State v. Alexander ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-847
Filed: 20 October 2020
Yadkin County, No. 17CRS050312-15, 18CRS000019
STATE OF NORTH CAROLINA
v.
CHRISTOPHER ISSAC ALEXANDER, Defendant.
Appeal by Defendant from judgments entered 20 March 2019 by Judge Julia
Lynn Gullett in Yadkin County Superior Court. Heard in the Court of Appeals 11
August 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.
Sanders, for the State.
Daniel J. Dolan for Defendant-Appellant.
INMAN, Judge.
Defendant, who is Black, challenged during his criminal trial a prosecutor’s
peremptory strike of the only Black juror in the venire as racially motivated and
prohibited by Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). Though the
trial court heard thorough arguments and announced findings of fact and conclusions
of law to support its ruling, it did not make a record adequately addressing the
totality of circumstances presented to it as required by recent clarifying caselaw. As
STATE V. ALEXANDER
Opinion of the Court
a result, we remand the matter for further proceedings addressing Defendant’s
Batson claim.
We also vacate three of the judgments to correct an error in the assessment of
costs, and remand for the entry of judgments without costs should Defendant’s Batson
claim fail on remand.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant was arrested in February 2017 on eight drug charges. The State’s
evidence at trial tended to show that Defendant sold cocaine to an undercover Yadkin
County law enforcement officer on at least four different occasions during April and
May of 2015.
In January of 2018, Defendant was indicted by a grand jury on four counts of
possession with intent to sell and deliver cocaine, four counts of selling and delivering
cocaine, and one charge of attaining habitual felon status. The State filed a motion
to join all the charges for trial on 5 July 2018, averring that “the offenses are based
on the same act or transaction or on a series of acts or transactions connected together
or constituting parts of a single scheme or plan.” The trial court granted that motion
without objection from Defendant during the pretrial motions hearing on 18 March
2019. Defendant pled not guilty to all charges, and the case proceeded to trial later
that day.
-2-
STATE V. ALEXANDER
Opinion of the Court
Defendant is Black. Of the 34 people in the pool of prospective jurors, only one
person, Mr. Robinson,1 was Black. Jury selection was not transcribed, and no jurors
were polled on their race or ethnicity.
Mr. Robinson was questioned after the State had accepted ten jurors and had
stricken two jurors peremptorily. During voir dire, Mr. Robinson discussed his
employment history and current employment status, his wife’s classes from an online
university that he could not identify, and a prior criminal charge for child abuse that
was dismissed without a conviction. The prosecutor used a peremptory strike on Mr.
Robinson. Defendant objected on Batson grounds.
In a hearing outside the presence of the jury, Defendant’s counsel asserted that
the State’s decision to strike the only Black prospective juror in the trial of a Black
defendant constituted a prima facie showing of racial discrimination in jury selection
under Batson. The State did not challenge Defendant’s characterization of Mr.
Robinson as Black, nor his assertion that a prima facie case of discrimination had
been made. Instead, the prosecutor offered several “race neutral options or the reason
[he] struck him.”
The prosecutor noted Mr. Robinson’s “tone of voice” and the “context” of his
statements about his job history, which led the prosecutor to surmise that Mr.
Robinson had been fired but “was reluctant to talk about it.” Though the prosecutor
1 The trial transcript refers to Mr. Robinson as both “Shane Robinson” and “Sean Robinson” at
different times. We refer to him by his last name throughout the opinion for ease of reading.
-3-
STATE V. ALEXANDER
Opinion of the Court
could have confirmed this hunch through further questioning, he explained to the
trial court that he declined to do so because he “didn’t want to embarrass” Mr.
Robinson. The prosecutor also “found troubling” Mr. Robinson’s statement that he
had been unemployed for a year, making him “the only juror we talked to so far that
did not have a legitimate basis of employment and certainly the longest period of
anybody we’ve talked to.” The prosecutor said he was further concerned by Mr.
Robinson’s inability to identify which university his wife attended online. He then
summarized his rationale:
[T]he gentleman struck me as someone who was just not a
reasonable citizen basically. He has no job, he has no idea
what his wife was doing, [the prosecutor] found him
credible on his allegation of child abuse, [which was] the
most serious criminal act that we’ve really dealt with any
specificity from anybody on the panel.
Defendant argued that the State’s proffered reasons for the peremptory strike
were pretextual. He pointed out that Mr. Robinson had described “some type of
deferred prosecution,” and that the State had accepted a white juror who had a
previous marijuana possession charge resolved through a deferred prosecution. He
also disagreed with the State’s characterization of Mr. Robinson’s testimony,
contending that Mr. Robinson said he was employed.2 Further, Defendant argued
2 Defendant contends on appeal that the prosecutor misrepresented that Mr. Robinson was
unemployed. We are unable to entertain this contention; both Defendant and the State presented
their differing recollections of Mr. Robinson’s testimony to the trial court, and it resolved this factual
issue by finding as a fact that he said he “has been out of work for a year.” Without a transcript of voir
dire, we are bound to leave that factual determination by the trial court undisturbed.
