Petition for Writ of Certiorari — Russell William Tucker, Petitioner v. North Carolina
Supreme Court briefMay 13, 2024
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APPENDIX
TABLE OF CONTENTS
Opinion of the Supreme Court of North Carolina filed
December 15, 2023 ....................................................................................... App. 1
Excerpts of Trial Transcript Volume 1 (Jury Selection) of
the General Court of Justice, Superior Court Division ........................... App. 35
Excerpt of Trial Transcript Volume 1-A (Jury Selection) of
the General Court of Justice, Superior Court Division ........................... App. 61
Excerpt of Trial Transcript Volume II-A of the General
Court of Justice, Superior Court Division ................................................ App. 70
Affidavit of Ibram X. Kendi, Ph. D. .......................................................... App. 81
Affidavit of Bryan Stevenson .................................................................... App. 88
State v. Tucker
Supreme Court of North Carolina
February 8, 2023, Heard in the Supreme Court; December 15, 2023, Filed
No. 113A96-4
Reporter
385 N.C. 471 *; 895 S.E.2d 532 **; 2023 N.C. LEXIS 947 ***
STATE OF NORTH CAROLINA v. RUSSELL WILLIAM
TUCKER
Prior History: State v. Tucker, 468 S.E.2d 773, 1996 N.C.
LEXIS 215 (N.C., Mar. 18, 1996)
Disposition: AFFIRMED.
Counsel: [***1] Joshua H. Stein, Attorney General, by
Danielle Marquis Elder, Senior Deputy Attorney General, and
Jonathan P. Babb, Special Deputy Attorney General, for the
State-appellee.
Elizabeth Hambourger, for defendant-appellant.
Ian A. Mance, Quintin D. Byrd, and Irving Joyner for North
Carolina Association of Black Lawyers and North Carolina
State Conference of the NAACP, amici curiae.
Judges: BERGER, Justice. Justice RIGGS. Justice EARLS
dissenting.
Opinion by: BERGER
Opinion
[*472] [**536] On writ of certiorari pursuant to N.C.G.S. §
7A-32(b) to review an order entered 24 August 2020 by Judge
R. Stuart Albright in Superior Court, Forsyth County, denying
defendant's motions for appropriate relief. Heard in the
Supreme Court 8 February 2023.
90 L. Ed. 2d 69 (1986). However, [**537] defendant
failed [***2] to raise a Batson claim or otherwise argue
purposeful discrimination on direct appeal from his original
trial or in previous post-conviction proceedings. Thus, the
question before this Court is whether review of defendant's
Batson claim is procedurally barred pursuant to N.C.G.S. §
15A-1419. For the reasons set forth herein, we conclude that
defendant's claim is barred and affirm the judgment of the
Superior Court denying defendant's motion for appropriate
relief.
I. Factual and Procedural Background
It is undisputed that defendant killed K-Mart security guard
Travis Williams and shot two Winston-Salem police officers
on December 8, 1994.1 Defendant was indicted for firstdegree murder and two counts of assault with a deadly
weapon with intent to kill inflicting serious injury. A Forsyth
County jury found defendant guilty of first-degree murder,
and defendant was sentenced to death upon the jury's
recommendation. The State dismissed the assault charges.
Forsyth County Assistant District Attorneys Robert Lang and
David Spence prosecuted the case for the State. During jury
selection, which was conducted by Mr. Lang, defendant
lodged Batson objections to the State's peremptory strikes
against black prospective [***3] jurors Debra Banner,
Thomas Smalls, and Wayne Mills. The voir dire transcript
reveals [*473] the following relevant exchanges between
these prospective jurors, the trial court, and the State.
BERGER, Justice.
A. Voir Dire of Ms. Banner
Through a series of post-conviction motions, defendant
asserts that his conviction for first-degree murder and
sentence of death should be set aside. Defendant argues that
despite the trial court's finding that he failed to establish a
prima facie case of purposeful discrimination in jury
selection, he is nevertheless entitled to a new trial because
newly discovered evidence, consisting of a continuing legal
education handout and a statistical study, supports his claim
pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
Following inquiry by the trial court, Ms. Banner stated that
she worked at Forsyth Medical Center and had not acquired
sufficient leave time, which she referred to as PTO, to receive
compensation when she missed work. Ms. Banner worked
1 A more detailed account of the underlying facts of this case can be
found in this Court's opinion at State v. Tucker, 347 N.C. 235, 23940, 490 S.E.2d 559 (1997).
-App. 1-
Page 2 of 34
385 N.C. 471, *473; 895 S.E.2d 532, **537; 2023 N.C. LEXIS 947, ***3
eight-hour shifts that ended at 11:00 p.m., and "nine o'clock
[a m. wa]s not [her] time" because she was not a morning
person.2 Ms. Banner further stated that she "prefer[red] not to
be on [the jury]." The trial court clarified her response:
THE COURT: Prefer not to serve I take it. Do you think
that situation will prevent you or substantially impair you
in performing your duties as a juror in this?
MS. BANNER: Yes.
THE COURT: Will it prevent you or substantially impair
you from giving your full attention to this case?
MS. BANNER: Yes, sir.
THE COURT: The State want to make inquiry of this
juror then?
The State chose not to challenge Ms. Banner for cause and
made no further inquiry at that time. The Court then resumed
its questioning of other prospective [***4] jurors.
The next interaction with Ms. Banner took place during the
State's voir dire when Ms. Banner had fallen asleep in the jury
box while other prospective jurors were being questioned.
[THE STATE]: Come down to you, Ms. Banner. Wake
up.
MS. BANNER: I told you I didn't do well early.
[THE STATE]: But you'd be at work now, wouldn't you?
MS. BANNER: Yeah.
[*474] Neither the trial court nor defense counsel interjected
to suggest Ms. Banner had not fallen asleep.
Thereafter, Ms. Banner acknowledged that she had no
personal or moral objections to the death penalty, but her
work and lack of paid time off would likely affect her ability
to listen to the evidence and follow the trial court's
instructions. In addition, it was revealed in questions directed
to all the jurors that Ms. Banner did not own the residence in
which she lived.
[**538] B. Voir Dire of Mr. Smalls
As with Ms. Banner, the transcript indicates that Mr. Smalls
"nodded off" and "went to sleep" during jury selection. His
responses to the initial questions from the trial court were
unremarkable, but during questioning by the State, the
following exchange occurred:
2 The transcript of jury selection reveals that along with Ms. Banner,
jurors Wayne Robinson and Katherine Shook also worked at Forsyth
Medical Center. Similar to Ms. Banner, Mr. Robinson expressed
concern about missing work to attend court due to a lack of paid time
off. Mr. Robinson was excused for cause. Ms. Shook was excused
using a peremptory challenge at the same time as Ms. Banner.
-App. 2-
[THE STATE]: It's vitally important that everybody
know the State is very concerned [***5] about whether
everybody can consider the death penalty and the
defendant is concerned about whether everybody will
automatically impose the death penalty and won't
consider the option of life without parole so I'm sorry it
gets lengthy but it has got to be done.
Mr. Smalls, can you please tell me about your feelings
about the death penalty.
MR. SMALLS: I cannot give an answer to that.
[THE STATE]: Let me ask you do you feel like it's a
necessary part of the law?
MR. SMALLS: I think it's a part of the law.
[THE STATE]: Do you think it's a necessary part of the
law?
MR. SMALLS: I don't know.
[THE STATE]: Do you have any personal, moral or
religious or philosophical beliefs against the death
penalty or capital punishment?
MR. SMALLS: I believe in capital punishment.
[THE STATE]: You do?
MR. SMALLS: Yes.
[*475] [THE STATE]: Do you think that under some
appropriate circumstances, and the judge will tell you
what those circumstances are, that the death penalty is an
appropriate punishment in some cases?
MR. SMALLS: I guess so. I don't know.
[THE STATE]: Do you belong to any churches or any
organizations that oppose the death penalty?
MR. SMALLS: Yes, I'm a Christian.
[THE STATE]: There is a wide broad views in [***6]
the church. Some churches oppose the death penalty,
others feel it's appropriate and have taken a stand. Has
your church taken a stand against the death penalty?
MR. SMALLS: I don't know. I can't speak for all of my
church. I can only speak for myself.
[THE STATE]: Well that's what is most important. Do
you feel that if the circumstances were appropriate that
you could vote to impose the death penalty?
MR. SMALLS: I still don't know.
[THE STATE]: You'd have to wait to hear all the
evidence?
MR. SMALLS: Yes, sir.
[THE STATE]: Let me ask you, Mr. Smalls, if the
State—at the guilt/innocence phase—satisfies its burden
to prove the defendant's guilt beyond a reasonable doubt
based on one or both of the theories of first degree
murder that I've talked about—premeditation and
deliberation or felony murder—
MR. SMALLS: I guess so.
[THE STATE]: If the law—if the State satisfied its
Page 3 of 34
385 N.C. 471, *475; 895 S.E.2d 532, **538; 2023 N.C. LEXIS 947, ***6
burden and the judge instructed you and gave you the
law with regards to the various elements of
premeditation and deliberation and felony murder and
the State proved those to you beyond a reasonable doubt,
would you be able to find the defendant guilty?
[*476] MR. SMALLS: I guess so.
[THE STATE]: Having made that decision at the [***7]
guilt/innocence if the jury determined unanimously that
the defendant was guilty of first degree murder and we
move on to the second stage and you were satisfied
beyond a reasonable doubt that the death penalty was the
appropriate punishment after going through the detailed
instructions the Court will give you at that second stage,
would you be able to vote to impose the death penalty?
MR. SMALLS: I'll have to wait. I'll have to wait until
that time comes.
[THE STATE]: Do you feel—well, let me ask you are
there some circumstances you feel where the death
penalty is appropriate?
[**539] MR. SMALLS: Sometimes. Sometimes I think
so.
[THE STATE]: Do you feel like you could be part of a
jury that comes back and makes a recommendation of
the death penalty to the Court in this case?
MR. SMALLS: I guess so.
[THE STATE]: When you say you guess so, does that
mean—
MR. SMALLS: —If I have to.
[THE STATE]: If you have to?
MR. SMALLS: Yes. If there is no way out.
[THE STATE]: If there is no way out?
MR. SMALLS: Yes.
C. Voir Dire of Mr. Mills
When Mr. Mills was seated as a prospective alternate juror,
the trial court questioned him on whether he had heard or seen
anything about the case in the newspaper or from
another [***8] source. Although Mr. Mills had not read
about the case in the newspaper, he stated that he had "heard
about it . . . [in] talk around the street." When the trial court
asked Mr. Mills whether he had formed or expressed an
opinion on the guilt or innocence of defendant based on what
he heard, Mr. Mills responded [*477] that he "didn't
comment on it." When asked to clarify what he meant, Mr.
Mills responded, "I didn't comment on it. When I heard it, I
didn't comment on it." The trial court moved on to questions
about the death penalty and life without parole and asked if
Mr. Mills had any reservations about the death penalty, and
Mr. Mills responded that he was not against it.
Mr. Mills responded to several of the State's questions with
"yes" and "no" answers with no elaboration. Mr. Mills was
specifically asked if he had been convicted of any criminal
offense other than traffic offenses, and he replied, "No."
Contrary to Mr. Mills' representation, the State had
discovered in its pretrial research that he had been convicted
of solicitation of prostitution.
D. Defendant's Objections
The State struck each of these prospective jurors using
peremptory challenges, and defendant objected to each
strike [***9] pursuant to Batson.
In attempting to establish a prima facie case of racial
discrimination, defendant contended that Ms. Banner showed
unwavering support for the death penalty, noting that "right
down the line Ms. Banner answered yes, yes, yes, yes just like
everybody else on that jury and even more so." Defendant
argued that other jurors passed by the State were not as strong
on the death penalty as Ms. Banner, because their responses
only suggested that they "could consider" the death penalty or
that "it was appropriate in some cases." Defendant further
contended that even though Ms. Banner raised the issue of her
lack of paid time off, in the end, Ms. Banner "was very clear
that [she] understood her duty [as a juror] overrode [her work
responsibilities]." Moreover, defendant argued that Ms.
Banner "very candidly said she wouldn't hold [issues
concerning her work schedule] against either party and she
could be fair to both sides." Defendant stated that "no race[]neutral reason" justified the use of the peremptory challenge
against Ms. Banner.
Concerning Mr. Smalls, defendant contended even though
Mr. Smalls "was a little more hesitant" on the death penalty
questions than Ms. Banner, [***10] Mr. Smalls conveyed
that he believed in capital punishment if it was appropriate
under the circumstances. Defendant stated that there was "no
race[-]neutral basis" for the State's peremptory strike on Mr.
Smalls.
Before ruling on defendant's Batson objections to the State's
peremptory strikes of Ms. Banner and Mr. Smalls, the State
and defendant stipulated that defendant and the victim, Mr.
Williams, were both black. [*478] The parties also stipulated
that of the two officers involved in the case, one was black
and the other was white. The trial court further noted, and
both defendant and the State agreed, that race was not an issue
in the case.
The trial court determined that defendant had not established
a prima facie case of purposeful discrimination. However, the
trial court stated that it would "give the State the opportunity .
-App. 3-
Page 4 of 34
385 N.C. 471, *478; 895 S.E.2d 532, **539; 2023 N.C. LEXIS 947, ***10
. . to address the issue of whether or not the challenge . . . has
been done on a race[-]neutral basis" in order to [**540]
make a record for appeal. The State indicated that it would
respond with its race-neutral explanations if ordered to by the
trial court because such an order would not waive defendant's
burden of establishing a prima facie case. The trial court
stated [***11] that "I think this Court's ruling is correct. I
don't think there is a prima facie case," but nonetheless asked
the State to articulate its race-neutral reasons.
As to the peremptory strike for Ms. Banner, the State noted
that Ms. Banner was sleeping during jury selection, which "fit
in" with her prior comment that she "doesn't do well in the
morning hours" due to her work schedule. The State also
explained that Ms. Banner had stated that she preferred not to
serve, that she had concerns about paid time off, and that her
work schedule would make it difficult to work most of the
night and then have to be in court. The State explained that
because the case involved "a lot of important evidence, . . . we
need a juror who is awake and aware and not worried about
work."
In addition, the State considered Ms. Banner's work as a nurse
problematic for her jury service because, in the State's
opinion, "those who save lives are often hesitant to make a
recommendation for death." The State also expressed concern
that Ms. Banner showed a "lack of stake in the community,"
pointing to the fact that she was not a homeowner and was not
registered to vote.
Regarding Mr. Smalls, the State explained that [***12] he
"nodded off and went to sleep one time [and the State] saw
him startle and wake up during the selection of the other
jurors." This statement was not disputed by defendant or the
trial court.3 The State expressed concern regarding Mr.
3 Our
dissenting colleague's reliance on Snyder v. Louisiana, 552
U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008) is misplaced for
two reasons. First, contrary to our colleague's indication that
deference is only warranted when a trial court makes findings
regarding a juror's demeanor, Snyder states more broadly that
"deference is especially appropriate where a trial judge has made a
finding that an attorney credibly relied on demeanor in exercising a
strike." Id. at 479 (emphasis added). Second, unlike in Snyder, and
as discussed in more detail herein, step one of Batson is not moot in
this case. See State v. Snyder, 750 So.2d 832, 841 (La. 1999) (noting
that the State offered race-neutral reasons before the trial court made
a "finding as to whether defendant had made a prima facie showing
of purposeful racial discrimination."). However, even though the trial
court was not required to make findings regarding pretext because
step one was not moot, the trial court stated that "the district attorney
observed that [Mr. Smalls] nodded off to sleep at one time . . . ."
Defendant did not object or otherwise argue to the contrary.
Smalls' body language and asserted that his responses were
[*479] inappropriate because they were "middle of the road
responses," and as a result, the State "didn't feel he was very
strong on the death penalty." Specifically, the State recounted
that Mr. Smalls said he did not know what he felt about the
death penalty, then "put his head down and began talking to
the floor," and "did not ever make eye contact" with
prosecutors during the death penalty questions. Further, the
State noted that Mr. Smalls "was often looking up" and was
"mumbling and talking to himself." The State explained that
Mr. Smalls' statement that he could consider the death penalty
"if he had to" was inappropriate.
After the State's proffered reasons for exercising peremptory
challenges for both Mr. Smalls and Ms. Banner, the trial court
announced its finding that there were thirty-nine prospective
jurors in the entire jury venire and that seven were [***13]
black. Of the four black jurors that had been called by the
clerk as potential jurors for the trial, two were excused using
peremptory challenges and two were excused for cause.4 Of
the four [**541] peremptory strikes exercised by the State at
that time, two were for white prospective jurors and two were
for black prospective jurors. At the time the peremptory
challenges were made, eleven jurors had been seated—nine
were white and two were black.
The trial court found that "the questions and statements of the
prosecuting attorney during jury selection do not tend to
support an inference of discrimination," and that "each juror
was examined substantially in the same format." The trial
court found that there had not been "a [*480] repeated use of
peremptory challenges" against black jurors such that a
We also note that, despite the trial court's statement, our colleague
implies that the prosecutor's observation that Mr. Smalls "nodded
off" was untruthful. The fact that a juror "nodded off" seems highly
relevant to his or her ability to serve, regardless of skin color. But
according to our colleague, "it is more likely that [the prosecutor]'s
choice of words evince [the prosecutor]'s reliance on the [CLE
handout] by echoing the handout's language of 'obvious boredom
[which] may show anti-prosecution tendencies.'" It is a remarkable
feat indeed to extract this reading from the record as it exists in this
case.
