Petition for Writ of Certiorari — Bryan Christopher Bell, Petitioner v. North Carolina

APPENDIX

TABLE OF CONTENTS

APPENDIX A: State v. Bryan Christopher Bell, 86A02-2 (N.C. Mar. 21, 2025):

Opinion of the Supreme Court of North Carolina Denying Relief…………………….1a

APPENDIX B: State v. Antwaun Kyral Sims, No. 297PA18 (N.C. Mar. 21, 2025):

Opinion of the Supreme Court of North Carolina Denying Relief…………………..52a

APPENDIX C: State v. Bell & Sims, Nos. 297PA18, 86A-02-2 (N.C. Sup. Ct. Jan.

25, 2023)………………………………………………………………………………………92a

APPENDIX A

1a

IN THE SUPREME COURT OF NORTH CAROLINA

No. 86A02-2

Filed 21 March 2025

STATE OF NORTH CAROLINA

v.

BRYAN CHRISTOPHER BELL

On writ of certiorari pursuant to N.C.G.S. §§ 7A-32(b) (2023) and 15A1422(c)(3) (2023) to review an order denying defendant’s post-conviction motion for

appropriate relief filed on 12 May 2006 and amendment to motion for appropriate

relief filed on 13 April 2012, entered on 13 December 2012 by Judge Charles H.

Henry in Superior Court, Onslow County. Heard in the Supreme Court on

9 April 2024.

Jeff Jackson, Attorney General, by Teresa M. Postell, Special Deputy Attorney

General, for the State-appellee.

Dionne R. Gonder and Michael R. Ramos, for defendant-appellant.

BARRINGER, Justice.

Defendant Bryan Christopher Bell was convicted of first-degree murder based

on both the felony murder rule and premeditation, deliberation, and malice; firstdegree kidnapping; and burning of personal property. Defendant was sentenced to

death for the first-degree murder conviction. Defendant was sentenced to consecutive

prison terms of 133 months to 169 months for the kidnapping conviction and eleven

to fourteen months for the burning of personal property conviction. State v. Bell, 359

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N.C. 1, 8–9 (2004), cert. denied, 544 U.S. 1052 (2005). Defendant filed a postconviction motion for appropriate relief and an amendment thereto. Defendant

contends that, because the prosecution engaged in gender-based discrimination

during his trial, in violation of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), his

conviction should be vacated and a new trial granted.

This Court recognizes the reprehensible and insidious nature of discrimination

in the jury selection process. Given the great importance of this issue, this Court has

considered, in depth, the discriminatory practices of the State in this case. However,

in the faithful application of the laws of this State, this Court cannot ignore the

blackletter, statutory, and procedural requirements of the law.

For the reasons set forth herein, we conclude that defendant’s J.E.B. claim was

not preserved for appellate review. Moreover, defendant’s claim is also procedurally

barred pursuant to N.C.G.S. § 15A-1419. We therefore affirm the judgment of the

superior court as stated in the 13 December 2012 order denying defendant’s motion

for appropriate relief.

I.

Factual Background

A. The Offenses

At trial, the evidence tended to show that on 3 January 2000, defendant,

Antwaun Sims, and Chad Williams brutally murdered eighty-nine-year-old Elleze

Kennedy by beating her and locking her in the trunk of her car, which defendant then

set on fire. Bell, 359 N.C. at 9–11. Williams ultimately pleaded guilty to the crimes

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and testified against defendant and Sims, who were tried together. Id. at 11.

Defendant, Sims, and Williams were together in Newton Grove, North

Carolina on 3 January 2000. They visited a game room and then “hung out” at a

traffic circle where they smoked marijuana and drank brandy. Id. at 9. Defendant

told Sims and Williams that he wanted to steal a car so that he could leave town.

Sims agreed to participate in defendant’s plan. Defendant then saw Ms. Kennedy

leaving a Hardee’s restaurant and stated, “I want to rob the lady for her Cadillac.”

Id.

Defendant, Sims, and Williams followed Ms. Kennedy to her home. As

Ms. Kennedy was getting out of her car and preparing to lock it, defendant rushed

upon her, pointed a BB gun at her, and demanded the car keys. Ms. Kennedy threw

the keys and began screaming. Defendant hit her with the gun, causing her to fall to

the ground. After finding the keys, Sims and Williams forced Ms. Kennedy into her

vehicle. Ms. Kennedy fought. She bit Williams, who responded by punching her in the

face.

Defendant sat next to Ms. Kennedy in the back seat of her car. With Williams

in the front passenger seat, Sims drove towards Bentonville Battleground.

Ms. Kennedy asked defendant where they were taking her and why he was so mean.

Defendant responded by pistol whipping Ms. Kennedy. By the time they arrived at

Bentonville Battleground, Ms. Kennedy was unconscious. The three men pulled her

from the back seat of her vehicle and shoved her into the trunk. The three men then

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continued driving towards Benson with Ms. Kennedy in the trunk of the vehicle. Id.

at 9–10.

Ms. Kennedy eventually awoke and began moving and making noise from the

trunk. Defendant told Sims to turn up the radio so they could not hear her.

Defendant, Sims, and Williams then drove to a trailer park community where

Williams’ cousin, Mark Snead, lived. The three men went inside Snead’s trailer. After

smoking marijuana, the three left Snead’s residence and went to another trailer in

the community. Before leaving the second trailer, Williams declared that he did not

want to go anywhere in the car while Ms. Kennedy was in the trunk. Williams stayed

at the trailer park when defendant and Sims drove off. A short while later, defendant

and Sims returned. Ms. Kennedy was still in the trunk, but defendant and Sims told

Williams that Ms. Kennedy had been released. Thinking Ms. Kennedy was out of the

vehicle, Williams left in the car again with defendant and Sims. Id. at 10.

Sims drove the stolen vehicle towards Fayetteville. Along the way, the trio

made two stops. During the first stop, they cleaned Ms. Kennedy’s blood from the

back seat. Then, they stopped a second time for fuel. Defendant rifled through

Ms. Kennedy’s purse, where he found four dollars to steal and use for gasoline. At

this point, Williams heard movement in the trunk and realized Ms. Kennedy was still

trapped inside. When Williams confronted defendant about his suspicions, defendant

told Williams he was “tripping.” Sims then drove the group the rest of the way to

Fayetteville where he eventually stopped the car. Defendant and Sims got out of the

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vehicle and opened the trunk. Sims repeatedly slammed the trunk lid on Ms. Kennedy

as she tried to climb out of the trunk and escape. Id.

Next, Sims drove defendant and Williams back to Ms. Kennedy’s home so

defendant could look for the scope to his BB gun. The three did not find the scope, but

did find Ms. Kennedy’s shoe, which defendant put into the car. Williams again asked

defendant and Sims to release Ms. Kennedy. They told Williams that they would

release her in a different location. Id.

Sims drove Ms. Kennedy’s car down a path before parking in a clearing where

Sims opened the trunk. At trial, Williams testified that he could hear Ms. Kennedy

moaning. When Williams asked defendant what he was going to do, defendant

responded, “Man, I ain’t trying to leave no witness. This lady done seen my face. I

ain’t trying to leave no witness.” Defendant shut the trunk with Ms. Kennedy still

inside, took a lighter from Sims, and set his coat on fire. Defendant tossed his burning

coat into the car with Ms. Kennedy, still alive, locked in the trunk. Id. at 10–11.

The next morning, at defendant’s behest, Sims went to check on Ms. Kennedy’s

car. Sims reported to defendant that the car was covered in smoke and Ms. Kennedy

was dead in the trunk. Defendant called a friend, Ryan Simmons, to pick up

defendant, Sims, and Williams. Simmons later drove the three men back to the

vehicle, where defendant and Sims wiped fingerprints off the car. Simmons

eventually transported the three men to the home of Sims’ brother, where they stayed

for the next several days. Id. at 11.

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Ms. Kennedy’s vehicle was discovered and reported to the sheriff’s department.

Upon investigation, law enforcement found Ms. Kenndy’s body in the trunk. An

autopsy revealed that the cause of death was not the multiple blunt force trauma

injuries Ms. Kennedy had sustained. Rather, the cause of Ms. Kennedy’s death was

carbon monoxide poisoning directly resulting from the fire set by defendant. Id. at 11.

B. Procedural History and Post-Conviction Proceedings

On 24 August 2001, upon being convicted by a jury for the first-degree murder

of Ms. Kennedy, defendant was sentenced to death. Id. at 8. In 2001, defendant

appealed his conviction to this Court for the first time. Id.

In his initial appeal, defendant alleged numerous Batson violations related to

the striking of jurors during voir dire. One of the alleged Batson violations was

directed at the removal of prospective juror Viola Morrow. Defendant asserted

twenty-three other assignments of error, none of which alleged gender discrimination

in violation of J.E.B. See Bell, 359 N.C. at 16–47. This Court upheld defendant’s

conviction and death sentence, concluding that defendant received a fair trial and

capital sentencing hearing. The Supreme Court of the United States denied

defendant’s subsequent petition for writ of certiorari. Bell v. North Carolina, 544 U.S.

1052 (2005).

Defendant filed a motion for appropriate relief on 12 May 2006. This motion

did not raise a J.E.B. claim. Defendant filed an amendment to the motion for

appropriate relief (AMAR) on 13 April 2012 pursuant to N.C.G.S. § 15A-1415(g).

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In his AMAR, defendant alleged—for the first time—that the State engaged in

unconstitutional gender-based discrimination at his trial, requiring vacatur of his

conviction and a new trial. Defendant centers his J.E.B. claim on the peremptory

strike of Viola Morrow, a female prospective juror. The State filed an answer and

request for summary denial.

Defendant’s J.E.B. claim is based on an affidavit, filed on 9 January 2012 by

Assistant District Attorney Gregory Butler, one of the State’s prosecutors at

defendant’s murder trial. The affidavit was prepared by Butler in response to a Racial

Justice Act claim by a defendant in an unrelated death penalty case. The affidavit

provided race neutral reasons for the State’s use of peremptory strikes in various

death penalty trials, including defendant’s.1

Pertinent to defendant’s trial, the Butler affidavit contains the following

information regarding prospective juror Morrow:

Has 2 children age of [d]efendants. Has an illness

rheumatoid arthritis. Can flare up at any time and

incapacitate her. State had only used 12 of its 28 preempts

and 10 jurors were seated, all female. State was looking for

male jurors and potential foreperson. Was making a

concerted effort to send male jurors to the [d]efense as they

were taking off every male juror. Batson motion denied, no

[prima facie] case but allowed state to give reason on the

record.

1 Notably, defendant also filed a motion for appropriate relief pursuant to the Racial

Justice Act on 5 August 2010, which he amended on 30 August 2012. Defendant’s Racial

Justice Act motion for appropriate relief is not at issue before this Court now and remains

before the superior court.

8a

On 13 December 2012, the superior court entered an order summarily denying

defendant’s AMAR. Regarding defendant’s J.E.B. claim, the superior court made a

finding of fact that

[a]lthough [defendant] objected to the prosecutor’s

peremptory challenge of Ms. Morrow based on her race

pursuant to [Batson], there was never an objection alleging

gender discrimination. The only objection during -----voir dire

based on gender discrimination was raised by the

prosecutor and was based on defendant’s numerous

peremptory challenges of men. The defense peremptorily

challenged every man presented to them for questioning,

except three.

The superior court concluded: “Since defendant was in a position to adequately

raise this claim on direct appeal but failed to do so, this claim is procedurally barred

from review pursuant to N.C.G.S. § 15A-1419(a)(3).”

On 18 January 2013, defendant moved that this Court hold in abeyance the

time to file a petition for writ of certiorari. This Court allowed that motion on

24 January 2013.

Defendant

filed

a

Petition

for

Writ

of

Certiorari

on

20 September 2019. This Court allowed that petition to consider the following issues:

I.

II.

III.

Whether defendant preserved his claim that the

prosecutor impermissibly struck a juror on the basis

of gender.

If the claim is preserved, whether the trial court

properly decided that there was no intentional

gender discrimination, including whether the “dual

motivation” standard applies.

If the claim is preserved and the trial court erred, is

the record sufficient to rule on the merits, or should

the matter be remanded to the trial court for an

evidentiary hearing.

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On 8 February 2022, the State moved this Court to hold defendant’s appeal in

abeyance and remand defendant’s case to the trial court for an evidentiary hearing

regarding defendant’s J.E.B. claim. The State’s motion was allowed. In December

2022, the superior court in Onslow County conducted a joint evidentiary hearing for

defendant and his co-defendant, Sims.

The remand court found that it was “more likely than not that the State’s

peremptory challenge of juror Viola Morrow was motivated in substantial part by a

gender discriminatory intent.” In making this determination, the remand court

considered, inter alia, the following: statements made by the State’s counsel during

jury selection; the Butler affidavit; relevant history of the State’s peremptory strikes

in an unrelated capital case; a side-by-side comparison of juror Morrow who was

struck and male prospective jurors who were passed by the State; and statistical

evidence addressing the prosecutor’s use of peremptory strikes, including a report by

Dr. Frank Baumgartner which analyzed those statistics. See State v. Tucker, 385 N.C.

471, 510 (2023), cert. denied, 145 S. Ct. 196 (2024) (discussing evidence that may

support a claim that a prosecutor’s peremptory strikes were made on the basis of

race); see also J.E.B., 511 U.S. at 130, 144–45 (applying the Batson framework to

evaluate claims of gender-based discrimination).

The remand court limited its review to the issue of defendant’s and Sims’

J.E.B. claims and did not re-address the procedural bar. However, the remand court

did make additional findings of fact “establish[ing] the chronology and details of the

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jury selection process.” In doing so, the remand court noted, “from a review of the jury

selection transcript, it is clear that the defendants never raised a gender-based

Batson objection that the trial court could address.”

After review of the voir dire transcript, the trial court made the following

finding:

In these ten rounds [of jury selection panels], twelve

jurors were selected by the parties, ten females and two

males. During this entire process, [sixty-nine] jurors were

questioned with [sixteen] being excused for cause, three of

whom were excused for cause after being passed by the

State. During this process the State peremptorily removed

[nineteen] jurors. At the end of this process the State had

remaining [nine] peremptory challenges. Of the nineteen

jurors removed peremptorily by the State, sixteen were

females and three were males. The State had passed

seventeen female jurors, ten of whom were selected to sit

on the jury. The State passed twenty male jurors, three

were removed for cause after they were passed by the

State, and two of whom were eventually selected to sit on

the jury. Fifteen of the twenty males were removed

peremptorily by the defendants, ten by defendant Sims and

five by defendant Bell.

In his briefing to this Court following its grant of certiorari, defendant argued

that the trial court erred in concluding that his J.E.B. claim is procedurally barred

under N.C.G.S. § 15A-1419(a)(3), because the Butler affidavit amounts to an

admission by the State of violating the Equal Protection Clause and J.E.B. Without

the affidavit, defendant argues, he would have “had no hope of making a viable

showing [of his J.E.B. claim] . . . based upon the evidentiary record developed at

trial.” State v. Hyman, 371 N.C. 363, 384 (2018).

11a

Defendant’s argument hinges on the fact that, at the time of his initial appeal,

Butler had not yet produced the affidavit. Without the Butler affidavit, defendant

contends, the real reasoning behind the State’s use of a peremptory strike on juror

Morrow was unknown to defendant. Thus, defendant claims that he was not

positioned to “adequately” raise the J.E.B. issue on his direct appeal and the

procedural bar does not apply. N.C.G.S. § 15A-1419(a)(3) (2023).

C. Voir Dire Proceedings

On remand, the superior court made findings of fact, as detailed below,

“establish[ing] the chronology and details of the jury selection process.” The remand

court concluded that “[t]he jury selection transcript reveals the State’s concern about

the defendants’ peremptory challenges of male jurors.”

Jury selection consisted of ten rounds of voir dire and an additional three

rounds to select alternate jurors. Each round consisted of various panels of

prospective jurors. During the first round of voir dire, a prospective male juror

informed the trial court that he had plans to travel out of state. The court proposed

that this prospective juror be placed in a later panel of prospective jurors, meaning

he would not be called for voir dire until later in the process, after he had returned

from his travel. Neither defendant objected to this plan. The State, however, urged

the court instead to accommodate the prospective juror’s travel plans by conducting

his voir dire earlier as opposed to later. The State advised the court: “I’d like to have

[a] few men. I would like to have a representative jury. There ain’t no men.” This

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prospective juror was never called for voir dire.

In the third round of jury selection, the defendant and Sims raised two Batson

objections after the State peremptorily struck two black female prospective jurors.

The court denied both motions after finding that defendants had not established a

prima facie case of racial discrimination. The State passed to the defendants two

female and three male prospective jurors. Before any questioning by either defendant

or Sims took place, Sims announced that he would like to peremptorily excuse two of

the three male prospective jurors on the current panel. Accordingly, the State raised

a J.E.B. objection, arguing that it was improper for either side to strike prospective

jurors simply on the basis of their gender.

The State, perceiving that defendants were purposefully striking male jurors,

argued that “all the men that have been passed to [the defense] have been challenged.

Currently, we have passed three to them and one of them has been challenged before

questioning has even begun.” The State argued further: “[O]f the jurors currently

seated, we’ve got seven, all of them are women . . . they have taken off all the . . .

men.” The remand court found that “it appear[ed] that the State wanted to put the

defendants on notice of this observation and its complaint of gender discrimination.”