-4-
STATE V. ALEXANDER
Opinion of the Court
that the prosecutor’s statements about Mr. Robinson’s “tone of voice . . . may show
some racial issues.”
The prosecutor acknowledged the white juror’s criminal history, but asserted
that “he said he felt he had been treated fairly and implicitly admitted his guilt in
that crime, and [the prosecutor] didn’t get kind of the same reaction from Mr.
Robinson which was the distinction there.” Defendant then pointed out that “Mr.
Robinson stated he felt like he was treated fairly and . . . you have two jurors that
have some type of criminal history, it sounds like they both were deferred proceedings
that were later dismissed. They both stated that they felt that they had been treated
fairly.” Defendant also noted that, like his case, the white juror’s “criminal problems
or issues actually dealt with drugs, so . . . that makes it even stronger as far as our
argument is concerned.”
The trial court found that Defendant did not prove purposeful discrimination
and overruled his Batson objection. The trial court explained from the bench that it
had heard all three steps of Defendant’s Batson challenge before making the following
oral ruling:
THE COURT: The Court has observed the manner and
appearance of counsel and jurors during voir dire and has
made all relevant determinations of credibility for
purposes of this order.
In making these findings of fact, the Court has made
determinations as to the race of various individuals. As to
the jurors, any findings of race are based upon
-5-
STATE V. ALEXANDER
Opinion of the Court
representations during the arguments of attorneys.
....
The Court finds that as to parties, lawyers, witness’s
finding of race are based upon statements of counsel. The
Court finds that the Defendant in this case is black.
....
[I]t appears that there was only one person of the African-
American race on the jury in the jury pool to the best of the
Court’s determination.
The Court finds that the only potential juror in the pool
that appeared to be African-American was juror number
11, Mr. Sean Robinson.
The Court finds that upon questioning juror number 11,
that the prosecutor elicited that juror number 11 worked
at Lydall, until he had to make other arrangements and
has been out of work for a year. That his wife was in school.
That she was attending school on the computer. That he
did not have any idea of what school she was attending.
That the prosecutor found him credible on the child-abuse
allegations, but that the prosecutor was troubled
concerning his employment history and the fact that he
had no idea where his wife was attending school or what
school she was attending. The defense is concerned
because this was the only African-American or appeared to
be the only African-American person in the jury pool which
would effectively be a 100 percent rejection rate of African-
American jurors.
....
The Court finds that the State has used a disproportionate
number of preemptory challenges to strike African-
American jurors in this case, and that on its face, the
State’s acceptance rate of potential African-American
-6-
STATE V. ALEXANDER
Opinion of the Court
jurors indicates the likelihood of discrimination in the jury
selection process. So the Defendant would’ve made a prima
facie showing based upon the percentage.
Upon the establishment of a prima facie showing of
discrimination, the Court considers the racially neutral
reasons offered by the State . . . . The reasons offered by
the State were the employment history of [Mr. Robinson]
and his answers and tone of voice concerning that history.
The fact that his wife was in college, that he had no idea
what school she was attending, and the troubling situation
with the child abuse issues, although the prosecutor found
them to be credible in his answers to that.
The Defendant was offered the opportunity to rebut those
reasons and indicated, again, that the 100 percent rejection
rate was troubling, and that another juror had previous
drug charges and that he was not excused.
The Court does find the prosecutor to be credible in stating
racially neutral reasons for the exercise of the [peremptory]
challenge. In response to such reasons, defense counsel
has not shown that the Prosecutor’s explanations are
[pretextual].
Based upon consideration of the presentations made by
both sides and taking into account the various arguments
presented, the Defendant has not proven purposeful
discrimination in the jury selection process.
Based on the foregoing findings of fact, the Court concludes
as a matter of law that because the Defendant may have a
prima facie showing in the selection process, . . . and that
the reasons that the prosecutor stated were racially
neutral, and the Court does find the Prosecutor to be
credible in those reasonings.
So taken in the totality in connection with all the findings
of fact, the Court does find that he had a . . . sufficient
racially neutral basis for the exercise of a [peremptory]
-7-
STATE V. ALEXANDER
Opinion of the Court
challenge[] as to that juror. Therefore, the objection to the
State’s exercise of [peremptory] challenge as to potential
juror number 11, Mr. Robinson . . . is overruled and the
[peremptory] challenge is allowed.
