State v. Cuthbertson

• Court: Court of Appeals of North Carolina
• Decided: April 18, 2023
• Docket: 22-92
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-92

Filed 18 April 2023

Rowan County, No. 19CRS53041

STATE OF NORTH CAROLINA

v.

TORIE EUGENE CUTHBERTSON, Defendant.

Appeal by defendant from judgment entered on or about 9 June 2021 by Judge

William A. Wood II in Superior Court, Rowan County. Heard in the Court of Appeals

15 November 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Michael T. Henry, for the State.

Daniel M. Blau Attorney at Law, P.C., by Daniel M. Blau, for defendant- appellant.

STROUD, Chief Judge.

Defendant Torie Eugene Cuthbertson appeals from a judgment, entered

following a jury trial, for assault on a government official/employee. On appeal,

Defendant argues the trial court erred in overruling his objection, under Batson v.

Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986), to the prosecutor peremptorily striking

two Black jurors. Specifically, Defendant contends: (1) the trial court did not

sufficiently explain its ruling so we must remand, and (2) the trial court erred in

concluding the prosecutor’s strikes were not motivated by discriminatory intent so we STATE V. CUTHBERTSON

Opinion of the Court

should grant him a new trial. Because the trial court adequately considered all the

relevant factors presented by the parties when ruling on Defendant’s objection, we do

not need to remand the case. Further, because the trial court did not clearly err,

based on all the relevant factors and circumstances, in determining the prosecutor’s

strikes of the two Black jurors were not motivated in substantial part by

discriminatory intent, we find no error.

I. Background

Although the sole issue on appeal relates to Defendant’s Batson objection

during jury selection, we recount the facts of the case because the role of race in the

case is a pertinent factor in our Batson analysis. See State v. Bennett, 282 N.C. App.

585, 609, 871 S.E.2d 831, 849 (2022) [hereinafter Bennett III], appeal dismissed and

disc. rev. denied, ___ N.C. ___, 881 S.E.2d 305 (2022). At trial, the State’s evidence

tended to show on the night of 20 July 2019, Defendant, who is Black, pulled into the

parking lot of a bar on his motorcycle, which was playing “loud” music. After their

captain alerted them to the loud music coming from the motorcycle, two police officers

on patrol behind the bar—at least one of whom was White1—approached Defendant

and gave “numerous commands” to turn off the music. Defendant ignored the officers’

commands. Instead, Defendant got off his motorcycle and “jumped up on” a three-to-

four-foot retaining wall that separated the bar’s patio from the parking lot. The

1 The record only contains information about the race of the police officer who was the alleged victim of the assault that led to the charge here.

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officers made “numerous attempts” to have Defendant get off the wall and speak with

them about a noise ordinance violation, but Defendant “continued to chill out by

talking over” the officers. At that time, the officers decided to arrest Defendant “for

resist, obstruct, delay due to him not providing any type of identification” and not

speaking with them about the motorcycle and its loud music.

To initiate the arrest, one of the officers—the one whom the record reveals is

White—tried to grab Defendant’s arm “to pull him off the wall[,]” but Defendant

jumped off the top of the wall to the other side from the officers. The officer followed

Defendant to the other side of the wall and continued to try to grab Defendant’s arms

to handcuff him. At that point, Defendant took his motorcycle helmet, which he was

still holding in his hand, and “swung up” towards the officer “slightly striking [him]

in the face on the lower jaw.” A later check-up by emergency medical services

revealed “[n]o major injuries[;]”the officer only had a “sore lip” and lacked “obvious

signs of any injuries.”

After the officer was hit, Defendant and the officer continued “to tussle” until

the second officer came around the wall, pulled out his taser, and radioed for backup.

During this tussle, the motorcycle helmet “fell on the ground[.]” As the second officer

arrived at the tussle, the officer who was hit “push[ed] away” from Defendant, and

Defendant “backed away” to sit down in a patio chair. Defendant then asked the

officers “what was going on” before he returned to conversing with other patrons at

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the bar. A “few moments” later, the officers’ backup arrived, and they arrested

Defendant without further incident.

The same day as the incident, Defendant was charged, in relevant part, with

misdemeanor assault on a government official/ employee (“assault”).2 On or about 25

July 2019, Defendant was found guilty of the assault in District Court. Defendant

then appealed the District Court judgment to Superior Court. See N.C. Gen. Stat. §

15A-1431(b) (2019) (“A defendant convicted in the district court before the judge may

appeal to the superior court for trial de novo with a jury as provided by law.”).

The case came for trial in Superior Court starting on 7 June 2021. Because

this appeal involves an issue arising out of jury selection, we recount that process

before discussing the trial.3 The initial jury pool, which included all the jurors the

prosecutor peremptorily struck, included 25 prospective jurors; four were Black, and

the remaining 21 were White. After 2 prospective jurors, 1 of whom was Black, were

2 Defendant was also charged with misdemeanor possession of drug paraphernalia, but he was found not guilty on that charge in District Court before the Superior Court trial that led to the instant appeal. Because the drug paraphernalia charge does not relate to the instant appeal, we do not further discuss it. 3 The Batson hearing before the trial court was the only relevant part of jury selection that was

transcribed; voir dire of the jurors was not transcribed. In place of a transcript of the jury selection, the record contains a document entitled “Statement Regarding Jury Selection” that provides a narrative about jury selection. (Capitalization altered.) This narrative of jury voir dire is permissible under Rule of Appellate Procedure 9(c)(1). See N.C. R. App. P. 9(c)(1) (requiring voir dire to “be set out in narrative form except where such form might not fairly reflect the true sense of the evidence received”); N.C. R. App. P. 9(c)(2) (allowing an appellant to use a transcript of voir dire “in lieu of narrating the evidence and other trial proceedings as permitted by Rule 9(c)(1)” when voir dire “proceedings are the basis for one or more issues presented on appeal”). As a result, we use the “Statement Regarding Jury Selection” to supplement the transcribed Batson hearing.

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struck for cause, the 12 prospective jurors in the box included 10 White people and 2

Black people, H.M. and D.N.4 The prosecutor then used peremptory strikes against

only H.M. and D.N., and Defendant’s attorney made a Batson challenge to those

strikes. As a result, the trial court held a Batson hearing.

The trial court began the Batson hearing by confirming both H.M. and D.N.

were Black. Then, the trial court confirmed on the record Defendant is Black and the

police officer in the case, who was set to be the State’s only witness, is White. The

trial court also determined Defendant’s attorney did not have historical evidence of

discrimination by either the county district attorney’s office or the specific prosecutor

in the case. The trial court next asked Defendant’s attorney if there had been any

disparate questioning or a pattern of striking Black jurors. While Defendant’s

attorney said there was no disparate questioning, he argued there was a pattern

because the prosecutor struck the only two Black jurors in the jury box during his

first chance to exercise peremptory strikes. Finally at this initial part of the Batson

hearing, the trial court asked if Defendant’s attorney had “any other relevant

circumstances” to place on the record, and Defendant’s attorney only added his “client

has a constitutional right to a jury of his peers.” Based on this evidence, the trial

court found “there [was] an inference from the totality of relevant facts that

4 We use the jurors’ initials throughout to protect their identity because they were struck in part due to criminal charges and convictions. See Bennett III, 282 N.C. App. at 586 n.1, 871 S.E.2d at 836 n.1 (also using prospective jurors’ initials in Batson appeal because they were struck due to past criminal activity).

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impermissible discrimination ha[d] occurred” and asked the prosecutor to give “race-

neutral justifications” for the peremptory strikes.