4 The trial court detailed on the record that two prospective black
jurors, Mr. Leroy Robinson and Ms. Dorothy Nash, were excused for
cause. Ms. Nash was removed for cause after she expressed
unwavering opposition to the death penalty, and Mr. Robinson stated
that he had prior knowledge of the case from media reports and had
formed an opinion as to defendant's guilt or innocence. For clarity,
we note that there are two jurors with the last name Robinson in the
transcript: Wayne Robinson and Leroy Robinson; Mr. Leroy
Robinson was identified as a black juror in the trial court's Batson
findings.
-App. 4-
Page 5 of 34
385 N.C. 471, *480; 895 S.E.2d 532, **541; 2023 N.C. LEXIS 947, ***13
pattern of strikes against black jurors had arisen. Finally, the
trial court found that there had "not been a disproportionate
number of peremptory challenges" exercised to strike black
jurors.
As such, the trial court found that "defendant ha[d] failed to
raise an inference that the prosecuting attorney ha[d] . . . used
the peremptory challenges to exclude [individuals] from the
jury on account of [***14] race." The trial court did not
characterize its findings as a full Batson hearing, and
defendant did not raise the issue of pretext, nor was it ever
discussed by the trial court.
As to Mr. Mills, the prospective alternate juror, defendant
argued that Mr. Mills was the eighth black potential juror to
enter the juror box and that there appeared to be no raceneutral reason to strike Mr. Mills. Defendant explained that
Mr. Mills believed in the death penalty and stated that he
could follow the law. Defendant also noted that the jury was
all white.
The trial court concluded again that race was not an issue in
this case and that "the demeanor of the questions and
statements of the prosecuting attorney during jury selection
did not tend to support an inference of discrimination in the
use of [the] peremptory challenge." The trial court also found
that the format for questions was "typically the same for each
juror without regard to race" and that "there ha[d] not been a
disproportionate number of peremptory challenges to strike
black jurors in this case."
The trial court made additional findings that of the thirty-nine
jurors initially called on 6 February 1996, seven were black.
Of the seven [***15] black jurors, three were excused for
cause and four were excused by the State's peremptory
challenges. Of the forty-eight jurors called on 8 February
1996, eight were black, and one black juror was excused by
consent for pretrial knowledge and contact.
At close of court on 12 February 1996, no additional black
jurors had been called and twelve jurors had been seated for
the trial. At that point, the State had exercised eleven
peremptory challenges against prospective jurors—four were
used against black jurors and seven were used against white
jurors.
The trial court also addressed strikes used against prospective
alternate jurors. The first alternate prospective juror called
was white and was excused for cause. Mr. Mills was the
second alternate prospective juror called. The trial court
determined that defendant had not [*481] established a
prima facie case of discrimination in striking Mr. Mills, but
again requested that the State provide its reasons for the
challenge.
The State, pursuant to the trial court's request, explained that
Mr. Mills had been untruthful about his criminal record. Even
though the State had accepted other jurors with criminal
convictions, the concern with Mr. Mills was [***16] "his
failure to acknowledge the criminal court convictions" and
"the untruthful answers given." In addition, Mr. Mills
hesitated on the death penalty questions; gave answers which
were mostly "monosyllabic;" appeared to be "smiling
inappropriately on a number of occasions;" and seemed
confused during questioning.
After the State provided its race-neutral reasons, the trial court
reiterated that defendant had failed to establish a prima facie
case of discrimination. With each of the three prospective
jurors at issue, the trial court never characterized the
proceeding as a full Batson hearing, nor was pretext argued or
ruled upon.
[**542] E. Trial and Post Conviction Proceedings
A Forsyth County jury convicted defendant of first-degree
murder based on a theory of premeditation and deliberation
and under the felony murder rule. Tucker, 347 N.C. at 239.
Upon completion of the sentencing phase, the jury
recommended that defendant be sentenced to death. Id. at
239. Consistent with that recommendation, the trial court
sentenced defendant to death. Id. at 239.
Defendant appealed, and this Court determined that
"defendant received a fair trial and capital sentencing
proceeding, free from prejudicial error." Id. at 247.5
Defendant did not raise a Batson issue [***17] on direct
appeal.
In addition, defendant did not raise a Batson issue in his initial
motion for appropriate relief (MAR) or subsequent
amendments thereto. Defendant filed an MAR on October 6,
1998, and filed an amendment to that MAR on January 13,
2000. Defendant's motions were denied on May 11, 2000.
Later, defendant received newly appointed counsel who filed
an MAR in 2001 styled as a Second Amended Motion for
Appropriate Relief. After evidentiary hearings in 2004 and
2006, defendant's MAR was denied and this Court denied
certiorari in State v. Tucker, 361 N.C. 575, 651 S.E.2d 560
(2007) (mem.).
[*482] In 2010, defendant filed an MAR in Forsyth County
Superior Court pursuant to the Racial Justice Act (RJA). In
5 The Supreme Court of the United States denied certiorari in Tucker
v. North Carolina, 523 U.S. 1061, 118 S. Ct. 1389, 140 L. Ed. 2d
649 (1998) (mem.).
-App. 5-
Page 6 of 34
385 N.C. 471, *482; 895 S.E.2d 532, **542; 2023 N.C. LEXIS 947, ***17
2008, defendant filed a petition for writ of habeas corpus in
federal district court, and defendant amended this petition in
2016 and 2017. The federal court held defendant's federal
habeas corpus proceedings in abeyance in 2010 while
defendant's RJA claims were resolved.
In 2017, defendant filed another MAR and a second
amendment to his RJA MAR. The State filed an answer in
2018, defendant replied in 2018, and defendant filed an
amendment to his MAR in 2019. Then, in 2020, defendant,
for the second time, amended his MAR.
In his 2017, [***18] 2019, and 2020 MARs, which are
presently before the Court, defendant for the first time raised
the Batson issue under a theory of newly discovered evidence.
The alleged newly discovered evidence which provides the
basis for defendant's most recent post-conviction filings are a
continuing legal education (CLE) handout and a statistical
study on jury selection in North Carolina assembled by law
professors from Michigan State University, along with a
corresponding affidavit submitted by the authors of the study.
Defendant asked the MAR court to vacate his conviction and
death sentence and order a new trial, asserting that newly
discovered evidence allows him to overcome any procedural
bar found in N.C.G.S. § 15A-1419. Defendant further asserted
that his claims were not barred under this Court's decision in
State v. Burke, 374 N.C. 617, 843 S.E.2d 246 (2020).
The CLE handout is a one-page handout entitled "BATSON
Justifications: Articulating Juror Negatives." The CLE
handout lists ten legally acceptable justifications for the use of
peremptory challenges: (1) inappropriate dress; (2) physical
appearance; (3) age; (4) attitude; (5) body language; (6)
rehabilitated jurors or those who vacillate in answering the
State's questions; (7) inappropriate, non-responsive, [***19]
evasive, or monosyllabic responses; (8) communication
difficulties, be it language barriers or difficulty understanding
questions and the process; (9) unrevealed criminal history;
and (10) any other signs of defiance, sympathy with the
defendant, or antagonism to the State.
The statistical study was conducted by Catherine Grosso and
Barbara O'Brien, two law professors at Michigan State
University College of Law. See Catherine M. Grosso &
Barbara O'Brien, A Stubborn Legacy: The Overwhelming
Importance of Race in Jury Selection in 173 Post-Batson
North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012)
[hereinafter Grosso & O'Brien, A Stubborn Legacy]. The
professors reviewed data concerning jury selection in North
Carolina capital [*483] cases between 1990 and 2010.
Pursuant to an affidavit from the professors proffered at
[**543] the hearing on defendant's motion for appropriate
relief, the study took less than one year to create as they
"began data collection for the study in the fall of 2009 and
completed it in the spring of 2010."6
Defendant advances two primary arguments in his most recent
MAR and amendments. First, defendant contends that not
only was the CLE handout newly discovered evidence, but
that Mr. Lang used language from the handout as his raceneutral [***20] justification for striking Ms. Banner, Mr.
Smalls, and Mr. Mills. Second, defendant argued that the
MSU study and the authoring professors' affidavit established
a pattern of race-based strikes by both prosecutors in this
case. Defendant asserts that the purported history of
discrimination in Forsyth County, allegedly established not by
court rulings but by statistical evidence, shows a pattern of
discrimination which must be present in this case also.
On 24 August 2020, the MAR court entered an order denying
defendant's MARs. That order is the subject of our review
here. The MAR court expressly stated the scope of the order
was limited to the 2017 MAR, 2019 MAR, and 2020 MAR
filed by defendant "based on alleged newly discovered
evidence." The RJA MARs were assigned to a separate judge
and were not considered by the MAR court.
The MAR court's comprehensive order makes several
pertinent findings of fact before ultimately denying
defendant's claims because defendant "failed to show good
cause, actual prejudice, or a fundamental miscarriage of
justice" sufficient to overcome the procedural bar of N.C.G.S.
§ 15A-1419. Specifically, the MAR court found that
defendant failed to raise a Batson issue on direct [***21]
appeal despite the fact that "the trial court identified the
Batson issue as a possible issue on appeal and said so in the
presence of the parties."7
In addition and contrary to defendant's argument, the MAR
court held that State v. Burke cannot be read to prevent
operation of the procedural bar in this case because Burke
applied specifically to RJA MARs and "all of [d]efendant's
RJA MARs are still pending and are beyond the scope of this
[o]rder."
[*484] Defendant petitioned this Court for a writ of
6 Defendant
also asserted that a similar study on juror data
constituted newly discovered evidence. See Ronald F. Wright, et al.,
The Jury Sunshine Project: Jury Selection as a Political Issue, 2018
Ill. L. Rev. 1407 (2018). Our "good cause" analysis of the MSU
study under N.C.G.S. § 15A-1419(c) applies equally to this study.
7 Defendant conceded that his counsel was not ineffective for failing
to raise the Batson issue on direct appeal or in his initial postconviction filings.
-App. 6-
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385 N.C. 471, *484; 895 S.E.2d 532, **543; 2023 N.C. LEXIS 947, ***21
certiorari to review the order of the MAR court. This Court
allowed reviewed pursuant to N.C.G.S. § 7A-32(b) on three
issues: (1) whether the CLE handout and the MSU study
constitute newly discovered evidence of purposeful
discrimination in jury selection under Batson v. Kentucky, (2)
whether defendant was in an adequate position to raise his
Batson claim before he had access to the CLE handout and
the MSU study, and (3) whether this Court's decision in State
v. Burke forecloses acceptance of the State's procedural bar
argument.
II. Standard of Review
This Court reviews a lower court's order on motions for
appropriate relief to determine "whether the findings of fact
are supported by evidence, whether the findings [***22] of
fact support the conclusions of law, and whether the
conclusions of law support the order entered by the trial
court." State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627
(2005) (quoting State v. Stevens, 305 N.C. 712, 720, 291
S.E.2d 585 (1982)). We review issues of law de novo. State v.
Biber, 365 N.C. 162, 168, 712 S.E.2d 874 (2011).
III. Analysis
N.C.G.S. § 15A-1419(a) (2021). If any of these circumstances
are present, "the [***23] court shall deny the motion . . .
unless the defendant can demonstrate" that an exception
applies. N.C.G.S. § 15A-1419(b) (2021); see also State v.
Murrell, 362 N.C. 375, 402, 665 S.E.2d 61 (2008).
An exception to the procedural bar applies only if the
defendant can demonstrate: (1) "[g]ood cause for excusing the
ground for denial listed in subsection (a) of this section and . .
. actual prejudice resulting from the defendant's claim," or (2)
"[t]hat failure to consider the defendant's claim will result in a
fundamental miscarriage of justice." N.C.G.S. § 15A-1419(b).
"[G]ood cause" exists under this section only if the defendant
demonstrates "by a preponderance of the evidence that his
failure to raise the claim or file a timely motion" was:
(1) The result of State action in violation of the United
States Constitution or the North Carolina Constitution
including ineffective assistance of trial or appellate
counsel;
(2) The result of the recognition of a new federal or State
right which is retroactively applicable; or
(3) Based on a factual predicate that could not have been
discovered through the exercise of reasonable diligence
in time to present the claim on a previous State or federal
postconviction review.
N.C.G.S. § 15A-1419(c) (2021).
A. Procedural Bar
Section 15A-1419 of the North Carolina General Statutes
provides a mandatory procedural bar for issues a party seeks
to litigate in post-conviction proceedings. The procedural bar
applies when any of the following circumstances are present:
[**544] (1) Upon a previous motion made pursuant to
this Article, the defendant was in a position to adequately
raise the ground or issue underlying the present motion
but did not do so. . . .
(2) The ground or issue underlying the motion was
previously determined on the merits upon an appeal from
the judgment or upon a previous motion or proceeding in
the courts of this State or a federal court, unless since the
time of such previous determination there has been a
retroactively effective change in the law controlling such
issue.
(3) Upon a previous appeal the defendant was in a
position to adequately raise the ground or issue
underlying the present motion but did not do so.
[*485] (4) The defendant failed to file a timely motion
for appropriate relief as required by G.S. 15A-1415(a).
"[A]ctual prejudice," within the meaning of subsection (b),
exists only "if the defendant establishes [***24] by a
preponderance of the evidence that an error during the trial or
sentencing" raises a "reasonable probability, viewing the
record as a whole, that a different result would have occurred
but for the error." N.C.G.S. § 15A-1419(d) (2021).
"[A] fundamental miscarriage of justice," occurs only where:
(1) The defendant establishes that more likely than not,
but for the error, no reasonable fact finder would have
found the defendant guilty of the underlying offense; or
[*486] (2) The defendant establishes by clear and
convincing evidence that, but for the error, no reasonable
fact finder would have found the defendant eligible for
the death penalty.
N.C.G.S. § 15A-1419(e) (2021).
The post-conviction procedure set forth above serves a critical
role in our criminal justice system. Not only does it provide
for review and potential relief to defendants convicted of
crime, but the process also promotes finality. See N.C.G.S. §
15A-1415, Official Commentary (2021) ("[A]dditional
finality has been added in G.S. 15A-1419 by making it clear
-App. 7-
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385 N.C. 471, *486; 895 S.E.2d 532, **544; 2023 N.C. LEXIS 947, ***24
that there is but one chance to raise available matters after the
case is over, and if there has been a previous assertion of the
error, or opportunity to assert the error, by motion or appeal, a
later motion may be denied on that basis."); [***25] see also
N.C.G.S. § 15A-1419, Official Commentary (2021) ("[O]nce .
. . there has been opportunity to litigate a matter, there will
not be a right to seek relief by additional motions at a later
date. . . . [I]f there has been an opportunity to have the matter
considered on a previous motion for appropriate relief or
appeal the court may deny the motion for appropriate relief.").
[**545] It is imperative, not only for the parties, but also for
federal habeas review, that we strictly and regularly follow
our post-conviction procedural requirements. See Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 100 L. Ed. 2d
575 (1988); see also Cnty. Ct. of Ulster Cnty., N.Y. v. Allen,
442 U.S. 140, 148, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)
(determining whether an independent and adequate state
procedural ground was utilized by the state court which would
bar the federal courts from addressing the issue on habeas
corpus); Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.
Ct. 1734, 12 L. Ed. 2d 766 (1964) ("We have often pointed
out that state procedural requirements which are not strictly or
regularly followed cannot deprive us of the right to review.").
1. Batson
We first address defendant's argument that the procedural bar
of subsection 15A-1419(a) does not apply to his Batson claim
because at the time of his direct appeal and initial MAR
proceedings, he did not have access to the CLE handout or the
MSU study and was therefore not "in a position to adequately
raise the . . . issue." N.C.G.S. § 15A-1419(a). To do [***26]
so, we begin with the essential tenets of Batson and the MAR
court's application of those tenets to defendant's claim.
The "Constitution forbids striking even a single prospective
juror for a discriminatory purpose." Snyder v. Louisiana, 552
U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 [*487]
(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900,
902 (9th Cir. 1994)). "Purposeful racial discrimination in
selection of the venire violates a defendant's right to equal
protection because it denies him the protection that a trial by
jury is intended to secure." Batson v. Kentucky, 476 U.S. 79,
86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
The North Carolina Constitution states that "[n]o person shall
be excluded from jury service on account of sex, race, color,
religion, or national origin." N.C. Const. art. I, § 26. Thus, the
North Carolina Constitution specifically "bars racebased
peremptory challenges." State v. Nicholson, 355 N.C. 1, 21,
558 S.E.2d 109 (2002) (citing State v. Fletcher, 348 N.C. 292,
312, 500 S.E.2d 668 (1998), cert. denied, 525 U.S. 1180, 119
S. Ct. 1118, 143 L. Ed. 2d 113 (1999)). "[O]ur courts have
adopted the Batson test for reviewing the validity of
peremptory challenges under the North Carolina
Constitution." State v. Campbell, 384 N.C. 126, 133, 884
S.E.2d 674 (2023) (quoting Nicholson, 355 N.C. at 21).
"When a defendant raises a Batson objection, the trial court
must engage in a three-step inquiry to evaluate the merits of
the objection." Id. First, a defendant must "establish a prima
facie case that the peremptory challenge was exercised on the
basis of race." State v. Cummings, 346 N.C. 291, 307-08, 488
S.E.2d 550 (1997). "A defendant meets his or her burden at
step one 'by showing that the totality of the relevant [***27]
facts gives rise to [an] inference of discriminatory purpose.'"
Campbell, 384 N.C. at 134 (quoting Batson, 476 U.S. at 94).
A "prosecutor's questions and statements during voir dire
examination and in exercising his challenges may support or
refute an inference of discriminatory purpose." Batson, 476
U.S. at 97.
"Where the trial court rules that a defendant has failed to
make a prima facie showing [at step one], our review is
limited to whether the trial court erred in finding that the
defendant failed to make a prima facie showing, even if the
State offers reasons for its exercise of the peremptory
challenges." State v. Locklear, 349 N.C. 118, 137, 505 S.E.2d
277 (1998) (first citing State v. Hoffman, 348 N.C. 548, 554,
500 S.E.2d 718 (1998); and then citing State v. Williams, 343
N.C. 345, 359, 471 S.E.2d 379 (1996), cert. denied, 519 U.S.
