State v. Campbell ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-998-2
Filed: 21 July 2020
Columbus County, No. 15 CRS 50590
STATE OF NORTH CAROLINA
v.
ANTIWUAN TYREZ CAMPBELL
Appeal by defendant from judgment entered 2 August 2017 by Judge Douglas
B. Sasser in Columbus County Superior Court. Originally heard in the Court of
Appeals 19 September 2019, and opinion filed 21 January 2020 upholding
defendant’s convictions, __ N.C. App. __, 838 S.E.2d 660 (2020). Remanded to the
Court of Appeals by Special Order of the North Carolina Supreme Court entered
5 June 2020 for reconsideration in light of State v. Hobbs, __ N.C. App. __, 841 S.E.2d
492 (2020), and State v. Bennett, __ N.C. __, 843 S.E.2d 222 (2020).
Attorney General Joshua H. Stein, by Assistant Attorney General Peter A.
Regulski, for the State.
Geeta N. Kapur for defendant-appellant.
ARROWOOD, Judge.
I. Appellate History
We review the instant case on remand from the Supreme Court of North
Carolina. In his initial appeal before this Court, Antiwuan Tyrez Campbell
(“defendant”) appealed from judgment entered against him for first-degree murder.
STATE V. CAMPBELL
Opinion of the Court
Defendant argued that the trial court erred by concluding that he failed to establish
a prima facie claim of racial discrimination in jury selection, as set forth by Batson v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). In our first opinion, we denied the
State’s motion to dismiss defendant’s appeal for insufficiency of the record and found
no error in the trial court’s holding that defendant did not make a prima facie claim
pursuant to Batson. Campbell, __ N.C. App. at __, __, 838 S.E.2d at 663, 666 (2020).
Our Supreme Court granted defendant’s Petition for Writ of Certiorari and
remanded the appeal to this Court by Special Order for review of our prior ruling, in
light of the Supreme Court’s recent decisions in Hobbs, __ N.C. App. __, 841 S.E.2d
492, and Bennett, __ N.C. __, 843 S.E.2d 222. Based upon our review of Hobbs and
Bennett and their application to the facts of the instant case, we reach the same result
for the reasons set forth below.
II. Background
On 15 April 2015, defendant was indicted for the first-degree murder of Allen
Wilbur Davis, Jr., as well as the second-degree kidnapping of K.J.1 The case came on
for trial in Columbus County Superior Court before the Honorable Douglas B. Sasser
on 24 July 2017. On that date, the trial court addressed several pretrial motions filed
by defense counsel, including “a motion for a complete recordation of all the
proceedings.” Counsel specifically noted that she was “not requesting that [complete
1 A pseudonym is used to protect the juvenile’s privacy.
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STATE V. CAMPBELL
Opinion of the Court
recordation] include jury selection,” and that her motion was “[j]ust for appeal
purposes.” The trial court granted the motion for recordation. Jury selection
commenced the following day. However, as requested by defense counsel, those
proceedings were not recorded.
On the second day of jury selection, as the parties were seating alternate
jurors, defense counsel objected to the State’s use of peremptory challenges, alleging
that they were exercised in a racially discriminatory manner in violation of Batson.
By this point in the proceedings, the State had exercised four peremptory challenges,
three of which were used to strike African American prospective jurors: Ms. Vereen,
Ms. Holden, and Mr. Staton. Defense counsel asserted that “the State . . . has tried
extremely hard for every African-American, to excuse them for cause[,]” adding that
“the last two alternate [African American] jurors . . . excused showed no leaning one
way or the other or indicated that they would not be able to hear the evidence, apply
the law, and render a verdict.” Defense counsel further noted that
[w]e had Ms. Vereen on the front, who the State stayed on
her over and over again, trying to get her removed for
cause, and they finally used a peremptory on her. And then
we move to our alternate, Mr. Staton. [The prosecutor]
tried twice to get him removed for cause.
