State v. BennettÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1027
Filed: 16 October 2018
Sampson County, No. 15 CRS 53153-54, 156, 165
STATE OF NORTH CAROLINA
v.
CORY DION BENNETT, Defendant.
Appeal by defendant from judgments entered on or about 16 March 2017 by
Judge John E. Nobles, Jr. in Superior Court, Sampson County. Heard in the Court
of Appeals 2 April 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
Kiziah, for the State.
Franklin E. Wells, Jr., for defendant-appellant.
STROUD, Judge.
Defendant appeals from convictions for several drug-related offenses.
Defendant’s Batson argument regarding jurors stricken by the State fails because he
failed to make a prima facie case that the State’s challenges were racially motivated.
The trial court’s jury instruction on acting in concert was supported by the evidence.
We conclude there was no error in defendant’s trial.
I. Background
STATE V. BENNETT
Opinion of the Court
On 4 December 2015, law enforcement officers responded to a complaint about
drug activity at a mobile home where defendant and his girlfriend, Ms. Smith,1 had
been living for about two months. Their landlord met the officers at the residence
and knocked on the door. Ms. Smith opened the door to the home and officers
immediately smelled a chemical odor associated with making methamphetamine.
During their initial pat-down of defendant, they found a methamphetamine pipe and
a receipt from IGA, dated 4 December 2015, for crystal lye. During their initial sweep
of the home when they arrested defendant and Ms. Smith, the officers found items
used in making methamphetamine including pliers, rubber gloves, measuring
devices, lithium batteries, lye, and aluminum foil; they also found drug paraphernalia
including a methamphetamine pipe, chemicals used to make methamphetamine, and
Sudafed pills. When he was standing outside the residence, Sudafed pills began
falling out of defendant’s pants.2 The officers got a search warrant, and, during the
search of the mobile home under the warrant, they found much more drug
paraphernalia and many other items associated with methamphetamine production
throughout the home. Defendant was tried by a jury and convicted of five counts of
possession of methamphetamine precursor, one count of manufacturing
1 We will use a pseudonym to protect the privacy of this witness.
2Defendant later told the officers the bags of pills had fallen into his pants when he was sitting
on the couch because he wears his pants low.
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Opinion of the Court
methamphetamine, and two counts of trafficking in methamphetamine. Defendant
timely appeals his convictions to this Court.
II. Jury Selection
Defendant first contends that “[t]he trial judge erred in his handling of
[d]efendant’s Batson motion because there was prima facie evidence that the
prosecutor’s use of peremptory strikes was racially motivated.” (Original in all caps).
“The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution and Article I, Section 26 of the North Carolina Constitution
prohibit race-based peremptory challenges during jury selection.” State v. Taylor,
362 N.C. 514, 527, 669 S.E.2d 239, 253–54 (2008). Moreover,
[t]he clear error standard is a federal standard of review
adopted by our courts for appellate review of the Batson
inquiry.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69
(1986), modified, Powers v. Ohio, 499 U.S. 400, 111 S. Ct.
1364, 113 L. Ed. 2d 411 (1991), the United States Supreme
Court established a three-step test to determine whether
the State’s peremptory challenges of prospective jurors are
purposefully discriminatory. Under Batson, the defendant
must first successfully establish a prima facie case of
purposeful discrimination. If the prima facie case is not
established, it follows that the peremptory challenges are
allowed. If the prima facie case is established, however, the
burden shifts to the prosecutor to offer a race-neutral
explanation for each peremptory challenge at issue. If the
prosecutor fails to rebut the prima facie case of racial
discrimination with race-neutral explanations, it follows
that the peremptory challenges are not allowed. Finally,
the trial court must determine whether the defendant has
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Opinion of the Court
proven purposeful discrimination.
If the prosecutor volunteers his reasons for the
peremptory challenges in question before the trial court
rules whether the defendant has made a prima facie
showing or if the trial court requires the prosecutor to give
his reasons without ruling on the question of a prima facie
showing, the question of whether the defendant has made
a prima facie showing becomes moot, and it becomes the
responsibility of the trial court to make appropriate
findings on whether the stated reasons are a credible,
nondiscriminatory basis for the challenges or simply
pretext.