The prosecutor gave similar reasons for striking H.M. and D.N. As to H.M.,

the prosecutor first said H.M. had failed to disclose a “very lengthy criminal history”

when the prosecutor asked if anyone had ever been convicted of a crime. The

prosecutor also said he did not think H.M. could “apply the law to the facts at the end

of this case and make a fair and impartial decision” because H.M. said he “just really

didn’t want to do it” when asked “about his ability to be fair and impartial[.]”

Similarly, the prosecutor first said he struck D.N. because she failed to disclose a

“Class 1 driving charge” in response to his question about if anyone had been charged

with a crime. Additionally, the prosecutor recalled D.N. said she “didn’t know if she

could be fair and impartial[,]” and he “believe[d] based on that answer she could not

be[.]”

After the prosecutor gave his reasons, the trial court asked if the prosecutor

checked the criminal records “for both the White and Black jurors[,]” and the

prosecutor responded he had checked the record for “every single person in this jury

pool[.]” Defendant’s attorney initially declined to present additional argument after

hearing the prosecutor’s reasons, but he then disputed the prosecutor’s

characterization of H.M.’s statements and argued the prosecutor had successfully

rehabilitated both H.M. and D.N. on the issue of whether they could be fair and

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impartial. Defendant’s attorney did not present any argument on the criminal

histories of either H.M. or D.N.

Following the arguments by the parties, the trial court denied the Batson

challenges and allowed the prosecutor’s peremptory strikes of H.M. and D.N. to

stand. As to H.M., the trial court explained:

Well, the court with regard to [H.M.] has weighed the questions and answers, comparisons between the other jurors, and finds that the prosecutor’s asked the same questions of each of the jurors and the questions given -- excuse me, the answers given by [H.M.] can be distinguished from the answers of the other jurors, and that [H.M.] had, in fact, been convicted of a crime and done eight months where the other jurors, none of which the ones that the prosecutor accepted and did not exercise a challenge on indicated they’d been convicted of a crime to the best of my knowledge. Also, [H.M.], according to the prosecutor which is uncontroverted, has a lengthy criminal history going back years including a felony conviction. So with regard to [H.M.], the court is going to find that the prosecutor’s exercise of his preemptory challenge was not motivated by discriminatory intent.

As to D.N., the trial court ruled:

With regard to [D.N.], she was not forthcoming about the driving charge. Once again, the prosecutor has run the records of all the jurors. There was no other juror other than perhaps [H.M.], who was not forthcoming to our knowledge about criminal history. Additionally, it is the court’s recollection that she indicated she probably couldn’t be fair or she didn’t know if she could be fair is a more accurate way of putting what she said on the record. The court’s going to find with regard to [D.N.] in light of all the relevant facts and circumstances that the court has before it, that the prosecutor’s exercise of that

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preemptory challenge was not motivated by discriminatory intent.

Throughout the remainder of jury selection, the prosecutor did not use any

additional peremptory strikes. The jury seated for trial ultimately contained 11

White jurors and 1 Black juror;5 the Black juror was the only Black prospective juror

from the initial pool not excused for cause or struck by the prosecution.

At trial, the State’s sole witness was the officer who was struck by the

motorcycle helmet. The officer testified about the incident with Defendant at the bar.

As part of the testimony, the State admitted into evidence footage of the incident from

the body cameras of both the officer who was struck and the second officer who was

present for the whole incident. The defense also called the officer as a witness to have

him further testify about a portion of the other officer’s body camera footage.

Defendant was the only other witness at trial. Beyond testifying he turned

down the music from his motorcycle, Defendant explained his actions during the

incident. First, Defendant, who is Black, testified when the officers, at least one of

whom is White, approached him he stood on the retaining wall so people in the patio

area could “see what was going on up there[;]” he wanted to “have witnesses in case

anything did happen.” Defendant then explained he did not follow the officers’

commands to come closer because they were standing on the other side of the wall

from the patio area and he was concerned they were trying to “lure” him “behind that

5 No alternate jurors were selected.

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wall so nobody could see” them. Specifically, Defendant was concerned the officers

“were going to harm” him based on language they had used like “‘Get you’re A down’”

and “‘If you don’t get off of there, I’m going to take you off of that[.]’” Further,

Defendant testified he did not know why the officer tried to grab him because he

“didn’t do anything wrong[.]” Finally, Defendant denied swinging his helmet at the

officer or resisting arrest. Defendant said his helmet did not make contact with the

officer that he “kn[e]w of” and any contact “was not intentional if it did” happen.

The jury convicted Defendant on the assault charge. On or about 9 June 2021,

the trial court sentenced Defendant to 120 days imprisonment. Defendant entered

notice of appeal in open court.

II. Analysis

On appeal, Defendant’s sole argument is that “the trial court erred by allowing

the State to use peremptory challenges against prospective jurors [H.M.] and [D.N.],

in violation of the Fourteenth Amendment to the United States Constitution and

Article I, Sections 19 and 26 of the North Carolina Constitution.” (Capitalization

altered.) “The use of peremptory challenges for racially discriminatory reasons

violates the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution.” State v. Locklear, 349 N.C. 118, 136, 505 S.E.2d 277, 287 (1998)

(citing Batson, 476 U.S. at 86, 90 L.Ed.2d at 80). “The North Carolina Constitution,

Article I, Section 26, also prohibits the exercise of peremptory strikes solely on the

basis of race.” Id. Finally, Article I, Section 19 of our Constitution also includes a

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guarantee of “equal protection of the laws[.]” N.C. Const., Art. I, Section 19 (“No

person shall be denied the equal protection of the laws; nor shall any person be

subjected to discrimination by the State because of race, color, religion, or national

origin.”).

For all three of the constitutional grounds Defendant raises, our Courts use

the same test laid out by the Supreme Court of the United States in Batson to

“analyze claims of racially motivated peremptory strikes[.]” See State v. Clegg, 380

N.C. 127, 142-45, 867 S.E.2d 885, 898-900 (2022) (discussing the history of Batson

before stating our Courts have “adopted the Batson test for review of peremptory

challenges under the North Carolina Constitution”); State v. Waring, 364 N.C. 443,

474-75, 701 S.E.2d 615, 635-36 (2010) (explaining the Batson test after stating, “Our

review of race-based . . . discrimination during petit jury selection has been the same

under both the Fourteenth Amendment to the United States Constitution and Article

1, Section 26 of the North Carolina Constitution”); State v. Davis, 325 N.C. 607, 617-

20, 386 S.E.2d 418, 422-24 (1989) (analyzing under Batson’s test when the defendant

argued the prosecution used its peremptory strikes in a racially discriminatory

manner in violation of, inter alia, the Fourteenth Amendment to the Constitution of

the United States and Article I, Sections 19 and 26 of our Constitution). Under

Batson, a court determines whether a prosecutor improperly exercised a peremptory

challenge based on race with a three-step inquiry:

First, the party raising the claim must make a prima facie

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showing of intentional discrimination under the totality of the relevant facts in the case. Second, if a prima facie case is established, the burden shifts to the State to present a race-neutral explanation for the challenge. Finally, the trial court must then determine whether the defendant has met the burden of proving purposeful discrimination.

State v. Bennett, 374 N.C. 579, 592, 843 S.E.2d 222, 231 (2020) [hereinafter Bennett

II].

Within Batson’s three-step inquiry, Defendant only challenges the trial court’s

ruling at the third step that the prosecution’s peremptory strikes of H.M. and D.N.

were “not motivated by discriminatory intent” and argues we should grant him a new

trial as a result. In the alternative, Defendant contends “the Trial Court did not

sufficiently explain how it weighed the relevant factors” at the third step, so we

should remand for the trial court to “reconsider its analysis” and “make further

findings of fact and conclusions of law.” After explaining the standard of review, we

first discuss the remand issue because if the trial court failed to sufficiently explain

its ruling, we cannot fully review its ruling.