After considering defense counsel’s argument, the trial court denied defendant’s
Batson challenge.
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STATE V. CAMPBELL
Opinion of the Court
Later that day, however, Judge Sasser stated that “upon further reflection,
although I do not find that a prima facie case has been established for discrimination
pursuant to Batson, in my discretion, I am still going to order the State to proceed as
to stating a racially-neutral basis for the exercise of the peremptory challenges[.]”
The State then offered the following the bases for the exercise of its peremptory
challenges for each of the stricken African American prospective jurors:
1. The first juror, Ms. Vereen, had indicated that she knew Clifton Davis (“Mr.
Davis”) and had dated his brother, both of whom were potential witnesses at
defendant’s trial. Mr. Davis was a friend of defendant, and was allegedly at the scene
with him at the time of the crimes.
2. The second juror, Mr. Staton, was challenged because he “made several
conflicting statements during the State’s questioning to try to ensure if he could be
fair and impartial or not.” Further, he knew K.J.’s mother, who was “a fact witness
and . . . an eyewitness . . . to the kidnapping.”
3. The third juror, Ms. Holden, was stricken because she had been a classmate
of two potential witnesses at defendant’s trial. The State also explained that
an additional reason for the peremptory strike against Ms.
Holden was the fact when she was describing her political
science background and nature as a student, she also was
indicating that she was a participant, if not an organizer,
for Black Lives Matter at her current college with her
professor, and whether or not that would have any implied
unstated issues that may arise due to either law
enforcement, the State, or other concerns we may have.
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STATE V. CAMPBELL
Opinion of the Court
Following the State’s explanation of the bases for the exercise of its peremptory
challenges, the trial court reiterated that it “continues to find . . . that there has not
been a prima facie showing as to purposeful discrimination” in violation of Batson.
At the conclusion of the trial, the jury returned verdicts finding defendant not
guilty of second-degree kidnapping, but guilty of first-degree murder. Defendant
timely appealed.
III. Discussion
Defendant argues that the trial court erred in ruling that he failed to establish
a prima facie showing that the State exercised peremptory challenges in a racially
discriminatory manner, in violation of Batson. The State filed a motion to dismiss
defendant’s appeal. After first disposing of the State’s motion, we turn to the merits
of defendant’s appeal.
A. Motion to Dismiss
The State argues that defendant’s failure to include in the appellate record a
transcript of the jury selection proceedings warrants dismissal of defendant’s appeal.
We disagree and again deny the State’s motion to dismiss on this ground.
The record in this case is minimally sufficient to permit appellate review. We
disagree with the proposition that, in order to be entitled to review of a Batson claim,
a defendant must include a verbatim transcript of jury selection in the record. We
find no support in our statutes or case law which lead to such a result. We hasten to
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Opinion of the Court
add that if a defendant anticipates making a Batson discrimination argument, it is
extremely difficult to prevail on such grounds without a transcript of jury selection.
A three-step process has been established for evaluating
claims of racial discrimination in the prosecution’s use of
peremptory challenges. First, defendant must establish a
prima facie case that the peremptory challenge was
exercised on the basis of race. Second, if such a showing is
made, the burden shifts to the prosecutor to offer a racially
neutral explanation to rebut defendant’s prima facie case.
Third, the trial court must determine whether the
defendant has proven purposeful discrimination.
State v. Cummings, 346 N.C. 291, 307-308, 488 S.E.2d 550, 560 (1997) (citations
omitted), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).
In determining whether a defendant has established a prima facie case of
discrimination, our Supreme Court has noted that “[s]everal factors are relevant[.]”
State v. Hoffman, 348 N.C. 548, 550, 500 S.E.2d 718, 720 (1998).
Those factors include the defendant’s race, the victim’s
race, the race of the key witnesses, questions and
statements of the prosecutor which tend to support or
refute an inference of discrimination, repeated use of
peremptory challenges against [African Americans] such
that it tends to establish a pattern of strikes against
[African Americans] in the venire, the prosecution’s use of
a disproportionate number of peremptory challenges to
strike [African American] jurors in a single case, and the
State’s acceptance rate of potential [African American]
jurors.
