State v. Bennett

IN THE SUPREME COURT OF NORTH CAROLINA

No. 406PA18

Filed 5 June 2020

STATE OF NORTH CAROLINA

v.
CORY DION BENNETT

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 262 N.C. App. 89, 821 S.E.2d 476 (2018), affirming judgments

entered on 16 March 2017 by Judge John E. Nobles, Jr., in Superior Court, Sampson

County. On 27 March 2019, the Supreme Court allowed the State’s conditional

petition for discretionary review as to an additional issue. Heard in the Supreme

Court on 3 February 2020.

Joshua H. Stein, Attorney General, by Kristin J. Uicker and Brent D. Kiziah,
Assistant Attorneys General, for the State-appellee.

Franklin E. Wells, Jr., for defendant-appellant.

Donald H. Beskind, Robert S. Chang, and Taki V. Flevaris for Fred T.
Korematsu Center for Law and Equality, amicus curiae.

David Weiss, James E. Coleman, Jr., and Elizabeth Hambourger for Coalition
of State and National Criminal Justice and Civil Rights Advocates, amici
curiae.

ERVIN, Justice.

This case requires us to determine whether the record developed before the

trial court sufficed to permit appellate review of a Batson challenge lodged by
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Opinion of the Court

defendant Cory Dion Bennett and, if so, whether defendant established the existence

of the prima facie case of discrimination necessary to require the trial court to

undertake a complete Batson analysis. After careful review of the record, transcript,

and briefs in light of the applicable law, we conclude that defendant presented a

sufficient record to allow this Court to conduct a meaningful review of his contention

that he did, in fact, establish the necessary prima facie case of discrimination and

that he made a sufficient showing to require the performance of a complete Batson

analysis. As a result, we reverse the decision of the Court of Appeals and remand

this case to the Court of Appeals for further remand to the Superior Court, Sampson

County, for a hearing to be conducted in accordance with the final two steps of the

analysis delineated by the Supreme Court of the United States in Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

On 25 April 2016, the Sampson County grand jury returned bills of indictment

charging defendant with three counts of possessing a precursor chemical with the

intent to manufacture methamphetamine, one count of manufacturing

methamphetamine, one count of trafficking in methamphetamine by possession, one

count of trafficking in methamphetamine by manufacture, and one count of

possession of a firearm by a felon. On 6 June 2016, the Sampson County grand jury

returned a bill of indictment charging defendant with two additional counts of

possessing a precursor chemical with the intent to manufacture methamphetamine.

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The charges against defendant came on for trial before the trial court and a

jury at the 13 March 2017 criminal session of the Superior Court, Sampson County.

Among the first twelve persons seated in the jury box during the voir dire process

was Roger Smith, who occupied Seat No. 10. Mr. Smith, an unmarried man, lived off

H.B. Lewis Road and worked as a termite supervisor in Clinton. In response to the

prosecutor’s inquiry concerning whether any prospective juror had “ever been the

victim of a crime,” Mr. Smith 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 Mr. Smith believed that the investigating

officers had handled the incident in a satisfactory manner. In addition, Mr. Smith

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.

Mr. Smith 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, Mr. Smith denied having any religious, moral, or ethical

concerns that would prevent him from voting to return a guilty verdict. After

questioning other prospective jurors, the prosecutor exercised a peremptory challenge

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to remove Mr. Smith from the jury being selected to decide the issue of defendant’s

guilt or innocence.

After a ten-minute recess, Virginia Brunson was called to replace Mr. Smith

in Seat No. 10. Ms. Brunson 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. Ms. Brunson, who was not married, lived near Ingold and owned

a beauty salon that was located across the street from the courthouse. After stating

that she did not know anyone involved in the prosecution or defense of the case or

any of the other prospective jurors, Ms. Brunson told the prosecutor that she had

never been the victim of crime, a defendant or witness in a case, or a juror. In

addition, Ms. Brunson 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, Ms.

Brunson 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.

Ms. Brunson 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.

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To Ms. Brunson’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, Ms. Brunson 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, Ms. Brunson 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.

Ms. Brunson 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 Ms. Brunson:

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

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decision you would have to actually watch the alleged event
happen?

MS. BRUNSON: 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.”

MS. BRUNSON: 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?

MS. BRUNSON: Kind of on both.

MR. THIGPEN: What do you mean?

MS. BRUNSON: Sometimes, I guess, it’s better to not
have hearsay.

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

MS. BRUNSON: Right.

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

MS. BRUNSON: Yes.

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

MS. BRUNSON: 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?

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MS. BRUNSON: Yeah.

MR. THIGPEN: Okay. What you said was, “Yeah.”

MS. BRUNSON: Yeah, I could make that decision
through—

MR. THIGPEN: Based on the testimony?

MS. BRUNSON: 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, Ms. Brunson 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. At the conclusion of this line of

questioning, the State peremptorily challenged Ms. Brunson.

At that point, Rita Corbett took Ms. Brunson’s place in Seat No. 10. In

responding to the trial court’s initial questions, Ms. Corbett stated that there was no

reason that she could not be fair to either the State or defendant. Ms. Corbett lived

in Clinton, worked as a child nutrition supervisor for the Clinton City Schools, and

was married to a person who had retired from his employment with Duke Energy. In

response to prosecutorial questions, Ms. Corbett said that she did not know the

prosecutor, defendant, or defendant’s attorney. Ms. Corbett denied having ever been

the victim of a crime, a defendant, or a witness in a case. However, Ms. Corbett had

served as a member of a criminal jury in Sampson County about thirty years earlier.

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According to Ms. Corbett, 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.

Ms. Corbett 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, Ms. Corbett denied having any reservations about the fact that

felons are prohibited from possessing firearms and expressed no confusion about the

difference between actual and constructive possession. During a colloquy with the

prosecutor, Ms. Corbett gave the following answers:

MR. THIGPEN: Okay. Now, Ms. Corbett, a witness
may testify on behalf of the State as a result of a plea
agreement with the State in exchange for [a] sentence
concession. Based on that fact and that fact alone, would
you not be able to consider that person’s testimony along
with all other evidence that you would hear in the case?

MS. CORBETT: Yes, sir. No, sir.

MR. THIGPEN: Do you understand my question?

MS. CORBETT: Say it again.

MR. THIGPEN: A witness may testify under a plea
agreement in exchange for a sentence concession.

MS. CORBETT: Okay.

MR. THIGPEN: Now if that person were to testify, are
you just going to go, [t]his person’s made a deal; I don’t care

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what they are going to say, or would you listen to it and
consider it just like anybody else?

MS. CORBETT: I would listen to their testimony and
consider it.

Ms. Corbett did not know any of the other prospective jurors and understood that

legal dramas were not based upon reality.

Ms. Corbett told the prosecutor that neither she, a member of her family, nor

a close friend had ever had an unpleasant experience with a law enforcement officer

or a member of the District Attorney’s staff. Ms. Corbett acknowledged that certain

drug charges involving her brother had been resolved, stated that she felt that the

law enforcement officers involved in that situation had treated her brother fairly, and

said that nothing about that experience would affect her ability to be a fair and

impartial juror. Ms. Corbett understood that defendant was presumed to be innocent

until proven guilty beyond a reasonable doubt; that he possessed the right to trial by

jury, to call witnesses in his own behalf, and to refuse to testify; and that any decision

that he might make to refrain from testifying in his own behalf could not be held

against him.

Ms. Corbett told the prosecutor that she understood the difference between

direct and circumstantial evidence and that, as a member of the jury, she would be

required to assess the credibility of the witnesses. Ms. Corbett expressed confidence

in her ability to listen to all of the evidence, keep an open mind, and follow the law in

accordance with the trial court’s instructions. Ms. Corbett agreed with the prosecutor

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Opinion of the Court

that “the law is not always what we think the law is or what you think it should be”

and that, as a juror, she would be required to use common sense, follow the law, and

apply the law to the facts. In addition, Ms. Corbett stated that she “would not have

to see the event happen”; that she could reach a verdict based upon the testimony of

witnesses; and that she did not know of anything that would make it difficult for her

to be fair and impartial to both the State and defendant.

When the prosecutor inquired whether there was anything occurring in her life

outside of the courtroom that would make jury service difficult, Ms. Corbett

mentioned her work-related obligations and stated that she was supposed to take her

daughter-in-law to a doctor’s appointment. On the other hand, Ms. Corbett agreed

that the other prospective jurors probably had similar employment-related concerns

and acknowledged that her daughter-in-law could use some other means to get to her

appointment. Finally, Ms. Corbett stated that she did not have any religious, moral,

or ethical concerns that would prevent her from voting to return a guilty verdict. At

the conclusion of this line of questioning, the State accepted Ms. Corbett as a juror.

After the State announced this decision, defendant’s trial counsel informed the

trial court that she wished to make a Batson motion and asked to be heard. In

response, the trial court inquired of defendant’s trial counsel concerning whether the

motion could be heard after a break. After agreeing that the Batson motion could be

heard after the court broke for lunch, defendant’s trial counsel proceeded to question

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the prospective jurors. After excusing the prospective jurors for lunch, the trial court

allowed defendant’s trial counsel to make a Batson motion.

In seeking relief pursuant to Batson, defendant’s trial counsel stated that “the

basis of my motion goes to the fact that in Seat Number[ ] 10, we had two jurors, [Mr.

Smith] and [Ms. Brunson], both of whom were black jurors, and both of whom were

excused.” According to defendant’s trial counsel, the voir dire examination of both

Mr. Smith and Ms. Brunson indicated that “there was no overwhelming evidence,

there was nothing about any prior criminal convictions, any feelings about—towards

or against law enforcement, there’s no basis, other than the fact that those two jurors

happen to be of African[ ]American de[s]cent [and] they were excused.” In response,

the prosecutor stated that “I don’t think [defendant’s trial counsel] made a prima facie

showing [of] discriminatory intent, which is required under Batson,” and that “[t]he

simple fact that both jurors happen to have been African[ ]American and I chose to

excuse them peremptorily, is not sufficient to raise a Batson challenge.”