A. Standard of Review

This Court has recently explained the standard of review for Batson as follows:

When reviewing a trial court’s Batson analysis, “a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207, 170 L.Ed.2d 175[, 181] (2008); State v. Clegg, [380 N.C. 127, 145], 867 S.E.2d 885[, 900 (2022)] (quoting same language from Snyder). “Such ‘clear error’ is deemed to exist when, on the entire evidence[,] the Court is left with the definite

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and firm conviction that a mistake has been committed.” Clegg, [380 N.C. at 141, 867 S.E.2d at 897] (quoting Bennett II, 374 N.C. at 592, 843 S.E.2d at 231) (alteration in original). This deferential standard reflects that “[a] trial court’s rulings regarding race-neutrality and purposeful discrimination are largely based on evaluations of credibility . . . .” State v. King, 353 N.C. 457, 469–70, 546 S.E.2d 575, 586–87 (2001). As our courts have recognized before, trial courts are “in the best position to assess the prosecutor’s credibility . . . .” State v. Cummings, 346 N.C. 291, 309, 488 S.E.2d 550, 561 (1997); see also Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869, 114 L.Ed.2d 395[, 409] (1991) (explaining “evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province” (quotations and citation omitted)). Under the clearly erroneous standard, “[t]he trial court’s findings will be upheld on appeal unless the ‘reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed.’ ” State v. Chapman, 359 N.C. 328, 339, 611 S.E.2d 794, 806 (2005) (quoting Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871[, 114 L.Ed.2d at 412]) (alterations in original). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” King, 353 N.C. at 470, 546 S.E.2d at 587 (quotations and citations omitted); see also Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871[, 114 L.Ed.2d at 412] (including identical language). This deference, however, “does not by definition preclude relief.” Bennett II, 374 N.C. at 592, 843 S.E.2d at 231 (quoting Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 240, 125 S. Ct. 2317, 2325, 162 L.Ed.2d 196[, 214] (2005)).

Bennett III, 282 N.C. App. at 600-01, 871 S.E.2d at 843-44 (brackets relating to

citation information added) (ellipses and all other brackets in original).

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B. Remand Issue

Examining the remand issue first, Defendant contends “the Trial Court did not

sufficiently explain how it weighed the relevant factors” at Batson’s third step, so we

should remand for the trial court to “reconsider its analysis” and “make further

findings of fact and conclusions of law.” At Batson’s third step, the trial court must

“determine whether the defendant has met the burden of proving purposeful

discrimination” is what motivated the prosecutor’s peremptory strike. Id. at 607, 871

S.E.2d at 848 (quoting Bennett II, 374 N.C. at 592, 843 S.E.2d at 231). In making

this determination, the trial court acts like a scale. See Clegg, 380 N.C. at 149-50,

867 S.E.2d at 903 (explaining “a common judicial analogy” that “conceptualiz[es]”

Batson using a scale). After both the defendant and the prosecutor have placed their

reasons on the scale as part of Batson’s first two steps, the trial court “carefully

weighs all of the reasoning from both sides to ultimately decide whether it was more

likely than not that the challenge was improperly motivated.” Id. (citation, quotation

marks, and brackets omitted).

To help weigh the reasoning from both sides, trial courts “employ an open-

ended list of factors.” Bennett III, 282 N.C. App. at 607, 871 S.E.2d at 848. The open-

ended list of relevant factors includes:

• statistical evidence about the prosecutor’s use of peremptory strikes against Black prospective jurors as compared to white prospective jurors in the case; • evidence of a prosecutor’s disparate questioning and investigation of Black and white prospective jurors in the

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case; • side-by-side comparisons of Black prospective jurors who were struck and white prospective jurors who were not struck in the case; • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing; • [the susceptibility of the particular case to racial discrimination;6] • relevant history of the State’s peremptory strikes in past cases; or • other relevant circumstances that bear upon the issue of racial discrimination.

Bennett III, 282 N.C. App. at 608-609, 871 S.E.2d at 848-49 (quoting State v. Hobbs,

374 N.C. 345, 356, 841 S.E.2d 492, 501 (2020) (in turn citing Flowers v. Mississippi,

___ U.S. ___, ___, 204 L.Ed.2d 638, 655-56 (2019))) (brackets from original omitted

and own information in brackets added); see also State v. Porter, 326 N.C. 489, 498,

391 S.E.2d 144, 150 (1990).

Defendant argues the trial court failed to properly weigh all of these factors at

Batson’s third step. Specifically, Defendant contends the trial court only mentioned

the prosecutor’s reasons for striking H.M. and D.N. and failed to discuss “how it had

weighed the other myriad relevant factors[.]” In support of this argument, Defendant

cites three cases: Hobbs; State v. Alexander, 274 N.C. App. 31, 851 S.E.2d 411 (2020);

and State v. Hood, 273 N.C. App. 348, 848 S.E.2d 515 (2020).

6This factor comes from State v. Porter and is included in the list from Bennett III to be concise. See State v. Porter, 326 N.C. 489, 498, 391 S.E.2d 144, 150 (1990) (including “the susceptibility of the particular case to racial discrimination” as a factor for courts to consider (citations and quotation marks omitted)).

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In Hobbs, our Supreme Court remanded because the trial court “misapplied

the Batson analysis” in relevant part by failing to properly take into account all the

third stage factors the defendant had presented to it. Hobbs, 374 N.C. at 358-59, 841

S.E.2d at 502-03. In particular, our Supreme Court noted “the trial court did not

explain how it weighed the totality of the circumstances surrounding the

prosecution’s use of peremptory challenges, including the historical evidence that [the

defendant] brought to the trial court’s attention.” Id. at 358, 841 S.E.2d at 502

(emphasis added). Additionally, the Supreme Court did not know “how or whether”

the trial court evaluated comparisons between the answers of struck Black

prospective jurors and White prospective jurors acceptable to the State that the

defendant “sought to bring to the court’s attention.” Id. at 358-59, 841 S.E.2d at 502-

03 (emphasis added). The Supreme Court’s discussion of this Court’s error in Hobbs

further emphasizes the importance of taking into account all the evidence presented

by a defendant. See id. at 359, 841 S.E.2d at 503. Specifically, the Supreme Court

said this Court committed a “[s]imilar legal error” as the trial court and then

explained this Court “failed to weigh all the evidence put on by [the defendant.]” Id.

Finally, in responding to a dissenting opinion, the Supreme Court explained its ruling

was animated by a preexisting requirement for “a court to consider all of the evidence

before it when determining whether to sustain or overrule a Batson challenge.” Id.

at 358, 841 S.E.2d at 502. Thus, the error that required remand in Hobbs was the

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trial court’s failure to weigh all the evidence presented by the defendant at Batson’s

third step. See id. at 358-59, 841 S.E.2d at 502-03.

Both Alexander and Hood similarly required remand because the trial court

failed to explain how it weighed all the evidence the defendant presented. See

Alexander, 274 N.C. App. at 43-44, 851 S.E.2d at 419-20; Hood, 273 N.C. App. at 357,

848 S.E.2d at 522. In Alexander, this Court noted the trial court erred by failing to

address one of the defendant’s argument and not making clear if it took into account

a comparison between White and Black prospective jurors raised by the defendant.

