State v. Dixon ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA21-471
Filed 5 December 2023
Buncombe County, Nos. 16 CRS 084811-12, 17 CRS 000106
STATE OF NORTH CAROLINA
v.
NATHANIEL E. DIXON, Defendant.
Appeal by Defendant from judgments entered 16 July 2019 by Judge R.
Gregory Horne in Buncombe County Superior Court. Originally heard in the Court
of Appeals 20 September 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri
Horner Lawrence, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
MURPHY, Judge.
Where a Defendant cannot demonstrate at the third step of Batson that the
State acted on a discriminatory purpose with respect to race and that the trial court
clearly erred in its ruling, we will not overturn the denial of a Batson ruling on appeal.
Here, taking into account the whole Record as it existed before the trial court at the
time of Defendant’s Batson objection, we are not persuaded that the State’s
peremptory strike of one of only two African American prospective jurors in the jury
pool was motivated by discriminatory intent, even where the State made a greater
effort to rehabilitate other jurors who expressed reservations about the death penalty,
STATE V. DIXON
Opinion of the Court
because we cannot be confident the trial court was mistaken in its conclusion that
reservations about the death penalty still explained the exercise of the strike.
Furthermore, given the high degree of discretion with which a trial court is
entrusted in ruling on a motion for mistrial, we cannot say the trial court abused that
discretion in denying Defendant’s. The trial court also permissibly ruled on all
motions for mistrial, as the trial judge was not a witness in any associated hearing.
BACKGROUND
This case arises out of Defendant Nathaniel E. Dixon’s appeal of his criminal
convictions for first-degree murder, attempted first-degree murder, and malicious
maiming on 26 June 2019, following a high-profile jury trial that lasted several weeks
and garnered significant media attention. During voir dire, the State struck an
African American1 potential juror, R.D.,2 who expressed reservations about the death
penalty:
[R.D.]: Personally I have reservations about the death
penalty. Simply because [it’s] disproportionate. Most
people who know anything about the death penalty know[]
that the statistics show that African American[s] receive it
more than others. You know, this is weighed on me like
quite a bit. Just back and forth. And . . . I wish I wasn’t
here, honestly. I wish the reason that I’m here never
occurred. And . . . that’s not a presumption of guilt or
1 For consistency with the Record, we use the term “African American” in this opinion, though
we use it interchangeably with the term “black” referenced in our caselaw. Furthermore, as this case
involves an appeal from a Batson objection, we note that Defendant is African American.
2 To limit the use of juror and potential juror names and in consideration of concerns regarding
juror safety raised during and after the trial, we use pseudonyms for the jurors and potential jurors in
this case.
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Opinion of the Court
innocence for anyone. I just wish that what happened, that
we know for sure never happened, so I was never in this
courtroom. But what I . . . struggle with is, I’d rather my
life not be interrupted. I’d rather be only thinking about
what I have to do at work today and the plans that I have
at the end of June. But then there’s another side of me that
understands [] something tragic really did happen. And if
this is the course for justice to be served, a part of me just
wants to see that happen.
So the law is the law, and whatever is decided, I would hope
that the punishment fits the crime. I would hope that the
Defense would be confident in doing their job, that they can
present their case to where they believe what they’re doing
is going to help their Defendant, and I would hope that the
Prosecution is confident in that they can present their case,
that justice would be served one way or another. And then
whomever has to decide, decides the right thing. But it
weighs heavily on me when just thinking that we might be
part of this process. So the short answer is neither one of
those penalties do I object to.
[THE STATE]: Okay. Well, I guess are your -- I believe
the terms you used [were] you have reservations about the
death penalty. And would your feelings about that be such
-- are your feelings such that you could not under any
circumstance vote for a death sentence?
[R.D.]: Well, it’s not that I couldn’t. I hoped to never put
myself in a position where I’m on the other side of one of
those tables. But my point is, if that’s what the law
requires, then that’s what the law requires.
[THE STATE]: I guess --
[R.D.]: My reservation is, I don’t want to see anybody die.
That’s my reservation.
[THE STATE]: I understand. Well, basically the trial
would be divided into two parts. The first part would be
one determining guilt or innocence on the charge --
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Opinion of the Court
particularly on the charge of first degree murder. There
are other charges the jury would also consider. But as far
as the penalty goes, the only one that potentially would go
to a second phase would be the charge of first degree
murder. So the first stage in any of this would be the jury
would have to consider that. And do your -- again, you have
some clearly heart-felt personal feelings about the death
penalty. And because of those, would those affect your -- or
prevent you from making an impartial decision based on
the evidence about the Defendant’s guilt in the first part of
the trial?
[R.D.]: No.
[THE STATE]: So you think you could sit through that
part?
[R.D.]: Certainly.
[THE STATE]: Okay. And if the Defendant is guilty --
found guilty of first degree murder, we would then move
into a second or a sentencing phase of the trial. And that
phase as well as the first phase, the burden is on the State
and that’s always proof beyond a reasonable doubt. But in
the second phase, the first part of that is the State would
produce -- present evidence of what are called aggravating
circumstances. And that would be things that would tend
to suggest that the appropriate penalty is a death sentence.
[R.D.]: Sure.
[THE STATE]: And again, the jury would have to consider
those and find them -- any one of them exists beyond a
reasonable doubt. The second part of that, the Defense
then would have the ability to present evidence of what are
called mitigating circumstances. And again, that would be
evidence that would tend to show that the appropriate
sentence is one of life in prison. And there the burden is
different on the Defense. It’s not beyond a reasonable
doubt. It’s the lower burden of preponderance of the
evidence. And in that -- also for the mitigating
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Opinion of the Court
circumstances there doesn’t have to be unanimity. Any
juror who felt like -- particular mitigating circumstance
applied, had been proven to themselves could consider
that. Whether or not everyone else agreed on that. So the
mitigating is more of an individual juror decision.
[R.D.]: Yes, sir.
[THE STATE]: And again, if aggravating circumstances
have been found, the next step the jury would be asked to
weigh those. And the standard there is -- and the question
the jury would have to ask is, are the mitigating
circumstances insufficient to outweigh the aggravating
circumstances. Which is kind of a backwards question --
[R.D.]: I understand.
[THE STATE]: -- the way it’s asked; but basically weighing.
And again, that’s beyond a reasonable doubt and
mitigating insufficient to outweigh the aggravating. And
if the jury finds that, then the final question is, are the
aggravating circumstances when taken into account the
mitigating, are they sufficiently substantial to call for the
imposition of a death sentence. And again, that’s a beyond
a reasonable doubt question as well. And given that -- and
that’s the framework the jury would have to do that. And
in your case -- and again, you’re the only one -- and again,
you’ve clearly given a lot of thought to this. There’s no
question. But if the Defendant was found guilty of first
degree murder, would your feelings about the death
penalty substantially impair your ability to vote at the
sentencing hearing to impose a death sentence no matter
what the evidence or aggravating circumstances that were
proved?
