I. Factual and Procedural Background
On 24 September 2009, a Lee County grand jury indicted Defendant, a Black male, on one count of first degree murder and one count of robbery with a dangerous weapon. On 30 November 2009, the case was declared a capital offense. At arraignment, Defendant pled not guilty. On 12 July 2012, defense counsel filed a pretrial motion entitled, "Motion to Prohibit District Attorney From Peremptorily Challenging Prospective Black Jurors." In it, Defendant requested the trial court "prohibit the District Attorney from exercising peremptory challenges as to potential black jurors, or in the alternative, to order that the District Attorney
The case was called for trial 5 May 2014. On the jury questionnaires, prospective jurors were asked to answer "yes" or "no" to the question, "Have you or a family member ever been charged with a crime?" Juror 2 answered "no," Juror 10 answered "yes," Juror 11 answered "no," and Juror 12 answered "yes."
On the second day of jury selection, 13 May 2014, prospective Juror 2 was called alone into the jury box. Juror 2 is a seventy-year-old black male who serves as a pastor and works as a security officer. He described his "thoughts about the death penalty" as follows:
Well, I don't agree with the death penalty because of the fact that ... my religion says, "Thou Shalt Not Kill," and I don't want to be responsible for taking somebody's life. So I dоn't agree with the death penalty under no circumstances. But now, as far as going to jail for life, I would agree to that, but not the death penalty.... I can't preach one thing and then turn around and do something else.
Juror 2 elaborated, "I'm totally against the death penalty, but maybe in some cases I might would change my mind," such as a defendant who "chop[ped] [a person] into
Juror 10 was called to the jury box on 4 June 2014, the seventeenth day of jury selection. Juror 10 is a thirty-one-year-old black female who works as a line technician. On voir dire , the State asked her which crimes she or her family members were charged with. She did not state she was convicted of any crimes, though her records indicated she was convicted of three counts of driving without a liсense and charged with felony possession of cocaine and possession of drug paraphernalia. When asked about her thoughts about the death penalty, she stated, "no one has the right to take another person's life," because she believes in the Commandment, "Thou Shalt Not Kill."
The State used a peremptory challenge to strike Juror 10 and defense counsel raised a
Batson
challenge. The trial court found Defendant did not establish a
prima facie
case but gave "the State an opportunity to
The Court finds that [the criminal] record certainly provides an additional basis for the State's exercise of a peremptory challenge. However, the Court also finds that the State's bases for the exercise of a peremptory challenge to this juror were adequate, race-neutral and nondiscriminatory and non-pretextual, even in the absence of any evidence of the [juror] having any criminal record herself.
Juror 11 was called to the jury box on 9 June 2014, the twentieth day of jury selection. Juror 11 is a sixty-four-year-old black male who works for the North Carolina Department of Transportation. On voir dire , he stated his great-niece worked for a potential witness, Mr. Webb, Defendant's former attornеy. Juror 11 stated he spoke with Mr. Webb on multiple occasions. Juror 11 also worked with Defendant's grandfather in the 1960s, whom he last saw twelve to fifteen years prior to trial. Although he did not indicate so on the jury questionnaire, Juror 11 was familiar with five names on the witness lists. The record shows Juror 11 pled guilty to four prior charges regarding worthless checks with restitution of $3,869.56 in one of those instances. When asked about the worthless check charges, Juror 11 stated, there were "two or threе ... and the bank would call me, notify me, I [would] go put the money there or what have you." The record also shows Juror 11 was twice charged with driving while his license revoked, though he only referred to a seatbelt violation when the State asked him about previous traffic offenses on voir dire .
The Court finds that the defendant-bear in mind the defendant's low hurdle for the defendant to get over, has stated a prima facie case with respect to a Batson challenge. However, the Court finds that the State has рrovided and acted upon race-neutral, non-discriminatory and non-pretextual reasons for exercising its peremptory challenge.... [I am] [g]etting a little bit concerned about the rate of challenges, so I just draw that to the attention of counsel. Certainly, as I've indicated, there was ample reason to challenge [Juror 11] and all of the previous jurors that have been struck by the State as well.
