IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1161
Filed: 20 September 2016
Lee County, No. 09 CRS 52451, 52454
STATE OF NORTH CAROLINA
v.
BRIAN MICHAEL McQUEEN, Defendant.
Appeal by Defendant from judgments entered 23 July 2014 by Judge C.
Winston Gilchrist in Lee County Superior Court. Heard in the Court of Appeals 25
August 2016.
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell,
for the State.
Leslie C. Rawls for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
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.
I. Factual and Procedural Background
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Opinion of the Court
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
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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
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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 non-
discriminatory 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
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Opinion of the Court
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
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Opinion of the Court
potential witness, and he previously worked with Defendant’s grandfather. The State
reiterated, “It’s a combination of things. It’s a read you get from somebody.” 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
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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 with respect to the Batson
challenge to [Juror 11] are confirmed in all respects. The
previous findings are confirmed. The defendant’s . . .
renewed Batson challenge is denied. State has offered race-
neutral reasons for challenging [Juror 11] peremp-torily.
Those reasons are non-discriminatory and are non-
pretextual.
At the conclusion of jury selection, four out of the fifteen chosen jurors (26.6%)
were African American, ten (66.7%) were Caucasian, and one (6.7%) was White
American Indian. At trial, after the close of the evidence, the jury that heard the case
consisted of three African Americans, eight Caucasians, and one White American
Indian. The alternate jurors consisted of one African American and two Caucasians.
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Opinion of the Court
The record shows the parties questioned eighty-six prospective jurors on voir dire.
Twenty-one (24.4%) of those prospective jurors identified themselves as African
American, fifty-nine (68.6%) as White, one (1.17%) as Asian, one (1.17%) as Hispanic,
one (1.17%) as Multiracial, one (1.17%) as Spanish, one (1.17%) as White American
Indian, and one (1.17%) as White-Hispanic Mix.
After opening statements, the State presented evidence of two eyewitnesses
who identified Defendant, two expert witnesses, statements made by Defendant to
police, and photos of the crime scene. The following is a summary of the evidence
taken in the light most favorable to Defendant.
In April 2009, Imad Asmar (“Asmar”), a Palestinian, purchased the Jackpot
Mini Mart, a convenience store in Sanford, North Carolina. Asmar worked with his
brother Ali Mustafa (“Mustafa”), and his son, Ahmad Imad Asmar (“A.J.”). Defendant
regularly visited the Jackpot Mini Mart.
Around 9:00 p.m. on 17 August 2009, Asmar arrived at the Jackpot Mini Mart
while A.J. and Mustafa were working. Asmar’s wife and younger son waited in the
car while Asmar went inside the store. Asmar told A.J. to take his wife and son
something to drink. A.J. took drinks to the two in the parking lot and sat with them
in the car. Mustafa came out of the store but returned when a customer arrived. The
customer left and Defendant walked towards the store and flashed a peace sign with
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Opinion of the Court
his hand towards A.J. A.J. recognized Defendant, who had visited the store earlier
that day.
Asmar and Mustafa talked at the front counter when Defendant entered the
store. Immediately, Defendant walked towards the counter, pulled out a .38 caliber
revolver, and shot at Asmar and Mustafa multiple times. Four bullets struck Asmar
in the chest, left shoulder, and both arms. Defendant demanded cash and stated, “I
need hundreds.” Defendant shot Asmar again as Asmar walked towards the exit.
Defendant shot Mustafa in the neck, and Mustafa gave Defendant all of the money
in the cash register and his pockets. The entire exchange lasted thirty seconds.
Defendant walked out of the store and flashed a peace sign at A.J. again before
walking into the nearby woods.
Thereafter, Mustafa rushed out of the store and called emergency medical
services (“EMS”). Mustafa asked A.J. which direction Defendant fled, and Mustafa
relayed Defendant’s whereabouts to the 911 dispatcher. Sanford police officers and
EMS personnel arrived minutes later. Paramedics took Asmar to the hospital where
he later died. An autopsy revealed Asmar was shot four to five times.