[R.D.]: No.
[THE STATE]: So you think if the -- if you felt like it was
appropriate, you would be able to vote for a death sentence?
[R.D.]: If that’s what the law required, yes.
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Opinion of the Court
[THE STATE]: Again --
[R.D.]: I get it.
[THE STATE]: The laws requires --
[R.D.]: I understand nuances. I’m a [p]astor. I understand
backwards questions, too. I use them all the time, but I
understand what you’re saying.
[THE STATE]: And again --
[R.D.]: I understand the framework.
[THE STATE]: The law requires you to consider --
[R.D.]: Yes.
[THE STATE]: The law doesn’t require a vote one way or
the other. That’s a juror’s decision about how to vote.
[R.D.]: I would not --
[THE STATE]: You would not --
[R.D.]: I would not have any reservations.
[THE STATE]: Okay. Likewise, if you felt like the evidence
called for it, would you be able to vote for a sentence of life
in prison?
[R.D.]: Certainly.
Defendant raised an objection to the State’s peremptory strike of R.D. under Batson
v. Kentucky, which the trial court overruled during the following exchange in open
court:
[DEFENDANT]: [] [Y]our Honor, at the appropriate time,
we do enter a Batson challenge as to Alternate Number
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Opinion of the Court
One, [R.D.].
....
Your Honor, in regards to [R.D.], and I tried to be very
careful . . . to write down everything that he said. Certainly
there was nothing indicated on his questionnaire . . . that
indicated that he could not follow the law, that he was not
available, that he could not make the time. He certainly
hadn’t formed any opinions. He understood clearly the
presumption of innocence and the reasonable doubt
theories that we all deal with. And I was especially struck[
]when he was asked questions about his views on the death
penalty. . . . [O]ne of the reasons why we feel like the
District Attorney’s peremptory strike against him, that
there are some racial undertones to it, because what he
said was he didn’t want to be here. He didn’t want to be in
this position. He would do it. And he made the statement
that if anybody is familiar with personal statistics, they do
show that there are more African Americans that receive
the death penalty. But then he went on to say that it was
weighing on him. He’s a minister. He said he has
struggled with his decisions in this. Prefers that his life
not be interrupted, but then he said the law is the law and
what is decided. The punishment[] fits the crime. And he
was confident. . . . . He made that statement. And he also
said if the State is confident and can convince him beyond
a reasonable doubt, whoever has to decide will make the
right decision. He made it very clear that he . . . wasn’t
predisposed to either penalty. That he could consider each
one. That there wasn’t either penalty that he objected to.
He didn’t want to see anyone die but that he could do it.
He’s, in our opinion, the perfect juror. Not only is he
rational and intelligent and thoughtful in his answers[,] . .
. [b]ut he is what we would call the perfect juror for a death-
qualified jury, and that is somebody who has made it very
clear that he can consider both sides[.] . . . [W]ith
everybody else that they have accepted, we can find the
only reason that they would want to kick [R.D.] off is
because he is an African American man and because he did
happen to make that statement which is a true statement.
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Opinion of the Court
That the death penalty is more often than not applied to
African Americans if you look to see who is on our death
row.
....
I think obvious to all of us as we have received the past
three jury pools that these pools are woefully lacking in
diversity. I counted in this particular pool that we got
today . . . [and] we had a total of 89 people . . . in this pool.
And five of them were African American and then two of
them were released for cause. In the other two pools, it has
been similar to that, and that is . . . not a cross section of
this community. I don’t know why that is. . . . I haven’t
done statistical studies. I don’t know why that is that our
jury pools in Buncombe County are so obviously lacking in
diversity.
But I think given that, the fact that we have had the
opportunity to speak to one African American juror and
that gentleman is on our jury now, we haven’t had any
opportunity to question any other African Americans until
[R.D.] came in. And I think that is something to be
considered as well. The fact that our client has[] . . a Sixth
Amendment right to a fair trial. He has a right under . . .
the Sixth and the Eighth Amendment and due process to
be judged by . . . a cross section of the community. And
although I think we . . . worked hard to do that, and we
certainly have been able to obtain one African American
juror who is appropriate for death-qualified jury, we have
not had the opportunity to question anybody else until
[R.D.]. And I think that also needs to be considered in
whether or not the State should be allowed to strike what
may well be the only other African American potential
juror that we’ll have a chance to talk to in this case. I don’t
. . . know that we have any more. I think we might have
one somewhere. So we would ask that you take that into
consideration as well.
THE COURT: Okay. Thank you. The issue for the Court
to determine under Batson . . . is, first, whether or not the
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Opinion of the Court
party making the Batson claim has made a sufficient
showing that the other party exercised appropriate
challenge on the basis of race or sex. I’m looking at State
v. Smith, 351 [N.C.] 251 [2000]. The Court will take the
following matters into consideration to determine whether
or not the prima facie showing has been taken by the
Defendant.
First, []my recollection is that . . . the State has exercised
no peremptory challenges as to any previous African
American juror. There was a previous African American
juror that was excused by cause but that was with the
consent of [] Defendant. . . . [T]he Court did not observe
any racially motivated questions by the State. . . . [R.D.]
did make the statement about the death penalty . . . [being]
disproportionately given to African Americans. . . . . So it
is a low standard. Lower than a preponderance as shown
by our evidence for the initial threshold showing.
Based upon that statement, the Court is going to find a
prima facie showing and then turn to the State for any
neutral justification. So . . . I’ll recognize the State at this
point.
[THE STATE]: Well, first of all, I would -- I think I would
object to [the] finding of a prima facie case, your Honor. I
don’t think there has been a showing of that. I particularly
think the part about the jury pool, given that Buncombe
County is only six or seven percent African American, the
numbers that they cited regarding the jury pool would not
be particularly out of order given Buncombe County’s
overall population.
However, as far as a reason for the strike of [R.D.] is he did
express reservations about the death penalty. He was very
clear about that. He had thought about it and had
reservations about it and its application. Just like the juror
next to him, [M.K.]. She also expressed rather [] different
reservations about the death penalty, but she expressed
them as well. And that would be the State’s reason for
striking him are the reservations he expressed about the
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Opinion of the Court
death penalty, your Honor.
....
And . . . I don’t think the reasoning behind is reservations,
your Honor, is relevant. The fac[t] is he expressed
reservations about the death penalty.
THE COURT: All right. Thank you. [Defendant]?
