State v. Campbell

• Decision Date: 21 January 2020
• Docket Number: No. COA18-998,COA18-998
• Parties: STATE of North Carolina v. Antiwuan Tyrez CAMPBELL
• Court: North Carolina Court of Appeals

269 N.C.App. 427

838 S.E.2d 660

STATE of North Carolina

v.Antiwuan Tyrez CAMPBELL

No. COA18-998

Court of Appeals of North Carolina.

Filed: January 21, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Peter A. Regulski, for the State.

Geeta N. Kapur for defendant-appellant.

ARROWOOD, Judge.

Antiwuan Tyrez Campbell ("defendant") appeals from judgment entered against him for first-degree murder. On appeal, defendant argues that the trial court erred by concluding that he failed to establish a prima facie case of racial discrimination in jury selection, as set forth by Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986). The State has filed a motion to dismiss defendant's appeal. We deny the same and review defendant's appeal on the merits. For the reasons that follow, we find no error.

I. Background

On 15 April 2015, defendant was indicted for the first-degree murder of Allen Wilbur Davis, Jr., as well as the second-degree kidnapping of K.J.¹ The case came on for trial in Columbus County Superior Court before the Honorable Douglas B. Sasser on 24 July 2017. On that date, the trial court addressed several pretrial motions filed by defense counsel, including "a motion for a complete recordation of all the proceedings." Counsel specifically noted that she was "not requesting that [complete recordation] include jury selection," and that her motion was "[j]ust for appeal purposes." The trial court granted the motion for recordation. Jury selection commenced the following day. However, as requested by defense counsel, those proceedings were not recorded.

On the second day of jury selection, as the parties were seating alternate jurors, defense counsel objected to the State's use of peremptory challenges, alleging that they were exercised in a racially discriminatory manner in violation of Batson . By this point in the proceedings, the State had exercised four peremptory challenges, three of which were used to strike African American prospective jurors: Ms. Vereen, Ms. Holden, and Mr. Staton. Defense counsel asserted that "the State ... has tried extremely hard for every African-American, to excuse them for cause[,]" adding that "the last two alternate [African American] jurors ... excused showed no leaning one way or the other or indicated that they would not be able to hear the evidence, apply the law, and render a verdict." Defense counsel further noted that

[w]e had Ms. Vereen on the front, who the State stayed on her over and over again, trying to get her removed for cause, and they finally used a peremptory on her. And then we move to our alternate, Mr. Staton. [The prosecutor] tried twice to get him removed for cause.

After considering defense counsel's argument, the trial court denied defendant's Batson challenge.

Later that day, however, Judge Sasser stated that "upon further reflection, although I do not find that a prima facie case has been established for discrimination pursuant to Batson , in my discretion, I am still going to order the State to proceed as to stating a racially-neutral basis for the exercise of the peremptory challenges[.]" The State then offered the following bases for the exercise of its peremptory challenges for each of the stricken African American prospective jurors:

1. The first juror, Ms. Vereen, had indicated that she knew Clifton Davis ("Davis") and had dated his brother, both of whom were potential witnesses at defendant's trial. Davis was a friend of defendant, and was allegedly at the scene with him at the time of the crimes.

2. The second juror, Mr. Staton, was challenged because he "made several conflicting statements during the State's questioning to try to ensure if he could be fair and impartial or not." Further, he knew K.J.’s mother, who was "a fact witness and ... an eyewitness ... to the kidnapping."

3. The third juror, Ms. Holden, was stricken because she had been a classmate of two potential witnesses at defendant's trial. The State also explained that

an additional reason for the peremptory strike against Ms. Holden was the fact when she was describing her political science background and nature as a student, she also was indicating that she was a participant, if not an organizer, for Black Lives Matter at her current college with her professor, and whether or not that would have any implied unstated issues that may arise due to either law enforcement, the State, or other concerns we may have.

Following the State's explanation of the bases for the exercise of its peremptory challenges, the trial court reiterated that it "continues to find ... that there has not been a prima facie showing as to purposeful discrimination" in violation of Batson .

At the conclusion of the trial, the jury returned verdicts finding defendant not guilty of second-degree kidnapping, but guilty of first-degree murder. Defendant timely appealed.

