State v. Westbrook
| Decision Date | 03 March 2020 |
| Docket Number | No. COA19-331,COA19-331 |
| Citation | 838 S.E.2d 203 (Table) |
| Parties | STATE of North Carolina v. Wesley Evay WESTBROOK, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Thomas O. Lawton, III, for the State.
Guy J. Loranger for Defendant-Appellant.
This appeal primarily concerns the tension between strategic jury selection in criminal trials and the law allowing prosecutors to excuse a limited number of prospective jurors for just about any reason, on the one hand, and strategic race discrimination by prosecutors in jury selection, prohibited by the United States Constitution, on the other. Given the record in this case, the relatively low bar for the State to refute a charge of discrimination, and the highly deferential standard of review on appeal, we find no error.
Wesley Evay Westbrook ("Defendant") appeals his convictions following jury verdicts finding him guilty of possession of a firearm by a felon, maintaining a dwelling to keep a controlled substance, possession of marijuana with the intent to sell or deliver, possession of cocaine with the intent to sell or deliver, and possession of MDEA. Defendant also appeals his convictions following guilty pleas to obstruction of justice and attaining habitual felon status. Defendant argues: (1) the trial court erred in determining that there was no purposeful discrimination when the State peremptorily challenged three black prospective jurors during voir dire ; (2) the prosecutor’s remarks at closing argument were improper; (3) the trial court erred by sentencing him as a prior record level IV offender; and (4) he was denied effective assistance of counsel because his counsel failed to argue a pre-trial motion to suppress.
For the following reasons, we hold that Defendant has failed to demonstrate reversible error as to his first two arguments. We vacate Defendant’s sentence and remand for the trial court to properly sentence him at the appropriate record level. We dismiss Defendant’s ineffective assistance of counsel claim without prejudice so he can file a motion for appropriate relief.
The evidence introduced at trial tends to show the following:
On 11 December 2015, officers with the Charlotte-Mecklenburg Police Department executed a search warrant at Defendant’s home. Through surveillance and controlled purchases via a confidential informant, officers believed that Defendant was selling various controlled substances in his home. Defendant, his girlfriend, and his children were present at the time of the search.
As a result of the search, officers discovered the following pertinent items: two mason jars containing marijuana; a marijuana cigarette; a digital scale with green and white residue; plastic baggies; a small folding knife; cocaine and MDEA—also known as "Molly"—concealed in a lemonade container; a loaded handgun and a magazine; roughly $4,000 in cash; and two cellular smart phones.
After being read his Miranda rights, Defendant told officers he was unemployed, only personally consumed the cocaine and MDEA, and that he sold marijuana to support his cocaine habit. Defendant also said that he did not own the handgun.
On 9 May 2016, Defendant was indicted for possession of a firearm by a felon, maintaining a dwelling to keep or sell marijuana and cocaine, possession with the intent to sell or deliver marijuana, possession with the intent to sell or deliver cocaine, possession of MDEA, and attaining habitual felon status.
Defendant’s charges first came on for trial on 26 September 2017. However, four days into the trial, the judge declared a mistrial due to concerns that Defendant contacted and attempted to bribe a prospective juror. One week later, on 9 October 2017, Defendant was indicted for obstruction of justice.
Defendant’s second trial began on 2 April 2018. During jury selection, defense counsel argued that the State’s attempt to excuse three black prospective jurors from the panel was race-based and requested that they remain for consideration. The trial court, after hearing arguments from both parties, ruled that the State was not acting with purposeful discrimination, denied defense counsel’s objection, and excused the three prospective jurors. As jury selection continued, the State peremptorily excused a fourth black juror, Ms. Avery, and defense counsel again objected to the State’s excusal as race-based. The trial court sustained the objection, reasoning that the State’s explanation for Ms. Avery’s excusal equally applied to a white juror whom the State did not excuse.
After a jury was impaneled, the State presented evidence as summarized above. Defendant presented no evidence. On 6 April 2018, the jury found Defendant guilty of possession of a firearm by a felon, maintaining a dwelling to keep a controlled substance, possession with the intent to sell or deliver marijuana, possession with the intent to sell or deliver cocaine, and possession of MDEA. Defendant then pled guilty to obstruction of justice and attaining habitual felon status.