In the fifth round of jury selection, the State exercised its peremptory strike to

remove black female prospective juror Viola Morrow. Defendant centers his J.E.B.

claim around this strike. Defendant and Sims raised a Batson objection to the State’s

peremptory strike of Morrow, which the court denied. No gender-based J.E.B.

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objection was raised by defendant or Sims at trial.

The juror questionnaire completed by Morrow and contained in the record

asked: “If you are selected to serve as a juror in this trial, is there any reason, physical

. . . or otherwise which would or could distract or prevent you from giving your total

and undivided attention to the trial of this matter . . . ?” Morrow responded: “I have

rheumatoid arthritis . . . and it causes me to have a lot of pain. I feel it might distract

me at times.”

During her voir dire, Morrow explained that her rheumatoid arthritis had

progressively worsened since her 1993 diagnosis. Butler asked: “[I]s it to the point

that it incapacitates you to the point you have to stay home and everything?” Morrow

replied affirmatively. Morrow explained that “flare ups . . . could be twice a week” or

“twice in one day,” and that she had spent the last two weeks in bed. At the conclusion

of Morrow’s voir dire, Butler stated to the court: “[I]n light of Ms. Morrow’s medical

situation and her concerns about that . . . the State would like to thank and excuse

her for the purposes of this trial . . . we would excuse her and use a peremptory on

her.” When the State was later asked to put its reason for striking Morrow on the

record, the prosecution replied, in part: “We have taken off . . . females because we

felt like we needed more men on the jury.”

The juror questionnaire completed by Morrow contains handwritten notes

made by the prosecution. Those notes, produced during post-conviction discovery,

state:

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--2 children age of Δ’s

--illness [rheumatoid arthritis can flare up at any time + incapacitate her]

--no man yet on panel, + we’ve already seated 10 jurors!

In contrast is the voir dire of male prospective juror Gary Northern, also

conducted in the fifth round. Northern’s questionnaire indicated that he had suffered

a heart attack, resulting in his retirement. The following exchange took place during

voir dire:

Butler:

The heart condition, would you feel that would

cause you any difficulty in listening to the

evidence and pay attention to all the evidence?

Northern: There is no way I could tell. It depends on how

intense -- if it gets to[o] intense, it might cause

me to have stress.

Butler:

But, basically, for the most part you are able -you can sit here and listen to the evidence and

take the breaks that we take and do things?

Northern: Yes, sir.

Butler:

If you have a problem, you understand that you

just let the judge know and the bailiffs know

and we would adjust and deal with that?

Northern: Yes, sir.

The court interceded, asking follow-up questions which revealed that Northern

takes daily medication, must see a doctor every three months, and that his heart only

functions at about 20% capacity. Despite these health challenges, Northern was

accepted by the State and passed to the defense. After questioning, defendant excused

Northern.

The sixth round of voir dire included that of male prospective juror Johnnie

Burris. On Burris’ questionnaire, he indicated that he also had heart disease—a

serious illness. Burris indicated that he was medically retired and taking heart and

15a

blood pressure medication that could interfere with his mental competency. Burris

further indicated that increased blood pressure caused by the trial could cause him

physical harm. The following exchange took place:

Butler: . . . you mention on your questionnaire that you

have some stress heart problems and are on

medication. Anything in particular about that

that’s beyond normal where you felt like you

couldn’t sit for an hour and a half at a time and

would prevent you from being able to listen to the

evidence?

Burris: I really don’t think so. Like I said, I am dealing

with stress. I’ve had five heart surgeries and three

heart attacks; so, you know, I’m a little concerned

about my own health as well.

Butler: I understand. Obviously, it’s physically stressful

in here. It is taxing. You’ve got to listen to the

things that will be presented in court.

Burris: Exactly.

Butler: Do you feel like that you could -- if you have any

medical problems, that you would let the [c]ourt

know and things could be -- you could be

accommodated and such if you were to sit as a

juror?

Burris: Yes.

Butler: So I’m taking it then that even though you are on

medication and things like that that you don’t feel

that would prevent you from being a fair and

impartial juror or fairly considering the evidence

and listen attentively to everything?

Burris: Just like I told the judge the other day, I do not

think it would interfere.

Butler: I appreciate your concerns. If the situation got to

where medically it’s difficult, you would make the

[c]ourt aware of that; is that right?

Burris: Yes.

A bench conference was held after some further questioning. During the bench

conference, the following exchange took place:

16a

Defense Counsel:

Butler:

Could we ask the judge to inquire more

about his health?

That’s fine with me. I don’t mind if you

want to do that or make a cause for

challenge. If he doesn’t allow the cause

for challenge, I can either go on or you

can tell me if you’re going to do a

peremptory on him. I don’t have any

problems if the judge wants to do that.

The court removed Burris for cause, due to his health conditions.

II.

Standard of Review

“When considering rulings on motions for appropriate relief, [this Court]

review[s] the trial court’s order to determine whether the findings of fact are

supported by evidence, whether the findings 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 (2005) (extraneity omitted). We review issues of law de

novo. E.g., State v. Biber, 365 N.C. 162, 168 (2011).

III.

Analysis

This Court allowed defendant’s Petition for Writ of Certiorari on the following

issues:

I.

II.

III.

Whether defendant preserved his claim that the

prosecutor impermissibly struck a juror on the basis

of gender.

If the claim is preserved, whether the trial court

properly decided that there was no intentional

gender discrimination, including whether the “dual

motivation” standard applies.

If the claim is preserved and the trial court erred, is

the record sufficient to rule on the merits, or should

17a

the matter be remanded to the trial court for an

evidentiary hearing.

Accordingly, this Court first considers whether defendant has preserved his

claim that the State deprived defendant of his Equal Protection rights by

impermissibly striking a prospective juror due to her gender, in violation of J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127 (1994). We hold that defendant failed to preserve

his J.E.B. claim.

Constitutional matters—including claims of gender discrimination during jury

selection—“not raised and passed upon at trial will not be reviewed for the first time

on appeal.” State v. Garcia, 358 N.C. 382, 410 (2004) (extraneity omitted), cert.

denied, 543 U.S. 1156 (2005); accord State v. Best, 342 N.C. 502, 513, cert. denied, 519

U.S. 878 (1996). Despite multiple statements by the State—in open court—that

indicated the State’s gender-based motives for striking potential jurors, neither

defendant nor Sims made a gender-based discrimination objection at the time of jury

selection. When the State was asked to put the reason for striking Morrow on the

record, the State said: “We have taken off . . . females because we felt like we needed

more men on the jury.” Neither defendant nor Sims made a gender-based objection

then, either.

The State also made the following statements during voir dire: “I’d like to have

[a] few men. I would like to have a representative jury. There ain’t no men”; “we have

nothing but seven white women—seven women on the jury now, and we are entitled

to have a jury that’s representative of the community”; and “of the jurors seated

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currently, we’ve got seven, all of them are women . . . . they have taken off all the . . .

men.” Neither defendant nor Sims raised a gender-based objection when any of these

statements were made by the State or at any point during voir dire. Furthermore,

neither defendant nor Sims raised the issue in their initial appeal. Therefore,

defendant’s claim is not preserved.

Moreover, assuming arguendo that defendant’s J.E.B. claim is preserved, this

Court is prohibited from allowing defendant’s AMAR, because defendant’s and Sims’

gender-based claim of discrimination is procedurally barred and defendant has not

demonstrated an exception to that bar. See N.C.G.S. § 15A-1419(b) (2023).

Under North Carolina law, this Court “shall deny,” id., review of a motion for

appropriate relief when “[u]pon 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,” N.C.G.S. § 15A-1419(a)(3). See also Tucker, 385 N.C. at 514 (affirming the denial

of a defendant’s MAR for review of a Batson claim, because it was procedurally barred

and the defendant had not demonstrated an exception to that bar). This statute

“requires the reviewing court . . . ‘to determine whether the particular claim at issue

could have been brought on direct review.’ ” Tucker, 385 N.C. at 492 (quoting Hyman,

371 N.C. at 383 (emphasis added)). For this Court to determine that a claim could

have been brought on direct review, “the direct appeal record must have contained

sufficient information to permit the reviewing court to make all the factual and legal

determinations necessary to allow a proper resolution of the claim in question.”

19a

Hyman, 371 N.C. at 383. The procedural bar may be waived when a defendant shows,

“by a preponderance of the evidence,” that there is “[g]ood cause for excusing the”

procedural bar and “actual prejudice,” N.C.G.S. § 15A-1419(b)(1), or that “failure to

consider the defendant’s claim will result in a fundamental miscarriage of justice,”

N.C.G.S. § 15A-1419(b)(2). See also Tucker, 385 N.C. at 485.

Defendant argues that the MAR court erred in concluding that his J.E.B. claim

was procedurally barred, because without the Butler affidavit, filed in 2012,

defendant was not in a position to “adequately” raise the J.E.B. claim in his 2001

appeal. N.C.G.S. § 15A-1419(a)(3). Phrased another way, defendant contends that,

without the Butler affidavit, the record did not “contain[ ] sufficient information to

permit the reviewing court to make all the factual and legal determinations necessary

to allow a proper resolution of the claim in question.” Hyman, 371 N.C. at 383. We

disagree.

To show gender discrimination in jury selection, a defendant may rely on a

variety of evidence. See Tucker, 385 N.C. at 510 (referencing evidence that may

support a claim that a prosecutor’s peremptory strikes were made on the basis of

race); see also J.E.B., 511 U.S. at 130, 144–45 (applying the Batson framework to

evaluate claims of gender-based discrimination). Here, as previously discussed, the

prosecutor made numerous statements about the State’s desire to have men on the

jury. This is direct evidence of the prosecutor’s intent. Beyond the direct evidence,

defendant may have relied on additional evidence that includes statistical evidence

20a

about the prosecutor’s use of peremptory strikes based on gender, side-by-side

comparisons of female prospective jurors who were struck and male prospective

jurors who were not struck in the case, and other relevant circumstances that bear

upon the issue of gender discrimination. See Tucker, 385 N.C. at 510; J.E.B., 511 U.S.

at 144–45.

A. Direct Evidence

The jury selection transcript reveals pointed statements baldly communicated

by the State—in open court—that it wanted to place more men on the jury at the

expense of seating women. When asked to put its reason for striking Morrow on the

record, the prosecution replied, in part: “We have taken off . . . females because we

felt like we needed more men on the jury.” This statement confirms, as expressed in

the Butler affidavit, that the State was “making a concerted effort to send male jurors

to the [d]efense.” Additionally, when the court suggested moving a prospective male

juror to a later voir dire panel, the prosecution stated, “I mean, I’d like to have [a] few

men. I would like to have a representative jury. There ain’t no men. . . . I know I want

a representative jury.” With this statement, the State revealed its objective to “[look]

for male jurors”—the same objective expressed in the Butler affidavit.

The transcript also reflects that the State raised a J.E.B. objection to both

defendants’ striking of prospective male jurors, stating, “all the men that have been

passed to [defendant and Sims] have been challenged. Currently, we have passed

three to them and one of them has been challenged before questioning has even been

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done.” The State’s decision to raise a J.E.B. objection at trial presumably put

defendant on notice that the gender of the jurors was a matter of interest to the State.

Indeed, the remand court found that “[i]t appear[ed] that the State wanted to put the

defendants on notice of this observation and its complaint of gender discrimination.”

While arguing its J.E.B. objection, the State vocalized its dissatisfaction with

the number of women that had been seated, stating that all “of the jurors seated . . .

seven, all of them [were] women.” The State reemphasized its dissatisfaction with an

all-female jury, stating, “we have nothing but seven white women—seven women on

the jury now, and we are entitled to have a jury that’s representative of the

community.” Again, these statements—made in open court and captured in the

record—reflect the State’s dissatisfaction with an all-female jury, precipitating its

“concerted effort to send male jurors to the [d]efense” as stated in the Butler affidavit.

The portion of the Butler affidavit pertaining to the State’s peremptory strike

of Morrow contains the following:

Has 2 children age of [d]efendants. Has an illness

rheumatoid arthritis. Can flare up at any time and

incapacitate her. State has only used 12 of its 28 preempts

and 10 jurors were seated, all female. State was looking for

male jurors and potential foreperson. Was making a

concerted effort to send male jurors to the [d]efense as they

were taking off every male juror. Batson motion denied, no

[prima facie] case but allowed state to give reason on the

record.

The additional statements contained in the Butler affidavit, beyond those facts

that could be gleaned from the transcripts available on appeal are: “State was looking

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for male jurors and potential foreperson. Was making a concerted effort to send male

jurors to the [d]efense.” This language in the Butler affidavit is a summary of the

statements made by the prosecution throughout voir dire. The additional statements

in the Butler affidavit are not new facts absent from the record. Rather, they are the

conclusion one would draw from the record as a whole and then argue in support of a

J.E.B. claim on appeal.2

B. Statistical Evidence

In combination, the transcripts and questionnaires provide the basis for a

statistical analysis of the State’s use of peremptory strikes based on gender. This

determination is exemplified by defendant’s own expert, Dr. Frank Baumgartner,

who was tendered by defendant at the evidentiary hearing on remand.

Dr. Baumgartner reviewed data derived from the jury questionnaires and the

transcript. Based on this portion of the record, Dr. Baumgartner determined that, of

the ninety-three jury venire members, fifty-two were female and forty-one were male.

Of the entirety, eleven females and eleven males were struck for cause, leaving fortyone females and thirty males. The State used twenty-four peremptory strikes: twenty

2 Likewise, the handwritten note on Morrow’s jury questionnaire, produced during

post-conviction discovery, while not available for the direct appeal, is not now new evidence.

The words “no man on panel, + we’ve already seated 10 jurors!” is simply reflective of

statements made by the prosecution throughout voir dire. Indeed, on remand, the trial court

found that “[t]he thinking and rationale expressed in Butler’s affidavit regarding the

peremptory charge of Morrow is also reflected in, and consistent with, the handwritten

comments that appear on Viola Morrow’s questionnaire obtained by the defendants in

discovery.”

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for females and four for males. The analysis of the record, performed by defendant’s

expert, shows that the State used 83% of its peremptory strikes to remove females—

a statistically significant percentage. Dr. Baumgartner analyzed numbers and

information extracted from the record to conclude that the State made a statistically

significant effort to remove female jurors. Dr. Baumgartner did not rely on, analyze,

or utilize the Butler affidavit in his analysis. Therefore, it is apparent that the Butler

affidavit is not required to perform a statistical analysis of the State’s use of

peremptory strikes.

C. Side-by-Side Comparison

Comparison of female jurors who were struck to male jurors who were not

struck is an important consideration in determining whether gender-based

discrimination has occurred. See Miller-El v. Dretke, 545 U.S. 231, 241 (2005). The

jury questionnaires and voir dire transcript allow comparison of Morrow with the

male jurors who were permitted to serve. In particular, the transcripts allow for

comparison of Morrow with prospective jurors Northern and Burris.

Voir dire questioning revealed that both Morrow and Northern could

experience days when, due to their respective medical conditions, they would be

unable to give their undivided attention to the trial. Morrow was asked directly if her

health would interfere with her physical ability to sit on the jury. Burris, however,

despite his serious health concerns, was not directly asked the same question.

Morrow was offered no assurances of accommodation for any medical issues; however,

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both Northern and Burris were. The State accepted and passed Northern to the

defense despite his serious health issues. Similarly, the State indicated at the bench

conference that it would accept Burris, despite his serious health issues. The

disparate treatment and questioning between female Morrow and males Northern

and Burris are reflected in the transcripts contained in the record, which were

available to defendant in preparing his appeal.

On remand, the reviewing court made “factual and legal determinations,” see

Hyman, 371 N.C. at 383, based on the transcript, that “[t]his disparity is evidence

tending to prove purposeful discrimination.” The Butler affidavit was not used to

assess disparate treatment between prospective jurors.

In summary, the record contains the facts required to perform a statistical

analysis of the State’s use of peremptory strikes by gender. The record also contains

the facts required to compare juror Morrow to males for whom the State did not use

a peremptory strike. Most striking, the jury selection transcript captures

statements—made in open court—conveying the State’s desire to have more men on

the jury at the expense of seating additional women jurors.

Clearly, the record contained “sufficient information to permit the reviewing

court to make all the factual and legal determinations necessary to allow a proper

resolution of the claim in question” without the Butler affidavit. Hyman, 371 N.C. at

383. Therefore, the trial court was correct to conclude that, even without the Butler

affidavit, defendant was in a position to adequately raise this claim on direct appeal

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but failed to do so. Thus, defendant’s J.E.B. claim is procedurally barred from review

pursuant to N.C.G.S. § 15A-1419(a)(3). See Tucker, 385 N.C. at 492.

IV.

Exceptions to the Mandatory Procedural Bar

This mandatory procedural bar may be overcome in two scenarios. First, the

bar may be overcome where a defendant shows “[g]ood cause for excusing” the

defendant’s failure to raise the claim on direct appeal and “demonstrate[s] actual

prejudice.” N.C.G.S. § 15A-1419(b)(1); see also Tucker, 385 N.C. at 485. Second, the

bar may be overcome when a defendant shows “[t]hat failure to consider the

defendant’s claim will result in a fundamental miscarriage of justice.” N.C.G.S. § 15A1419(b)(2); see also Tucker, 385 N.C. at 485.