State v. Wright, 189 N.C. App. 346, 351, 658 S.E.2d 60, 63-64 (2008) (citations and
quotation marks omitted).
In reviewing this determination, we are mindful
that trial courts, given their experience in supervising voir
dire and their ability to observe the prosecutor’s questions
and demeanor firsthand, are well qualified to decide if the
circumstances concerning the prosecutor’s use of
peremptory challenges creates a prima facie case of
discrimination. The trial court’s findings will be upheld on
appeal unless they are clearly erroneous-that is, unless “on
the entire evidence we are left with the definite and firm
conviction that a mistake has been committed.
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Opinion of the Court
Taylor, 362 N.C. at 527-28, 669 S.E.2d at 254 (citations, quotation marks, and
brackets omitted).
To establish a prima facie case of “purposeful discrimination,” a defendant
must show that the State used peremptory challenges to remove jurors on the basis
of race. Review of the denial of a Batson challenge is highly fact specific, and cannot
be reduced to simple formula:
In deciding whether the defendant has made the
requisite showing, the trial court should consider all
relevant circumstances. For example, a “pattern” of strikes
against black jurors included in the particular venire might
give rise to an inference of discrimination. Similarly, the
prosecutor’s questions and statements during voir
dire examination and in exercising his challenges may
support or refute an inference of discriminatory purpose.
These examples are merely illustrative. We have
confidence that trial judges, experienced in
supervising voir dire, will be able to decide if the
circumstances concerning the prosecutor’s use of
peremptory challenges creates a prima facie case of
discrimination against . . . jurors [of a certain race].
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Opinion of the Court
Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69,
88 (1986); see also State v. Smith, 328 N.C. 99, 120-21, 400 S.E.2d 712, 724 (1991)
(“We have also considered questions and statements made by the prosecutor during
voir dire examination and in exercising his peremptories which may either lend
support to or refute an inference of discrimination. . . . We have concluded that the
discrimination in a case need not be pervasive, as even a single act of invidious
discrimination may form the basis for an equal protection violation.” (Citations,
quotation marks, and brackets omitted)). Because of the fact specific nature of any
Batson challenge, the Supreme Court “decline[d] . . . to formulate particular
procedures to be followed upon a defendant’s timely objection to a prosecutor’s
challenges.” Batson, 476 U.S. at 99, 106 S. Ct. at 1724-25, 90 L. Ed. 2d at 89-90.
The record must contain evidence sufficient to conduct a review of the
defendant’s specific argument on appeal. See State v. Brogden, 329 N.C. 534, 546,
407 S.E.2d 158, 166 (1991). Depending on the specific argument of the defendant,
the evidence required for appellate review may include record evidence of the race of
certain or all members of the jury pool. For proper review of denial of a Batson
challenge, it is necessary that the record establishes the race of any prospective juror
that the defendant contends was unconstitutionally excused for discriminatory
purpose by peremptory challenge. Our Supreme Court has addressed this issue:
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Opinion of the Court
If a defendant in cases such as this believes a
prospective juror to be of a particular race, he can bring this
fact to the trial court’s attention and ensure that it is made
a part of the record. Further, if there is any question as to
the prospective juror’s race, this issue should be resolved by
the trial court based upon questioning of the juror or other
proper evidence[.]
State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2d 554, 557 (1988) (emphasis
added).3 If there is not any question about a prospective juror’s race, neither the
defendant nor the trial court is required to make inquiry regarding that prospective
juror’s race:
The race of one of the peremptorily challenged jurors
was not clearly discernible to the attorneys in this case or
to the judge. The court found as fact that this prospective
juror was either black or Indian. Our Supreme Court has
stated that “if there is any question as to the prospective
juror’s race, this issue should be resolved by the trial court
3 We note that our Supreme Court did not dismiss the defendant’s Batson argument in
Mitchell, it considered then “overruled” the defendant’s Batson argument. Mitchell, 321 N.C. at 656,
365 S.E.2d at 557-58.
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Opinion of the Court
based upon questioning of the juror or other proper
evidence.” State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2
d 554, 557 (1988). In this case no inquiry was made and
the question was left unanswered. Defendant has
therefore failed to present a sufficient record on appeal to
include this prospective juror in the category of black
prospective jurors peremptorily challenged.
