State v. Bennett

871 S.E.2d 831

STATE of North Carolina

v.Cory Dion BENNETT, Defendant.

No. COA17-1027-2

Court of Appeals of North Carolina.

Filed April 5, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J. Uicker, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling Rozear, for defendant.

STROUD, Chief Judge.

¶ 1 Defendant Cory Dion Bennett appeals from a trial court order overruling his objections, under Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986), to the prosecution's peremptory strikes of two African-American jurors, R.S. and V.B.¹ In a previous appeal, State v. Bennett , 374 N.C. 579, 843 S.E.2d 222 (2020) [hereinafter " Bennett II "], our Supreme Court found Defendant had presented the "necessary prima facie case of discrimination" required at the first step of Batson ’s three step inquiry. Id. , 374 N.C. at 581, 843 S.E.2d at 224. Defendant's current appeal arises from the remand hearing on Batson ’s second and third steps. Id. Because the trial court properly accepted the prosecutor's race neutral reasons for striking the jurors, we reject Defendant's argument the trial court clearly erred on Batson ’s second step. Further, after evaluating all the relevant circumstances advanced by Defendant, we hold the trial court did not clearly err in determining Defendant had not met his burden of proving purposeful discrimination at Batson ’s third step. Therefore, we affirm the trial court's order overruling Defendant's Batson objections.

I. Background

¶ 2 We rely on our Supreme Court's opinion in Bennett II to summarize the background of this case and Defendant's initial appeal. Across two grand juries in 2016, Defendant was charged with five counts of "possessing a precursor chemical with the intent to manufacture methamphetamine," one count of manufacturing methamphetamine, one count each of trafficking in methamphetamine by manufacture and by possession, and one count of possession of a firearm by a felon. Bennett II , 374 N.C. at 581, 843 S.E.2d at 224–25. The charges came on for a jury trial in March 2017. Id. , 374 N.C. at 581, 843 S.E.2d at 225.

¶ 3 Bennett II then summarized the history of three jurors, R.S., V.B., and R.C., because Defendant made a Batson objection after the prosecutor struck in succession R.S. and V.B., who are African American, but passed on R.C., who is not. See 374 N.C. at 586, 843 S.E.2d at 227–28 (summarizing Batson objection). The Bennett II Court listed the following about R.S.:

In response to the prosecutor's inquiry concerning whether any prospective juror had "ever been the victim of a crime," [R.S.] responded that he had been the victim of a breaking or entering that had occurred approximately two years earlier; that, while law enforcement officers had investigated the incident, no one had ever been charged with the commission of the crime; and that [R.S.] believed that the investigating officers had handled the incident in a satisfactory manner. In addition, [R.S.] informed the prosecutor that, while he recognized one of the other prospective jurors, who worked at a local bank, his connection with this other prospective juror would not affect his ability to decide the case fairly and impartially in the event that he was selected to serve as a member of the jury.

[R.S.] responded to prosecutorial inquiries concerning whether anything would make it difficult for him to be a fair and impartial juror and whether there was anything going on in his life that would make it difficult for him to serve on the jury in the negative. Similarly, [R.S.] denied having any religious, moral, or ethical concerns that would prevent him from voting to return a guilty verdict.

374 N.C. at 581–82, 843 S.E.2d at 225 (alterations to preserve juror confidentiality). The prosecutor exercised a peremptory challenge to strike R.S. after he finished questioning all the venire members initially seated in the jury box. Id. , 374 N.C. at 582, 843 S.E.2d at 225.

¶ 4 V.B., who is also African American, then replaced R.S., and our Supreme Court described her as follows:

[V.B.] responded to the trial court's initial questions by stating that she was not aware of any reason that she would be unable to be fair to either the State or defendant. [V.B.] ... owned a beauty salon ... [near] the courthouse.^[2] After stating that she did not know anyone involved in the prosecution or defense of the case or any of the other prospective jurors, [V.B.] told the prosecutor that she had never been the victim of crime, a defendant or witness in a case, or a juror. In addition, [V.B.] stated that she did not have any strong feelings, either favorable or unfavorable, concerning the law enforcement profession; that she had not heard anything about the charges against defendant before arriving for jury selection; and that she would be able to be impartial to both sides. Similarly, [V.B.] expressed no reservations concerning the fact that possession of a firearm by a felon is unlawful and said that she was not confused by the distinction between the concepts of actual and constructive possession.

