Smith's Criminal Case Compendium
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State v. Tucker, 113A96-4, ___ N.C. ___ (Dec. 15, 2023)
In this Forsyth County case, the Supreme Court affirmed the denial of defendant’s post-conviction motions for appropriate relief (MARs) based upon newly discovered evidence relevant for his Batson claim. The Supreme Court held that defendant’s Batson claim was properly denied under G.S. 15A-1419.
Defendant was convicted for the murder of a security guard in December of 1994 and sentenced to death; details of the underlying case are in defendant’s appeal of the conviction, State v. Tucker, 347 N.C. 235, 239–40 (1997). During jury selection, defendant raised Batson objections to the State’s peremptory strikes of two black prospective jurors and one black prospective alternate juror. Pages 3-9 of the Slip Opinion contain relevant excerpts of the exchanges with these prospective jurors. The trial court allowed the State to provide race-neutral reasons for striking the potential jurors, but “[w]ith each of the three prospective jurors at issue, the trial court never characterized the proceeding as a full Batson hearing, nor was pretext argued or ruled upon.” Slip Op. at 15. The trial court overruled defendant’s Batson objections.
After defendant’s conviction and the imposition of a death sentence, he appealed, but did not raise a Batsonissue during his direct appeal or during his first MAR. Defendant filed several subsequent MARs and a petition for writ of habeas corpus in federal court. The current opinion concerns MARs filed and amended in 2017, 2019, and 2020, where defendant raised a Batson issue based upon newly discovered evidence: (1) a CLE handout entitled “BATSON Justifications: Articulating Juror Negatives,” and (2) a statistical study by law professors at Michigan State University reviewing data concerning jury selection in North Carolina capital cases between 1990 and 2010. Id.at 17-18. Defendant argued that (1) the CLE handout contained language used by one prosecutor when giving race-neutral reasons for striking the three potential jurors, and (2) the study showed a history of discrimination by “establish[ing] a pattern of race-based strikes by both prosecutors in this case.” Id. at 19. In August of 2020, the MAR court entered an order denying the three MARs based on the alleged new evidence; this order forms the basis of the current appeal and opinion.
The Supreme Court granted defendant’s petition for writ of certiorari to review the MAR court’s order, and began by examining the procedural bar to post-conviction proceedings in G.S. 15A-1419. To prevail under the exception provided by G.S. 15A-1419(b), defendant needed to show “good cause” as provided under subsection (c) for why he did not raise his Batson issue during his previous appeal. The Court then set out the scope of consideration for defendant’s Batson claim. After defendant’s Batson objection, the trial court ruled that defendant failed to make the required prima facie showing of purposeful discrimination (step one of Batson), and “[t]he Batson inquiry should have ended at that point, and it was error for the trial court to direct the State to place its race-neutral reasons on the record.” Id. at 33. Because the relevant consideration was step one of Batson, defendant’s claim of a “good cause” exception had to relate to that first step. The Court explained why this was an issue for defendant:
[T]he bulk of defendant’s argument ignores step one of the Batson inquiry and focuses on pretext at step three, which is not the pertinent issue as set forth above. Because defendant offers the CLE handout and the MSU study as “newly discovered evidence” of purposeful discrimination and pretextual reasons proffered by the State in striking [the potential jurors], defendant’s purported “newly discovered” evidence does not address his failure to establish a prima facie case at step one.
Id. at 35.
Parsing the two individual exhibits, the Court looked to (1) the CLE handout, noting “because review of the Batson issue here is limited to step one, the CLE handout listing various race-neutral reasons for peremptory challenges at step two is irrelevant.” Id. at 37. Observing that the handout was simply a list of relevant caselaw presented during a CLE, the Court pointed out “mere knowledge of the state of the law under Batson does not raise any inference of discriminatory intent.” Id. at 42. Since defendant and his counsel could have found the cited cases themselves, and information on the handout could not represent discriminatory intent, the Court rejected any “good cause” argument.
Taking up (2) the study, the Court noted the “the MSU study was created to assist capital defendants, including this defendant, preparing to file under the [Racial Justice Act].” Id. at 47. This led the Court to observe that “the MAR court correctly concluded that the study was ‘not newly discovered’ but ‘newly created.’” Id. at 47. The Court pointed out that the relevant historical data related to cases was already available and could have been complied by defendant’s counsel. Acknowledging the potential effort involved, the Court pointed out “[t]hat gathering such information may have been difficult or time consuming does not change its character.” Id. at 48. The Court also rejected the use of cases decided subsequent to defendant’s trial and flagged other issues with the structure of the study, agreeing with the MAR court that " the MSU study assumed racial animus in cases in which defendants did not make any such claim, or in which the trial court or appellate courts did not make or sustain any such findings.” Id. at 50. Concluding that allowing a defendant to wait until a third-party had analyzed evidence in a favorable manner would create never-ending post-conviction proceedings, the Court said:
Here, the raw data used to construct the study could have been discovered by defendant’s exercise of reasonable diligence. To the extent that the MSU study analyzed and presented previously existing data in a manner that defendant now believes is more persuasive for his claim, it fails to qualify as newly discovered evidence. The “factual predicate” contemplated by [G.S.] 15A-1419(c) is either available or unavailable to a defendant—it is not a matter of creative packaging.
Id. at 56. The Court also rejected defendant’s argument that North Carolina caselaw from after his conviction changed the applicable standard for Batson claims. Finally, the Court held that State v. Burke, 374 N.C. 617 (2020), a case considering a MAR filed under the Racial Justice Act, did not apply to defendant’s current case, as his Racial Justice Act MARs were not before the Court.
Justice Riggs did not participate in the consideration or decision of the case.
Justice Earls dissented and would have held that the procedural bar did not apply to defendant’s claim, allowing remand to the trial court for consideration of the Batson claim. Id. at 71.