Id. (quoting State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995)).
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STATE V. CAMPBELL
Opinion of the Court
A verbatim transcript need not be furnished in every case for us to review
whether a defendant established a prima facie Batson claim before the trial court.
See State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409, 412 (1989)
(acknowledging even without a verbatim transcript of jury selection, the record
contained “the barest essentials” to permit review: “the racial composition of the jury,
the number of [African American] jurors excused, and the State’s proffered reasons
for their exclusion. The record also contains defense counsel’s response to the
prosecutor’s explanations and the trial judge’s conclusions.”). Yet a defendant must
include some evidence in the record, in one form or another, shedding light on the
aforementioned factors to enable appellate review of a Batson claim. A narrative
summary of voir dire proceedings, made during the Batson hearing and agreed to by
defense counsel, the prosecutor, and the trial court, as was done here, may suffice to
permit review. Moreover, the narrative summary in this case was minimally
sufficient to enable review.
While we believe that such a narrative must contain more relevant information
in order to prevail, as discussed infra in our determination on the merits, unlike the
dissent, we find remand to be unnecessary. The dissent opines that the trial court
erred in failing to make specific findings of fact as to the Quick factors in its
determination that defendant had not made a prima facie showing, and believes
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STATE V. CAMPBELL
Opinion of the Court
remand for entry of such findings to be appropriate.2 We disagree. The trial court’s
findings on defendant’s Batson claim were indeed conclusory: “[A]t this point, the
Court does not find that the State’s exercise of peremptory challenges has even
reached [the very low hurdle for making a prima facie claim] yet. . . . [T]he Court has
found at this point there’s not a prima facie showing, and the Court will deny the
Batson challenge.”
Nonetheless, remand is inappropriate. While the absence of a transcript of
voir dire does not preclude our review, it does preclude remand in the instant case.
“[T]he failure of a trial court to find facts is not prejudicial where there is no ‘material
conflict in the evidence on voir dire.’ ” Sanders, 95 N.C. App. at 500-501, 383 S.E.2d
at 413 (emphasis in original) (quoting State v. Riddick, 291 N.C. 399, 408, 230 S.E.2d
506, 512 (1976)). In Sanders, where the trial court entered a similar conclusory
finding,
we [were] forced to assume that no material difference in
fact existed since the defendant failed her duty to assure
the availability of a jury voir dire transcript for our review.
Thus, the trial judge’s failure to make adequate factual
findings d[id] not constitute reversible error. Further, the
defendant’s failure to secure a voir dire transcript ma[de]
remand for further findings by the trial judge pointless.
Without such transcript, we still would be unable to
determine whether the trial judge’s [new] findings had a
basis in fact.
2 We note that our Supreme Court’s recent decisions in Hobbs and Bennett do not support this
proposition. Nor do they address what findings are necessary in an order ruling that a defendant has
not made a prima facie Batson claim, let alone in the instant circumstances where the record of jury
selection is only minimally sufficient to permit our review.
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Opinion of the Court
Id. at 501, 383 S.E.2d at 413. The Court then proceeded to review the trial court’s
conclusory finding based “only [on] the information adduced at the Batson inquiry.”
Id. Such is the appropriate course of action in this case.
B. Reviewing the Merits of Defendant’s Batson Claim
Reviewing defendant’s Batson claim based upon the transcript of the trial
court’s hearing on the matter, we find no error.
“[T]he State’s privilege to strike individual jurors through peremptory
challenges[ ] is subject to the commands of the Equal Protection Clause.” Batson, 476
U.S. at 89, 90 L. Ed. 2d at 82. “When the government’s choice of jurors is tainted with
racial bias, that overt wrong casts doubt over the obligation of the parties, the jury,
and indeed the court to adhere to the law throughout the trial.” Miller-El v. Dretke,
545 U.S. 231, 238, 162 L. Ed. 2d 196, 212 (2005) (internal quotation marks,
alterations, and citation omitted). When a defendant makes such an allegation, the
trial court is obligated to address defendant’s claim with the three-step analysis set
forth in Cummings, 346 N.C. at 307-308, 488 S.E.2d at 560, detailed supra part A.