At the conclusion of the prosecutor’s remarks, the trial court inquired, with

reference to the prosecutor’s pattern of exercising the State’s peremptory challenges,

that it “[s]eems to me that you excused two, but kept three African[ ]Americans. Am

I right?” After agreeing with the trial court’s observation, the prosecutor identified

the three African American prospective jurors that he had accepted. At that point,

the trial court stated that “I don’t see where you’ve overcome or made a prima facie

showing of lack of neutrality” and asked defendant’s trial counsel why she had

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excused three “White Americans, I guess.” In responding to the trial court’s question,

defendant’s trial counsel asserted that her decision to exercise those challenges “had

nothing to do with [the jurors’] race” and stated that she had peremptorily challenged

one prospective juror because the juror had been the victim of a crime and had served

on a jury. At that point, the prosecutor claimed that those reasons applied equally to

another prospective juror who had not been the subject of a peremptory challenge,

leading the trial court to respond, “[t]hat’s what I was talking about.” After stating

that there were additional reasons for the peremptory challenges that she had

exercised, defendant’s trial counsel reiterated that “race was not a part of it.” In

denying defendant’s Batson motion, the trial court stated that:

Madam Clerk, the Court, from the evidence, the arguments
of counsel on the record, the Court finds there is no
evidence of a showing of prejudice based on race or any of
the contentions in Batson . . . . The Court further finds
that out of the five jurors who were African[ ]American,
three still remain on the panel and have been passed by the
State. The Court concludes there is no prima facie showing
justifying the Batson challenge; therefore, the defendant’s
motion is denied.

On 16 March 2017, the jury returned verdicts convicting defendant of five

counts of possessing a precursor chemical, one count of manufacturing

methamphetamine, one count of trafficking in methamphetamine by possession, and

one count of trafficking in methamphetamine by manufacture and acquitting

defendant of possession of a firearm by a felon. After accepting the jury’s verdicts,

the trial court consolidated three of defendant’s convictions for possessing a precursor

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Opinion of the Court

chemical for judgment and entered a judgment sentencing defendant to a term of 28

to 43 months imprisonment; entered a second judgment based upon defendant’s

conviction for manufacturing methamphetamine sentencing defendant to a

concurrent term of 120 to 156 months imprisonment; consolidated defendant’s

remaining two convictions for possessing a precursor chemical for judgment and

entered a third judgment sentencing defendant to a concurrent term of 28 to 43

months imprisonment; and consolidated defendant’s two convictions for trafficking in

methamphetamine for judgment and entered a fourth judgment sentencing

defendant to a concurrent term of 90 to 117 months imprisonment. Defendant noted

an appeal from the trial court’s judgments to the Court of Appeals.

In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant argued that the trial court had erred by denying his Batson motion on the

grounds that “there was prima facie evidence that the prosecutor’s use of peremptory

strikes was racially motivated.” In defendant’s view, “[t]he trial [court] . . . based [its]

denial of the motion on an apparent belief that because the prosecutor had accepted

some black jurors, the exercise of the challenged peremptory strikes could not

possibly have been improper.” According to defendant, the prosecutor had utilized

100% of his peremptory challenges to excuse African American prospective jurors

while the prosecutor accepted 100% of the white jurors that he had questioned. The

State responded that the trial court’s conclusion with respect to defendant’s Batson

motion was “not clearly erroneous” and that “the record is insufficient to permit

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proper appellate review of the Batson issue” because “neither the [r]ecord nor

[t]ranscript reveals that [d]efendant at any time made a motion to record the race of

prospective jurors.”1

In an opinion finding no error in the proceedings leading to the entry of the

trial court’s judgments, the Court of Appeals held that defendant had “failed to make

a prima facie case that the State’s challenges were racially motivated.” State v.

Bennett, 262 N.C. App. 89, 90, 821 S.E.2d 476, 479 (2018). As an initial matter, the

Court of Appeals addressed the issue of whether the record contained sufficient

information to permit a proper determination of the merits of defendant’s challenge

to the trial court’s Batson ruling, with its inquiry into this issue focusing upon the

extent to which the record sufficiently established the race of each of the relevant

prospective jurors. Id. at 92–98, 821 S.E.2d at 481–84. After noting that defendant’s

trial counsel had identified Mr. Smith and Ms. Brunson as African American in the

course of making the Batson motion, that the prosecutor had agreed with the

assertion of defendant’s trial counsel, and that the trial court had found that Mr.

Smith and Ms. Brunson were African American in its findings of fact, the Court of

Appeals stated that, “[f]or proper review of [the] denial of a Batson challenge, it is

1 In addition, defendant argued before the Court of Appeals that the trial court had
erred “by giving an acting in concert instruction when the evidence failed to support an
inference that [defendant and another individual] were acting together in the commission of
any crime.” In view of the fact that the Court of Appeals rejected defendant’s challenge to
the trial court’s acting in concert instruction and that defendant has made no effort to bring
that issue forward for our consideration, we will refrain from discussing the acting in concert
issue any further in this opinion.

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necessary that the record establishes the race of any prospective juror that the

defendant contends was unconstitutionally excused for [a] discriminatory purpose by

peremptory challenge.” Id. at 93, 821 S.E.2d at 481.

In making this determination, the Court of Appeals referenced this Court’s

decision in State v. Mitchell, in which we held that

[i]f a defendant in cases such as this believes a prospective
juror to be of a particular race, he can bring this fact to the
trial court’s attention and ensure that it is made a part of
the record. Further, if there is any question as to the
prospective juror’s race, this issue should be resolved by the
trial court based upon questioning of the juror or other
proper evidence.

Bennett, 262 N.C. App. at 93, 821 S.E.2d at 481 (cleaned up) (quoting State v. Mitchell,

321 N.C. 650, 656, 365 S.E.2d 554, 557 (1988)). The Court of Appeals reasoned that,

“[i]f there is not any question about a prospective juror’s race, neither the defendant

nor the trial court is required to make inquiry regarding that prospective juror’s race.”

Id. (citation omitted). After noting that a “trial court has broad discretion in

overseeing voir dire” and that Batson challenges are reviewed for whether the trial

court’s findings are clearly erroneous, the Court of Appeals stated that, “[w]here the

record is silent upon a particular point, it will be presumed that the trial court acted

correctly in performing his judicial acts and duties.” Id. at 94–95, 821 S.E.2d at 482

(citations omitted) (stating that “the judge’s subjective impressions are not only

relevant, but an integral part of the judge’s duties”). As a result, the Court of Appeals

held that, “if the trial court determines that it can reliably infer the race of a

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prospective juror based upon its observations during voir dire, and it thereafter

makes a finding of fact based upon its observations, a defendant’s burden of

preserving that prospective juror’s race for the record has been met,” and, “[a]bsent

evidence to the contrary, it will be presumed that the trial court acted properly—i.e.

that the evidence of the prospective juror’s race was sufficient to support the trial

court’s finding in that regard.” Id. at 95, 821 S.E.2d at 482 (citation omitted). In view

of the fact that “[n]othing in the appellate opinions of this State require[s] the trial

court to engage in needless inquiry if a prospective juror’s race is ‘clearly discernable’

without further inquiry,” the Court of Appeals stated that “the record demonstrates

that it was ‘clearly discernable’ to the trial court, and the attorneys for the State and

[d]efendant, that five of the [twenty-one] prospective jurors questioned on voir dire

were African[ ]American, and that two prospective jurors were excused pursuant to

peremptory challenges by the State.” Id. at 96, 821 S.E.2d at 482–83. On the other

hand, after concluding that defendant had properly preserved his Batson challenge

for purposes of appellate review, the Court of Appeals simply stated with respect to

the merits of defendant’s claim that, “[a]ssuming, arguendo, that defendant’s

argument is properly before us, we find no error in the ruling of the trial court and

affirm.” Id. at 98, 821 S.E.2d at 484.

In an opinion concurring in the Court of Appeals’ decision to reject defendant’s

Batson claim, Judge Berger stated that he would have concluded that defendant

“waived review of his Batson challenge because he failed to preserve an adequate

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record setting forth the race of the jurors.” Bennett, 262 N.C. App. at 100, 821 S.E.2d

at 485 (Berger, J., concurring) (stating that “findings as to the race of jurors may not

be established by the subjective impressions or perceptions of ‘the defendant, the

court, counsel’ or other court personnel” (cleaned up) (quoting Mitchell, 321 N.C. at

655, 365 S.E.2d at 557)). According to Judge Berger, this Court has required “further

inquiry regarding each juror’s race . . . because perceptions and subjective

impressions—standing alone—are insufficient to establish jurors’ races.” Id. at 102,

821 S.E.2d at 486. On 27 March 2019, this Court allowed defendant’s petition for

discretionary review to address the issue of whether the Court of Appeals had erred

by upholding the trial court’s decision to deny defendant’s Batson motion and allowed

the State’s conditional petition for discretionary review to determine whether the

Court of Appeals had erred by concluding that the record provided sufficient evidence

of the race of the relevant prospective jurors to permit appellate review of the denial

of defendant’s Batson motion.

In seeking to convince this Court that the trial court and the Court of Appeals

erred by concluding that defendant had failed to establish a prima facie case of

discrimination, defendant argues that “[t]he prosecutor’s exercise of 100 percent of

his peremptory challenges to remove black jurors while accepting 100 percent of

white jurors raised a prima facie case of purposeful discrimination under Batson and

required the trial court and Court of Appeals to engage in further analysis and

investigation.” According to defendant, “[t]here was sufficient evidence of the race of

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the jurors excused by improper peremptory challenges to permit meaningful review”

given that “there was no dispute about the race of jurors questioned by the parties”

and that “[t]he prosecutor, defense lawyer, and judge were unanimous in their

determination of the races of the potential jurors during the first round of [jury

selection].” According to defendant, this Court held in Mitchell “that if there is no

question about a prospective juror’s race, no further inquiry is required.” Moreover,

defendant asserts that he did, in fact, make out a prima facie case of discrimination

as required by Batson and contends that the trial court “failed to conduct any serious

analysis of the claim” because it “focused on the number of black jurors accepted by

the State, to the exclusion of any discussion or consideration of the two black jurors

excluded”; “ignored the statistical disparity between strike and acceptance rates for

black and white jurors”; and “misunderstood the law.”

In seeking to convince us that defendant’s challenge to the rejection of his

Batson claim lacks merit, the State begins by contending that “[d]efendant makes no

argument that the Court of Appeals erred” and asserts that we should dismiss

defendant’s appeal because “[d]efendant’s assertion that the Court of Appeals

analyzed the issue ‘in a summary fashion’ does not show the Court of Appeals erred.”

