State v. Clegg

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-11

No. 101PA15-3

Filed 11 February 2022

STATE OF NORTH CAROLINA

v.
CHRISTOPHER ANTHONY CLEGG

On discretionary review pursuant to N.C.G.S. § 7A-31 of an order entered on

15 July 2019 by Judge Paul Ridgeway in Superior Court, Wake County, based on this

Court’s 14 August 2018 Order, 371 N.C. 443, (2018), remanding the case to the trial

court in reconsideration of defendant’s Batson challenge and retaining jurisdiction.

On 26 February 2020, the Supreme Court allowed in part defendant’s supplemental

petition for discretionary review. Heard in the Supreme Court on 6 October 2021.

Joshua Stein, Attorney General, by Amy Kunstling Irene, Special Deputy
Attorney General for the State-appellee.

Dylan J.C. Buffum Attorney at Law, PLLC, by Dylan J.C. Buffum, for
defendant-appellant.

David Weiss and Elizabeth Hambourger, for amici curiae Common Cause and
Democracy North Carolina.

HUDSON, Justice.

¶1 Over 140 years ago, the Supreme Court of the United States held that

exclusion of African Americans from juries on the basis of race violates the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution.
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Opinion of the Court

Strauder v. West Virginia, 100 U.S. 303, 310 (1880). Just over a century later, in

Batson v. Kentucky, that same Court established a three-step process through which

courts analyze claims of racial discrimination in jury selection. 476 U.S. 79, 96–98

(1986); see Foster v. Chatman, 578 U.S. 488, 499–500 (2016) (summarizing the Batson

process). Today, we must decide whether the prosecutor’s exclusion of an African-

American potential juror constitutes a substantive violation of the defendant’s

constitutional right to equal protection under Batson when the trial court found that

“both race-neutral justifications offered by the prosecutor fail.” We hold that it does,

and therefore reverse the ruling of the trial court below, vacate defendant’s

conviction, and remand the case back to the trial court for any further proceedings.

I. Background

A. Jury Selection and Trial

¶2 On 8 April 2014, defendant Christopher A. Clegg, an African-American man,

was indicted for robbery with a dangerous weapon and possession of a firearm by a

felon. Beginning on 4 April 2016, defendant was tried by a jury in Wake County

Superior Court, Judge Paul C. Ridgeway presiding. During jury selection, defense

counsel raised a challenge under Batson v. Kentucky (Batson challenge) after the

prosecutor used peremptory strikes to remove two African-American women from the

jury: Viola Jeffreys and Gwendolyn Aubrey. 476 U.S. 79. In response, the prosecutor

proffered race-neutral reasons for the strikes. Specifically, the prosecutor asserted
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that he struck Ms. Jeffreys and Ms. Aubrey “based on their body language[] and . . .

their failure to look at me when I was trying to communicate with them.” The

prosecutor also claimed that he struck Ms. Jeffreys due to potential bias toward

defendant arising from her previous employment at Dorothea Dix Hospital, and that

he struck Ms. Aubrey due to her answer of “I suppose” in response to a question

asking whether she could be fair and impartial. Defense counsel then argued that

these reasons were pretextual. The trial court subsequently ruled that defendant had

failed to establish that race was a significant factor in the peremptory strikes, and

therefore overruled his Batson challenge. After the completion of jury selection and

the resolution of a few other preliminary issues, the case proceeded to trial.

¶3 At trial, the State’s evidence, as presented through several witnesses and

exhibits, tended to show that in the early morning hours of 25 January 2014,

defendant, brandishing a gun, robbed a sweepstakes business located at the Timber

Landing Business Center in Garner, North Carolina. Defendant neither testified nor

offered witnesses or evidence of his own at trial. On 6 April 2016, the jury found

defendant guilty of robbery with a dangerous weapon and not guilty of possession of

a firearm by a felon. Defendant was sentenced to a term of sixty-six to ninety-two

months’ imprisonment, with credit for 767 days of pre-trial incarceration. On 8 April

2016, defendant appealed his conviction to the North Carolina Court of Appeals.

B. Court of Appeals
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Opinion of the Court

¶4 On appeal, defendant raised two issues. First, he argued that the trial court

erred by overruling his Batson challenge. Second, he argued that the trial court erred

by admitting prejudicial victim impact testimony in violation of Rules 401, 402, and

403 of the North Carolina Rules of Evidence. The State contended that the trial court

had acted properly on both issues.