The trial court’s orders concerning jury selection are entitled to deference on
review. See State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997) (noting that
the trial court is afforded deference on jury selection rulings because the trial court
has “the opportunity to see and hear a juror and has the discretion, based on its
observations and sound judgment, to determine whether a juror can be fair and
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STATE V. CAMPBELL
Opinion of the Court
impartial”) (citation omitted). Thus, we “must uphold the trial court’s findings unless
they are clearly erroneous.” State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823,
829 (1998) (internal quotation marks and citation omitted).
“[W]hen a trial court rules that the defendant has failed to establish a prima
facie case of discrimination, this Court’s review is limited to a determination of
whether the trial court erred in this respect.” State v. Bell, 359 N.C. 1, 12, 603 S.E.2d
93, 102 (2004) (citation omitted), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094
(2005). However, an exception to this limited scope of review applies where the
subsequent proceedings of the trial court render moot its initial determination that a
defendant has not established a prima facie Batson claim. See Hobbs, __ N.C. App.
at __, 841 S.E.2d at 499-501 (citations omitted). In such cases, our review proceeds
to the remaining steps of the Batson inquiry. Id.
When the State “volunteers [its] reasons for the peremptory challenges in
question before the trial court rules [on] whether the defendant has made a prima
facie showing, . . . 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 proffered explanation is nondiscriminatory.
State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996) (citations omitted),
cert. denied, 519 U.S. 1061, 136 L. Ed. 2d 618 (1997).
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STATE V. CAMPBELL
Opinion of the Court
This result does not necessarily follow where the State provides its race-
neutral reasons for exercising its peremptory challenges only when required to do so
by the trial court after a ruling that no prima facie claim has been made. As noted
by our Supreme Court in its recent decision in Hobbs, two results may follow in such
instances. Where the trial court rules that a defendant has not made a prima facie
Batson claim, proceeds to require the State to provide its nondiscriminatory reasons
for its peremptory challenges, and then enters findings approving of the State’s
offered reasons, step one of the Batson inquiry is rendered moot. Hobbs, __ N.C. App.
at __, 841 S.E.2d at 500-501 (citations omitted).
In Hobbs, the trial court determined that the defendant had not made out a
prima facie Batson claim. Id. at __, 841 S.E.2d at 496. The court then asked the
State, for purposes of the record, to explain its use of peremptory challenges against
the African American jurors it had excused thus far. Id. After the State offered its
reasons, the trial court gave the defendant an opportunity to rebut the State’s
explanations and argue that they were pretextual. Id. The trial court characterized
the proceedings as “a full hearing on the defendant’s Batson claim.” Id. Following
the hearing, the court made extensive oral findings in support of an alternate ruling
that the State’s offered reasons for the challenges were not pretextual. Id. at __, 841
S.E.2d at 496-97. Our Supreme Court held that these steps taken by the trial court
after its initial ruling that the defendant had not established a prima facie Batson
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Opinion of the Court
claim rendered the initial ruling moot. Id. at __, 841 S.E.2d at 500-501. Thus, the
Court engaged in full review of the trial court’s findings on the State’s offered reasons
and the defendant’s contention that they were pretextual. Id.
On the other hand, where the trial court rules that a defendant has not made
a prima facie Batson claim, proceeds to require the State to provide its
nondiscriminatory reasons for its peremptory challenges, and then does not make any
findings assessing the veracity of the State’s explanations, step one of the court’s
Batson inquiry is not rendered moot. See Hoffman, 348 N.C. at 551-52, 500 S.E.2d at
721.