1061, 117 S. Ct. 695, 136 L. Ed. 2d 618 (1997)). "[W]e do not
consider at step one the State's post facto reply to the trial
court's request for a step two response." Campbell, 384 N.C.
at 136. Further, "[w]here 'the trial court clearly rule[s] there
ha[s] been no prima facie showing' . . . this Court does 'not
consider whether the State offered proper, race-neutral
reasons for its peremptory challenge.'" Id. (quoting State v.
Hoffman, 348 N.C. 548, 552, 500 S.E.2d 718 (1998)). Thus, a
Batson inquiry [**546] concludes "when the trial court . . .
determine[s] that defendant failed to make a prima facie
showing." Id.
[*488] Although a step one showing by defendant may be
mooted "when the trial court does not explicitly rule on
whether the [***28] defendant made a prima facie case, and .
. . the State [voluntarily] proceeds to the second prong of
Batson by articulating its explanation for the challenge," State
v. Golphin, 352 N.C. 364, 426, 533 S.E.2d 168 (2000), our
precedent is clear that a prima facie showing by defendant is
an important step in a Batson analysis. Thus, step one will not
be rendered moot, and will therefore remain subject to review,
when the trial court determines that the "defendant failed to
make a prima facie showing before the prosecutor articulated
-App. 8-
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his reasons for the peremptory challenges." State v. Hoffman,
348 N.C. 548, 551-52, 500 S.E.2d 718 (1998) (quoting State
v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379 (1996), cert.
denied, 519 U.S. 1061, 117 S. Ct. 695, 136 L. Ed. 2d 618
(1997)). In fact, we have expressly stated that it is error for a
trial court to require a step two explanation in the absence of a
prima facie showing by defendant. See Campbell, 384 N.C. at
136 ("Whatever the reason, the Batson inquiry should have
concluded when the trial court first determined that defendant
failed to make a prima facie showing.").
Only when the trial court determines that a defendant
successfully established prima facie showing will the Batson
inquiry proceeds to the second step. Id. at 134. There, "the
burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the jurors in question." Hernandez v.
New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 114 L. Ed.
2d 395 (1991) (citing Batson, 476 U.S. at 97-98). "Batson's
requirement of a race-neutral explanation [***29] means an
explanation other than race." Id. at 374 (O'Connor, J.,
concurring). "[E]ven if the State produces only a frivolous or
utterly nonsensical justification for its strike, the case does not
end—it merely proceeds to step three." Johnson v. California,
545 U.S. 162, 171, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005).
In the third and final step of the Batson inquiry, "the trial
court must determine whether the defendant has carried his
burden of proving purposeful discrimination." Hernandez,
500 U.S. at 359 (citing Batson, 476 U.S. at 98). "No 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." Id. at 375 (O'Connor, J., concurring) (emphasis
added). At this step, the trial court must "determine whether
the prosecutor's stated reasons were the actual reasons or
instead were a pretext for discrimination." Flowers v.
Mississippi, 139 S. Ct. 2228, 2241, 204 L. Ed. 2d 638 (2019).
"The ultimate inquiry is whether the State was motivated in
substantial part by discriminatory intent." Id. at 2244 (cleaned
up).
"[T]he job of enforcing Batson rests first and foremost with
trial judges." Id. at 2243. Thus, "when a trial court rules that a
defendant has [*489] failed to demonstrate a prima facie
case of discrimination, '[t]he trial court's ruling is accorded
deference on review and will not be disturbed unless it is
clearly [***30] erroneous.'" Campbell, 384 N.C. at 131-32
(alteration in original) (quoting State v. Augustine, 359 N.C.
709, 715, 616 S.E.2d 515 (2005)); see also State v. Hobbs,
374 N.C. 345, 349, 841 S.E.2d 492 (2020); Snyder v.
Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 2d
175 (2008); Hernandez, 500 U.S. at 364. "The ability of the
trial judge to observe firsthand the reactions, hesitations,
emotions, candor, and honesty of the lawyers and veniremen
during voir dire questioning is crucial to the ultimate
determination" of whether a prosecutor is acting with
discriminatory purpose. State v. Smith, 328 N.C. 99, 127, 400
S.E.2d 712 (1991).
"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 [**547] black jurors."
Campbell, 384 N.C. at 131 (quoting Batson, 476 U.S. at 97).
Just as judges may consider questions and statements of
prosecutors when determining whether a prima facie case has
been established by defendant at step one, judges may also
consider plainly observable prospective juror conduct—such
as falling asleep—which would justify the use of a
peremptory strike. The law does not require that trial judges
disregard evidence of such conduct in considering whether a
prima facie case of discrimination has been established. "An
appellate court is not required to, and should not, assume error
by the trial judge when none appears on the record before the
appellate court." Id. at 138 (quoting State v. Alston, 307 N.C.
321, 341, 298 S.E.2d 631 (1983) [***31] ).
2. MAR Court Order
a. Mootness
The MAR court reviewed defendant's Batson argument in a
thorough thirty-six-page order, making extensive findings of
fact and conclusions of law. In accordance with our
precedent, the MAR court first determined that because the
trial court ruled that defendant failed to establish a prima facie
case of purposeful discrimination prior to the trial court's
request that the State articulate its race-neutral reasoning for
striking Ms. Banner, Mr. Smalls, and Mr. Mills, step one of
Batson was not moot. Relying on Locklear, the MAR court
properly limited its review to step one. The MAR court
further found that the hearing in the trial court was not a "full
hearing" on defendant's Batson claim because pretext in the
third step was never discussed by defendant at trial, nor did
the trial court rule on any third-step issue of pretext.
In contrast with the finding of the MAR court, defendant
argues, and the State concedes, that step one of the Batson
inquiry is moot, citing [*490] this Court's decision in Hobbs,
374 N.C. at 354. However, that understanding between the
parties is immaterial as a stipulation to an issue of law is not
binding upon the Court. See Quick v. United Benefit Life Ins.
Co., 287 N.C. 47, 56, 213 S.E.2d 563 (1975) ("[T]heir
misapprehension is immaterial [***32] for the stipulation
-App. 9-
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was one of law and therefore not binding upon the court.");
Moore v. State, 200 N.C. 300, 301, 156 S.E. 806 (1931)
("[W]hile the parties to an action or proceeding may admit or
agree upon facts[,] they cannot make admissions of law which
will be binding upon the courts."); see also Rawlings v. Neal,
122 N.C. 173, 29 S.E. 93 (1898); Binford v. Alston, 15 N.C. (4
Dev.) 351, 354 (1833). Thus, parties may not by agreement
bind or otherwise compel this Court to adhere to an
application of the law that is inconsistent with an
interpretation articulated by this Court. After all, "[i]t is
emphatically the province and duty of the judicial department
to say what the law is." Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177, 2 L. Ed. 60 (1803).
The present case is readily distinguishable from those in
which this Court has found step one of the Batson inquiry
moot. In Hobbs, this Court relied on our decision in State v.
Robinson, 330 N.C. 1, 17, 409 S.E.2d 288 (1991), where we
held that it was "unnecessary to address the trial court's
conclusion that defendant failed to make a prima facie case of
discrimination because . . . the State voluntarily proffered
explanations for each peremptory challenge." (Emphasis
added.) Further, Hobbs expressly required us to review what
had been characterized as "a full hearing on the defendant's
Batson claim." 374 N.C. at 348. That is not the situation here.
Here, the Batson inquiry included a clear ruling that defendant
had failed [***33] to establish a prima facie case of
purposeful discrimination at step one. Unlike Robinson, the
State did not thereafter "voluntarily" proceed to step two.
Instead, the State was directed by the trial court to proffer its
race-neutral reasons for striking the jurors to bolster the
appellate record in the event that an appellate court overruled
the trial court's step one determination. Moreover, the inquiry
never proceeded to step three, and the trial court never
characterized the inquiry as a "full hearing." Accordingly, this
case is readily distinguishable from both Hobbs and
Robinson.
[**548] We note that defendant relies on a 2020 report by
the North Carolina Task Force for Racial Equity in Criminal
Justice to argue that this Court should radically alter our
Batson jurisprudence. The task force, chaired at the time of
the report by Attorney General Joshua Stein and a member of
this Court, Justice Earls, recommended that this Court enact
several "administrative" rule changes, including elimination
of the requirement for a prima facie showing in Batson
altogether, "disallowing [*491] strikes where race could be a
factor, reconsidering commonly accepted 'race[-]neutral'
justifications for strikes, [***34] and disallowing demeanor-
based strikes."8 N.C. Task Force for Racial Equity in
Criminal Justice, Report 2020, at 102 (2020), available at
https://ncdoj.gov/wpcontent/uploads/2021/02/TRECReportFinal_02262021.pdf.
As is most relevant here, the task force's recommendation to
abolish a defendant's burden at step one of Batson states
openly what a member of that task force has thus far implied
vis-à-vis an analytical framework that would see most step
one determinations rendered moot on appeal. See Campbell,
384 N.C. at 139-43 (Earls, J., dissenting). We once again
reject the notion that a trial court's clear determination that no
prima facie case has been made should be swept aside on
appellate review merely due to a trial court judge's erroneous
attempt to preserve judicial resources by bolstering the
appellate record.
When, as here, the trial court determines that a defendant has
"failed to make a prima facie showing" of purposeful
discrimination on the basis of race, the Batson inquiry
concludes. Campbell, 384 N.C. at 135-36. For each of the
potential jurors at issue here, the trial court clearly ruled that
no prima facie showing of purposeful discrimination had been
established. The Batson inquiry should have ended at that
point, and it [***35] was error for the trial court to direct the
State to place its race-neutral reasons on the record. Id. at 136.
Therefore, the MAR court's findings of fact that the trial court
ruled on step one prior to requesting the State's race-neutral
reasons and that no full Batson hearing occurred support its
conclusion of law that step one is not moot, and the MAR
court properly limited its review of the trial court's Batson
inquiry to step one.
b. Position to Adequately Raise
As noted above, defendant's Batson claim is barred if, upon a
previous appeal or previous motion for appropriate relief, he
was "in a position to adequately raise the . . . issue . . . but did
8 This Court does not question that racial discrimination has been
and, in portions of society, continues to be a pervasive evil that
deprives citizens of every race of their constitutional right to equal
protection of the laws. Interestingly, however, the task force's
recommendations would effectively eliminate the ability to
peremptorily challenge any juror because an argument could be
made that any challenge would qualify as a strike "where race could
be a factor" — even when a juror falls asleep during jury selection.
We reaffirm that, subject only to the commands of the Equal
Protection Clauses of the United States Constitution and the North
Carolina Constitution, "peremptory strikes . . . may be used to
remove any potential juror for any reason—no questions asked."
Flowers, 139 S. Ct. at 2238.
-App. 10-
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not do so," and no exception to the bar applies. N.C.G.S. §
15A-1419(a)-(b). Subsection 15A-1419(a)(3) [*492] "'is not
a general rule that any claim not brought on direct appeal is
forfeited on state collateral review' [but rather] requires the
reviewing court, instead, 'to determine whether the particular
claim at issue could have been brought on direct review.'"
State v. Hyman, 371 N.C. 363, 383, 817 S.E.2d 157 (2018)
(emphasis added) (quoting State v. Fair, 354 N.C. 131, 166,
557 S.E.2d 500 (2001)). The MAR court found that: (1) "the
trial court identified the Batson issue as a possible issue on
appeal and said so in the presence of the parties;" (2)
"[d]efendant was on actual notice that a Batson
claim [***36] could be an appellate issue;" and (3) "despite
being on actual notice that a Batson claim could be an
appellate issue, [d]efendant failed to assert any Batson claim
on direct appeal or in his 1998 MAR, 2000 MAR or 2001
MAR." Accordingly, the MAR court found "there was
nothing that prevented [d]efendant from asserting a Batson
claim on direct appeal or in one of his prior MARs."
The trial transcript shows that defendant promptly objected on
Batson grounds to the [**549] State's peremptory challenges
of both Mr. Smalls and Ms. Banner first and then Mr. Mills.
The trial court ruled that defendant failed to establish a prima
facie case of purposeful discrimination on the basis of race.
Defendant does not contest that he failed to raise a Batson
claim in his direct appeal to this Court despite having raised a
Batson objection at trial, receiving a ruling from the judge,
and having the trial court note on the record that the issue may
be the subject of review on appeal. See Tucker, 347 N.C. 235,
490 S.E.2d 559 (1997). Defendant was in an adequate position
to raise a Batson claim on direct appeal but failed to do so.
N.C.G.S. § 15A-1419(a)(3).
In addition, the same circumstances which would have
allowed defendant to raise his Batson claim on direct appeal
would have [***37] allowed defendant to raise a Batson
claim in one of his prior MARs. Therefore, defendant was in
an adequate position to raise, and in fact could have raised,
his Batson claim on a previous MAR but failed to do so.
N.C.G.S. § 15A-1419(a)(1). The MAR court's findings of fact
support its conclusion that defendant was in a position to
adequately raise the Batson issue previously but failed to do
so. Thus, defendant's Batson claim is barred unless defendant
can demonstrate an exception to this mandatory bar.
B. Exception to the Procedural Bar
Defendant argues the "good cause" exception found in
subsection 15A-1419(b)(1) applies because the CLE handout
and the MSU study at issue here were not available at his
trial, and he was therefore prevented [*493] from raising the
claim on direct appeal. However, the bulk of defendant's
argument ignores step one of the Batson inquiry and focuses
on pretext at step three, which is not the pertinent issue as set
forth above.
Because defendant offers the CLE handout and the MSU
study as "newly discovered evidence" of purposeful
discrimination and pretextual reasons proffered by the State in
striking Ms. Banner, Mr. Smalls, and Mr. Mills, defendant's
purported "newly discovered" evidence does not address his
failure [***38] to establish a prima facie case at step one.
The proper inquiry is whether this "evidence" constitutes "a
factual predicate that could not have been discovered through
the exercise of reasonable diligence in time to present the
claim on a previous State or federal postconviction review,"
N.C.G.S. § 15A-1419(c)(3), and, if so, whether defendant can
then demonstrate that the absence of this evidence caused
"actual prejudice," i.e., "a reasonable probability" of a
different step one outcome. N.C.G.S. § 15A-1419(b)(1), (d).
1. Good Cause
As noted,
good cause may only be shown if the defendant
establishes by a preponderance of the evidence that his
failure to raise the claim or file a timely motion was:
(1) The result of State action in violation of the United
States Constitution or the North Carolina Constitution
including ineffective assistance of trial or appellate
counsel;
(2) The result of the recognition of a new federal or State
right which is retroactively applicable; or
(3) Based on a factual predicate that could not have been
discovered through the exercise of reasonable diligence
in time to present the claim on a previous State or federal
postconviction review.
N.C.G.S. § 15A-1419(c).
However, the legislature specifically exempted from the
definition of good [***39] cause "[a] trial attorney's
ignorance of a claim, inadvertence, or tactical decision to
withhold a claim." Id. "[A] deliberate, tactical decision not to
pursue a particular claim is the very antithesis of the kind of
circumstance that would warrant excusing a defendant's
failure to adhere to a State's legitimate rules for the fair and
orderly disposition of its criminal cases." Smith v. Murray,
477 U.S. 527, 534, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).
[*494] When determining whether good cause exists to
overcome a procedural bar, the question is whether, at the
-App. 11-
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time of the procedural default, the claim was available at all.
Id. at 537. Accordingly, for cause sufficient to overcome the
procedural bar, it must exist beyond the control of [**550]
counsel—it must not be subject to counsel's manipulation, but
rather, truly unavailable.
a. CLE Handout
As an initial matter, we note that because review of the
Batson issue here is limited to step one, the CLE handout
listing various race-neutral reasons for peremptory challenges
at step two is irrelevant. We can discern no possible scenario
in which, had defendant possessed this CLE handout, it would
have assisted defendant in carrying his burden at step one.9 At
most, this handout is "evidence" that a prosecuting attorney
attended a CLE class [***40] on jury selection. Any
argument related to a prosecutor's step two explanation at step
one would be purely conjecture and speculation because mere
possession of a CLE handout from a State Bar sanctioned
CLE class does not raise an inference that a peremptory
challenge was based on race. Nevertheless, we address
whether defendant's acquisition of this CLE handout
constitutes good cause, and whether his failure to previously
acquire it resulted in actual prejudice.
The MAR court found that the [CLE] handout could not be
"newly discovered" because the information contained therein
followed and was supported by established caselaw and
defendant "by the exercise of reasonable diligence[ ] could
have conducted legal research . . . to determine that the
reasons contained in the [CLE] handout referenced
established case law." The MAR court reviewed cases in
which "race-neutral reasons or explanations" to exercise a
peremptory challenge had been analyzed in prior court
decisions. The trial court noted that the cases it had reviewed
were similar "in form and substance to the list of reasons or
explanations set forth on the [CLE] handout." The list of cases
and the acceptable reason for [***41] striking a potential
juror the MAR court provided is as follows:10
Knowledge of the case. State v. Thomas, 329 N.C. 423,
430-33, 407 S.E.2d 141 (1991); State v. Thomas, 350
N.C. 315, 333-35, 514 S.E.2d 486 (1999).
9 To the extent defendant raises an argument regarding pretext, such
argument is properly considered at step three of Batson and is
irrelevant to the trial court's determination at step one—which is why
defendant did not make such an argument at trial.
10 To improve readability, this list has been slightly reformatted from
the original MAR court's order.
[*495] Belief that criminal justice system operates
unfairly before facts presented. State v. Porter, 326 N.C.
