State v. Fletcher

Chief Justice Mitchell

dissenting.

In the present case, the State peremptorily challenged two of the three black venire members from the first panel of twelve prospective jurors. The State exercised its first two peremptory challenges against two black prospective jurors, Mr. Greene and Mr. McKinney. Defendant objected, and the trial court conducted a hearing pursuant to Batson v. Kentucky, 476 U.S. 79 , 90 L. Ed. 2d 69 (1986) (Equal Protection Clause), and State v. Crandell, 322 N.C. 487, 501 , 369 S.E.2d 579, 587 (1988) (Article I, Section 26 of the Constitution of North Carolina).

The trial court found, inter alia, that defendant is a black man, that the victim was a white female, and that the venire contained “very few blacks.” The trial court concluded that defendant had established a prima facie case of racial discrimination in the exercise of the State’s peremptory challenges and required the State to present racially neutral reasons for its peremptory challenges of Mr. Greene and Mr. McKinney. The trial court concluded that the reasons given by the State for excusing Mr. Greene were racially neutral and therefore sufficient to justify the peremptory challenge. Based on proper findings of fact, however, the trial court concluded that the State’s professed reason for excusing Mr. McKinney was “not sufficient to overcome the presumption of discrimination nor was it race *330 neutral” and that it appeared to the trial court to be “somewhat pretextual and an afterthought.” The trial court then proposed to remedy the discriminatory use of this peremptory challenge by excusing the entire initial jury panel of twelve. The State, however, chose to withdraw its peremptory challenge of prospective juror McKinney and to allow him to be seated as a juror, rather than have the trial court excuse the entire panel. For the following reasons, I believe that the trial court reached the correct conclusion in deciding to excuse the entire panel, but erred when it changed its ruling in response to the State’s withdrawal of its peremptory challenge of juror McKinney.

In State v. McCollum, 334 N.C. 208 , 433 S.E.2d 144 (1993), cert, denied, 512 U.S. 1254 , 129 L. Ed. 2d 895 (1994), the trial court concluded that a Batson violation had occurred. The defendant sought to have the violation corrected by requesting that the trial court seat the three black jurors the State had removed by peremptory challenges. The trial court declined to seat these jurors and ordered that the jury selection process begin anew with an entirely new panel of prospective jurors. Id. at 235, 433 S.E.2d 158 -59. On appeal to this Court, the defendant argued that the trial court had erred in applying this remedy for the Batson violation. We rejected the defendant’s argument.

In McCollum , we noted that the Supreme Court of the United States had, in Batson, 476 U.S. at 99 n.24, 90 L. Ed. 2d at 90 n.24, expressly declined to express a view on whether the more appropriate remedy for racial discrimination in jury selection was to discharge the venire and select a new jury from a new panel or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated. McCollum, 334 N.C. at 235 , 433 S.E.2d at 159 . However, we then went on to state the following:

We believe that the better practice is that followed by the trial court in this [McCollum] case, and that neither Batson nor Powers [v. Ohio, 499 U.S. 400 , 113 L. Ed. 2d 411 (1991),] requires a different procedure. We recognize and endorse the equal protection right of prospective jurors explained in detail in Powers. However, we conclude that the primary focus in a criminal case— particularly a capital case such as this — must continue to be upon the goal of achieving a trial which is fair to both the defendant and the State. To ask jurors who have been improperly excluded from a jury because of their race to then return to the jury to remain unaffected by that recent discrimination, and to render an impartial verdict without prejudice toward either the State or the *331 defendant, would be to ask them to discharge a duty which would require near superhuman effort and which would be extremely difficult for a person possessed of any sensitivity whatsoever to carry out successfully. As Batson violations will always occur at an early stage in the trial before any evidence has been introduced, the simpler, and we think clearly fairer, approach is to begin the jury selection anew with a new panel of prospective jurors who cannot have been affected by any prior Batson violation.

McCollum, 334 N.C. at 236 , 433 S.E.2d at 159 . We then concluded that even if we assumed arguendo that the trial court had erred by failing to seat the prospective jurors who had been improperly excused, the error was harmless beyond a reasonable doubt. Id. We said that this was so because the trial court’s action had provided the defendant with exactly that which he was entitled to receive — trial by a jury selected on a nondiscriminatory basis. Id.

I wish to make it clear here that I do not intend to imply any criticism of the learned trial court. Clearly, it was, and we are, dealing here with an area of the law in which the Supreme Court of the United States has not yet given us clear guidance. The trial court did the best it could when faced with this situation not of its making. However, based upon the reasoning of this Court in McCollum , as quoted above, I now conclude that the only remedy for a Batson violation which will both be practical and ensure a fair trial is to “begin the jury selection anew with a new panel of prospective jurors who cannot have been affected by any prior Batson violation.” Id. Accordingly, I believe that defendant is entitled to a new trial as a matter of both federal and state constitutional law. For this reason, I respectfully dissent.