In addition, the State argues that “[d]efendant waived review . . . by failing to

establish an adequate record” on the grounds that a “juror’s self-identification of his

or her race is an approved method of establishing a sufficient record” while “[t]he

subjective impressions of court personnel are not an approved method for establishing

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a juror’s race,” citing State v. Payne, 327 N.C. 194, 198, 394 S.E.2d 158, 160 (1990),

and State v. Brogden, 329 N.C. 534, 546, 407 S.E.2d 158, 166 (1991). According to

the State, this Court’s precedent supports a “common-sense conclusion that the best

source of information about a person’s race is asking that person directly,” with the

absence of such information in this case being sufficient to preclude meaningful

appellate review. The State further contends that “[d]efendant’s arguments based on

statistics, made for the first time on appeal, are not properly before this Court.”

Finally, assuming that this Court reaches the merits of defendant’s Batson claim, the

State asserts that “[d]efendant failed to establish a prima facie case of intentional

discrimination against prospective jurors based on race” given the absence of

“sufficient evidence to draw an inference that discrimination occurred” and

defendant’s failure to point to any “circumstances showing race to be a relevant

factor” in the prosecutor’s peremptory challenges.

Thirty-four years ago, the Supreme Court deemed purposeful discrimination

in jury selection to be an equal protection violation in Batson, 476 U.S. at 88–89, 106

S. Ct. at 1718–19, 90 L. Ed. 2d at 82–83. A court required to determine whether a

prosecutor impermissibly exercised a peremptory challenge based upon a prospective

juror’s race in violation of Batson must engage in the following three-step analysis:

First, the party raising the claim must make a prima facie
showing of intentional discrimination under the totality of
the relevant facts in the case. Second, if a prima facie case
is established, the burden shifts to the State to present a
race-neutral explanation for the challenge. Finally, the

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trial court must then determine whether the defendant has
met the burden of proving purposeful discrimination.

State v. Waring, 364 N.C. 443, 474–75, 701 S.E.2d 615, 636 (2010) (cleaned up)

(citations omitted). A trial court’s findings with respect to the issue of whether a

defendant has made out a prima facie case of discrimination “will be upheld on appeal

unless they are clearly erroneous,” State v. Taylor, 362 N.C. 514, 528, 669 S.E.2d 239,

254 (2008), with such a “clear error” being deemed to exist when, “on the entire

evidence [the Court is] left with the definite and firm conviction that a mistake has

been committed.” Id. (cleaned up) (quoting State v. Chapman, 359 N.C. 328, 339, 611

S.E.2d 794, 806 (2005)). As a result, while a reviewing court is not entitled to choose

between “two permissible views of the evidence,” State v. Lawrence, 352 N.C. 1, 14,

530 S.E.2d 807, 816 (2000), “deference does not by definition preclude relief” under

the “clearly erroneous” standard. Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 240,

125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196, 214 (2005) (cleaned up) (quoting Miller-El

v. Cockrell (Miller-El I), 537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931,

952 (2003)).

In order to preserve a Batson challenge for purposes of appellate review, “[a]n

appellant must make a record which shows the race of a challenged juror.” State v.

Willis, 332 N.C. 151, 162, 420 S.E.2d 158, 162 (1992) (citing Mitchell, 321 N.C. at 650,

365 S.E.2d at 554). In Mitchell, the defendant had “filed a motion to require the court

reporter to note the race of every potential juror examined to perfect the record and

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determine if there was a substantial likelihood that any jurors were challenged on

the basis of race.” Mitchell, 321 N.C. at 653, 365 S.E.2d at 556. This Court upheld

the trial court’s decision to deny the defendant’s motion on the grounds that,

“[a]lthough this approach might have preserved a proper record from which an

appellate court could determine if any potential jurors were challenged solely on the

basis of race, we find it inappropriate,” id. at 655, 365 S.E.2d at 557, given that “[t]o

have a court reporter note the race of every potential juror examined would require a

reporter alone to make that determination without the benefit of questioning by

counsel or any other evidence that might tend to establish the prospective juror’s

race.” Id. (emphasis added). According to this Court, “[t]he court reporter . . . is in

no better position to determine the race of each prospective juror than the defendant,

the court, or counsel” because “[a]n individual’s race is not always easily discernible,

and the potential for error by a court reporter acting alone is great.” Id. at 655–56,

365 S.E.2d at 557 (emphasis added). Thus, we held that, in the event that a defendant

“believes a prospective juror to be of a particular race, he can bring this fact to the

trial court’s attention and ensure that it is made a part of the record.” Id. at 656, 365

S.E.2d at 557. “[I]f there is any question as to the prospective juror’s race, this issue

should be resolved by the trial court based upon questioning of the juror or other

proper evidence, as opposed to leaving the issue to the court reporter who may not

make counsel aware of the doubt.” Id. (emphasis added). As a result, our decision in

Mitchell prohibits a single individual, either a court reporter, the trial court, or an

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Opinion of the Court

attorney, from determining the racial identification of a prospective juror based upon

nothing more than that individual’s subjective impressions, with the required racial

identification determination having to rest upon the questioning of the juror at issue

or other proper evidence developed in consultation with counsel for the parties and

the trial court.

Subsequently, this Court refused to credit a subjective determination of the

racial identification of prospective jurors that had been made by one of the

defendant’s attorneys in Payne, 327 N.C. at 194, 394 S.E.2d at 158. In Payne, “[t]he

defendant requested that the courtroom clerk record the race and sex of the

‘prospective’ jurors who had already been seated or excused, but the trial court denied

his request.” Id. at 198, 394 S.E.2d at 159. “The next morning, the defendant

renewed his objection via a written motion for the clerk to record the race and sex of

jurors,” with this request being “supported by an affidavit, subscribed by one of the

defendant’s attorneys, purporting to contain the name of each black prospective juror

examined to that point, and whether the State had peremptorily excused, challenged

for cause, or passed the prospective juror to the defense.” Id. at 198, 394 S.E.2d at

159–60. After “viewing the affidavit’s allegations as true,” the trial court

“nonetheless ruled that the defendant had failed to make a prima facie showing” that

the State exercised its peremptory challenges in a discriminatory manner. Id. at 198,

394 S.E.2d at 160. This Court however, did not reach the merits of whether the

defendant had made out a prima facie case of discrimination and, instead, acting in

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Opinion of the Court

reliance upon Mitchell, determined that “we are not presented with a record on appeal

which will support the defendant’s argument.” Id. In light of the fact that the trial

court had stated that, “had the defendant made his motion prior to jury selection, the

court would have had each prospective juror state his or her race during the court’s

initial questioning,” id. at 200, 394 S.E.2d at 160, this Court concluded that the trial

court’s proposed approach “would have provided the trial court with an accurate basis

for ruling on the defendant’s motion, and would also have preserved an adequate

record for appellate review,” id., with the problem arising from the use of an after-

the-fact affidavit executed by defendant’s trial counsel to establish the racial

identification of the prospective jurors being that it “contained only the perceptions

of one of the defendant’s lawyers concerning the races of those excused—perceptions

no more adequate than the court reporter’s or the clerk’s would have been, as we

recognized in Mitchell.” Id. at 200, 394 S.E.2d at 161 (citing Mitchell, 321 N.C. at

655–56, 365 S.E.2d at 557).2 See also Brogden, 329 N.C. at 546, 407 S.E.2d at 166

(holding that the defendant “failed to carry his burden of establishing an adequate

record for appellate review” where “the only records of the potential jurors’ race

preserved for appellate review are the subjective impressions of [the] defendant’s

2 Our opinion in Payne makes no reference to the existence of a stipulation. Instead,
the State refrained from commenting upon the sufficiency of the defendant’s proof in the trial
court and did not challenge the adequacy of defendant’s showing of the racial identities of the
prospective jurors before this Court. We are unable to conclude that Payne involved a
stipulation in light of these facts and the applicable law, which is discussed later in this
opinion.

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Opinion of the Court

counsel and notations made by the court reporter of her subjective impressions with

regard to race”).

A careful review of the record presented for our consideration in this case

satisfies us that the majority of the Court of Appeals correctly determined that the

record contains sufficient information to permit us to review the merits of defendant’s

Batson claim. Unlike the situations at issue in Mitchell, Payne, and Brogden, in

which the defendant attempted to establish the racial identities of each of the

prospective jurors on the basis of the subjective impressions of a limited number of

trial participants, the record in this case establishes that defendant’s trial counsel,

the prosecutor, and the trial court each agreed that Mr. Smith and Ms. Brunson were

African American. In other words, the record reveals the complete absence of any

dispute among counsel for the parties and the trial court concerning the racial

identity of the persons who were questioned during the jury selection process, with

this agreement between counsel for the parties and the trial court making this case

fundamentally different from Mitchell, Payne, and Brogden and resulting in what

amounts to a stipulation of the racial identity of the relevant prospective jurors. See

Smith v. Beasley, 298 N.C. 798, 800, 259 S.E.2d 907, 909 (1979) (stating that “[a]

stipulation is an agreement between the parties establishing a particular fact in

controversy” (citing Rural Plumbing and Heating, Inc. v. H.C. Jones Constr. Co., 268

N.C. 23, 31, 149 S.E.2d 625, 631 (1966))). While “[a] stipulation must be ‘definite and

certain in order to afford a basis for judicial decision,’ ” State v. Hurt, 361 N.C. 325,

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329, 643 S.E.2d 915, 918 (2007) (quoting State v. Powell, 254 N.C. 231, 234, 118

S.E.2d 617, 619 (1961)), “stipulations and admissions may take a variety of forms and

may be found by implication.” Id. at 330, 643 S.E.2d at 918 (citing State v. Mullican,

329 N.C. 683, 686, 406 S.E.2d 854, 855–56 (1991)); see also State v. Alexander, 359

N.C. 824, 826, 830, 616 S.E.2d 914, 916, 918 (2005) (holding that the defendant’s trial

counsel had stipulated to the accuracy of a prior record worksheet by stating that his

client “is a single man and up until this particular case he had no felony convictions,

as you can see from his worksheet”). “Where facts are stipulated, they are deemed

established as fully as if determined by jury verdict” or the trial court. Smith, 298

N.C. at 800–01, 259 S.E.2d at 909 (citing Moore v. Humphrey, 247 N.C. 423, 430, 101

S.E.2d 460, 466–67 (1958)).