[DEFENDANT]: Well, your Honor, I . . . was very careful
to write down what [R.D.] was saying, because what I recall
happening is he made it very clear when he said the
punishment should fit the crime. That . . . he wasn’t
predisposed to either sentence; and, in fact, I think what
the record would show is that it was at that point that [the
State] asked him the questions that you would normally
ask of somebody that says, I don’t think I can consider the
death penalty. And, in fact, I think those questions were
an attempt to lead [R.D.] to some different conclusion other
than that which he had already given in a very sincere and
genuine way, and that is that it would be very difficult for
him. The law is the law. Whatever is decided, punishment
fits the crime. He’d listen [to] what the Defendant
presents. He[] . . . hopes that the State is confident in their
case. And whomever has to decide it will make the right
decision. Then he clearly said, neither penalty do I object
to. I don’t want to see anyone die he said. There’s nothing
about that that suggests that he had any reservations
about the death penalty. If that’s the reason that the State
is giving.
THE COURT: All right. Thank you. . . . [F]or purposes of
the Batson hearing, the Court would find that . . . under
the low threshold, the Court found a prima facie showing.
[The] State has now provided the justification indicating
that he expressed reservations about the death penalty. I
wrote down, quote, I have reservations. It is correct[,] as
[Defendant] indicated[,] that he did indicate that he could
consider both punishments. [The] Court does consider,
again, as I indicated earlier[,] that the State has exercised
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Opinion of the Court
no peremptory challenges as to any previous African
American juror. The one . . . African American juror that
was called to the panel and excused was excused by cause
and that was consented to by the Defense and that was a
situation in which she was related to some of the parties
involved. So that was not a peremptory challenge. That
was a challenge for cause.
Again, no racially-motivated questions were asked. [The]
State has used at this point what would be . . . 16 previous
peremptory challenges. . . . 15 of which . . . involved white
jurors. And again, he did express reservations about the
death penalty.
The Court would find based upon the evidence presented
that there has not been a sufficient showing that the juror’s
race was a significant or motivating factor in striking
[R.D.]. And so the Batson challenge is respectfully denied.
No further Batson issues were raised during jury selection.
While trial was ongoing, one of the State’s witnesses was killed, and the
Buncombe County District Attorney issued a press release identifying the victim by
her involvement in the case. The release stated, in pertinent part, that the trial court
had “issued appropriate orders to protect individuals who are involved with the trial
to ensure proceedings may safely continue.” One of the jurors learned of the press
release and was excused for cause. Defendant moved for a mistrial, and the trial
court denied the motion.
Two days after the jury reached its verdict, Defendant became aware that
another juror had learned of the murder of the State’s witness, and Defendant moved
once again for a mistrial. The trial court conducted a hearing on the matter and ruled
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Opinion of the Court
that, in light of the juror having communicated to the bailiff that learning of the news
did not personally concern him, the juror’s failure to report his having obtained the
information to the court had “not resulted in substantial or irreparable prejudice to
[Defendant’s] case[.]” The trial court also denied this motion for mistrial.
ANALYSIS
On appeal, Defendant argues (A) the trial court erred in overruling his Batson
challenge; (B) the trial court abused its discretion in not granting his motions for
mistrial; and (C) the trial court erred in not recusing from Defendant’s final motion
for mistrial, allegedly because the resolution of the motion “hinged on [the trial
judge’s] own testimony.”3 For the reasons stated below, we hold the trial court did
not err.
A. Batson
First, Defendant argues the trial court erred in denying his Batson objection.
Under Batson v. Kentucky,
a defendant may establish a prima facie case of purposeful
discrimination in selection of the petit jury solely on
evidence concerning the prosecutor’s exercise of
peremptory challenges at the defendant’s trial. To
establish such a case, the defendant first must show . . .
3 Defendant has also sought an in camera review of the sealed personnel records of an officer
testifying in the case. See State v. Hardy, 293 N.C. 105, 128 (1977) (“[I]f the [trial] judge, after the in
camera examination [of allegedly exculpatory evidence], rules against [a] defendant on his motion, the
judge should order the sealed statement placed in the record for appellate review.”). However, we have
reviewed the personnel records in question and have identified nothing that would be both material
and favorable to Defendant. See State v. Sheffield, 282 N.C. App. 667, 684-85, disc. rev. denied, 382
N.C. 328 (2022) (separately analyzing materiality and favorability). The trial court, therefore, did not
err in its in camera review of the sealed personnel records.
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Opinion of the Court
that the prosecutor has exercised peremptory challenges to
remove [members] from the venire [on the basis of] race.
Second, the defendant is entitled to rely on the fact, as to
which there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits those to
discriminate who are of a mind to discriminate. Finally,
the defendant must show that these facts and any other
relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen
from the petit jury on account of their race.
....
Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a neutral
explanation for challenging [jurors of the excluded class].
Batson v. Kentucky, 476 U.S. 79, 96, 97 (1986) (marks and citations omitted). Thus,
a Batson analysis consists of three steps: “First, the defendant must make a prima
facie showing that the [S]tate exercised a race-based peremptory challenge.” State v.
Taylor, 362 N.C. 514, 527 (2008). Second, “[i]f the defendant makes the requisite
showing, the burden shifts to the [S]tate to offer a facially valid, race-neutral
explanation for the peremptory challenge.” Id. “Finally, the trial court must decide
whether the defendant has proved purposeful discrimination.” Id.In State v. Hobbs, our Supreme Court clarified the procedural requirements
applicable to a Batson analysis. It emphasized that, “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.”
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Opinion of the Court
State v. Hobbs, 374 N.C. 345, 356 (2020). It then reiterated the U.S. Supreme Court’s
holding that
[a] criminal defendant may rely on a variety of evidence to
support a claim that a prosecutor’s peremptory strikes
were made on the basis of race. This evidence includes, but
is not limited to:
• statistical evidence about the prosecutor’s use of
peremptory strikes against black prospective jurors as
compared to white prospective jurors in the case;
• evidence of a prosecutor’s disparate questioning and
investigation of black and white prospective jurors in the
case;
• side-by-side comparisons of black prospective jurors who
were struck and white prospective jurors who were not
struck in the case;
• a prosecutor’s misrepresentations of the record when
defending the strikes during the Batson hearing;
• relevant history of the State’s peremptory strikes in past
cases; or
• other relevant circumstances that bear upon the issue of
racial discrimination.
Id. (marks and citation omitted) (citing Flowers v. Mississippi, 139 S. Ct. 2228, 2243
(2019)).