State v. Robinson, 97 N.C. App. 597, 601, 389 S.E.2d 417, 420 (1990) (emphasis
added).
We do not believe that the Supreme Court cases cited by the concurring opinion
stand for the principle that the only method a trial court may use to support a finding
concerning the race of a prospective juror is to ask that juror (and, apparently, just
accept the juror’s racial self-identification). As the concurring opinion apparently
recognizes by citing Brogden, all our Supreme Court requires is “proper evidence [of]
the race of each juror[.]” Brogden, 329 N.C. at 546, 407 S.E.2d at 166. Certainly, not
all African-Americans can be readily identified as such based upon outward
appearances. That is why our Supreme Court rejected a scheme whereby the races
of prospective jurors could be established for the record based upon notations of an
attorney or a court reporter’s “subjective impressions.” Id. When the race of a
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Opinion of the Court
prospective juror is not obvious, a person’s subjective impressions may well be
erroneous.
The concurring opinion conflates the role attorneys and other court personnel
play in the process with the role of the trial court:
Subjective impressions of a juror’s race made by a
court reporter, clerk, or trial counsel are all insufficient to
establish an adequate record on appeal. It follows then that
the subjective impressions of a juror’s race made by the
parties or trial court judge would also be insufficient to
establish a proper record of the juror’s races on appeal.
(Citations omitted) (emphasis added).
We agree that the subjective impressions of the race of a prospective
juror made by “the parties” is not relevant. However, “[t]he trial court has broad
discretion in overseeing voir dire[.]” State v. Campbell, 359 N.C. 644, 666, 617 S.E.2d
1, 15 (2005). In jury voir dire the trial court is charged with making legal
determinations based upon its factual findings.
“To allow for appellate review, the trial court must
make specific findings of fact at each stage of the Batson
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STATE V. BENNETT
Opinion of the Court
inquiry that it reaches.” This Court “must uphold the trial
court's findings unless they are ‘clearly erroneous.’” Under
this standard, the fact finder’s choice between two
permissible views of the evidence “cannot” be considered
clearly erroneous. We reverse “only” when, after reviewing
the entire record, we are “left with the definite and firm
conviction that a mistake has been committed.”
State v. Headen, 206 N.C. App. 109, 114–15, 697 S.E.2d 407, 412 (2010)
(emphasis added) (citations and brackets omitted). “Where the record is silent upon
a particular point, it will be presumed that the trial court acted correctly in
performing his judicial acts and duties.” State v. Fennell, 307 N.C. 258, 262, 297
S.E.2d 393, 396 (1982). This presumption of correctness applies to findings made by
the trial court. State v. James, 321 N.C. 676, 686, 365 S.E.2d 579, 585 (1988).
Further, the judge’s subjective impressions are not only relevant, but an
integral part of the judge’s duties: “Upon review, the trial court’s determination
[whether to excuse a prospective juror] is given great deference because it is based
primarily on evaluations of credibility. Such determinations will be upheld as long
as the decision is not clearly erroneous.” State v. Fair, 354 N.C. 131, 140, 557 S.E.2d
500, 509–10 (2001) (citations omitted). Further:
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Opinion of the Court
[I]t is the trial court that “is entrusted with the duty
to hear testimony, weigh and resolve any conflicts in the
evidence, find the facts, and, then based upon those
findings, render a legal decision, in the first instance, as to
whether or not a constitutional violation of some kind has
occurred.”
State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 67 (2012) (citation omitted).
We disagree with the concurring opinion’s conclusion that findings of fact made
by the trial court should be given no more weight than “[s]ubjective impressions of a
juror’s race made by a court reporter, clerk, or trial counsel . . . .” We also disavow
any suggestion that our holding would permit the trial court to make a finding of fact
about a prospective juror’s race “by accepting an interested party’s or counsel’s
untested perceptions as fact.” We simply hold that if the trial court determines that
it can reliably infer the race of a prospective juror based upon its observations during
voir dire, and it thereafter makes a finding of fact based upon its observations, a
defendant’s burden of preserving that prospective juror’s race for the record has been
met. Absent evidence to the contrary, it will be presumed that the trial court acted
properly – i.e. that the evidence of the prospective juror’s race was sufficient to
support the trial court’s finding in that regard. Fennell, 307 N.C. at 262, 297 S.E.2d
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Opinion of the Court
at 396. If the State disagrees with the finding of the trial court, it should challenge
the finding at trial and seek to introduce evidence supporting its position.