¶5 On 5 September 2017, in a unanimous, unpublished opinion, the Court of

Appeals rejected both of defendant’s arguments. State v. Clegg, 2017 WL 3863494

(N.C. Ct. App. Sept. 5, 2017) (unpublished). First, the Court of Appeals considered

defendant’s Batson challenge. The court first summarized the three-step process of a

Batson challenge:

First, the defendant must make a prima facie
showing that the state exercised a race-based
peremptory challenge. If the defendant makes
the requisite showing, the burden shifts to the
state to offer a facially valid, race-neutral
explanation for the peremptory challenge.
Finally, the trial court must decide whether
the defendant has proved purposeful
discrimination.

Clegg, 2017 WL 3863494 at *2 (citing State v. Taylor, 362 N.C. 514, 527 (2008), cert.

denied, 558 U.S. 851 (2009)). The Court of Appeals noted, though, that “[o]nce a

prosecutor has offered a race-neutral explanation for the peremptory challenges and

the trial court has ruled on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant has made a prima facie showing becomes
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moot.” Id. (citing State v. Bell, 359 N.C. 1, 12 (2004)).

¶6 The Court of Appeals then reviewed the trial court’s handling of defendant’s

Batson challenge. “Because the trial court heard the State’s reasons for striking

Jeffreys and Aubrey prior to making a ruling on defendant’s Batson objections,” thus

rendering the preliminary issue of defendant’s prima facie case moot for Batson

purposes, the Court of Appeals moved directly to step two: reviewing the prosecution’s

proffered reasons for the peremptory strikes. Id. at *3. As a preliminary matter, the

court “note[d] that there is a discrepancy between the State’s characterization of its

voir dire of Aubrey and what the transcript reveals.” Id. at *4. Specifically, the court

noted that while the prosecutor’s given rationale for striking Ms. Aubrey claimed that

she had answered “I suppose” to a question about whether she could be fair and

impartial, the transcript reveals that she actually gave that answer to a question

about whether she was confident that she would be able to focus on the trial.

Consequently, the court “review[ed] the State’s argument in light of this

clarification.” Id. The court subsequently ruled that “[t]he State’s concerns of both

Jeffreys’ and Aubrey’s failure to make eye contact and their ability to be fair and

focused on the trial constitute neutral explanations for each peremptory strike.”

Accordingly, the court found “no discriminatory intent inherent in the State’s

explanations and thus agree[d] with the trial court’s determination that the State’s

justifications were race neutral.” Id.
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Opinion of the Court

¶7 The Court of Appeals then “move[d] to the third step of the Batson inquiry and

consider[ed] whether the trial court erred by finding that there was no Batson error.”

Id. at *11. Here, the court noted defendant’s argument that the proffered reasoning

regarding Aubrey’s ability to focus was revealed as pretextual because a white juror,

David Williams, also indicated that he might be distracted from the trial due to work

concerns. But “[t]he distinguishing factor between Aubrey and David Williams[,]” the

court ruled, “appears to be the State’s additional stated bases for striking Aubrey[:]

. . . her body language and failure to make eye contact.” Id. The court likewise

dismissed defendant’s argument that the prosecutor’s proffered reasoning for striking

Ms. Jeffreys―her previous employment at Dorothea Dix, a psychiatric hospital―was

pretextual. Specifically, the court ruled that because “there was a competency

evaluation of defendant ordered and defense counsel stated that she had also

requested an in-custody evaluation of the defendant[,] . . . the State’s basis for striking

Jeffreys due to her work history is rationally related to defendant’s potential

competency issues.” Id. “Moreover, [the court] note[d,] . . . the State explained that it

also exercised its peremptory strike on Jeffreys based on her body language and

failure to make eye contact.” Id. “As such,” the court found that “defendant has failed

to carry his burden of proving purposeful discrimination[,]” and therefore held that

“defendant’s Batson challenge was properly denied.” Id. at *6.