[V.B.] stated that she would be able to listen to and fairly consider the testimony of a witness who had entered into a plea agreement with the State, that she did not know any of the other prospective jurors who were seated in the jury box with her, and that she understood that legal dramas on television were not realistic. To [V.B.]’s knowledge, neither she, a member of her family, nor a close friend had ever had a negative experience with a member of the law enforcement profession or a member of the District Attorney's staff or had ever been charged with committing an offense other than speeding.

In response to further prosecutorial questioning, [V.B.] stated that she understood that defendant was presumed to be innocent; that he possessed the rights to a trial by jury, to call witnesses to testify in his own behalf, and to refuse to testify; and that any refusal on his part to testify in his own behalf could not be held against him. Moreover, [V.B.] stated that she understood the difference between direct and circumstantial evidence, that she understood that the State was required to establish defendant's guilt beyond a reasonable doubt, and that she would be required as a member of the jury to assess the credibility of the witnesses.

[V.B.] assured the prosecutor that she could listen to all of the evidence, keep an open mind, and follow the law in accordance with the trial court's instructions; agreed with the prosecutor's comment that "the law is not always what we think it is or what we would like it to be"; and acknowledged that, in the event that she was selected to serve as a juror in this case, she would be required to follow the law and apply the law set out in the trial court's instructions to the facts. At that point, the following colloquy occurred between the prosecutor and [V.B.]:

MR. THIGPEN: Do you think you could reach a verdict based only on hearing the evidence from the witness stand, or do you feel like in order to reach a verdict or to make a decision you would have to actually watch the alleged event happen?

[V.B.]: Yeah.

MR. THIGPEN: Okay. You looked confused. Some people—I have had jurors before that have said, "I can't make a decision until I see it happen."

[V.B.]: Uh-huh.

MR. THIGPEN: Okay. Do you feel like you could base your decision on just what the witnesses say, or do you feel like you have to watch it happen?

[V.B.]: Kind of on both.

MR. THIGPEN: What do you mean?

[V.B.]: Sometimes, I guess, it's better to not have hearsay.

MR. THIGPEN: Well, if you watched it happen, you would be a witness; right?

[V.B.]: Right.

MR. THIGPEN: And if you were a witness, you can't be a juror. Does that make sense?

[V.B.]: Yes.

MR. THIGPEN: So the only thing we have is witness testimony.

[V.B.]: Okay.

MR. THIGPEN: So do you feel like you could make a decision based only on hearing the testimony of the witnesses or before you could make that decision would you actually want to watch it happen?

[V.B.]: Yeah.

MR. THIGPEN: Okay. What you said was, "Yeah."

[V.B.]: Yeah, I could make that decision through—

MR. THIGPEN: Based on the testimony?

[V.B.]: Uh-huh.

After reiterating that nothing would make it difficult for her to be fair and impartial to either side and that nothing was going on in her life outside of the courtroom that would render jury service unduly burdensome, [V.B.] stated that she did not have any religious, moral, or ethical concerns about voting for a guilty verdict in the event that the State satisfied its burden of proof.

Id. , 374 N.C. at 582–84, 843 S.E.2d at 225–26 (alterations to preserve juror confidentiality). The prosecutor then also peremptorily challenged V.B. Id. , 374 N.C. at 584, 843 S.E.2d at 226.

¶ 5 Juror R.C., who is not African American, then replaced V.B., and the Supreme Court described her as follows:

In responding to the trial court's initial questions, [R.C.] stated that there was no reason that she could not be fair to either the State or defendant..... In response to prosecutorial questions, [R.C.] said that she did not know the prosecutor, defendant, or defendant's attorney. [R.C.] denied having ever been the victim of a crime, a defendant, or a witness in a case. However, [R.C.] had served as a member of a criminal jury in Sampson County about thirty years earlier. According to [R.C.], the jury upon which she served had deliberated on the case, she had not served as the foreperson of the jury, and nothing about that experience would impact her ability to serve on the present jury.

[R.C.] denied having strong feelings, either favorable or unfavorable, about the law enforcement profession and indicated that she had not read, heard, or seen anything about the charges against defendant before arriving in court for jury service. In addition, [R.C.] denied having any reservations about the fact that felons are prohibited from possessing

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