State v. McQueen
| Decision Date | 20 September 2016 |
| Docket Number | No. COA15–1161,COA15–1161 |
| Citation | 249 N.C.App. 543,790 S.E.2d 897 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Brian Michael MCQUEEN, Defendant. |
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.
Leslie C. Rawls, Charlotte, for Defendant–Appellant.
Brian Michael McQueen ("Defendant") appeals following a jury verdict convicting him of first degree murder and robbery with a firearm. Following the verdicts, the trial court imposed a sentence of life without parole. On appeal, Defendant contends he is entitled to a new trial because the trial court clearly erred in denying his Batson challenges. We disagree and hold the trial court did not commit error.
On 24 September 2009, a Lee County grand jury indicted Defendant, a Black male, on one count of first degree murder and one count of robbery with a dangerous weapon. On 30 November 2009, the case was declared a capital offense. At arraignment, Defendant pled not guilty. On 12 July 2012, defense counsel filed a pretrial motion entitled, "Motion to Prohibit District Attorney From Peremptorily Challenging Prospective Black Jurors." In it, Defendant requested the trial court "prohibit the District Attorney from exercising peremptory challenges as to potential black jurors, or in the alternative, to order that the District Attorney state reasons on the record for peremptory challenges of such jurors." The trial court denied Defendant's motion.
The case was called for trial 5 May 2014. On the jury questionnaires, prospective jurors were asked to answer "yes" or "no" to the question, "Have you or a family member ever been charged with a crime?" Juror 2 answered "no," Juror 10 answered "yes," Juror 11 answered "no," and Juror 12 answered "yes."
On the second day of jury selection, 13 May 2014, prospective Juror 2 was called alone into the jury box. Juror 2 is a seventy-year-old black male who serves as a pastor and works as a security officer. He described his "thoughts about the death penalty" as follows:
Well, I don't agree with the death penalty because of the fact that ... my religion says, "Thou Shalt Not Kill," and I don't want to be responsible for taking somebody's life. So I don't agree with the death penalty under no circumstances. But now, as far as going to jail for life, I would agree to that, but not the death penalty.... I can't preach one thing and then turn around and do something else.
Juror 2 elaborated, "I'm totally against the death penalty, but maybe in some cases I might would change my mind," such as a defendant who "chop[ped] [a person] into pieces and then maybe burn[ed] them." The State asked to strike Juror 2 for cause, which the trial court denied. The State exercised a peremptory challenge and struck Juror 2. On voir dire , defense counsel raised a Batson challenge and the trial court found "there is no prima facie case" and summoned the next prospective juror.
Juror 10 was called to the jury box on 4 June 2014, the seventeenth day of jury selection. Juror 10 is a thirty-one-year-old black female who works as a line technician. On voir dire , the State asked her which crimes she or her family members were charged with. She did not state she was convicted of any crimes, though her records indicated she was convicted of three counts of driving without a license and charged with felony possession of cocaine and possession of drug paraphernalia. When asked about her thoughts about the death penalty, she stated, "no one has the right to take another person's life," because she believes in the Commandment, "Thou Shalt Not Kill."
The State used a peremptory challenge to strike Juror 10 and defense counsel raised a Batson challenge. The trial court found Defendant did not establish a prima facie case but gave "the State an opportunity to state race-neutral reasons for the record." The State claimed it struck Juror 10 because of her thoughts regarding the death penalty, and because she failed to disclose her criminal history when the State questioned her. The trial court afforded defense counsel "an opportunity to provide surrebuttal and to show the reasons offered by the State were inadequate or pretextual." On surrebuttal, defense counsel stated religion was not a strong enough basis for a peremptory challenge and that the State did not ask Juror 10 about her criminal charges. The State responded by providing additional reasons for striking Juror 10: when asked whether she believed law enforcement treated her brother fairly, she responded, "I would hope so," with a "smirk" on her face; when asked whether her brother's situation would affect her ability to be fair and impartial to both sides in this case, she paused, looked away, and said, "I have no opinion about any of his situations, he did what he did." The trial court found Defendant did not make out a prima facie case for his Batson challenge and ordered Juror 10's criminal record to be included in the court file. The trial court stated:
The Court finds that [the criminal] record certainly provides an additional basis for the State's exercise of a peremptory challenge. However, the Court also finds that the State's bases for the exercise of a peremptory challenge to this juror were adequate, race-neutral and nondiscriminatory and non-pretextual, even in the absence of any evidence of the [juror] having any criminal record herself.