Questioning the juror at that point could be warranted. Here, however, the State
clearly agreed with the trial court’s findings related to the race of the five identified
prospective jurors. Absent any evidence that the trial court’s findings were
erroneous, “we must assume that the trial court's findings of fact were supported by
substantial competent evidence.” State v. James, 321 N.C. 676, 686, 365 S.E.2d 579,
585 (1988).
Nothing in the appellate opinions of this State require the trial court to engage
in needless inquiry if a prospective juror’s race is “clearly discernable” without further
inquiry. Here, the record demonstrates that it was “clearly discernable” to the trial
court, and the attorneys for the State and Defendant, that five of the 21 prospective
jurors questioned on voir dire were African-American, and that two prospective jurors
were excused pursuant to peremptory challenges by the State. The following
discussion and ruling occurred on defendant’s Batson motion:
MS. BELL: Judge, I do have a Batson motion. And,
Judge, the basis of my motion goes to the fact that in Seat
Numbers 10, we had two jurors, [Mr. Jones] and [Ms.
Taylor], both of whom were black jurors, and both of whom
were excused. And, Judge, in the State’s voir dire of both
jurors, there was no overwhelming evidence, there was
nothing about any prior criminal convictions, any feelings
about -- towards or against law enforcement, there’s no
basis, other than the fact that those two jurors happen to
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STATE V. BENNETT
Opinion of the Court
be of African-American decent [sic] they were excused.4
We heard from Mr. [Jones] who stated that he was a
supervisor here in Clinton and had a breaking and entering
two and a half years ago. Nobody was charged, but he had
no feelings towards law enforcement, no negative
experience with the DA’s office. And, with Ms. [Taylor], we
heard that she owned a beauty salon that was next to ABC
Insurance. She didn’t know anyone in the audience or
anyone in the case. There was nothing that was deduced
during the jury voir dire that would suggest otherwise.
THE COURT: Mr. Thigpen?
MR. THIGPEN: Judge, I don’t think Ms. Bell’s made a
prima facie showing discriminatory intent, which is
required under Batson. The simple fact that both jurors
happen to have been African-American and I chose to
excuse them peremptorily, is not sufficient to raise a
Batson challenge.
THE COURT: Seems to me that you excused two, but
kept three African-Americans. Am I right?
MR. THIGPEN: Yes, sir, that’s right; including Mr.
[Anderson], who is Juror Number 5, who is an African-
American male; Ms. [Robins], Juror Number 9, who is an
African-American female; and Juror Number 7, Ms.
[Moore], an African-American female.
THE COURT: All right. I don’t see where you’ve
overcome or made a prima facie showing of lack of
neutrality.
....
THE COURT: Okay. Who was it you excused?
4 We have used pseudonyms to protect the privacy of jurors.
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STATE V. BENNETT
Opinion of the Court
MR. THIGPEN: I excused [Mr. Jones] and [Ms.
Taylor] who had been both seated in Seat Number 10.
....
MS. BELL: . . . . I’m making my case that I have
made a prima facie showing, that there was no other reason
[for excusing the two African-American prospective jurors],
other than that of race[.]
THE COURT: All right. I’m going to deny your
motion. Madam Clerk, the Court, from the evidence, the
arguments of counsel on the record, the Court finds there
is no evidence of a showing of prejudice based on race or
any of the contentions in Batson, GS 912A, GS 15A-958.
The Court further finds that out of the five jurors who were
African-American, three still remain on the panel and have
been passed by the State. The Court concludes there
is no prima facie showing justifying the Batson challenge;
therefore, the defendant’s motion is denied.
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STATE V. BENNETT
Opinion of the Court
(Emphasis added).