See Alexander, 274 N.C. App. at 43-44, 851 S.E.2d at 419-20. The Alexander Court’s

remand instructions further reinforced the need to address the defendant’s argument

when they directed the trial court to “make specific findings as to all the pertinent

evidence and arguments” and then explain how it “weighed the totality of the

circumstances.” Id. at 47, 851 S.E.2d at 422 (citation and quotation marks omitted).

Similarly in Hood, this Court found the trial court erred “in failing to make the

requisite findings of fact and conclusions of law addressing the evidence presented by

counsel” when it “summarily denied” the defendant’s Batson challenge. Hood, 273

N.C. App. at 357, 848 S.E.2d at 522. Thus, Hobbs, Alexander, and Hood all stand for

the proposition that an appellate court must remand when, at step three of the Batson

inquiry, the trial court has failed to consider and address all the evidence and

arguments raised by a defendant’s attorney. See Hobbs, 374 N.C. at 358-59, 841

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S.E.2d at 502-03; Alexander, 274 N.C. App. at 43-44, 851 S.E.2d at 419-20; Hood, 273

N.C. App. at 375, 848 S.E.2d at 522.

Returning to the scale analogy, see Clegg, 380 N.C. at 149-50, 867 S.E.2d at

903, an appellate court must remand when the trial court failed to include on the

scale all the arguments presented to it by the parties. If the trial court failed to

include all the presented factors on the scale, the reviewing court necessarily cannot

determine if the trial court properly weighed all the factors. See id. at 144, 867 S.E.2d

at 900 (explaining a reviewing court determines if “all of the relevant facts and

circumstances taken together establish that the trial court committed clear error in

concluding that the State’s peremptory strike of one [B]lack prospective juror was not

motivated in substantial part by discriminatory intent” (quoting Flowers, ___ U.S. at

___, 204 L.Ed.2d at 664) (ellipses and brackets omitted)).

Here, unlike in Hobbs, Alexander, and Hood, the trial court placed all the

factors presented to it by the parties on the scale, and thus we do not need to remand.

See Hobbs, 374 N.C. at 358-59, 841 S.E.2d at 502-03; Alexander, 274 N.C. App. at 43-

44, 851 S.E.2d at 419-20; Hood, 273 N.C. App. at 375, 848 S.E.2d at 522. We first

recount all the factors the parties placed on the scale before explaining how the trial

court addressed all of them.

At the start of the Batson hearing, Defendant’s attorney said he was making

the Batson challenge because the prosecutor had struck the only 2 Black jurors during

the first chance he had to use peremptory strikes. In other words, Defendant’s

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attorney raised the fact that the prosecutor had struck all the Black prospective

jurors and none of the White prospective jurors. When the trial court subsequently

asked Defendant’s attorney if there were “any other relevant circumstances [he]’d

like to get on the record[,]” Defendant’s attorney just responded that his “client has a

constitutional right to a jury of his peers[,]” which is the motivation behind Batson

rather than a factor in the Batson analysis. See Batson, 476 U.S. at 85, 90 L.Ed.2d

at 80-81 (explaining the impetus for “eradicat[ing] racial discrimination” in jury

selection comes from the idea “that the State denies a [B]lack defendant equal

protection of the laws when it puts him on trial before a jury from which members of

his race have been purposefully excluded”).

The prosecutor then gave his two reasons for excluding each juror: (1) their

failures to disclose their “criminal history” and (2) the prosecutor’s concerns about

the prospective jurors’ abilities to be “fair and impartial[.]” After the prosecutor gave

his reasons for the strikes, the trial court asked Defendant’s attorney again if he had

“[a]ny other argument[,]” and Defendant’s attorney raised two additional points

relevant to those reasons. First, in regard only to H.M., Defendant’s attorney said he

would “characterize [H.M.]’s statements” about the ability to be fair and impartial

“differently[.]” Second, with respect to both H.M. and D.N., Defendant’s attorney

argued the prosecutor successfully rehabilitated the jurors on the issue of whether

they could be fair and impartial. The parties did not present any other arguments,

so those arguments represent everything the trial court needed to weigh on the scales.

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See Hobbs, 374 N.C. at 358-59, 841 S.E.2d at 502-03; Alexander, 274 N.C. App. at 43-

44, 851 S.E.2d at 419-20; Hood, 273 N.C. App. at 375, 848 S.E.2d at 522.

The trial court properly reviewed and weighed all of those factors and relevant

pieces of evidence. Defendant does not dispute the trial court properly accounted for

the prosecutor’s reasons. On the other side of the scale, Defendant’s attorney

presented the following for weighing by the trial court: statistics about strike rate; a

challenge to the prosecutor’s “characteriz[ation]” of H.M.’s statements on being fair

and impartial; and an argument the prosecutor had successfully rehabilitated the

jurors on the issue of whether they could be fair and impartial.

From the record before us, we can determine the trial court weighed each of

those factors in reaching its decision. As to the statistics on strike rate, the trial court

took them into account at Batson’s first step, which is where they were initially

presented, because it found a prima facie case of discrimination based on that fact

and after determining the race of all the relevant people. Having considered the

strike rate evidence at the first step, we see no reason, and Defendant presents none,

why the trial court would not have considered the strike rate at the third step when

it said it was ruling “in light of all the relevant facts and circumstances that the court

has before it[.]” As to the characterization of H.M.’s answers to the question about

whether he could be fair and impartial and Defendant’s argument the prosecutor

rehabilitated H.M. on the subject, the trial court did not mention H.M.’s ability to be

fair and impartial when analyzing H.M.’s strike after Defendant’s attorney raised the

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mischaracterization argument. The trial court’s lack of reliance on that reason

implies the trial court agreed with Defendant’s overarching point that the strike could

not be justified based on H.M.’s answer, whether for the reasons Defendant put forth

or another reason. Either way, because the trial court did not rely on that part of the

prosecutor’s reasoning in making its final ruling, it did not need to address

Defendant’s rebuttal against that reasoning. Finally, as to Defendant’s argument the

prosecutor rehabilitated D.N. on the subject of whether she could be fair or impartial,

we first note that dispute is ultimately a question of fact rather than a legal factor

that needs to be weighed. More importantly, the trial court addressed Defendant’s

argument when it gave its own recollection of D.N.’s answers that aligned with the

prosecutor’s explanation because that recollection showed the trial court was

convinced by the prosecutor’s reasoning and not by Defendant’s rehabilitation

argument. Thus, the trial court weighed all the relevant factors presented by the

parties in its Batson step three ruling.

The trial court’s decision to inquire about and take into account additional

factors not argued by Defendant’s trial counsel further reinforces our conclusion that

the trial court adequately weighed the relevant factors at Batson’s third step. First,

beyond inquiring about the races of H.M. and D.N., the trial court asked about the

race of Defendant and the law enforcement officer who was a witness in this case,

which is relevant to the factor based on “the susceptibility of the particular case to

racial discrimination[.]” See Bennett III, 282 N.C. App. at 621, 871 S.E.2d at 856

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(explaining this factor looks at whether the race of “the defendant, the victims, and

the key witnesses” cross “racial lines” (citation and quotation marks omitted)). The

trial court also inquired about historical evidence of discrimination by the district

attorney’s office in general or the prosecutor conducting voir dire in particular, but

there was none. See id. at 608-09, 871 S.E.2d at 848-49 (stating “relevant history of

the State’s peremptory strikes in past cases” can be considered at Batson’s third step).

Turning to the trial court’s ruling, it found the prosecutor “asked the same

questions of each of the jurors and . . . the answers given by [H.M] can be

distinguished from the answers of the other jurors[.]” The trial court similarly

concluded D.N.’s undisclosed criminal record set her apart from other prospective

jurors. In making those determinations, it is clear the trial court independently

decided to consider two other relevant factors, evidence of a disparate investigation

or lack thereof in the trial court’s determination and side-by-side comparisons of

jurors. See id. (listing those two factors as considerations at the third step of Batson).