Lead investigator Detective Keith Rogers of the Sanford Police Department
and Detective Eric Pate presented photo lineups to A.J. and Mustafa separately.
Both A.J. and Mustafa identified Defendant as the robber.
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Opinion of the Court
Five hours later, police arrested Defendant and took him to the police station.
Detective Rogers interviewed Defendant and Defendant claimed he was not involved
in the robbery. Later, Defendant stated he accompanied another person who shot the
men. Ultimately, Defendant confessed and told police he decided to rob the store but
the gun accidentally went off during the robbery when Asmar reached for it.
Defendant told officers he got the gun from a man named “Cougar” to rob the store,
and he and Cougar split the stolen money. Defendant told police he “didn’t want to
kill anybody.”
On 15 July 2014, the jury convicted Defendant of first degree murder and
robbery with a firearm. The trial court imposed a sentence of life without parole.
Defendant timely entered his notice of appeal.
II. Standard of Review
“The ‘clear error’ standard is a federal standard of review adopted by our
courts for appellate review of the Batson inquiry.” State v. James, 230 N.C. App. 346,
348, 750 S.E.2d 851, 854 (2013) (citing State v. Cofield, 129 N.C. App. 268, 275 n.1,
498 S.E.2d 823, 829 n. 1 (1998)). “Since the trial judge’s findings . . . largely will turn
on evaluation of credibility a reviewing court ordinarily should give those findings
great deference.” James, 230 N.C. App. at 348, 750 S.E.2d at 854 (citations omitted).
“The trial court’s ultimate Batson decision will be upheld unless the appellate court
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Opinion of the Court
is convinced that the trial court’s determination is clearly erroneous.” Id. (citation
omitted).
III. Analysis
In a capital murder case, the defendant and State are each afforded fourteen
peremptory challenges during jury selection. N.C. Gen. Stat. § 15A-1217(a). However,
Article I, Section 26 of the Constitution of North Carolina and the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution “prohibit race-
based peremptory challenges during jury selection.” James, 230 N.C. App. at 348, 750
S.E.2d at 854 (citation omitted).
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court
announced a three-part test for Batson objections. Our Supreme Court utilized this
analysis in State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), and set out the
following test:
First, the defendant must make a prima facie showing that
the state exercised a race-based peremptory challenge. If
the defendant makes the requisite showing, the burden
shifts to the state to offer a facially valid, race-neutral
explanation for the peremptory challenge. Finally, the
trial court must decide whether the defendant has proved
purposeful discrimination.
Id. at 527, 669 S.E.2d at 254 (citations omitted). Defendant challenges the first and
third prongs of the Batson test. He contends the trial court clearly erred in finding
he did not make a prima facie showing that the State exercised a race-based
peremptory challenge to Jurors 2, 10, and 11.
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Opinion of the Court
The burden of presenting a prima facie showing the State exercised a race-
based peremptory challenge is a low hurdle for defendants. James, 230 N.C. App. at
349, 750 S.E.2d at 854. The defendant must show that he is a “member of a cognizable
racial group and . . . the [State] has used peremptory challenges to remove from the
jury members of the defendant’s race.” State v. Jackson, 322 N.C. 251, 254, 368
S.E.2d 838, 840 (1988). The showing only need be “sufficient to shift the burden to
the State to articulate race-neutral reasons for its peremptory challenge.” James,
230 N.C. App. at 349, 750 S.E.2d at 854 (quoting State v. Hoffman, 348 N.C. 548, 553,
500 S.E.2d 718, 722 (1998)).
When the State volunteers its reasons for striking a juror, or the trial court
requires the State to give such reasons, prior to making a finding, “the question of
whether the defendant has made a prima facie showing becomes moot, and it becomes
the responsibility of the trial court to make appropriate findings on whether the
stated reasons are credible, nondiscriminatory basis for the challenges or simply
pretext.” State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996).
After the defendant’s prima facie showing, the burden shifts to the State to
give race-neutral reasons for its strike. Under this second prong, the State must
articulate legitimate, clear, and specific reasons which provide a race-neutral
explanation for exercising the challenge. Jackson, 322 N.C. at 254, 368 S.E.2d at 840.