Reading the trial court’s ruling in context, it seems apparent that the fact that
the prospective jurors in question were African-American was clear to the trial court.
It is only “if there is any question as to the prospective juror’s race [that] this issue
should be resolved by the trial court based upon questioning of the juror or other
proper evidence.” Mitchell, 321 N.C. at 656, 365 S.E.2d at 557. The trial court made
a finding that five African-Americans had been questioned on voir dire, that three
made it onto the jury, and that the other two were excused pursuant to the State’s
use of peremptory challenges.
However, the State contends that defendant has failed to properly preserve
this argument for appeal. Assuming, arguendo, that defendant’s argument is
properly before us, we find no error in the ruling of the trial court and affirm. See
State v. Willis, 332 N.C. 151, 162, 420 S.E.2d 158, 162 (1992) (“Assuming it was error
to sustain the objections to this testimony by defendant Willis and that it was error
for the court to hold that it could not find Willis was a member of a cognizable
minority, we cannot hold this was prejudicial error.”).
III. Jury Instruction
Last, defendant contends that the trial court erred in instructing the jury over
his objection on acting in concert “when the evidence failed to support an inference
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Opinion of the Court
that . . . [defendant] and [Ms. Smith] were acting together in the commission of any
crime.” (Original in all caps).
The standard of review for appeals regarding jury
instructions to which a defendant has properly requested
at trial is the following: This Court reviews jury
instructions contextually and in its entirety. The charge
will be held to be sufficient if it presents the law of the case
in such manner as to leave no reasonable cause to believe
the jury was misled or misinformed. Under such a
standard of review, it is not enough for the appealing party
to show that error occurred in the jury instructions; rather,
it must be demonstrated that such error was likely, in light
of the entire charge, to mislead the jury. If a party requests
a jury instruction which is a correct statement of the law
and which is supported by the evidence, the trial judge
must give the instruction at least in substance.
State v. Cornell, 222 N.C. App. 184, 190-91, 729 S.E.2d 703, 708 (2012) (citation,
quotation marks, ellipses, and brackets omitted). “In order to support a jury
instruction on acting in concert, the State must prove that the defendant is present
at the scene of the crime and acts together with another who does the acts necessary
to constitute the crime pursuant to a common plan or purpose to commit the crime.”
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citation and
quotation marks omitted).
Ms. Smith was also charged with various crimes and entered into a plea
agreement with the State to testify against defendant. The State elected not to call
her to testify at defendant’s trial, but defendant called her to testify.
Defendant argues that
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Opinion of the Court
The jury should have been told that the state’s burden was
to prove that [defendant] accomplished each crime on his
own. Instead, the judge told jurors they could convict
[defendant] if they found that he alone or he acting in
concert with [Ms. Smith] had committed the crimes.
Because there was no evidence to support the suggestion
that Ms. [Smith] was involved, [defendant] is entitled to a
new trial.
Defendant claims that Ms. Smith’s testimony “corroborated [defendant’s] statement:
she said the two of them had returned to the house shortly before law enforcement
arrived with the landlord. When she and [defendant] returned to the home, they
found the glass was broken in the back door.”
Defendant argues that the evidence merely shows that Ms. Smith was
“present” at the mobile home and
[a] person’s mere presence is not enough to establish acting
in concert. “A defendant’s mere presence at the scene of
the crime does not make him guilty [...] even if he
sympathizes with the criminal act and does nothing to
prevent it.” State v. Capps, 77 N.C. App. 400, 402-03, 335
S.E.2d 189, 190 (1985). The state is required to prove a
common purpose, plan, or scheme State v. Forney, 310 N.C.
126, 134, 310 S.E.2d 20, 25 (1984), and in this case Ms.
[Smith] denied any such plan or purpose.
Ms. Smith did deny she was involved in a plan to make methamphetamine
with defendant, but the jury did not have to believe her. See, e.g., State v. Green, 296
N.C. 183, 188, 250 S.E.2d 197, 200-01 (1978) (“The credibility of a witness’s
identification testimony is a matter for the jury’s determination, and only in rare
instances will credibility be a matter for the court’s determination.” (Citation
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Opinion of the Court
omitted)). There was abundant evidence showing she was far more than “merely
present” at the home during methamphetamine production. We do not understand
defendant’s argument that “there was no evidence to support the suggestion that [Ms.
