State v. Bennett, ___ N.C. App. ___, 2022 NCCOA 212 (Apr. 5, 2022)

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.