State v. Dixon

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.

-2-

STATE V. DIXON

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 --

-3-

STATE V. DIXON

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

-4-

STATE V. DIXON

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.

-5-

STATE V. DIXON

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

-6-

STATE V. DIXON

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.

-7-

STATE V. DIXON

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

-8-

STATE V. DIXON

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

-9-

STATE V. DIXON

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

- 10 -

STATE V. DIXON

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

- 11 -

STATE V. DIXON

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.

- 12 -

STATE V. DIXON

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.”

- 13 -

STATE V. DIXON

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

- 14 -

STATE V. DIXON

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

- 15 -

STATE V. DIXON

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

- 16 -

STATE V. DIXON

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.

- 17 -

STATE V. DIXON

Opinion of the Court

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.”).

- 18 -

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.

- 19 -

STATE V. DIXON

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,”

- 20 -

STATE V. DIXON

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

- 21 -

STATE V. DIXON

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

- 22 -

STATE V. DIXON

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?

- 23 -

STATE V. DIXON

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?

- 24 -

STATE V. DIXON

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.

- 25 -

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.

- 26 -

STATE V. DIXON

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

- 27 -

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.

- 28 -

STATE V. DIXON

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

- 29 -

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 --

- 30 -

STATE V. DIXON

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.

- 31 -

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

- 32 -

STATE V. DIXON

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

- 33 -

STATE V. DIXON

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

- 34 -

STATE V. DIXON

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).

- 35 -

STATE V. DIXON

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—

- 36 -

STATE V. DIXON

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 -