Juror 11 was called to the jury box on 9 June 2014, the twentieth day of jury selection. Juror 11 is a sixty-four-year-old black male who works for the North Carolina Department of Transportation. On voir dire , he stated his great-niece worked for a potential witness, Mr. Webb, Defendant's former attorney. Juror 11 stated he spoke with Mr. Webb on multiple occasions. Juror 11 also worked with Defendant's grandfather in the 1960s, whom he last saw twelve to fifteen years prior to trial. Although he did not indicate so on the jury questionnaire, Juror 11 was familiar with five names on the witness lists. The record shows Juror 11 pled guilty to four prior charges regarding worthless checks with restitution of $3,869.56 in one of those instances. When asked about the worthless check charges, Juror 11 stated, there were "two or three ... and the bank would call me, notify me, I [would] go put the money there or what have you." The record also shows Juror 11 was twice charged with driving while his license revoked, though he only referred to a seatbelt violation when the State asked him about previous traffic offenses on voir dire .
The State used a peremptory challenge raised concern about Juror 11's truthfulness and criminal history, stating, "[I]f we cannot trust a juror to be honest with us about matters which are essentially public record, then I don't know that we could trust them in terms of them telling use about other matters which are not easily verifiable." Defense counsel raised a Batson challenge and alleged the State was disproportionately striking black jurors. In response, the State claimed it struck Juror 11 because of his criminal history, his truthfulness, he knew one of the State's witnesses and four of Defendant's witnesses, his great-niece currently worked for a potential witness, and he previously worked with Defendant's grandfather. The State reiterated, On surrebuttal, defense counsel stated there was a "double standard being applied" to black prospective jurors. The trial court denied Defendant's challenge and stated the following:
The Court finds that the defendant—bear in mind the defendant's low hurdle for the defendant to get over, has stated a prima facie case with respect to a Batson challenge. However, the Court finds that the State has provided and acted upon race-neutral, non-discriminatory and non-pretextual reasons for exercising its peremptory challenge.... [I am] [g]etting a little bit concerned about the rate of challenges, so I just draw that to the attention of counsel. Certainly, as I've indicated, there was ample reason to challenge [Juror 11] and all of the previous jurors that have been struck by the State as well.
Juror 12 was called to the jury box on 11 June 2014, the twenty-second day of jury selection. Juror 12 is a forty-nine-year-old white male who is unemployed and previously worked in construction. He did "computer work" for potential witness Mr. Webb in the past, and Mr. Webb previously represented his wife for a traffic violation. Juror 12 had two worthless check charges with restitution of $10.00 and $20.00 respectively, and was previously charged with assault by pointing a gun and driving without a license. Juror 12 answered directly to all questions regarding previous criminal charges.
The State passed on Juror 12, prompting defense counsel to re-argue its Batson challenge regarding Juror 11. Defense counsel argued, "the State is now passing on a white juror when that juror ... appears to have the same issues that the State used to excuse African American jurors." The State responded and distinguished Jurors 11 and 12, and emphasized, "his answers regarding past involvement with the court system" were not the "sole reason for challenging [Juror 11]." The State contended Juror 12 had a previous business relationship Mr. Webb, whereas Juror 11's relative currently works for Mr. Webb, and Juror 11 has met with Mr. Webb "three to four times." Moreover, Juror 11's worthless check charges totaled to over $4,000.00 and Juror 12's only totaled to $30.00. Juror 11 did not acknowledge his prior charges and Juror 12 did so without additional questioning. On surrebuttal, defense counsel pointed out the similarities in Juror 11 and 12's criminal records and argued Juror 11 did not have a close relationship with his great-niece or Mr. Webb. The trial court denied defense counsel's Batson challenge again, and stated:
The Court's prior rulings...
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