State v. Floyd

445 S.E.2d 54, 115 N.C. App. 412, 1994 N.C. App. LEXIS 679
CourtCourt of Appeals of North Carolina
DecidedJuly 5, 1994
Docket9312SC764
StatusPublished
Cited by3 cases

This text of 445 S.E.2d 54 (State v. Floyd) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Floyd, 445 S.E.2d 54, 115 N.C. App. 412, 1994 N.C. App. LEXIS 679 (N.C. Ct. App. 1994).

Opinions

ARNOLD, Chief Judge.

Defendant first argues that the prosecutor impermissibly used peremptory challenges to excuse prospective jurors based upon their race. The record reveals that the prosecutor challenged five of five prospective black jurors, and that defendant timely objected to each challenge.

.When asserting a claim of racial discrimination in jury selection defendant must first make out a prima facie case of racial discrimination. Defendant makes a prima facie case by showing that (1) he is a member of a racial minority, (2) that members of his race were peremptorily excused, and (3) that racial discrimination appeared to be the motivation for excusing the members of his race. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986), State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990). The court found that defendant made a prima facie case, and the State does not argue to the contrary. Because defendant made his prima facie case, the State was required to articulate race neutral reasons which were “ ‘clear and reasonably specific’. . . [and] ‘related to the particular case to be tried.’ ” Porter, 326 N.C. at 497, 391 S.E.2d at 150 (citing Batson). After the State’s rebuttal defendant had the right of surrebuttal, which he exercised, to show that the State’s reasons were pretextual. Id. The court found and concluded that the prosecutor rebutted defendant’s prima facie case and that the prosecutor’s reasons for excusing the black jurors were not pretextual.

On review, the trial judge’s findings are entitled to great deference, rightly so because he is present when the jurors are examined. He is able to judge the prosecutor’s credibility and to gain a first hand impression of the prosecutor’s demeanor. Based upon these factors [415]*415as well as his experience and the prosecutor’s statements and questions, the trial judge determines if the prosecutor excused prospective jurors based on their race. See State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1991).

Our examination of the transcript revealed valid race neutral reasons, articulated by the prosecutor, for excusing the prospective black jurors, and, giving the trial judge’s findings due deference, we are compelled to affirm the judge’s ruling.

The prosecutor excused the first prospective black juror because she seemed to have trouble understanding the burden of proof and her duty should the State prove defendant’s guilt beyond a reasonable doubt. This prospective juror also had a son approximately defendant’s age who was involved in a breaking and entering. The prosecutor excused the next prospective black juror because he was evasive in that he was reluctant to reveal his involvement in an assault on his wife and sister-in-law. This prospective juror concealed two other charges against him of assault and communicating threats. He also had a relative involved in an armed robbery.

The next prospective black juror seemed very head-strong, according to the prosecutor, and not amenable to deliberation. The prosecutor drew this conclusion from the prospective juror’s statements about her involvement in her adult daughter’s affairs, which ultimately resulted in her daughter being unemployed. The prosecutor further supported his perception of the prospective juror with her responses to job-related questions. The prosecutor also had difficulty making eye contact with this prospective juror.

The fourth prospective black juror was excused because she had been arrested on drug charges, and she concealed convictions for writing worthless checks. The final prospective black juror was excused because he was charged with driving while impaired, and the prosecutor concluded from the juror’s statements that he had a discipline problem in the military.

Defendant’s efforts to show that these reasons were pretextual are not sufficient to persuade us to reverse the trial judge’s ruling. Part of defendant’s strategy consists of comparing traits of excused jurors with traits of jurors accepted by the prosecutor. It has long been recognized that this strategy is of little use because it “fails to address the factors as a totality which when considered together provide an image of a juror considered in the case undesirable by the [416]*416State.” Porter, 326 N.C. at 501, 391 S.E.2d at 152-53. “‘[M]erely because some of the observations regarding each stricken venireper-son may have been equally valid as to other members of the venire who were not challenged [does not] require [] . . . finding the reasons were pretextual.’ ” Id. at 501, 391 S.E.2d at 153. The cold record before us does not provide enough support for defendant’s remaining arguments to convince us to disregard the trial judge’s conclusion that the prosecutor was not motivated by racial discrimination.

Defendant argues next that the trial court erred in joining the cases for trial and in denying his motion to sever. Two or more offenses may be joined for trial when the offenses “are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (1988). The decision to join offenses for trial is in the trial judge’s discretion and will not be disturbed absent an abuse of that discretion. State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981). In deciding whether or not to join offenses it is appropriate to consider commonality of facts, see State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981), and the nature of the joined offenses. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978).

The two robberies were separated by less than twenty-four hours. Both robberies took place at Quick Stop convenience stores in the Fayetteville area, and in both robberies the perpetrator used a silver automatic handgun, although the clerk at Quick Stop 95 testified that it was a 9mm, and a spent shell casing established that a .25 caliber was used at the Quick Stop 31. In both robberies the robber walked up to the counter and distracted the store clerk with a transaction before revealing his weapon and demanding money. Based upon these facts and our review of pertinent case law we conclude that these offenses were properly joined for trial. See Bracey, 303 N.C. 112, 277 S.E.2d 390; State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979).

We also conclude that joinder of these offenses was not prejudicial to defendant.

The court is required to grant a severance motion if it is necessary for “a fair determination of the defendant’s guilt or innocence of each offense.” G.S. 15A-927(b). The court must determine whether “in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able [417]*417to distinguish the evidence and apply the law intelligently as to each offense.” G.S. 15A-927(b)(2).

Bracey, 303 N.C. at 116, 277 S.E.2d at 394.

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State v. Peterson
695 S.E.2d 835 (Court of Appeals of North Carolina, 2010)
State v. Breeze
503 S.E.2d 141 (Court of Appeals of North Carolina, 1998)
State v. Floyd
445 S.E.2d 54 (Court of Appeals of North Carolina, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
445 S.E.2d 54, 115 N.C. App. 412, 1994 N.C. App. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-floyd-ncctapp-1994.