II. Discussion

On appeal, defendant argues that the trial court erred in ruling that he failed to establish a prima facie showing that the State exercised peremptory challenges in a racially discriminatory manner, in violation of Batson . The State has filed a motion to dismiss defendant's appeal. After first disposing of the State's motion, we turn to the merits of defendant's appeal.

A. Motion to Dismiss

The State argues that defendant's failure to include in the appellate record a transcript of the jury selection proceedings warrants dismissal of defendant's appeal. We disagree and deny the State's motion to dismiss on this ground.

The record in this case is minimally sufficient to permit appellate review. We disagree with the proposition that, in order to be entitled to review of a Batson claim, a defendant must include a verbatim transcript of jury selection in the record. We find no support in our statutes or case law which lead to such a result. We hasten to add that if a defendant anticipates making a Batson discrimination argument, it is extremely difficult to prevail on such grounds without a transcript of jury selection.

A three-step process has been established for evaluating claims of racial discrimination in the prosecution's use of peremptory challenges. First, defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Second, if such a showing is made, the burden shifts to the prosecutor to offer a racially neutral explanation to rebut defendant's prima facie case. Third, the trial court must determine whether the defendant has proven purposeful discrimination.

State v. Cummings , 346 N.C. 291, 307-308, 488 S.E.2d 550, 560 (1997) (citations omitted), cert. denied , 522 U.S. 1092, 118 S.Ct. 886, 139 L. Ed. 2d 873 (1998).

In determining whether a defendant has established a prima facie case of discrimination, our Supreme Court has noted that "[s]everal factors are relevant[.]" State v. Hoffman , 348 N.C. 548, 550, 500 S.E.2d 718, 720 (1998).

Those factors include the defendant's race, the victim's race, the race of the key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory challenges against [African Americans] such that it tends to establish a pattern of strikes against [African Americans] in the venire, the prosecution's use of a disproportionate number of peremptory challenges to strike [African American] jurors in a single case, and the State's acceptance rate of potential [African American] jurors.

Id. (quoting State v. Quick , 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) ).

A verbatim transcript need not be furnished in every case for us to review whether a defendant established a prima facie Batson claim before the trial court. See State v. Sanders , 95 N.C. App. 494, 499, 383 S.E.2d 409, 412 (1989) (acknowledging even without a verbatim transcript of jury selection, the record contained "the barest essentials" to permit review: "the racial composition of the jury, the number of [African American] jurors excused, and the State's proffered reasons for their exclusion. The record also contains defense counsel's response to the prosecutor's explanations and the trial judge's conclusions."). Yet a defendant must include some evidence in the record, in one form or another, shedding light on the aforementioned factors to enable appellate review of a Batson claim. A narrative summary of voir dire proceedings, made during the Batson hearing and agreed to by defense counsel, the prosecutor, and the trial court, as was done here, may suffice to permit review. Moreover, the narrative summary in this case was minimally sufficient to enable review.

While we believe that such a narrative must contain more relevant information in order to prevail, as discussed infra in our determination on the merits, unlike the dissent, we find remand to be unnecessary. The dissent opines that the trial court erred in failing to make specific findings of fact as to the Quick factors in its determination that defendant had not made a prima facie showing, and believes remand for entry of such findings to be appropriate. We disagree. The trial court's findings on defendant's Batson claim were indeed conclusory: "[A]t this point, the Court does not find that the State's exercise of peremptory challenges has even reached [the very low hurdle for making a prima facie claim] yet. ... [T]he Court has found at this point there's not a prima facie showing, and the Court will deny the Batson challenge."

Nonetheless, remand is inappropriate. While the absence of a transcript of voir dire does not preclude our review, it does preclude remand in the instant case. "[T]he failure of a trial court to find facts is not prejudicial where there is no ‘material conflict in the evidence on voir dire .’ " Sanders , 95 N.C. App. at 500-501, 383 S.E.2d at 413 (emphasis in original) (quoting State v. Riddick , 291 N.C. 399, 408, 230 S.E.2d 506, 512 (1976) ). In Sanders , where the trial court entered a similar...