Jury selection then resumed. The jury ultimately convicted Defendant on all
counts, and the trial judge imposed four consecutive judgments, assessing costs in
each. Defendant appeals.
II. ANALYSIS
Defendant presents two principal arguments on appeal: (1) the trial court erred
in denying his Batson challenge or, in the alternative, failed to make adequate
findings of fact under the totality of the circumstances as explained in State v. Hobbs,
374 N.C. 345, 841 S.E.2d 492 (2020); and (2) the trial court violated N.C. Gen. Stat. §
7A-304 in assessing costs in each of the four judgments rather than only once
consistent with State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019). The State,
in addition to addressing Defendant’s first argument on the merits, contends that he
failed to adequately preserve his Batson challenge for review. As to the second
argument, the State recognizes that the underlying rationale of Rieger may require
vacatur of the judgments for a single imposition of costs. We address each line of
inquiry in turn.
A. Standards of Review
In evaluating a Batson challenge, “[t]he trial court has the ultimate
responsibility of determining whether the defendant has satisfied his burden of
-8-
STATE V. ALEXANDER
Opinion of the Court
proving purposeful discrimination.” Hobbs, 374 N.C. at 349, 841 S.E.2d at 497
(citations and quotation marks omitted). Such a determination is afforded “great
deference” on appeal, State v. Golphin, 352 N.C. 364, 427, 533 S.E.2d 168, 211 (2000)
(citations omitted), with reviewing courts “overturning it only if it is clearly
erroneous.” Hobbs, 374 N.C. at 349, 841 S.E.2d at 497 (citation omitted). Trial courts
faced with resolving a Batson claim “must make specific findings of fact at each stage
of the Batson inquiry that it reaches” in aid of the standard’s application upon
appellate review. State v. Headen, 206 N.C. App. 109, 114, 697 S.E.2d 407, 412 (2010)
(citation and quotation marks omitted).
Alleged statutory violations are, by contrast, subject to no deference
whatsoever. State v. Johnson, 253 N.C. App. 337, 345, 801 S.E.2d 123, 129 (2017).
“Alleged statutory errors are questions of law and as such, are reviewed de novo.”
State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (internal citations
omitted). We therefore analyze Defendant’s argument that the trial court failed to
comply with N.C. Gen. Stat. § 7A-304 in its imposition of costs by “considering the
matter anew and freely substituting our own judgment for that of the trial court.”
State v. Edgerton, ___ N.C. App. ___, ___, 832 S.E.2d 249, 253 (2019) (citation
omitted).
B. Preservation
-9-
STATE V. ALEXANDER
Opinion of the Court
The State contends in its principal brief that Defendant’s Batson challenge was
not preserved because: (1) the record does not disclose direct evidence of Mr.
Robinson’s race, and Defendant failed to “make a record which shows the race of a
challenged juror,” State v. Willis, 332 N.C. 151, 162, 420 S.E.2d 158, 162 (1992)
(citation omitted); and (2) jury selection was neither recorded nor reconstructed by a
narrative agreed upon by the parties, leaving us with only counsels’ descriptions of
voir dire, their Batson arguments, and the trial court’s examination of and ruling on
the same. Reviewing the record and recent caselaw, we disagree with the State on
both points and hold the record is “minimally sufficient to permit appellate review.”
State v. Campbell, ___ N.C. App. ___, ___, 846 S.E.2d 804, 807 (2020).
The State correctly notes that the record does not contain direct evidence of
Mr. Robinson’s racial identity or the racial identity of other jurors. However, such
direct evidence is not strictly required where the record discloses “what amounts to a
stipulation of the racial identity of the relevant prospective jurors.” State v. Bennett,
374 N.C. 579, 595, 843 S.E.2d 222, 233 (2020).
In Bennett, a defendant brought a Batson claim but did not establish the race
of the jurors struck by the State on the record through self-identification or other
direct evidence. Id. at 591, 843 S.E.2d at 231. What the record did reveal, however,
was an agreement between the State, defendant’s counsel, and the trial court that
the challenged jurors were Black. Id. at 594, 843 S.E.2d at 233. Our Supreme Court
- 10 -
STATE V. ALEXANDER
Opinion of the Court
held that this agreement was sufficient to permit appellate review because “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.” Id. (citations omitted). In
announcing its holding, the Supreme Court further explained that “[w]hile a
stipulation must be definite and certain in order to afford a basis for judicial decision,
stipulations and admissions may take a variety of forms and may be found by
implication.” Id. (emphasis added) (citations, alterations, and quotation marks
omitted). In doing so, it distinguished its earlier decisions in State v. Mitchell, 321
N.C. 650, 365 S.E.2d 554 (1988), State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990),
and State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991), wherein defendants
unsuccessfully “attempted to establish the racial identities of each of the prospective
jurors on the basis of the subjective impressions of a limited number of trial
participants.” Bennett, 374 N.C. at 594, 843 S.E.2d at 233.