In accordance with this fundamental legal proposition, this Court has accepted

without any adverse comment the use of a stipulation for the purpose of establishing

the racial identities of prospective jurors for the purpose of reviewing a defendant’s

Batson challenge.3 See State v. Jackson, 322 N.C. 251, 368 S.E.2d 838 (1988). In

Jackson, which was decided almost two months after Mitchell, “[t]he selection of the

jury at the trial of this case was not transcribed.” Id. at 252, 368 S.E.2d at 838. Even

so, “[t]he attorneys who represented the defendant at trial and [one of the State’s

3 Jackson contains no indication that the procedural posture in which the case was
heard on remand from the Supreme Court of the United States had any bearing upon the
acceptability of the method of proving the racial identities of the prospective jurors utilized
in that case.

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Opinion of the Court

attorneys] stipulated what happened at the trial,” with these stipulated facts

including a recognition “that the State used five peremptory challenges to remove

four blacks and one white from the jury.” Id. at 252–53, 368 S.E.2d at 838–39. On

appeal, this Court used the stipulation of counsel for the parties, the notes taken by

trial counsel for the parties, and an affidavit from one of the prosecutors who had

represented the State at trial in order to evaluate the validity of defendant’s Batson

argument. Id. at 252, 368 S.E.2d at 839. We are unable to distinguish what this

Court appears to have found acceptable in Jackson from the events depicted in the

record before us in this case, in which defendant’s trial counsel stated that Mr. Smith

and Ms. Brunson “were black jurors,” the prosecutor agreed to “[t]he simple fact that

both jurors happen to have been African[ ]American and [he had] chose[n] to excuse

them,” the prosecutor claimed that he had passed three other African American

prospective jurors, and the trial court found as a fact that, “out of the five jurors who

were African[ ]American, three still remain on the panel and have been passed by the

State.” In view of the fact that the racial identification of the relevant prospective

jurors was not in dispute between the parties, that the prosecutor acknowledged

having peremptorily challenged two of the five African American prospective jurors

that had been tendered for the State’s consideration, that the agreement of the

parties amounted to a stipulation concerning the racial identity of the relevant

prospective jurors, and that the trial court’s findings reflected the terms of this

implicit agreement in its findings, there was nothing to be “resolved by the trial court

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Opinion of the Court

based upon questioning of the juror or other proper evidence.” Mitchell, 321 N.C. at

656, 365 S.E.2d at 557.4 As a result, given that our prior decisions clearly allow for

the use of methods other than self-identification5 for the purpose of determining the

racial identity of prospective jurors for the purpose of deciding the merits of a Batson

claim and given our failure, during the course of our research, to find a decision from

any other American jurisdiction precluding the use of any method for determining

the racial identities of prospective jurors for purposes of evaluating the merits of a

Batson claim other than the juror’s racial self-identification, we hold that the record

before us in this case is sufficient to permit us to review the merits of defendant’s

Batson claim.6

4 The ultimate issue raised by a Batson challenge—whether the prosecutor is
excluding people from a jury because of their race—involves “a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.” Batson v. Kentucky, 476
U.S. 79, 93, 106 S. Ct. 1712, 1721, 90 L. Ed. 2d 69, 85 (1986) (quoting Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450, 465 (1977)).
At oral argument, counsel for the State argued that “[w]hether the prosecutor accurately or
inaccurately assesses [a juror’s] race is . . . irrelevant to the reason that they have chosen or
not chosen to strike them” on the grounds that, “in using the peremptory challenge, if [the
prosecutor] ha[s] decided that they want to strike this person because they believe them to
be of X race but they are not in fact of that race, that would still be an impermissible challenge
to that person.” The logic upon which this argument rests provides further support for our
conclusion that the record before us in this case is sufficient to permit appellate review of
defendant’s Batson claim.
5A prospective juror’s answer to a question concerning his or her racial identity
contained on a jury questionnaire is simply another form of juror self-identification.
6 According to the State, defendant has failed to argue that the Court of Appeals erred
by upholding the trial court’s Batson ruling and has improperly advanced statistical
arguments that he failed to make in the courts below. We reject any contention that litigants
must use any particular semantic formulation in the petitions or briefs that are filed with
this Court in order to properly preserve a claim for appellate review. As the record clearly
reflects, defendant’s successful discretionary review petition raises the issue of “[w]hether

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Opinion of the Court

This Court has stated that “[s]tep one of the Batson analysis, a prima facie

showing of racial discrimination, is not intended to be a high hurdle for defendants

to cross” and that “the showing need only be sufficient to shift the burden to the State

to articulate race-neutral reasons for its peremptory challenge.” State v. Hoffman,

348 N.C. 548, 553, 500 S.E.2d 718, 722 (1998). This Court has identified several

factors that are relevant in considering whether a defendant has established the

existence of the necessary prima facie case, including:

the defendant’s race, the victim’s race, the race of the key
witnesses, questions and statements of the prosecutor
which tend to support or refute an inference of
discrimination, repeated use of peremptory challenges
against blacks such that it tends to establish a pattern of
strikes against blacks in the venire, the prosecution’s use
of a disproportionate number of peremptory challenges to
strike black jurors in a single case, and the State’s
acceptance rate of potential black jurors.

State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995). Although a numerical

analysis of strike patterns “is not necessarily dispositive” in determining that the

defendant has succeeded in making out a prima facie case, such an analysis “can be

useful in helping us and the trial court determine whether a prima facie case of

the Court of Appeals erred in sustaining the trial court’s ruling denying defendant’s Batson
motion,” with the relatively limited analysis in which the Court of Appeals engaged before
rejecting defendant’s Batson claim on the merits being no barrier to consideration of
defendant’s claim before this Court. Moreover, the trial court raised the statistical issue in
noting that the State had accepted three African American prospective jurors and asked
defendant’s trial counsel why she had peremptorily challenged three white prospective
jurors. Finally, defendant advanced a statistics-based argument in his brief before the Court
of Appeals. As a result, the merits of defendant’s Batson claim are properly before this Court.

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Opinion of the Court

discrimination has been established.” State v. Barden, 356 N.C. 316, 344, 572 S.E.2d

108, 127 (2002). All in all, however, “the defendant must make out a prima facie case

‘by showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.’ ”7 Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410,

2416, 162 L. Ed. 2d 129, 138 (2005) (quoting Batson, 476 U.S. at 93–94, 106 S. Ct. at

1721, 90 L. Ed. 2d at 86).

The Supreme Court has explicitly rejected the use of a “more likely than not”

standard in determining whether a prima facie case of discrimination has been

established on the grounds that such a test is “an inappropriate yardstick by which

to measure the sufficiency of a prima facie case,” id., having reached this conclusion

on the grounds that “a prima facie case of discrimination can be made out by offering

a wide variety of evidence, so long as the sum of the proffered facts gives ‘rise to an

inference of discriminatory purpose.’ ” Id. at 169, 125 S. Ct. at 2416, 162 L. Ed. 2d at

138 (footnote omitted) (quoting Batson, 476 U.S. at 94, 106 S. Ct. at 1721, 90 L. Ed.

2d at 86). The “wide variety of evidence” that can be utilized to establish a prima

facie case of discrimination could appropriately consist “solely o[f] evidence

concerning the prosecutor’s exercise of peremptory challenges at the defendant’s

trial,” id. (quoting Batson, 476 U.S. at 96, 106 S. Ct. at 1723, 90 L. Ed. 2d at 87), with

7 “An ‘inference’ is generally understood to be a ‘conclusion reached by considering
other facts and deducing a logical consequence from them.’ ” Johnson v. California, 545 U.S.
162, 168 n.4, 125 S. Ct. 2410, 2416 n.4, 162 L. Ed. 2d 129, 138 n.4 (quoting Inference, Black’s
Law Dictionary (7th ed. 1999)).

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Opinion of the Court

this stage of the required Batson analysis never having been intended “to be so

onerous that a defendant would have to persuade the judge—on the basis of all the

facts, some of which are impossible for the defendant to know with certainty—that

the challenge was more likely than not the product of purposeful discrimination.” Id.

at 170, 125 S. Ct. at 2417, 162 L. Ed. 2d at 139. Instead, the Supreme Court intended

that “a defendant [would] satisf[y] the requirements of Batson’s first step by

producing evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred,” id., with the existence of such a permissible inference

not being the same thing as an ultimate conclusion that impermissible discrimination

has, in fact, taken place. Id. at 171, 125 S. Ct. at 2417–18, 162 L. Ed. 2d at 140

(stating that “[t]he first two Batson steps govern the production of evidence that

allows the trial court to determine the persuasiveness of the defendant’s

constitutional claim” and that “[i]t is not until the third step that the persuasiveness

of the justification becomes relevant—the step in which the trial court determines

whether the opponent of the strike has carried his burden of proving purposeful

discrimination” (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771,

131 L. Ed. 2d 834, 839 (1995))). As a result, a court should not attempt to determine

whether a prosecutor has actually engaged in impermissible purposeful

discrimination at the first step of the Batson inquiry because “[t]he inherent

uncertainty present in inquiries of discriminatory purpose counsels against engaging

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Opinion of the Court

in needless and imperfect speculation when a direct answer can be obtained by asking

a simple question.” Id. at 172, 125 S. Ct. at 2418, 162 L. Ed. 2d at 140–41.