Here, Defendant argues on appeal that the trial court erred in its Batson ruling
because the State’s reason for striking R.D.—reservations about the death penalty—
was pretextual. In support of this argument, Defendant argues that two similarly
situated white jurors gave similar answers to Defendant and were not stricken by the
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Opinion of the Court
State; that the State, in addition to striking R.D., struck prospective jurors who
expressed concerns relating to race; that the State’s strike rate was suspect,
especially in light of historic statistical trends in North Carolina strike rates by race
in capital trials; and that the racial makeup of the jury pool rendered this case
susceptible to racial discrimination.
As the trial court explicitly issued its ruling at the third step of Batson, we
review its determination for clear error. Foster v. Chatman, 578 U.S. 488, 500 (2016)
(marks omitted) (“Batson’s third step[] . . . turns on factual determinations, and, in
the absence of exceptional circumstances, we defer to [trial] court factual findings
unless we conclude that they are clearly erroneous.”). However, before conducting
our ultimate analysis, we must address two threshold issues.
1. Scope of Defendant’s Argument on Appeal
First, several of Defendant’s arguments on appeal were not actually before the
trial court during the Batson hearing. The whole of Defendant’s argument before the
trial court, reproduced in relevant part above, concerned R.D.’s willingness to impose
the death penalty if legally warranted, the fact that R.D.’s misgivings about the death
penalty arose from his concerns about its racially disparate rate of application, the
overall lack of diversity in Buncombe County’s jury pools, the fact that R.D. was one
of only two African American prospective jurors at the time the State struck him, and
the State’s inappropriately having pursued a line of inquiry with R.D. that is typically
pursued only with jurors who have expressed an inability to impose the death
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Opinion of the Court
penalty. Beyond these arguments, the trial court also considered, on its own
initiative, whether the State asked R.D. “racially motivated” questions. At no point
during trial did Defendant raise arguments concerning any comparable answers by
white jurors, nor did Defendant discuss the striking of jurors of other races who voiced
concerns pertaining to race, as he does now on appeal.
Defendant and the State disagree as to the proper scope of appellate review,
and sources conflict as to whether and to what extent a defendant may make
additional Batson arguments on appeal. At face value, the traditional emphasis on
the Defendant’s burden at step three of Batson should operate to limit the scope of
available arguments on appeal to what was actually argued at trial. Batson, 476 U.S.
at 93 (marks omitted) (“[T]he burden is, of course, on the defendant who alleges
discriminatory selection of the venire to prove the existence of purposeful
discrimination.”); see also State v. Bennett, 282 N.C. App. 585, 601 (citing N.C. R. App.
P. 10(a)(1)) (remarking, with respect to a Batson argument, that “a defendant must
(1) raise the issue below and (2) argue the same theory below.”), appeal dismissed,
review denied, 383 N.C. 694 (2022). Moreover, even in State v. Hobbs, which
emphasized that “a trial court, and a reviewing appellate court, must consider [all of
a defendant’s] evidence in determining whether the defendant has proved purposeful
discrimination[,]” the scope of the requirement was limited to instances “when a
defendant presents evidence raising an inference of discrimination[.]” Hobbs, 374
N.C. at 356; see also State v. Clegg, 380 N.C. 127, 149-50 (describing step three of
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Opinion of the Court
Batson as the trial court “weigh[ing] all of the reasoning from both sides”).
Nonetheless, both our Supreme Court and the U.S. Supreme Court have
cautioned that, “‘in reviewing a ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity must be consulted.’” State
v. Waring, 364 N.C. 443, 475 (2010) (emphasis added) (quoting Snyder v. Louisiana,
552 U.S. 472, 478 (2008)), cert. denied, 565 U.S. 832 (2011); see also Flowers, 139 S.
Ct. at 2243 (emphasis added) (“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.”). Thus, while the holding in Hobbs creates an
affirmative duty to weigh at least the evidence put forth by Defendant during the
Batson hearing at trial, see Hobbs, 374 N.C. at 356, we understand the proper scope
of our review on appeal to include all relevant information in the Record at the time,
regardless of whether Defendant’s arguments at trial specifically invoked that
information.4 This approach comports with that used by the U.S. Supreme Court.
4 This further highlights an emergent distinction in our caselaw between substantively correct
Batson analyses—analyses that correctly answer whether the State purposefully discriminated based
on race—and procedurally correct Batson analyses—analyses that adequately addresses a defendant’s
Batson arguments at step one and three. A Batson proceeding, even if substantively correct, may be
procedurally deficient if either we or the trial court fail to adequately address a defendant’s arguments.
Compare Hobbs, 374 N.C. at 360 (reversing and remanding to the trial court at Batson’s third step, in
part, for “failing to engage in a comparative juror analysis of the prospective juror’s voir dire responses
and failing to consider the historical evidence of discrimination that [the defendant] raised”) with State
v. Hobbs, 384 N.C. 144, 156-57 (2023) (holding, in the same case, that the trial court did not clearly
err in its substantive Batson ruling). Thus, under Hobbs, a Batson ruling may be overturned on appeal
on substantive grounds for any reason clear from the Record at the time of the ruling; however, Batson
analyses are only procedurally deficient if they fail to respond to a defendant’s arguments.
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Miller-El v. Dretke, 545 U.S. 231, 240-44 (2005) (conducting a comparative juror
analysis on appeal not used before the trial court).
This analysis also mirrors the scope of review applied to clear error in our First
Amendment jurisprudence. “In cases raising First Amendment issues[,] an appellate
court has an obligation to make an independent examination of the whole record in
order to make sure that the judgment does not constitute a forbidden intrusion on
the field of free expression.” State v. Taylor, 379 N.C. 589, 608 (2021) (marks omitted)
(quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)). This
whole record review “does not empower an appellate court to ignore a trial court’s
factual determinations[,]” id.; rather, the underlying “credibility determinations are
reviewed under the clearly-erroneous standard because the trier of fact has had the
opportunity to observe the demeanor of the witnesses[.]” Desmond v. News &
Observer Publ’g Co., 375 N.C. 21, 43 (2020) (quoting Harte-Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 689 (1989)). This whole record review does not
necessarily require a detailed written exploration of all salient features of a record,
only that such a review have actually occurred.5 E.g. Mitchell v. Univ. of N.C. Bd. of
Governors, 288 N.C. App. 232, 242-43 (2023). Our Batson analysis, therefore, is not
5 This scope of review also, we think, best suits both the practical and substantive needs of our
justice system, balancing the paramount importance of ensuring that racial discrimination not occur
in North Carolina’s jury pools with the need to avoid the systemic inefficiency that would result from
a written analysis spanning the entire Record in every case on appeal. Batson v. Kentucky, 476 U.S.
at 99 (1986) (“[P]ublic respect for our criminal justice system and the rule of law will be strengthened
if we ensure that no citizen is disqualified from jury service because of his race.”).