Defendant’s counsel in this case opened his Batson argument by asserting that
“[a]s far as a prima facie case, . . . my client is African-American . . . . There was one
African-American that was on the jury pool; that juror was brought to the jury box,
and he was peremptorily challenged[.]” Rather than rebut Defendant’s prima facie
case—by, for example, arguing that Mr. Robinson was not Black or that there were
- 11 -
STATE V. ALEXANDER
Opinion of the Court
other Black jurors passed by the State—the prosecutor apparently conceded the
question and instead proceeded to “offer . . . a race neutral . . . reason” for striking
Mr. Robinson. This absence of any dispute as to Mr. Robinson’s race (or whether any
other jurors were Black) continued through the parties’ additional arguments back
and forth, and was reflected in the trial court’s determination of Mr. Robinson’s race
from the bench:
In making these findings of fact, the Court has made
determinations as to the race of various individuals. As to
the jurors, any findings of race are based upon
representations during the arguments of attorneys.
....
The Court finds that as to parties, lawyers, witness’s
finding of race are based upon statements of counsel. The
Court finds that the Defendant in this case is black.
....
That as of the time that the State attempted to exercise
this [peremptory] challenge, 10 jurors have been accepted
by the State of which to the best of the Court’s
determination 10 are white and zero are black. That as of
the time the State attempted to exercise that [peremptory]
challenge, the State had exercised two . . . [peremptory]
challenges of which zero were persons of an African-
American race.
As a matter of fact, it appears that there was only one
person of the African-American race on the jury in the jury
pool to the best of the Court’s determination.
- 12 -
STATE V. ALEXANDER
Opinion of the Court
The Court finds that the only potential juror in the pool
that appeared to be African-American was juror number
11, Mr. Sean Robinson.
We acknowledge that, unlike in Bennett, the prosecutor did not expressly state
Mr. Robinson’s race or the race of other jurors on the record below. This distinction
does not alter our holding that the parties effectively entered into a stipulation to
that effect. As recognized in Bennett, “stipulations and admissions may take a variety
of forms and may be found by implication.” 374 N.C. at 594, 843 S.E.2d at 233
(quotation marks and citations omitted). And, as the Supreme Court has elsewhere
observed, “[s]ilence, under some circumstances, may be deemed assent.” State v.
Alexander, 359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (citations and quotation
marks omitted); see also State v. Hurley, 180 N.C. App. 680, 684, 637 S.E.2d 919, 923
(2006) (“Stipulations do not require affirmative statements and silence may be
deemed assent in some circumstances, particularly if the defendant had an
opportunity to object, yet failed to do so.” (citing Alexander, 359 N.C. at 828-29, 616
S.E.2d at 917-18)).3 Stated differently, because “the record reveals the complete
3 We also note, as the Supreme Court did in Bennett, that the core inquiry in a Batson challenge
is “whether the prosecutor is excluding people from a jury because of their race,” Bennett, 374 N.C. at
596 n.4, 843 S.E.2d at 234 n.4 (emphasis added), suggesting that it is the prosecutor’s understanding
of the prospective juror’s race that ultimately matters for purposes of analysis. The prosecutor’s tacit
acknowledgment that the challenged juror was Black distinguishes this case from those in which the
record contained no indication of the prosecutor’s belief as to the prospective juror’s race. See Mitchell,
321 N.C. at 655-56, 365 S.E.2d at 557 (holding a court reporter’s notation as to prospective jurors’ races
would not create an adequate record for review because “[t]he court reporter . . . is in no better position
to determine the race of each prospective juror . . . . An individual’s race is not always easily
discernable, and the potential for error by a court reporter acting alone is great”); Payne, 327 N.C. at
- 13 -
STATE V. ALEXANDER
Opinion of the Court
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,” Bennett, 374 N.C. at 595, 843 S.E.2d at 233, Defendant’s failure to elicit
direct evidence of Mr. Robinson’s race or the race of other jurors does not preclude
our review.
The lack of a verbatim transcript of voir dire also does not per se preclude
Batson review. State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409, 412 (1989);
see also Campbell, ___ N.C. App. at ___, 846 S.E.2d at 807 (reviewing a Batson claim
absent a voir dire transcript). The transcript of the Batson hearing reflects the
following details: (1) Defendant’s race; (2) Mr. Robinson’s race; (3) the absence of any
other Black jurors in the jury pool; (4) the number of non-Black jurors passed by the
State and the number and percentage of peremptory challenges aimed at Black
jurors; (5) the State’s proffered reasons for striking Mr. Robinson; and (6) Defendant’s
arguments and evidence that those reasons revealed racial bias. We are therefore
satisfied that the record in this case suffices to permit appellate review.