A careful review of the numerical disparity between the relative acceptance

rates for African American and white prospective jurors, coupled with other

inferences that can be derived from the record, such as the absence of any significant

dissimilarity between the answers given by Mr. Smith, Ms. Brunson, and Ms. Corbett

or any apparent indication arising from the face of the record that either Mr. Smith

or Ms. Brunson would not have been satisfactory jurors from a prosecutorial point of

view, satisfies us that defendant made out the necessary prima facie case of

purposeful discrimination in this case. Prior to the point at which defendant asserted

his Batson challenge, the prosecutor had questioned fourteen jurors, five of whom

were African American and nine of whom were not. During that time, the prosecutor

exercised two peremptory challenges in order to excuse African American prospective

jurors and utilized no peremptory challenges to excuse white jurors. In other words,

the prosecutor’s strike rate was 40% for African American prospective jurors and 0%

for white prospective jurors, while his acceptance rate for African American

prospective jurors was 60% and his acceptance rate for white prospective jurors was

100%. In addition, 100% of the peremptory challenges that the prosecutor exercised

were utilized to excuse African American prospective jurors, while none were utilized

to excuse a white prospective juror. The disparity in these numbers, when coupled,

as was noted by defendant’s trial counsel during the proceedings before the trial

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Opinion of the Court

court, with the absence of any immediately obvious justification for the peremptory

challenges directed to Mr. Smith and Ms. Brunson arising from the answers that they

provided during the jury selection process, is sufficient to raise an inference that

purposeful discrimination occurred. As a result, after considering all of the relevant

factors disclosed in the record, we hold that the trial court’s determination that

defendant had failed to make out the required prima facie case was clearly erroneous

and that the Court of Appeals erred by summarily affirming the trial court’s

determination with respect to this issue.8

In seeking to persuade us that the Court of Appeals did not err by upholding

the trial court’s rejection of defendant’s Batson claim, the State asserts that “[t]his

Court’s jurisprudence is replete with cases upholding the trial court’s finding of no

8 As an aside, we note that the trial court’s reference to the fact that the prosecutor
had accepted three African American prospective jurors in finding that defendant had failed
to make out a prima facie case of discrimination may rest upon a misapprehension of the
manner in which Batson and its progeny should be applied, given that a single, racially
motivated peremptory challenge directed to a qualified African American prospective juror
may constitute grounds for a valid Batson claim regardless of the rate at which the prosecutor
accepted African American prospective jurors over the course of the entire jury selection
process. See Flowers v. Mississippi, 139 S. Ct. 2228, 2241, 204 L. Ed. 2d 638, 653 (2019)
(stating that, “[i]n the eyes of the Constitution, one racially discriminatory peremptory strike
is one too many”). As the Supreme Court has stated, the acceptance of a small number of
African American jurors could be intended “to obscure the otherwise consistent pattern of
opposition to” seating other African American jurors. Miller-El v. Dretke (Miller-El II), 545
U.S. 231, 250, 125 S. Ct. 2317, 2330, 162 L. Ed. 2d 196, 220 (2005). Similarly, the fact that
defendant’s trial counsel had peremptorily challenged three white jurors does not, standing
alone, provide a non-discriminatory explanation for the prosecutor’s decision to peremptorily
challenge two African American prospective jurors at defendant’s trial. Flowers, 139 S. Ct.
at 2242, 204 L. Ed. 2d at 654 (stating that “[d]iscrimination against one defendant or juror
on account of race is not remedied or cured by discrimination against other defendants or
jurors on account of race”).

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prima facie showing under Batson [with] acceptance rates of African[ ]American

prospective jurors closely analogous to or lower than that alleged in this case.” To be

sure, “one factor tending to refute a showing of discrimination is the State’s

acceptance of black jurors.” State v. Thomas, 329 N.C. 423, 431, 407 S.E.2d 141, 147

(1991) (citing State v. Smith, 328 N.C. 99, 121, 400 S.E.2d 712, 724 (1991)). Although

such information “is relevant to our inquiry, . . . it is not dispositive.” Smith, 328 N.C.

at 121, 400 S.E.2d at 724. Moreover, in recent years, the Supreme Court has treated

prosecutorial claims that the acceptance of other African American prospective jurors

constituted a defense to a Batson claim with considerable skepticism. See Flowers v.

Mississippi, 139 S. Ct. 2228, 2246, 204 L. Ed. 2d 638, 659 (2019) (quoting Miller-El

II, 545 U.S. at 250, 125 S. Ct. at 2330, 162 L. Ed. 2d at 220) (stating that, “[i]n Miller-

El II, this Court skeptically viewed the State’s decision to accept one black juror,

explaining that a prosecutor might do so in an attempt ‘to obscure the otherwise

consistent pattern of opposition to’ seating black jurors”). Finally, the State’s attempt

to derive a bright-line test from our prior decisions for the purpose of identifying those

cases in which a defendant has or has not established a prima facie case of

discrimination based solely upon the rate at which the prosecutor accepted other

African American prospective jurors conflicts with the highly fact-specific nature of

the inquiry required under Batson and its progeny, which requires consideration of

all relevant factors. As a result, we do not find the State’s argument that defendant

failed to show the existence of the required prima facie case of discrimination based

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Opinion of the Court

upon the fact that the prosecutor accepted three of the five African American

prospective jurors that were tendered to him for questioning to be persuasive.

A careful analysis of the cases cited in support of the State’s “acceptance rate”

argument also establishes that these decisions are not, in almost all instances,

susceptible to the interpretation that the State has sought to place upon them. In

Taylor, this Court upheld the trial court’s decision to refrain from finding a prima

facie case of purposeful discrimination in a case in which the prosecutor peremptorily

challenged seven white jurors and the peremptory challenge to which the defendant’s

Batson challenge was addressed involved a juror who had “expressed tremendous

hesitation in being able to vote for the death penalty.” 362 N.C. at 528–30, 669 S.E.2d

at 254–55; see also State v. Nicholson, 355 N.C. 1, 23–24, 558 S.E.2d 109, 126 (2002)

(upholding the trial court’s determination that the defendant had failed to establish

a prima facie case of purposeful discrimination when the peremptory challenges to

which the defendant’s Batson claim was directed had been exercised early in the jury

selection process to excuse prospective jurors who had expressed serious reservations

about the imposition of the death penalty); see also State v. Fletcher, 348 N.C. 292,

319, 500 S.E.2d 668, 683–84 (1998) (upholding the trial court’s decision to refrain

from finding the existence of a prima facie case of purposeful discrimination based

upon the prosecutor’s exercise of a peremptory challenge directed to a prospective

juror who “indicated ambivalence towards the death penalty” given that the record

reflected that the trial court “did not ignore all factors other than the number of

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Opinion of the Court

blacks on the jury”). In State v. Gregory, this Court upheld the trial court’s

determination that the defendant had failed to establish a prima facie case of

purposeful discrimination given that the prosecutor had exercised five peremptory

challenges against white jurors and that the record “establish[ed] substantial reasons

other than purposeful discrimination for each peremptory challenge at issue.” 340

N.C. 365, 398–99, 459 S.E.2d 638, 657 (1995). In State v. Ross, this Court upheld the

trial court’s determination that the defendant had failed to establish a prima facie

case of purposeful discrimination on the grounds that “[t]he only peremptory

challenge exercised by the prosecutor excused a black man from the jury” and that

there was no other evidence raising an inference of discrimination. 338 N.C. 280,

286, 449 S.E.2d 556, 561 (1994). Finally, in State v. Beach, this Court upheld the

trial court’s determination that the defendant failed to establish a prima facie case of

purposeful discrimination on the basis of a record showing that, even though “[t]he

State exercised peremptory challenges to ten [African American prospective jurors]

or sixty-three percent of them,” it had also peremptorily challenged multiple white

prospective jurors as well. 333 N.C. 733, 740, 430 S.E.2d 248, 252 (1993). Although

this Court did uphold the trial court’s determination in State v. Abbott that the

defendant had failed to establish a prima facie case of purposeful discrimination

because “[t]he State was willing to accept 40% [two out of five] of the blacks tendered”

without any additional analysis of the record, 320 N.C. 475, 481, 358 S.E.2d 365, 369

(1987), the Court’s description of the applicable inquiry as being whether the State

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“was determined not to let a black sit as a juror on account of the race of the

defendant,” id. at 482, 358 S.E.2d at 370, suggests that Abbott rests upon a

misunderstanding of the applicable law as clarified in numerous subsequent

decisions such as Quick and Flowers. As a result, none of the decisions upon which

the State appropriately relies, when analyzed closely, indicate that acceptance rates,

standing alone, suffice to preclude a finding that the defendant has made out a prima

facie case of purposeful discrimination, particularly in the face of evidence that all of

the State’s peremptory challenges were directed to African American prospective

jurors, that the State did not peremptorily challenge any white prospective juror, and

that neither of the African American jurors that the State peremptorily challenged

provided any answers during the course of the jury selection process that cast any

doubt upon their ability to be fair and impartial to the State.9

The appropriate remedy for a trial court’s erroneous failure to find the

existence of a prima facie case at the first step of the required Batson analysis is a

remand to the trial court for a hearing to be held for the purpose of completing the

second and third steps of the required analysis. See, e.g., Barden, 356 N.C. at 345,

9 Any reliance upon this Court’s decision in State v. Belton, 318 N.C. 141, 347 S.E.2d
755 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396
(1997), would be misplaced given our determination in State v. Jackson, 317 N.C. 1, 21, 343
S.E.2d 814, 826 (1986), that Batson was not entitled to retroactive application. The Supreme
Court subsequently vacated Jackson in light of its decision in Griffith v. Kentucky, 479 U.S.
314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), holding that Batson applied retroactively on
direct review. Jackson v. North Carolina, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133
(1987).

-36-
 STATE V. BENNETT

Opinion of the Court

572 S.E.2d at 128. At the required remand proceeding, the trial court shall afford the

State an opportunity to proffer race-neutral reasons for the peremptory challenges

that the prosecutor directed to Mr. Smith and Ms. Brunson. In the event that the

trial court determines that the prosecutor has failed to offer race-neutral reasons for

the peremptory challenges in question, it shall order that defendant receive a new

trial. If the prosecutor offers race-neutral reasons for having peremptorily challenged

Mr. Smith and Ms. Brunson, defendant shall be given an opportunity to establish

that the reasons advanced by the prosecutor are pretextual. In the event that

defendant satisfies the trial court on remand that the peremptory challenges directed

to Mr. Smith or Ms. Brunson were substantially motivated by race, the trial court

shall order that defendant receive a new trial. On the other hand, if the trial court

determines on remand that defendant has failed to make the necessary showing of

purposeful discrimination, the trial court shall make appropriate findings of fact and

conclusions of law to be certified to this Court for any further proceedings that this

Court determines to be appropriate. As a result, the Court of Appeals’ decision in

this case is reversed and this case is remanded to the Court of Appeals for further

remand to the Superior Court, Sampson County, for further proceedings not

inconsistent with this opinion.

REVERSED AND REMANDED.

-37-
 Justice NEWBY dissenting.

Our case law has emphasized that an adequate record on appeal is established

by having jurors themselves identify their races. This Court has repeatedly rejected

attempts to create a record of race based solely on observations of outward

appearance. Nevertheless, the majority misreads our prior cases and takes a case

that is a procedural anomaly out of context to conclude that subjective impressions of

individuals are sufficient to identify race by appearance so long as the impressions

are “stipulated” to by the parties.