489, 499-502, 391 S.E.2d 144 (1990).
Inappropriate dress. State v. Headen, 206 N.C. App. 109,
116-17, 697 S.E.2d 407, rev. denied, 364 N.C. 607, 704
S.E.2d 275 (2010).
Reservations or doubts about the death penalty. State v.
Basden, 339 N.C. 288, 297-98, 451 S.E.2d 238 (1994);
State v. Locklear, 349 N.C. 118, 139-140, 505 S.E.2d
277 (1998); State v. Rogers, 355 N.C. 420, 444-46, 562
S.E.2d 859 (2002).
Physical appearance. Purkett v. Elem, 514 U.S. 765, 769,
115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); State v.
Barnes, 345 N.C. 184, 210-13, 481 S.E.2d 44 (1997);
State v. Headen, 206 N.C. App. 109, 116-17, 697 S.E.2d
407, rev. denied, 364 N.C. 607, 704 S.E.2d 275 (2010).
Age being too young or close to defendant's age, or a
relative's age close to defendant's age. State v. Jackson,
322 N.C. 251, 255-57, 368 S.E.2d 838 (1988); State v.
Smith, 328 N.C. 99, 125-27, 400 S.E.2d 712 (1990); State
v. Thomas, 329 N.C. 423, 430-33, 407 S.E.2d 141
(1991); State v. Barnes, 345 N.C. 184, 210 -13, 481
S.E.2d 44 (1997).
Attitude. State v. Jackson, 322 N.C. 251, 255-57, 368
S.E.2d 838 (1988) (including, among other reasons,
citation of another case where lack of eye contact was a
race-neutral reason); State v. Sanders, 95 N.C. App. 494,
501-03, 383 S.E.2d 409, rev. denied, 325 N.C. 712, 388
S.E.2d 470 (1989); State v. Porter, 326 N.C. 489, 499502, 391 S.E.2d 144 (1990) (including, among other
reasons, excessive eye contact with defense counsel and
failure to make eye contact with the prosecutor); State v.
Barnes, 345 N.C. 184, 210-13, 481 S.E.2d 44 (1997)
(including, among other reasons, [**551] failure to
maintain eye contact with the prosecutor); State v.
Locklear, 349 N.C. 118, 139-40, 505 S.E.2d 277 (1998);
State v. Rogers, 355 N.C. 420, 444-46, 562 S.E.2d 859
(2002).
Body language. State v. Jackson, 322 N.C. 251, 255-57,
368 S.E.2d 838 (1988); State v. Barnes, 345 N.C. 184,
210-11, 481 S.E.2d 44 (1997).
History of unemployment or unsteady employment. State
v. Sanders, 95 N.C. App. 494, 501-03, 383 S.E.2d 409,
rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989); State
v. Porter, 326 N.C. 489, 499-502, 391 S.E.2d 144
(1990); State v. Barnes, 345 N.C. 184, 210-13, 481
-App. 12-
Page 13 of 34
385 N.C. 471, *495; 895 S.E.2d 532, **551; 2023 N.C. LEXIS 947, ***41
S.E.2d 44 (1997).
[*496] Rehabilitated jurors and those that vacillate in
answering questions. State v. Robinson, 330 N.C. 1, 1720, 409 S.E.2d 288 (1991).
Unstable/lack of a stake in the community. State v.
Sanders, 95 N.C. App. 494, 501-03, 383 S.E.2d 409, rev.
denied, 325 N.C. 712, 388 S.E.2d 470 (1989); State v.
Thomas, 329 N.C. 423, 430-33, 407 S.E.2d 141 (1991);
State v. Barnes, 345 N.C. 184, 210-13, 481 S.E.2d 44
(1997); State v. Thomas, 350 N.C. 315, 333-35, 514
S.E.2d 486 (1999).
Inappropriate or inconsistent juror responses. State v.
Smith, 328 N.C. 99, 125-27, 400 S.E.2d 712 (1990); State
v. Peterson, 344 N.C. 172, 176-77, 472 S.E.2d 730
(1996).
Communication difficulties/lack of attention. State v.
Jackson, 322 N.C. 251, 255-57, 368 S.E.2d 838 (1988);
State v. Robinson, 330 N.C. 1, 17-20, 409 S.E.2d 288
(1991); Hernandez v. New York, 500 U.S. 352, 356-72,
111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality
opinion); State v. Caporasso, 128 N.C. App. 236, 243-44,
495 S.E.2d 157, appeal dismissed, 347 N.C. 674, 500
S.E.2d 91 (1998).
Criminal history or relative's criminal history. State v.
Sanders, 95 N.C. App. 494, 501-03, 383 S.E.2d 409, rev.
denied, 325 N.C. 712, 388 S.E.2d 470 (1989); State v.
Porter, 326 N.C. 489, 499-502, 391 S.E.2d 144 (1990);
State v. Robinson, 330 N.C. 1, 17-20, 409 S.E.2d 288
(1991); State v. Burge, 100 N.C. App. 671, 674, 397
S.E.2d 760 (1990) [***42] , rev. denied, 328 N.C. 272,
400 S.E.2d 456 (1991); State v. Peterson, 344 N.C. 172,
176-77, 472 S.E.2d 730 (1996); State v. Locklear, 349
N.C. 118, 139-140, 505 S.E.2d 277 (1998); State v.
Rogers, 355 N.C. 420, 444-46, 562 S.E.2d 859 (2002).
Antagonism to the State or sympathy with defendant.
State v. Jackson, 322 N.C. 251, 255-57, 368 S.E.2d 838
(1988); State v. Porter, 326 N.C. 489, 499-502, 391
S.E.2d 144 (1990); State v. Burge, 100 N.C. App. 671,
674, 397 S.E.2d 760 (1990), rev. denied, 328 N.C. 272,
400 S.E.2d 456 (1991); State v. Thomas, 329 N.C. 423,
430-33, 407 S.E.2d 141 (1991); State v. Barnes, 345 N.C.
184, 210-13, 481 S.E.2d 44 (1997); State v. Rogers, 355
N.C. 420, 444-46, 562 S.E.2d 859 (2002).
The MAR court also determined that the CLE handout
provided
accurate and correct statements of law of both the United
States Supreme Court and the North Carolina appellate
courts concerning appropriate race-neutral and
constitutionally permissible reasons to exercise a
peremptory challenge when such facts arise in a [*497]
particular case, as well as handwriting11 that identifies
when it would be improper to exercise a peremptory
challenge. There is nothing inherently wrong . . . with a
handout containing accurate statements of the law
regarding permissible and impermissible reasons to
exercise a peremptory challenge. Moreover, such a
handout containing accurate statements of the law should
be expected when attending a CLE class on jury
selection.
A review of the cases cited by the MAR court reveals that the
MAR court correctly found that the CLE handout does little
more than restate, in a list format, the established caselaw
reviewing legally permissible reasons to exercise a
peremptory challenge of a potential juror. In reaching its
conclusion [**552] that the CLE handout was not evidence
of racial discrimination, [***43] the MAR court reasoned
that
when any attorney or judge attends a CLE o[r] CJE on a
particular legal subject, it is expected that accurate and
correct statements of the law on a particular subject will
be given to the attendee. Similarly, any handout on a
particular legal subject should contain accurate and
correct statements of the law.
Additionally, the MAR court explained that "[t]here is
nothing wrong or improper with knowing legally permissible
and impermissible reasons to exercise peremptory
challenges," noting that trial preparation requires that
attorneys understand "legally permissible and impermissible
reasons to exercise peremptory challenges," and that a lawyer
or judge who fails to obtain the requisite number of CLE or
CJE hours each year could be subject to disciplinary action by
the State Bar. In fact, the MAR court noted that the Capital
Case Law Handbook, published by the UNC School of
Government, "includes a list of cases that identify appropriate
race-neutral reasons to exercise peremptory challenges," and
that a UNC School of Government handout from a 2017 CJE
seminar entitled Capital Case Management for Superior Court
Judges "contains a list of race-neutral reasons [***44] for
exercising peremptory challenges as well as accurate and
correct statements of law on this subject." We agree with the
MAR court that "when any attorney or judge attends a CLE or
11 The handwriting referenced appears on the CLE handout provided
in Defendant's Appendix. It reads "[d]on't use gender/race reasons in
NC." It also states "may be expanded to othe[r] 'cognizable Equ[al]
Prot[ection] Clause protected class.'"
-App. 13-
Page 14 of 34
385 N.C. 471, *497; 895 S.E.2d 532, **552; 2023 N.C. LEXIS 947, ***44
CJE seminar on a particular legal subject, it is expected that
accurate and [*498] correct statements of the law on a
particular subject will be given to the attendee," and that mere
knowledge of the state of the law under Batson does not raise
any inference of discriminatory intent.
Further, acknowledging defendant's admission that "there are
good reasons to strike almost anyone from jury service," the
MAR court determined that "the [CLE] handout sets forth
reasons that are race-neutral and are therefore 'good reasons'
to exercise peremptory challenges . . . in a particular case."
The MAR court further concluded that "by an exercise of
reasonable diligence," defendant could have obtained the CLE
handout through a public records request to the entity that
provided the continuing legal education, the North Carolina
Conference of District Attorneys. Accordingly, the MAR
court concluded that the CLE handout was "not newly
discovered, and [d]efendant's claim to the contrary is
meritless."
As the MAR court correctly [***45] observed, trial
preparation requires that attorneys understand a host of legal
issues, including reasons why an attorney may and may not
strike a juror. The CLE handout simply displayed legally
permissible reasons for exercising peremptory challenges. It
defies logic and common sense that an educational tool from a
CLE sanctioned by the State Bar would be sufficient to
establish a prima facie showing of purposeful discrimination
at step one when the material merely contains an accurate
rendering of the law.
Taking defendant's argument to its logical conclusion, a prima
facie showing of purposeful discrimination could be shown
simply by alleging that an attorney researched the law on
Batson, or that he or she had a section in a trial notebook on
defenses to Batson objections. Defendant's assertion that the
CLE handout is evidence of racial animus on behalf of the
State is meritless at best.
Defendant further argues that because he presented evidence
that "his prosecutors used the [CLE] handout not only in his
case, but in at least two others," State v. Lyons, 343 N.C. 1,
468 S.E.2d 204 (1996) and State v. White, 131 N.C. App. 734,
509 S.E.2d 462 (1998), the CLE handout constitutes newly
discovered evidence of a pattern of racial discrimination. This
argument fails not only for the reasons [***46] set forth
above, but also because our appellate courts have held that the
trial courts in those cases properly denied the defendants'
Batson challenges. See Lyons, 343 N.C. at 14; White, 131
N.C. App. at 741. "[O]nce an appellate court has ruled on a
question, that decision becomes the law of the case and
governs both in subsequent proceedings in a trial court and on
subsequent appeal." Weston [*499] v. Carolina Medicorp,
Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751 (1994) (citing
[**553] Transp., Inc. v. Strick Corp., 286 N.C. 235, 210
S.E.2d 181 (1974)).
Defendant essentially asked the MAR court to overrule both
the trial courts involved in these cases and the appellate courts
that affirmed Batson denials. Correctly noting that no
Superior Court judge has the authority to overrule either the
trial courts which denied those defendants' Batson challenges
or the appellate courts that affirmed those denials, the MAR
court properly rejected this request.
The MAR court's findings of fact are supported by competent
evidence and further support the conclusion of law that
defendant cannot show good cause based on the CLE
handout. Because defendant could have conducted legal
research and arrived at a proper understanding of the legally
recognized justifications set forth in the CLE handout on his
own "through the exercise of reasonable diligence in time to
present the claim on a previous State or [***47] federal
postconviction review," we hold that defendant has failed to
demonstrate good cause pursuant to subsection 15A1419(b)(1). Defendant's meritless argument regarding the
CLE handout does not provide relief from the mandatory
procedural bar.
It is worth noting here that the CLE handout is readily
distinguishable from the discriminatory manual at issue in
Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 125 S. Ct.
2317, 162 L. Ed. 2d 196 (2005). In that case, the Supreme
Court of the United States addressed, among other issues
associated with the claims, a "specific policy of systematically
excluding blacks from juries." 545 U.S. at 263. The district
attorney's office there had adopted a manual entitled "Jury
Selection in a Criminal Case" which detailed "the reasoning
for excluding minorities from jury service" and which placed
explicit "emphasis on race." Id. at 264, 266. Specifically, the
manual advised prosecutors that minorities frequently
empathize with defendants. See id. at 306 (Thomas, J.,
dissenting). The Court ultimately determined that "when the
evidence on the issues raised is viewed cumulatively its
direction is too powerful to conclude anything but
discrimination." Miller-El II, 545 U.S. at 265 (emphasis
added).
In reaching its conclusion, the Court considered the
surrounding circumstances, which included the following: (1)
the strikes of 10 of 11 [***48] black prospective jurors—one
of whom was "ideal;" (2) the fact that prosecutors marked the
race of each juror on their juror cards; (3) the explanations
given by prosecutors, which did not hold up and were at odds
with the evidence; (4) the jury shuffles of the State; (5) the
disparate questioning of black and white jurors; and (6) the
-App. 14-
Page 15 of 34
385 N.C. 471, *499; 895 S.E.2d 532, **553; 2023 N.C. LEXIS 947, ***48
use of the manual which sought to exclude minorities from
the jury. Id. at 265-66.
[*500] Here, the CLE handout does not include or establish
evidence of an intent to exclude minorities from juries. The
CLE handout merely contained accurate statements of legally
permissible reasons to exercise peremptory challenges, not a
prosecutorial training manual advocating race-based strikes.
The CLE handout here is not only not newly discovered
evidence under subsection 15A-1419(c); it is not "evidence"
that raises an inference of impermissible race-based
peremptory challenges at step one. We therefore agree with
the MAR court that defendant "suffered no prejudice from
failing to have" the CLE handout because "even if [d]efendant
had the [CLE] handout . . . there would not have been a
different result" at step one.
b. Jury Selection Study
Defendant contends that the MSU study was previously
unavailable evidence [***49] that shows the prosecutor
violated Batson. Again, however, the lack of a full Batson
hearing in the trial court has narrowed the scope of our
review, and the issue is whether this study constitutes newly
discovered evidence that provides a "reasonable probability"
of a different result at step one. As previously noted, to
qualify as newly discovered evidence sufficient to overcome
the mandatory procedural bar, the MSU study must contain "a
factual predicate that could not have been discovered through
the exercise of reasonable diligence in time to present the
claim on a previous State or federal postconviction review."
N.C.G.S. § 15A-1419(c)(3).
[**554] As an initial matter, the MAR court "reviewed and
considered" the MSU study and found that it "was created for
[d]efendant in preparation to file a previous MAR,
specifically [d]efendant's 2010 RJA MAR." The authors'
admission that the purpose of the study was to "evaluate the
potential for statistical evidence to support claims under . . .
the RJA," Grosso & O'Brien, A Stubborn Legacy at 1533, and
defendant's statement in his reply brief in support of his 2018
MAR that the study "was conducted in preparation for filings
under the Racial Justice Act," support the MAR court's
finding that the MSU study was created [***50] to assist
capital defendants, including this defendant, preparing to file
under the RJA.
The MAR court noted that the study took less than one year to
create, which is borne out by the affidavit of Professors
Catherine Gross and Barbara O'Brien who noted that "[w]e
began data collection for the study in the fall of 2009 and
completed it in the spring of 2010." The MAR court found
that "nothing prevented [d]efendant from preparing a
substantially similar study or analysis to use on direct appeal
or in one [*501] of his prior MARs covering the years
immediately preceding his direct appeal or prior MARs."
Further, the MAR court correctly concluded that the study
was "not newly discovered" but "newly created."
We agree with the MAR court that allowing defendant to
label such a study as "newly discovered evidence" sufficient
to overcome a procedural bar would effectively allow
defendant to "manufacture[ ] a mechanism to file an infinite
number of MARs." Indeed, historical information concerning
juror strikes in other cases, to the extent it may be relevant at
step one, was readily obtainable by defendant.12 Mere review
of relevant files or transcripts of capital proceedings in
preparation for trial [***51] could have yielded for defendant
the same or similar data utilized in the MSU study. Put
another way, defendant's attorney, investigator, or someone
acting at their direction could have reviewed the Clerk of
Court's files from capital murder trials in Forsyth County and
compiled the information defendant now contends is newly
discovered. That gathering such information may have been
difficult or time consuming does not change its character. The
data was in existence and could "have been discovered
through the exercise of reasonable diligence in time to present
the claim on a previous State or federal postconviction
review," N.C.G.S. § 15A-1419(c)(3), and in time to present at
trial. Counsel for defendant certainly understood that Batson
issues might arise in a capital trial—and defendant's various
postconviction counsel certainly knew Batson objections were
made at trial.
Further, defendant argues that peremptory strike data from
cases tried subsequent to his conviction may be considered
retrospectively as evidence establishing a prima facie case of
purposeful discrimination. We reject this argument because
such data has no bearing on defendant's Batson claim. While a
defendant is certainly entitled to bring [***52] the trial
court's attention to a number of relevant factors when
attempting to establish a prima facie case at step one,
including historical evidence, see Hobbs, 374 N.C. at 350, an
appellate court's consideration of facts not yet in existence at
the time of the trial court's step one ruling would pervert our
well-established standard that such a ruling "is accorded
deference on review and will not be disturbed unless it is
clearly erroneous." Campbell, 384 N.C. at 131-32 (quoting
State v. Augustine, 359 N.C. 709, 715, 616 S.E.2d 515
12 The
State correctly notes that while historical evidence and
statistical information may be relevant evidence at step one, the issue
here "is not relevance or admissibility, but is solely the question of
whether such a study constitutes newly discovered evidence allowing
for overcoming the procedural bar."
