fairly assess credibility. Rather, the defendant was permitted to ask similar questions in line with the pattern jury instructions, which were an adequate proxy to gauge a prospective juror’s ability to fairly assess credibility at trial.

The trial court did not abuse its discretion by denying the defendant’s request to be provided, prior to voir dire, with the trial court’s intended jury instructions regarding the killing of an unborn fetus. The defendant wanted the instruction to “clarify the law” before questioning of the jurors. The trial court properly instructed the jury on the born alive rule and killing of an unborn fetus was not an issue in the case.

In this non-capital first-degree murder case, the trial court did not abuse its discretion by preventing the defendant from rehabilitating a juror. During jury selection, the State questioned prospective juror Terrance Copling, who said he was familiar with the defendant’s family, did not know the defendant personally, and could be impartial and fair to both sides. However, when pressed by the State, Copling admitted that his connection to the defendant’s father would “probably cause issues.” The State moved to dismiss Copling for cause. The trial court denied the defendant’s request to rehabilitate and upon questioning by the trial court Copling indicated that because of his connection to the defendant’s family he could not be impartial. The trial court allowed the State’s challenge for cause and excused Copling over the defendant’s objection. The defendant also wanted to rehabilitate prospective juror Clapp, believing that the State’s questions had confused her. The trial court rejected this request and excused Clapp for cause. The defendant was convicted and appealed. The court reasoned that in non-capital cases the trial court has discretion regarding whether to allow rehabilitation during voir dire. Here, although the trial court initially told the defendant that rehabilitation was not permissible in a non-capital case, the trial court later allowed for the possibility of rehabilitation and thus did not establish a blanket ruling against all rehabilitation. It further found that the trial court properly exercised its discretion by denying the defendant’s request to rehabilitate jurors.

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. 

Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on the juror, the trial court determined that there was no cause to remove her. The defendant then requested that he be allowed to use his remaining peremptory challenge, but this request was denied. The court reasoned that the trial court has discretion to re-open voir dire even after the jury has been empaneled. If that happens, each side has an absolute right to exercise any remaining peremptory challenges to excuse the juror.

The trial court committed reversible error by refusing to allow the defendant, after the jury was impanelled, to exercise a remaining peremptory challenge to excuse a juror who had lunch with a friend who was a lawyer in the district attorney's office. Citing State v. Holden, 346 N.C. 404 (1997), and State v. Thomas, 195 N.C. App. 593 (2009), the court held that because the trial court reopened voir dire and because the defendant had not exhausted all of his peremptory challenges, the trial court was required to allow the defendant to exercise a peremptory challenge to excuse the juror. After a lunch break at trial, defense counsel reported that he had seen juror number 8 having lunch with a lawyer from the district attorney's office. Counsel said that if he had known of the juror’s connection with that office, he "probably would have used one of [his] strikes against them." The jurors were returned to the courtroom and asked whether any of them had lunch with a member of the district attorney's office. Juror number 8 indicated that he had done so, but that they had not discussed the case. After removing the other jurors, the trial judge allowed both sides to question juror number 8. Thereafter defense counsel asked that the juror be removed, noting that he had two strikes left. The trial court denied the motion. The court noted that after a jury has been impaneled, further challenge of a juror is a matter within the trial court's discretion. However, when the trial court reopens voir dire, each party has the absolute right to exercise any remaining peremptory challenges. In this case, because the trial court reopened voir dire, the defendant had an absolute right to exercise his remaining challenges.

State v. Crump, 376 N.C. 375 (Dec. 18, 2020)

The defendant was indicted for multiple charges of armed robbery, kidnapping, possession of firearm by a felon, assault with a deadly weapon with intent to kill, and assaulting a law enforcement officer with a firearm. The charges arose out of the robbery of an illegal poker game and the intended robbery of a second game. The second game was a set-up by one of the victims from the first game, who called 911 when the robbers arrived. Officers responding to the 911 call encountered the defendant in a car parked outside the office complex where the fake game was to be held, and a shootout ensued. The defendant was apprehended after a low-speed chase involving several law-enforcement agencies, and went to trial on all charges. Three of the charges were dismissed at trial by the court, and the jury acquitted the defendant of two others, but he was convicted of the remaining charges and received thirteen consecutive judgments totaling 872 to 1,203 months incarceration. The defendant appealed his conviction. A more detailed summary of the facts of this case and a discussion of the Court of Appeals’ holding regarding the application of the statutory felony disqualification provisions to the defendant’s self-defense claims can be found here: John Rubin, “A Lose-Lose Situation for ‘Felonious’ Defendants Who Act in Self-Defense,” N.C. Criminal Law Blog, May 1, 2018.

The Court of Appeals unanimously affirmed the conviction, but the state Supreme Court granted discretionary review to consider whether the trial court erred by restricting the defendant’s voir dire of prospective jurors on issues of race, implicit bias, and police shootings of black men. Concluding that the “the trial court did abuse its discretion and that the trial court’s improper restrictions on defendant’s questioning during voir dire did prejudice defendant,” the higher court reversed the conviction.

During voir dire, the trial court sustained objections to the defendant’s attempts to ask prospective jurors about “the possibility that they harbored racial biases against African Americans” as well as “their awareness of a case that had recently occurred in Charlotte where a police officer shot and killed an unarmed black man.” On appeal, the defense argued that the questions were relevant to determine whether jurors could be unbiased and fair, while the state argued that the questions were an improper attempt to “stake out” the jurors and secure a forecast of how they would vote. The Supreme Court acknowledged that trial courts have broad discretion to restrict the manner and extent of questioning prospective jurors, but concluded that the trial court erred in this case when it “flatly prohibited” and “categorically denied” all questions about race, bias, and officer shootings of black men. The proposed questions were not an attempt to stake out the jurors, but rather an attempt to determine if any jurors had opinions or biases that would impact their ability to decide the facts of the case. Additionally, since the case involved a dispute over whether the defendant or the officers fired first, as well as what inferences to draw from the defendant’s refusal to immediately surrender after the shooting, the error was prejudicial because it impacted the defendant’s ability to identify and challenge any jurors who “might struggle to fairly and impartially determine whose testimony to credit, whose version of events to believe, and, ultimately, whether or not to find defendant guilty.” Because it held that the exclusion of these issues during voir dire was prejudicial error warranting reversal, the Supreme Court did not reach the remaining issue of whether there must be a causal nexus between the use of defensive force and the felonious conduct that would bar a self-defense claim under G.S. 14-51.4. 

Justice Davis dissented, joined by Justices Newby and Morgan. The dissent would have held that the limited series of questions rejected by the trial court did not establish that all inquiry into issues of potential juror bias was prohibited, and also would have found that the only reason offered at trial for these questions was to gauge how jurors might assess the defendant’s state of mind while fleeing the scene, rather than for the purpose of identifying potential bias on the part of the jurors as argued on appeal. The majority responded that both issues were addressed by viewing the questions in context and considering the entire record of the voir dire.

The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly sustained objections to the defendant’s improper stakeout questions and questions tending to indoctrinate the jurors. Additionally, the trial court did not close the door on the defendant’s inquiry into whether the prospective jurors could fairly assess credibility. Rather, the defendant was permitted to ask similar questions in line with the pattern jury instructions, which were an adequate proxy to gauge a prospective juror’s ability to fairly assess credibility at trial.

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