Further, under the first step of a Batson challenge, the trial court considers

the defendant’s arguments and its own observations of various factors to determine

if the defendant has made “a prima facie showing of intentional discrimination under

the ‘totality of the relevant facts’ in the case.” State v. Waring, 364 N.C. 443, 474, 701

S.E.2d 615, 636 (2010) (quoting Batson v. Kentucky, 476 U.S. 79, 94, 106 S. Ct. 1712,

1721 (1986)). Under our precedent, we review the trial court’s decision under a

deferential abuse of discretion standard. While correctly stating that standard, the

majority usurps the role of the trial court by finding facts, reweighing various factors,

and substituting its judgment for that of the trier of fact. It further creates arguments

for defendant not presented to the trial court or the Court of Appeals, and then faults

those courts for not considering them. In reversing the trial court, the majority

ignores the totality of relevant circumstances and primarily focuses on one factor, the

percentage of minority juror peremptory challenges exercised by the State.
 STATE V. BENNETT

Newby, J., dissenting

Essentially, the majority now holds that the prosecutor’s use of a single peremptory

challenge against a minority satisfies a defendant’s burden of showing intentional

discrimination under Batson’s first prong, triggering a full Batson review. Because

the Batson challenge was not properly preserved for appellate review and the trial

court did not abuse its discretion in concluding that defendant failed to establish a

prima facie showing under Batson’s first prong, I respectfully dissent.

Here defendant did not have the prospective jurors identify their races for the

record. Defendant later challenged the State’s sequential peremptory challenges of

two prospective jurors, both of whom were assigned to seat number ten. The State

used its first peremptory challenge to remove Roger Smith; defendant did not make

a Batson challenge. Smith’s replacement was Virginia Brunson. The State used its

second peremptory challenge to remove her; defendant did not make a Batson

challenge. Seat number ten was then filled by Rita Corbett. Only after the State

passed Corbett did defendant raise a Batson challenge.

Later and outside the presence of the prospective jurors, defense counsel set

forth her Batson argument:

[Defense Counsel]: Judge, I do have a Batson motion. And
Judge, the basis of my motion goes to the fact that in Seat
Number[ ] 10, we had two jurors, [Roger] Smith and
Virginia Brunson, both of whom were black jurors, and
both of whom were excused. And, Judge, in the State’s voir
dire of both jurors, there was no overwhelming evidence,
there was nothing about any prior criminal convictions,
any feelings about—towards or against law enforcement,

-2-
 STATE V. BENNETT

Newby, J., dissenting

there’s no basis, other than the fact that those two jurors
happened to be of African-American de[s]cent they were
excused.
We heard from Mr. Smith who stated that he was a
supervisor here in Clinton and had a breaking and entering
two and a half years ago. Nobody was charged, but he had
no feelings towards law enforcement, no negative
experience with the DA’s office. And, with Ms. Virginia
Brunson, we heard that she owned a beauty salon that was
next to ABC Insurance. She didn’t know anyone in the
audience or anyone in the case. There was nothing that was
deduced during the jury voir dire that would suggest
otherwise.

The State then countered that defense counsel’s only argument, that both of

the prospective jurors excused were black, was insufficient to establish a prima facie

showing of discriminatory intent. The trial court ruled:

Madam Clerk, the Court, from the evidence, the arguments
of counsel on the record, the Court finds there is no
evidence of a showing of prejudice based on race or any of
the contentions in Batson, [N.C.G.S. §] 912A, [N.C.G.S. §]
15A-958. The Court further finds that out of the five jurors
who were African-American, three still remain on the
panel and have been passed by the State. The Court
concludes there is no prima facie showing justifying the
Batson challenge; therefore, the defendant’s motion is
denied.

The ability to serve on a jury is one of “the most substantial opportunit[ies]

that most citizens have to participate in the democratic process.” Flowers v.

Mississippi, 139 S. Ct. 2228, 2238 (2019) (citing Powers v. Ohio, 499 U.S. 400, 407,

111 S. Ct. 1364, 1369 (1991)). The right to jury service is protected by the Equal

-3-
 STATE V. BENNETT

Newby, J., dissenting

Protection Clause of the federal constitution and Article I, Section 26 of the North

Carolina Constitution.

In jury trials, however, attorneys are given the right to excuse a certain

number of prospective jurors through discretionary strikes. “Peremptory strikes have

very old credentials and can be traced back to the common law.” Id. at 2238.

“[P]eremptory strikes traditionally may be used to remove any potential juror for any

reason—no questions asked.” Id.; see also N.C.G.S. § 15A-1217 (2019) (codifying the

availability of peremptory challenges in criminal cases by setting the number of

peremptory challenges allowed based on the type of criminal proceeding).

The Equal Protection Clause, which prohibits discrimination, can clash with

an attorney’s ability to freely exercise peremptory challenges. Id. at 2238. Because of

this tension, the Supreme Court of the United States recognized limitations on

peremptory challenges to ensure that strikes are not used for a discriminatory

purpose against a protected class. Thus, in Batson the Supreme Court set forth a

three-prong test for trial courts to determine whether the State improperly

discriminated by dismissing a prospective juror based on his race.

This Court expressly “adopted the Batson test for review of peremptory

challenges under the North Carolina Constitution.” State v. Fair, 354 N.C. 131, 140,

557 S.E.2d 500, 509 (2001) (citing State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807,

815 (2000), cert. denied, 531 U.S. 1083, 121 S. Ct. 789 (2001); State v. Mitchell, 321

-4-
 STATE V. BENNETT

Newby, J., dissenting

N.C. 650, 365 S.E.2d 554 (1988)). Batson sets forth a three-step analysis, placing the

burden on each party at different points to protect both the State and the defendant:

First, the party raising the claim must make a prima facie
showing of intentional discrimination under the “totality of
the relevant facts” in the case. Second, if a prima facie case
is established, the burden shifts to the State to present a
race-neutral explanation for the challenge. Finally, the
trial court must then determine whether the defendant has
met the burden of proving “purposeful discrimination.”

Waring, 364 N.C. at 474–75, 701 S.E.2d at 636 (first quoting Batson, 476 U.S. at 94,

106 S. Ct. at 1721; then citing Rice v. Collins, 546 U.S. 333, 333, 126 S. Ct. 969, 970–

71 (2010); and then quoting Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317,

2324 (2005)).

The first prong of the Batson test is relevant here. In order for an appellate

court to review a Batson challenge, however, there must be a sufficient record

establishing the jurors’ races. Our precedent clearly holds that a subjective

impression of a prospective juror’s race by one or more court officials is insufficient to

establish a record adequate for appellate review. When appealing a trial court’s

determination of a Batson challenge, a defendant has the burden to ensure that the

prospective jurors’ races are a part of the record. Mitchell, 321 N.C. at 656, 365 S.E.2d

at 557. Only from an adequate record can an appellate court “determine whether

jurors were improperly excused by peremptory challenges at trial.” Id. at 654, 365

S.E.2d at 556.

-5-
 STATE V. BENNETT

Newby, J., dissenting

Here the only information about the race of some of the prospective jurors arose

from observations by defense counsel and then by the trial court. The facts presented

here are very similar to those in State v. Brogden, 329 N.C. 534, 407 S.E.2d 158

(1991), where this Court held that the record was insufficient for appellate review. In

Brogden, based upon our prior holdings in Mitchell and State v. Payne, 327 N.C. 194,

200, 394 S.E.2d 158, 161 (1990), cert. denied, 498 U.S. 1092, 111 S. Ct. 977 (1991),

this Court specified the appropriate ways to preserve a prospective juror’s race for

the record. There the defendant requested, and the trial court allowed, defense

counsel and the court reporter to record the race and sex of each prospective juror

that the State peremptorily challenged. Brogden, 329 N.C. at 546, 407 S.E.2d at 166.

The record is unclear if the trial court or the State were consulted about the race

identifications made by defense counsel and the court reporter. Relying on both

Mitchell and Payne, this Court stated that the record only contained the subjective

impressions of defense counsel and the court reporter about the jurors’ races, which

were insufficient to establish the record for appellate review of the merits. Id. Because

the defendant had “fail[ed] to elicit from the jurors by means of questioning or other

proper evidence the race of each juror,” this Court concluded that the defendant

“failed to carry his burden of establishing an adequate record for appellate review.”

Id.

-6-
 STATE V. BENNETT

Newby, J., dissenting

Similarly, in Payne this Court emphasized the need for a defendant to establish

prospective jurors’ races for the record.1 Payne, 327 N.C. at 198–200, 394 S.E.2d at

159–61. There, after jury selection had occurred, the defendant moved the trial court

to require the clerk to record the race and sex of various jurors. Id. at 198, 394 S.E.2d

at 159. The trial court denied the defendant’s motion. Id. The next day, the defendant

renewed his motion and, in support, submitted an affidavit from one of defendant’s

attorneys purporting to contain the name of each black prospective juror examined.

Id. at 198, 394 S.E.2d at 159–60. In its ruling, the trial court made findings of fact,

relying on the affidavit, but ultimately rejected the merits of the defendant’s Batson

challenge. Id. at 198, 394 S.E.2d at 160.

On appeal, neither party argued the record was inadequate. While before the

trial court the State refrained from commenting on the racial identities of prospective

jurors, the State acquiesced to what occurred in the trial court and did not raise the

question of an inadequate record to this Court. On its own, this Court, however, held

that appellate review of the Batson challenge was unavailable because defendant

failed to preserve an adequate record. We stated that having a prospective juror

specify his or her race for the record would have provided an accurate record needed

for appellate review. Id. at 199–200, 394 S.E.2d at 160–61. The Court concluded that

the defense counsel’s affidavit containing his subjective impressions of each

1 One of the defendant’s attorneys of record in Payne is the author of the majority
opinion here.

-7-
 STATE V. BENNETT

Newby, J., dissenting

prospective juror’s race, and the trial court’s findings based on the affidavit were

insufficient to preserve the record on appeal. The Court held that defense counsel’s

perceptions are “no more adequate than the court reporter’s or the clerk’s would have

been, as we recognized in Mitchell.” Id. at 200, 394 S.E.2d at 161. Despite there

having been a stipulation, in that no one argued the record was inadequate and that

the trial court made findings about various jurors’ races, we found the appellate

record was inadequate. We did not suggest that a stipulation between the trial court

and counsel would have overcome this deficiency.