-App. 15-
Page 16 of 34
385 N.C. 471, *501; 895 S.E.2d 532, **554; 2023 N.C. LEXIS 947, ***52
(2005)); see also Alston, 307 N.C. at 341 ("An appellate court
is not required to, and should not, assume error by the trial
judge when [*502] none appears on the record before the
appellate court" (quoting State v. Williams, 274 N.C. 328,
333, 163 S.E.2d 353 (1968))). A trial court's lack of
precognition cannot render its step one ruling clearly
erroneous, and in this context, evidence from future cases
which did not [**555] exist at the time of a trial court's step
one ruling cannot establish actual prejudice.
Further, even if the prospective data in the MSU study could
have some bearing on our analysis, and even if the historical
data in the MSU study could not have been discovered
through the exercise of reasonable diligence, the MAR court
correctly concluded that this study could not afford defendant
relief because the study was unreliable and fatally [***53]
flawed. The MAR court reached this determination after it
examined each of the Forsyth County cases used in the MSU
study and found that the study inaptly imputed racial motives
to peremptory strikes for cases in which Batson arguments
had not been made or Batson violations had not been found.
In other words, the MSU study assumed racial animus in
cases in which defendants did not make any such claim, or in
which the trial court or appellate courts did not make or
sustain any such findings.
The MAR court discussed the following cases included in the
MSU study: (1) State v. Hooks;13 (2) State v. Larry;14 (3)
State v. Little;15 (4) State v. Moore;16 (5) State v. White;17 (6)
State v. Moseley;18 (7) State v. Murrell;19 (8) State v.
Thibodeaux;20 (9) State v. Frogge;21 (10) State v. Moses;22
13 State v. Hooks, 353 N.C. 629, 548 S.E.2d 501 (2001).
14 State v. Larry, 345 N.C. 497, 481 S.E.2d 907 (1997).
15 This case remained pending at the time of the MAR court's order.
16 State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994).
17 State v. White, 355 N.C. 696, 565 S.E.2d 55 (2002).
18 State v. Moseley, 336 N.C. 710, 445 S.E.2d 906 (1994).
19 State v. Murrell, 362 N.C. 375, 665 S.E.2d 61 (2008).
20 State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert.
denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).
and (11) State v. Woods.23
Specifically, regarding State v. Larry and State v. Hooks,
cases in which Batson challenges were denied by the trial
courts and not raised on appeal, the MAR court found
the MSU [s]tudy has no authority to overrule the Hooks
and Larry trial courts that specifically found [*503]
there were no Batson violations. . . . [T]he part of the
MSU study that relies on the Hooks and Larry cases as
evidence that race was a [***54] significant factor in
exercising peremptory challenges and therefore are also
evidence of a Batson violation in the instant case is
materially contradicted by the unambiguous record,
unreliable, fatally flawed and meritless . . . .
Next, the MAR Court addressed the examination of State v.
Little in the MSU study and determined that although that
case remains pending, the defendant in Little was tried and
convicted more than 10 years after defendant in the instant
case was tried and convicted—many years after Mr. Lang had
left the Forsyth County District Attorney's Office. The MAR
court reasoned that
other than a similar job title, job description and the
same employer, the MSU study fails to show any
"demonstrable nexus between" the act of the prosecutor
allegedly using race as a basis to exercise peremptory
challenges in the Little case and Rob Lang nor any
"causal connection between the conduct [of the other
prosecutor's alleged bad act] and the injury [of Rob Lang
exercising peremptory challenges in the instant case]" to
show that Rob Lang allegedly violated Batson in the
instant case.
(Alterations in original.)
Ultimately, the MAR court concluded that even though Little
was a Forsyth [***55] County case, "it is so remote in time
to the Tucker trial that absent said nexus or causal connection,
there is no meaningful probative value." In addition, the MAR
court determined that [**556] defendant could not rely on
the Little case to show a Batson violation in the instant case
because "the part of the MSU [s]tudy that relies on Little as
evidence that race was a significant factor in peremptory
challenges . . . is materially contradicted by the unambiguous
record, unreliable and fatally flawed."
The remaining cases used in the MSU study—Moore, White,
Moseley, Murrell, Thibodeaux, Frogge, Moses, and Woods—
involve defendants who did not raise a Batson issue on
appeal. Thus, the MAR court correctly concluded that the
21 State v. Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997).
22 State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999).
23 State v. Woods, 345 N.C. 294, 480 S.E.2d 647 (1997).
-App. 16-
Page 17 of 34
385 N.C. 471, *503; 895 S.E.2d 532, **556; 2023 N.C. LEXIS 947, ***55
"MSU [s]tudy has no authority to raise a Batson claim on
behalf of the [r]emaining [d]efendants that failed to do so in
their respective cases" and it "has no authority to overrule any
of [the] appellate courts ultimately finding no error" in these
cases.
[*504] The MAR court expressed that the MSU study's
reliance on these cases was legally problematic "because [as]
trial courts never had the opportunity to make a Batson ruling,
not only is the three step Batson inquiry . . .
meaningless, [***56] but the standard of review that
deference be given to the rulings of the trial courts obviously
does not apply"; thus, "by ignoring and effectively bypassing
the caselaw" the MSU study essentially "allows [d]efendant to
create his own standard of review."
As succinctly put by the MAR court, the use of cases
(1) where trial courts have already specifically ruled
there were no Batson violations, which rulings were
never appealed to a higher court or otherwise reversed by
a higher court, or (2) where no Batson claim was ever
raised at the trial level to begin with, in a statistical
analysis like the MSU [s]tudy as credible evidence of a
Batson violation in the instant cases is misleading and
manipulative.
We agree with the MAR court that the MSU study is
fundamentally flawed and lacks relevance because it purports
to establish purposeful racial discrimination in jury selection
by utilizing cases in which Batson arguments were not made,
Batson violations were not found, and/or appellate courts
determined that Batson violations did not exist. As such, the
study has no probative value. The use of the MSU study as
evidence of racial animus where courts have neither weighed
in nor found Batson [***57] violations by the State is at best
a manipulation of data, and at worst, an attempt to use
misleading statistics to circumvent established rules of
appellate review in the courts of this State.
Among its many fatal flaws, the MSU study suffers from a
lack of relevance and causation which cannot be ignored. The
connection between the data utilized in the MSU study and
the prosecutor's voir dire in the instant case is attenuated at
best. Defendant cites the MSU study and argues that because
black jurors were struck in prior Forsyth County capital trials,
"race was the deciding factor" in the treatment of black jurors
in defendant's case.
But researchers armed with information have great power and
discretion. Interpretation of data may often be more art than
science, and conclusions may often prove to be misleading.
Biases and preconceptions can distort objective truths, and the
maxim that "statistics don't lie, but statisticians do" should run
through the mind of every discerning attorney and judge. See
Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321, 2345,
210 L. Ed. 2d 753 (2021) (describing how the "use of
statistics" can be "highly [*505] misleading" and how "a
distorted picture" can be created by "statistical
manipulation"). A healthy skepticism ensures that one
is [***58] not misled by conclusions that do not reflect
reality. The reality here is that the MSU study used data to
proclaim racial disparities when Batson violations were not
alleged or found. As previously noted, the law of a case is the
province of the courts and may not be altered by agreement of
the parties or academic interpretation of data.
Fundamentally, defendant seeks to use "evidence" of other
purported wrongs to show that the prosecutor acted in
conformity therewith in the present case. However, it is not
the prosecutor's own alleged prior wrongs that defendant
seeks to show, but rather the alleged prior wrongs of North
Carolina prosecutors at large. At a bare minimum, our law
requires some nexus with the [**557] alleged wrongful act,
and no demonstrable nexus is present here.
The MAR court observed that the MSU study "identifies
alleged bad acts during jury selection of prosecutors working
in different offices across North Carolina . . . and imputes
these bad acts during jury selection to the prosecutor in the
instant case." Further, the MAR court emphasized that "[n]o
prosecutors are . . . identified by name" in the study.
Defendant's argument amounts to a contention that because
two professors [***59] from Michigan State issued a study
asserting that North Carolina prosecutors struck black jurors
at higher rates than other jurors in certain cases, race must
have been a deciding factor in selecting jurors in these
cases—regardless of prior rulings to the contrary. Therefore,
according to defendant, because Mr. Lang is a prosecutor in
North Carolina, he must have used race as a deciding factor in
selecting the jury in defendant's trial here. This attenuated
"connection" is wholly insufficient to establish purposeful
discrimination in the selection of jurors in defendant's case.
As is of ultimate importance here, the ability to obtain similar
data and create a similar study was within the control of
defendant or his counsel. Good cause can only be shown
when the claim cannot be made due to circumstances outside
defendant's control—in other words, what cannot be
accomplished "through the exercise of reasonable diligence in
time to present the claim." N.C.G.S. § 15A-1419(c). Because
obtaining then existing data and creating such a study could
have been achieved with reasonable diligence, the MAR court
correctly concluded that the MSU study is "newly created"
not newly discovered evidence. Thus, defendant
cannot [***60] overcome the procedural bar of section 15A1419.
-App. 17-
Page 18 of 34
385 N.C. 471, *505; 895 S.E.2d 532, **557; 2023 N.C. LEXIS 947, ***60
We also share the MAR court's concerns that allowing this
"newly created" evidence or clever statistical manipulation to
be treated as [*506] "newly discovered" allows a defendant
to manufacture all manner of studies to continue to seek
review of his conviction. This directly contradicts one of the
purposes of our post-conviction review—finality. See
N.C.G.S. § 15A-1415, Official Commentary (2021).
Defendant contends that this concern is "a fiction" because he
is "indigent and incarcerated." However, those factors did not
preclude appointed counsel from petitioning courts for
necessary funds to assist in his defense and did not inhibit the
production of the MSU study here. As defendant notes, the
MSU study was "undertaken in order to evaluate the potential
for statistical evidence to support claims under . . . the RJA."
Grosso & O'Brien, A Stubborn Legacy at 1533. Thus, every
time an academic takes an interest in the law of our State or
the case of a particular defendant, or class of defendants,
additional post-conviction studies could be generated.
Moreover, "a deliberate, tactical decision not to pursue a
particular claim" until a third-party has interpreted already
available evidence in a manner most favorable to the [***61]
defendant "is the very antithesis of the kind of circumstance
that would warrant excusing a defendant's failure to adhere to
a State's legitimate rules for the fair and orderly disposition of
its criminal cases." Murray, 477 U.S. at 534. Here, the raw
data used to construct the study could have been discovered
by defendant's exercise of reasonable diligence. To the extent
that the MSU study analyzed and presented previously
existing data in a manner that defendant now believes is more
persuasive for his claim, it fails to qualify as newly
discovered evidence. The "factual predicate" contemplated by
section 15A-1419(c) is either available or unavailable to a
defendant—it is not a matter of creative packaging.
Finally, we note that this case is not the first instance in which
this Court has addressed this study. See State v. Robinson, 368
N.C. 596, 780 S.E.2d 151 (2015) (remanding to the trial court
to grant the State a continuance to adequately respond to the
defendant's submission of the study in support of his RJA
MAR); see also State v. Richardson, 385 N.C. 101, 192-201,
891 S.E.2d 132 (2023) (affirming the trial court's exclusion of
the MSU study as evidence supporting the defendant's burden
at step one of Batson, after the State objected to its admission
and the prosecutor characterized "it as 'one of the most
ridiculous studies [he had] [**558] [***62] seen in [his]
entire life'" (alterations in original)). Neither case involved the
circumstances here—a defendant submitting the study as
"newly discovered evidence" of a Batson violation in a nonRJA MRA—and neither case impacts our rejection of the
study here.
[*507] Defendant's argument is unrelated to actual
innocence and would permit review ad infinitum with the
only potential limitation being the imagination and ingenuity
of clever attorneys. Such an interpretation of our postconviction statutes runs counter to the express intent of the
legislature. We decline to adopt a rule which would encourage
contrived means of overcoming a procedural bar which could
ultimately bog down our criminal justice system in a cycle of
unending post-conviction review.
Accordingly, we agree with the MAR court and hold that
because of the many flaws in the MSU study and its lack of
relevance to defendant's argument, it cannot establish
evidence of purposeful discrimination in the case at bar, and it
does not constitute newly discovered evidence sufficient to
overcome the procedural bar.
c. Case Law
Good cause may also be established as "[t]he result of the
recognition of a new federal or state right which is [***63]
retroactively applicable." N.C.G.S. § 15A-1419(c). Defendant
contends that he was not in an adequate position raise his
Batson claim earlier "because at the time of his direct appeal
and original post-conviction proceedings, North Carolina law
imposed an impossibly high bar on Batson claimants."
Specifically, defendant argues that until State v. Waring, 364
N.C. 443, 701 S.E.2d 615 (2010), North Carolina used the
"sole factor" test, requiring Batson claimants to prove that
racial discrimination in jury selection was the sole factor in a
particular strike. In making this argument, defendant points us
to State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), State
v. Wright, 189 N.C. App. 346, 658 S.E.2d 60 (2008), and State
v. White, 131 N.C. App. 734, 509 S.E.2d 462 (1998).
The MAR court addressed defendant's contention that there
has been a change in the law of North Carolina regarding
Batson, specifically, a shift from a requirement that race be a
"sole" factor to a requirement that race be only a "substantial"
factor. The MAR court determined that "[r]egardless of which
standard applies" nothing prevented defendant from making
his Batson claim on direct appeal or in his prior MARs. In the
alternative, the MAR court found that defendant's failure to
raise a Batson issue on direct appeal constituted error on his
part which precludes him from claiming prejudice now.
Defendant's argument fails for the reasons stated by [***64]
the MAR court and because defendant's claim does not bear
out in our precedent. Waring did not change the law in this
State—it merely reaffirmed it.
In Waring, the defendant argued that the trial court had
-App. 18-
Page 19 of 34
385 N.C. 471, *507; 895 S.E.2d 532, **558; 2023 N.C. LEXIS 947, ***64
applied the wrong legal standard by stating that the
"defendant failed to show [*508] that the State's challenge
was 'based solely on the fact that she was an AfricanAmerican female.'" 364 N.C. at 480. This Court declared that
the proper test was whether race was a significant factor in a
peremptory challenge. Id. The trial court had also expressed
that the defendant needed to show that the State's challenge of
a juror was "motivated by discriminatory purposes." Id. at
480. The Court went on to hold that "the trial judge applied
the correct legal standard," as the trial court's statements
demonstrated that it applied the correct standard but misspoke
in using the word "solely" at one point. Id. at 480-81. In that
case, this Court did not announce a new standard; it upheld
the same one that had been, and still remains, the law.
Therefore, there is no new state right available to defendant
which is sufficient to overcome the procedural bar of section
15A-1419.
In State v. Hobbs, this Court detailed the Batson analysis,
citing with approval to this Court's [***65] decision in State
v. Quick, 341 N.C. 141, 462 S.E.2d 186 (1995), while also
noting that any suggestion that race be the "sole" reason for
striking a juror is incorrect and that the proper inquiry is
whether "race was significant in determining who was
challenged and who was not." Hobbs, 374 N.C. at [**559]
352, n.2 (quoting Waring, 364 N.C. at 480).
Defendant uses State v. Davis, 325 N.C. 607, 617, 386 S.E.2d
418 (1989), as an example demonstrating a prior standard
used in Batson cases. To do so, defendant amplifies the word
"solely," which appears in the opinion exactly one time. Id. at
617. That case did not turn on whether race must be the sole
or substantial factor in exercising a peremptory challenge to
violate Batson. Rather, Davis was resolved with a
straightforward Batson analysis where this Court considered
whether "[t]he relevant facts and circumstances in the record .
. . establish[ed] a prima facie case of racial discrimination
against black citizens during jury selection." Id. at 620. This
Court concluded that a prima facie case of discrimination had
not been established. Id. While this Court did use the word
"sole" in that case, we nevertheless correctly applied the law
as it has been and remains to this day under Batson—race as a
significant factor.
Defendant's reliance on State v. Wright, 189 N.C. App. 346,
658 S.E.2d 60 (2008), writ denied, rev. denied, 667 S.E.2d
280 (2008), suffers from the same defect as his reliance
on [***66] Davis. In Wright, the Court of Appeals addressed
"whether the trial court erred by finding the State had not
engaged in purposeful discrimination when the State did not
provide a race-neutral explanation for each African-American
whom it had removed from the jury by peremptory
challenge." Id. at 346-47. This case addressed the State's
failure to provide race-neutral reasons for its strikes, and the
word "solely" appeared exactly one time in language quoted
from the [*509] trial court which the Court of Appeals never
substantively addressed. Id. at 350. Accordingly, this case
does not support defendant's contention that our State courts
employed a different Batson standard that recently changed
with Waring.
However, State v. White, 131 N.C. App. 734, 509 S.E.2d 462
(1998), lends some support to defendant's argument. In that
case, the Court of Appeals undoubtedly applied a "sole" factor
analysis to the Batson inquiry, finding that "[w]hile race was
certainly a factor in the prosecutor's reasons for challenging"
the prospective jurors, the challenge was not "solely" based
on race and thus did not contravene Batson. Id. at 740. To the
extent White departed from this Court's precedent, it is an
anomaly that pales in comparison to the overwhelming weight
of this Court's Batson jurisprudence. [***67] Our precedent
makes clear that the test is and has been whether race is a
significant factor, as we restated in Waring and Hobbs.
Therefore, defendant has failed to show a new state right that
is retroactively applicable to him. There has been no new
standard announced to conjure up a new right for defendant,
and neither the trial court nor the MAR court followed an
incorrect standard of requiring that race be the sole reason for
the strike.