Here, the trial court’s treatment of defendant’s Batson claim more closely
resembles the proceedings in the Hoffman line of cases than in Hobbs. The State only
offered the nondiscriminatory bases for its peremptory challenges after the trial court
required it to do so, after the court’s ruling that defendant’s prima facie claim failed.
Unlike Hobbs, here the court did not allow defense counsel to argue that the State’s
proffered nondiscriminatory reasons for the challenges were pretextual. The court’s
language clearly indicated its opinion that the State had provided sufficient
nondiscriminatory reasons was not the basis of its decision:
And the Court continues to find . . . that there has not been
a prima facie showing as to purposeful discrimination. And
the Court finds that even if there had been a showing, that
the State has offered a race-neutral justification as to the
exercise of each of its peremptory challenges thus far, and
there’s been no showing or evidence of purposeful
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Opinion of the Court
discrimination. And, again, the Court denies the Batson
challenge.
Furthermore, the court did not make extensive findings on the State’s reasons, nor
did it characterize the proceedings as a “full hearing” on defendant’s Batson claim, as
did the trial court in Hobbs. Indeed, in the case at bar the court clearly did not
conduct a full hearing that would have required defendant to have an opportunity to
rebut the State’s proffered reasons.
Therefore, step one of the trial court’s Batson inquiry was not rendered moot.
Accordingly, we are precluded from considering in our analysis the reasons given for
the State’s exercise of the peremptory challenges to the three African American jurors
at issue, as we would if the trial court had reached step two of its Batson inquiry.
Next, we address defendant’s argument that the trial court’s order on his
Batson claim is facially deficient. Defendant asserts that in its written order, the
trial court “found only that there was not a prima facie showing made to establish
any violations by the State for its exercise of peremptory challenges.” However, given
that the court never reached the second step of the Batson analysis, this was the only
finding that was required. The trial court is only tasked with making “specific
findings of fact at each stage of the Batson inquiry that it reaches.” State v. Headen,
206 N.C. App. 109, 114, 697 S.E.2d 407, 412 (2010) (citation omitted). The record on
appeal includes the trial court’s order on defendant’s Batson challenge, setting forth
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Opinion of the Court
the factual basis of the challenge and the court’s decision on the matter. Thus, the
trial court’s order is not facially deficient, as defendant contends.
We now turn to a substantive analysis of the trial court’s order finding that
defendant failed to establish a prima facie Batson claim. From the transcript of the
hearing, we are only able to ascertain defendant’s race and that the State used three
of its four peremptory challenges to remove prospective African American jurors and
alternates.3 However, we do not know the victim’s race, the race of key witnesses,
questions and statements of the prosecutor that tend to support or refute a
discriminatory intent, or the State’s acceptance rate of potential African American
jurors. Finally, we see nothing in the record from which we can ascertain the final
racial composition of the jury.
We will not “assume error by the trial judge when none appears on the record
before” us. State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645 (1983) (citation
omitted). Without more information regarding the factors set forth in Hoffman and
Quick, defendant has not shown us that the trial court erred in its finding that no
3 As noted by the dissent, the hearing transcript sufficiently establishes the race of the
challenged jurors for our review by clearly indicating that the trial court and counsel for the State and
defendant agreed as to the race of each juror at issue. See Bennett, __ N.C. at __, 843 S.E.2d at 232-
33 (internal quotation marks and citations omitted) (holding that race of challenged jurors at issue
can be established for appellate review where “the record reveals the complete absence of any dispute
among counsel for the parties and the trial court concerning the racial identity of the persons who
were questioned during the jury selection process, . . . resulting in what amounts to a stipulation of
the racial identity of the relevant prospective jurors. . . . [Such a stipulation] may take a variety of
forms and may be found by implication.”).
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Opinion of the Court
prima facie showing had been made. Therefore, we uphold the trial court’s ruling on
the merits of defendant’s Batson claim.