In Mitchell this Court also rejected the idea that a subjective interpretation of

a prospective juror’s race would be sufficient to establish the record for appellate

review. In Mitchell the defendant unsuccessfully moved to have the court reporter

note the race of every prospective juror in order to establish the record for appeal.

Mitchell, 321 N.C. at 655, 365 S.E.2d at 557. In considering preservation before

reviewing the defendant’s arguments on appeal, this Court noted that

[a]lthough this approach might have preserved a proper
record from which an appellate court could determine if
any potential jurors were challenged solely on the basis of
race, we find it inappropriate. To have a court reporter note
the race of every potential juror examined would require a
reporter alone to make that determination without the
benefit of questioning by counsel or any other evidence that
might tend to establish the prospective juror’s race. The
court reporter, however, is in no better position to
determine the race of each prospective juror than the
defendant, the court, or counsel. An individual’s race is not
always easily discernable, and the potential for error by a
court reporter acting alone is great.

-8-
 STATE V. BENNETT

Newby, J., dissenting

Id. at 655–56, 365 S.E.2d at 557 (second and third emphasis added). The Court

further observed that defendant’s proposed approach “would denigrate the task of

preventing peremptory challenges of jurors on the basis of race to the reporter’s

‘subjective impressions as to what race they spring from.’ ” Id. at 656, 365 S.E.2d at

557 (quoting Batson, 476 U.S. at 130 n.10, 106 S. Ct. at 1740 n.10 (Burger, C.J.,

dissenting)).

Defendant here, unlike the defendants in Mitchell, Payne, and Brogden, made

no effort to preserve the race of the jurors for the record. Defendant neither requested

that anyone record the races of the challenged prospective jurors nor asked the jurors

to identify their races. Moreover, defendant failed to include juror questionnaires in

the record which would include each juror’s racial self-identification. Defense counsel

did not provide a sworn affidavit as the defense counsel did in Payne. Here defense

counsel simply made an argument. Though defense counsel identified the two

challenged prospective jurors as black and the trial court indicated that the State had

passed three black prospective jurors to the defense, there is no record of the race of

any other juror which is needed to give context and allow for a proper review of the

State’s actions. Based on our precedent set forth in Mitchell, Payne, and Brodgen,

defendant did not meet the burden to establish the race of the jurors, resulting in this

Court not having a sufficient record to permit appellate review. Thus, this Court

should not reach the merits of defendant’s Batson claim.

-9-
 STATE V. BENNETT

Newby, J., dissenting

The majority tries to distinguish Mitchell, Payne, and Brogden from this case

by stating that in those cases “the defendant attempted to establish the racial

identities of each of the prospective jurors on the basis of the subjective impressions

of a limited number of trial participants.” In other words, the majority believes the

holding of these cases turns on the number of individuals who acquiesce in

determining race based on outward appearances. This analysis fails, given that in

Brogden, the prospective jurors’ races were established by the subjective impressions

of both defense counsel and the court reporter. Likewise, in Payne the prospective

jurors’ races were established by defense counsel’s sworn affidavit with which the

trial court agreed as it utilized the information contained in the affidavit to issue

findings of fact about the race of the challenged jurors in order to conduct its Batson

analysis. In doing so, the first step would have been for the court to make findings of

the races of the jurors that were challenged. As noted in both cases, this Court held

that the jurors’ races were not properly established or preserved. Whether singly or

collectively, our cases hold that it is improper for individuals to determine race based

on appearance. The approved method of preservation is for each of the jurors to self-

identify their races. Simply put, any other method, whether through stipulation or

consensus, is based on the subjective view of an individual’s outward appearance as

opposed to a person’s true racial identity, making these other methods improper

under the rationale of this Court’s precedent. The majority’s holding that a record of

-10-
 STATE V. BENNETT

Newby, J., dissenting

juror’s races is preserved simply because more than one person agrees on the races

overturns our case law.

The majority seeks to bolster its holding that the identification of race based

upon outward appearance should be accepted by characterizing the parties’

arguments and the trial court’s ruling as a “stipulation.” This Court, however,

rejected a similar approach in Payne. There, in order for the trial court to rule that

defendant had failed to make a prima facie showing of discrimination, it first had to

make findings of the races of various jurors. See Payne, 327 N.C. at 198, 394 S.E.2d

at 159–60. Further, no one argued on appeal that the record was inadequate. Nothing

in our controlling case law indicates that a stipulation based on outward appearance

is adequate.

The majority relies on this Court’s decision in State v. Jackson, 322 N.C. 251,

368 S.E.2d 838 (1988), to advance its theory that a “stipulation” may establish racial

identities of prospective jurors. The majority boldly declares that “our prior decisions

clearly allow for the use of methods other than self-identification for the purpose of

determining the racial identity of prospective jurors.” In doing so, however, the

majority takes a single case out of context and ignores the fact that it is an anomaly

based on its unique and nuanced procedural history. This Court decided the

defendant’s direct appeal in Jackson in 1986. State v. Jackson, 317 N.C. 1, 343 S.E.2d

814 (1986). The defendant in that case then filed a petition for writ of certiorari with

the Supreme Court of the United States.

-11-
 STATE V. BENNETT

Newby, J., dissenting

After the defendant’s trial and approximately one month before this Court

issued its decision in the case, in April of 1986 the Supreme Court of the United States

decided Batson v. Kentucky, which established a new framework for defendants to

challenge the exclusion of minority jurors on equal protection grounds. See Batson,

476 U.S. at 100, 106 S. Ct. at 1725. Notably, Batson overruled the Court’s prior

decision in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824 (1965), which had created

a much more difficult standard for a defendant to establish any sort of discrimination

in jury selection sufficient to warrant relief. Following Batson, the Supreme Court of

the United States in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987), decided

that the Batson framework would apply to litigation that was pending on direct

review when Batson was decided. Id. at 316, 107 S. Ct. at 709. Since the defendant

had petitioned the Supreme Court of the United States for a writ of certiorari and

thus the case was pending at the time Batson was decided, the Supreme Court of the

United States remanded Jackson to the North Carolina Supreme Court to consider

the case in light of the newly established Batson principles. Jackson v. North

Carolina, 479 U.S. 1077, 107 S. Ct. 1271 (1987).

Because Batson had not been decided at the time that the defendant in Jackson

was tried, the parties did not preserve a record of the race of any of the jurors,

including the excused jurors, nor did they record a transcript of the proceeding.

Nonetheless, based on the express order from the Supreme Court of the United States

and the further remand from our Supreme Court, the trial was required to consider

-12-
 STATE V. BENNETT

Newby, J., dissenting

the defendant’s argument in light of the recently established Batson rules. Because

of this unique procedural history, the trial could only use the limited information that

was available to comply with the United States Supreme Court’s directive and reach

the merits of the Batson challenge.2 Jackson, 322 N.C. at 252, 368 S.E.2d at 839.

Ultimately, the trial court was forced the rely on a stipulation between the State and

the defendant about what happened at trial, an affidavit from one of the prosecutors

who tried the case, and the trial notes of the attorneys. Id. Pursuant to the

instructions from the Supreme Court of the United States, this Court then reviewed

the trial court’s decision.

The majority, however, ignores this procedural anomaly and instead utilizes a

strained reading of the case to support its desired outcome. Jackson does not reflect

a typical Batson case, i.e., one that arises after the Supreme Court of the United

States established the Batson framework. Because there are more recent cases from

this Court which reject the exact rationale that the majority advances here, that

subjective impressions are sufficient to establish a juror’s race for the record, the

majority’s rationale simply cannot withstand scrutiny without overruling our more

recent cases.

2 No one in Jackson objected to the procedure. Notably, it appears to be the only
procedure that would have been open to the parties given that the Supreme Court of the
United States would have just released Batson around that time, meaning that the courts
would have had to develop a new system for handling cases falling within its purview. It
would have been improper for this Court to have then disallowed Batson review based on how
the record was recreated under these unusual circumstances.

-13-
 STATE V. BENNETT

Newby, J., dissenting

Moreover, the majority here wrongly interprets the language of our cases

which recognizes that there are methods other than questioning by counsel through

which a juror may establish his race. As previously mentioned and consistent with

this Court’s rationale in prior cases, another method of establishing race other than

questioning by counsel is the use of juror questionnaires. This Court, however,

upends that rationale by now holding that subjective views of outward appearance

are adequate to establish a juror’s race so long as they are part of the trial court’s

findings. In our cases, this Court has had numerous opportunities to endorse the

approach adopted today but did not do so.

Even if the issue had been properly preserved, the trial court did not clearly

err in rejecting defense counsel’s sparse argument that the State discriminated in

exercising two peremptory challenges. The standard of review for Batson challenges

is well-established. Because the trial court’s determination on the first step of Batson

involves its assessment of the prosecutor’s credibility and other factors, the trial

court’s decision is reviewed for abuse of discretion. See Jackson, 322 N.C. at 255, 368

S.E.2d at 840 (“Since the trial court’s findings will depend on credibility, a reviewing

court should give those findings great deference.” (citing Batson, 476 U.S. at 98 n.21,

106 S. Ct. at 1724 n.21)). As the majority recognizes, a trial court’s ruling on a Batson

challenge, including its determination of whether a defendant has made a prima facie

showing of discrimination, “will be sustained ‘unless it is clearly erroneous.’ ” Waring,

364 N.C. at 475, 701 S.E.2d at 636 (quoting Snyder v. Louisiana, 552 U.S. 472, 477,

-14-
 STATE V. BENNETT

Newby, J., dissenting

128 S. Ct. 1203, 1207 (2008)); see State v. Taylor, 362 N.C. 514, 528, 669 S.E.2d 239,

254 (2008) (stating that a trial court’s findings on whether a defendant has made a

prima facie showing of discrimination will be upheld “unless they are clearly

erroneous”). “Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Lawrence, 352 N.C. at 14, 530

S.E.2d at 816 (quoting State v. Thomas, 329 N.C. 423, 433, 407 S.E.2d 141, 148

(1991)). Moreover, the clearly erroneous standard of review “plainly does not entitle

a reviewing court to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently.” Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985). “Trial judges,

who are ‘experienced in supervising voir dire,’ and who observe the prosecutor’s

questions, statements, and demeanor firsthand, are well qualified to ‘decide if the

circumstances concerning the prosecutor’s use of peremptory challenges create[ ] a

prima facie case of discrimination against black jurors.’ ” State v. Chapman, 359 N.C.