C. Defendant’s Batson Challenge
A Batson claim is resolved in three stages:
200, 394 S.E.2d at 161 (holding a defendant failed to establish the races of prospective jurors on the
record when the only evidence was an “affidavit . . . contain[ing] only the perceptions of one of the
defendant’s lawyers concerning the races of those excused” (citation omitted)); Brogden, 329 N.C. at
546, 407 S.E.2d at 166 (holding an affidavit disclosing defendant’s counsel’s impressions of jurors’ races
and notations in the record by the court reporter of her impressions was inadequate to establish a
reviewable record on appeal).
- 14 -
STATE V. ALEXANDER
Opinion of the Court
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, 307-08, 488 S.E.2d 550, 560 (1997) (citations
omitted). It is imperative that “the trial court . . . make specific findings of fact at
each stage of the Batson inquiry that it reaches.” State v. Cofield, 129 N.C. App. 268,
275, 498 S.E.2d 823, 829 (1998) (citation omitted).
Our Supreme Court has recently explained what the third stage of a Batson
inquiry requires:
“The trial court must consider the prosecutor’s race-neutral
explanations in light of all of the relevant facts and
circumstances, and in light of the arguments of the
parties.” Flowers [v. Mississippi, ___ U.S. ___, ___, 204 L.
Ed. 2d 638, 656 (2019)]. At the third step, the trial court
“must determine whether the prosecutor’s proffered
reasons are the actual reasons, or whether the proffered
reasons are pretextual and the prosecutor instead
exercised peremptory strikes on the basis of race.” Id. at
[___, 204 L. Ed. 2d. at 656]. “The ultimate inquiry is
whether the State was ‘motivated in substantial part by
discriminatory intent.’ ” Id. (quoting Foster v. Chatman,
___ U.S. ___, 136 S. Ct. 1737, 1754, 193 L. Ed. 2d 1 (2016)).
Hobbs, 374 N.C. at 353, 841 S.E.2d at 499. It reiterated that the trial court is
“requir[ed] . . . to consider all of the evidence before it when determining whether to
sustain or overrule a Batson challenge.” Id. at 358, 841 S.E.2d at 502 (citations
- 15 -
STATE V. ALEXANDER
Opinion of the Court
omitted) (emphasis added). Thus, “when a defendant presents evidence raising an
inference of discrimination, a trial court, and a reviewing appellate court, must
consider that evidence in determining whether the defendant has proved purposeful
discrimination in the State’s use of a peremptory challenge.” Id. at 356, 841 S.E.2d
at 501.
In Hobbs, the trial court conducted a complete Batson analysis after the
defendant’s objections to several peremptory strikes by the State. Id. at 348, 841
S.E.2d at 496. In the course of his arguments, the defendant pointed to several
different factors demonstrating discrimination and indicating pretext in the State’s
explanation of its peremptory strikes, including a history of racial discrimination in
jury selection in the county. Id. Our Supreme Court held that the trial court erred
in denying the defendant’s Batson challenge because “the trial court did not explain
how it weighed the totality of the circumstances surrounding the prosecution’s use of
peremptory challenges, including the historical evidence that Mr. Hobbs brought to
the trial court’s attention.” Id. at 358, 841 S.E.2d at 502. Mr. Hobbs also argued at
trial and on appeal that his Batson claim was supported by a comparison between
white jurors who had been passed by the State and Black jurors who were
peremptorily challenged. Id. at 357, 841 S.E.2d at 502. Although the trial court
conclusively stated it “‘further considered’ Mr. Hobbs’s arguments in that regard[,]”
id., our Supreme Court held that the trial court erred in “failing to engage in a
- 16 -
STATE V. ALEXANDER
Opinion of the Court
comparative juror analysis.” Id. at 360, 841 S.E.2d at 503. This error stemmed in
part from the fact that the Court “d[id] not know from the trial court’s ruling how or
whether these comparisons were evaluated.” Id. at 359, 841 S.E.2d at 502.
Considering these errors together, the Supreme Court held that “[t]he trial
court . . . failed to either conduct any meaningful comparative juror analysis or to
weigh any of the historical evidence of racial discrimination in jury selection
presented by Mr. Hobbs. This failure was erroneous and warrants reversal.” Id. at
359-60, 841 S.E.2d at 503. As a result, the Supreme Court remanded the matter to
the trial court to “conduct a new hearing on these claims.” Id. at 360, 841 S.E.2d at
503.