Juror 12 was called to the jury box on 11 June 2014, the twenty-second day of jury selection. Juror 12 is a forty-nine-year-old white male who is unemployed and previously worked in construction. He did "computer work" for potential witness Mr. Webb in the past, and Mr. Webb previously represented his wife for a traffic violation. Juror 12 had two worthless check charges with restitution of $10.00 and $20.00 respectively, and was previously charged with assault by pointing a gun and driving without a license. Juror 12 answered directly to all questions regarding previous criminal charges.
The State passed on Juror 12, prompting defense counsel to re-argue its
Batson
challenge regarding Juror 11. Defense counsel argued, "the State is now passing on a white juror when that juror ... appears to have the same issues that the State used to excuse African American jurors." The State responded and distinguished Jurors 11 and 12, and
The Court's prior rulings with respect to the Batson challenge to [Juror 11] are confirmed in all respects. The previous findings are confirmed. The defendant's ... renewed Batson challenge is denied. State has offered race-neutral reasons for challenging [Juror 11] peremptorily. Those reasons are non-discriminatory and are non-pretextual.
At the conclusion of jury selection, four out of the fifteen chosen jurors (26.6%) were African Ameriсan, ten (66.7%) were Caucasian, and one (6.7%) was White American Indian. At trial, after the close of the evidence, the jury that heard the case consisted of three African Americans, eight Caucasians, and one White American Indian. The alternate jurors consisted of one African American and two Caucasians. The record shows the parties questioned eighty-six prospective jurors on voir dire . Twenty-one (24.4%) of those prospective jurors identified themselvеs as African American, fifty-nine (68.6%) as White, one (1.17%) as Asian, one (1.17%) as Hispanic, one (1.17%) as Multiracial, one (1.17%) as Spanish, one (1.17%) as White American Indian, and one (1.17%) as White-Hispanic Mix.
After opening statements, the State presented evidence of two eyewitnesses who identified Defendant, two expert witnesses, statements made by Defendant to police, and photos of the crime scene. The following is a summary of the evidence taken in the light most favorаble to Defendant.
Asmar and Mustafa talked at the front counter when Defendant entered the store. Immediately, Defendant walked towards the counter, pulled out a .38 caliber revolver, and shot at Asmar and Mustafa multiplе times. Four bullets struck Asmar in the chest, left shoulder, and both arms. Defendant demanded cash and stated, "I need hundreds." Defendant shot Asmar again as Asmar walked towards the exit. Defendant shot Mustafa in the neck, and Mustafa gave Defendant all of the money in the cash register and his pockets. The entire exchange lasted thirty seconds. Defendant walked out of the store and flashed a peace sign at A.J. again before walking into the nearby woods.
Thereafter, Mustafa rushed out of the store and called emergency medical services ("EMS"). Mustafa asked A.J. which direction Defendant fled, and Mustafa relayed Defendant's whereabouts to the 911 dispatcher. Sanford police officers and EMS personnel arrived minutes later. Paramedics took Asmar to the hospital where he later died. An autopsy revealed Asmar was shot four to five times.
Lead investigator Detective Keith Rogers of the Sanford Police Deрartment and Detective Eric Pate presented photo lineups to A.J. and Mustafa separately. Both A.J. and Mustafa identified Defendant as the robber.
Five hours later, police arrested Defendant and took him to the police station. Detective Rogers interviewed Defendant and Defendant claimed he was not involved in the robbery. Later, Defendant stated he accompanied another person who shot the men. Ultimately, Defendant confessed and told police he decided to rob the store but the gun accidentally went off during the robbery when Asmar reached for it. Defendant told officers he got the gun from a man named "Cougar" to rob the store, and he and Cougar split the stolen money. Defendant told police he "didn't want to kill anybody."