Defendant makes no argument that failure to consider his J.E.B. claim will

result in a fundamental miscarriage of justice. Therefore, we limit our analysis to

“good cause.” Under subsection 15A-1419(c):

[G]ood 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); see also Tucker, 385 N.C. at 485.

26a

Defendant has failed to show good cause. Defendant first argues that, under

subsection (c)(1), the State acted by withholding its true reasoning for striking

Morrow from the jury, thereby preventing defendant’s trial counsel and the trial court

from ensuring the jury was selected without discrimination. Defendant also argues

that, under subsection (c)(3), the Butler affidavit is new evidence of the State’s

motivation for the strike “that could not have been discovered through the exercise of

reasonable diligence.” Both of these arguments fail.

First, the record does not comport with defendant’s view that the State’s failure

to confess discrimination at trial prevented defendant from raising his J.E.B. claim

on his initial appeal. To the contrary, the prosecutors made statements in open court

conveying the very information contained in the Butler affidavit. Specifically, the

prosecutor stated on the record: “We have taken off . . . females because we felt like

we needed more men on the jury”; “I’d like to have [a] few men. I would like to have

a representative jury. There ain’t no men”; “[w]e have nothing but seven white

women—seven women on the jury now, and we are entitled to have a jury that’s

representative of the community”; and finally, “[o]f the jurors currently seated, we’ve

got seven, all of them are women . . . they have taken off all the . . . men.” It was no

secret or surprise that the State was striking female jurors in an attempt to secure

more male jurors.

Second, the Butler affidavit is not “a factual predicate that could not have been

discovered through the exercise of reasonable diligence.” N.C.G.S. § 15A-1419(c)(3);

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see also Tucker, 385 N.C. at 485. A predicate fact is “[a] fact from which a presumption

or inference arises.” Predicate fact, Black’s Law Dictionary (11th ed. 2019). The

affidavit states: “State was looking for male jurors and potential foreperson. Was

making a concerted effort to send male jurors to the [d]efense as they were taking off

every male juror.” The applicable inference in play here is that the State was

surreptitiously striking female jurors in order to seat more male jurors. However,

when asked to put its reasons on the record for striking Morrow, the State admitted,

“We have taken off . . . females because we felt like we needed more men on the jury.”3

It is evident from the cold record that the remarks made by the State during

voir dire put defendant on notice that he needed to raise a J.E.B. objection. Thus, the

Butler affidavit did not provide a factual predicate that could not have been

discovered by analyzing the cold record. This Court need not reach the issue of

whether defendant can demonstrate actual prejudice as required under N.C.G.S.

§ 15A-1419(b)(1), because defendant has failed to show good cause.4

This Court holds that defendant failed to preserve his J.E.B. claim, because

3 The State also made the following statements during voir dire: “I’d like to have [a]

few men. I would like to have a representative jury. There ain’t no men”; “we have nothing

but seven white women—seven women on the jury now, and we are entitled to have a jury

that’s representative of the community”; and “of the jurors currently seated, we’ve got seven,

all of them are women . . . . they have taken off all the . . . men.”

4 The concurrence argues that the apparently incompetent lawyering should qualify

defendant for the good cause exception. To pursue such a claim, defendant may file a motion

for appropriate relief alleging ineffective assistance of counsel. See N.C.G.S. § 15A-1415(b)(3).

This procedure would allow the reviewing court the opportunity to make the factual and legal

determinations necessary to appropriately evaluate his claim. This would produce a record

reviewable by this Court on appeal. See N.C.G.S. § 15A-1415(e); but cf. Hyman, 371 N.C. 383.

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defendant failed to make a J.E.B. objection at trial. Moreover, assuming arguendo

that defendant’s claim is preserved, the claim is nevertheless not reviewable because

defendant failed to raise the issue on direct appeal. Defendant’s J.E.B. claim—raised

for the first time in his Amendment to Motion for Appropriate Relief—is procedurally

barred pursuant to N.C.G.S. § 15A-1419(a)(3). This Court further holds that

defendant has failed to meet his burden to show good cause in order to overcome the

mandatory procedural bar. Accordingly, the remaining two issues for which certiorari

was allowed are moot.

V.

Conclusion

Nothing in this opinion commends the defense’s practice of systematically

eliminating men from the jury. Discrimination in jury selection by either the State or

the defendant is equally reprehensible. Without discrimination, the jury selection

process should result in a “jury of one’s peers,” reflective of the community.

“Discrimination in jury selection, whether based on race or on gender, causes harm

to the litigants, the community, and the individual jurors who are wrongfully

excluded from participation in the judicial process. The litigants are harmed by the

risk that the prejudice that motivated the discriminatory selection of the jury will

infect the entire proceedings.” J.E.B., 511 U.S. at 140. “Discriminatory use of

peremptory challenges may create the impression that the judicial system has

acquiesced in suppressing full participation by one gender or that the deck has been

stacked in favor of one side.” Id. (extraneity omitted).

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This Court recognizes the reprehensible and insidious nature of discrimination

in the jury selection process. Given the great importance of this issue, this Court has

considered, in depth, the discriminatory practices of the State in this case. The

concurrence contends that this Court constructs barriers to deny defendant any

remedy. Yet, the concurrence acknowledges that denial of defendant’s claim is

required by law. Accordingly, in the faithful application of the laws of this State, this

Court cannot ignore the blackletter, statutory, and procedural requirements of the

law.

“The post-conviction procedure set forth [in N.C.G.S. § 15A-1419] serves a

critical role in our criminal justice system. Not only does it provide for review and

potential relief to defendants convicted of a crime, but the process also promotes

finality. 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.”

Tucker, 385 N.C. at 486 (citations omitted). “[P]reservation . . . serves crucial

functions in our justice system. . . . When a party alerts the trial court of a potential

error, the court can correct it.” State v. Reber, 386 N.C. 153, 157 (2024). An objection

at trial is critical. The outcome of this case emphasizes the importance of

preservation—not only for the defendant, but for the sake of the Constitution.

Defendant failed to raise a J.E.B. objection during jury selection and “was in a

position to adequately raise” a J.E.B. claim on direct appeal. N.C.G.S. § 15A1419(a)(3). Accordingly, defendant’s J.E.B. claim is not preserved and is procedurally

30a

barred under N.C.G.S. § 15A-1419(a)(3). Accordingly, we affirm the superior court’s

13 December 2012 order denying defendant’s amended motion for appropriate relief.

AFFIRMED.

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Justice EARLS concurring in the result only.

The majority invokes the rampant evidence of unconstitutional gender

discrimination by the State during jury selection to justify rejecting a defendant’s

challenge to unconstitutional gender discrimination by the State. That is just one

clear indication of the failure of the Batson and J.E.B. frameworks to address the

constitutional violation first acknowledged by the Supreme Court of the United

States in Strauder v. West Virginia, 100 U.S. 303, 310 (1880).

I concur in the result only, because I cannot discern what Bell or his counsel

could have done differently to achieve relief under our precedent, even in this

extraordinary instance where a prosecutor has admitted under oath that he struck a

juror based on her gender. In my view the jurisprudence of this state has effectively

overruled Batson and J.E.B. for post-conviction relief even before today’s decision.

Until that precedent is overturned or superseded by statute, I am constrained to

follow it. Our jurisprudence is wrong on this front, and it is our Court’s responsibility

to champion new pathways forward that will enforce the constitutional rights and

safeguards of equal, impartial justice.

I.

North Carolina’s History of Jury Discrimination Claims

Striking a prospective juror on the basis of their race or gender violates the

Equal Protection guarantee of the Fourteenth Amendment. See generally Batson v.

Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). This

prohibition is rooted in the criminal defendant’s constitutional right to be tried by a

jury of their peers and to be sure that no group of peers is “systematically and

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arbitrarily excluded from the jury pool which is to decide [a defendant’s] guilt or

innocence.” State v. Blakeney, 352 N.C. 287, 296 (2000) (cleaned up). It also

safeguards a defendant’s constitutional right to an impartial jury. See Miller‐El v.

Dretke (Miller-El II), 545 U.S. 231, 237 (2005). A right to be judged by one’s peers

secures the People’s voice in our justice system and operates as a “necessary check on

governmental power.” Pena-Rodriguez v. Colorado, 580 U.S. 206, 210 (2017); accord

Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (“[T]he jury trial provisions in the

Federal and State Constitutions reflect a fundamental decision about the exercise of

official power—a reluctance to entrust plenary powers over the life and liberty of the

citizen to one judge or to a group of judges.”).

Batson and J.E.B. safeguards are also rooted in the individual citizen’s right

not to be excluded from a sacred civic duty because of their race or gender. Barbara

D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It

Anyway?, 92 Colum. L. Rev. 725, 726 (1992) (citing Batson, 476 U.S. at 85–87). Aside

from voting, jury service is the “most substantial opportunity that most citizens have

to participate in the democratic process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2238

(2019). It embodies the essential principle of democracy and self-government that

“the law comes from the people.” Pena-Rodriguez, 580 U.S. at 210.

Thus discrimination in jury selection “undermine[s] public confidence in the

fairness of our system of justice” and harms the entire community. Batson, 476 U.S.

at 87. It inflicts a “profound personal humiliation” on the excluded jurors. Powers v.

33a

Ohio, 499 U.S. 400, 425 (1991). The State effectively labels those excluded jurors as

“inferior” and unworthy to mete out justice. See Strauder, 100 U.S. at 308 (explaining

that discriminatory exclusion is a “brand upon [the excluded jurors], affixed by the

law, an assertion of their inferiority”). So great is the collective harm that “[t]he

Constitution forbids striking even a single prospective juror for a discriminatory

purpose.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (cleaned up) (quoting United

States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

Since 1986, courts have employed a three-step process to determine whether a

peremptory strike of a juror was “motivated in substantial part by discriminatory

intent.” Flowers, 139 S. Ct. at 2238; J.E.B., 511 U.S. at 145 (applying Batson’s three

steps to gender discrimination claims). At step one, the defendant must make a prima

facie showing that the prosecution struck a juror based on gender based on a range

of evidence—patterns in the prosecution’s strikes, comparisons between how male

and female jurors were treated, statements by the prosecutor, or anything else that

might support an inference of discrimination. State v. Clegg, 380 N.C. 127, 130 (2022);

State v. Hobbs, 374 N.C. 345, 350 (2020); Miller-El II, 545 U.S. at 240.

If the defendant clears that low bar, he “transfer[s] the burden of production

to the State.” Hobbs, 374 N.C. at 350. This is step two. At this stage, the prosecution

must explain its peremptory challenges in non-discriminatory terms. Clegg, 380 N.C.

at 130. The explanation need not be the full one. State v. Fair, 354 N.C. 131, 140

(2001).

34a

At step three, the trial court must determine whether the defendant has

carried his “burden of showing purposeful discrimination.” Hobbs, 374 N.C. at 353.

The judge considers the prosecutor’s non-discriminatory explanations “in light of all

of the relevant facts and circumstances,” including “the arguments of the parties.” Id.

(quoting Flowers, 139 S. Ct. at 2243). The trial court must weigh all the evidence and

decide whether the challenged strike was “motivated in substantial part by

discriminatory intent.” Id. (quoting Flowers, 139 S. Ct. at 2244). If the court decides

the challenged strike was so motivated, the trial court has discretion to either dismiss

the venire and start again, or to seat the improperly struck juror. State v. McCollum,

334 N.C. 208, 235–36 (1993).

Yet on appeal, these three steps have virtually never identified any instance of

a discriminatory motive in the decision to use a peremptory challenge to strike a juror

in North Carolina. Between 1986 and 2016, North Carolina’s appellate courts

collectively decided 114 Batson challenges on the merits. Daniel R. Pollitt & Brittany

P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate

Batson Record, 94 N.C. L. Rev. 1957, 1957 (2016). But they did not find a single

violation where a prosecutor articulated a race-neutral reason for striking the juror.

Id. These cases include seventy-four decided by our Court during that period. Id. at

1961–62.

North Carolina is an outlier even among southeastern states. During the same

period, the highest state courts of bordering states found multiple Batson violations:

35a

three in Virginia, and eleven in South Carolina. Id. at 1984.1

Batson challenges have fared little better at our Court since 2016. This Court

rejected recent Batson challenges in State v. Campbell, 384 N.C. 126 (2023), State v.

Richardson, 385 N.C. 101 (2023), and State v. Tucker, 385 N.C. 471 (2023). We found

one, and only one, substantive Batson violation in State v. Clegg, 380 N.C. 127 (2022).

We remanded for reconsideration of the matter in State v. Hobbs, 374 N.C. 345 (2020),

and for further consideration in State v. Bennett, 374 N.C. 579 (2020).

The lack of successful Batson claims is not because discrimination is magically

absent from North Carolina’s legal system. Just the opposite. Studies examining

state-wide jury data show that prosecutors struck Black jurors twice as frequently as

their white counterparts. See Ronald F. Wright et al., The Jury Sunshine Project:

Jury Selection Data as a Political Issue, 2018 Ill. L. Rev. 1407 (2018) (analyzing data

on more than 29,000 potential North Carolina jurors in noncapital felony trials

between 2011–2012 and finding that prosecutors struck Black jurors twice as often

as white ones).

J.E.B. claims alleging gender discrimination in jury selection have been

similarly unsuccessful. The Court rejected such claims against the State in cases like

1 Canvasing the South, North Carolina is an extreme outlier.

From 2010 to 2017,

“Alabama had over eighty appellate reversals because of racially-tainted jury selection.” See

James E. Coleman, Jr. & David C. Weiss, The Role of Race in Jury Selection: A Review of

North Carolina Appellate Decisions, The North Carolina State Bar Journal, Fall 2017, at 13,

14. Florida had thirty-three. Id. Louisiana had twelve. Id. Mississippi and Arkansas saw ten

each. Id. And in Georgia, the number was eight. Id.

36a

Richardson, 385 N.C. at 193–94, State v. Maness, 363 N.C. 261, 276 (2009), State v.

Call, 349 N.C. 382, 393 (1998), State v. Gaines, 345 N.C. 647, 669 (1997), State v.

Bates, 343 N.C. 564, 595 (1996), and State v. Best, 342 N.C. 502, 513 (1996) (siding

with the State on procedural grounds).

II.

Bell’s J.E.B. Claim

One possible exception to the drumbeat of rejection of J.E.B. claims was the

predecessor to the case before us, State v. Bell, 380 N.C. 672 (2022), and its

companion, State v. Sims, 373 N.C. 176 (2019), rescinded 384 N.C. 669 (2023). In

these cases we remanded a J.E.B. challenge for an evidentiary hearing in superior

court. On 23 January 2023, after receiving evidence, that court found that the State’s

peremptory strike of a juror, Viola Morrow, “was motivated in substantial part by her

gender” in violation of J.E.B. It detailed its findings in a sixty-four-page order.

Significantly, the trial court relied on sworn testimony from a prosecutor in the

case that he removed Ms. Morrow because he “[w]as making a concerted effort to send

male jurors to the Defense.” The same prosecutor admitted that, in another case, he

struck prospective alternate juror Elizabeth Rich because he “was looking for strong

male jurors” and wanted to “to get someone stronger” than Ms. Rich. He further

admitted that he struck Brenda Corbett as a prospective juror because he wanted

“strong unequivocal jurors and a potential foreman.”2 That sworn testimony as to the

The prosecutor, assistant district attorney Greg Butler, had prepared two

affidavits—including one for the Bell/Sims case—for a large data analysis effort by Dr.

2

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prosecutor’s thoughts was, obviously, not available to the defendants at the time of

their trial or their direct appeal.

Moreover, at Sims’s and Bell’s joint evidentiary hearing, Bell’s attorneys

submitted a copy of the jury questionnaire for Morrow, which the State had provided

during post-conviction discovery in Bell’s case. That is, the discovery that occurs after

the trial and after direct appeal through post-conviction proceedings under N.C.G.S.

§ 15A-1415(f) (2023). This document contained handwritten notes in the margin,

which stated:

– 2 children age of ∆’s

– illness [rheumatoid arthri . . . can flare up at any time

+ incapacitate her]

– no man on panel, + we’ve already seated 10 jurors!

Whatever other evidence of gender discrimination in the State’s use of peremptory

strikes that existed during jury selection at Sims’s and Bell’s initial trial, the jury

questionnaire notes and affidavit were new, conclusive admissions by the State that

it employed a peremptory strike to remove a juror based on gender. That is a

constitutional violation. E.g., United States v. Omoruyi, 7 F.3d 880, 882 (9th Cir.

Joseph Katz. Dr. Katz asked prosecutors for their reasons for striking African American

jurors in the 173 cases examined in a Michigan State University study on the Racial Justice

Act. See Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overhwleming

Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97

Iowa L. Rev. 1531 (2012). It is noteworthy that the prosecutors invoked gender discrimination

in an effort to assert that they were not engaged in racial discrimination, in a case where

defense counsel repeatedly objected to perceived racial discrimination in the prosecutor’s

peremptory strikes.

38a

1993) (finding a constitutional violation because “[t]here was an admission of

purposeful gender discrimination” (cleaned up)); McGee v. State, 953 So. 2d 211, 214–

15 (Miss. 2007) (finding a violation of the Equal Protection Clause in a case where

the State admitted it struck a juror because he was male).

“Once discrimination in jury selection has occurred, the harm is done. The

system, the litigant, and the juror have already sustained injury.” Woodson v. Porter

Brown Limestone Co., 916 S.W.2d. 896, 906 (Tenn. 1996). But in the face of that

constitutional injury, the majority constructs a fortress of procedural barriers to deny

Bell any remedy.