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STATE V. DIXON
Opinion of the Court
only consistent with the existing Batson caselaw, but also mirrored elsewhere in our
State’s constitutional clear error jurisprudence.
For these reasons, we base our analysis on a review of the whole record,
engaging in a full, written analysis of all arguments raised by Defendant at trial, as
required by Hobbs. Hobbs, 374 N.C. at 356. We also, for methodological clarity,
address in writing most6 arguments Defendant raises for the first time on appeal;
those arguments, while not encompassed under the procedural command of Hobbs,
still factor into our review of the whole record.
2. Race and Views About Race
Defendant has made two arguments pertaining to stricken jurors “who
expressed concern about racial disparities”—one as to R.D. and another as to three
white prospective jurors. Thus, as a second threshold issue, we devote this section of
the opinion to clarifying whether and to what extent these arguments factor into our
analysis.
Our Supreme Court has made clear that, at step three of Batson,
“[t]he ultimate inquiry is whether the State was motivated
in substantial part by discriminatory intent.” Flowers, 139
S. Ct. at 2244 (cleaned up). Thus, “[n]o matter how closely
tied or significantly correlated to race the explanation for a
peremptory strike may be, the strike does not implicate the
Equal Protection Clause unless it is based on race.”
Hernandez [v. New York, 500 U.S. 352, 375 (1991)]
6 We do not include Defendant’s evidence and arguments pertaining to death penalty statistics
by race in North Carolina in our analysis because, as Defendant concedes, this evidence was not in the
record before the trial court at the time of the Batson hearing.
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Opinion of the Court
(O’Connor, J., concurring).
State v. Campbell, 384 N.C. 126, 135 (2023). In other words, “[u]nless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered
will be deemed race neutral.” Id. at 134-35 (citing Hernandez, 500 U.S. at 360).
Race, for all the discussion devoted to it in the legal field and beyond, naturally
generates a variety of viewpoints as to the nature and extent of its significance, as
well as what norms and policies ought to be adopted surrounding it. Cf. Mitchell, 288
N.C. App. at 246 (Murphy, J., concurring in part and dissenting in part) (citing Kevin
Laland, Racism in academia, and why the ‘little things’ matter, Nature (Aug. 25,
2020), https://www.nature.com/articles/d41586-020-02471-6; John
McWhorter, Words Have Lost Their Common Meaning, The Atlantic (Mar. 31, 2021),
https://www.theatlantic.com/ideas/archive/2021/03/nation-divided-
language/618461/; Yuvraj Joshi, Racial Transition, 98 Wash. U. L. Rev. 1181, 1203-
1208 (2021)) (“Copious amounts of ink have been spilled over what the significance of
race in academia should be, what constitutes racism, and how to solve the myriad of
problems it poses.”). Just as naturally, we would not expect—nor is it in fact the
case—that all members of a given racial group subscribe to the same views about race
or that a particular view about race canonically expresses the interests of any given
group. For this reason, a peremptory strike employed on the basis of a stricken juror’s
views about race, standing alone, will not itself establish a violation of Batson, “[n]o
matter how closely tied . . . to race th[at] explanation for a peremptory strike may be,”
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Opinion of the Court
topically speaking. Campbell, 384 N.C. at 135 (citing Hernandez, 500 U.S. at 375).
Nonetheless, just as views about race are not identical with race, they are also
not fully separable from an inquiry—taking “all of the circumstances that bear upon
the issue of racial animosity” into account—as to whether a strike had been used with
discriminatory intent. Waring, 364 N.C. at 475. After all, if the State were of a mind
to strike a juror based on his or her race, the same discriminatory animus that
motivated a strike based on race would also tend to motivate strikes of jurors
espousing a special sympathy for that racial group, especially in a case where the
race of the stricken juror and the race of the defendant align. Put differently, while
it is not, in fact, the case that discrimination based on race and discrimination based
on views about race are the same for Batson analysis purposes, the two would run
closely enough together in the mind of the discriminator that a racial-views-based
strike can operate as a “plus factor” with respect to an allegedly race-based strike.
Accordingly, to the extent Defendant alleges the strike of juror R.D. having
been based on his views about race would amount to a strike based on race, we reject
that argument. However, to the extent Defendant offers R.D.’s views about race and
the views of the three stricken white jurors as context to support an allegation that
the strike of R.D. was pretextual, we consider his argument for that limited purpose.
3. Batson Analysis
Turning to the merits, Defendant argues that the State’s proffered race-neutral
reasons for its strike—reservations about the death penalty—was pretextual for the
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Opinion of the Court
following reasons: first, juror R.D. did not actually express an inability to impose the
death penalty, yet he was asked questions similar to those asked of jurors who
expressed an inability to do so; second, the State accepted similarly situated white
jurors, J.C. and C.D., who also expressed reservations about the death penalty; third,
the State used peremptory strikes on jurors X.I., D.F., and B.M., “who expressed race-
based concerns”; and, finally, the jury pool being almost entirely white rendered this
case more susceptible to racial discrimination. Meanwhile, in addition to disputing
Defendant’s arguments, the State points us to the fact that both Defendant and the
alleged victims were African American and directs our attention to another white
juror it struck, M.K., who was allegedly similar to R.D.
The voir dire responses of J.C., which Defendant alleges demonstrated similar
reservations about the death penalty to R.D., were as follows:
[THE STATE]: As you’re aware the one we’re trying is
charged with first degree murder, and the two possible
penalties for first degree murder are life in prison or a
death sentence. And with that in mind, do you have any
moral, philosophical, or religious beliefs or opinions against
the death penalty?
[J.C.]: No, sir.
[THE STATE]: So no particularly strong belief one way or
the other?
[J.C.]: No, sir.
[THE STATE]: Okay. So if -- in light of that, under the
evidence that was produced, if you thought that a death
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Opinion of the Court
sentence was the appropriate punishment you would be
able to vote for that?
[J.C.]: Yes.
[THE STATE]: And likewise, if you thought a sentence of
life in prison was appropriate, you would be able to vote for
that?
[J.C.]: Yes, sir.
....
[THE STATE:] [I]f the Defendant was found guilty of first
degree murder, would your feelings about the death
penalty substantially impair your ability at the sentencing
hearing to impose a death sentence no matter what the
evidence was?
[J.C.]: Yes.
[THE STATE]: So you think that your feelings about the
death penalty might cause a problem?
[J.C.]: Yes.
[THE STATE]: All right. And what are those feelings you
have about --
[J.C.]: Just the way we was brought up as a family, you do
not take a life.
[THE STATE]: Okay. So the way you were brought up, do
not take a life, think that would affect your ability to sit
and consider whether or not to impose a death sentence?
[J.C.]: It could.