When analyzing these reasons, we “address the factors as a totality which when
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Opinion of the Court
considered together provide an image of a juror considered in the case undesirable by
the State.” State v. Porter, 326 N.C. 489, 501, 391 S.E.2d 144, 152–53 (1990). Our
Supreme Court identified multiple race-neutral reasons a party may rely upon when
exercising peremptory challenges: “[r]eservations of a juror concerning his or her
ability to impose the death penalty;” a potential juror or relative of the juror’s criminal
history; reservations about whether law enforcement treated a family member fairly;
a potential juror’s familiarity with the defendant or defendant’s family; excessive eye
contact or failure to make appropriate eye contact; or other reasons which correspond
to a valid for-cause challenge but do not rise to the level of for-cause excusal. See
State v. Cummings, 346 N.C. 291, 310, 488 S.E.2d 550, 561; Porter, 326 N.C. at 499,
391 S.E.2d at 151; State v. Carter, 212 N.C. App. 516, 524, 711 S.E.2d 515, 523 (2011);
State v. Crummy, 107 N.C. App. 305, 322, 420 S.E.2d 448, 457 (1992); Hernandez v.
New York, 500 U.S. 352, 362–63 (1991).
Following the State’s rebuttal, the defendant has a right of surrebuttal to show
the State’s race-neutral reasons are merely pretext. Porter, 326 N.C. at 497, 391
S.E.2d at 150. To determine whether the defendant makes such a showing, “the trial
court should consider the totality of the circumstances, including counsel’s credibility,
and the context of the information elicited.” State v. Cofield, 129 N.C. App. 268, 279,
498 S.E.2d 823, 831 (1998) (citing State v. Barnes, 345 N.C. 184, 212, 481 S.E.2d 44,
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Opinion of the Court
59 (1997); State v. Thomas, 329 N.C. 423, 432, 407 S.E.2d 141, 148 (1991), cert.
denied, 522 U.S. 824 (1997)).
Our Supreme Court utilized the following factors to determine if a party
engaged in purposeful discrimination:
(1) the susceptibility of the particular case to racial
discrimination; (2) whether similarly situated whites were
accepted as jurors; (3) whether the [party at issue] used all
of its peremptory challenges; (4) the race of the witnesses
in the case; (5) whether the early pattern of strikes
indicated a discriminatory intent; and (6) the ultimate
racial makeup of the jury. In addition, [a]n examination of
the actual explanations given by the [party at issue] for
challenging black veniremen is a crucial part of testing
defendant’s Batson claim. It is satisfactory if these
explanations have as their basis a “legitimate hunch” or
“past experience” in the selection of juries.
James, 230 N.C. App. at 351, 750 S.E.2d at 856 (citing State v. Robinson, 336 N.C.
78, 93–94, 443 S.E.2d 306, 312–13 (1994), cert. denied, 513 U.S. 1089 (1995)).
Recently, the United States Supreme Court reversed the Georgia Supreme
Court and found the prosecution engaged in purposeful discrimination in a murder
case involving a Black male defendant and an elderly white female victim. See Foster
v. Chatman, ___ U.S. ___, 136 S.Ct. 1737 (2016). The jury venire list in Foster reveals
the following: the State made a legend on the list indicating green highlighting
“represents Blacks”; the State highlighted the names of Black prospective jurors;
“[t]he letter ‘B’ also appeared next to each [B]lack prospective juror’s name; the State
wrote “B#1,” “B#2,” and “B#3,” next to the names of three black prospective jurors;
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Opinion of the Court
the State made a list of “definite NO’s,” with six names, five of which were black
jurors; the State made a note that reads, “Church of Christ . . . NO. No Black
Church.”; and every jury questionnaire completed by a Black juror had the race
circled. Id., ___ U.S. at ___, 136 S.Ct. at 1744. The State gave reasons for striking
the jurors that did not involve race. Id. ___ U.S. at ___, 136 S.Ct. at 1751. At oral
argument Justice Kagan asked, “Isn’t this as clear a Batson violation as a court is
ever going to see?” Relying upon the State’s case file and jury notes, the Court held
the State’s strikes of Black perspective jurors was pretextual and reversed and
remanded the case. Id. ___ U.S. at ___, 136 at 1753.