It concludes first that Bell’s constitutional claim is not preserved because Bell’s

counsel objected to racial discrimination, not gender discrimination, during voir dire.

Then it determines that Bell’s challenge—brought in a motion for appropriate relief

based on the new evidence not available to Bell or his counsel during trial—is

procedurally barred. It reasons that evidence other than the State’s direct admission

of gender discrimination would have enabled Bell’s counsel to adequately raise the

issue. (It cites, for example, the prosecutor’s personal notes—which again were not

available to defendants until after their convictions. It does not mention North

Carolina’s virtually impossible track record on such claims.) Even then, the majority

suggests that the State may have had cause to strike Ms. Morrow regardless. The

majority faults the defendants’ initial trial counsel for failing to object on gender

discrimination grounds in the face of the State’s many discriminatory statements—

39a

but it does not explain why such apparently incompetent lawyering fails to qualify

the defendants for the “good cause” exception to the procedural bar. N.C.G.S. § 15A1419(a)(3), (b)(1) (2023). It even shames defense counsel for what it perceives to be

that side’s practices of gender discrimination, ignoring the Supreme Court’s

admonition that “[d]iscrimination against one defendant or juror on account of

[gender] is not remedied or cured by discrimination against other defendants or jurors

on account of [gender].” Flowers, 139 S. Ct. at 2242.

The majority’s opinion thus makes explicit what the thrust of this Court’s

jurisprudence has conveyed for some years: Batson and J.E.B. relief is effectively

unavailable on appeal and violations of the constitutional right first recognized in

Strauder cannot be vindicated if not remedied by the trial court during jury selection.

The majority implies that the evidence at trial, including remarks by a

different prosecutor than Mr. Butler made days before and after Ms. Morrow was

struck, was sufficient to make out a J.E.B. claim had Bell’s counsel only objected

when Ms. Morrow was struck or argued it on direct appeal. But this Court in

Campbell, 384 N.C. 126, effectively heightened what is required for a prima facie

showing. Had the trial court rejected that hypothetical J.E.B. objection, as it did for

the Batson objections, Bell would unlikely have been able to reverse that decision on

appeal, because this Court has narrowed its review to the circumstances known to

the trial court at the time of the objection based on the cold record “giving appropriate

deference to the trial court’s determination.” Id. at 136. Moreover, on direct appeal

40a

Bell’s counsel did raise and litigate a Batson challenge, mistakenly guessing that Ms.

Morrow was struck because she was Black, not because she was a woman, since

prosecutors had exercised peremptory challenges to exclude nine out of the eleven

African American prospective jurors who expressed a willingness to impose the death

penalty. But our Court rejected that Batson challenge in the face of similar evidence

the majority cites here, again deferring to the trial court’s decision that the State had

offered nondiscriminatory justifications for the strikes. State v. Bell, 359 N.C. 1, 12–

16 (2004). The majority offers scant reason to think a J.E.B. objection at trial or raised

on appeal would have fared better.

Not having objected at trial, Bell could have tried to raise the gender

discrimination issue on appeal anyway, without the admission from the affidavit or

the jury questionnaire notes. But an appellate court would have applied plain error

review under this Court’s precedent in Maness, 363 N.C. at 273. And this Court

seemingly toughened the plain error standard in State v. Reber, 386 N.C. 153 (2024),

by requiring a defendant to prove both that “the jury probably would have returned

a different verdict” and that “the error is an exceptional case.” Id. at 158 (cleaned up).

Moreover, Maness made clear that Rule 2 of the North Carolina Rules of Appellate

Procedure is not available to criminal defendants claiming gender discrimination,

because a “defendant’s claim of gender bias in the State’s peremptory challenge of

prospective juror [Morrow] is not an exceptional circumstance calling for invocation

of Rule 2.” 363 N.C. at 274.

41a

That leaves the defendants with only the possibility of post-conviction relief.

Mr. Butler’s affidavit admitting his improper motives is “new evidence” that could

not have been obtained by reasonable diligence. After all, evidence from a prosecutor’s

personal notes during voir dire is commonly unavailable until the prosecution’s trial

file is turned over during post-conviction proceedings yet can still give rise to a

successful Batson or J.E.B. challenge. See Foster v. Chatman, 578 U.S. 488, 493, 504

(2016). And we held in State v. Jackson, 322 N.C. 251 (1988), that a defendant who

brings a Batson challenge has no right to examine the prosecuting attorney as to their

true motives in a separate hearing. Id. at 258. But in Tucker, this Court ascribed near

superhuman quality to an indigent, incarcerated criminal defendant’s capacity to

discover such information with “reasonable diligence in time to present the claim”

under N.C.G.S. § 15A-1419(c). Tucker, 385 N.C. at 502, 506 (suggesting that the

defendant’s appointed counsel could have petitioned the court for funds to selfproduce an academic study, originally authored by two full-time academics including

one who holds a doctorate and later dismissed by this Court as “unreliable and fatally

flawed”).

Even if this evidence were not “new,” a defendant is still eligible for postconviction relief by showing good cause and actual prejudice. N.C.G.S. § 15A1419(b)(1). Yet Tucker also suggested that the “actual prejudice” standard simply

boils down to an inquiry as to whether the trial court would have made a different

decision at step one of a Batson determination in light of the new information. Id. at

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510. It is unclear that this Court would even consider this new evidence of the

prosecutor’s motive at step one, because it declined to do exactly that in Tucker by

ignoring the prosecutor’s Batson “cheat sheet.” See id. (concluding that a document

suggesting pretext by the State in striking jurors was not probative at step one,

because “the prosecutor’s reasons justifying the peremptory strikes and whether they

show pretext and purposeful discrimination” are step two and three inquiries).

So while the majority makes great efforts to pin the outcome of this case on

procedural bars, reading in a general preservation requirement to N.C.G.S. § 15A1419 and shifting responsibility to defense counsel, that reasoning itself is

unnecessary to the outcome. This Court’s existing jurisprudence forecloses the relief

defendants seek. Thus discriminatory behavior by the State faces no consequence of

any kind, even in this most extraordinary of cases with direct evidence of intentional

gender discrimination. Instead our jurisprudential shell game transmogrifies

constitutional protections into a mirage.3

III.

Batson’s Deficiencies and Remedial Challenges

Understanding our jurisprudence in this way reinforces the underlying truth:

Batson and J.E.B.’s three-step test and its corresponding remedial scheme is

3 While professing to abhor the “reprehensible and insidious nature of discrimination

in the jury selection process,” the majority goes on to ratify a jurisprudence this Court alone

is responsible for and case law which this Court fully has the power to change, case law that

makes it nearly impossible to address that discrimination. See majority supra Part V. That

jurisprudence is contrary to Supreme Court precedent, and no amount of hypocritical empty

words can hide the fact that the majority abandons its responsibility to enforce constitutional

guarantees of equal justice under the law.

43a

fundamentally flawed. Even though Batson’s driving principles are integral to our

constitutional order, the current doctrine frustrates rather than vindicates them.

Scholars and jurists have long identified the problems of creating a “legal test

that will objectively measure the inherently subjective reasons that underlie use of a

peremptory challenge.” Miller-El II, 545 U.S. at 267 (Breyer, J., concurring). Start at

step one. The prima facie showing is “not intended to be a high hurdle” or create an

onerous burden. State v. Waring, 364 N.C. 443, 478 (2010) (cleaned up). It instead

serves as a rough winnowing mechanism, quickly separating frivolous claims from

meritorious ones. See Bennett, 374 N.C. at 598 (noting that a claimant satisfies

Batson’s first step “so long as the sum of the proffered facts gives rise to an inference

of discriminatory purpose” (cleaned up)). But in many cases, Batson’s first step is the

final one. According to some scholars, that is because courts use it as a “gatekeeping

tool.” See Emily Coward, Policing Jury Discrimination in North Carolina: What’s

Happening and What’s at Stake?, Wilson Ctr. for Sci. and Just. at Duke U. Sch. of L.

1, 7 (2023), https://wcsj.law.duke.edu/wp-content/uploads/2023/06/Policing-JurorDiscrimination-in-North-Carolina-June-15-2023.pdf (last visited Mar. 18, 2025). If a

court determines that a claimant did not establish a prima facie case of

discrimination, the inquiry ends there. There is no need to consider the prosecution’s

reasons for the strike or whether those justifications are pretextual. For that reason,

Batson’s first step has become an exit ramp, allowing courts to nip an objection in the

bud and “avoid[ ] parsing difficult evidence of racial discrimination.” Id.

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Batson’s second step fares little better. To prevail, a prosecutor need only offer

a neutral reason for his strike, not a “persuasive, or even plausible” one. See Purkett

v. Elem, 514 U.S. 765, 768 (1995) (per curiam). Random observations that “the

mustaches and the beards look suspicious” suffice. Id. at 766. And justifications that

a juror participates in a Black Lives Matter event are a race-neutral explanation.

Campbell, 384 N.C. at 130, 136.

At step three, focus shifts to the trial judge. To resolve a Batson objection,

judges must weigh evidence of discrimination against the prosecutor’s explanation.

But that, too, presents difficulties. In sustaining a Batson claim, a judge must

effectively brand an attorney as both a bigot and a liar: A bigot for discriminating

against prospective jurors, and a liar for trying to cover it up. See Robin Charlow,

Tolerating Deception and Discrimination After Batson, 50 Stan. L. Rev. 9, 11 (1997)

(noting that one judge “had the uncomfortable feeling that she had just rendered an

official ruling that the attorney was lying to the court”). The requirement places

judges in an understandably “awkward” position—especially when many attorneys

are repeat players in their courtrooms. See Miller-El II, 545 U.S. at 267 (Breyer, J.,

concurring). This Court recognized those tempestuous “interpersonal dynamics” in

Clegg, noting that “a trial judge may feel understandably or unconsciously hesitant

to imply that a prosecutor engaged in racial discrimination while that prosecutor is

standing right in front of her.” 380 N.C. at 144 n.1.

Notice, too, that these three steps make little space for addressing unconscious

45a

bias and discrimination, such as assumptions that a female juror is insufficiently

“strong,” or observations “that a prospective black juror is ‘sullen,’ or ‘distant.’ ”

Batson, 476 U. S. at 106 (Marshall, J., concurring); see also Antony Page, Batson’s

Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev.

155, 161 (2005) (noting that “subtle forms of bias are automatic, unconscious, and

unintentional” and “escape notice, even the notice of those enacting the bias” (cleaned

up)).

Batson’s remedies pose yet another challenge. Batson itself dedicated a single

footnote to this all-important question. See Batson, 476 U.S. at 99 n.24. And the

Court’s scant discussion focused solely on in-trial Batson remedies. Id. That is, what

trial judges should do if they identify a Batson violation when it happens. If a judge

finds that a prosecutor discriminated against jurors, she may “disallow the

discriminatory challenges and resume selection with the improperly challenged

jurors reinstated on the venire,” or she may “discharge the venire and select a new

jury from a panel not previously associated with the case.” Id. This Court has

endorsed the latter approach where the sitting jury was aware of the improper strike.

See McCollum, 334 N.C. at 235–36.

The remedy on appeal presents a more difficult question. When a case reaches

us, the jury was already impaneled, the trial already held, and the verdict already

delivered. An appellate court has comparatively few vehicles for relief. We can

remand a case for reconsideration of the Batson claim, e.g., Hobbs, 374 N.C. at 360

46a

(remanding Batson claim to the trial court), or we can reverse the defendant’s

conviction and order a new trial, e.g., Clegg, 380 N.C. at 162; Bennett, 374 N.C. at

602. Sometimes the relief is hollow because the defendant has already completed

their sentence. See Clegg, 380 N.C. at 164 (Earls, J., concurring). And sometimes,

where the crime is horrific and the evidence overwhelming, it may be too difficult for

a court to stomach ordering a new trial.4

Accordingly, courts have taken a variety of approaches to enforcing Batson and

J.E.B. Some courts reverse and automatically order a new trial for Batson violations,

see, e.g., People v. Yarbrough, 999 N.W.2d 372, 380–81 (Mich. 2023), while others

employ a prejudicial error standard, see, e.g., Winston v. Boatwright, 649 F.3d 618,

632 (7th Cir. 2011) (“Prejudice, in other words, is automatically present when the

selection of a petit jury has been infected with a violation of Batson or J.E.B.”); Davis

v. Sec’y for the Dep’t of Corr., 341 F.3d 1310, 1317 (11th Cir. 2003) (holding that an

appellant may demonstrate prejudice by showing a “reasonable probability” that a

Batson challenge would have prevailed on appeal had trial counsel preserved it).

But these appellate remedies are effectively unavailable in this state. Too often

we fail to make right the constitutional harm. Yet everything Batson said about the

4 E.g., John C. Jeffries Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.

J. 87, 90 (1999) (theorizing that a remedial pivot from damages to injunctive relief could

“facilitate[ ] constitutional change by reducing the costs of innovation” and “shift[ing]

constitutional adjudication from reparation toward reform”); Richard Fallon, Jr., Bidding

Farewell to Constitutional Torts, 107 Cal. L. Rev. 933, 938 (2019) (discussing how remedies

impact courts’ interpretation of Fourth Amendment “reasonableness” and their willingness

to enforce it).

47a

evils of jury discrimination remains true. Discriminatory jury strikes deny

defendants their right to an impartial jury of their peers, dilute the quality and

fairness of jury verdicts, and strip excluded jurors of their dignity and equality as

citizens in a democratic society. 5 See Clegg, 380 N.C. at 169 (Earls, J., concurring).

IV.

Other Paths Forward

The importance of fair jury selection places a duty on this Court. “If we are to

give more than lip service to the principle of equal justice under the law,” we must

“take reasonable steps to address” Batson’s obstacles. Id. at 173, 170. We “have

considerable discretion in structuring [our state’s] jury-selection processes” under

Batson and J.E.B. Jason Mazzone, Batson Remedies, 97 Iowa L. Rev. 1613, 1614

(2012). We must use the arsenal of tools at our disposal. Clegg, 380 N.C. at 173.

Other state courts have recognized Batson’s shortcomings and acted to remedy

them. Washington’s Supreme Court, for instance, has retooled Batson’s standard,

recognizing that the existing framework “fail[ed] to adequately address the pervasive

problem of race discrimination in[ ]jury selection.” State v. Jefferson, 429 P.3d 467,

481 (Wash. 2018). The court placed particular weight on Batson’s inability to reach

implicit bias. See id. at 480–81. As it explained in past cases, “Batson recognizes only

5 Studies show that more diverse juries dig deeper into the evidence, deliberate longer,

and consider more perspectives and viewpoints in reaching a verdict. See Nancy S. Marder,

Juries, Justice, and Multiculturalism, 75 S. Cal. L. Rev. 659, 687–98 (2001); Samuel R.

Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of

Racial Composition on Jury Deliberations, 90 J. Person. & Soc. Psych. 597, 603–06 (2006);

Erin York Cornwell & Valerie P. Hans, Representation Through Participation: A Multilevel

Analysis of Jury Deliberations, 45 Law & Soc’y Rev. 667, 668–69 (2011).

48a

‘purposeful discrimination,’ whereas racism is often unintentional, institutional, or

unconscious.” State v. Saintcalle, 309 P.3d 326, 329 (Wash. 2013). To bridge that gap,

the court swapped Batson’s subjective standard with an objective one. See Jefferson,

429 P.3d at 480. In 2018, it adopted a rule which, among other things, eliminated

Batson’s first step, instead requiring trial courts to consider baseline criteria. See

Wash. R. Gen. Application R. 37. The rule identifies a set of facially neutral reasons

for striking that are “presumptively invalid” because of their racist and sexist

undertones. Id. Early evidence suggests that the rule lessened the frequency of

discriminatory peremptory strikes and more often afforded a remedy. See Annie

Sloan, Note, “What to do about Batson?”: Using a Court Rule to Address Implicit Bias

in Jury Selection, 108 Calif. L. Rev. 233, 257 (2020); Nancy S. Marder, Race,

Peremptory Challenges, and State Courts: A Blueprint for Change, 98 Chi.-Kent L.

Rev. 67, 86–91 (2024) (observing an impact in nine of twenty-nine relevant cases).

Arizona has gone even further. Just four years ago, the state’s Supreme Court

eliminated peremptory challenges in both civil and criminal trials. See Order

Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of

the Rules of Civil Procedure, Ariz. Sup. Ct. No. R-21-0020 (Aug. 30, 2021).6

6 Some scholars have advocated for the elimination of peremptory strikes for the State

only. See, e.g., Anna Roberts, Asymmetry as Fairness: Reversing a Peremptory Trend, 92

Wash. U. L. Rev. 1503, 1506, 1514, 1523, 1549–50 (2015). At least one district attorney

abandoned the practice of using peremptory strikes in misdemeanor trials. Sheraz Sadiq,

Outgoing Multnomah County DA Changes Jury Selection for Misdemeanor Trials, OPB (July

24,

2024),

https://www.opb.org/article/2024/07/24/think-out-loud-outgoing-multnomahcounty-district-attorney-jury-selection-misdemeanor-trials.