On 15 July 2014, the jury convicted Defendant of first degree murder and robbery with a firearm. The trial court imposed a sentence of life without parole. Defendant timely entered his notice of appeal.
"The 'clear error' standard is a federal standard of review adopted by our courts for appellate review of the
Batson
inquiry."
State v. James
,
III. Analysis
In a capital murder cаse, the defendant and State are each afforded fourteen peremptory challenges during jury selection. N.C. Gen. Stat. § 15A-1217(a). However, Article I, Section 26 of the Constitution of North Carolina and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution "prohibit race-based peremptory challenges during jury selection."
James
,
First, the defendant must make a prima fаcie showing that the state exercised a race-based peremptory challenge. If the defendant makes the requisite showing, the burden shifts to the state to offer a facially valid, race-neutral explanation for the peremptory challenge. Finally, the trial court must decide whether the defendant has proved purposeful discrimination.
Id.
at 527,
The burden of presenting a
prima facie
showing the State exercised a race-based peremptory challenge is a low hurdle for defendants.
James
,
When the State volunteers its reasons for striking a juror, or the trial court requires the State to give such reasons, prior to making a finding, "the question of whether the defendant has made a
prima facie
showing becomes moot, and it becomes the responsibility of the trial court to make appropriate findings on whether the stated reasons are credible, nondiscriminatory basis for the challenges or simply pretext."
State v. Williams
,
After the defendant's
prima facie
showing, the burden shifts to the State to give race-neutral reasons for its strike. Under this second prong, the State must articulate legitimate, clear, and specific reasons which provide a race-neutral explanation for exercising the challenge.
Jackson
,
Following the State's rebuttal, the defendant has a right of surrebuttal to show the State's race-neutral reasons are merely pretext.
Porter
,
(1) the susceptibility of the particular case to racial discrimination; (2) whether similarly situated whites were accepted as jurors; (3) whether the [party at issue] used all of its peremptory challenges; (4) the race of the witnesses in the case; (5) whether the early pattern of strikes indicated a discriminatory intent; and (6) the ultimate racial makeup of the jury. In addition, [a]n examination of the actual explanations given by the [party at issue] for challenging black veniremen is a crucial part of testing defendant's Batson claim. It is satisfactory if these explanations have as their basis a "legitimate hunch" or "past experience" in the selection of juries.
James
,
Recently, the United States Supreme Court reversed the Georgia Supreme Court and found the prosecution engaged in purposeful discrimination in a murder case involving a Black male defendant and an elderly white female victim.
See
Foster v. Chatman
, --- U.S. ----,
Merely because some of the observations regarding each stricken venireperson may have bеen equally valid as to other members of the venire who were not challenged does not require finding the reasons were pretextual. A characteristic deemed to be unfavorable in one prospec-tive juror, and hence grounds for a peremptory challenge, may, in a second prospective juror, be outweighed by other, favorable characteristics.
Porter
,
Here, the two victims and the eyewitness in this case are Palestinian and Defendant is black. The State exercised a peremptory strike against Juror 2, a black male, who was questioned immediately following a third prospective juror, who was also black and seated on the jury. Whеn questioned about his thoughts concerning the death penalty, Juror 2 stated he would not agree with the death penalty under any circumstances, elaborating he was a pastor and agreeing with the death penalty would make him a hypocrite, and that he might hypothetically agree to the death penalty if a defendant chopped someone into pieces and burned them. Our Supreme Court held that "[r]eservations of a juror concerning his or hеr ability to impose the death penalty constitute a racially neutral basis for exercising a peremptory challenge."
Cummings
,
After reviewing the record, it is clear the trial court properly considered the totality of the circumstances, the credibility of the State, and the context of the peremptory strikes against Jurors 2, 10, and 11.
Cofield
,
IV. Conclusion
For the foregoing reasons we hold the trial court did not commit error.
NO ERROR.
Judges McCULLOUGH and DIETZ concur.