Although the trial court did not have the benefit of Hobbs when it made its
ruling, that decision requires us to remand this case to the trial court to make the
findings necessary to resolve a Batson claim. Defendant offered several arguments
in support of his Batson challenge, including a contention that a comparative juror
analysis revealed racial bias in the State’s decision to strike Mr. Robinson on the
grounds of criminal history. As pointed out by Defendant, Mr. Robinson and a white
juror passed by the State had prior criminal charges that had been dismissed.4 Both
4 Read in context, it appears from the transcript that both the State and Defendant agreed
that the white juror’s drug charges were resolved pursuant to N.C. Gen. Stat. § 90-96 (2019), which
provides a procedure for discharging and dismissing a drug charge without adjudication or conviction
under certain circumstances. N.C. Gen. Stat. § 90-96(a). While there is no similar outward agreement
on the exact disposition of Mr. Robinson’s child abuse charge in the record, the prosecutor described it
- 17 -
STATE V. ALEXANDER
Opinion of the Court
parties acknowledged that, unlike Mr. Robinson, the white juror’s criminal history
involved drug charges, which, given Defendant was himself on trial for drug-related
offenses, Defendant contended made the prosecutor’s decisions all the more suspect.
However, we have no indication from the trial court as to “how or whether th[is]
comparison[] w[as] evaluated.” Id. at 359, 841 S.E.2d at 502. The trial court’s
acknowledgement that “Defendant . . . indicated . . . that another juror had previous
drug charges and that he was not excused,” coupled with its conclusion “taking into
account the various arguments presented [that] the Defendant has not proven
purposeful discrimination in the jury selection process,” sheds no more light on those
questions than the trial court’s conclusory statement in Hobbs that it had “ ‘further
considered’ Mr. Hobbs’s [comparative juror] arguments.” Id. at 357, 841 S.E.2d at
502.5
We also hold that the trial court erred in failing to address Defendant’s
argument that the prosecutor’s comments about “tone of voice and those types of
as an “allegation” and did not challenge Defendant’s assertion that it had been deferred and/or
dismissed when attempting to distinguish Mr. Robinson from the purportedly similar white juror. The
trial court’s findings of fact similarly describe them as “child-abuse allegations” as opposed to a
conviction.
5 The State argues that no comparative juror analysis was required because Mr. Robinson and
the white juror passed by the State were too dissimilar to allow for a meaningful comparison.
Defendant’s comparative juror analysis is, however, at least colorable: “Evidence about similar
answers between similarly situated white and nonwhite jurors is relevant to whether the prosecution’s
stated reasons for exercising a peremptory challenge are mere pretext for racial discrimination.
Potential jurors do not need to be identical in every regard for this to be true.” Hobbs, 374 N.C. at 359,
841 S.E.2d at 502-03 (citations omitted). As explained supra, we are unable to discern from its order
“how or whether” the trial court considered Defendant’s argument in its ultimate determination under
the totality of the circumstances. Id. at 359, 841 S.E.2d at 502.
- 18 -
STATE V. ALEXANDER
Opinion of the Court
issues . . . go to racial stereotypes also.” While it is true that the trial court’s oral
ruling includes Mr. Robinson’s “answers and tone of voice” among the prosecutor’s
reasons for exercising the strike, the oral ruling did not mention Defendant’s specific
assertion that this reason suggested racial bias. We thus cannot discern how this
contention factored into the totality of the circumstances under consideration by the
trial court.
To be sure, a juror’s demeanor and responses to questioning may be race-
neutral reasons for a peremptory challenge sufficient to satisfy the State’s burden at
the second step of Batson. See State v. Smith, 328 N.C. 99, 126, 400 S.E.2d 712, 727
(1991) (“[A] prospective juror’s nervousness or uncertainty in response to counsel’s
questions may be a proper basis for a peremptory challenge, absent defendant’s
showing that the reason given by the State is pretextual.”). But such reasons are not
immune from scrutiny or implicit bias. See Batson, 476 U.S. at 106, 90 L. Ed. 2d at
94 (Marshall, J., concurring) (“A prosecutor’s own conscious or unconscious racism
may lead him easily to . . . a characterization that would not have come to his mind
if a white juror had acted identically.”); Harris v. Hardy, 680 F.3d 942, 965 (7th Cir.