For the reasons stated herein, defendant has failed to establish
good cause, as he has failed to establish the recognition of a
new federal or state right which is retroactively applicable,
and he has failed to show that he has "newly discovered"
evidence that could not have been discovered through the
exercise of reasonable diligence in time to present the claim
previously. N.C.G.S. § 15A-1419(c).
2. Prejudice
Even if defendant had established good cause, he must also
demonstrate actual prejudice to overcome the procedural bar.
N.C.G.S. § 15A-1419(b). "[A]ctual prejudice may only be
shown if the defendant establishes by a preponderance of the
evidence that an error during the trial or sentencing worked to
the defendant's actual and substantial disadvantage, raising a
reasonable probability, viewing [***68] the record as a
whole, that a different result would have occurred but for the
error." N.C.G.S. § 15A-1419(d). Defendant has failed to carry
his burden.
At the outset, we reiterate that there is no error, as we hold
that defendant failed to show that either the CLE handout or
the MSU study qualify as newly discovered evidence
sufficient to overcome a procedural bar, so there cannot be
-App. 19-
Page 20 of 34
385 N.C. 471, *509; 895 S.E.2d 532, **559; 2023 N.C. LEXIS 947, ***68
actual prejudice. However, even so, we conclude that
defendant cannot show "that a different result [**560] would
have occurred" with the CLE handout or the MSU study.
[*510] Regarding the CLE handout, defendant references the
transcripts of jury selection alongside the handout to argue
that "[t]he prosecutors' use of the cheat sheet in [defendant]'s
trial demonstrates that the State violated Batson. Use of this
document is evidence of pretext and thus evidence of
purposeful discrimination." Here, as we have previously
noted, we are concerned with the trial court's determination at
step one of the Batson inquiry. Defendant's argument,
however, goes to steps two and three of a Batson inquiry—the
prosecutor's reasons justifying the peremptory strikes and
whether they show pretext and purposeful discrimination.
There is no reasonable probability [***69] that the trial court
would have reached a different step one determination had
defendant possessed the CLE handout at trial.
In addition, defendant cannot show that a different result
would have occurred with a comparative analysis across
different cases like the MSU study. The Supreme Court of the
United States has recognized that "a retrospective comparison
of jurors based on a cold appellate record may be very
misleading when alleged similarities were not raised at trial."
Snyder v. Louisiana, 552 U.S. 472, 483, 128 S. Ct. 1203, 170
L. Ed. 2d 175 (2008). Such is the case here. As stated above,
the study is flawed in many respects and lacks relevance to
defendant's case such that any attempted comparative use is
improper.
While historical evidence of purposeful discrimination in jury
selection within a jurisdiction may be relevant, that is not the
nature of the evidence proffered by defendant here. Generally,
to show discrimination, a defendant may present any of the
following:
• 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 [***70] 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
[*511] • other relevant circumstances that bear upon the
issue of racial discrimination.
Flowers v. Mississippi, 139 S. Ct. 2228, 2243, 204 L. Ed. 2d
638 (2019) (first citing Foster v. Chatman, 578 U.S. 488, 136
S. Ct. 1737, 195 L. Ed. 2d 1 (2016); then citing Snyder, 552
U.S. 472; then citing Miller-El II, 545 U.S. 231; and then
citing Batson, 476 U.S. 79).
In Flowers, the Supreme Court of the United States looked to
a history of discriminatory strikes by the prosecutor in
Flowers' multiple prior trials. Id. at 2245. This involved an
analysis of the same prosecutor and same defendant; not an
analysis of different cases and different prosecutors as we
have here.
There may be instances where discrimination in peremptory
strikes in other cases are potentially relevant. See Miller-El v.
Cockrell (Miller-El I), 537 U.S. 322, 345, 123 S. Ct. 1029,
154 L. Ed. 2d 931 (2003); Flowers, 139 S. Ct. at 2243. In
Miller-El I, the Supreme Court of the United States
considered statistics of disparate questioning along racial lines
of potential jurors. 537 U.S. at 345. However, in that case, the
comparison was based on another case with the "precise line
of disparate questioning" by one of "the same prosecutors
who tried" the case before the Court, where the Texas Court
of Criminal [***71] Appeals had found a Batson violation.
Id. The U.S. Supreme Court also considered "historical
evidence of racial discrimination by the District Attorney's
Office." Id. at 346. This evidence included a history where
assistant district attorneys "received formal training in
excluding minorities from juries." Id. at 347.
The present case is readily distinguishable. Here,
discrimination was not found by a court in the other cases
used in the MSU [**561] study, and in many cases Batson
objections were never raised by the respective defendants.
Again, this study seeks to circumvent the authority of the
courts to evaluate Batson claims and potentially have superior
court judges overrule prior determinations by their colleagues.
This is plainly impermissible. See State v. Woolridge, 357
N.C. 544, 549, 592 S.E.2d 191 (2003) (explaining that "no
appeal lies from one Superior Court judge to another; that one
Superior Court judge may not correct another's errors of law;
and that ordinarily one judge may not modify, overrule, or
change the judgment of another Superior Court judge
previously made in the same action" (cleaned up)). Moreover,
the superior court does not have the authority to overrule or
disregard decisions of this Court or the Court of Appeals.
Further, there has been no [***72] indication in the record
that the prosecutors in this case or in the State or county were
"trained" to exclude minorities or in any way were operating
under a policy which sought to [*512] exclude minorities.
Defendant's argument amounts to a contention that the MSU
study conclusively establishes a prima facie case of
-App. 20-
Page 21 of 34
385 N.C. 471, *512; 895 S.E.2d 532, **561; 2023 N.C. LEXIS 947, ***72
purposeful discrimination any time the State uses a
peremptory challenge against any prospective black juror.
This argument is plainly contrary to law, and there is no
reasonable probability that the trial court would have reached
a different step one determination if defendant possessed the
MSU study at trial.
3. Fundamental Miscarriage of Justice
"A defendant raising a claim of newly discovered evidence of
factual innocence or ineligibility for the death penalty . . . may
only show a fundamental miscarriage of justice by proving by
clear and convincing evidence that, in light of the new
evidence, if credible, no reasonable juror would have found
the defendant guilty beyond a reasonable doubt or eligible for
the death penalty." N.C.G.S. § 15A-1419(e). Under this
exception to the procedural bar, a fundamental miscarriage of
justice occurs if a defendant shows new, credible evidence
demonstrates that [***73] he or she would not have been
found guilty or eligible for the death penalty. The plain
language of the statute requires an assertion of factual
innocence by defendant,24 or an allegation that defendant is
ineligible for the death penalty. Defendant here alleges
neither.
Thus, the procedural bar of section 15A-1419 applies and
defendant has not satisfied an exception to the same.
Accordingly, the MAR court properly concluded that
defendant's Batson claim was procedurally barred.
24 Under federal law, the miscarriage of justice exception to a federal
procedural bar is interpreted as an "actual innocence" exception.
Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 120 L. Ed. 2d
269 (1992) (addressing a federal law procedural bar of federal
habeas review and describing the miscarriage of justice exception as
an "actual innocence" exception). In discussing the path to
successfully allege that a fundamental miscarriage of justice
exception applies, the Supreme Court of the United States has opined
that where a constitutional violation is alleged, it must reflect on the
defendant's innocence of the crime or show an insufficient basis for a
death sentence in order to overcome a procedural bar. Schlup v.
Delo, 513 U.S. 298, 316, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)
("Without any new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would allow a
habeas court to reach the merits of a barred claim. However, if a
petitioner . . . presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.").
4. State v. Burke
Defendant also urges this Court to hold that our decision in
State v. Burke, 374 N.C. 617, 843 S.E.2d 246 (2020),
forecloses application of the procedural bar [*513] in the
present case. The MAR court held that Burke does not prevent
a procedural bar in this case because Burke applied
specifically to RJA MARs, and "all of [d]efendant's RJA
MARs are still pending and are beyond the scope of this
Order."
In Burke, we addressed the defendant's MARs pursuant to the
North Carolina Racial Justice Act, S.L. 2009-464, § 1, 2009
N.C. Sess. Laws 1213, 1215 (codified at N.C.G.S. § 15A2012(b) (repealed 2012)). 374 N.C. at 619. Reversing the trial
[**562] court, we held that "[t]he alleged procedural bars are
negated by the language of the RJA" and that "the trial court
abused its discretion by summarily denying the claims." Id. at
619 (first citing North Carolina Racial Justice Act § 1, 2009
N.C. Sess. Laws at 1215; and then citing State v. McHone,
348 N.C. 254, 258, 499 S.E.2d 761 (1998)). Pursuant to the
RJA, this Court looked at the evidence [***74] presented by
the defendant "that race was a significant factor in jury
selection, sentencing, and capital charging decisions in the
relevant jurisdictions at the time of [the defendant's] trial and
sentencing" and determined that "[i]n light of the evidence
and arguments presented by defendant, the trial court's denial
of his claims without a hearing was an abuse of discretion."
Id. at 619-20.
To find the entitlement to an evidentiary hearing, this Court
looked specifically to the statutory provisions of the Racial
Justice Act. Id. at 619. The defendant's MARs there were
styled as an RJA MAR and an amendment to the RJA MAR,
and this Court considered both under the RJA. Id. Thus, our
holding in Burke was plainly limited to the RJA context.
Here, defendant has filed numerous post-conviction motions.
The MAR court's order at issue here was expressly limited to
the 2017 MAR, the 2019 MAR, and the 2020 MAR based on
alleged newly discovered evidence. Defendant's RJA MARs,
however, were assigned to another superior court judge. The
2010 RJA MAR and its supplemental filings remain pending
in the Superior Court division and were not addressed by the
court below. Thus, this Court's review is limited to the MARs
addressed [***75] by the MAR court. The MAR court
correctly concluded that the MARs at issue here are not RJA
MARs like those in Burke, and the present case is not
controlled by this Court's decision in Burke. As such,
defendant's argument that Burke allows him to overcome the
procedural bar under section 15A-1419 is without merit.
Further, the RJA specifically addressed the relief available to
-App. 21-
Page 22 of 34
385 N.C. 471, *513; 895 S.E.2d 532, **562; 2023 N.C. LEXIS 947, ***75
defendants sentenced to death.
If the court finds that race was a significant factor in
decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial [*514]
division, or the State at the time the death sentence was
sought or imposed, the court shall order that a death
sentence not be sought, or that the death sentence
imposed by the judgment shall be vacated and the
defendant resentenced to life imprisonment without the
possibility of parole.
North Carolina Racial Justice Act § 1, 2009 N.C. Sess. Laws
at 1214 (emphasis added).
Resentencing is not the remedy defendant requests here.
Instead, defendant seeks to have his conviction vacated and a
new trial ordered—the appropriate remedy for a violation of
Batson. Thus, it is plainly apparent that the claim advanced by
defendant and addressed by the MAR court below was not an
RJA claim.
IV. Conclusion
Because defendant [***76] was in a position to adequately
raise his Batson claim in his prior appeal and previous postconviction proceeding and failed to do so, defendant's MAR
is procedurally barred under section 15A-1419. Defendant has
failed to establish that he qualifies for a statutory exception to
the mandatory procedural bar, and his argument that Burke is
applicable to the present case is unavailing. The order of the
MAR court is affirmed.
AFFIRMED.
Justice RIGGS did not participate in the consideration or
decision of this case.
Dissent by: EARLS
Dissent
his case. See 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986). Namely that prosecutors Lang and Spence relied on a
[**563] Batson "cheat sheet" to provide pretextual raceneutral reasons for the peremptory strikes that removed all
qualified African American venire [*515] members from
Mr. [***77] Tucker's jury. Because I believe that Mr.
Tucker's motion for appropriate relief (MAR) is not barred
pursuant to N.C.G.S. § 15A-1419(a)(1) and (3) and thus,
should go forward, I dissent.
The MAR at issue was filed on 31 October 2017 and amended
twice, once in 2019 and again in 2020. To make his Batson
claim, Mr. Tucker relied on two new pieces of evidence: (1) a
handout included in Mr. Tucker's prosecutorial file titled
"Batson Justifications: Articulating Juror Negatives" (Batson
Justifications Handout); and (2) a statistical study conducted
by Michigan State University College of Law (MSU Study),
which analyzed juror strike patterns in North Carolina from
1990 to 2010. Neither piece of evidence was available to Mr.
Tucker during his direct appeal or a previous MAR filing. In
the 2019 amendment to his MAR, Mr. Tucker also raised the
change to our State's Batson standard as a reason for his
newly filed Batson claim. This new standard was adopted in
State v. Waring, which was decided in 2010. 364 N.C. 443,
701 S.E.2d 615 (2010). Accordingly, this development in our
Batson caselaw was not available to Mr. Tucker at the time of
his direct appeal or a prior MAR filing.
While it is true that N.C.G.S. § 15A-1419(a)(1) and (3) bar a
claim that could have been raised on direct appeal [***78] or
during an earlier MAR but was not, this statute only applies to
claims where the defendant was in a "position to adequately
raise" the claim in those previous filings. Because Mr. Tucker
did not have access to the Batson Justifications Handout or
the MSU Study and because the change to North Carolina's
Batson standard had not occurred at the time of his direct
appeal or prior MAR filing, he was not in a "position to
adequately raise" his Batson claim on direct appeal or in an
earlier MAR. Thus, I do not believe his Batson claim is
subject to section 15A-1419(a)(1) and (3)'s procedural bar.
I. Batson v. Kentucky and Race-Based Discrimination in
Jury Selection
Justice EARLS dissenting.
In 1996, Mr. Tucker, who is African American, was tried
capitally, convicted of first-degree murder, and sentenced to
death by an all-white jury. While the case before us turns on
the applicability of N.C.G.S. § 15A-1419(a)(1) and (3)'s
procedural bar, this Court's holding ultimately determines
whether a trial court may reach the merits of Mr. Tucker's
Batson v. Kentucky claim and review the serious allegations
Mr. Tucker makes regarding the jury selection procedures in
Both the North Carolina and United States Constitutions
prohibit the use of race-based peremptory strikes. Batson, 476
U.S. 79; State v. Locklear, 349 N.C. 118, 136, 505 S.E.2d 277
(1998). While Batson is the seminal case regarding the use of
racially-discriminatory peremptory challenges, prior to that
decision, the United States Supreme Court had been
attempting to eradicate race-based discrimination in jury
selection for over a hundred years. In 1879, the United States
-App. 22-
Page 23 of 34
385 N.C. 471, *515; 895 S.E.2d 532, **563; 2023 N.C. LEXIS 947, ***78
Supreme Court invalidated statutes that excluded African
Americans from serving as jurors because those statutes
violated the Equal Protection Clause. Strauder v. West
Virginia, 100 U.S. 303, 308, 25 L. Ed. 664 (1879). Despite
this effort, racial discrimination [***79] in jury selection
continued through the use of laws that appeared [*516]
racially neutral on their face but as applied, barred African
Americans from serving on juries. For example, North
Carolina instituted "laws requiring that jurors: (1) had paid
taxes the preceding year; (2) were of good moral character;
and (3) possessed sufficient intelligence." State v. Robinson,
375 N.C. 173, 177, 846 S.E.2d 711 (2020) (citing State v.
Peoples, 131 N.C. 784, 788, 42 S.E. 814 (1902)).
inference that discrimination occurred." State v. Hobbs, 374
N.C. 345, 350, 841 S.E.2d 492 (2020) (quoting Johnson v.
California, 545 U.S. 162, 170, 125 S. Ct. 2410, 162 L. Ed. 2d
129 (2005)). The prima facie showing at step one "is not
intended to be a high hurdle," Id. (quoting Waring, 364 N.C.
at 478), and so long "as a defendant provides evidence from
which the court can infer a discriminatory purpose" a
defendant will have met the prima facie standard, id.
Importantly, and as this Court [*517] stated in Hobbs, at this
step "the burden on the defendant . . . is one [***81] of
production, not of persuasion," and "the defendant is not
required to persuade the court conclusively that
discrimination has occurred." Id. at 351.
Moreover, while Batson articulated a standard by which to
determine race-based jury selection, it did not put an end to
this type of discrimination, and following Batson, some
prosecutors were trained on ways to circumvent Batson's
requirements. For example, in Pennsylvania, these methods
were taught via a recorded training session by a Philadelphia
assistant district attorney, see Brief for Digenova et al. as
Amicus Curiae Supporting Petitioner at 6, Foster v. Chatman,
578 U.S. 488, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016) (No.
14-8349), while in Dallas, Texas, these tactics were taught
through the use of a training manual. See Miller-El v.
Cockrell, 537 U.S. 322, 334, 123 S. Ct. 1029, 154 L. Ed. 2d
931 (2003) (discussing a training manual, which evidenced a
"formal policy to exclude minorities from jury service").
Ultimately, these training tools, like the Batson Justifications
Handout at issue in Mr. Tucker's case were used by [**564]
prosecutors to "deceive judges" as to the prosecution's "true
motivations" [***80] for striking a juror. Brief for Digenova
et al. as Amicus Curiae Supporting Petitioner at 8, Foster, 578
U.S. 488, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (No. 14-8349).
To make this showing, "a defendant may rely on all relevant
circumstances," Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.
Ct. 2317, 162 L. Ed. 2d 196 (2005) (cleaned up), including
historical evidence of discrimination in a jurisdiction. See,
e.g., Miller-El, 537 U.S. at 346; see also Flowers v.
Mississippi, 139 S. Ct. 2228, 2243, 204 L. Ed. 2d 638 (2019).
In addition, our caselaw has identified a non-exhaustive list of
factors that must also be considered at step 1, those are:
In Batson, the United States Supreme Court laid out a threestep process for evaluating whether a prosecutor's use of
peremptory challenges violated the Equal Protection Clause.
476 U.S. at 96-98.
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory challenges
on the basis of race. Second, if the requisite showing has
been made, the burden shifts to the prosecutor to
articulate a race-neutral explanation for striking the
jurors in question. Finally, the trial court must determine
whether the defendant has carried his burden of proving
purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct.
