State v. Tucker

• Docket Number: 113A96-4
• Decision Date: 15 December 2023
• Citation: 895 S.E.2d 532
• Parties: STATE of North Carolina v. Russell William TUCKER
• Court: North Carolina Supreme Court

895 S.E.2d 532

STATE of North Carolina

v.Russell William TUCKER

No. 113A96-4

Supreme Court of North Carolina.

Filed December 15, 2023

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order entered 24 August 2020 by Judge R. Stuart Albright in Superior Court, Forsyth County, denying defendant’s motions for appropriate relief, Heard to the Supreme Court 8 February 2023.

Joshua H. Stein, Attorney General, by Danielle Marquis Elder, Senior Deputy Attorney General, and Jonathan P. Babb, Special Deputy Attorney General, for the State-appellee.

Elizabeth Hambourger, Durham, for defendant-appellant.

Ian A, Mance, Quintin D. Byrd, Fayetteville, and Irving Joyner, Durham, for North Carolina Association of Black Lawyers and North Carolina State Conference of the NAACP, amici curiae.

BERGER, Justice.

Through a series of post-conviction motions, defendant asserts that his conviction for first-degree murder and sentence of death should be set aside.Defendant argues that despite the trial court’s finding that he failed to establish a prima facie case of purposeful discrimination in jury selection, he is nevertheless entitled to a new trial because newly discovered evidence, consisting of a continuing legal education handout and a statistical study, supports his claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).However, defendant failed to raise a Batson claim or otherwise argue purposeful discrimination on direct appeal from his original trial or in previous post-conviction proceedings.Thus, the question before this Court is whether review of defendant’s Batson claim is procedurally barred pursuant to N.C.G.S. § 15A-1419.For the reasons set forth herein, we conclude that defendant’s claim is barred and affirm the judgment of the Superior Court denying defendant’s motion for appropriate relief.

I.Factual and Procedural Background

It is undisputed that defendant killed K-Mart security guard Travis Williams and shot two Winston-Salem police officers on December 8, 1994.¹Defendant was indicted for first-degree murder and two counts of assault with a deadly weapon with intent to kill inflicting serious injury, A Forsyth County jury found defendant guilty of first-degree murder, and defendant was sentenced to death upon the jury’s recommendation.The State dismissed the assault charges.

Forsyth County Assistant District Attorneys Robert Lang and David Spence prosecuted the case for the State.During jury selection, which was conducted by Mr. Lang, defendant lodged Batson objections to the State’s peremptory strikes against black prospective jurors Debra Banner, Thomas Smalls, and Wayne Mills.The voir dire transcript reveals the following relevant exchanges between these prospective jurors, the trial court, and the State.

A. Voir Dire of Ms. Banner

Following inquiry by the trial court, Ms. Banner stated that she worked at Forsyth Medical Center and had not acquired sufficient leave time, which she referred to as PTO, to receive compensation when she missed work.Ms. Banner worked eight-hour shifts that ended at 11:00 p.m., and "nine o’clock [a.m. wa]s not [her] time" because she was not a morning person.²Ms. Banner further stated that she"preferred] not to be on [the jury],"The trial court clarified her response:

THE COURT: Prefer not to serve I take it.Do you think that situation will prevent you or substantially impair you in performing your duties as a juror in this?

MS. BANNER: Yes.

THE COURT: Will it prevent you or substantially impair you from giving your full attention to this case?

MS. BANNER: Yes, sir.

THE COURT: The State want to make inquiry of this juror then?

The State chose not to challenge Ms. Banner for cause and made no further inquiry at that time.The Court then resumed its questioning of other prospective jurors.

The next interaction with Ms. Banner took place during the State’s voir dire when Ms. Banner had fallen asleep in the jury box while other prospective jurors were being questioned.

[THE STATE]: Come down to you, Ms. Banner.Wake up.

MS. BANNER: I told you I didn’t do well early.

[THE STATE]: But you’d be at work now, wouldn’t you?

MS. BANNER: Yeah.

Neither the trial court nor defense counsel interjected to suggest Ms. Banner had not fallen asleep.

Thereafter, Ms. Banner acknowledged that she had no personal or moral objections to the death penalty, but her work and lack of paid time off would likely affect her ability to listen to the evidence and follow the trial court’s instructions.In addition, it was revealed in questions directed to all the jurors that Ms. Banner did not own the residence in which she lived.