[THE STATE]: And are those feelings so strong that you
don’t think under any circumstance you could vote for a
death sentence?
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Opinion of the Court
[J.C.]: No, not that I can -- I don’t think so. I’d have to
know what the circumstances were.
[THE STATE]: Okay. So then what you’re telling me is
there might be circumstances that you felt were sufficient
to call for a death sentence but you would -- that wouldn’t
be your first inclination?
[J.C.]: Right.
[THE STATE]: And would you be able to keep an open and
fair and impartial mind about those issues until you’ve
heard all the evidence and Judge Horne has instructed you
about the law?
[J.C.]: I hope I could.
[THE STATE]: I guess the bottomline question then is, and
again, not sort of an academic one. In this it’s a very direct
question. If you thought the evidence called for it, could
you walk in here and tell the Court that you voted for
death?
[J.C.]: Yes, sir.
The responses of C.D., which Defendant offers for the same purpose, were as follows:
[THE STATE]: Do you have any moral or religious
objections to or opinions against the death penalty?
[C.D.]: I don’t really like the death penalty, but I would be
willing to give my vote whether or not the evidence
provided that the person was guilty or not.
....
[THE STATE]: And is that belief that you have, that
opinion that you don’t like the death penalty, is that strong
enough that it would keep you under any circumstances
from voting for a sentence of death?
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Opinion of the Court
[C.D.]: No, it wouldn’t impede my decision.
....
[THE STATE]: So you -- despite not really, as you put it,
not really liking the death penalty, you think under some
circumstances at least you would be able to vote in favor of
a sentence of death?
[C.D.]: If he was guilty, yes.
[THE STATE]: Well, if he’s guilty, then you also realize
that you would be obligated to weigh both the sentence of
life in prison and the death sentence.
[C.D.]: Yes.
[THE STATE]: You could consider both?
[C.D.]: Yes.
[THE STATE]: And would you be able to go through that
process of hearing about aggravating circumstances and
mitigating circumstances and weigh those?
[C.D.]: Yes.
[THE STATE]: And if you felt like that the appropriate
sentence was one of -- was a death sentence, would you be
able to vote for that?
[C.D.]: Yes.
[THE STATE]: Would you be able to walk back into court
and announce that that was your verdict?
[C.D.]: Yes.
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STATE V. DIXON
Opinion of the Court
[THE STATE]: Similarly, if you felt like the appropriate
sentence was one of life in prison, would you be able to vote
that?
[C.D.]: Yes.
[THE STATE]: And would you be able to walk back here
in court and announce that that was your verdict?
[C.D.]: Yes.
When asked whether she could render a verdict free of racial bias, X.I.
affirmatively brought up the scarcity of African Americans on the jury, and D.F.
agreed:
[X.I.:] I thought it was odd that so far it looked like all the
people you had to choose from were Caucasians, so I
thought that was odd.
[D.F.]: I thought that, too.
[X.I.]: I was concerned you wouldn’t end up having any
African Americans on your jury.
[THE STATE]: Well, obviously, that is an issue in today’s
world.
[X.I.]: You can only have what you call in, so I was
concerned.
[THE STATE]: And again, that’s why it’s important to get
these issues out.
The State eventually exercised peremptory strikes against both D.F. and X.I., though
D.F.’s strike occurred only after she reported that Defendant waved at her.
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Opinion of the Court
Later during voir dire, B.M., in response to a similar question about rendering
a verdict free of racial bias, made the following remark:
[B.M.:] I [] think it’s going to be challenging because he’s
African American; and basically everybody in here except
for those sitting out in the gallery are not; and so I can’t
presume to understand his background at all. And so yes -
- so that adheres to it. I’m not one who has this color blind
mind set. I fully am aware of my status and my privilege
and who I am as far as my race.
The State exercised a peremptory strike against B.M.
Finally, the State argues another allegedly similar white prospective juror that
it struck during voir dire, M.K., was similar to R.D.:
[THE STATE:] [M.K.], do you have any moral,
philosophical, religious beliefs or opinions against the
death penalty?
[M.K.]: I’m a homeschooling mother, and I raised my
children -- we did Government. Don’t ask me anything
about it now. But I raised them to understand that our
laws are placed here by God and that we honor them and
also that everyone of you are in here appointed by God.
[THE STATE]: I’m sorry, I didn’t hear what you said.
[M.K.]: That everybody in here is appointed in authority by
God, and my children are to do the right thing, whatever it
is. I don’t -- I don’t like -- I don’t think about the death
penalty. I just have to be honest. But I do read a lot in
scripture and different things. I know how God set up
things. I know he has grace and mercy. But I also know
he has justice before he can even extend mercy. I can’t say
that I have a problem with the death penalty. We’re all
under a death penalty eventually anyway. But for me to
play that part, I would have to know in my heart beyond a
shadow of a doubt that that really is what the answer
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STATE V. DIXON
Opinion of the Court
should be. I have to know from what you-all are saying
that’s something that should be put in place or not put in
place. I can’t make a decision. I’m not quite sure -- I don’t
have a problem -- I do have a problem. Like I can’t imagine
somebody not having a problem with it. But I just have to
hear everything, you know.
[THE STATE]: Okay. Well, obviously this is a very -- it’s
a very serious question, and I think no one would do any of
this lightly.
[M.K.]: Yeah. If I had to, I would. If I really, really felt
strong, but I would have to really feel strong about it.
[THE STATE]: Okay?
[M.K.]: I can’t -- I can’t imagine.
[THE STATE]: Okay.
[M.K.]: Have to think about this issue.
[THE STATE]: So are your feelings -- let’s see. Are your
beliefs such that you think under some circumstances you
could vote in favor of a death sentence?
[M.K.]: It would have to be a very extreme one.
[THE STATE]: Okay. But under a very extreme case, you
think you would be able to -- your beliefs aren’t so strong
that under no circumstance then would you be able to vote
in favor of a death sentence?
[M.K.]: No, my belief -- no.
[THE STATE]: You would under -- I believe as you put it,
extreme circumstances, you would be able to vote for such
a thing -- for a death sentence?
[M.K.]: Yeah, it would have to be proven extreme for me.
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Opinion of the Court
[THE STATE]: Okay. And do you think because of these
strong personal feelings you have you would already be
predisposed to vote for a sentence of life in prison?
[M.K.]: I have no -- no.
[THE STATE]: So you would come in -- again, be able to --
[M.K.]: I don’t know what is going on with any of this stuff,
and I have no agenda in my mind.
[THE STATE]: Okay. Would your attitude toward the
death penalty prevent you from making an impartial
decision based on the evidence about the Defendant’s guilt
in the first part of the trial?