¶8 Second, the Court of Appeals likewise ruled that the trial court did not commit
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Opinion of the Court

plain error by admitting the victim impact testimony of Patrice Williams, who was

present at the robbery. Id. at *6–7. Because defendant does not raise this issue before

this Court, we do not consider it further here. In sum, the Court of Appeals held that

the trial court committed no error. Id. at *7.

C. Special Order and Batson Rehearing

¶9 On 10 October 2017, defendant filed a notice of appeal with this Court under

N.C.G.S. § 7A-30(1), asserting that the case presented a substantial constitutional

question under the Equal Protection Clause of the U.S. Constitution and Article I

Sections 19 (equal protection) and 26 (jury service) of the North Carolina

Constitution. In response, the State filed a motion to dismiss defendant’s appeal for

lack of a substantial constitutional question. Also on 10 October 2017, defendant filed

a petition for discretionary review with this Court under N.C.G.S. § 7A-31(c),

asserting that the case fulfilled all three of the statutory bases for discretionary

review: (1) significant public interest; (2) legal principles of major significance to the

jurisprudence of the State; and (3) conflict with a decision of the Supreme Court. In

both the notice of appeal and petition for discretionary review, defendant focused

exclusively on the Batson challenge issue.

¶ 10 On 14 August 2018, this Court responded to defendant’s petition via special

order. The order directed “that this case be remanded to the trial court for

reconsideration of defendant’s Batson challenge based upon the existing record and
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Opinion of the Court

the entry of a new order addressing the merits of defendant’s Batson challenge in

light of the United States Supreme Court decision in Foster v. Chatman, [578] U.S.

[488], 136 S. Ct. 1737, 195 L. Ed. 1 (2016), which was decided after the trial court’s

decision in this case.” 371 N.C. 443 (2018). The order further instructed that “[a]fter

the entry of the order on remand, the trial court should certify that order to this

Court, which retains jurisdiction and will undertake any necessary additional

proceedings at that time.” That same day, this Court allowed the State’s motion to

dismiss defendant’s notice of appeal.

¶ 11 On 17 December 2018, in accordance with this Court’s order, the trial court

held a new hearing regarding defendant’s Batson challenge. Judge Ridgeway, the

same judge as at the initial trial, also presided over this new Batson hearing. In

briefing and at the hearing, defense counsel (different from original trial) and the

prosecutor (same as at original trial) presented arguments regarding the application

of the U.S. Supreme Court’s ruling in Foster to defendant’s Batson challenge.

¶ 12 First, defense counsel argued that two findings from Foster “are especially

important in this case”: (1) “that when a prosecutor mischaracterizes a juror’s

answers, this is strong evidence that the justification is, in fact, pretext[;]” and (2)

“that in order to prevail in step three of Batson, the defendant does not need to

disprove each and every reason given by the prosecutor.”

¶ 13 Both of these elements, defense counsel argued, relate directly to the State’s
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Opinion of the Court

striking of Ms. Aubrey. First, as noted by the Court of Appeals, defense counsel

argued that the prosecutor repeatedly mischaracterized Ms. Aubrey’s answers by

claiming that she answered “I suppose” to a question about whether she could be fair

and impartial, when she actually gave that answer to a question about whether she

was confident that she would be able to focus at trial. Second, defense counsel argued

that because the prosecutor’s first justification for the strike was shown to be

pretextual, defendant did not need to undermine every other reason provided by the

prosecutor, including body language and lack of eye contact. Further, defense counsel

sought to undermine the prosecutor’s reliance on body language and eye contact

because defense counsel at trial disputed those findings and the trial court made no

contemporary findings of their veracity.

¶ 14 Next, defense counsel argued that the prosecution’s proffered reasons for

striking Ms. Jeffreys likewise fall short. Regarding the prosecutor’s “body language

and eye contact” reasoning, defense counsel noted that the prosecutor always referred

to Ms. Aubrey and Ms. Jeffreys collectively when discussing body language, never

distinguishing between the two Black women and never offering more specific details

about what exactly was troubling to him about their body language. Regarding the

Dorothea Dix reasoning, defense counsel argued that “[i]f the prosecutor [was]

genuinely concerned about [jurors’] experience with mental health being a

disqualifying factor for him in making his peremptory strikes[,] . . . he would have
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Opinion of the Court

asked at least one other juror [about it].”