The trial court’s independent decision to assess these factors, even though they were

not presented by either party, is further proof it understood it needed to and did in

fact weigh all the relevant factors in the Batson step three analysis.

Since the trial court adequately accounted for all the factors presented to it at

Batson’s third step, we do not need to remand. We therefore reject Defendant’s

argument about the need to remand and proceed to review Defendant’s argument

about whether the trial court erred in ruling against him on Batson’s third step.

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C. Batson Step Three

Defendant primarily argues on appeal that the trial court “commit[ted] clear

error” at Batson’s third step “by finding that the prosecutor’s strikes were not racially

motivated.” As explained above, at the third step, the trial court uses the following

open-ended list of factors to “determine whether the defendant has met the burden of

proving purposeful discrimination” is what motivated the prosecutor’s peremptory

strike:

• statistical evidence about the prosecutor’s use of peremptory strikes against Black prospective jurors as compared to white prospective jurors in the case; • evidence of a prosecutor’s disparate questioning and investigation of Black and white prospective jurors in the case; • side-by-side comparisons of Black prospective jurors who were struck and white prospective jurors who were not struck in the case; • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing; • [the susceptibility of the particular case to racial discrimination;] • relevant history of the State’s peremptory strikes in past cases; or • other relevant circumstances that bear upon the issue of racial discrimination.

Bennett III, 282 N.C. App. at 607-09, 871 S.E.2d at 848-49; see also Porter, 326 N.C.

at 498, 391 S.E.2d at 150 (including “the susceptibility of the particular case to racial

discrimination” as a factor for courts to consider).

On appeal, the reviewing court examines the relevant factors from the open-

ended list to determine if “all of the relevant facts and circumstances taken together

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establish that the trial court committed clear error in concluding that the State’s

peremptory strike of one [B]lack prospective juror was not motivated in substantial

part by discriminatory intent.” Clegg, 380 N.C. at 144, 867 S.E.2d at 900 (quoting

Flowers, ___ U.S. at ___, 204 L.Ed.2d at 664) (ellipses and brackets from original

omitted and own brackets added). We review each of the relevant circumstances in

this case.

1. Statistical Evidence of Strike and Acceptance Rates

First, we consider “statistical evidence about the prosecutor’s use of

peremptory strikes against Black prospective jurors as compared to white prospective

jurors in the case[.]” Bennett III, 282 N.C. App. at 608, 871 S.E.2d at 848-49. Here,

the relevant part of the jury pool included 25 prospective jurors, and 4 of the

prospective jurors were Black while the remaining 21 prospective jurors were White.7

After 1 of the Black prospective jurors was excused for cause, the State used 2

peremptory strikes on H.M. and D.N., which led to the Batson objection, hearing, and

ruling at issue in this appeal. Once the trial court allowed the strikes of H.M. and

D.N., the fourth Black prospective juror was sat in the jury box, and the prosecutor

did not use a peremptory challenge against him or any other juror for the remainder

7 All of the State’s peremptory strikes were used on members of this initial pool of 25 prospective jurors, so it is this initial pool of prospective jurors on which we focus when considering statistical evidence on strike rates. See Bennett III, 282 N.C. App. at 608, 871 S.E.2d at 848-49 (explaining the statistical evidence is about “the prosecutor’s use of peremptory strikes” (emphasis added)). Later in jury selection, 30 additional prospective jurors were brought in, but no Black prospective juror from this pool made it into the jury box, and the State did not use any peremptory strikes on this pool. As a result, those additional prospective jurors do not impact the strike and acceptance rates.

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of jury selection. Notably, the prosecutor did not ever use a peremptory strike against

a White prospective juror.

As a result, in line with Defendant’s argument, the relevant statistics of the

prosecutor’s use of peremptory strikes are as follows: The State used 100% of its

peremptory strikes against Black jurors. Because the State used all of its peremptory

strikes against Black jurors, it correspondingly struck 0% of White prospective jurors.

The State also peremptorily struck 67% of the Black jurors who could have been

peremptorily struck. Further, the 1 Black prospective juror the State did not

peremptorily strike only came into the jury box after the Batson objection and

hearing. Traditionally a decision to accept a single Black juror in the face of otherwise

one-sided statistics is viewed “skeptically[.]” See Flowers, ___ U.S. at ___, 204 L.Ed.2d

at 659 (explaining a decision to allow one Black juror when five others were struck

was evidence in favor of a determination “the State was motivated in substantial part

by discriminatory intent” because the Supreme Court of the United States has

“skeptically viewed the State’s decision to accept one [B]lack juror” when striking

others); Miller-El II, 545 U.S. at 250, 162 L.Ed.2d at 220 (explaining a “late-stage

decision to accept a [B]lack panel member” did not “neutralize the early-stage

decision to challenge a comparable venireman”).

This statistical evidence favors a finding of purposeful discrimination. See,

e.g., Flowers, ___ U.S. at ___, 204 L.Ed.2d at 659 (explaining the decision to strike

five of six Black prospective jurors was evidence in favor of a determination “the State

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was motivated in substantial part by discriminatory intent”). But we note “bare

statistics” are not as powerful as some of the other factors we examine at this step.

See Miller-El II, 545 U.S. at 241, 162 L.Ed.2d at 214 (explaining “side-by-side

comparisons” of struck Black prospective jurors to White prospective jurors “allowed

to serve” are “[m]ore powerful than the[] bare statistics”). Thus, while the statistical

evidence weighs in Defendant’s favor, it is only part of our inquiry.

The State makes two arguments about why we should reject the evidence of

strike and acceptance rates, but neither argument changes how we weigh the

statistical evidence. First, the State contends, without supporting authority,

Defendant “never argued such calculations to the trial court.” This argument does

not comport with the record. While Defendant’s attorney did not give specific

percentages, he told the trial court there was a “pattern” of striking Black jurors

because the prosecutor struck H.M. and D.N. at the first opportunity and no other

Black jurors were in the jury box at the time. With this discussion, Defendant’s

attorney made clear that, at the time of the Batson hearing, the prosecution had

struck 100% of Black jurors.

In its second argument about rejecting the evidence of strike and acceptance

rates, the State asserts the rates “arise from the numerical happenstance common to

small sample sizes.” This argument does not persuade us to outright reject the strike

and acceptance rates evidence because our Supreme Court has considered such strike

and acceptance rate evidence before in a case with a similarly small sample size. This

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case has a typical “sample size” as compared to other Batson cases. In Clegg, our

Supreme Court explained the trial court “acted properly in considering [the]

defendant’s statistical evidence regarding the disproportionate use of peremptory

strikes against Black potential jurors” where the initial pool included 22 potential

jurors and 2 of the 3 people of color in that pool were ultimately struck by the

prosecutor. Clegg, 380 N.C. at 151-52, 156, 867 S.E.2d at 904-05, 907. Those

statistics are remarkably similar to the statistics here where the initial juror pool

that contained all of the prosecutor’s peremptory strikes was a group of 25 people

with 4 Black prospective jurors, of whom 1 was excused for cause and 2 of the 3

remaining were peremptorily struck. Since the statistical evidence was properly

considered in Clegg, see id., it is properly considered here with a similarly small

sample size. But, to the extent a small sample size could skew the strike and

acceptance rate data, we reiterate precedent already indicates “bare statistics” are

not as powerful as some of the other factors we examine at this stage. See Miller-El

II, 545 U.S. at 241, 162 L.Ed.2d at 214.