1859, 114 L. Ed. 2d 395 (1991) (citing Batson, 476 U.S. at
96-98). Batson's first step is satisfied if the defendant submits
"evidence sufficient to permit the trial judge to draw an
the defendant's race, the victim's race, the race of the key
witnesses, questions and statements of the prosecutor
which tend to support or refute an inference of
discrimination, repeated use of peremptory challenges
against blacks such that it tends to establish a pattern of
strikes against blacks in the venire, the prosecution's use
of a disproportionate number of peremptory challenges
to strike black jurors in a single case, and the State's
acceptance rate of potential black jurors.
Hobbs, 374 N.C. at 350 (quoting State v. Quick, 341 N.C.
141, 145, 462 S.E.2d 186 (1995)).
If the required prima facie showing is met, then "the analysis
proceeds to the second step where the State is required to
provide race-neutral reasons for its use of a peremptory
challenge." Id. at 352 (citing Flowers, 139 S. Ct. at 2243). If
the reasons provided are race-neutral on their [***82] face,
then the Court proceeds to Batson's third and final step. Id. at
353. At this step, the defendant is required to show purposeful
discrimination. Waring, 364 N.C. at 475. Here, the trial court
"must determine whether the prosecutor's proffered reasons
are the actual reasons, or whether the proffered reasons are
pretextual and the prosecutor instead exercised peremptory
strikes on the basis of race." Flowers, 139 S. Ct. at 2244. This
inquiry requires the court to determine whether the State's
peremptory strikes were "motivated in substantial part by
discriminatory intent." Id. (quoting Foster, 136 S. Ct. at
1754).
-App. 23-
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II. Batson Justifications Handout and the MSU Study
A. Mr. Tucker's Trial
Mr. Tucker was tried for capital murder in Forsyth County in
1996. Robert Lang and David Spence, both of whom were
Forsyth County Assistant District Attorneys, prosecuted his
case. Jury selection began [*518] on 6 February 1996. In
1995, a few months prior to the beginning of jury selection,
prosecutor [**565] Lang attended a training session for
capital prosecutors known as "Top Gun II." Those in
attendance were provided with a handout titled "Batson
Justifications: Articulating Juror Negatives," which provided
prosecutors with a list of reasons to use when defending
peremptory strikes of African [***83] American jurors
pursuant to a Baston challenge. The following list of reasons
were included in the handout:
1. Inappropriate Dress - attire may show lack of respect
for the system, immaturity, or rebelliousness
2. Physical Appearance - tattoos, hair style, disheveled
appearance may mean resistance to authority.
3. Age - Young people may lack the experience to avoid
being misled or confused by the defense.
4. Attitude - air of defiance, lack of eye contact with
Prosecutor, eye contact with defendant or defense
attorney.
5. Body Language - arms folded, leaning away from
questioner, obvious boredom may show anti-prosecution
tendencies.
6. Rehabilitated Jurors, or those who vacillated in
answering D.A.'s questions.
7. Juror Responses which are inappropriate, nonresponsive, evasive or monosyllabic may indicate
defense inclination.
8. Communication Difficulties, whether because English
is a second language, or because juror appeared to have
difficulty understanding questions and the process.
9. Unrevealed Criminal History re: voir dire on "previous
criminal justice experience."
10. Any other sign of defiance, sympathy with the
defendant, or antagonism to the State.
This handout was placed in the prosecution's [***84] trial
notebook behind a tab titled "jury selection." The bottom of
the handout also contains a handwritten note stating "Don't
use gender/race reasons in NC may be expanded to othe[r]
cognizable Equ. Prot. Clause protected class."
[*519] Lang conducted voir dire in Mr. Tucker's case and
used peremptory strikes to remove all five qualified African
American venire members. Defense counsel objected to all
five strikes under Batson. After hearing Lang's justifications
for each strike, the trial court found there was no purposeful
discrimination. However, a comparison of the justifications
Lang provided, and the Batson Justifications Handout,
suggests that Lang read from the handout when defending his
use of peremptory strikes. For example, Lang used the word
"inappropriately" on more than one occasion. He also
described one prospective juror as "confused" and stated the
juror exhibited "monosyllabic" responses. Lang also referred
to that same juror as being "very difficult" and having
"absolutely horrible [body language]." Lang defended his
strikes against one venire member by stating they "did not
ever make eye contact with me" and another by stating he
"was untruthful about his criminal record." Based on
this [***85] information, even the State concedes that "the
prosecutors in [Mr. Tucker's] case articulated some
justifications similar to the 'Top Gun' training document as
part of their rationale for particular juror strikes."
Accordingly, in his most recent MAR, Mr. Tucker argued that
the reasons Lang gave for striking prospective jurors were
pretextual, for if they had not been, Lang would not have
needed to resort to those reasons listed in the handout. See
Snyder v. Louisiana, 552 U.S. 472, 485, 128 S. Ct. 1203, 170
L. Ed. 2d 175 (2008) (stating that when the prosecution's
proffer is pretextual, it "gives rise to an inference of
discriminatory intent").
B. Discovery of the Batson Justifications Handout
After Mr. Tucker's initial trial and prior to the beginning of
his post-conviction proceedings, North Carolina passed a law
requiring post-conviction discovery in capital cases to include
"the complete files of law enforcement and prosecutorial
agencies involved in the investigation of the crimes or the
prosecution of the defendant." N.C.G.S. § 15A-1415(f) (1997).
However, Mr. Tucker's post-conviction [**566] counsel
stated they never received the Batson Justifications Handout
that was part of the prosecution's file. To support this
assertion, Mr. Tucker has provided signed affidavits to this
effect. Accordingly, [***86] no Batson claim was raised on
direct appeal, in Mr. Tucker's initial MAR, or in any
subsequent amendments to that MAR.
On 2 September 2010, Mr. Tucker filed a MAR pursuant to
-App. 24-
Page 25 of 34
385 N.C. 471, *519; 895 S.E.2d 532, **566; 2023 N.C. LEXIS 947, ***86
the North Carolina Racial Justice Act (RJA). See North
Carolina Racial Justice Act, S.L. 2009-464, § 1, 2009 N.C.
Sess. Laws 1213, 1214. While no further litigation has taken
place in state court on Mr. Tucker's RJA claim, litigation did
proceed on another Forsyth County defendant's case, Errol
Duke [*520] Moses. The discovery granted in Mr. Moses's
case included the prosecution's files in many Forsyth County
cases, including Mr. Tucker's. On 14 December 2015, Mr.
Tucker's current counsel was appointed. Shortly thereafter,
counsel for Mr. Moses provided Mr. Tucker's attorneys with
portions of Mr. Tucker's prosecution files, which were
obtained as part of the discovery process in Mr. Moses's case.
This was the first time that Mr. Tucker's attorneys were
provided with the prosecution's Batson Justifications
Handout. Because this evidence was not discovered until
2015, it was not available to Mr. Tucker during his direct
appeal or prior MAR filing.
C. Completion of the MSU Study
The results of the MSU Study demonstrated a pattern of
discriminatory peremptory strikes in Forsyth County. Namely,
the data showed that African American venire
members [***87] were struck at a rate 2.25 times higher than
other venire members. The MSU Study also reviewed four of
prosecutor Spence's Forsyth County cases, and based on those
findings, Mr. Tucker alleges that in the aggregate, Spence had
struck 62% of African American prospective jurors but only
20% of white prospective jurors. This constituted a strike ratio
of 3 to 1, which was significantly higher than the average for
Forsyth County or North Carolina state capital cases. The data
also showed that only one of Spence's trials had more than
one African American juror, and two of his cases, including
Mr. Tucker's had all-white juries.
This study did not begin until 2009, and data collection was
not completed until 2010. Furthermore, the research article
detailing the study's findings was not published until 2012.
Catherine M. Grosso & Barbara O'Brien, A Stubborn Legacy:
The Overwhelming Importance of Race in Jury Selection in
173 Post-Batson North Carolina Capital Trials, 97 Iowa L.
Rev. 1531 (2012) (hereinafter "Race in Jury Selection").
Accordingly, Mr. Tucker did not have access to this evidence
at the time of his direct appeal or at the time he filed a prior
MAR.
III. MAR Court's Order
In June 2020, Judge R. Stuart Albright denied Mr. Tucker's
Batson claim, stating [***88] that the Batson Justifications
Handout and the MSU Study could not be used to support a
Batson claim because they were not evidence of racial
discrimination. Moreover, Judge Albright concluded that Mr.
Tucker's claim was procedurally barred pursuant to N.C.G.S.
§ 15A-1419 because Mr. Tucker had been in a "position to
adequately raise" his Baston claim on direct appeal or in a
prior MAR but did not. See N.C.G.S. § 15A-1419(a)(1), (3)
(2021).
[*521] A. Mootness of Batson's Prima Facie Case
Requirement
In its order denying Mr. Tucker's MAR, the MAR court
determined that the prima facie case requirement pursuant to
Batson had not been met and thus the court's analysis was
limited to Batson's first step. This was legal error.
In Hernandez v. New York, the United States Supreme Court
relied on principles used in the employment discrimination
context and explained that "where the defendant has done
everything that would be required of him if the plaintiff had
properly made out a prima facie case, whether the plaintiff
really did so is no longer relevant." 500 U.S. at 359 (cleaned
up). In doing so, the Court unambiguously noted that this
"same principle applies under Batson." Id. Thus, once a
prosecutor has provided the trial court with a race-neutral
explanation [**567] [***89] "for the peremptory challenges
and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes
moot." Id.
Our Court has affirmed this principle on numerous occasions,
beginning in 1991 with State v. Thomas, 329 N.C. 423, 407
S.E.2d 141 (1991). See also Waring, 364 N.C. at 478; State v.
Bell, 359 N.C. 1, 12, 603 S.E.2d 93 (2004); State v. Williams,
355 N.C. 501, 550-51, 565 S.E.2d 609 (2002); Hobbs, 374
N.C. at 354; State v. Robinson, 330 N.C. 1, 17, 409 S.E.2d
288 (1991). And there is good reason for this. "Imagine, for
example, that when ordered to provide . . . race-neutral
reasons for [their] peremptory challenges, [a] prosecutor . . .
[states] . . . that [they] struck one of the jurors because of
[their] race." State v. Campbell, 384 N.C. 126, 141, 884
S.E.2d 674 (2023) (Earls, J., dissenting). It would be absurd,
"in light of this blatant racial discrimination," to say that a
trial court is not obligated to review this statement for
purposeful discrimination pursuant to Batson's third step
simply because the defendant failed to make a prima facie
showing of racial discrimination. Id. Thus, when a prosecutor
provides what they purport to be race-neutral reasons for the
use of a peremptory challenge, a trial court must be required
to consider whether those statements establish purposeful
discrimination.
-App. 25-
Page 26 of 34
385 N.C. 471, *521; 895 S.E.2d 532, **567; 2023 N.C. LEXIS 947, ***89
While the majority attempts to distinguish two of the cases
which reaffirm this long-standing [***90] principle, there are
two problems with this approach. First, in matters pertaining
to the United States Constitution, our Court may not grant
North Carolinians fewer protections than the federal
Constitution provides. Arizona v. Evans, 514 U.S. 1, 8, 115 S.
Ct. 1185, 131 L. Ed. 2d 34 (1995). By determining that a
prima facie showing is not moot, despite the prosecution
having offered race-neutral reasons for the use of peremptory
strikes and the trial court having ruled on the use of those
strikes, this [*522] Court has effectively removed a portion
of a criminal defendant's protections arising under the federal
Equal Protection Clause. See Hernandez, 500 U.S. at 358-59.
Moreover, a closer look at both Robinson and Hobbs exposes
the inadequacies of the majority's argument. Namely, that Mr.
Tucker's case is more similar to Robinson and Hobbs than it is
different.
In Robinson, the defendant objected to peremptory challenges
used to remove a black juror, and each time the State
voluntarily provided a reason for each of its challenges. 330
N.C. at 16. On appeal, our Court determined that because the
State had voluntarily provided explanations for each
peremptory challenge, there was no need for this Court to
determine whether the prima facie standard had been met. Id.
at 17. Instead, we "proceed[ed] . . . as if the prima facie case
had been [***91] established." Id. In Mr. Tucker's case, the
MAR court's order reflects the voluntary nature of the
prosecution's proffered reasons for each peremptory strike. At
no time was the prosecution ordered to provide reasons for its
peremptory strikes, instead the court "g[ave] counsel for the
State the opportunity to be heard." (Emphasis added.)
Furthermore, in Hobbs, our Court noted that "[w]here the
State has provided reasons for its peremptory challenges, thus
moving to Batson's second step, and the trial court has ruled
[on these reasons], completing Batson's third step, the
question of whether a defendant has initially established a
prima facie case of discrimination becomes moot." 374 N.C.
at 354. Thus, while the majority attempts to distinguish
Hobbs from Mr. Tucker's case based on the presence of a "full
hearing," Hobbs does not stand for the proposition that
mootness only occurs when a full hearing is present. Instead,
Hobbs stands for exactly what it says: in cases where the State
has provided reasons for the use of its peremptory strikes and
the trial court has ruled on these reasons, the reviewing court
should proceed as if a prima facie case has already been
established. Id. Accordingly, because [***92] the prosecution
in Mr. Tucker's case provided reasons for the use of their
peremptory challenges and the trial court ruled on these
reasons, this Court should proceed as if a prima facie case has
been established. See Robinson, 330 N.C. at 17.
[**568] The majority's discussion of a 2020 report by the
North Carolina Task Force for Racial Equity in Criminal
Justice is irrelevant when considered in light of our precedent
in Robinson and Hobbs. See Robinson, 330 N.C. at 17;
Hobbs, 374 N.C. at 354. Moreover, this case does not turn on
whether Batson's first step is moot. The question of mootness
only speaks to whether a reviewing court can proceed to step
three of Batson and determine whether purposeful
discrimination is present. See Hernandez, 500 U.S. at 358-59
(citing Batson, 476 U.S. at 96-98); see also Hobbs, 374 N.C.
at 354. [*523] Importantly, the question of mootness does
not render evidence of racial discrimination irrelevant or
cause it to disappear. Instead, if a prima facie case is not
moot, the reviewing court is required to determine whether
Batson's first step has been met, and if so, it must remand to
the trial court for further consideration.
As noted above, Batson's prima facie case requirement
mandates that a defendant provide "relevant circumstances
[that] raise an inference that the prosecutor used" their
peremptory challenges [***93] to exclude jurors on "account
of their race." Batson, 476 U.S. at 96. A prima facie showing
is not a high bar, Hobbs, 374 N.C. at 350, and as will be
discussed in more detail below, the Batson Justifications
Handout, along with the MSU Study, "raise an inference" that
the prosecution's peremptory challenges were based on race,
see Batson, 476 U.S. at 96. This is especially true when these
new pieces of evidence are reviewed alongside the
prosecution's strike pattern in Mr. Tucker's case, which
resulted in all five qualified African American venire
members being removed from the jury. See Flowers, 139 S.
Ct. at 2243 (stating that "statistical evidence about the
prosecutor's use of peremptory strikes against black
prospective jurors as compared to white prospective jurors in
the case" can be used to support a claim of racial
discrimination).
B. Batson Justifications Handout and the MSU Study as
Evidence of Racial Discrimination
1. The Batson Justifications Handout
The MAR court equated the Batson Justifications Handout to
"accurate and correct" statements of law. This finding came
even though the handout does not contain any reference to
case names or case citations. However, the MAR court's
benign characterization of the Batson Justifications Handout
ignores the controlling legal [***94] standard under Batson,
America's history of race-based discrimination in jury
selection, and the focus of Mr. Tucker's Batson claim.
-App. 26-
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385 N.C. 471, *523; 895 S.E.2d 532, **568; 2023 N.C. LEXIS 947, ***94
Mr. Tucker does not argue that the reasons provided for
striking black jurors in his case could not have been
permissible in other cases. Instead, he only argues they were
not permissible in his case. Under Batson, what matters is
whether the reasons given by the prosecutor are the true
reasons for the strike. See Hernandez, 500 U.S. at 365 ("In the
typical peremptory challenge inquiry, the decisive question
will be whether counsel's race-neutral explanation for a
peremptory challenge should be believed."). This is
determined by the facts and circumstances of each particular
case and not by whether our Court or the United States
Supreme Court has determined those reasons were not
[*524] pretextual in other cases. Id. Indeed, "[a]ny
prosecutor can easily assert facially neutral reasons for
striking a juror," Batson, 476 U.S. at 106 (Marshall, J.,
concurring), and it is this premise that Mr. Tucker's Batson
claim addresses.
Namely, Mr. Tucker claims that the Batson Justifications
Handout was used as a sort of "cheat sheet"1 to simulate raceneutral reasons for striking African American jurors, when in
fact those [***95] reasons were pretextual. Thus, the Batson
Justifications Handout is an important piece of substantive
evidence supporting Mr. Tucker's Batson claim. See MillerEl, 545 U.S. at 266 (finding a Batson violation where the
prosecutor's training materials advocated for racially basedstrikes).
[**569] Additionally, America has a long history of
excluding African Americans from jury service. See PenaRodriguez v. Colo., 580 U.S. 206, 137 S. Ct. 855, 867, 197 L.