Our Supreme Court’s recent decision in Bennett does not affect the result of
this case. In Bennett, our Supreme Court held that the defendant had made a prima
facie Batson claim where record revealed that “all of the State’s peremptory
challenges were directed to African American prospective jurors, . . . the State did not
peremptorily challenge any white prospective juror, and . . . neither of the African
American jurors that the State peremptorily challenged provided any answers during
the course of the jury selection process that cast any doubt upon their ability to be
fair and impartial to the State.” __ N.C. at __, 843 S.E.2d at 237-38 (footnote omitted).
Here, one of the State’s peremptory challenges was exercised against a white
prospective juror and three were exercised against African American prospective
jurors. Defendant has failed to preserve an adequate record concerning the
challenged jurors’ answers to any questions asked by the State. While we are
concerned that it appears seventy-five percent of the State’s peremptory challenges
involve African American prospective jurors, this standing alone is not sufficient to
sustain a Batson challenge. See State v. Barden, 356 N.C. 316, 344, 572 S.E.2d 108,
127 (2002) (citation omitted) (stating that numerical analyses of relative proportion
of State’s strikes used against potential jurors of each race and overall acceptance
rate of potential jurors of each race not alone dispositive of question whether
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Opinion of the Court
defendant has established prima facie Batson claim), cert. denied, 538 U.S. 1040, 155
L. Ed. 2d 1074 (2003); State v. Maness, 363 N.C. 261, 275-76, 677 S.E.2d 796, 805-806
(2009) (citations omitted) (holding State’s use of five of eight peremptory strikes
against African American potential jurors insufficient to establish prima facie Batson
claim), cert. denied, 559 U.S. 1052, 176 L. Ed. 2d 568 (2010); State v. Lemons, No.
COA12-913, 2013 WL 152353, at *3-*4 (N.C. Ct. App. Jan. 15, 2013) (holding State’s
use of four peremptory challenges against potential African American jurors and none
against potential white jurors did not amount to prima facie Batson claim); State v.
Mays, 154 N.C. App. 572, 577, 573 S.E.2d 202, 206 (2002) (holding mere fact of State’s
use of seventy percent, or nine of thirteen, of peremptory challenges against African
American prospective jurors insufficient to establish prima facie Batson claim).
Given the posture in which we find this case, where defendant’s trial counsel
specifically declined to have jury selection recorded and the deficient record with
respect to the other Quick factors, we are unable to find the trial court erred in its
determination that defendant failed to establish a prima facie Batson violation.
Defendants are entitled to have their Batson claims and the trial court’s
rulings thereon subjected to appellate scrutiny. To do so, it is incumbent on counsel
to preserve a record from which the reviewing court can analyze the Quick factors.
Thus, we urgently suggest that all criminal defense counsel follow the better practice
and request verbatim transcription of jury selection if they believe a Batson challenge
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Opinion of the Court
might be forthcoming. However, if that is not initially done, it is incumbent upon
counsel to place before the trial court evidence speaking to all the Quick factors for
evaluation on appeal. Without such information, it is highly improbable that such a
challenge will succeed. Such is the pitfall of defendant’s case in this appeal.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judge ZACHARY concurs.
Judge HAMPSON concurs in part, dissents in part by separate opinion.
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No. COA18-998-2 – State v. Campbell
HAMPSON, Judge, concurring in part, dissenting in part.
Having reconsidered this matter in light of our 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), I continue to concur in the majority opinion in
part and dissent in part. In my prior dissent, I concluded the appropriate remedy in
this case was a remand for purposes of allowing the trial court to make an additional
record on the preliminary question of whether Defendant had established a prima
facie Batson4 challenge. I reach the same result here.
First, I continue to agree with the majority the record before us is sufficient to
permit appellate review. See State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409,
412 (1989) (acknowledging that although the “lack of a voir dire transcript detracts
from our ability to review the substance of the proffered reasons,” the record
contained “the barest essentials” to permit review: “the racial composition of the jury,
the number of black jurors excused, and the State’s proffered reasons for their
exclusion[,]” while also noting “[t]he record also contains defense counsel’s response
to the prosecutor’s explanations and the trial judge’s conclusions”). Consequently, I
concur that the State’s Motion to Dismiss the Defendant’s Appeal was and remains
correctly denied.