2012) (observing that “[d]emeanor-based explanations for a strike are particularly
susceptible to serving as pretexts for discrimination”).6 When a defendant asserts
6 The transcript shows that the prosecutor relied on Mr. Robinson’s “tone of voice” to justify an
assumption that Mr. Robinson had been fired from his last job. However, the prosecutor declined to
confirm this assumption by further questioning Mr. Robinson because his “tone of voice” also indicated
- 19 -
STATE V. ALEXANDER
Opinion of the Court
that a facially race-neutral reason nonetheless suggests racial bias, a trial court must
consider that assertion under the totality of the circumstances. See Flowers, ___ U.S.
at ___, 204 L. Ed. 2d at 656 (“The trial court must consider the prosecutor’s race-
neutral explanations in light of all of the relevant facts and circumstances, and in
light of the arguments of the parties.”); Hobbs, 374 N.C. at 356, 841 S.E.2d at 501
(“[W]hen a defendant presents evidence raising an inference of discrimination, a trial
court, and a reviewing appellate court, must consider that evidence in determining
whether the defendant has proved purposeful discrimination in the State’s use of a
peremptory challenge.”).7 The trial court must resolve a Batson challenge through
“specific findings of fact.” Cofield, 129 N.C. App. at 275, 498 S.E.2d at 829 (citation
to the prosecutor that he would have been embarrassed to discuss it if asked. Though we do not know
how the prosecutor questioned other jurors, we agree with Defendant’s observation at oral argument
that the manner in which prosecutors approach the questioning of a juror may provide race-neutral
cover for a biased strike. Cf. Flowers, ___ U.S. at ___, 204 L. Ed. 2d at 660-61 (“[D]isparate questioning
and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-
neutral reasons to strike the prospective jurors of a particular race.” (citation omitted)). Just as
“[p]rosecutors can decline to seek what they do not want to find about white prospective jurors” to
frustrate comparative juror analyses, id. at ___, 204 L. Ed. 2d at 661, they can decline a full
examination of a Black juror to avoid answers that would foreclose a possible race-neutral rationale to
strike. A prosecutor’s “legitimate hunches” may be facially valid and satisfy the State’s burden at the
second step of Batson, Headen, 206 N.C. App. at 116, 697 S.E.2d at 413 (citation and quotation marks
omitted), but they are still subject to rebuttal and review under the totality of the circumstances at
the third step. See Flowers, ___ U.S. at ___, 204 L. Ed. 2d at 656 (“The trial court must consider the
prosecutor’s race-neutral explanations in light of all of the relevant facts and circumstances, and in
light of the arguments of the parties.”); Hobbs, 374 N.C. at 359, 841 S.E.2d at 503 (holding that this
Court “failed to weigh all the evidence put on by Mr. Hobbs, instead basing its conclusion on the fact
that the reasons articulated by the State have, in other cases, been accepted as race-neutral” (citation
omitted)).
7 The totality of the circumstances in this case also includes the questionable assertion by the
prosecutor that Mr. Robinson “was just not a reasonable citizen” because he had been unemployed for
a year and did not know which university his wife was attending online. See, e.g., Miller-El v. Cockrell,
537 U.S. 322, 339, 154 L. Ed. 2d 931, 951 (2003) (observing that assessment of a prosecutor’s race-
neutral explanations turns in part on “how reasonable, or how improbable, the explanations are”).
- 20 -
STATE V. ALEXANDER
Opinion of the Court
omitted). Without findings of fact regarding such a fact-specific issue, appellate
review is impossible. Id. In the absence of necessary findings by the trial court, we
must remand.
This case differs materially from earlier cases in which we had no transcript of
the voir dire and upheld trial courts’ denial of Batson challenges without further
review. In Sanders, for example, the defendant offered no reviewable evidence or
argument in response to the State’s race-neutral reasons for its strikes, leaving this
Court no option but to “accept the State’s proffered reasons as rebutting the prima
facie case of discrimination.” 95 N.C. App. at 502, 383 S.E.2d at 414. Here, by
contrast, Defendant presented to the trial court a comparable juror analysis and cited
the prosecutor’s use of particular language in justifying his strike as specific evidence
to support Defendant’s Batson challenge.8
We are unable to discern from the record how or whether the trial court
considered Defendant’s comparative juror argument and his contention that the
prosecutor’s concern about Mr. Robinson’s “tone of voice” evinced racial bias. Because
the trial court failed to enter findings regarding these issues, we are bound by Hobbs
8 The trial court in Campbell resolved the Batson claim at the first stage of analysis, leading
us to distinguish Hobbs in part on that basis. ___ N.C. App. at ___ n.2, 846 S.E.2d at 808 n.2. This
case is markedly different, as it involves an order entered at the third stage of a Batson inquiry—after
the State conceded and the trial court found that the evidence established a prima facie Batson
challenge—that did not specifically address evidence and arguments necessary to resolve a claim at
that stage.