When analyzing alleged disparate treatment of prospective jurors, we consider
whether the jurors in question are in fact similarly situated. State v. Waring, 364
N.C. 443, 490–91, 701 S.E.2d 615, 645 (2010). Our Supreme Court held:
Merely because some of the observations regarding each
stricken venireperson may have been equally valid as to
other members of the venire who were not challenged does
not require finding the reasons were pretextual. A
characteristic deemed to be unfavorable in one prospec-tive
juror, and hence grounds for a peremptory challenge, may,
in a second prospective juror, be outweighed by other,
favorable characteristics.
Porter, 326 N.C. at 501–502, 391 S.E.2d at 153 (quotations omitted). When there are
additional factors that distinguish jurors who are excused from those who are not,
and the defendant cannot make a showing of pretext, the defendant fails to meet his
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burden of proving purposeful discrimination. See State v. Jackson, 322 N.C. 251, 257,
368 S.E.2d 838, 841 (1988).
Here, the two victims and the eyewitness in this case are Palestinian and
Defendant is black. The State exercised a peremptory strike against Juror 2, a black
male, who was questioned immediately following a third prospective juror, who was
also black and seated on the jury. When questioned about his thoughts concerning
the death penalty, Juror 2 stated he would not agree with the death penalty under
any circumstances, elaborating he was a pastor and agreeing with the death penalty
would make him a hypocrite, and that he might hypothetically agree to the death
penalty if a defendant chopped someone into pieces and burned them. Our Supreme
Court held that “[r]eservations of a juror concerning his or her ability to impose the
death penalty constitute a racially neutral basis for exercising a peremptory
challenge.” Cummings, 346 N.C. at 310, 488 S.E.2d at 561.
The State exercised a peremptory strike against Juror 10, a black female. After
Defendant raised a Batson challenge, the State explained their bases for the strike:
Juror 10’s thoughts about the death penalty; her failure to disclose past criminal
charges; her reservations about whether law enforcement treated her brother fairly;
and her lack of eye contact when asked whether her brother’s prosecution would affect
her ability to be fair and impartial to both sides of the case. Our courts held the
aforementioned bases for exercising the peremptory challenge to be racially neutral.
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Id.; Porter, 326 N.C. at 499, 391 S.E.2d at 151; Crummy, 107 N.C. App at 322, 420
S.E.2d at 457.
The State exercised a peremptory strike against Juror 11, a black male. The
State did not strike Juror 12, a white male. Jurors 11 and 12 were charged with
writing worthless checks and driving while license revoked in the past, and both knew
a potential witness, Mr. Webb. However, this “state of circumstances in itself does
not necessarily lead to a conclusion that the reasons given by [the State] were
pretextual.” Cofield, 129 N.C. App. at 279, 498 S.E.2d at 831 (citations omitted). As
in Jackson, there are additional factors distinguish Jurors 11 and 12: Juror 12
responded directly to questions about his criminal charges and Juror 11 minimized
his criminal history; Juror 11 avoided questions regarding his family member’s
criminal charges; and Juror 12 had a business relationship with Mr. Webb, whereas
Juror 11 spoke with Mr. Webb on multiple occasions and his great-niece worked for
Mr. Webb. 322 N.C. at 257, 368 S.E.2d at 841.
After reviewing the record, it is clear the trial court properly considered the
totality of the circumstances, the credibility of the State, and the context of the
peremptory strikes against Jurors 2, 10, and 11. Cofield, 129 N.C. App. at 279, 498
S.E.2d at 831 (citations omitted). Therefore, in light of the record, we hold the trial
court did not commit clear error in rejecting Defendant’s Batson objections.
IV. Conclusion
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For the foregoing reasons we hold the trial court did not commit error.
NO ERROR.
Judges McCULLOUGH and DIETZ concur.
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