4 Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
STATE V. CAMPBELL
Hampson, J., concurring in part, dissenting in part.
Despite concluding Defendant in this case preserved his Batson challenge for
review even without complete recordation or a transcript of voir dire, the majority, in
effect, still concludes the record is insufficient to review Defendant’s Batson challenge
and holds Defendant has failed to show error in his case. Thus, this case continues
to illustrate the immense difficulty in preserving a Batson challenge for appellate
review that still remains under our existing caselaw. I agree a verbatim transcript
of jury selection is not always necessary to preserve a Batson challenge. Indeed, I
suspect in many cases the need to make a Batson challenge only becomes apparent
during the voir dire and after a defendant’s opportunity to request complete
recordation. Nevertheless, if there is any lesson to be drawn here from the majority
result, it appears it is that the surest (if not the only) way to preserve a Batson
challenge is to request recordation of jury voir dire in every single case for every single
defendant.
Of course, this recordation is expressly not required by statute in noncapital
cases. See N.C. Gen. Stat. § 15A-1241(a)(1) (2019). Thus, there must be another way
to establish the necessary record to preserve the issue for appellate review. See, e.g.,
State v. Shelman, 159 N.C. App. 300, 310, 584 S.E.2d 88, 96 (2003) (requiring “a
transcript or some other document setting out pertinent aspects of jury selection” in
order to review a defendant’s Batson challenge (emphasis added)). Our Supreme
Court in Bennett illustrated through its prior caselaw such a pathway already exists:
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STATE V. CAMPBELL
Hampson, J., concurring in part, dissenting in part.
this path simply requires the trial court and counsel for the parties to work
cooperatively to recreate the record by agreement or denoting where there is a
disagreement of fact. See ___ N.C. at ___, 843 S.E.2d at 231-34 (citations omitted).
Such a mechanism also already exists in our statutes governing North Carolina
criminal procedure. See N.C. Gen. Stat. § 15A-1241(c) (“When a party makes an
objection to unrecorded statements or other conduct in the presence of the jury, upon
motion of either party the judge must reconstruct for the record, as accurately as
possible, the matter to which objection was made.”). Here, for example, the trial court
and lawyers cooperated to partially recreate the record. Specifically, the parties each
put on the record their respective positions as to each peremptory challenge agreeing
the State used three out of four challenges on African American jurors and another
African American juror was excused for cause.
The Supreme Court’s decision in Hobbs illustrates another task of vital
importance for trial courts: a trial court should explain the reasoning behind its
decision after considering all the circumstances relevant to the Batson challenge. ___
N.C. at ___, 841 S.E.2d at 502. While Hobbs was not addressing the prima facie
inquiry, its lesson still holds. The trial court’s ability to make firsthand observations
of jury selection and inquiries of trial counsel is exactly why we—as an appellate
court—must show great deference to the trial court. See State v. Nicholson, 355 N.C.
1, 21, 558 S.E.2d 109, 125 (2002) (“The trial court’s determination is given deference
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STATE V. CAMPBELL
Hampson, J., concurring in part, dissenting in part.
on review because it is based primarily on firsthand credibility evaluations.” (citation
omitted)); see also State v. Hoffman, 348 N.C. 548, 554, 500 S.E.2d 718, 722 (1998)
(citations omitted). This is also why, however, it is so imperative that “ ‘[t]o allow for
appellate review, the trial court must make specific findings of fact at each stage of
the Batson inquiry that it reaches.’ ” State v. Headen, 206 N.C. App. 109, 114, 697
S.E.2d 407, 412 (2010) (quoting State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d
823, 829 (1998)). Here, the trial court did not make specific findings of fact to permit
appellate review regarding the relevant factors set out in State v. Quick5 in
determining whether there was a prima facie showing by Defendant under our Batson
analysis. See 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) (citation omitted). In my
view, the failure to explain how the trial court reached its decision—Defendant failed
to establish even a prima facie Batson challenge despite 75% of peremptory
challenges being exercised against African American jurors—was error.
