State v. Cuthbertson

Case DateApril 18, 2023
CourtCourt of Appeal of North Carolina (US)




No. COA22-92

Court of Appeals of North Carolina

April 18, 2023

Heard in the Court of Appeals 15 November 2022.

Appeal by defendant from judgment entered on or about 9 June 2021 by Judge William A. Wood II in Superior Court, Rowan County, No. 19CRS53041

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 defendantappellant.

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


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 White[1]-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


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


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


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


impermissible discrimination ha[d] occurred" and asked the prosecutor to give "raceneutral 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


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

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