49a

Other potential innovations include reimagining the traditional three-step

Batson framework and the remedy for a Batson violation. For example, courts might

require the striking party to actually rebut some of the evidence presented in the

prima facie case and narrow the voir dire remedy to immediately reseat an

improperly stricken juror without their knowledge that they were improperly

stricken to begin with. See Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s

Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative

Attorney, 96 Cornell L. Rev. 1075, 1110–11, 1121 (2011). Some scholars have

suggested moving the peremptory strike system to one of negotiation—allowing

peremptory strikes only on the consent of both parties. Caren Myers Morrison,

Negotiating Peremptory Challenges, 104 J. Crim. L. & Criminology 1, 42–44 (2014)

(proposing a procedure for negotiating peremptory challenges during voir dire). Other

scholars and courts have proposed expanding remedies for Batson violations to

include professional or ethical consequences. E.g., Darby Gibbins, Comment, Six

Trials & Twenty-Three Years Later: Curtis Flowers and the Need for a More Expansive

Batson Remedy, 59 Hous. L. Rev. 713, 737 (2022) (cataloging arguments for and

against this proposal); People v. Willis, 43 P.3d 130, 137 (Cal. 2002). New York’s

highest court has embraced forfeiture of an improperly-exercised peremptory

challenge after reseating the challenged juror as a permissible remedy. People v.

Luciano, 890 N.E.2d 214, 216–19 (N.Y. 2008).

Whatever the solution, the way forward requires courage. It requires rooting

50a

out discrimination that surfaces in whispers as well as when the quiet part is said

out loud. And it requires a commitment to the values Batson and J.E.B. strive to

protect but too often fall short of: fairness, dignity, and equal justice under law.

V.

Conclusion

Counsel for Bell’s co-defendant, Sims, at argument asked of this Court: “Is it

really the case that the court system is powerless to respond when the prosecutor

withholds material information about the basis of a peremptory strike and then years

later belatedly confesses that the strike was motivated by discriminatory intent?”7

Today this Court says yes.

I reluctantly concur in the result only because I cannot envision a scenario in

which Bell would have been able to obtain the relief he seeks under our existing

precedent. The majority’s opinion validates the longstanding concerns that Batson

and J.E.B. would become effectively “a right without a remedy.” Jackson, 322 N.C. at

260 (Frye, J., concurring). I do not believe our court system is so powerless, and I look

forward to a day when our Court has the courage to enforce such foundational

constitutional rights with an even hand.

Justice RIGGS joins in this concurring in the result only opinion.

Oral Argument at 22:00, State v. Sims (No. 297PA18) (Apr. 9, 2024),

https://www.youtube.com/watch?v=rXqfIETGr1U (last visited Mar. 18, 2025).

7

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APPENDIX B

52a

IN THE SUPREME COURT OF NORTH CAROLINA

No. 297PA18

Filed 21 March 2025

STATE OF NORTH CAROLINA

v.

ANTWAUN KYRAL SIMS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 260 N.C. App. 665 (2018), finding no error after an appeal

from an order entered on 21 March 2014 by Judge Jack W. Jenkins in Superior Court,

Onslow County. Heard in the Supreme Court on 9 April 2024.

Jeff Jackson, Attorney General, by Kimberly N. Callahan, Assistant Attorney

General, for the State.

Glenn Gerding, Appellate Defender, by David W. Andrews, Assistant Appellate

Defender, for defendant.

BERGER, Justice.

Defendant was sentenced to life in prison without parole for his actions in the

abduction and murder of Ms. Elleze Kennedy. Defendant was seventeen years old at

the time of the murder. In motions for appropriate relief filed with the sentencing

court, defendant made two primary arguments: (1) that gender bias in jury selection

pursuant to J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) entitles him to a new

trial; and (2) that his sentence of life in prison without parole runs counter to the

constitutional requirements set forth in Miller v. Alabama, 567 U.S. 460 (2012) and

53a

N.C.G.S. §§ 15A-1340.19A to -1340.19D. Defendant’s J.E.B. claim is procedurally

barred, and we affirm the Court of Appeals judgment holding that there was no error

in defendant’s sentence of life without parole.

I.

Factual and Procedural Background

Eighty-nine-year-old Elleze Kennedy was abducted from her driveway and

murdered by defendant and his co-defendants on 3 January 2000. At trial, the State’s

evidence tended to show that co-defendant Christopher Bell told Chad Williams and

defendant that he wanted to steal a vehicle and flee the state to avoid a pending

probation violation hearing. Defendant and Williams agreed to help Bell.

The three identified Ms. Kennedy as their target and followed her home, where

they confronted her with a BB gun and demanded that she turn over her car keys.

When Ms. Kennedy resisted, Bell hit her repeatedly in the face with the gun until she

was unconscious. Defendant drove Ms. Kennedy’s vehicle away after she was thrown

into the back seat of the car. She was later moved to the trunk of the vehicle.

Defendant and his co-defendants stopped to smoke marijuana and left Ms.

Kennedy in the trunk. While there, Williams said he was not going to travel out-ofstate in a stolen vehicle with Ms. Kennedy in the trunk. In response, Bell and

defendant left Williams at the house. They later returned and convinced Williams to

get back into the car by telling him that they had dropped Ms. Kennedy off at a

McDonalds. Before leaving the house, defendant obtained a rag and cleaned Ms.

Kennedy’s blood from the backseat of the vehicle.

54a

Williams thereafter discovered that Ms. Kennedy was still in the trunk of the

car, but he remained with the group. At defendant’s urging, the men drove the car

to a field, parked the car, and opened the trunk. Ms. Kennedy was moving around

and moaning in pain. Williams suggested they let her go, but Bell replied that Ms.

Kennedy had seen his face and he was going “to leave no witnesses.” Bell asked

defendant for his lighter so that he could burn his blood-covered jacket. Bell threw

the burning jacket into the backseat of the car while Ms. Kennedy was still alive in

the trunk.

The next morning, Bell asked defendant to go check to see if Ms. Kennedy was

dead, and Bell stated that if she was not, defendant should burn the rest of the car.

Defendant discovered that Ms. Kennedy was dead in the trunk of the car and that

the windows of the car were smoked.

In an attempt to cover up the evidence,

defendant and Bell wiped the car down intending to remove fingerprints and then

left the scene.

Police discovered the stolen car with Ms. Kennedy’s body in the trunk that

same morning. Among the evidence obtained at the crime scene were footprint

markings on the ground around the car, Bell’s burned jacket, the cloth defendant used

to wipe up Ms. Kennedy’s blood, latent fingerprints on the car, and hairs in the back

seat, which were matches to defendant and Bell. Upon searching Ms. Kennedy’s

residence, police discovered a puddle of blood in the driveway, a pair of eyeglasses, a

dental partial, a walking cane, and blood smear marks on the driveway consistent

55a

with dragging.

An autopsy report revealed that Ms. Kennedy suffered blunt force injuries to

her face, which resulted in facial fractures and loosened teeth. In addition, Ms.

Kennedy’s body had extensive bruising of her torso consistent with being kicked. The

extent of soot in Ms. Kennedy’s trachea and lungs led to the conclusion that she was

alive at the time that the car was burned but that she ultimately succumbed to carbon

monoxide poisoning.

Williams was questioned by police and confessed to his involvement and the

role of his co-defendants in Ms. Kennedy’s murder. Williams pleaded guilty to firstdegree murder, first-degree kidnapping, and assault with a deadly weapon inflicting

serious injury, and he agreed to testify against defendant and Bell at trial.

Defendant and Bell were arrested and subsequently indicted for first-degree

murder, first-degree kidnapping, assault with a deadly weapon inflicting serious

injury, and burning personal property. The State revealed its intent to seek the death

penalty against both defendant and Bell, and their matters were joined for trial. On

14 August 2001, an Onslow County jury found defendant and Bell guilty of firstdegree murder under the theories of felony murder and premeditated and deliberated

murder. Defendant was also convicted of first-degree kidnapping and burning of

personal property.

Following the capital sentencing hearing, defendant was sentenced to life in

prison without parole, followed by consecutive sentences totaling 108 to 139 months

56a

in prison. Bell was sentenced to death. Both defendant and Bell appealed their

convictions.

On 18 November 2003, the Court of Appeals held that there was no error in

defendant’s conviction and sentence and concluded that defendant received a fair trial

free of prejudicial error. State v. Sims, 161 N.C. App. 183, 196 (2003). This Court

upheld Bell’s convictions and death sentence on 7 October 2004. State v. Bell, 359

N.C. 1 (2004), cert. denied, 544 U.S. 1052 (2005).

On 8 April 2013, defendant filed a motion for appropriate relief in superior

court, arguing that his sentence of mandatory life imprisonment without parole as a

juvenile was unconstitutional under Miller, 567 U.S. 460.

On 2 July 2013,

defendant’s motion was granted, and a resentencing hearing was ordered pursuant

to this state’s Miller-fix statute.

See N.C.G.S. § 15A-1340.19B (2023).

On 20

February 2014, the resentencing hearing was held before the Honorable Jack W.

Jenkins, and the MAR court1 determined that defendant’s sentence of life without

parole was to remain in place.

On 9 September 2016, defendant filed a petition for writ of certiorari with the

Court of Appeals seeking review of the MAR order. The Court of Appeals allowed

defendant’s petition and subsequently issued a published decision holding there was

no error. State v. Sims, 260 N.C. App. 665, 682-83 (2018). Specifically, the Court of

Appeals determined that the sentencing court did not abuse its discretion in weighing

1 The MAR court is hereinafter referred to as the sentencing court as appropriate.

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the Miller factors and resentencing defendant to life without parole. Id. at 682.

On 11 September 2018, defendant filed with this Court a notice of appeal based

upon a constitutional question and a petition for discretionary review.

On 7

December 2018, this Court dismissed defendant’s notice of appeal based upon a

constitutional question but allowed the petition for discretionary review to address

whether the Court of Appeals erred in upholding defendant’s life without parole

sentence under Miller.

In addition, on 8 October 2019, while the appeal was pending before this Court,

defendant filed another motion for appropriate relief, asserting for the first time a

claim of gender-discrimination during jury selection under J.E.B., 511 U.S. 127.

Consequently, this Court entered an order remanding the case to the Superior Court,

Onslow County, for an evidentiary hearing. This Court also remanded co-defendant

Bell’s case to the Superior Court, Onslow County, for a joint evidentiary hearing with

defendant.

On 25 January 2022, the superior court issued an order finding that the State’s

use of a peremptory strike for juror Viola Morrow violated J.E.B. We then ordered

supplemental briefing in both cases regarding the merits of their J.E.B. claims. We

address both issues below.

II.

Analysis

A. J.E.B. Claims

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Section 15A-1419 “provides a mandatory procedural bar for issues a party

seeks to litigate in post-conviction proceedings.” State v. Tucker, 385 N.C. 471, 484

(2023), cert. denied, 145 S. Ct. 196 (2024). The procedural bar precludes review when,

relevant here, “[u]pon 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.” N.C.G.S.

§ 15A-1419(a)(3) (2023). “[I]t is well settled that constitutional matters that are not

raised and passed upon at trial will not be reviewed for the first time on appeal[.]”

State v. Garcia, 358 N.C. 382, 420 (2004).

“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.’ ” Tucker, 385 N.C. at 485 (alterations in original) (quoting

N.C.G.S. § 15A-1419(b) (2021)).

“[G]ood cause” only exists 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

59a

time to present the claim on a previous State or federal

postconviction review.

N.C.G.S. § 15A-1419(c) (2023).

“[A] fundamental miscarriage of justice” under subsection (b)(2) is established

only when a defendant demonstrates by a preponderance of the evidence that “but for

the error, no reasonable fact finder would have found the defendant guilty of the

underlying offense”; or, when reviewing a death sentence, a defendant demonstrates

“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. § 15A1419(e) (2023).

Similar to his co-defendant in State v. Bell, No. 86A02-2 (N.C. Mar. 21, 2025),

defendant makes no argument that failure to consider his J.E.B. claim will result in

a fundamental miscarriage of justice.

Defendant instead argues that he was

“[u]ltimately . . . not in a position to assert a violation of J.E.B. in his direct appeal[.]”

Defendant acknowledges in his brief to this Court that his J.E.B. argument was

neither raised at trial, nor argued on direct appeal, but he contends that because the

prosecutor’s affidavit2 was not released until well after the trial, he could not have

discovered it through reasonable diligence.

For the reasons stated in this Court’s opinion filed today in his co-defendant’s

matter, see State v. Bell, No. 86A02-2 (N.C. Mar. 21, 2025), and based upon a fair

2 For background information on this affidavit, see State v. Bell, No. 86A02-2 (N.C.

March 21, 2025).

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consideration of the record, defendant’s J.E.B. claim is procedurally barred pursuant

to N.C.G.S. § 15A-1419. See Tucker, 385 N.C. at 484-86.

B. Defendant’s LWOP Sentence

Defendant poses two challenges to the sentencing court’s 21 March 2014 order

affirming his sentence of life without parole.

First, defendant asserts that the

sentence violates the Eighth Amendment because defendant “showed that he was not

irreparably corrupt and that his role in Ms. Kennedy’s murder was the result of

transient immaturity.” Second, defendant contends that the Court of Appeals erred

when it determined that the sentencing court did not abuse its discretion when

considering mitigating evidence presented by defendant. Related thereto, defendant

also contends that this matter should be remanded to the Court of Appeals because

that court failed to apply relevant legal standards in rendering its opinion.

For each of his arguments, defendant essentially asks this Court to reweigh

evidence, and for the reasons discussed below, we affirm defendant’s sentence of life

in prison without parole.

1. Constitutional Principles

“Absent specific authority, it is not the role of an appellate court to substitute

its judgment for that of the sentencing court as to the appropriateness of a particular

sentence; rather, in applying the Eighth Amendment the appellate court decides only

whether the sentence . . . is within constitutional limits.” State v. Ysaguire, 309 N.C.

780, 786 (1983) (quoting Solem v. Helm, 463 U.S. 277, 290 n.16 (1983)). Moreover,

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“[i]n non-capital cases we do not, and are not required to, conduct factual comparisons

of different cases to determine whether a given sentence is constitutional.” Id. at 786

n.3.

The Eighth Amendment guarantees the right to be free from “cruel and

unusual punishments.” U.S. Const. amend. VIII. The Supreme Court of the United

States has opined that this right “flows from the basic precept of justice that

punishment for crime should be graduated and proportioned to both the offender and

the offense.” Miller, 567 U.S. at 469 (cleaned up). Because of the inherent differences

between juveniles and adults, “children are constitutionally different from adults for

purposes of sentencing.” Id. at 471. But see State v. Tirado, No. 267PA21 (N.C. Jan.

31, 2025) (holding that Article I, Section 27 of our state constitution does not provide

juveniles with the more robust sentencing protections the Supreme Court of the

United States has developed in its Eighth Amendment jurisprudence and is to be

read consistent with the Eighth Amendment).

In 2012, the Supreme Court of the United States struck down sentencing

schemes which imposed mandatory sentences of life without parole for juveniles

without first allowing a sentencing court to consider the “mitigating qualities of

youth.” Miller, 567 U.S. at 476 (cleaned up). According to Miller, a sentencing court

must “take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.” Id. at 480. This requires

a sentencing court to consider each individual defendant and “take into account the

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differences among defendants and [their] crimes.” Id. at 480 n.8. Foundationally,

Miller permits sentences of life without parole for juvenile murderers provided the

sentencing court (1) considers a defendant’s youth in mitigation, and (2) has

discretion to impose a punishment other than life without parole. See id.

The Supreme Court subsequently clarified that Miller does not create an

outright ban on juvenile life-without-parole sentences, but it does prohibit such

sentences “for all but the rarest of juvenile offenders, those whose crimes reflect

permanent incorrigibility.”

Montgomery v. Louisiana, 577 U.S. 190, 209 (2016)

(emphasis added). The Court also concluded that “a finding of fact regarding a child’s

incorrigibility . . . is not required.” Id. at 211.

The Supreme Court recently reiterated that all a sentencing court must do to

comply with the Eighth Amendment is “follow a certain process—considering an

offender’s youth and attendant characteristics—before imposing” a particular

penalty. Jones v. Mississippi, 141 S. Ct. 1307, 1311 (2021) (quoting Miller, 567 U.S.

at 483). See also United States v. Holt, 116 F.4th 599, 607 (6th Cir. 2024) (“If

sentencing courts consider a juvenile defendant’s youth as one factor in the

sentencing calculus, Miller does not prohibit the court from imposing a life sentence

as a ‘discretionary’ matter.”); Helm v. Thornell, 112 F.4th 674, 683 (9th Cir. 2024) (a

sentencing hearing “where youth and its attendant characteristics are considered as

sentencing factors enforces the Eighth Amendment’s substantive limits.” (cleaned

up)); Bell v. Uribe, 748 F.3d 857, 870 (9th Cir. 2014) (“[b]ecause the sentencing judge

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[] consider[ed] both mitigating and aggravating factors under a sentencing scheme

that affords discretion and leniency, there is no violation of Miller”); United States v.

Briones, 35 F.4th 1150, 1156 (9th Cir. 2021) (“Jones clarified that a discretionary

sentencing system . . . suffices to ensure individualized consideration of a defendant’s

youth.”); Jessup v. Shinn, 31 F.4th 1262, 1266 (9th Cir. 2022) (“Miller requires, for a

juvenile offender, an individualized sentencing hearing during which the sentencing

judge assesses whether the juvenile defendant warrants a sentence of life with the

possibility of parole.”).