328, 339, 611 S.E.2d 794, 806 (2005) (quoting Batson, 476 U.S. at 97, 106 S. Ct. at

1723).

Consistent with other equal protection challenges, Batson places the burden

on the defendant, the opponent of the peremptory challenge, to make a prima facie

showing that the State discriminated in exercising its peremptory challenge. A

“government[ ] action claimed to be racially discriminatory ‘must ultimately be traced

-15-
 STATE V. BENNETT

Newby, J., dissenting

to a racially discriminatory purpose.’ ” Batson, 476 U.S. at 93, 106 S. Ct. at 1721

(quoting Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 2048 (1976)).

Importantly, in this first step the defendant has the burden to show that the

prosecutor has acted with “intentional discrimination under the ‘totality of the

relevant facts’ in the case.” Waring, 364 N.C. at 747–75, 71 S.E.2d at 626 (quoting

Batson, 476 U.S. at 94, 106 S. Ct. at 1721). “[A] defendant satisfies the requirements

of Batson’s first step by producing evidence sufficient to permit the trial [court] to

draw an inference that discrimination has occurred.” Johnson v. California, 545 U.S.

162, 170, 125 S. Ct. 2410, 2417 (2005). Nevertheless, the first step is important in

minimizing disruption to the jury selection process, limiting the number of trials

within trials that occur with full Batson hearings. See Jackson, 322 N.C. at 258, 368

S.E.2d at 842 (“We do not believe we should have a trial within a trial. The presiding

judges are capable of passing on the credibility of prosecuting attorneys . . . .”).

Several factors are relevant in determining whether a defendant has carried the

burden to show an inference that the State discriminated in exercising peremptory

challenges.

Those factors include the defendant’s race, the victim’s
race, the race of the key witnesses, questions and
statements of the prosecutor which tend to support or
refute an inference of discrimination, repeated use of
peremptory challenges against blacks such that it tends to
establish a pattern of strikes against blacks in the venire,
the prosecution’s use of a disproportionate number of
peremptory challenges to strike black jurors in a single

-16-
 STATE V. BENNETT

Newby, J., dissenting

case, and the State’s acceptance rate of potential black
jurors.

State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995).

The majority cites but fails to apply the Quick factors here, which address the

totality of relevant circumstances analysis Batson requires. When applying these

factors, however, it is clear that the trial court did not abuse its discretion. Defendant

was charged with committing drug offenses, crimes in which there were no

discernible victims. There is no record of the races of the witnesses in this case. In

the trial court’s view and as supported by the record, the State did not engage in any

disproportionate questioning or make any racially charged statements which would

support an inference of discrimination. The State only exercised two peremptory

challenges for seat number ten, both against black prospective jurors, but it passed

at least three black prospective jurors to the defense, amounting to at least a 60%

acceptance rate. Having exercised only two of the six available peremptory

challenges, it cannot be said that there was any sort of “pattern of strikes” that the

State exercised against any discernible group here. Thus, considering all of the

circumstances required by our case law, there is more than adequate support for the

trial court’s ruling, which was explicitly based on the evidence presented and the

arguments of counsel, and further supported by the State’s minority acceptance rate.

At trial defense counsel’s only argument to establish a prima facie showing of

intentional discrimination was that two peremptory challenges had been exercised

-17-
 STATE V. BENNETT

Newby, J., dissenting

against black prospective jurors and that there was no obvious reason for their use.

The majority accepts this argument, holding that the trial court’s rejection of that

argument amounted to an abuse of discretion. The majority states that “[a] careful

review of the numerical disparity between the relative acceptance rates for African

American and white prospective jurors, coupled with other inferences that can be

derived from the record . . . satisfies us that defendant made out the necessary prima

facie case of purposeful discrimination in this case.” While mentioning “other

inferences that can be derived from the record,” it focuses on what it characterizes as

no “immediately obvious justification” for the State’s use of the peremptory

challenges. In searching to support its position with “other inferences,” the majority

impermissibly creates an argument not presented to the trial court or Court of

Appeals: that there was an “absence of any significant dissimilarity between the

answers given by Mr. Smith, Ms. Brunson, and Ms. Corbett.” Thus, it strays from the

role of appellate court by creating an argument for defendant and finding from a cold

record facts to support it. The majority ignores the Quick factors and holds that the

first step of Batson is met when the State exercises a peremptory challenge against a

minority prospective juror without an “immediately obvious justification.” Though

the evidentiary bar for a defendant to establish a prima facie showing of

discrimination is not high, this new first step clearly is inadequate under our existing

case law.

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 STATE V. BENNETT

Newby, J., dissenting

Significantly, the only argument actually presented to the trial court was that

the prosecutor had used its two peremptory challenges on black prospective jurors

without “overwhelming evidence” as to why. The trial court, having observed the

entire process and considered the evidence, defense counsel’s presentation and the

arguments of counsel on the record, found “there is no evidence of a showing of

prejudice based on race or any of the contentions in Batson.” It then itself noted,

consistent with our prior case law, that another pertinent consideration was that the

State had accepted 60% of the black prospective jurors. The trial court did not focus

only on this statistic, as implied by the majority, but considered it with the other

required factors.

As relied on by the trial court, this Court has consistently held that statistics

are a pertinent factor in determining whether a defendant has met his burden to

make a prima facie showing of intentional discrimination. See State v. Barden, 356

N.C. 316, 344, 572 S.E.2d 108, 127–28 (2002). In Taylor, 362 N.C. at 529, 669 S.E.2d

at 255, this Court observed that the trial court properly concluded that the defendant

failed to make a prima facie showing of intentional discrimination. At the time of the

defendant’s Batson challenge in that case, the State had accepted two out of five, or

40%, of the black prospective jurors. Id. “This Court has previously cited similar

acceptance rates as tending to refute an allegation of discrimination.” Id. (citing State

v. Fletcher, 348 N.C. 292, 320, 500 S.E.2d 668, 684 (1998) (concluding that the

defendant had not established a prima facie case of intentional discrimination when

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 STATE V. BENNETT

Newby, J., dissenting

the State’s acceptance rate of black prospective jurors was 40%); State v. Abbott, 320

N.C. 475, 480–82, 358 S.E.2d 365, 369–70 (1987) (same)).

In State v. Beach, 333 N.C. 733, 430 S.E.2d 248 (1993), this Court rejected the

defendant’s argument that the Court should not consider the number of black

prospective jurors that the State accepted. The Court stated that “[i]n a case in which

one of the methods the defendant uses in an attempt to show discrimination is the

pattern of strikes, we cannot ignore the number of black jurors accepted by the State.”

Id. at 740, 430 S.E.2d at 252. Though the State exercised more peremptory challenges

to excuse black prospective jurors than to excuse white prospective jurors, the Court

concluded that even a 37% acceptance rate of black prospective jurors was insufficient

alone to establish a prima facie case of discrimination. Id. Because the transcript

revealed that the State had conducted “an evenhanded examination” of both white

and black prospective jurors, the Court held that the trial court did not err in

concluding that the defendant failed to establish a prima facie showing of intentional

discrimination. Id.

In fact, this Court has “held that a defendant failed to establish a prima

facie case of discrimination where the minority acceptance rate was 66%, 50%, 40%,

and 37.5%.” Barden, 356 N.C. at 344, 572 S.E.2d at 128 (first citing State v. Ross, 338

N.C. 280, 285–86, 449 S.E.2d 556, 561–62 (1994); then citing State v. Nicholson, 355

N.C. 1, 24, 558 S.E.2d 109, 127, cert. denied, 537 U.S. 845, 123 S. Ct. 178 (2002); then

citing State v. Belton, 318 N.C. 141, 159–60, 347 S.E.2d 755, 766 (1986), overruled on

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 STATE V. BENNETT

Newby, J., dissenting

other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997); then citing

Fletcher, 348 N.C. at 320, 500 S.E.2d at 684; then citing Abbott, 320 N.C. at 481–82,

358 S.E.2d at 369–70; and then citing State v. Gregory, 340 N.C. 365, 398, 459 S.E.2d

638, 657 (1995), cert. denied, 517 U.S. 1108, 116 S. Ct. 1327 (1996)).

For the first time, however, the majority of this Court holds that a 60%

acceptance rate of prospective black jurors paired with no “immediately obvious

justification” for the State’s exercise of its peremptory challenges is sufficient to show

that the trial court clearly erred in determining that defendant had not established a

prima facie case of discrimination. In doing so, the majority sub silentio overrules this

Court’s Batson precedent which had held that much higher rejection rates of black

prospective jurors standing alone were insufficient to establish a prima facie showing

of intentional discrimination.

The majority essentially removes the defendant’s burden and eliminates the

first step of Batson. No longer must a defendant show intentional discrimination.

Instead, the majority rewrites decades of Batson precedent to establish a framework

in which the first step is met when the State excuses a minority prospective juror.

In the past this Court has recognized that jury selection “is ‘more art than

science’ and that . . . a prosecutor may rely on legitimate hunches in the exercise of

peremptory challenges.” State v. Barnes, 345 N.C. 184, 212, 481 S.E.2d 44, 59 (1997)

(first quoting State v. Porter, 326 N.C. 489, 501, 391 S.E.2d 144, 152 (1990); and then

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 STATE V. BENNETT

Newby, J., dissenting

citing State v. Rouse, 339 N.C. 59, 79, 451 S.E.2d 543, 554 (1994), overruled on other

grounds by State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006)). The majority’s

conclusion here eliminates any ability for the State to exercise legitimate hunches or

other nonverbal cues not evident in a cold record on appeal. The majority’s analysis

overrules this Court’s stated standard of review of abuse of discretion. It gives no

deference to the trial court, ignoring the extremely deferential and well-established

standard of review. In effect, the majority usurps the role that clearly belongs to the

trial court by reweighing the evidence gleaned from a cold record.

In finding that defendant did not present a prima facie case of discrimination,

the trial court properly considered the evidence and arguments of counsel as well as

the 60% minority passage rate. Its decision is supported by the record and is not

clearly erroneous. Because defendant failed to preserve the record for appellate

review, and because, regardless, the trial court did not abuse its discretion in

concluding that defendant failed to carry his burden of establishing a prima facie

showing of intentional discrimination required to satisfy the first step of the Batson

analysis, I respectfully dissent.

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