B. Voir Dire of Mr. Smalls

As with Ms. Banner, the transcript indicates that Mr. Smalls "nodded off’ and "went to sleep" during jury selection.His responses to the initial questions from the trial court were unremarkable, but during questioning by the State, the following exchange occurred:

[THE STATE]: It’s vitally important that everybody know the State is very concerned about whether everybody can consider the death penalty and the defendant is concerned about whether everybody will automatically impose the death penalty and won’t consider the option of life without parole so I’m sorry it gets lengthy but it has got to be done.

Mr. Smalls, can you please tell me about your feelings about the death penalty, MR. SMALLS: I cannot give an answer to that.

[THE STATE]: Let me ask you do you feel like it’s a necessary part of the law?MR. SMALLS: I think it’s a part of the law.

[THE STATE]: Do you think it’s a necessary part of the law?

MR. SMALLS: I don’t know.

[THE STATE]: Do you have any personal, moral or religious or philosophical beliefs against the death penalty or capital punishment?

MR. SMALLS: I believe in capital punishment.

[THE STATE]: You do?

MR. SMALLS: Yes.

[THE STATE]: Do you think that under some appropriate circumstances, and the judge will tell you what those circumstances are, that the death penalty is an appropriate punishment in some cases?

MR. SMALLS: I guess so.I don’t know.[THE STATE]: Do you belong to any churches or any organizations that oppose the death penalty?

MR. SMALLS: Yes, I’m a Christian.

[THE STATE]: There is a wide broad views in the church.Some churches oppose the death penalty, others feel it’s appropriate and have taken a stand.Has your church taken a stand against the death penalty?

MR. SMALLS: I don’t know.I can’t speak for all of my church.I can only speak for myself.

[THE STATE]: Well that’s what is most important.Do you feel that if the circumstances were appropriate that you could vote to impose the death penalty?

MR. SMALLS: I still don’t know.

[THE STATE]: You’d have to wait to hear all the evidence?

MR. SMALLS: Yes, sir.

[THE STATE]: Let me ask you, Mr. Smalls, if the State—at the guilt/innocence phase—satisfies its burden to prove the defendant’s guilt beyond a reasonable doubt based on one or both of the theories of first degree murder that I’ve talked about—premeditation and deliberation or felony murder—could you find the defendant guilty?

MR. SMALLS: I guess so.

[THE STATE]: If the law—if the State satisfied its burden and the judge instructed you and gave you the law with regards to the various elements of premeditation and deliberation and felony murder and the State proved those to you beyond a reasonable doubt, would you be able to find the defendant guilty?

MR. SMALLS: I guess so.

[THE STATE]: Having made that decision at the, guilt/innocence if the jury determined unanimously that the defendant was guilty of first degree murder and we move on to the second stage and you were satisfied beyond a reasonable doubt that the death penalty was the appropriate punishment after going through the detailed instructions the Court will give you at that second stage, would you be able to vote to impose the death penalty?

MR. SMALLS: I’ll have to wait.I’ll have to wait until that time comes.

[THE STATE]: Do you feel—well, let me ask you are there some circumstances you feel where the death penalty is appropriate?

MR. SMALLS: Sometimes, Sometimes I think so.

[THE STATE]: Do you feel like you could be part of a jury that comes back and makes a recommendation of the death penalty to the Court in this case?

MR. SMALLS: I guess so.

[THE STATE]: When you say you guess so, does that mean—

MR. SMALLS: —If I have to.

[THE STATE]: If you have to?

MR. SMALLS: Yes.If there is no way out.

[THE STATE]: If there is no way out?

MR. SMALLS: Yes.

C. Voir Dire of Mr. Mills

When Mr. Mills was seated as a prospective alternate juror, the trial court questioned him on whether he had heard or seen anything about the case in the newspaper or from another, source.Although Mr. Mills had not read about the case in the newspaper, he stated that he had "heard about it … [in] talk around the street."When the trial court asked Mr. Mills whether he had formed or expressed an opinion on the guilt or innocence of defendant based on what he heard, Mr. Mills responded that he"didn’t comment on it."When asked to clarify what he meant, Mr. Mills responded, "I didn’t comment on it.When I heard it, I didn’t comment on it."The trial court moved on to questions about the death penalty and life without parole and asked if Mr. Mills had any reservations about the death penalty, and Mr. Mills responded that he was not against it.

Mr. Mills responded to several of the State’s questions with "yes" and "no" answers with no elaboration.Mr. Mills was specifically asked if he had been convicted of any criminal offense other than traffic offenses, and he replied, "No."Contrary to Mr. Mills’ representation, the State had discovered in its pretrial research that he had Been convicted of solicitation of prostitution.

D.Defendant’s Objections

The State struck each of these prospective jurors using peremptory challenges, and defendant objected to each strike pursuant to Batson.

In attempting to establish a prima facie...