- 21 -
STATE V. ALEXANDER
Opinion of the Court
to reverse its denial of Defendant’s Batson challenge. Hobbs, 374 N.C. at 358, 841
S.E.2d at 502. We remand the matter to the trial court for further specific findings.
Id. at 360, 841 S.E.2d at 504. On remand, the trial court may take additional evidence
in its discretion, but shall in any event make specific findings of fact under the totality
of all the circumstances at the third step of its Batson analysis, including, but not
limited to, findings: (1) disclosing how or whether a comparative juror analysis was
conducted; and (2) addressing Defendant’s assertion that the prosecutor’s statements
regarding Defendant’s answers and tone of voice evinced racial bias.
In sum, our review of Defendant’s appeal is controlled by recent United States
and North Carolina Supreme Court decisions not available to the lower court at the
time of trial. Flowers, ___ U.S. ___, 204 L. Ed. 2d 638; Hobbs, 374 N.C. 345, 841
S.E.2d 492. The trial court can hardly be blamed for failing to follow guidance that
did not exist at the time of Defendant’s Batson challenge. But a high court’s decision
applying federal constitutional law to a criminal judgment controls cases pending on
appeal when that decision is announced. See Whorton v. Bockting, 549 U.S. 406, 416,
167 L. Ed. 2d 1, 11 (2007) (noting that decisions on constitutional law governing
criminal judgments apply to cases pending “on direct review” (citation omitted));
State v. Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443, 446 (1994) (“[A]vert[ing] to . . .
federal retroactivity standards” in application of federal constitutional decisions
(citations omitted)).
- 22 -
STATE V. ALEXANDER
Opinion of the Court
D. Assessment of Costs
Defendant asserts the trial court’s assessment of costs in each of the four
judgments against him violates N.C. Gen. Stat. § 7A-304 as interpreted by State v.
Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), and the State “acknowledges”
Rieger’s interpretation of the statute. The statute provides for costs to be assessed
“[i]n every criminal case,” N.C. Gen. Stat. § 7A-304(a) (2019), and we have interpreted
a single “criminal case” to encompass “multiple criminal charges aris[ing] from the
same underlying event or transaction . . . adjudicated together in the same hearing
or trial[.] . . . In this situation, the trial court may assess costs only once, even if the
case involves multiple charges that result in multiple, separate judgments.” Rieger,
___ N.C. App. at ___, 833 S.E.2d at 703. We adopted the interpretation in Rieger
because “the intent of the General Assembly when it chose to require costs ‘in every
criminal case’ was to have those costs be proportional to the costs that this ‘criminal
case’ imposed on the court system.” Id.
Here, the State moved to join all of Defendant’s charges for trial on the basis
that “the offenses are based on the same act or transaction or on a series of acts or
transactions connected together or constituting parts of a single scheme or plan.”
That order was granted by the trial court without objection from Defendant, and all
of the charges were heard in a single three-day trial. We see no difficulty in applying
the rationale and rule announced in Rieger to these procedural facts, and the State’s
- 23 -
STATE V. ALEXANDER
Opinion of the Court
brief offers no substantive argument to support a deviation. As a result, we vacate
the trial court’s judgments so it may enter a new judgment in Case No. 17CRS050312
that assesses costs and new judgments in Case Nos. 17CRS050313-15 that do not.
III. CONCLUSION
We hold that in its ruling denying Defendant’s objection to the State’s
peremptory strike of Mr. Robinson, the trial court failed to satisfy the constitutional
requirements mandated by the North Carolina Supreme Court. On remand, the trial
court must make specific findings as to all the pertinent evidence and arguments,
including findings addressing Defendant’s comparative juror analysis and “tone of
voice” arguments. Once those findings are made, the trial court must “explain how
it weighed the totality of the circumstances surrounding the prosecution’s use of
peremptory challenges.” Hobbs, 374 N.C. at 358, 841 S.E.2d at 502. The trial court
may, in its discretion, undertake any evidentiary procedures it deems necessary to
comply with our mandate. Should it rule in Defendant’s favor on his Batson
challenge, Defendant shall receive a new trial. See State v. Wright, 189 N.C. App.
346, 354, 658 S.E.2d 60, 65 (2008) (granting a new trial on a Batson challenge).
We also vacate Defendant’s judgments assessing costs inconsistent with
Rieger. Should the trial court again reject Defendant’s Batson claim, it shall enter a
new judgment in Case No. 17CRS050312 that assesses court costs and new
judgments in Case Nos. 17CRS050313-15 that do not.
- 24 -
STATE V. ALEXANDER
Opinion of the Court
REVERSED AND REMANDED IN PART; VACATED AND REMANDED IN
PART.
Judges BRYANT and HAMPSON concur.
- 25 -