2. Susceptibility of the Case to Racial Discrimination

Turning to the next factor in our inquiry, we consider the “susceptibility of the

particular case to racial discrimination.” Bennett III, 282 N.C. App. at 621, 871 S.E.2d

at 856 (quoting Porter, 326 N.C. at 498, 391 S.E.2d at 150). “The race of the

defendant, the victims, and the key witnesses bears upon this determination.” Id.

(quoting Porter, 326 N.C. at 498, 391 S.E.2d at 150-51). Specifically, “our courts have

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focused on whether the case crosses racial lines among those key figures.” Id. (citing

State v. Fair, 354 N.C. 131, 142, 557 S.E.2d 500, 511 (2001); State v. Golphin, 352

N.C. 364, 432, 533 S.E.2d 168, 214 (2000); Porter, 326 N.C. at 500, 391 S.E.2d at 152).

Here, as Defendant highlights, Defendant is Black and the police officer who

was allegedly assaulted and was the sole witness for the State at trial is White.

Further, at trial the jury primarily had to make a credibility determination between

the Black Defendant and the White police officer. The police officer testified

Defendant swung his motorcycle helmet at the officer, striking him in the jaw.

Conversely, Defendant testified he did not swing his motorcycle helmet at the officer

and his helmet did not touch the police officer that he “kn[e]w of.” The only other

evidence the jury had was body camera footage, but it is not clear if this footage

showed the precise moment at issue. Since the two key, and only, witnesses in this

case are of different races and the jury had to make a credibility determination

between them, this case is susceptible to racial discrimination in jury selection, which

also favors a finding of purposeful discrimination. See Golphin, 352 N.C. at 432-33,

533 S.E.2d at 214-15 (discussing the susceptibility of the case to racial discrimination

before stating, “[h]owever” and determining other factors that led to the conclusion

the prosecution had not used its peremptory strikes in a racially discriminatory way).

3. Lack of Disparate Questioning and Investigation

A third factor in our inquiry is whether the prosecutor engaged in “disparate

questioning and investigation of Black and white prospective jurors[.]” Bennett III,

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282 N.C. App. at 608-609, 871 S.E.2d at 848-49. “[D]isparate questioning and

investigation of prospective jurors on the basis of race can arm a prosecutor with

seemingly race-neutral reasons to strike the prospective jurors of a particular race.”

Flowers, ___ U.S. at ___, 204 L.Ed.2d at 660-61. While neither party argues based on

this factor, we review “all of the relevant facts and circumstances[,]” Clegg, 380 N.C.

at 144, 867 S.E.2d at 900, and the trial court inquired about and ruled in part based

on this factor.

The trial court found no disparate questioning or disparate investigation.

Specifically, when questioned by the trial court, Defendant’s attorney agreed the

prosecutor asked the same questions of the Black and White prospective jurors and

also examined them in the same “manner or style[.]” As to the prosecutor’s

investigation, after the prosecutor explained he struck both H.M. and D.N. in part

because they did not mention past criminal charges or convictions, the trial court

asked the prosecutor if he had “run criminal record checks for both the White and

Black jurors,” and the prosecutor responded, “Yes . . . as far as I’m aware, every single

person in this jury pool has had a record check.” Thus, the record does not contain

any evidence of disparate questioning or disparate investigation, which weighs

against a finding of purposeful discrimination. See Flowers, ___ U.S. at ___, 204

L.Ed.2d at 660-61 (explaining how disparate questioning or investigation can obscure

racially discriminatory reasons for strikes).

4. Specific Reasons Prosecutor Gave for Striking Prospective Jurors

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Finally, we directly examine the reasons the prosecutor gave for his strikes

and the arguments Defendant makes about each of the reasons. This part of the

inquiry will involve multiple factors including whether the prosecutor

“misrepresent[ed] . . . the record when defending the strikes during the Batson

hearing” and comparisons between the struck Black jurors and White jurors who

were not struck. Bennett III, 282 N.C. App. at 608-609, 871 S.E.2d at 848-49.

During the Batson hearing before the trial court, the prosecutor gave the same

two reasons for striking both H.M. and D.N. First, the prosecutor said each

prospective juror had failed to disclose their “criminal history[.]” Second, the

prosecutor explained he had concerns about the prospective jurors’ abilities to be “fair

and impartial[.]” We review the prosecutor’s reasoning for striking each individual

juror in turn because the “Constitution forbids striking even a single prospective juror

for a discriminatory purpose.” Foster v. Chatman, 578 U.S. 488, 499, 195 L.Ed.2d 1,

12 (2016) (quoting Snyder, 552 U.S. at 478, 170 L.Ed.2d at 181).

a. Prospective Juror H.M.

As to prospective juror H.M., the prosecutor struck him first because he failed

to disclose “a very lengthy criminal history” when the prosecutor asked if anyone had

“ever been convicted of a crime.” This reason is facially race neutral. Further, our

record contains no evidence any other prospective juror who the State did not strike

similarly failed to disclose a criminal history, which would be evidence of pretext if it

were to exist. See Miller-El II, 545 U.S. at 241, 162 L.Ed.2d at 214 (“If a prosecutor’s

- 29 - STATE V. CUTHBERTSON

proffered reason for striking a [B]lack panelist applies just as well to an otherwise-

similar non[B]lack [person] who is permitted to serve, that is evidence tending to

prove purposeful discrimination to be considered at Batson’s third step.”).

As to this first reason from the prosecutor, Defendant argues the prosecutor

failed to ask “any follow-up questions to determine why [H.M.] had not disclosed the

convictions, or whether he was even the same person reflected in the prosecutor’s

documents.” Initially, we note the record does not contain any information suggesting

H.M. was not the same person reflected in the prosecutor’s documents and Defendant

does not provide any such information or support for that contention. Turning to the

failure to ask follow-up questions about the lack of disclosure, we first note the failure

to follow-up can contribute to a Batson violation as evidence of disparate

investigation. See Flowers, ___ U.S. at ___, 204 L.Ed.2d at 662 (“A State’s failure to

engage in any meaningful voir dire examination on a subject the State alleges it is

concerned about is evidence suggesting that the explanation is a sham and a pretext

for discrimination.” (citation and quotation marks omitted)); Bennett III, 282 N.C.

App. at 613, 871 S.E.2d at 851 (citing Flowers, ___ U.S. at ___, 204 L.Ed.2d at 660-

63) (“Disparate investigation and a failure to meaningfully voir dire a potential juror

on a subject used later to justify a strike could be evidence an explanation is

pretextual.”). For example, in Flowers, the Supreme Court of the United States

analyzed the relevance of the failure to meaningfully voir dire when it was discussing

how the prosecution asked a Black prospective juror numerous follow-up questions

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about her connections to people involved in the case but did not ask three similarly

connected White jurors any follow-up questions on the subject. See Flowers, ___ U.S.

at ___, 204 L.Ed.2d at 662. The Flowers Court reasoned “[i]f the State were concerned

about prospective jurors’ connections to witnesses in the case, the State presumably

would have used individual questioning to ask those potential white jurors whether

they could remain impartial despite their relationships.” Id. “Still, ‘disparate

questioning or investigation alone does not constitute a Batson violation.’” Bennett

III, 282 N.C. App. at 613, 871 S.E.2d at 851 (citing Flowers, ___ U.S. at ___, 204

L.Ed.2d at 661).