Smith] was involved” in the crimes charged. She testified she pled guilty to
possession of methamphetamine precursor chemical and attempted trafficking for
methamphetamine by possession. She also testified that on 4 December 2015, before
their arrest and the search of the mobile home, she and defendant went to Walmart
to purchase Sudafed and to IGA. The receipt from IGA -- which showed that crystal
lye was purchased -- was found in defendant’s pocket when he was arrested and was
admitted as evidence. Sudafed and crystal lye are two primary ingredients used to
make methamphetamine. They then went back to defendant’s home, where Ms.
Smith testified they had previously made methamphetamine. Ms. Smith had been
living in the home with defendant for about two months, and officers found
methamphetamine ingredients, paraphernalia, and items used to produce
methamphetamine in plain view throughout the home in nearly every room --
bedroom, living room, bathroom, laundry room, and kitchen. Contrary to defendant’s
argument, all of the evidence, including Ms. Smith’s testimony, tends to show that
she was very much involved in making methamphetamine with defendant, despite
her denial of any “plan.” This evidence is more than sufficient to support an acting
in concert instruction. We hold that the trial court did not err in giving the
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Opinion of the Court
instruction.
IV. Conclusion
We conclude there was no error in defendant’s trial.
NO ERROR.
Chief Judge McGEE concurs.
Judge BERGER concurs with separate opinion.
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No. COA17-1027 – State v. Bennett
BERGER, Judge, concurring in separate opinion.
I concur in the result reached by the majority. However, I would find that
Defendant has waived review of his Batson challenge because he failed to preserve
an adequate record setting forth the race of the jurors. Our Supreme Court has stated
that findings as to the race of jurors may not be established by the subjective
impressions or perceptions of “the defendant, the court, [ ] counsel” or other court
personnel. State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2d 554, 557 (1988).
(emphasis added.) Because fact finding by guesswork or intuition is inappropriate, I
disagree with the majority’s conclusion that a trial court’s subjective impressions
concerning race are sufficient evidence to establish an adequate record on appeal.
Other than speculative statements by counsel and the trial court, there is
nothing in the record that demonstrates, as the majority suggests, that it was “
‘clearly discernable’ to the trial court, and the attorneys for the State and Defendant,
that five of the 21 prospective jurors questioned on voir dire were African-American.”
Further inquiry should be required by a defendant alleging purposeful racial
discrimination in jury selection to establish an adequate record for appellate review.
STATE V. BENNETT
Opinion of the Court
“An individual’s race is not always easily discernable.” Mitchell, 321 N.C. at
655, 365 S.E.2d at 557. When a defendant “believes a prospective juror to be of a
particular race, he can bring this fact to the trial court’s attention and ensure that it
is made a part of the record.” Id. at 656, 365 S.E.2d at 557. That was not done here.
In State v. Mitchell, our Supreme Court held that the defendant had “failed to
present an adequate record on appeal from which to determine whether jurors were
improperly excused by peremptory challenges on the basis of race.” Id. at 655, 365
S.E.2d at 557. In so holding, the Court in Mitchell reasoned that
the burden is on a criminal defendant who alleges
racial discrimination in the selection of the jury to establish
an inference of purposeful discrimination. The defendant
must provide the appellate court with an adequate record
from which to determine whether jurors were improperly
excused by peremptory challenges at trial. Statements of
counsel alone are insufficient to support a finding of
discriminatory use of peremptory challenges. . . .
[Here,] the defendant filed a motion to require the
court reporter to note the race of every potential juror
examined, which was also denied. Although this approach
might have preserved a proper record from which an
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Opinion of the Court
appellate court could determine if any potential jurors were
challenged solely on the basis of race, we find it
inappropriate. To have a court reporter note the race of
every potential juror examined would require a reporter
alone to make that determination without the benefit of
questioning by counsel or any other evidence that might
tend to establish the prospective juror’s race. The court
reporter, however, is in no better position to determine the
race of each prospective juror than the defendant, the court,
or counsel. . . . As the trial court noted, “The clerk might
note the race as being one race and in fact that person is
another race. My observation has been you can look at
some people and you cannot really tell what race they are.”