¶ 15 Finally, defense counsel emphasized the burden of proof in a Batson challenge:

“the defendant needs to show…that it is more likely than not that race was a

substantial motivating factor for the strike[,]” not the sole reason for the strike. Based

on the evidence presented that the prosecutor’s proffered reasons were pretextual,

defense counsel argued that defendant had met that burden.

¶ 16 In response, the prosecutor argued that his proffered race-neutral reasons for

the peremptory strikes of Ms. Aubrey and Ms. Jeffreys pass Batson scrutiny. First,

the prosecutor noted “some very obvious distinctions between the record here and the

Foster case,” namely: (1) that the victim and witnesses here are also African

American; (2) that the jury here included one juror who identified as mixed race

(African-American father and Chinese mother); and (3) that the prosecutor here did

not blatantly and persistently focus on race during jury selection.

¶ 17 Next, the prosecutor repeated his proffered race-neutral reasons for striking

Ms. Jeffreys and Ms. Aubrey. Regarding Ms. Jeffreys, the prosecutor argued that

because defendant’s “mental health was an underlying issue and concern for the

defense,” Jeffreys’s experience as a nurse to mental health patients may render her

“sympathetic to the Defendant despite overwhelming evidence of his guilt.” The

prosecutor further noted that while all of the potential jurors were asked about their

occupation, “Ms. Jeffreys was the only one who said she worked or used to work in
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Opinion of the Court

the mental health field.”

¶ 18 Regarding Ms. Aubrey, the prosecutor again noted “her body language and her

lack of eye contact.” He then emphasized that her short and equivocal answers of “I

suppose” and “I think so” to his questions about her ability to focus on the trial created

concern regarding “whether or not she could be an engaged juror throughout this

process.”

¶ 19 Then, the prosecutor addressed his initial mistake regarding to which question

Ms. Aubrey had answered “I suppose”:

. . . Your Honor, I’ll be the first to tell you that this is the
first and only time . . . I’ve had to address [a Batson]
challenge. And I was completely flustered when this was
brought up during trial. And it did cause me to misspeak
with respect to the answer or the question that Ms. Aubrey
was answering. And as [defense counsel] pointed out from
the record, as part of my race neutral justification for Ms.
Aubrey, I said when I asked her if she could be fair and
impartial, her answer was “I suppose.”. . . I wasn’t
confident that she was confident that she could be fair and
impartial. And that’s—that’s the State misspeaking. That
is a product of simply getting confused. That’s a standard
question I ask during jury selection; can somebody be fair
and impartial. And I also ask can people focus on the
proceedings. And that was simply confusing those
questions and her answer.

¶ 20 Later, when addressing this same mistake, the prosecutor and the trial court

had the following exchange:

The [c]ourt: I think it’s more misremembering than
misspeaking. That’s all right.
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Opinion of the Court

Mr. Wiggs: Right.

The [c]ourt: I mean, I think you don’t—taking it in the light
most favorable to you or to the prosecutor—were you the
prosecutor?

Mr. Wiggs: I was.

The [c]ourt: Okay. Then taking it in the light most
favorable, you didn’t remember that the answer was given
to another question rather than this question. So it’s not
misspeaking, it’s misremembering.

¶ 21 Finally, the prosecutor noted several previous cases from this Court, the Court

of Appeals, and the U.S. Supreme Court, emphasizing the low bar that prosecutors

must meet in responding to a Batson challenge, and the wide variety of race-neutral

reasons that may suffice in meeting that bar. Concluding, the prosecutor asked the

trial court to again deny defendant’s Batson challenge.

¶ 22 On 15 July 2019, the trial court issued its new order on defendant’s Batson

challenge. As requested, the court considered the race-neutral justifications offered

by the prosecutor for the two peremptory strikes in question in light of Foster, noting

that “[t]he Constitution forbids striking even a single prospective juror for a

discriminatory purpose.”