[M.K.]: My attitude -- you know, I just really would be
seeking the Lord the whole time. I mean I have to -- I don’t
-- I don’t think so.
[THE STATE]: Okay. So you think as far as that first part
where it’s not about the sentencing, it’s just about whether
the Defendant is guilty or innocent of first degree murder.
[M.K.]: Yeah, that’s --
[THE STATE]: I mean that’s still obviously a very serious
decision.
[M.K.]: Yes, it is.
[THE STATE]: Do you think you would be able to -- as a
juror be able to do that part, carry forward that part of your
duties?
[M.K.]: I think I -- you know, if I can get out of this, I will.
You know that. But I think I could make a decision.
[THE STATE]: Okay. When I was going through with
[R.D.] the process then if the Defendant is found guilty of
first degree murder, the process of the aggravating
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STATE V. DIXON
Opinion of the Court
circumstances and the mitigating and the weighing. Were
you able to listen to that?
[M.K.]: Yeah.
[THE STATE]: And again, I know this isn’t stuff you
normally sit around thinking about.
[M.K.]: No, I don’t.
[THE STATE]: These are very difficult questions. And if
the Defendant was found guilty of first degree murder,
would your feelings about the death penalty substantially
impair your ability to vote at the sentencing hearing to
impose a death sentence no matter what the evidence or
aggravating circumstances that were proved?
[M.K.]: Okay. Say that one more time, because it’s heavy.
[THE STATE]: Yes. If the Defendant was found guilty of
first degree murder, would your feelings about the death
penalty substantially impair your ability to vote in the
sentencing hearing to impose a death sentence no matter
what the evidence or aggravating circumstances that were
proved?
[M.K.]: I’m trying to understand the last part of what
you're saying. I don’t -- simply put --
[THE STATE]: Simply put, are your feelings about the
death penalty so strong that they would impair your ability
no matter what the State proved as far as -- what made this
aggravating. No matter what we proved, would your
feelings --
[M.K.]: About the death penalty?
[THE STATE]: About the death penalty --
[M.K.]: Override what --
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Opinion of the Court
[THE STATE]: Substantially impair your ability to vote for
a death sentence no matter what the evidence was?
[M.K.]: I don’t -- you know what, I think I’m not your
person, but I don’t think -- I’ve never been in that position.
I just don’t think I’m your person. I don’t believe that I
would be impartial or partial. I just want to know the
truth, if I’m responsible for something. I don’t think about
the death penalty like I don’t think about life
imprisonment. I don’t think about that stuff. I will just --
when things are presented, that’s when I’ll look at it and
decide what goes on in my -- you know, from what I’m
seeing, from what you’re proving. I don’t know if that helps
you or not, but I don’t know all your legal jargon. But I
don’t think I would object be -- in my own words, I don’t feel
like I would be impartial. I just think I would do whatever
I really felt was the right thing to do.
[THE STATE]: Okay. Well --
[M.K.]: But if you don’t want me, that’s okay.
[THE STATE]: I understand. Kind of strip it down as --
the question down as much as I can.
[M.K.]: Okay.
[THE STATE]: If you thought the evidence called for it --
[M.K.]: Yes.
[THE STATE]: -- could you walk in here and tell the Court
that you had voted for death?
[M.K.]: If I thought the evidence called for death, would I
say that? Is that what you’re saying?
[THE STATE]: Could you vote for it --
[M.K.]: Yes.
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STATE V. DIXON
Opinion of the Court
[THE STATE]: -- and walk in and say you voted for it?
[M.K.]: Yes, if I felt that that called for that, yes.
[THE STATE]: Likewise, if you felt like the evidence called
for a sentence of life in prison, could you --
[M.K.]: If I felt that, yes.
The State exercised a peremptory strike against M.K., doing so at the same time as
it struck R.D.
On this Record, we cannot say the trial court clearly erred in denying
Defendant’s objection at the third step of Batson, though the case is close. See Foster,
578 U.S. at 500. At the outset, the percentage-based strike rate analysis proffered by
Defendant is completely indeterminate, with only two African American jurors
having remained in the jury pool after removals for cause; a fifty-percent strike rate
means almost nothing when that fifty percent represents only a single person.
Similarly, the relative scarcity of African Americans in the jury pool, while perhaps
a problematic phenomenon for racial equity in the justice system in general, is the
product of circumstances outside the State’s control in its prosecutorial capacity. This
factor therefore plays no role in our determination of whether Defendant has
demonstrated “purposeful discrimination” on the part of the State. Taylor, 362 N.C.
at 527.
As often happens in Batson inquiries, the more compelling evidence in this case
is the relative treatment of prospective juror R.D. and white jurors who expressed
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Opinion of the Court
reservations about the death penalty. See Miller-El, 545 U.S. at 241 (“More powerful
than these bare statistics, however, are side-by-side comparisons of some black venire
panelists who were struck and white panelists allowed to serve.”). Comparing the
responses of J.C., C.D., and M.K. to those of R.D., we note that R.D. shares the most
relevant features with M.K. In expressing their respective initial thoughts about the
death penalty, R.D. and M.K. both wavered in their feelings about its application,
albeit under different rationales—R.D. was concerned primarily about racial
disparities in application, while M.K. couched her thoughts in terms of religious
introspection. R.D. and M.K. were also questioned sequentially, minimizing the
likelihood that simple variables like the passage of time or differences in levels of
fatigue on the part of the State affected the comparability of the outcomes. Finally,
R.D. and M.K. both suffered some degree of miscommunication with the State during
questioning that may have undermined the State’s confidence in the juror’s answers,
with R.D. interrupting the State during its explanation of forthcoming procedures
and M.K. indicating she did not understand what the State was saying.
Despite these similarities, there was more reason for the State to doubt M.K.’s
ability to serve as a death-qualified juror than R.D. As stated above, though both
jurors suffered a degree of miscommunication with the State, only M.K. suffered that
miscommunication as a result of failure to comprehend the State. R.D., by contrast,
expressed a confidence and straightforwardness in his responses more comparable to
J.C. and C.D.—whom the State did not strike—than M.K. Notwithstanding that
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Opinion of the Court
difference in demeanor, the State took pains to attempt to rehabilitate M.K. that it
did not with R.D., continuing to clarify and reframe its questions concerning her
ability to serve on the jury even after she directly stated “I’m not your person[.]” And
a similar interaction occurred with J.C., whom the State rehabilitated and accepted
even after he expressed plainly that he could not vote for the death penalty. R.D.
made no comparable remarks.