The approach suggested by the defendant would denigrate
the task of preventing peremptory challenges of jurors on
the basis of race to the reporter’s subjective impressions as
to what race they spring from.
If a defendant in cases such as this believes a
prospective juror to be of a particular race, he can bring
this fact to the trial court’s attention and ensure that it is
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Opinion of the Court
made a part of the record. Further, if there is any question
as to the prospective juror’s race, this issue should be
resolved by the trial court based upon questioning of the
juror or other proper evidence, as opposed to leaving the
issue to the court reporter who may not make counsel
aware of the doubt. In the present case the defendant did
not avail himself of this opportunity, despite the trial
court’s suggestion at the pre-trial hearing that he might
wish to do so during jury selection. . . . For whatever
reason, counsel chose not to make any such inquiry at trial.
Thus, the defendant has failed to demonstrate that the
prosecutor exercised peremptory challenges solely to
remove members of any particular race from the jury.
Id. at 654-56, 365 S.E.2d at 556-58 (1988) (purgandum5) (emphasis added).
The majority here relies almost exclusively on Mitchell to support its
proposition that “[i]f there is not any question about a prospective juror’s race, neither
5 Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.
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STATE V. BENNETT
Opinion of the Court
the defendant nor the trial court is required to make inquiry regarding the
prospective juror’s race.” Based solely on Mitchell, further inquiry regarding each
juror’s race may not always be necessary when a defendant can somehow
demonstrate that each juror’s race was “clearly discernable.” However, since
Mitchell, our Supreme Court has effectively held that further inquiry regarding each
juror’s race is required because perceptions and subjective impressions—standing
alone—are insufficient to establish jurors’ races.
In State v. Payne, our Supreme Court similarly held that “we need not reach
the constitutional issues presented by this assignment of error, as we are not
presented with a record on appeal which will support the defendant’s argument that
jurors were improperly excused by peremptory challenges exercised solely on the
basis of race.” State v. Payne, 327 N.C. 194, 198, 394 S.E.2d 158, 160 (1990). The
relevant facts in Payne were as follows:
the defendant (who is white) objected to the State’s
use of peremptory challenges against black jurors. The
defendant requested that the courtroom clerk record the
race and sex of the “prospective” jurors who had already
been seated or excused, but the trial court denied his
request. The next morning, the defendant renewed his
objection via a written motion for the clerk to record the
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STATE V. BENNETT
Opinion of the Court
race and sex of jurors. The motion was supported by an
affidavit, subscribed by one of the defendant’s attorneys,
purporting to contain the name of each black prospective
juror examined to that point, and whether the State had
peremptorily excused, challenged for cause, or passed the
prospective juror to the defense (the defendant says one
black juror did sit on the trial jury). The trial court,
viewing the affidavit’s allegations as true, nonetheless
ruled that the defendant had failed to make a prima facie
showing of a substantial likelihood that the State was
using its peremptory challenges to discriminate against
black jurors.
Id. at 198, 394 S.E.2d at 159-60.
Our Supreme Court agreed with the trial court’s assessment
that had the defendant made his motion prior to jury
selection, the court would have had each prospective juror
state his or her race during the court’s initial questioning.
This would have provided the trial court with an accurate
basis for ruling on the defendant’s motion, and would also
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STATE V. BENNETT
Opinion of the Court
have preserved an adequate record for appellate review.
Having not made his motion to record the race of
prospective jurors until after the twelve jurors who
actually decided his case had been selected, the defendant
attempted to support his motion via an affidavit purporting
to provide the names of the black prospective jurors who
had been examined to that point. That affidavit, however,
contained only the perceptions of one of the defendant’s
lawyers concerning the races of those excused—
perceptions no more adequate than the court reporter’s or
the clerk’s would have been, as we recognized in Mitchell.
For the reasons stated in Mitchell, we conclude that the
trial court did not err by denying the defendant’s motion
for the clerk to record the race of “prospective jurors” after
they had been excused and the jury had been selected. For
similar reasons, we also conclude that the record before us
on appeal will not support the defendant’s assignment of
error.
