An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-509


Filed: 1 April 2003

                                 Cabarrus County
    v.                            Nos. 01 CRS 4695
                                    01 CRS 50100
JARVIS OCTAVIUS CROWDER                    01 CRS 50101

    Appeal by defendant from judgment entered 11 July 2001 by Judge W. Robert Bell in Cabarrus County Superior Court. Heard in the Court of Appeals 17 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.

    Robert T. Newman, Sr., for defendant appellant.


    Jarvis Octavius Crowder (“defendant”) appeals from his conviction and resulting sentence entered upon jury verdicts finding him guilty of possession of cocaine and drug paraphernalia. For the reasons stated herein, we find no error by the trial court.
    The pertinent facts of this appeal are as follows: On 19 February 2001, a grand jury indicted defendant with possession of cocaine, breaking and entering, possession of drug paraphernalia, larceny after breaking and entering, and possession of stolen goods. He was also charged with habitual felon status. The jury at defendant's subsequent trial acquitted him of all charges except possession of cocaine and possession of drug paraphernalia. Defendant pled guilty to habitual felon status. The courtconsolidated the convictions and sentenced defendant to a minimum term of 121 months' and a maximum term of 155 months' imprisonment. From his conviction and resulting sentence, defendant appeals.
    Defendant contends that the trial court erred by (1) denying his challenge to the State's removal of two African-American jurors, and (2) denying defendant's motion to dismiss the habitual felon charge on the grounds that the habitual felon statute is unconstitutional.
    Defendant first contends the court erred by denying his challenge to the State's exercise of its peremptory challenges to remove two African-American jurors. He argues that the removal of the jurors was not based on race-neutral reasons and his rights under the United States and North Carolina Constitutions were therefore violated.
    The use of peremptory challenges for racially discriminatory purposes violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, Section 26 of the North Carolina Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986); State v. King, 353 N.C. 457, 468, 546 S.E.2d 575, 586 (2001). Our courts employ a three- step process to determine whether the use of peremptory challenges to strike members of a particular race from the jury is unconstitutional. State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). First, the defendant must make a prima facie showing thatthe State exercised peremptory challenges on the basis of race. Id. at 14, 530 S.E.2d at 815. Second, if this showing is made, the burden shifts to the prosecution to offer race-neutral reasons for its exercise of the peremptory challenges. See id. Third, the court must decide whether the defendant has proven purposeful discrimination on the part of the prosecution. Id. at 14, 530 S.E.2d at 816. The trial court's determination will be upheld on appeal unless the appellate court is convinced the trial court clearly erred. See State v. Kandies, 342 N.C. 419, 434-35, 467 S.E.2d 67, 75, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996).
    In the instant case, the record shows that the first twelve prospective jurors consisted of four white females, five white males, one black male and two black females. The prosecutor exercised peremptory challenges to excuse one black male and one black female. The court found that defendant failed to make a prima facie showing of racial discrimination. Nonetheless, the court permitted the prosecutor to state her reasons for exercising the peremptory challenges. The prosecutor indicated that the black male had a prior conviction and the victim had “a bad feeling” about this juror. The prosecutor stated that the black female worked in the insurance industry, and the prosecutor feared evidence might be admitted regarding the victim's failure to file an insurance claim. The prosecutor also commented that the black female juror failed to make eye contact and gave evasive answers.     When reasons are given for the peremptory challenges, theappellate court does not need to determine whether the defendant made a prima facie showing of racial discrimination. See State v. Harden, 344 N.C. 542, 557, 476 S.E.2d 658, 665 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997). As long as the reason given by the prosecutor is facially valid and devoid of inherent discriminatory intent, it will be deemed race neutral. See State v. Bonnett, 348 N.C. 417, 433, 502 S.E.2d 563, 574-75 (1998), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999). The reasons given by the prosecutor in the case at bar are consistent with reasons found race-neutral and acceptable in prior appellate decisions. See, e.g., State v. Rogers, 355 N.C. 420, 445, 562 S.E.2d 859, 875 (2002) (concluding that, where the juror “seemed uncomfortable with the law and unwilling to participate in the trial,” removal was not racially motivated); Bonnett, 348 N.C. at 434, 502 S.E.2d at 575 (determining that, where the juror failed to make eye contact, removal was justified and race neutral). Defendant offered no rebuttal to show that the prosecutor's reasons were a pretext. See State v. Hardy, 353 N.C. 122, 129, 540 S.E.2d 334, 341 (2000), cert. denied, 534 U.S. 840, 151 L. Ed. 2d 56 (2001). We therefore conclude that the trial court did not err in determining that the prosecutor did not exercise peremptory challenges for racially discriminatory purposes. This assignment of error is overruled.
    Defendant next contends that the habitual felon statute is unconstitutional. Defendant did not raise this issue in the trial court. “Constitutional questions which are not raised and passedupon at trial will not be considered on appeal.” State v. Gainey, 355 N.C. 73, 105, 558 S.E.2d 463, 484, cert. denied, __ U.S.__, 154 L. Ed. 2d 165 (2002). We therefore dismiss this assignment of error.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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