According to Jones, it is the adherence to the sentencing procedure enunciated

in Miller – consideration of the murderer’s age, “diminished culpability[,] and

heightened capacity for change,” id. at 1316 (cleaned up) – that “helps ensure that

life without parole sentences are imposed only in cases where that sentence is

appropriate[.]” Id. at 108–112. Thus, it is the discretionary sentencing protocol itself

that “help[s] make life without-parole sentences relatively rare for murderers under

18.” Id. at 112 (cleaned up).

To ensure juvenile sentences complied with evolving federal jurisprudence, the

legislature codified the Miller “factors” in N.C.G.S. § 15A-1340.19B. The Miller-fix

statute “gave trial courts the discretion to determine whether juvenile murderers

receive life without parole or the lesser sentence of life imprisonment with

parole . . . . In making this determination, the trial court must consider certain

enumerated mitigating factors along with any other mitigating factor or

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circumstance.” Tirado, slip op. at 4-5 (cleaned up).

Pursuant to the Miller-fix, when a juvenile has been convicted of first-degree

murder on the theory of premeditation and deliberation, the sentencing court must

conduct a sentencing hearing to determine whether a sentence of life without parole

is warranted. N.C.G.S. § 15A-1340.19B(a)(2). At this hearing,

[t]he defendant or the defendant’s counsel may submit

mitigating circumstances to the court, including, but not

limited to, the following factors:

(1) Age at the time of the offense.

(2) Immaturity.

(3) Ability to appreciate the risks and consequences of

the conduct.

(4) Intellectual capacity.

(5) Prior record.

(6) Mental health.

(7) Familial or peer pressure exerted upon the

defendant.

(8) Likelihood that the defendant would benefit from

rehabilitation in confinement.

(9) Any other mitigating factor or circumstance.

N.C.G.S. § 15A-1340.19B(c).

A sentencing court is required to “consider any

mitigating factors” presented, and its sentencing order “shall include findings on the

absence or presence of any mitigating factors and such other findings as the court

deems appropriate.” N.C.G.S. § 15A-1340.19C(a) (2023).

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This statutory scheme “facially conform[s] to the federal constitutional case

law,” State v. Conner, 381 N.C. 643, 666 (2022), because it “provide[s] sufficient

guidance to allow a sentencing judge to make a proper, non-arbitrary determination

of the sentence that should be imposed upon a juvenile.” State v. James, 371 N.C. 77,

95 (2018).

The statutory language provides no presumption in favor of either

potential sentence, but instead “treats the sentencing decision required by N.C.G.S.

§ 15A-1340.19C(a) as a choice between two equally appropriate sentencing

alternatives” consistent with Miller. Id. at 90.

In its resentencing order, the sentencing court made the following findings of

fact:3

1. The Court finds as the facts of the murder the facts as

stated in State v. Sims, 161 N.C. App. 183 (2003).

2. The Court finds that the murder in this case was a

brutal murder. The Court finds instructive the

trial/sentencing jury’s finding beyond a reasonable

doubt that the murder was “especially heinous,

atrocious, or cruel” pursuant to N.C.G.S. 15A2000(e)(9). According to the trial testimony from Dr.

Carl Barr, Ms. Kennedy had blunt force trauma all over

her body . . . . Soot had penetrated deep into her lungs,

meaning that she was alive when her car was set on fire

with her in it, and she therefore died from suffocation

from carbon monoxide poisoning.

3 Defendant did not challenge these findings of fact, and as such, they “are deemed to

be supported by competent evidence and are binding on appeal.” State v. Cobb, 381 N.C. 161,

164 (2022) (cleaned up); see also Cherry Cmty. Org. v. Sellars, 381 N.C. 239, 246 (2022)

(unchallenged findings are “presumed to be supported by competent evidence and are binding

on appeal” (cleaned up)).

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3. The Court finds that the defendant has not been a

model prisoner while in prison. His prison records

indicate that he has committed and been found

responsible for well over 20 infractions since he has

been in prison.

4. The Court finds that the defendant, although

expressing remorse during the hearing, has not

demonstrated remorse based on his actions and

statements. During a meeting with a prison

psychiatrist on January 20, 2009, the defendant

complained that he was in prison and should not be.

Further, the Court reviewed materials and heard

evidence that as a juvenile in Florida, the defendant

had been charged with armed robbery but denied any

culpability in the case. Also, this Court heard and

reviewed evidence that the defendant was removed

from Hobbton High School in September 1998 in large

part due to bad behavior. Specifically, the Court notes

that defendant was accused, along with two others, of

stealing from the boy’s locker room after school as part

of a group, but again denied doing anything wrong. The

school specifically found that Sims’ acts during this

theft were not due to his learning disabilities. This

Court notes in all three incidents, the Florida armed

robbery, the Hobbton high school theft, and the murder

of Ms. Kennedy, the defendant was with a group of

people, and in the light most favorable to him, was at a

minimum a criminally culpable member of the group

but was unwilling to admit any personal wrongdoing.

5. The Court finds that Dr. Tom Harbin testified that the

defendant knew right from wrong. Further, Dr. Harbin

testified that the defendant would have known that the

acts constituting the kidnapping [and the] murder were

clearly wrong.

6. The Court finds that Dr. Tom Harbin testified that the

defendant was a follower, and was easily influenced. Dr.

Harbin testified that the defendant may not see himself

as responsible for an act if he himself did not actually

perform the act even if he helped in the performance of

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the act. Further, Dr. Harbin testified that the defendant

has a harder time paying attention than others and a

harder time restraining himself than others. Dr. Harbin

testified that the defendant had poor social skills, very

poor judgment, would be easily distracted and would be

less focused than others. Further, the defendant has a

hard time interacting with others and finds it harder to

engage others and predict what others might do.

7. The Court finds that while this evidence was presented

by the defendant to try to mitigate his actions on the

night Ms. Kennedy was murdered, that this evidence

also demonstrates that the defendant is dangerous. Dr.

Harbin acknowledge[d] on cross-examination that all of

the mental health issues he identified in the defendant,

taken as a whole, could make him dangerous.

8. The Court finds that the defendant was an

instrumental part of Ms. Kennedy’s murder. She died

from carbon monoxide poisoning from inhaling carbon

monoxide while in the trunk of her car when her car was

set on fire. According to witness testimony at the trial,

the defendant provided the lighter that Chris Bell used

to light the jacket on fire that was thrown in Ms.

Kennedy’s car and eventually caused her death.

9. The Court finds that the evidence at trial clearly

demonstrated that the defendant did numerous things

to try to hide or destroy the evidence that would point

to the defendant’s guilt. The most obvious part is his

participation in killing Ms. Kennedy, the ultimate piece

of evidence against the defendants. Additionally, this

defendant was the one who drove the car to its isolated

last resting place in an attempt to hide it, even asking

his co-defendants if he had hidden it well enough.

Further, he personally went back to the car the morning

after the night it was set on fire to make sure Ms.

Kennedy was dead.

10. The Court finds that the physical evidence

demonstrated not only his guilt, but specifically

demonstrated the integral role the defendant played in

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Ms. Kennedy’s death. Fingerprints, DNA, and footwear

impressions at the scene where Ms. Kennedy was

burned alive in her car all matched the defendant. Most

notably, Ms. Kennedy died in the trunk of her car, and

the palmprint on the trunk of the car, the only print

found on the trunk, matched the defendant.

The sentencing court thereafter analyzed the Miller factors in light of the

underlying facts as directed by N.C.G.S. § 15A-1340.19B. The sentencing court

specifically addressed in its written order defendant’s age, immaturity, ability to

appreciate the risks of the conduct, intellectual capacity, prior record, mental health,

familial and peer pressure, likelihood defendant would benefit from rehabilitation in

confinement, and other mitigating factors and circumstances. Thus, the sentencing

court complied with Miller when it weighed factors attendant to defendant’s youth

and, appreciating the discretion available, sentenced defendant to life in prison

without parole.

Defendant contends, however, that his sentence violates the Eighth

Amendment because the evidence showed that his role in Ms. Kennedy’s murder

reflects transient immaturity and that he is “not one of the exceedingly rare juveniles

who are irreparably corrupt.” As stated above, however, it is the adherence to the

sentencing procedure enunciated in Miller that provides the individualized

consideration of a defendant’s age and attendant circumstances of youth, combined

with the nature of the crime, that will “make life-without-parole sentences relatively

rar[e] for murderers under 18.” Jones, 141 S. Ct. 1318 (cleaned up). Because N.C.G.S.

§ 15A-1340.19B complies with Miller and neither sentence is presumptive, a

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sentencing court is not required to apply an additional filter to ensure rarity of the

sentence. Again, it is the sentencing court’s exercise of discretion in light of the

nature of the crime that makes a sentence of life without parole relatively rare, thus

safeguarding Eighth Amendment concerns.

We also note that, contrary to the assertions in the concurrence at the Court of

Appeals, the inquiry is not whether a defendant is permanently incorrigible or

irreparably corrupt; nor is it potential for redemption. See Sims, 260 N.C. App. at

683–84 (Stroud, J., concurring). The Supreme Court in Miller stated that life without

parole should be reserved for “the rare juvenile offender whose crime reflects

irreparable corruption.” Miller, 567 N.C. at 479-80 (cleaned up) (emphasis added).

Montgomery thereafter confirmed that Miller prohibited life without parole “for all

but the rarest of juvenile offenders, those whose crimes reflect permanent

incorrigibility.” Montgomery, 577 U.S. at 209 (emphasis added).

Just as the discretion invested in sentencing courts protects against what

could be considered overutilization of life without parole sentences, so too the Millerfix process puts the focus on the juvenile and his crimes by considering the mitigating

circumstances of youth. There is no separate requirement that a sentencing court

make a finding the murderer is permanently incorrigible or irreparably corrupt. We

know this because the Supreme Court explicitly stated such. See Jones, 141 S. Ct. at

1322 (“Miller and Montgomery …[squarely rejected the argument] that the sentencer

must make a finding of permanent incorrigibility….”).

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Thus, under Miller,

Montgomery, and Jones, the Eighth Amendment does not require a sentencing court

to make a separate finding that a juvenile is permanently incorrigible or irreparably

corrupt to impose a sentence of life in prison without parole. See id. at 1320 (“Miller

did not say a word about requiring some kind of particular sentencing explanation

with an implicit finding of permanent incorrigibility, as Montgomery later

confirmed.”). See also United States v. Holt, 116 F.4th 599, 608 (6th Cir. 2024) (In

Jones, “the Court disavowed [defendant’s] view that . . . an express incorrigibility

finding before imposing a life sentence” is required.); United States v. Briones, 35

F.4th 1150, 1157 (9th Cir. 2021) (“permanent incorrigibility is not an eligibility

criterion for juvenile LWOP” under Jones); Crespin v. Ryan, 56 F.4th 796, 799 (9th

Cir. 2023) (Jones specifically assessed “whether a sentencer must actively find a

juvenile permanently incorrigible before imposing an LWOP sentence. The Supreme

Court clarified that no fact-finding requirement exists[.]” (cleaned up)); Helm, 112

F.4th at 687 (Miller “does not require that a state court’s weighing of the mitigating

factors associated with youth be conducted in accordance with any particular

substantive criteria of incorrigibility.”).

Rather, a sentencing court must simply consider youth and its attendant

circumstances in light of the defendant’s crime. Miller requires no more. Judges do

not engage in predictive analytics or employ redemption anticipation algorithms to

gauge whether a defendant will remain incorrigible or corrupt into his seventies; nor

should we. To the contrary, sentencing courts must merely apply the straightforward

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language of our Miller-fix statute and exercise discretion in handing down an

appropriate sentence to comply with the Eighth Amendment and, by extension,

Article I, § 27 of our state constitution. See Tirado, slip op. at 42.

Defendant, however, specifically challenges the sentencing court’s Miller

findings as to his (1) immaturity, (2) ability to appreciate the risks, (3) likelihood of

benefitting from rehabilitation in confinement, (4) prior record, and (5) familial and

peer pressure, and to the sentencing court’s weighing of those factors. Further,

defendant argues that the sentencing court disregarded mitigating evidence and

improperly considered otherwise mitigating evidence in favor of a sentence of life

without parole. We review each challenged finding in turn.

A sentencing court must consider the Miller-fix factors “in determining

whether, based upon all the circumstances of the offense and the particular

circumstances of the defendant, the defendant should be sentenced to life

imprisonment with parole instead of life imprisonment without parole.” N.C.G.S. §

15A-1340.19C(a). In addition, a sentencing court is required to enter an order which

“include[s] findings on the absence or presence of any mitigating factors and such

other findings as the court deems appropriate.” N.C.G.S. § 15A-1340.19C(a). But,

our appellate courts will not reverse a discretionary sentence “merely because the

sentencer could have said more about mitigating circumstances.” Jones, 141 S. Ct.

1321.

72a

The Court of Appeals has properly stated that “[o]rders weighing the Miller

factors and sentencing juveniles are reviewed for abuse of discretion.”

State v.

Golphin, 292 N.C. App. 316, 322 (2024). See also State v. Antone, 240 N.C. App. 408,

410 (2015); State v. Hull, 236 N.C. App. 415, 421 (2014). Therefore, “[i]t is not the

role of an appellate court to substitute its judgment for that of the sentencing judge.”

State v. Lovette, 233 N.C. App. 706, 721 (2014).4

a. Immaturity

Defendant argues that the sentencing court disregarded mitigating evidence

presented by the forensic psychologist, Dr. Thomas Harbin, that defendant was no

more mature than an eight- or ten-year-old at the time of the murder. Additionally,

defendant contends that the sentencing court erred by weighing defendant’s

immaturity as an aggravating factor rather than a mitigating factor.

The sentencing court analyzed defendant’s immaturity under the Miller-fix

statute at the time of Ms. Kennedy’s murder and determined:

The Court does not find this factor to be a significant

mitigating factor in this case based on all the evidence

4 Historically, we have stated that “on sentencing decisions appellate courts do not

substitute their judgment for that of the trial court.” State v. Ysaguire, 309 N.C. 780, 786,

(1983). Thus, sentencing courts are afforded “wide latitude in determining the existence of

aggravating and mitigating factors, for it . . . observes the demeanor of the witnesses and

hears the testimony.” State v. Canty, 321 N.C. 520, 524 (1988); see also State v. Ahearn, 307

N.C. 584, 596 (1983). Similarly, we have concluded that the weight assigned to any particular

mitigating circumstance is solely the province of the sentencer. See State v. Jaynes, 342 N.C.

249, 285 (1995). Although these cases arose under the Fair Sentencing Act, we think this

deference to the sentencing court is particularly important in light of Miller’s insistence that

discretionary sentencing and consideration of factors attendant with youth are of paramount

importance. See Miller, 567 U.S. at 472 (emphasizing a juvenile defendant’s youth as a

“distinctive attribute[ ].”).

73a

presented. The Court notes that any juvenile by definition

is going to be immature, but that there was no evidence of

any specific immaturity that mitigates the defendant’s

conduct in this case.

Based upon Dr. Harbin’s testimony, the sentencing court found in

unchallenged finding of fact 6 that “defendant was a follower, and was easily

influenced”; that “defendant has a harder time paying attention than others and a

harder time restraining himself than others”; and that “defendant had poor social

skills, very poor judgment, [and] would be easily distracted.” These factors were the

basis for Dr. Harbin’s testimony regarding defendant’s immaturity. The sentencing

court obviously considered Dr. Harbin’s testimony regarding defendant’s immaturity

and made relevant findings.

That the sentencing court did not make a specific finding as to defendant’s

alleged maturity of an eight- or ten-year-old is immaterial, as the sentencing court

properly addressed evidence of immaturity, and it “need not make a finding as to

every fact which arises from the evidence.” See In re A.E.S.H., 380 N.C. at 693

(cleaned up). Moreover, simply because a sentencing court could have said more

about this mitigating circumstance is not grounds for a determination that the

sentence violated the Eighth Amendment. Jones, 141 S. Ct. at 1321.

Further, in unchallenged finding of fact 7, the sentencing court found that

“while this evidence was presented by the defendant to try to mitigate his actions . . .

th[e] evidence also demonstrate[d] that the defendant is dangerous.” (Emphasis

added). Defendant argues that this finding impermissibly construed his immaturity

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as an aggravating factor rather than a mitigating factor, in violation of the principle

that statutory mitigating factors, if found to exist, must be given mitigating value.

See State v. Jaynes, 342 N.C. 249, 285 (1995) (holding that if a sentencer determines

that “a statutory mitigating circumstance exists, [it] must give that circumstance

mitigating value.”). However, the use of the word “also” by the sentencing court in

this finding demonstrates that it acknowledged the existence of defendant’s

immaturity as a mitigating circumstance, but found that its weight, in light of the

other evidence presented, was of minimal significance, and defendant has not

demonstrated that the sentencing court abused its discretion. See Golphin, 292 N.C.

App. at 44-322 (“Orders weighing the Miller factors and sentencing juveniles are

reviewed for abuse of discretion.”); Lovette, 233 N.C. App. at 721 (“It is not the role of

an appellate court to substitute its judgment for that of the sentencing judge….”).

Because the weight afforded to a mitigating circumstance is within the sound

discretion of the sentencing court, defendant’s contention is without merit.

b. Ability to Appreciate the Risks

Defendant next argues that the sentencing court disregarded evidence

presented by Dr. Harbin that defendant was unable to appreciate the risks and

consequences of his conduct at the time of the murder. Further, defendant contends

that the sentencing court conflated a juvenile’s ability to differentiate between right

and wrong with the ability to appreciate the risks of certain conduct.