Id. at 200, 394 S.E.2d at 160-61 (citations omitted).
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STATE V. BENNETT
Opinion of the Court
In State v. Brogden, our Supreme Court also held that the defendant “failed to
provide an adequate record regarding the race of the jurors, both those accepted and
those rejected, and has therefore waived any such objection.” State v. Brogden, 329
N.C. 534, 545, 407 S.E.2d 158, 165 (1991). Our Supreme Court reasoned that the
“defendant, in failing to elicit from the jurors by means of questioning or other proper
evidence the race of each juror, has failed to carry his burden of establishing an
adequate record for appellate review.” Id. at 546, 407 S.E.2d at 166 (emphasis added).
This holding was based on the fact that “the only records of the potential jurors’ race
preserved for appellate review are the subjective impressions of defendant’s counsel
and notations made by the court reporter of her subjective impressions.” Id.
Although our Supreme Court appeared to limit the need for further inquiry to
instances when the jurors’ races were not “easily discernible” in Mitchell, 321 N.C. at
655, 365 S.E.2d at 557, subsequent cases have required defendants to provide “proper
evidence [of] the race of each juror,” Brogden, 329 N.C. at 546, 407 S.E.2d at 166, to
establish an adequate record for appellate review. Subjective impressions of a juror’s
race made by a court reporter, clerk, or trial counsel are all insufficient to establish
an adequate record on appeal. See Mitchell, 321 N.C. at 655-56, 365 S.E.2d at 557
(holding that a court reporter or court clerk’s identification of each juror’s race as
insufficient); Payne, 327 N.C. at 200, 394 S.E.2d at 161 (identifying an affidavit that
“contained only the perceptions of one of the defendant’s lawyers concerning the races
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STATE V. BENNETT
Opinion of the Court
of those excused” as inadequate); Brogden, 329 N.C. at 546, 407 S.E.2d at 166
(reaffirming that the “subjective impressions of defendant’s counsel and notations
made by the court reporter of her subjective impressions” of the jurors’ races are
insufficient). It follows then that the subjective impressions of a juror’s race made by
the trial court would also be insufficient to establish a proper record of a juror’s race
on appeal. See State v. Mitchell, 321 N.C. at 656, 365 S.E.2d at 557 (“The court
reporter, however, is in no better position to determine the race of each prospective
juror than the defendant, the court, or counsel.”) (emphasis added).
The majority states that the record here “demonstrates that it was ‘clearly
discernable’ to the trial court, and the attorneys for the State and Defendant, that
five of the 21 prospective jurors questioned on voir dire were African-American.”
However, the record contains no evidence regarding the race of any juror or
prospective juror. Not a single juror was ever asked his or her race by Defendant or
the trial court. Rather, the record merely contains statements by counsel and the
trial court concerning their perceptions and subjective impressions of the prospective
jurors’ races. This is not enough. We cannot and should not rely on the trial court’s
and defense counsel’s perceptions of the jurors to simply conclude that the jurors’
races were “clearly discernible.” In the absence of any “proper evidence [of] the race
of each juror,” Brogden, 329 N.C. at 546, 407 S.E.2d at 166, I would find that
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STATE V. BENNETT
Opinion of the Court
Defendant has failed to provide a record on appeal sufficient to permit this Court to
review his Batson claim.
The majority’s assertion that a trial court’s subjective impressions concerning
race equates with a credibility determination misses the mark. The majority would
essentially allow judges to take judicial notice of an individual juror’s race simply by
looking at him or her. It seems unusual that judges have acquired this unique skill
which is absent in court reporters, clerks, and lawyers. As our Supreme Court held
in Mitchell, trial courts are in no better position than court personnel, lawyers, or the
parties to determine a juror’s race based solely on subjective impressions and
perceptions.
Where a party accuses opposing counsel of purposeful racial discrimination in
jury selection, that party should take appropriate steps to elicit evidence establishing
the race of jurors or prospective jurors. Without proper evidence set forth in the
record on appeal, this Court should decline to accept subjective impressions of race
as fact.
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