State v. Floyd , 115 N.C. App. 412 ( 1994 )

Judge Greene

dissenting.

I disagree, for the reasons given below, with the majority’s conclusion that “the transcript revealed valid race neutral reasons, articulated by the prosecutor, for excusing the prospective black jurors, and, giving the trial judge’s findings due deference, we are compelled to affirm the judge’s ruling.”

A defendant has “the ultimate burden of persuading the court that intentional racial discrimination has guided the use of peremptory challenges,” and our courts have noted several factors for the trial judge to consider in determining whether a defendant has met this ultimate burden. State v. Porter, 326 N.C. 489, 497-98, 391 S.E.2d 144, 150 (1990). The trial judge should consider “ ‘the susceptibility of the particular case to racial discrimination,’ ” taking into account “[t]he race of the defendant, the victims, and the key witnesses,” “the prosecutor’s demeanor to determine whether the prosecutor is ‘engaging in a careful process of deliberation based on many factors,’ ” and “the explanation itself.” Id. at 498, 391 S.E.2d at 150-51. In evaluating the prosecutor’s explanation, reference to objective and subjective criteria is involved, and “[t]he trial judge should consider whether ‘similarly situated white veniremen escaped the State’s challenges’ and ‘the relevance of the State’s justification’ to the case at trial.” Porter, 326 N.C. at 498, 391 S.E.2d at 151. In addition, “[t]he trial judge should evaluate the explanation ‘in light of the explanations offered for the prosecutor’s other peremptory strikes’ and ‘the strength of the prima facie case.’ ” Id. at 498-99, 391 S.E.2d at 151. “In reviewing both the substantive validity of the State’s proffered reasons and the prosecutor’s credibility in so offering them, the trial judge should take great care to assure that these reasons axe bona fide and not simply ‘sham excuses belatedly contrived to avoid admitting acts of group discrimination ....’” State v. Sanders, 95 N.C. App. 494, 499-500, 383 S.E.2d 409, 413, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989). The prosecutor’s questions and statements during jury selection are also relevant, and “the prosecution’s ‘use of a disproportionate number of peremptory challenges to strike black jurors in a single case’ ” is “indicative of racial discrimination.” State v. Thomas, 329 N.C. 423, 431, 407 S.E.2d 141, 147 (1991).

The circumstances of this case and the transcript of the voir dire reveal that the prosecutor used five of his six peremptory challenges to exclude every African-American called into the jury box and that “similarly situated white veniremen escaped the State’s challenges” due to disparate treatment of similarly situated veniremembers of different races. Therefore, the prosecutor’s reasons for using peremptory challenges against prospective black jurors were merely pretextual. For example, the prosecutor gave two reasons for challenging the first prospective black juror. First, the prosecutor stated the first prospective black juror had trouble understanding the burden of proof. Second, she had a son about defendant’s age who had committed a breaking and entering.

Under the first reason, the following exchange took place between the prosecutor and the first prospective black juror:

Mr. Stiehl: . . . you heard [J]udge Britt earlier talking about the state has the burden of proving guilt beyond a reasonable doubt. Do you recall those words?

Juror #5: Yes.

Mr. Stiehl: Okay. And do you understand that that does not require the state to prove guilt beyond all doubt or all shadow of a doubt?

Juror #5: Yes.

Mr. Stiehl: Okay. Do you understand what your duty as a juror would be should the state prove guilt beyond a reasonable doubt in this case?

Juror #5: Yes.

Mr. Stiehl: And what would that be?

Juror #5: That, um — after you said it — um, for me to be fair about everything that I hear and say.

The prosecutor then ended her voir dire and did not explain what would happen in such a situation or ask the trial judge for additional instructions. For the non-African American prospective jurors, the prosecutor did not ask any open-ended questions about the reasonable doubt standard; rather, he either asked close-ended questions or none at all. A typical exchange when the prosecutor asked a prospective white juror about the reasonable doubt standard is as follows:

Mr. Stiehl: ... Do you understand that as [J]udge Britt was mentioning to all of the jurors earlier, that the defendant is before you and other jurors and he’s presumed innocent? In other words, it’s up to the state of North Carolina to prove guilt through this trial beyond a reasonable doubt? Do you remember those words?

Juror #4:1 understand that.

Mr. Stiehl: Okay. And I think in fact you may have even seen a video earlier, probably yesterday if you reported yesterday, where they talked about criminal cases and civil cases and “your role as a juror” I believe is how it’s presented?

Juror #4: Yes, sir.

Mr. Stiehl: Anything about any of the presumption of innocence, proof of guilt beyond a reasonable doubt, anything that you’ve heard thus far that you feel you and I need to talk about, or you feel comfortable with everything?

Juror #4: No, I feel comfortable, sure.

The prosecutor also asked the prospective jurors if “either yourselves or a close friend or relative [had been] charged with armed robbery, some type of theft, or an assault such as assault with a deadly weapon with intent to kill inflicting serious injury or some type of lesser assault.” The following exchange took place between the first prospective black juror and the prosecutor:

Juror #5: Yes. It was a, uh — (pause)—uh, a robbery. Uh, and my son was involved in it somehow. I didn’t even know—

Mr. Stiehl: Was that here in Cumberland County?

Juror #5: Yes. No, I have that wrong. That was a breaking and entering.

Mr. Stiehl: Okay.

Juror #5: It wasn’t no robbery.

Mr. Stiehl: And was it allegedly a home or a business that was involved?

Juror #5:1 don’t even know.

Mr. Stiehl: Okay. Thank you, ma’am.

When the prosecutor questioned a prospective white juror about her husband’s acquittal for felonious assault, however, he asked her detailed questions and made statements such as “did your husband have a belief that possibly he was going to be robbed,” “[s]o it was a jury trial,” and “[he was found] not guilty.” In addition, he asked this prospective white juror, “Is there anything about that experience that — that would prevent you from being fair to either side in this case?” The prosecutor told the trial judge that his reason for challenging the first prospective black juror but not the prospective white juror is as follows:

Additionally, [the first prospective black juror] said her son had been involved in a breaking or entering — she didn’t come down here — that was involved in it. Apart from [the prospective white juror] who went into a length — lengthy explanation about how she in fact had been the victim in a case, and how she and her husband had — or her husband had been found not guilty, uh, whereby it was a two on one confrontation that took place out on the roadway versus, uh, [the first prospective black juror]’s son who, uh, either was caught red handed or tied to a break-in and there being no excuse offered or tendered by [the first prospective black juror] concerning her son’s activities. Uh, that is what distinguished [the prospective white juror] from [the first prospective black juror].

The prosecutor, however, did not question the first prospective black juror about the incident with her son and did not ask her “[i]s there anything about that experience that — that would prevent you from being fair to either side in this case” as he did the prospective white juror.

I find it unnecessary to recite the transcript for each prospective black juror excused by the prosecutor because the disparate treatment of this juror alone, coupled with the fact that the prosecutor used five of his six peremptory challenges to exclude every African-American called into the jury box, shows that the prosecutor’s reasons were not “bona fide” and were “sham excuses belatedly contrived to avoid admitting acts of group discrimination” and therefore violated defendant’s right to a jury selected without regard to race. See generally Gamble v. State, 357 S.E.2d 792, 795 (Ga. 1987). For these reasons, I would grant defendant a new trial.