In this Onslow County case, the Supreme Court granted certiorari to review defendant’s post-conviction motion for appropriate relief (MAR), and an amendment to the MAR, after receiving a sentence of death for first-degree murder. The Court affirmed the superior court’s judgment denying defendant’s MAR, concluding that defendant’s claim of gender-based discrimination in jury selection was not preserved for review and barred by G.S. 15A-1419. Defendant’s co-defendant for this murder also appealed, and the Supreme Court considered that appeal in State v. Sims, 297PA18, issued contemporaneously with this opinion.

In January of 2000, defendant and a co-defendant kidnapped and killed an eighty-nine-year-old woman. In 2001 defendant was tried for murder, receiving the death penalty. The Supreme Court upheld this conviction on defendant’s appeal. Subsequently defendant filed his initial MAR, which he then amended in 2012 by arguing unconstitutional gender-based discrimination at his trial based on the affidavit of one of the State’s prosecutors at defendant’s trial. This affidavit referenced a specific female juror who was struck on the basis of her gender, as the prosecution was attempting to get more male jurors on the panel. The superior court determined that defendant was in a position to raise the gender-based discrimination claim on direct appeal and his MAR claim was barred. After this, an evidentiary hearing was held in 2022, and the superior court reviewing the MAR of defendant and his co-defendant found gender-based discrimination under J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). The procedural history and findings of the superior court are detailed in pages 6-14 of the slip opinion.

Taking up defendant’s petition for certiorari, the Supreme Court first reviewed whether defendant had preserved his claim “that the prosecutor impermissibly struck a juror on the basis of gender.” Slip Op. at 16. The Court concluded defendant failed to preserve his claim, as constitutional issues not raised on direct appeal are waived, and even if defendant preserved his J.E.B. claim, it was procedurally barred under G.S. 15A-1419. Defendant argued that he was not able to raise his discrimination claim on direct appeal because he was not yet in possession of the prosecutor’s affidavit, meaning he did not have sufficient evidence to adequately raise the claim at that time. The Court rejected this argument, as “[t]he jury selection transcript reveals pointed statements baldly communicated by the State—in open court—that it wanted to place more men on the jury at the expense of seating women.” Id. at 20. Additionally, the Court noted “the transcripts and questionnaires provide the basis for a statistical analysis of the State’s use of peremptory strikes based on gender.” Id. at 22. Essentially, the Court held that the evidence of discrimination was obvious from the proceedings and defendant could have performed the statistical analysis supporting the discrimination claim without the prosecutor’s affidavit; defendant’s own statistical expert performed the analysis during the MAR evidentiary hearing with this information.

The Court also rejected defendant’s argument that the later discovery of the prosecutor’s affidavit represented good cause under G.S. 15A-1419(c) to overcome the mandatory procedural bar. As noted above, the Court did not agree that the prosecutor’s affidavit was essential to raising the claim, as “[i]t is evident from the cold record that the remarks made by the State during voir dire put defendant on notice that he needed to raise a J.E.B. objection.” Id. at 27. While acknowledging that the discriminatory behavior in this matter was reprehensible, the Court held that statutory and procedural requirements barred consideration of defendant’s claim as he did not raise it on direct appeal.

Justice Earls, joined by Justice Riggs, concurred in the result only, writing separately to note that precedent constrained the possible methods of post-conviction relief in situations like the current case. Id. at 31. 

In this New Hanover County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for lack of evidence he was the perpetrator; (2) overruling his objection that the trial court did not make necessary findings on reliability for expert testimony; (3) denying his post-conviction motion for appropriate relief (MAR) based upon newly-discovered evidence; (4) admitting evidence of his prior removal of an electronic monitoring device; and (5) overruling his objections to the State’s closing argument. The Court of Appeals found no error. 

In January of 2016, officers responded to a call about a fourteen-year-old being shot. While accompanying the ambulance to the hospital, they received a report of additional shots fired, and diverted to the scene, where the officers found defendant running from the area. After arresting defendant, officers found he was carrying a 9mm handgun. The State Crime Laboratory later matched the bullet that killed the victim to this handgun. Defendant was subsequently convicted and appealed. 

Taking up defendant’s argument (1), the Court of Appeals explained that because the evidence that defendant was the perpetrator was circumstantial, proof of motive, opportunity, and means were necessary to support the inference that defendant committed the crime. Here, the State admitted evidence that the shooting was in retaliation for a previous shooting two weeks prior, and that the shell casing found at the scene, the bullet in the victim, and defendant’s statements to police all tied him to the murder. As a result, “[a] reasonable juror could find Defendant had the opportunity and means to commit the murder.” Slip Op. at 8. 

Turning to (2), the court noted that trial courts enjoy wide latitude when determining admissibility of expert testimony. Here, defendant argued that the State’s firearm expert did not utilize “reliable principles and methods” in violation of Rule of Evidence 702, as the State’s expert utilized a micro-analysis test instead of a lands and grooves test on the projectile, a method disputed by the defense’s expert. Id. at 10. The court found no abuse of discretion as “[t]he superior court made supported findings to resolve purported contradictions between the competing experts.”

Reviewing (3), the court explained defendant’s newly discovered evidence concerned the history of the State’s expert receiving a complaint from a superior court judge as well as a mistake during a firearm examination in a previous case. The court noted that the State was not in possession of the expert’s personnel records and was not aware of the purported mistake, and under Brady v. Maryland, 373 U.S. 83 (1963), the State had not suppressed material evidence. The court further noted that defendant was not entitled to a new trial as the newly discovered evidence “merely questions the expert witness’ past, not the State’s evidence at this trial.” Id. at 14. 

Arriving at (4), the court explained that the trial court’s decision to admit evidence of defendant removing his electronic monitoring device fifteen days before the shooting under Rule of Evidence 404(b) was not error. Defendant “disabled his electronic monitoring device approximately an hour after another murder was committed two weeks earlier in the same area of Wilmington . . . [t]he evidence and timing of these incidents and Defendant’s actions are part of the chain of events that contextualize the crime.” Id. at 16. 

Finally, the court dispensed with (5), explaining that the prosecutor’s closing argument did not shift the burden onto defendant, as the statements merely referenced defendant’s failure to refute the evidence admitted at trial. Likewise, the prosecutor’s reference to a link between the murder and retaliation for a previous murder was not an improper reference to “gangs” and was supported by evidence and testimony admitted at the trial.