Here, while the prosecutor failed to follow-up on H.M.’s non-disclosure of his

criminal history, there is no evidence this failure reflected disparate investigation or

questioning. As discussed above, when the trial court inquired about the prosecutor’s

investigation of jurors’ criminal records after he gave this reason for striking H.M,

the prosecutor said he ran criminal history checks for every potential juror. Further,

the record includes no indication any White juror comparably had an undisclosed

criminal record. This lack of comparable juror blunts the impact of the failure to

follow-up because the failure to follow-up could have been universal. This case does

not have the same situation as in Flowers where the prosecutor’s decision on whether

to follow-up broke down on racial lines. See Flowers, ___ U.S. at ___, 204 L.Ed.2d at

662. Here, the voir dire was not recorded, and we must rely upon the narrative

summary of the questioning. See supra note 3. Since the record does not contain

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enough information to ascertain if the failure to question broke down on racial lines,

it is plausible the prosecutor’s failure to follow-up “reflect[ed] ordinary race-neutral

considerations.” See Flowers, ___ U.S. at ___, 204 L.Ed.2d at 661-63 (explaining

disparate questioning or investigation can “reflect ordinary race-neutral

considerations” before turning to a comparative juror analysis that focused on the

failure follow-up with White prospective jurors on the same reasons that animated a

strike of a Black prospective juror).

Faced with this plausible explanation for the prosecutor’s failure to follow-up,

we fall back on the nature of appellate review of Batson decisions. When conducting

a Batson review, “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Bennett III, 282 N.C.

App. at 601, 871 S.E.2d at 844 (citations and quotation marks omitted). The plausible

view that the prosecutor’s failure to follow-up was race neutral can be reconciled with

the trial court’s ultimate determination that the prosecutor’s strike was not

substantially motivated by discriminatory intent, so the failure to follow-up does not

support a determination the trial court clearly erred.

Beyond H.M.’s undisclosed criminal history, the prosecutor had another valid

reason for the strike. The prosecutor also struck H.M. because the prosecutor had

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concerns about H.M.’s ability to be “fair and impartial[.]”8 Specifically, the prosecutor

explained:

when asked about his ability to be fair and impartial, he said he just really didn’t want to do it. He just really didn’t want to do it, didn’t think he could be fair and impartial, tried to kind of pin him down that -- and I think from his answers that I don’t think he could judge this, or I won’t say judge, but apply the law to the facts at the end of this case and make a fair and impartial decision.

This reason is facially race neutral, but Defendant argues we should find the trial

court clearly erred because “the prosecutor mischaracterized [H.M.]’s answers” on

this question. Batson precedent recognizes a prosecutor’s misrepresentation of the

record can be evidence of pretext. See Clegg, 380 N.C. at 154, 867 S.E.2d at 906 (citing

Foster, 578 U.S. at 505, 195 L.Ed.2d at 15-16) (“[P]roffered reasons that are

contradicted by the record are unacceptable in supporting a challenged peremptory

strike.”). But the prosecutor did not mischaracterize H.M.’s answers here.

At the outset, we note we do not have a complete transcript of the jury selection

voir dire, so we cannot look at H.M.’s precise answers to the questions and compare

them to the prosecutor’s representations of H.M.’s answers. Instead, we are left with

the parties’ North Carolina Rule of Appellate Procedure 9(c)(1) supplement that

narrates the events of jury selection. See supra note 3. Per that supplement, H.M.

8 Although—as discussed above in the section on whether we needed to remand the case—the trial court appears to have rejected this argument, we can still review the reason on appeal. See Clegg, 380 N.C. at 154-55, 867 S.E.2d at 906 (explaining as part of its review that the trial court “properly rejected” two of the prosecutor’s arguments below because of lack of support in the record).

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“initially said he did not want to serve as a juror and did not know if he could be fair

and impartial, but after further discussion, he said he thought that he probably could

be fair.”

Comparing that answer to the prosecutor’s representation, the prosecutor did

not mischaracterize H.M.’s answers. The only time the prosecutor represented H.M.’s

answers, the prosecutor said H.M. said he did not want to “do it” and “didn’t think he

could be fair and impartial[.]” That corresponds closely to the supplement’s narration

where H.M. initially said he did not want to be a juror and “did not know if he could

be fair and impartial[.]” The rest of the prosecutor’s reasoning for why he struck H.M.

relied not on any discussion of H.M.’s answers but rather the prosecutor’s own sense

that the prosecutor could not “pin [H.M.] down” on the topic and did not think H.M.

could “apply the law to the facts at the end of this case and make a fair and impartial

decision.” While the prosecutor did not explicitly acknowledge H.M.’s statement that

H.M. “thought that he probably could be fair[,]” the prosecutor’s discussion of his

continued concerns can easily be reconciled with H.M.’s later, still slightly equivocal

answer about his ability to be fair.

At most, the differences here represent two different ways of interpreting the

relevance and strength of H.M.’s second answer that he thought he could be fair and

impartial. The prosecutor, based on the statement above, does not appear to have

been fully convinced by that answer because he still had doubts about H.M., which

could be animated by the initial answer. By contrast, Defendant’s argument on

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appeal, which appears to be based on the same argument Defendant’s trial counsel

made, is premised on the idea H.M.’s second answer rehabilitated H.M. on the issue.

On appeal, Defendant argues, “Defense counsel found the prosecutor’s

mischaracterization significant enough to bring to the Trial Court’s attention during

the Batson hearing[] (T p.21)[.]” At that portion of the transcript, Defendant’s trial

counsel said he “would characterize [H.M.’s] statements differently” because “[i]t

seemed to me that the prosecutor had rehabilitated him and he said that he probably

could apply the law to -- apply the facts to the law as instructed.” Thus, Defendant’s

argument on appeal is animated by a belief H.M.’s second answer rehabilitated the

juror on the question.

A difference in belief about the quality of the prosecutor’s rehabilitation of

H.M. does not rise to the level of a Batson violation. See Bennett III, 282 N.C. App.

at 601, 871 S.E.2d at 844. “Where there are two permissible views of the evidence,”

such as here, “the factfinder’s choice between them cannot be clearly erroneous.” Id.

Moreover, the trial court is better-situated than this Court to evaluate the

prosecutor’s credibility in explaining his concerns about whether H.M. could be fair

based on H.M.’s answers. See id. at 600, 871 S.E.2d at 844 (“As our courts have

recognized before, trial courts are ‘in the best position to assess the prosecutor’s

credibility[.]’” (quoting Cummings, 346 N.C. at 309, 488 S.E.2d at 561)). The trial

court ultimately sided with the prosecutor by denying the Batson challenge. As a

result, we reject Defendant’s argument and do not discount the prosecutor’s

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explanation he struck H.M. as a result of concerns over whether H.M. could be fair

and impartial due to the prosecutor’s alleged mischaracterization of the record.

b. Prospective Juror D.N.

Turning to prospective juror D.N., the prosecutor first struck D.N. on the

grounds she “was not forthcoming” about a “Class 1 driving charge that she was

charged with” when he asked if “anyone had ever been charged with a crime[.]” Our

record does not contain any additional information on the “Class 1 driving charge[.]”

But our statutes have separate numerical “Class[es]” only for misdemeanor charges,

see generally N.C. Gen. Stat. § 15A-1340.23 (2019) (setting out misdemeanor classes

with numbers); N.C. Gen. Stat. § 15A-1340.17 (2019) (setting out felony classes with

letters), and some driving offenses are Class 1 misdemeanors. See, e.g., N.C. Gen.

Stat. § 20-141.6(c) (2019) (“A person convicted of aggressive driving is guilty of a Class

1 misdemeanor.”). As a result, it appears the prosecutor was referring to a charge for

a Class 1 misdemeanor.