However, despite this possible contrast in the State’s treatment of the venire
members, we still cannot say that the trial court clearly erred in its determination
that the State permissibly struck R.D. First, as stated previously, the sample size of
African Americans in the jury pool was so small that it would have been impossible
to extrapolate a meaningful pattern from the State’s treatment of African American
jurors as opposed to jurors of other races. R.D. was the only African American juror
against whom the State exercised a peremptory strike, and the only other African
American venireman questioned at the time of the Batson hearing was accepted
without issue and subject to no irregular questioning patterns. Second, despite the
potentially unfavorable treatment of R.D. by the State relative to other jurors who
expressed reservations about the death penalty, the fact remains that the manner
and reasoning with which R.D. expressed those reservations were unique, with no
other allegedly similar juror expressing substantively comparable thoughts. On this
Record, considering whether the State’s explanation was pretextual, we are not “left
with the definite and firm conviction that a mistake ha[d] been committed” by the
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Opinion of the Court
trial court in overruling Defendant’s objection. Clegg, 380 N.C. at 141.
Finally, applying the clearly erroneous standard, we are no less confident in
this conclusion in light of the State’s pattern of striking jurors who expressed
concerns relating to race. If anything, without evidence of racially discriminatory
intent elsewhere in the State’s striking or questioning patterns, the consistency with
which the State struck potential jurors who volunteered their views about issues of
race—three out of four of whom were white—suggests that the State exercised a
peremptory strike against R.D. because it was uniquely averse to the reason he gave
for his reservations about the death penalty, not because R.D. is African American.
We cannot be confident the trial court was mistaken in its conclusion that
reservations about the death penalty explained the exercise of the State’s strike of
R.D., see id., and we therefore hold the trial court did not err with respect to
Defendant’s Batson challenge.
B. Motions for Mistrial
Defendant next argues the trial court abused its discretion by denying his
motions for mistrial. “This Court reviews a trial court’s denial of a motion for mistrial
under an abuse of discretion standard.” State v. McDougald, 2021-NCCOA-424, ¶ 7,
279 N.C. App. 25, 27 (2021). “The decision of the trial judge is entitled to great
deference since he is in a far better position than an appellate court to determine
whether the degree of influence on the jury was irreparable.” State v. Williamson,
333 N.C. 128, 138 (1992).
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Opinion of the Court
Here, the trial court did not abuse its discretion in denying Defendant’s
mistrial motions. The trial court found there was “not evidence before [it] at [that]
time . . . that there [had] been and [was] substantial and irreparable prejudice to
[Defendant’s] case in that [there was] no evidence before [it] that the 12 jurors or the
alternate ha[d] any knowledge at th[at] point.” Moreover, the transcript
demonstrates that, when the Buncombe County District Attorney’s press release
concerning the death of the State’s witness was brought to the trial court’s attention,
“no impaneled juror indicated they had knowledge of [the] death”; that, “[a]t that
point, the [R]ecord d[id] not indicate that any other jurors said they were aware of
[the] death or had viewed any media reports related to it or this case”; that the juror
who became aware of the press release “stated no other jurors had said anything to
him about having any concerns about their safety or being afraid”; and that the trial
court issued a curative instruction regarding the use of cell phones after another juror
sent a text message to the clerk during trial about information he inadvertently
learned.
Based on this Record, we cannot conclude that the trial court abused its
discretion in denying these mistrial motions. Defendant has not offered any evidence
or arguments that overcome the fact, as found by the trial court, that none of the
impaneled jurors knew about the District Attorney’s press release when the court
considered Defendant’s first mistrial motion. When the second mistrial motion was
heard—occurring only after deliberations finished and the verdict was announced—
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Opinion of the Court
the trial court was in the best position to gauge the veracity of the juror who used his
cell phone and only inadvertently saw a headline, not the full details of an
independent news broadcast, and unequivocally denied that the information
regarding the death of the State’s witness impaired his ability to be fair and
impartial. These facts do not rise to the level of an abuse of discretion.
C. Recusal
Finally, Defendant argues the trial court erred by conducting a hearing on his
final motion for mistrial itself. N.C.G.S. § 15A-1223(e) provides that “[a] judge must
disqualify himself from presiding over a criminal trial or proceeding if he is a witness
for or against one of the parties in the case.” N.C.G.S. § 15A-1223(e) (2021). A
defendant must prove “objectively that grounds for disqualification actually exist”
and “show substantial evidence that there exists such a personal bias, prejudice or
interest on the part of the judge that he would be unable to rule impartially.” State
v. Fie, 320 N.C. 626, 627 (1987). “Our task on appeal is not to determine whether the
trial court’s decisions throughout the proceedings leading up to the [underlying
motion] were appropriate, but whether, in light of [his] previous involvement with
this case, ‘the circumstances are such that a reasonable person would question
whether the judge could rule impartially’ . . . .” In re: E.D.-A., __ N.C. App. __, __
(2023) (quoting Harrington v. Wall, 212 N.C. App. 25, 34 (2011)). We review a trial
court’s ruling on a judicial recusal motion de novo. Dalenko v. Peden Gen.
Contractors, Inc., 197 N.C. App. 115, 123 (2009), disc. rev. denied, 363 N.C. 854- 37 -
STATE V. DIXON
Opinion of the Court
(2010).
Here, despite his assertion that “the resolution of [the final motion for mistrial]
hinged on [the trial judge’s] own testimony[,]” Defendant has not shown that the trial
judge was a witness for or against one of the parties in the case. Rather, the trial
judge only became a witness as it relates to the recusal motion itself, which does not
inherently constitute legal error. See State v. Kennedy, 110 N.C. App. 302, 306 (1993)
(“[T]here was no error in the trial judge’s failure to recuse himself. Having
established that there were no facts presented to cause a reasonable person to doubt
the trial judge’s impartiality; there is also no error in the trial judge’s failure to refer
the motion to recuse to another judge.”). Defendant’s assertions that the trial judge
acted as a “witness” obfuscate the fact that the substantive issue alleged with respect
to Defendant’s final motion for mistrial was the extrinsic factual knowledge of a juror,
not the acts or omissions of the trial judge. And while the Record does reveal that a
miscommunication between the bailiff and the trial judge may have occurred with
respect to the underlying juror knowledge, we have no reason to believe “there
exist[ed] such a personal bias, prejudice or interest on the part of the judge that he
would be unable to rule impartially[,]” especially given the secondary importance of
the miscommunication to the actual subject of the mistrial motion. Fie, 320 N.C. at
627. The trial court therefore did not err in denying Defendant’s motion for recusal.
CONCLUSION
The trial court correctly overruled Defendant’s Batson objection at step three,
- 38 -
STATE V. DIXON
Opinion of the Court
and it did not err in denying his motions for mistrial or failing to recuse.
NO ERROR.
Chief Judge STROUD and Judge ZACHARY concur in the result only.
- 39 -