In sentencing Defendant for his convictions following the jury verdict, the trial court determined that Defendant had ten prior conviction points, placing him at prior record level IV. The trial court consolidated those convictions into one judgment and sentenced Defendant in the presumptive range to 105 to 138 months imprisonment, with 194 days of credit for his time in pre-trial custody. The trial court imposed a concurrent sentence in the presumptive range of 6 to 17 months imprisonment for obstruction of justice.
Defendant gave oral notice of appeal.
Defendant first argues that the trial court erred in ruling that the State was not purposefully removing prospective jurors because of their race, contending that the State’s race-neutral reasons at trial were pretextual. We hold that Defendant has failed to demonstrate clear error.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the North Carolina Constitution "forbid the use of peremptory challenges for a racially discriminatory purpose." State v. Barden , 356 N.C. 316, 342, 572 S.E.2d 108, 126 (2002). Following the United States Supreme Court’s opinion in Batson v. Kentucky , 476 U.S. 79, 96-98, 90 L. Ed. 2d 69, 87-89 (1986), we employ a three-part test to determine whether a juror has been excused on the basis of race: (1) the defendant must make a prima facie showing that the State exercised a race-based peremptory challenge; (2) if the defendant makes a prima facie showing, the burden shifts to the State "to offer a facially valid, race-neutral explanation for the peremptory challenge;" and (3) the trial court then decides if the defendant has established purposeful discrimination. State v. Taylor , 362 N.C. 514, 527, 669 S.E.2d 239, 254 (2008).
In reviewing a Batson claim:
[T]he trial court must make specific findings of fact at each stage of the Batson inquiry that it reaches. This Court must uphold the trial court’s findings unless they are clearly erroneous. Under this standard, the fact finder’s choice between two permissible views of the evidence cannot be considered clearly erroneous. We reverse only when, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been committed.
State v. Headen , 206 N.C. App. 109, 114-15, 697 S.E.2d 407, 412 (2010) (quotation marks, citations, original alterations, and footnote omitted). "The ‘clear error’ standard is a federal standard of review adopted by our courts for appellate review of the Batson inquiry." State v. Wright , 189 N.C. App. 346, 351, 658 S.E.2d 60, 63 (2008) (citation omitted).
Here, before voir dire commenced, defense counsel attempted to prevent the prosecutor from asking prospective jurors a question regarding the racial makeup of the parties involved in the case. The prosecutor explained to the trial court that, because most of the State’s witnesses were white police officers and Defendant is black, the State wanted to know, "would that issue in and of itself solely cause [any of the prospective jurors] to be unfair from one side to the other." Defense counsel contended that the State was inappropriately "highlighting race" because it had the propensity to detract the jurors from seeing Defendant "as an individual." The trial court denied defense counsel’s objection and allowed the prosecutor to ask the question.
At the beginning of voir dire , the State asked the prospective jurors two questions: (1) "Is there anything about the sole fact that the defendant is black or African-American that would cause anyone to be unfair to one side or the other;" and (2) "[i]s there anything about the sole fact that the State’s witness list comprises white officers that would cause anyone to be unfair to either side?" Each prospective juror answered "no" to these questions, and the State continued its line of questioning.
The State first peremptorily challenged four prospective jurors: Mr. Woods, a black male; Ms. Billings and Ms. Bonner, black females; and Mr. Janke, a white male. Defense counsel objected and argued that the State was excusing the black jurors because of their race.
At the time of the State’s challenge and Defendant’s objection, two prospective jurors had been dismissed for cause and ten prospective jurors remained in the jury box—six white and four black. Defense counsel noted that Defendant was a black male and that three out of the four of the State’s peremptory challenges were being used against all but one black prospective juror on the panel. The trial court ruled that defense counsel made a prima facie showing of race-based discrimination and ordered the State to explain its rationale in seeking to excuse the three black jurors.
The prosecutor explained that the State sought to excuse Mr. Woods because he expressed a belief that...
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