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The sentencing court made the following Miller finding as to the mitigating

nature of defendant’s ability to appreciate the risks of his conduct at the time of Ms.

Kennedy’s murder:

Dr. Harbin, the defendant’s psychologist, testified that in

spite of the defendant’s diagnoses and mental health

issues, the defendant would have known that the acts he

and his co-defendants committed while they stole Ms.

Kennedy’s car, kidnapped her, and ultimately murdered

her were wrong.

The sentencing court’s uncontested findings of fact 5, 6, and 9 related to this

Miller factor are binding on appeal and demonstrate that the sentencing court

considered the material portions of Dr. Harbin’s testimony and other evidence

regarding defendant’s ability to appreciate the risks associated with his conduct. The

sentencing court discussed and considered that even though Dr. Harbin testified that

defendant had poor judgment, defendant also understood right from wrong at the

time of Ms. Kennedy’s murder, and defendant understood that kidnapping,

assaulting, and murdering Ms. Kennedy was “clearly wrong.” Defendant’s role in the

murder and his attempts to conceal or destroy evidence thereafter are also indicative

of defendant’s ability to understand and appreciate the risks associated with his

conduct.

As with defendant’s argument concerning immaturity, the sentencing court

was not required to make a finding as to every fact which arose from the evidence.

See In re A.E.S.H., 380 N.C. at 693. Simply because a sentencing court could have

said more about a mitigating circumstance is not grounds for a determination that

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the sentence violated the Eighth Amendment. Jones, 141 S. Ct. at 1321. Because

there is no “formulaic checklist” or “magic-words requirement,” id., the sentencing

court properly considered the material portions of Dr. Harbin’s testimony concerning

defendant’s ability to appreciate the risks of his conduct at the time of the murder.

Therefore, defendant’s argument is without merit.

Further, we find defendant’s argument that the sentencing court improperly

conflated defendant’s knowledge of right and wrong with his ability to appreciate the

risks unpersuasive. In Miller, the Supreme Court stated that the ability to appreciate

the consequences of conduct involves the “calculation of the risk[s] [the conduct]

pose[s]” by a defendant at the time of the crime. Miller, 567 U.S. at 478. This is not

intended to be a formulaic determination, but rather a common sense view of the

evidence in light of the defendant’s specific circumstances.

In addition to its finding that defendant could differentiate between right and

wrong, the sentencing court found that defendant engaged in a plan to assist his codefendant in evading a probation violation hearing.

This included driving Ms.

Kennedy’s stolen car, throwing her in the trunk, lying to co-defendant Williams about

letting Ms. Kennedy go, cleaning Ms. Kennedy’s blood from the vehicle, providing Bell

the lighter to start the fire that killed Ms. Kennedy, and returning to the scene to

wipe down Ms. Kennedy’s vehicle in an attempt to avoid detection. See State v.

Roberts, 876 N.W.2d 863, 869 (Minn. 2016) (holding that the defendant “indicated an

awareness of the consequences of his behavior when,” among other things, he

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“dispos[ed] of evidence”); Cook v. State, 242 So.3d 865, 875 (Miss. Ct. App. 2017)

(“[Defendants’] efforts to cover their tracks suggested an awareness of the

consequences.”). Therefore, the sentencing court did not misapprehend the nature of

this mitigating circumstance, and we will not substitute our judgment for that of the

sentencing court. See Lovette, 233 N.C. App. at 721.

c. Likelihood that Defendant Would Benefit from Rehabilitation in

Confinement

Defendant next asserts that the sentencing court erroneously weighed his

ability to be rehabilitated in favor of a sentence of life without parole.

More

specifically, defendant argues that the sentencing court’s finding that though

“defendant has seemed to do somewhat better in prison,” the “rigid, structured

environment” of prison will serve him best, was improper.

At the resentencing hearing, defendant testified that over the course of his

thirteen years in prison, he had taken several character-education and vocational

courses, competed in sports competitions, worked several jobs, obtained his GED, and

had been moved down to medium custody. However, defendant also admitted that

he had received thirty-nine infractions while in prison for fighting, disobeying orders,

being in unauthorized locations, using profane language, possessing tobacco and

contraband, and tampering with locks.

Further, defendant also confirmed that

during his first ten years of prison, he refused to obtain his GED despite pleas from

multiple case managers, and that he told a psychiatrist that he did not believe he

should be in prison. Additionally, Dr. Harbin confirmed on cross-examination that

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defendant’s psychological issues could make him “a pretty dangerous person,” but

that “being in a very structured environment would . . . tend to lessen the symptoms

of [his] psychological problems.”

In light of unchallenged finding of fact 2 set forth above, the sentencing court

made the following Miller finding as to the mitigating nature of defendant’s potential

for rehabilitation while in confinement:

The defendant’s prison records demonstrate that the

defendant has been charged and found responsible for well

over 20 infractions while in prison. He consistently refused

many efforts to obtain substance abuse treatment. While

the defendant has in fact obtained his GED which the

Court finds is an important step towards rehabilitation,

the Court notes that the defendant during the first ten

years plus of his confinement often refused multiple case

managers pleas to obtain his G.E.D. According to prison

records submitted into evidence during the February 20,

2014 evidentiary hearing, the Court notes that during a

2009 meeting with a psychiatrist the defendant noted that

he was depressed in part because he was in prison and

should not be. The Court finds that throughout the

defendant’s life he did not adjust well to whatever

environment he was in. The Court finds that in recent

years, the defendant has seemed to do somewhat better in

prison, which includes being moved to medium custody.

Most importantly to this Court, the evidence demonstrates

that in prison, the defendant is in a rigid, structured

environment, which best serves to help him with his

mental health issues, and serves to protect the public from

the defendant, who on multiple occasions in non-structured

environments committed unlawful acts when in the

company of others.

The sentencing court clearly considered the mitigating evidence of defendant’s

slight improvements and weighed that evidence against defendant’s continual bad

79a

behavior, as well as his own expert’s testimony that defendant would benefit from the

structured environment that prison provides.

Because the weight afforded to a

mitigating circumstance is entirely for the sentencing court to determine, defendant’s

contention is without merit.

d. Prior Record

Defendant next argues that the sentencing court erred by considering two

incidents which did not constitute convictions on his criminal history. These two

prior incidents included (1) defendant being charged with an armed robbery offense

in Florida and (2) defendant being removed from a high school after being accused of

stealing from the boy’s locker room with two accomplices.

Again, defendant did not challenge finding of fact 4 related to his prior record.

It is therefore undisputed that defendant was charged with robbery in Florida and

that he was removed from Hobbton High School in 1998, at least in part because he

was accused of stealing, and the school determined the incident did not result from

any learning disability he may have had. The sentencing court further noted that

these two incidents were substantially similar to his actions related to the murder of

Ms. Kennedy because, in each incident, defendant was part of a group, was a

criminally culpable part of each group, and failed to acknowledge his wrongdoing.

Moreover, the sentencing court stated in a footnote that, in considering the

robbery, it was not specifically considering the charge or any punishment, but rather

80a

it focused on “defendant’s complete denial of any wrongdoing while involved in

criminal activity as part of a group.”

The Court then made its Miller finding as to defendant’s prior record:

The defendant’s formal criminal record as found on the

defendant’s prior record level worksheet was for possession

of drug paraphernalia. However, the Court notes that

because defendant was 17 ½, he had only been an adult for

criminal purposes in North Carolina courts for a short

period of time. The Court considers the defendant’s Armed

Robbery juvenile situation in Florida and the defendant’s

removal from high school for stealing as probative evidence

in this case, specifically because both occurrences occurred

when the defendant was with others, and the defendant

denied culpability in Ms. Kennedy’s murder and the other

two incidents. The Court does not find this to be a

compelling mitigating factor for the defendant.

Defendant argues that by considering the evidence of these two incidents, the

sentencing court went beyond the scope of the meaning of “prior record” under

N.C.G.S. § 15A-1340.19B(c)(5). However, as the Court of Appeals correctly observed,

“prior record” is not defined under N.C.G.S. § 15A-1340.19B. Sims, 260 N.C. App. at

677. Instead, defendant requests that this Court interpret “prior record” under the

statute at issue as it is defined under the Structured Sentencing Act. See N.C.G.S. §

15A-1340.14(a) (2023) (“The prior record level of a felony offender is determined by

calculating the sum of the points assigned to each of the offenders prior

convictions . . . .”).

Defendant’s preferred reading, however, ignores the obvious fact that it is the

rare juvenile who would have prior convictions under the Structured Sentencing Act

81a

given the presumption in favor of juvenile dispositions for delinquents. Moreover,

such a reading would lead to the illogical result of precluding consideration of any

delinquency adjudications under the Juvenile Code. See N.C.G.S. § 7B-2412 (2023)

(“An adjudication that a juvenile is delinquent . . . shall n[ot] be considered conviction

of any criminal offense . . . .”). This would defeat the purpose iterated in Miller that

a sentencing court should consider a juvenile’s “past criminal history.” Miller, 567

U.S. at 479. An increase or decrease in criminal conduct would certainly be relevant

to a sentencing court’s determination, and limiting “prior record” only to convictions

under the Structured Sentencing Act would not allow for the meaningful review of a

juvenile’s entire criminal history.

Moreover, the Miller-fix statute specifically allows a sentencing court to

consider any evidence “as to any matter that the court deems relevant to sentencing,

and any evidence which the court deems to have probative value may be received.”

N.C.G.S. § 15A-1340.19B(b). Thus, the intent of the legislature, in light of the

language in Miller, is to allow the sentencing court to obtain, to the extent possible,

a more complete picture of a defendant so that it can effectively exercise its broad

discretion in sentencing juvenile murderers.

Absent specific direction from the

legislature that a consideration of a juvenile’s “prior record” under N.C.G.S. § 15A1340.19B only concerns convictions under the Structured Sentencing Act, we decline

to read such a limitation into the statute.

82a

Further, even if the consideration of a juvenile’s “prior record” was limited to

convictions, the sentencing court here did not abuse its discretion in weighing this

factor. The sentencing court specifically stated that it was not “consider[ing] the

charge itself or the subsequent punishment itself as evidence against the defendant,”

but rather, that it found both the armed robbery offense and the high school theft

incident probative of defendant’s tendency to be involved in group criminal conduct

and then subsequently deny responsibility. Moreover, in its finding as to defendant’s

prior record, it noted that “defendant’s formal criminal record . . . was for possession

of drug paraphernalia”—not any other crime—which demonstrates that the

sentencing court did not weigh the two prior incidents as substantive evidence of

crimes. Rather, the sentencing court found that, in light of all the evidence presented,

defendant had a tendency to be involved in group criminal activity. We find no abuse

of discretion, and as discussed, the weight afforded to a mitigating factor lies within

the sound discretion of the sentencing court.

e. Familial and Peer Pressure

Finally, defendant contends that the sentencing court misapprehended the

peer pressure mitigating factor. Specifically, defendant argues that the sentencing

court erred by discounting the peer pressure factor on the basis that defendant was

not “threatened or coerced,” as peer pressure is more properly determined by

“whether a deliberate choice made by the defendant was influenced by his peers.”

83a

At defendant’s trial and the resentencing hearing, evidence was presented that

defendant was admonished by multiple family members and mentors that he should

stay away from co-defendant Bell. Specifically, defendant’s mom, sister, and his

manager from Hardee’s, Ms. Vickie Kurch, testified that they warned defendant to

stay away from Bell, but that defendant nonetheless continued to associate with him.

Further, other evidence presented at defendant’s trial demonstrated that he took

initiative to be involved in the plan to steal Ms. Kennedy’s vehicle and ultimately kill

her. Defendant told Bell that he was “down for whatever,” he provided Bell with the

lighter to start the fire in the car, and he personally attempted to clean up evidence

of his involvement in the crime. Additionally, defendant admitted at the resentencing

hearing that he personally had made “wrong choices” on the day Ms. Kennedy was

murdered. On the other hand, the only evidence presented that defendant may have

been susceptible to peer pressure was Dr. Harbin’s testimony that defendant was “a

follower” and thus could have been easily influenced.

Again, defendant did not challenge relevant findings of fact 6, 8, and 9, and

those findings are binding on appeal.

In its analysis under N.C.G.S. § 15A-1340.19B, the sentencing court made the

following Miller finding as to the familial and peer pressure defendant experienced

at the time of Ms. Kennedy’s murder:

A. The Court finds that there was no familial pressure

exerted on the defendant to commit this crime. In fact,

the opposite is true. Sophia Strickland, Sims’ mother,

testified both at the trial and at the February 20, 2014

84a

evidentiary hearing that she had warned Sims

repeatedly to stay away from the co-defendant[s] in this

case. Specifically, Ms. Strickland stated at the

evidentiary hearing that if Sims continued to hang out

with his co-defendants, something bad was going to

happen. Further, Sims’ sister, Tashia Strickland, also

told Sims that she did not like the co-defendants, that

the co-defendants were not welcome at her residence,

and that Sims should not hang out with them. Also,

Vicki K[u]rch, Sims’ Hardee’s manager, who tried to

help Sims when she could, sometimes gave Sims a free

ride to work, bought Sims a coat, and fed Sims’ younger

brother for free, warned Sims not to hang out with codefendants, one of whom had worked for her and she

knew well. The Court finds that the defendant refused

to listen to his family members’ warnings to stay away

from the co-defendants.

B. Peer Pressure. There was no evidence in this case that

Sims was threatened or coerced to do any of the things

he did during the kidnapping, assault, murder, and

burning of Ms. Kennedy’s car. At trial, co-defendant

Chad Williams stated that when Chris Bell first

brought up the idea of stealing the car, Sims stated “I’m

down for whatever.” The only evidence that may fit in

this category is Dr. Harbin’s testimony that the

defendant could be easily influenced. Nevertheless, the

defendant made a choice to be with his co-defendants

during Ms. Kennedy’s murder, and actively

participated in it. The evidence demonstrated that the

defendant was apparently only easily influenced by his

friends, but not his family who consistently told him to

avoid the co-defendants. This demonstrates that the

defendant made choices as to whom he would listen.

Based upon the record here, there was substantial evidence presented that

defendant made deliberate decisions to be involved in this criminal activity. While

taking into account Dr. Harbin’s testimony that defendant was easily influenced, the

sentencing court assigned little weight to this evidence, finding that “defendant was

85a

apparently only easily influenced by his friends, but not his family who consistently

told him to avoid the co-defendants.”

Further, defendant’s argument that the sentencing court misapprehended the

meaning of “peer pressure” by discussing the lack of threats or coercion is

unpersuasive, as it fails to take the entirety of the sentencing court’s finding into

account.

The sentencing court’s Miller finding discussed the evidence that was

presented in detail, noting the absence of any threats or coercion, but more

importantly, that defendant made individual and deliberate choices to participate in

the crimes. Thus, the sentencing court did not abuse its discretion.

C. Court of Appeals’ Application of the Proper Standards

Defendant argues that the Court of Appeals erred by applying an abuse of

discretion standard to the sentencing court’s resentencing order, rather than

engaging in a “meaningful analysis” of whether the sentencing court’s findings

supported the conclusion that defendant is irreparably corrupt.

However, as

discussed herein, defendant’s argument is contrary to authority and is without merit.

A sentence of life without the possibility of parole for juveniles is allowed and

the standard of review to be applied by our appellate courts is an abuse of discretion.

Our sentencing courts stand in the best position to determine whether a specific

defendant should be sentenced to life without the possibility of parole.

Miller

discusses the “rarity” of juvenile life without parole sentences, but it does not advise

against applying an abuse of discretion standard. See People v. Skinner, 502 Mich.

86a

89, 137 (2018) (“All crimes have a maximum possible penalty, and when trial judges

have discretion to impose a sentence, the imposition of the maximum possible penalty

for any crime is presumably ‘uncommon’ or ‘rare.’ ”).

Defendant’s contention is

without merit.

III.

Conclusion

“It is a great tragedy when a juvenile commits murder—

most of all for the innocent victims. But also for the

murderer, whose life has gone so wrong so early. And for

society as well, which has lost one or more of its members

to deliberate violence, and must harshly punish another.”

Miller, 567 U.S. at 501 (Roberts, C.J., dissenting). The Miller-fix sentencing scheme

satisfies federal and state constitutional concerns by requiring that sentencing courts

consider a defendant’s youth in mitigation and conferring discretion upon those

courts to impose a punishment other than life without parole. Because it is not the

role of the appellate courts to reweigh evidence on sentencing, we will generally defer

to the sentencing courts on review, and the decision of the Court of Appeals is

affirmed.

In addition, for reasons consistent with this Court’s decision in Bell,

defendant’s J.E.B. claim is procedurally barred, and we affirm defendant’s sentence

of life in prison without parole.

AFFIRMED.

87a

Justice EARLS concurring in the result only.

I concur in the result only. As to the J.E.B. issue, I concur in the result only for

the reasons set out in my concurring in the result only opinion in State v. Bell, No.

86A02-2 (N.C. Mar. 21, 2025). See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

As to the Miller resentencing issue, I concur in the result only for the reasons set

forth in the Court of Appeals opinion below, State v. Sims, 260 N.C. App. 665 (2018).

See Miller v. Alabama, 567 U.S. 460 (2012).