As Defendant concedes, the prosecutor’s proffered reason for striking D.N.

based on her failure to disclose this past charge is facially race neutral. Defendant

presents three contentions that the prosecutor’s reason was actually pretextual, but

none of them convince us the trial court clearly erred in accepting this reason. First,

Defendant argues the prosecutor “had asked the jurors if any of them had ever been

charged with a crime, not a traffic offense” and “there are many Class 1 traffic

misdemeanors that ordinary citizens might view as ‘compliance’ tickets or minor

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offenses, rather than as ‘criminal’ charges that they would need to disclose in

response to such a question.” (Emphasis added by Defendant.) But a Class 1

misdemeanor, or any misdemeanor, is a crime. See N.C. Gen. Stat. § 14-1 (2019)

(defining felonies and then stating, “Any other crime is a misdemeanor” (emphasis

added)). Whether ordinary citizens may not recognize the charge as a misdemeanor

crime does not undermine the prosecutor’s reasoning on its own. While the failure to

disclose can have an innocent explanation of failing to realize a charge was a crime,

it can also be the result of a willful failure to disclose. Without additional information,

the prosecutor cannot know which of the two options explains a failure to disclose.

We reject Defendant’s second argument for similar reasons. Defendant

contends the prosecutor was focused on charges in this question and that “fairly

suggests that [D.N.] was not actually convicted of the offense, which would make it

even less likely that she would realize that she needed to disclose it[.]” (Emphasis in

original.) Even accepting Defendant’s contention D.N. was likely not convicted of the

offense, the prosecutor still explained that he struck D.N. because she failed to

disclose the charge when the prospective jurors were asked “if any of them had ever

been charged with a crime.” (Emphasis added.) The prosecutor had also previously

asked if anyone had been convicted of a crime. Since the prosecutor asked about both

convictions and charges separately, D.N. could, and arguably should, have realized

the need to disclose a misdemeanor charge. Even if D.N. did not realize the need to

disclose the charge, the prosecutor would not necessarily know that the failure to

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disclose had an innocent explanation, as already discussed.

As Defendant’s third contention recognizes, one way to try to cure the

uncertainty around the reason for the failure to disclose would be for the prosecutor

to ask follow-up questions to determine if D.N.’s “failure to disclose” the Class 1

misdemeanor charge “was a simple misunderstanding.” While in other situations the

failure to follow-up can contribute to a Batson violation in conjunction with other

factors, here the same factors that mitigated the prosecutor’s failure to follow-up

above with respect to H.M. exist with D.N. as well. See Flowers, ___ U.S. at ___, 204

L.Ed.2d at 662 (stating a failure to “meaningful[ly] voir dire” on a subject is evidence

suggesting an explanation “is a sham and a pretext for discrimination”); Bennett III,

282 N.C. App. at 613, 871 S.E.2d at 851 (explaining disparate investigation and a

lack of meaningful voir dire “on a subject used later to justify a strike” can be evidence

“an explanation is pretextual” before stating “disparate questioning or investigation

alone does not constitute a Batson violation”). The prosecutor checked all jurors’

criminal histories. No other White juror was similarly situated, so the failure to

follow-up could have been universal rather than the result of racially disparate

investigation.

Moreover, as with H.M. above, the prosecutor had another valid reason to

strike D.N. Specifically, the prosecutor also struck her because of a concern about

whether she could be fair or impartial:

[W]hen I got into the same questions about can you be fair

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and impartial, she said probably. I kind of tried to flesh that out with her a little. I can’t remember her exact words, but she didn’t know if she could do that to another person, didn’t know if she could be fair and impartial. I did try to ask that a few different ways, and I believe based on her answers that she could not be, Your Honor.

This reasoning is facially race neutral. Further, the prosecutor’s explanation aligns

with D.N.’s answers when asked if she could be fair and impartial. Specifically, D.N.

responded that she probably could be fair and impartial. The prosecutor asked her to explain further, and she stated that she did not know if she could “do that to another person.” The prosecutor told [D.N.] that, as a juror, she would only be deciding whether the State had met its burden of proof in the case, and would not be deciding any issue related to punishment. [D.N.] said she might be able to be fair and impartial, but did not know if she could.

Defendant does not even contest the accuracy of the prosecutor’s representations of

D.N.’s answers. Thus, the prosecutor’s facially race neutral reason also accurately

represented D.N.’s answers.

Defendant acknowledges D.N. said “at one point” that “she did not know if she

could be fair” but contends “she also initially stated that she could probably be fair.”

Defendant then argues D.N. “never said that she could not be fair, and defense

counsel believed that the prosecutor had sufficiently rehabilitated her.” As with the

arguments about H.M. above, at most Defendant’s arguments here represent a

difference in opinion about how well the prosecutor rehabilitated D.N. With D.N.,

the case is even stronger against rehabilitation because her later answers revealed

more equivocality than her earlier answers, which was the opposite of H.M. Put

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another way, D.N. seemed less likely to be able to be fair or impartial the more the

prosecutor asked, which is the opposite of how a rehabilitation of a juror would work.

Regardless of the relative strength of the rehabilitation, similar to the discussion of

H.M.’s answers above, this difference in opinion about how well the prosecutor

rehabilitated D.N. does not amount to a clear error in the trial court’s rejection of

Defendant’s Batson challenge.

5. Weighing All of the Relevant Factors

Now that we have reviewed “all of the relevant facts and circumstances[,]” we

determine that, “taken together[,]” the trial court did not commit clear error in

concluding the State’s peremptory strikes of H.M. and D.N. were not “motivated in

substantial part by discriminatory intent.” Clegg, 380 N.C. at 144, 867 S.E.2d at 900.

The statistics of strike rates and susceptibility of the case to racial discrimination

both weigh on the side of discriminatory intent, but those two factors alone are not

as powerful as other factors. See Miller-El II, 545 U.S. at 241, 162 L.Ed.2d at 214

(explaining “bare statistics” are not as “powerful” as “side-by-side comparisons” of

struck Black prospective jurors and White prospective jurors “allowed to serve”);

Golphin, 352 N.C. at 432-33, 533 S.E.2d at 214-15 (explaining the case was

“susceptible to racial discrimination” before determining the other factors meant the

reviewing court was “convinced the State did not discriminate on the basis of race in

exercising its peremptory challenges”).

On the other side of the scale, the prosecutor did not engage in disparate

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questioning or investigation. Additionally, the prosecutor gave two race-neutral

reasons—(1) failure to disclose criminal history and (2) concerns about the ability to

be fair and impartial—for striking each juror that withstand scrutiny. While the

prosecutor did not follow-up on the prospective jurors’ failure to disclose their

criminal history, that lack of follow-up is mitigated by the lack of any evidence in our

record indicating it was due to disparate treatment. Further, the prosecutor’s

concerns about H.M. and D.N.’s ability to be fair and impartial had no such caveats.

Based on this evidence, we are not “left with the definite and firm conviction

that a mistake ha[s] been committed.” Bennett III, 282 N.C. App. at 600, 871 S.E.2d

at 844. As a result, we hold the trial court did not clearly err in denying Defendant’s

Batson objections. See id.

III. Conclusion

The trial court did not err in denying Defendant’s Batson challenge to the

prosecutor’s peremptory strikes of two Black jurors. The trial court properly

considered all the relevant factors presented by the parties when it weighed the

circumstances at Batson’s third step, so we do not need to remand this case. Turning

to the trial court’s ruling itself, after reviewing all the relevant factors and

circumstances, the trial court did not clearly err in determining the prosecutor’s

peremptory strikes were not motivated in substantial part by discriminatory intent.

NO ERROR.

Judges DILLON and GORE concur.

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