Appeal by defendant from judgment entered 6 February 2002 by
Judge W. Osmond Smith in Wake County Superior Court. Heard in the
Court of Appeals 17 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Tammera S. Hill and Special Deputy Attorney General T. Lane
Mallonee, for the State.
Irving Joyner, attorney for defendant.
TIMMONS-GOODSON, Judge.
Anthony Fernando Matthews (“defendant”) appeals his conviction
for robbery with a dangerous weapon. For the reasons stated
herein, we find no error in the trial court's judgment.
The pertinent procedural history of this case is as follows:
During jury selection at trial, the State peremptorily challenged
prospective jurors Sandra Haney (“Haney”) and Raecheal Weaver(“Weaver”). The defense counsel objected to their removal, noting
that defendant, Haney and Weaver were all African-Americans and
contended that the challenges were racially motivated. Defense
counsel argued that “[n]othing stuck out as anything that would
give rise to a reason to excuse them, therefore we're left with
something that's [sic] on its face would deprive [defendant] of
having two to three members on the panel that are African-
American.” The State responded stating that because there remained
one African-American prospective juror, “I don't think I should
have to answer to that.” Based on the exchange, the trial court
denied defendant's objection, asserting that defendant failed to
make a prima facie showing of discrimination. The court reserved
the right to revisit the issue pending further jury selection.
After the State chose twelve jurors, eleven of whom were
Caucasian and one of whom was African-American, the court sua
sponte reconsidered the State's use of its peremptory challenges
and ruled “that without a showing of any intention or a showing of
any discrimination ... there is a prima facie basis shown by the
defendant in his allegations of discrimination based on [Batson v.
Kentucky, 476 U.S. 79 (1986)] and that 100 percent of the State's
challenge [sic] were directed to black females and leaving only one
black female on the jury.” The court then gave the State the
opportunity to “rebut the prima facie showing and present any
reason ... to show that the peremptory challenges were not
motivated by racial [sic] discriminatory or unconstitutional
purposes.” The State offered that Weaver was challenged because when
asked if she ever sat on a jury, she stated that she was once
excused from a jury during voir dire and therefore he decided to
excuse her from this case “for the reason that some other lawyer at
another point in time ... exercised a peremptory challenge as far
as she goes.” As for Haney, the State challenged her because she
lived in the vicinity of the crime at issue in the case but was not
familiar with the particular store that was robbed. In his
response to the State's explanation, defense counsel pointed out
that there were other potential jurors who stated that they were
previously called for jury duty but were not chosen, and that the
State did not challenge them. The defendant also noted that Haney
was the only prospective juror who the State chose to focus on her
residential proximity to the crime. The trial court ultimately
overruled defendant's objection, having determined that the State
“expressed valid, articulable reasons for the exercise of
peremptory challenges not based on race.” It is from this ruling
that defendant appeals.
The issues presented on appeal are whether (I) the trial court
erred by denying defendant's
Batson challenges; and (II) the
robbery with a dangerous weapon indictment was fatally defective.
[1] For issues arising under
Batson v. Kentucky, 476 U.S. 79
(1986),
modified, Powers v. Ohio, 499 U.S. 400 (1991), trial courts
must apply a three-step test to determine whether the State's
peremptory challenges of prospective jurors are purposefully
discriminatory. First, the defendant must successfully establisha
prima facie case of purposeful discrimination.
Batson, 476 U.S.
at 96. If the
prima facie case is not established, then the
peremptory challenges will stand. If the
prima facie case is
established, however, the burden shifts to the prosecutor to offer
a race-neutral explanation for each peremptory challenge at issue.
Id. at 97. If the prosecutor fails to rebut the
prima facie case
of racial discrimination with race-neutral explanations, then the
peremptory challenges are not allowed. If the prosecutor does
rebut the
prima facie case with race-neutral explanations, the
defendant has a right of surrebuttal to show that the prosecutor's
explanations were merely pretextual.
State v. Peterson, 344 N.C.
172, 176, 472 S.E.2d 730, 732 (1996),
citing State v. Spruill, 338
N.C. 612, 631, 452 S.E.2d 279, 288 (1994),
cert. denied 516 U.S.
834 (1995). If the trial court finds that the race-neutral reasons
are not pretextual, the peremptory challenges are allowed. If the
trial court finds, however, that the race-neutral explanations are
pretextual, it follows that the peremptory challenges at issue are
purposefully discriminatory; they are therefore not allowed.
The trial court's determination is given deference on review
because it is based primarily on first-hand credibility
evaluations.
State v. Golphin, 352 N.C. 364, 427, 533 S.E.2d 168,
211 (2000). “Appellate courts must uphold the trial court's
findings of fact unless they are 'clearly erroneous.'”
State v.
Cofield, 129 N.C. App. 268, 275-76, 498 S.E.2d 823, 829 (1998),
quoting State v. Barnes, 345 N.C. 184, 210, 481 S.E.2d 44, 48
(1997).
We cannot find clear error in the fact-finder's decision
where the fact-finder chooses one of two permissible views of theevidence.
Id., citing Hernandez v. New York, 500 U.S. 352, 369
(1991).
“This standard allows for reversal only when a 'reviewing
court on the entire evidence [is] left with the definite and firm
conviction that a mistake has been committed.'”
Id.