On the record we do have before us, I am persuaded Defendant’s objection to
the use of 75% of the State’s peremptory challenges on African American jurors in
this case sufficiently places this case in line with State v. Barden so as to require the
trial court to conduct a more fulsome analysis of Defendant’s objection and whether
5 State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) (“Those factors include the
defendant’s race, the victim’s race, the race of the key witnesses, questions and statements of the
prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory
challenges against blacks such that it tends to establish a pattern of strikes against blacks in the
venire, the prosecution’s use of a disproportionate number of peremptory challenges to strike black
jurors in a single case, and the State’s acceptance rate of potential black jurors.” (citation omitted)).
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STATE V. CAMPBELL
Hampson, J., concurring in part, dissenting in part.
Defendant established a prima facie Batson challenge, including making specific
findings of fact sufficient for appellate review. See 356 N.C. 316, 344-45, 572 S.E.2d
108, 127-28 (2002) (holding the use of 71.4% of peremptory challenges on African
American jurors was supportive of a prima facie Batson violation). Barden, on a more
complete record, held a prima facie Batson violation had been established. Notably,
there, our Supreme Court pointed out there was “no hint of racism” in the prosecutor’s
questions and even noted the prosecutor accepted two (of seven) African American
jurors. Id. at 343-44, 572 S.E.2d at 127. Rather, the Supreme Court looked to both
the acceptance rate and the rate upon which the State exercised its peremptory
challenges against African American jurors.6 Acknowledging a numerical analysis is
not necessarily dispositive, the Barden Court nevertheless concluded the numerical
analysis was useful in determining a prima facie showing had been made. Id. at 344,
572 S.E.2d at 127 (citation omitted). In Barden, the numerical analysis revealed, at
least from a prima facie standpoint, a stark pattern in the acceptance and rejection
rates of African American jurors.
I would still not go so far on this record as to hold Defendant met his burden
to establish a prima facie case for a Batson violation. In light of Barden, however,
6 In Barden, the State used five of seven peremptory challenges on African American jurors—
the other two were used to strike a white juror and a Native American juror. At the same time, it also
appears there was a total of only seven African American prospective jurors called for voir dire—of
which the State struck five and accepted two. Id. at 344, 572 S.E.2d at 127. In other words, in that
case, the State used 71.4% of its peremptory strikes against African American jurors while also
striking 71.4% of all the eligible African American jurors.
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STATE V. CAMPBELL
Hampson, J., concurring in part, dissenting in part.
the use of 75% of peremptory strikes against African American jurors in this case
requires more explanation and context for the trial court’s determination no prima
facie showing had been made. In particular, for example, while we know the State
used 75% of its peremptory challenges on African American jurors and struck another
for cause, we do not know the overall makeup of the jury pool or the rate at which
African American jurors were accepted.7
Consequently, I would grant the limited remedy of remanding this case to the
trial court for specific findings of fact in order to permit appellate review of the trial
court’s decision, including any further evidentiary proceedings the trial court deems
necessary to accommodate its fact finding as to the factors it deems relevant. Cf.
Hoffman, 348 N.C. at 555, 500 S.E.2d at 723. As such, I respectfully dissent from the
majority result affording Defendant no relief from judgment.
7 It is significant neither the defense nor the State set out the makeup of the jury on the record.
Under our caselaw, the acceptance rate of jurors seems to be just as applicable as the rejection rate to
either establishing or defending a prima facie Batson challenge. Further, the fact the only African
American prospective jurors discussed were the four excused either for cause or peremptorily could
imply those were the only four African American prospective jurors subjected to voir dire. Certainly,
there is also no record before us of any African American juror actually being seated in this case.
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