Ed. 2d 107 (2017) ("In the years before and after the
ratification of the Fourteenth Amendment, it became clear that
racial discrimination in the jury system posed a particular
threat both to the promise of the Amendment and to the
integrity of the jury trial."). The Batson Justifications Handout
cannot be divorced from its historical context, and
characteristics like those included in the handout have
previously been used to exclude African Americans from
juries. In recognition of this issue, Washington State has
instituted General Rule 37, which pertains to jury selection,
and states that "allegations that [a] prospective juror was
sleeping, inattentive, or staring or failing to make eye contact;
exhibited a problematic attitude, body language, or demeanor;
or provided unintelligent or confused answers" have
"historically been associated with improper discrimination in
jury [***96] selection." Wash. Gen. R. 37(i). Thus, "[i]f any
party intends to offer one of these reasons or a similar reason
1 See State v. Augustine, 375 N.C. 376, 382, 847 S.E.2d 729 (2020)
(quoting the trial court's order describing the prosecution's use of a
"cheat sheet" to respond to Batson objections).
as justification for a peremptory challenge," the court must be
given "reasonable notice" such that the juror's behavior can be
verified. Id. If the juror's purported behavior is not verified,
then the reason given for the peremptory challenge will be
invalidated. Id. Indeed, as the United States Supreme Court
explained, while defendants are harmed when the right to a
jury trial is compromised by racial discrimination, "racial
minorities are harmed more generally, for prosecutors
drawing racial lines in picking juries establish 'statesponsored group stereotypes rooted in, and reflexive of,
historical prejudice.'" Miller-El, 545 U.S. at 237-38 (quoting
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128, 114 S. Ct.
1419, 128 L. Ed. 2d 89 (1994)).
[*525] Moreover, in Strauder v. West Virginia, 100 U.S.
303, 25 L. Ed. 664 (1879), the United States Supreme Court
overturned a state statute that restricted jury service to whites.
Yet, during the Jim Crow era, local officials circumvented the
intended effect of this holding by imposing vague
requirements for jury service, such as intelligence, experience,
and good moral character. See Norris v. Alabama, 294 U.S.
587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935). As applied, these
requirements precluded African Americans from serving on
juries. In Norris, the Court invalidated one of those laws after
a jury commissioner [***97] testified that no African
Americans had ever served on a jury in that county because:
[he did] not know of any [African American person] in
Morgan County . . . who is generally reputed to be
honest and intelligent and who is esteemed in the
community for his integrity, good character and sound
judgment, who is not an habitual drunkard, who isn't
afflicted with a permanent disease or physical weakness
which would render him unfit to discharge the duties of a
juror, and who can read English, and who has never been
convicted of a crime involving moral turpitude.
Id. at 598-99. The Court found it "impossible to accept such a
sweeping characterization" and reversed the conviction at
issue. Id. at 599. Today, the exclusion of African Americans
from juries may be less overt, but there remains the "practical
difficulty of ferreting out discrimination in selections
discretionary by nature, and choices subject to myriad of
legitimate influences." Miller-El, 545 U.S. at 238. Mr.
Tucker's case exemplifies the difficulty of making this
determination.
A prosecutor's "outright prevarication" is not the only relevant
consideration in jury discrimination cases and sometimes "[a]
prosecutor's own conscious or unconscious racism" may play
a role in the [***98] prosecution's proffered reasons for
striking a juror. Batson, 476 U.S. at 106 (Marshall, J.,
concurring). As relevant here, racism whether conscious or
-App. 27-
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385 N.C. 471, *525; 895 S.E.2d 532, **569; 2023 N.C. LEXIS 947, ***98
unconscious can lead a prosecutor "easily to the conclusion
that a prospective black juror is 'sullen' or 'distant,' a
characterization that would not have come to mind if a white
juror had acted identically." Id. This concern is undoubtedly
elevated in cases where a prosecutor is accused of relying on
a preprinted list of acceptable strike reasons rather than
providing the trial court with the true reason for their
peremptory strike. The contents of the Batson Justifications
Handout illustrate this notion.
[**570] Accordingly, United States Supreme Court
precedent, as well as our Court's own precedent, allow a
defendant to "rely on all relevant [*526] circumstances" to
support their claims for racial discrimination. Flowers, 139 S.
Ct. at 2245 (cleaned up); see also Hobbs, 374 N.C. at 356 ("A
defendant may rely on all relevant circumstances to support a
claim of racial discrimination in jury selection." (cleaned up)).
However, the benign classification the MAR court assigned
the Batson Justifications Handout ignores this mandate.
Specifically, it shows that the MAR court failed to consider
all the relevant circumstances [***99] Mr. Tucker raised to
support his claim of racial discrimination, namely the history
of African American jury exclusion and its relationship to the
creation of the Batson Justifications Handout contained in the
prosecution's trial notebook. Thus, the MAR court's finding
that the Batson Justifications Handout was not evidence of
racial discrimination was erroneous. Indeed, an analysis of
prosecutor Lang's proffered reasons for striking three
prospective jurors at Mr. Tucker's trial, Thomas Smalls,
Wayne Mills, and Debra Banner, supports that he relied on
the Batson Justifications Handout when providing the trial
court with reasons for his strikes.
a. Thomas Smalls
Mr. Smalls was one of the black venire members prosecutor
Lang struck during jury selection. At the time of Mr. Tucker's
trial, Mr. Smalls was sixty years old, employed, married, and
had been living in Forsyth County for forty years. He also had
an adult son that was a police detective in South Carolina.
When asked about his views on the death penalty, Mr. Smalls
stated that he "believe[d] in capital punishment."
Lang's reasons for striking Mr. Smalls mirrored the Batson
Justifications Handout. Lang stated, "Your Honor, with
regard [***100] to Mr. Smalls, juror number three, we felt
we had appropriate justification. Number one, his body
language and number two, his responses which were
inappropriate." Lang's responses appear to have been taken
verbatim from the handout. Lang also noted that Mr. Smalls
"did not ever make eye contact with [him]," which is a
justification stated in the handout under the heading
"attitude."
At one point, Lang also described Mr. Smalls's body language
as "absolutely horrible" but failed to explain his rationale for
this finding. Lang also characterized Mr. Smalls as "very
difficult." This language is similar to that in the handout,
which suggested that jurors the prosecution wanted to strike
should be characterized as "resistan[t] to authority," having an
"air of defiance," or being "non-responsive" and "evasive."
Furthermore, while Lang stated that Mr. Smalls had "nodded
off" during jury selection, the record does not show the trial
court made any determinations regarding Mr. Small's
demeanor. See Snyder, 522 U.S. at 479 ("Deference is
especially appropriate where a trial judge has [*527] made a
finding that an attorney credibly relied on demeanor in
exercising a strike. Here, however the record does not show
that the [***101] trial judge actually made a determination
regarding [the juror's] demeanor." Accordingly, "we cannot
presume that the trial judge credited the prosecutor's
assertion").2 Thus, rather than Mr. Smalls having "nodded
off," it is more likely that Lang's choice of words evince
Lang's reliance on the Batson Justifications Handout by
echoing the handout's language of "obvious boredom [which]
may show anti-prosecution tendencies." This supports that
race may have been significant in Lang's decision to challenge
Mr. Smalls.3
2 While the majority suggests that Snyder, 522 U.S. at 479, stands for
the proposition that we are required to defer to the trial court even in
cases where that court does not make any findings regarding a juror's
demeanor, this assertion is unreasoned. For it is impossible to give
deference to a finding that was never made.
3 Although the trial court repeated prosecutor Lang's assertion, noting
that "the district attorney observed that [Mr. Smalls] nodded off to
sleep," the trial court did not state that it witnessed Mr. Smalls nod
off to sleep, nor did it make a finding of fact to this effect, or state
that it agreed with the prosecutor's assessment. Thus, "we cannot
presume that the trial judge credited the prosecutor's assertion"
regarding Mr. Small's demeanor. See Snyder, 552 U.S. at 479.
Moreover, even if we were to assume for the sake of argument, that
Mr. Smalls did nod off, this does not change the evidence in this
case, which suggests Lang relied on the Batson Justifications
Handout, a racially discriminatory cheat sheet, when providing
reasons for his peremptory strike of Mr. Smalls. Under Batson, a
constitutional violation occurs when race "was significant in
determining who was challenged and who was not." Miller-El, 545
U.S. at 252. There is no requirement that race be the sole reason for a
peremptory strike. Id. Accordingly, based on the record before us,
including the evidence supporting Lang's use of the Batson
Justifications Handout, it is not a "remarkable feat" to conclude that
race may have been "significant" in Lang's decision to challenge Mr.
Smalls. See id.
-App. 28-
Page 29 of 34
385 N.C. 471, *527; 895 S.E.2d 532, **570; 2023 N.C. LEXIS 947, ***101
[**571] Indeed, Lang's explanations become more "difficult
to credit" when Mr. Smalls is compared to white jurors who
the prosecution passed despite possessing the same qualities
that supposedly made Mr. Smalls an "unattractive juror." See
Foster, 136 S. Ct. at 1750; see also Miller-El, 545 U.S. at 241
("More powerful than . . . bare statistics . . . are side-by-side
comparisons of some black venire panelists who were struck
and white panelists allowed to serve."). This is particularly
evident in the area of death penalty reservations, which Lang
cited as a reason for striking Mr. Smalls. Although it is true
that when asked if he could impose the death penalty Mr.
Smalls stated, "I guess so," "I don't know," and [***102] "I
think so," Mr. Smalls also expressed unequivocal support for
the death penalty, noting he "believe[d] in capital
punishment." Despite this, Lang struck Mr. Smalls while
passing white prospective jurors Alan Cubbedge, Robin
Dillinger, and Louise Hester, all whose death penalty
reservations were stronger and more apparent than Mr.
Smalls's.
[*528] For example, when asked if he could "be part of a
jury of twelve . . . that . . . makes a recommendation of death,"
Mr. Cubbedge stated he "supposed" so. But when asked if he
could be the foreperson who signed the jury sheet and wrote
the word "death" on the recommendation sheet, Mr.
Cubbedge noted he did not think he "would feel very
comfortable with that." Furthermore, when white prospective
juror Robin Dillinger was asked about her feelings regarding
the death penalty she expressed that she was "not sure if [she
was] for it or against it." Similarly, Lang passed white juror
Louise Hester, who stated that while she believed in capital
punishment, she did not "know if [she] could make that
decision for somebody to face that or not." Thus, when Lang's
reasons for striking Mr. Smalls are compared to the Batson
Justifications Handout and when Mr. [***103] Smalls's
purported traits are compared to those of white jurors the
State passed, it is evident that race may have played a
substantial role in Lang's peremptory challenge of Mr. Smalls.
b. Wayne Mills
The prosecutors in Mr. Tucker's case also struck black
prospective juror Wayne Mills, who at the time of Mr.
Tucker's trial had lived in Forsyth County his entire life. Mr.
Mills also disclosed that he was married, had a young
daughter, and had held the same job for the preceding
seventeen and a half years. The reasons Lang gave for striking
Mr. Mills also appear to have been read from the Batson
Justifications Handout. Lang expressed that Mr. Mills had
used "monosyllabic" responses, had been "smiling
inappropriately on a number of occasions," and had "appeared
somewhat confused during the questioning."
Not only was the term "monosyllabic" taken directly from the
Batson Justifications Handout, it also does not accurately
reflect Mr. Mills's behavior. While Mr. Mills gave one-word
answers when appropriate, in other circumstances he
responded with longer answers. For example, when asked if it
was "correct" that his name was Wayne Mills, Mr. Mills
responded with "Yes." Yet when asked if he [***104] had
prior knowledge of Mr. Tucker's case from reading or hearing
about the case in the media, Mr. Mills noted, "I very seldom
read the newspaper. I'm usually pretty busy at work."
In reference to Lang's assertion that Mr. Mills was smiling
inappropriately, the word "inappropriate" appears to have
been taken verbatim from the Batson Justifications Handout.
What is more, because the trial court's findings are devoid of
any suggestion that Mr. Mills engaged in "inappropriate"
smiling, we cannot presume the trial court agreed with Lang's
assertion. See Snyder, 552 U.S. at 479 (providing that
deference [*529] is only appropriate where the trial court has
made a determination concerning a juror's demeanor).
Additionally, the [**572] only evidence in the record
suggesting that Mr. Mills may have been confused is that he
asked the trial court to repeat a lengthy question about capital
sentencing instructions. However, asking that one question be
repeated is not evidence of confusion, particularly when after
having repeated the question, Mr. Mills answered it without
issue.
As with prospective juror Smalls, when a side-by-side
comparison is conducted of Mr. Mills and white jurors Lang
passed, Lang's reasons for striking Mr. Mills [***105] appear
pretextual. First, the record shows that many white venire
members, such as Michael Calcutt, Raymond Marshall, Kelly
Richardson, and Lester Hutchins, also responded to Lang's
questions with "monosyllabic" or "yes, no" answers. Second,
at least two white prospective jurors expressed "confusion" on
the record. Namely, after hearing information related to the
capital sentencing scheme, prospective juror Don Caldwell
asked if he could ask a clarifying question. Moreover,
prospective juror Kelly Richardson admitted to being
confused regarding her views on the death penalty and
expressly stated, "I'm just real confused about that issue."
Lang also noted Mr. Mills not being registered to vote as a
reason for striking him. However, several white prospective
jurors, such as Lester Hutchins, Raymond Marshall, Winfrey
Poindexter, David Porterfield, and Wilma Walker, all of
whom were not registered to vote at the time Mr. Tucker's
jury selection took place, were passed by the State.
Additionally, Lang purported to have struck Mr. Mills, in
part, because he "hesitated on death penalty questions." But
this assertion is not supported by the record. Namely because
the only exchange which could [***106] evidence
-App. 29-
Page 30 of 34
385 N.C. 471, *529; 895 S.E.2d 532, **572; 2023 N.C. LEXIS 947, ***106
"hesitation" involved Mr. Mills: (1) stating that he believed in
the death penalty; (2) asking for Lang to repeat the following
question: "Do you think or have you ever had a personal
belief or religious belief in opposition to the death penalty";
and (3) once the question was repeated, unequivocally
answering "no." Additionally, as noted above, the prosecution
passed many white venire members who expressed
uncertainty regarding the death penalty.
Lastly, while Lang stated he also struck Mr. Mills based on
his being untruthful about his prior criminal record, Lang
passed Wesely Hine, a white prospective juror who had also
been untruthful about his criminal record. Despite significant
questioning from the prosecution, including being asked
whether he had "been to court for any reason," Mr. Hine did
not disclose his prior criminal charge. Accordingly, when
Lang's proffered reasons are compared with the Batson
Justifications Handout, it [*530] becomes apparent that he
may have relied on it and provided the trial court with
pretextual reasons for striking Mr. Mills. Moreover, side-byside juror comparisons also support that Lang's reason for
striking Mr. Mills may have been based on race. [***107]
c. Debra Banner
Lang's reasons for striking Ms. Banner also support that his
use of peremptory challenges was based on race. At the time
of Mr. Tucker's trial, Ms. Banner had lived in Forsyth County
all her life, was married, and had children there. She had also
been employed at the local hospital for the preceding nine
years. Despite this, Lang described Ms. Banner as lacking a
stake in the community and cited this as a reason for striking
her.
Moreover, despite having passed many white jurors who were
not registered to vote, Lang purported that he struck Ms.
Banner for this same reason. Lang also expressed he struck
Ms. Banner because she was a health care professional, and
"[i]t ha[d] been [his] experience that those who save lives are
often hesitant to make a recommendation for death."
However, the State passed another medical professional,
Brenton Sharpe, who was a pharmacist working exclusively
with cancer patients. Mr. Sharpe expressed having direct
contact with these patients, and agreed it was his job to "save
[his patient's] lives or to make what life they had left as
comfortable as possible." In contrast, Ms. Banner was a
nursing
assistant
whose
tasks
involved
feeding
patients, [***108] turning them, and checking their vital
signs. Most of her patients were elderly or had suffered a
stroke. Based on Ms. Banner's and Mr. Sharpe's job duties, it
stands to reason that if Lang was truly concerned that Ms.
Banner's medical [**573] work would have made it more
difficult for her to recommend a death sentence, he would
have also challenged Mr. Sharpe, whose own characterization
of his work as saving lives likely provided an even stronger
reason to strike. What is more, Lang did not ask Ms. Banner if
her work would preclude her from voting for a death
sentence. See Snyder, 552 U.S. at 481-83 (noting that a
prosecutor's justification for striking a juror was "suspicious"
where the "prosecution did not choose to question [the juror]
more deeply about this matter"). Yet, Lang asked Mr. Sharpe,
"Do you think that since you're in that field of medical
assistance that it would make it difficult for you to be on a
jury that may end up facing the death penalty . . . as
punishment?" See Flowers, 139 S. Ct. at 2248 (stating that a
prosecutor's "dramatically disparate" questioning of black and
white prospective jurors can "supply a clue" for racially
discriminatory intent).
Moreover, Ms. Banner's support for the death penalty was
stronger than [***109] Mr. Sharpe's, and she expressed no
doubts or hesitation during [*531] Lang's questioning on the
topic. In contrast, when asked whether he had any deep moral,
religious, or philosophical opposition to the death penalty,
Mr. Sharpe noted he felt his "conscience would be at issue."
Lang also claimed that he struck Ms. Banner because she
indicated her work schedule posed a hardship to serving on
the jury. Yet, at the same time, Lang passed white jurors who
also expressed hardship. First, Mr. Cubbedge noted that he
ran a jewelry store and was concerned about losing business
due to his absence from work. This was especially true given
his absence from work had already cost the store "a good bit
of business," and he worried that if he were chosen to serve,
the store would "lose a good bit of money." He also agreed
that his work situation would cause him to "give less than
[his] full attention" to Mr. Tucker's trial. Wesley Hine also
explicitly stated he did not want to serve on Mr. Tucker's jury,
while juror Brooke Burr expressed that her work and
childcare situation posed such a hardship that she would only
serve if forced to do so. Ms. Burr noted "if I'm forced to stay,
I would say I could be [***110] fair but it's really a
hardship."
Regarding Ms. Banner's expression of hardship
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