I write separately to respond to two profound errors in the majority’s analysis

of Miller’s sentencing requirements. First, the majority signals a shift in the Miller

sentencing hearing inquiry away from the circumstances of the offender and his

offense in favor of his offense only. That shift is inconsistent with state statutes, our

precedent, and precedent of the United States Supreme Court. Second, the majority’s

opinion commits a perverse logical fallacy by engaging in the exact type of predictive

analytics it purports to reject, threatening to mislead sentencing judges as to what is

expected of them under our Constitutions.1

As to the first point, the majority distills the Miller sentencing inquiry to a

singular focus on the facts of the crime. It does this implicitly in how it structures its

opinion. It reiterates over ten paragraphs the sentencing court’s findings of fact on

the details of Sims’s atrocious acts. It then devotes two sentences to its observation

1 In State v. Borlase, No. 33A24 (N.C. Mar. 21, 2025) (Earls, J., dissenting), I address

the majority’s other errors related to its new standard of review and its break from Eighth

Amendment jurisprudence and our precedent.

88a

that the sentencing court made the required findings and conclusions, before it

concludes that the court complied with the Eighth Amendment’s requirements. (This

is not because the trial court provided scarce reasoning. Quite the opposite. Its order

carefully explained what evidence was presented, how the hearing proceeded, what

evidence it thought was credible, and why the evidence was or was not mitigating,

and spent three pages analyzing N.C.G.S. § 15A-1340.19B’s requirements.) The

majority also shifts the focus explicitly. In its words, “[A] sentencing court must

simply consider youth and its attendant circumstances in light of the defendant’s

crime.”

This myopic focus on the facts of the crime violates Miller. That case instructed

that the Eighth Amendment provides substantive protections that make juvenile

sentences of life without parole rare in light of the totality of the circumstances of the

offense and the offender. We confirmed in State v. James, 371 N.C. 77 (2018), that

the statutory scheme that implements Miller’s mandate was facially constitutional

only because it was designed to have a sentencer analyze “all of the relevant facts and

circumstances in light of the substantive standard enunciated in Miller” to decide the

appropriate sentence “based upon all the circumstances of the offense and the

particular circumstances of the defendant.” Id. at 89 (first emphasis added). The

offense and the offender are the hearing’s subject. Analyzing both is how a sentencer

has discretion.

Miller is no substantive requirement at all, however, if the offender’s crime is

89a

all that matters. In North Carolina, by the time a juvenile is even eligible for life

without the possibility of parole, the juvenile must have been convicted of killing

another person intentionally and in the first degree. See Graham v. Florida, 560 U.S.

48, 82 (2010) (forbidding under the Eighth Amendment juvenile sentences of life

without parole for nonhomicide offenses); N.C.G.S. § 15A-1340.19B(a)(1) (2023)

(excluding juveniles convicted of first-degree murder under a felony murder theory

from life without the possibility of parole sentences). Every juvenile convicted of

intentionally killing another person has by definition committed a heinous crime. It

eliminates the exercise of discretion, then, to make the sentencing decision entirely

dependent on whether the crime was heinous. Thus the majority’s overt focus on the

nature of the crime “in light of” the defendant’s youth effectively revives the

mandatory sentencing approach that Miller rejected. And the majority oversteps its

appropriate role as a state’s highest court by effectively overturning that Supreme

Court precedent.2

Second, the majority asserts without a hint of irony that “[j]udges do not

engage in predictive analytics or employ redemption anticipation algorithms to gauge

whether a defendant will remain incorrigible or corrupt into his seventies; nor should

2 The majority’s reasoning is wrong to suggest that Jones v. Mississippi, 141 S. Ct.

1307 (2021), blessed this overt focus on the juvenile’s crimes. Rather Jones embraced Miller’s

core holding and observed that “life-without-parole sentences [would be] ‘relatively rar[e]’ for

murderers under 18.” 141 S. Ct. at 1318 (second alteration in original) (quoting Miller v.

Alabama, 567 U.S. 460, 484 (2012)). Again, those eligible for this sentence are only those who

committed murders while under the age of eighteen. It is among that pool—“murderers under

18”—for whom the sentence will be rare. See id.

90a

we.” But imposing on a juvenile a sentence of life without the possibility of parole is

exactly such an exercise in “predictive analytics.” In so doing, a sentencer predicts

that a teenage defendant, who may live far longer within a prison’s walls than they

ever lived without, will never change. It is a prediction that “in 25 years, in 35 years,

in 55 years—when the defendant may be in his seventies or eighties”—he will remain

as dangerous as he was when he was a teenager, so that even the possibility of parole

is futile and should be denied to him. Sims, 260 N.C. App. at 683 (Stroud, J.,

concurring in the result only). Science and common sense support that most people

are not permanently frozen with the characteristics they exhibited as a teenager. See

Miller, 567 U.S. at 471; Jones v. Mississippi, 141 S. Ct. 1307, 1340–41 (2021)

(Sotomayor, J., dissenting). But a sentence of life without the possibility of parole for

teenagers makes exactly the opposite prediction.

Following North Carolina’s statutorily mandated procedures, the trial court

made the necessary findings about Mr. Sims to support its conclusion that he is one

of the rare juveniles for whom a life without parole sentence is constitutional.

However, because I strongly disagree with the majority’s circular reasoning and its

departure from binding Supreme Court precedent, I concur in the result only.

Justice RIGGS joins in this concurring in the result only opinion.

91a

APPENDIX C

92a

1

No. 297PA18 and 86A-02-2

DISTRICT FOUR

SUPREMEnCOY,RT,oF~q~Tl:-LCAROLINA

Lt.tr J/i,N_

, ,l ZU

*********************************************

t'V.t.1.-,v.

;;~r

0

STATE OF NOv~THCAROLINA BY~~ ..-,i-,--, 1

From Onslow County

ANTWAUN KYRAL SIMS

)

*********************************************

STATE OF NORTH CAROLINA

)

v.

)

BRYAN CHRISTOPHER BELL

)

From Onslow County

*********************************************

FINDINGS OF FACT AND CONCLUSIONS OF LAW

from a

JOINT EVIDENTIARY HEARING

This matter came before the court pursuant to an order of remand to the

Superior Court of Onslow County to conduct a joint

defendants' claims of gender discrimination

evidentiary

hearing on the

in the jury selection under J.E.B. v. Ala.

ex rel. T.B., 511 U.S. 127 (1994) during their joint trial which concluded on August

14, 2001.

On August

Christopher

14, 2001,

the

Bell were convicted

degree murder.

defendants

Antwaun

as codefendants

Kyral

Sims

and Bryan

of, among other charges, first

After a capital sentencing hearing, the jury recommended a sentence

of death for Mr. Bell and life without

parole for Mr. Sims.

Their convictions were

affirmed in State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004) and State v. Sims, 161

N.C. App. 183, 588 S.E.2d 55 (2003).

93a

2

A hearing was held before the undersigned on December 6-7, 2022 in

Onslow County Superior Court.

Defendant Bell was represented by attorneys Ms.

Dionne R. Gonder and Mr. Michael R. Ramos. Defendant Sims was represented by

Assistant Appellate Defender David W. Andrews and attorney

Ms. Mani L. Dexter.

Both defendants were present in the courtroom during this hearing.

North Carolina was represented

The State of

by Special Deputy Attorneys General Kimberly N.

Callahan and Teresa Postell and Assistant District Attorney Robert Thigpen.

In preparing these findings, the court has considered the trial transcript of the

jury voir dire, consisting of 2,502 pages, juror questionnaires, pre-hearing briefs with

attachments

submitted

by all the parties, testimony

and exhibits offered at the

hearing, and oral arguments made at the conclusion of the hearing and post-hearing

briefs.

From the above, the court makes the following findings of fact:

The trial of these case began on July 9, 2001 with jury voir dire which was

concluded on July 25, 2001 before the Honorable Jay D. Hockenbury.

The State of

North Carolina was represented by District Attorney G. Dewey Hudson and Assistant

District Attorneys Greg Butler and Bob Roupe. Defendant Bryan Christopher Bell was

represented by attorneys Terry Alford and David Braswell. Defendant Antwuan Kyral

Sims was represented by attorneys Carl Ivarsson and George Franks.

I.

Jury Selection Protocols

Twelve jurors were selected along with four alternates to hear the case. During

the course of the voir dire over twelve days, a total of 92 jurors, 52 females and 40

males were called into the jury box to be examined by the court and the parties.

94a

3

Challenges for cause removed 24 jurors.

See: "All Jurors Considered by the State"

(Bell's hearing exhibit 4) (App. 1-2).

Each juror,

prior to voir dire,

completed

a forty-item

questionnaire

which

contained, in addition to other biographical data, that juror's gender, race and age.

These questionnaires were maintained by the Onslow County Clerk of Court and were

admitted

into evidence by stipulation

at the December hearing as well as the

transcript of the jury voir dire.

Prior to the questioning

of the prospective jurors

by the parties, the court

introduced the jurors to the case, addressed them to ensure they were eligible for

jury service, and then heard requests for excusal or deferments. (Tpp. 14-104) The

jury venire was sworn and given instructions by the court. (Tpp. 109-114) The jury

venire was then separated randomly into panels consisting of approximately

fifteen

individuals. (Tpp. 135-46) Each panel was instructed when they were required to

return to court. (Tp. 122) When a panel was called back to court, the panel was given

additional preliminary instructions about the law and informed of the list of potential

witnesses. (Tp. 184)

Initially, twelve jurors from the first panel were randomly called into the jury box,

and the trial court questioned them regarding whether they had any relationship to

the victim or the defendants;

whether they had read, hear, or seen anything about

the case; and whether they could accept and follow the law in a criminal case

involving capital punishment.

(Tpp. 185, 221) Once that information

was obtained,

the court turned those jurors over to the parties for questioning. (Tp. 185) The State

was allowed to question the twelve prospective jurors first and had the opportunity

95a

4

to exercise peremptory challenges and challenges for cause. If a prospective juror

was removed by the State, the clerk seated a new juror from the remaining members

of the sequestered panel and the questioning resumed. (Tpp. 121, 371-378) This

procedure continued until the State was satisfied with all twelve prospective jurors in

the jury box alter which they were passed to the defendants for questioning.

(Tp.

448)

The defendants were given a similar opportunity to question the prospective jurors

and challenge them peremptorily

or for cause. (Tpp. 185, 421-22) The questioning

of the jurors by the defendants alternated as to which one would first question the

jurors passed to them.

Both defendants were able to exercise challenges for cause

and peremptory challenges.

The jurors who were passed by both defendants were

seated to hear the case. The jurors who were excused were replaced by clerk, and

the process started

all over again until twelve jurors

and four alternates were

selected.

From the review of the jury voir dire transcript,

a major issue before the trial

judge was ruling on the race-based Batson objections raised by the defendants in

response to the peremptory challenges of nine black jurors by the State.

The inquiry conducted by the hearing court, mandated by the remand, was to

consider the defendants' claims of gender discrimination

of peremptory challenges.

by the State in its exercise

This is a rather unusual inquiry because, from a review of

the jury selection transcript,

it is clear that the defendants never raised a gender-

based Batson objection that the trial court could address.

96a

5

The hearing court undertook an analysis of the transcript of the jury voir dire to

consider the merits of the defendants' claims of gender discrimination

under J.E.B.

v. Ala. when the State exercised a peremptory challenge of juror Viola Morrow on

day nine of jury selection. Because the transcript reveals statements by the attorneys

during the jury selection process that have relevance to this inquiry, the hearing court

has summarized the chronology and context, where necessary, of the examination

of the 92 prospective jurors who were called into the jury box to be questioned.

Where relevant to the issues raised, the court has included within the body of the

finding of facts excerpts from selected individual juror's voir dire. The court has also

included in an appendix copies of exhibits offered by the parties during the hearing

and relevant excerpts from the voir dire of selected jurors.

II. Summary of Jury Vair Dire with Relevant Excerpts from Selected Jurors

1. First round of jury selection (12 jurors to select):

The following prospective

jurors were called into the box for questioning by the court and the State: (Bold print

denotes a juror who was passed by all parties and was seated):

Seat 1: Gerald Monahan, white male, age 63, wildlife biologist.

Seat 2: Susan Wurm, white female, age 46, customer service

representative.

Seat 3: Milford Hayes, black male, age 65, retired/ disabled.

Seat 4: Drew Parker, white male, age 32, tool and die maker and

minister.

Seat 5: William Tagmyer, white male, age 56, manager, USMC.

Seat 6: Mary Malone, black female, age 42, coffee vendor on CLNC.

97a

6

Seat 7: Laurence Mason, white male, age 58, training equipment

systems specialist, CLNC.

Seat 8: Christopher Hancock, white male, age 70, furniture

management.

Seat 9: Randall Scott, white male, age 44, facility management,

Marine Corps Air Station.

Seat 10: Cindy Serbus, white female, age 40, Liberty Tax service.

Seat 11: Aubert Ruddell, white male, age 76, retired.

Seat 12: Chellie Kirk, white female, age 51, unemployed.

Hancock, age 70, was excused for cause (Tp 237).

After the

original twelve jurors were questioned, the State exercised peremptory

challenges

Christopher

against:

(1)

Milford Hayes, black male, seat 3.

(2)

Mary Malone, black female, seat 6.

(3)

Laurence Mason, white male, seat 7.

Defendant Sims raised an objection based on the ruling in Batson v. Kentucky,

476 U.S. 79, 106 S.Ct. 1712 (1986) to the use of peremptory challenges to remove

jurors Hayes and Malone, but his attorney was unsure whether the threshold was

met. (Tp. 372)

Citing Batson, defendant Bell also objected to the State removing

black jurors Hayes and Malone arguing that it was starting to show a pattern. (Tp.

375)

The trial

discrimination,"

judge

ruled

that

there

was not a "prima

facie

showing

of

and denied the defendants' motions but would allow the state, "if

they so desire," to give race neutral reasons for excusing those two jurors.

98a

The State

7

chose to respond and argued that juror Hayes was strongly against the death penalty.

The State's reason for excusing Juror Malone was that she had mental health issues

with her foster child which would be very similar to what a psychiatrist

will testify

about defendant Bell and his relationship with his natural father. (Tp. 375)

Four replacement jurors were called to be questioned by the court and the

State. After questioning, all four jurors were passed by the State. They were:

(1)

Seat 3: Irene Johnson, black female, age 35, member Marine

Corps.

(2)

Seat 6: Malisia Johnson, white female, age 30, private

daycare.

(3)

Seat 7: Charlene Dail, white female, age 31, road inspector

with D.O.T.

(4)

Seat 8: Carolyn Jensen, white female, age 55, probation

officer.

The twelve jurors

who were passed by the State were first questioned by

Defendant Sims who exercised peremptory challenges against the following jurors:

(Tp. 499)

(1)

Gerald Monahan, white male, age 63.

(2)

Randall Scott, white male, age 44.

(3)

Drew Parker, white male, age 32.

( 4)

William Tagmyer, white male, age 56.

(5)

Aubert Ruddell, white male, age 76.

(6)

Chellie Kirk, white female, age 51.

99a

8

The State did not object or raise a reverse gender Batson objection to the

peremptory challenges of the five males. After questioning,

the six remaining jurors.

Defendant Bell passed

(Tp. 547)

After this first round of questioning, six jurors, all women, had been passed by

the parties and selected to sit on the jury:

Susan Wurm (seat 2), Irene Johnson

(seat 3), Malisia Johnson (seat 6), Charlene Dail (seat 7), Carolyn Jensen (seat

8), and Cindy Serbus (seat 10).

On July 12, 2001, day four of jury selection, prior to the court returning to the

questioning of the replacement prospective jurors, the court took up with the parties

a written note submitted by prospective juror John Lain who was scheduled to return

to court in a later panel. Mr. Lain had plans to be out of the state the following week

and wanted to be able to go. Neither defendant had an objection to placing Lain on

a later panel.

The State, speaking through District Attorney

Hudson, suggested that they

move Mr. Lain up to an earlier panel as opposed to moving him back to a panel that

was scheduled to appear later.

Hudson had a problem with moving him back and

advised the court: "I'd like to have [a] few men. I would like to have a representative

jury. There (sic) ain't no men." Lain advised the court that the trip had been planned

before he received his jury summons.

The judge advised Lain that he was inclined

to work with him and asked Lain to call back the next day. (Tpp. 576-580).

Lain was

never called.

During the first round of jury selection, the State exercised three peremptory

challenges:

one black male, one white female, and one black female.

100a

During the

9

first round, defendant Sims exercised six peremptory challenges:

and one white female.

five white males

During the first round, defendant Bell did not exercise any

peremptory challenges.

2. Second round of jury selection (6 jurors to be selected):

The following six

replacement jurors were called for questioning by the court and the State:

Seat 1:

Donna Huie, white female, age 34, postal delivery.

Seat 4:

Charles Brown, white male, age 57, airline pilot.

Seat 5:

Paula Conner, white female, age 46, housewife.

Seat 9:

Sheryll Mattocks, black female, age 39, homemaker.

Seat 11: Deana Justice, white female, age 37, customer service.

Seat 12: William Chadwick, white male, 66, retired.

Jurors Paula Conner (Tp. 613) and Sheryll Mattocks (Tp. 621) were excused

for cause. To replace those two jurors who were excused f

This text is long and has been trimmed here. Open the source document for the complete record.