In the present case, the fact that the State only used its
peremptory challenges to strike African-American jurors was deemed
sufficient by the trial court to establish a
prima facie case of
discrimination. “A
prima facie case 'need only show that the
relevant circumstances raise an inference that [counsel] used
peremptory challenges to remove potential jurors solely because of
their race.'”
Colfield, 129 N.C. App at 276, 498 S.E.2d at 829,
citing State v. Quick, 341 N.C. 141, 144, 462 S.E.2d 186, 188
(1995). Relevant circumstances include repeated use of peremptory
challenges against prospective jurors of a particular race such
that it tends to establish a pattern of strikes, and the attorney's
acceptance rate of potential jurors of this race.
Id. The State
is allowed six peremptory challenges per defendant in a criminal
case. N.C. Gen. Stat. § 15A-1217 (2003). In the case at bar, the
State chose to exercise two of its six peremptory challenges, and
both against African-American jurors.
In response to the court's ruling, the State argued that
Weaver was challenged because she was removed from a jury pool in
a previous case. The State asserted that Haney was challenged
because her statement that she lived in the neighborhood where the
robbery occurred but did not know of the particular store that was
robbed raised concerns about her level of awareness. In
Colfield,
this Court held that the challenging attorney's explanations need not 'rise to the level justifying a
challenge for cause,' and need not be 'persuasive, or
even plausible.'
Barnes, 345 N.C. at 209, 481 S.E.2d at
57. In fact, the challenges may be based on [the
challenging attorney's] 'legitimate hunches and past
experience.'
Id. [Counsel] must, however, articulate
'legitimate race-neutral reasons that are clear,
reasonably specific, and related to the particular case
to be tried.'
State v. Peterson, 344 N.C. 172, 176, 472
S.E.2d 730, 732 (1996). 'Unless a discriminatory intent
is inherent in [the challenging attorney's] explanation,
the reason offered will be deemed race neutral at this
secondary stage of the inquiry.
'
Hernandez, 500 U.S. at
360.
Colfield, 129 N.C. App. at 277, 498 S.E.2d at 830.
We hold that while the State's challenge against Haney may
have been based on a legitimate hunch, the basis for the challenge
against Weaver is not sufficiently related to the case at bar. In
our opinion, striking a potential juror from a jury pool because
another attorney exercised a peremptory challenge against her in a
previous unrelated case without further explanation from the
challenging attorney in the present case does not articulate a
legitimate reason that is reasonably specific and related to the
particular case to be tried. Arbitrary as this explanation is,
however, under our existing case law we are compelled to hold that
it does not rise to the level of demonstrating discriminatory
intent.
See e.g. State v. Harden, 344 N.C. 542, 558, 476 S.E.2d
658, 666 (1996) (Concluding no discriminatory intent where the
State excused a potential juror because she was “young and
immature”).
After the State offers its race-neutral explanation, the trial
court must consider that explanation as well as the defendant's
surrebuttal to the State's argument to determine whether the
State's explanation is pretextual.
Colfield, 129 N.C. App. at 279,498 S.E.2d at 831. This Court held in
Colfield that “even if
answers of a prospective juror of one race who is later
peremptorily excused are similar to those of a juror of another
race who is not challenged, 'this state of circumstances in itself
does not necessarily lead to a conclusion that the reasons given by
[the challenging attorney] were pretextual.'”
Id., quoting Barnes,
345 N.C. at 212, 481 S.E.2d at 59. Thus, defendant's argument that
there were other prospective jurors who gave answers similar to
Haney and Weaver does not provide an adequate basis for ascribing
error to the trial court's finding that the State's use of its
peremptory challenges was in violation of
Batson. Because we are
unable to conclude that there is clear error in the trial court's
decision, we overrule this assignment of error.
[2] Defendant next argues that the State's indictment was
fatally defective in that it fails to properly identify the target
of the robbery. We disagree.
North Carolina General Statute §15A-924(a)(5) (2003) requires
that an indictment describe the crime charged “with sufficient
precision to apprise the defendant ... of the conduct which is the
subject of the accusation.” “[T]he purpose of an indictment is to
identify clearly the crime being charged, thereby putting the
accused on reasonable notice to defend against it and prepare for
trial.” State v. Thrift, 78 N.C. App. 199, 201, 336 S.E.2d 861,
862 (1985).
The person in the store at the time of the robbery was an
employee and not the owner of the store. The indictment in
pertinent part reads as follows: ... the defendant ... unlawfully, willfully, and
feloniously did steal, take and carry away and attempt to
steal, take and carry away another's personal property,
to wit: two twelve packs of Bud Light beer, having an
approximate value of twenty dollars ($20), from the
person, presence and place of business of Zaka Ullah. The
defendant committed this act by means of assault having
in his possession and with the use and threatened use of
a knife, a dangerous weapon whereby the life of Zaka
Ullah was endangered and threatened.
Although the relationship of the robbery victim to the store
that was robbed raises a question of fact, it does not raise any
doubt as to the crime being charged, nor does it hinder defendant's
ability to prepare his defense. The indictment alleges that
defendant committed the offense by threatening Ullah with a knife
and taking twenty dollars worth of merchandise from the store. The
evidence tendered by the state was consistent with the allegations
contained in the indictment. This assignment of error is
overruled.
No error.
Judges HUDSON and ELMORE concur.
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