¶ 23 First, the trial court reviewed the prosecutor’s strike of Ms. Jeffreys. The court

found that the prosecutor’s reasoning regarding Jeffreys’s previous employment at

Dorothea Dix Hospital “is supported by the record and constitutes an appropriate

reason for the strike.”
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Opinion of the Court

¶ 24 Second, the trial court reviewed the prosecutor’s strike of Ms. Aubrey. Here,

the court addressed the discrepancy between the prosecutor’s stated reasoning and

the record regarding Ms. Aubrey’s “I suppose” answer:

7. It is evident from the record that both the trial court’s
and the prosecutor’s memory of the answers given by Ms.
Aubrey was conflated. She did not say “I suppose” in
response to a question of whether she could be “fair and
impartial.” Rather, in answering a question from the
[c]ourt as to whether there was “anything going on in your
life that would make it difficult or impossible for you to
serve,” Ms. Aubrey said “other than missing work, no.” The
[c]ourt then inquired whether Ms. Aubrey worked
“daytime,” and Ms. Aubrey responded “day and night.”
Shortly thereafter, the prosecutor asked Ms. Aubrey the
following questions:

Prosecutor: Okay. Ms. Aubrey, do you feel confident you can
focus on what’s going on here?

Ms. Aubrey: I suppose.

Prosecutor: I want you to be confident about it. You just
don’t want to be a juror, or do you feel like if you were here,
you could focus and do what we need you to do?

Ms. Aubrey: I think so.

8. In retrospect, had the prosecutor, in offering his race-
neutral basis for exercising the strike of Ms. Aubrey, stated
that he was concerned that she had answered “I suppose”
to the question of whether she could focus, when coupled
with her concern that she worked “day and night” and
would miss work, that, in the [c]ourt’s view, would have
constituted a neutral justification for the strike.

9. However, as it stands, the State’s offered reason for
striking Ms. Aubrey based on her “I suppose” answer is not
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supported by the record because the prosecutor associated
that answer with whether she could be “fair and impartial,”
not whether she could focus.

10. The Foster Court instructs that when reasons that are
offered by a prosecutor as a basis for exercising a strike
contradict or mischaracterize the record, those reasons
must be rejected in evaluating whether race was a
motivating factor in exercising a strike. Foster, supra, at
1750 (prosecutor’s reasons were “contradicted by the
record”); 1753 (prosecutor’s justifications were
“mischaracterization of the record”); 1753 (“[m]any of the
State’s secondary justifications similarly came undone
when subjected to scrutiny”).

11. Moreover, a trial court is not permitted to consider race-
neutral reasons for exercising a strike that are not
articulated by the prosecutor. Miller-El v. Dretke, 545 U.S.
231, 250–52 (2005) (“If the stated reason does not hold up,
its pretextual significance does not fade because a trial
judge, or an appeals court, can imagine a reason that might
not have been shown up as false. The Court of Appeals’s
and the dissent’s substitution of a reason for eliminating
Warren does nothing to satisfy the prosecutors’ burden of
stating a racially neutral explanation for their own
actions.”)

12. Strict application of the rules articulated in Foster and
Miller-El to the race-neutral (but mis-remembered)
reasons provided by the prosecutor justifying Ms. Aubrey’s
strike would require the [c]ourt to exclude and not consider
the reason articulated by the prosecutor – that Ms. Aubrey
said that “she supposed” she could be fair and impartial –
because that reason is contradicted by the record.

¶ 25 After thus rejecting the “I suppose” rationale for Ms. Aubrey’s strike, the trial

court then considered “the only [remaining] race-neutral reason articulated by the

prosecutor[:] . . . the ‘body language’ and ‘lack of eye contact’ rationale.” Here, the
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Opinion of the Court

court noted that “[t]he ‘body language’ rationale was disputed by trial counsel for the

defendant, and the trial court made no specific findings regarding Ms. Aubrey’s body

language or demeanor.” The court then noted that this “circumstance is similar to

one that arose in Snyder v. Louisiana, 552 U.S. 472 (2008),” in which the U.S.

Supreme Court rejected the validity of a peremptory strike of an African-American

juror on the basis of alleged “nervousness” when “the record does not show that the

trial judge actually made a determination concerning [the potential juror’s]

demeanor.” Snyder, 552 U.S. at 479. “Hence,” the trial court stated, “without findings

of fact by the trial court, the Snyder Court appears to instruct that for appellate

purposes the ‘body language’ race-neutral justification offered by the prosecutor

cannot be viewed as sufficient.” “As such,” the trial court ruled, “both race-neutral

justifications offered by the prosecutor fail—one because the prosecutor mis-

remembered the question to which Ms. Aubrey responded ‘I suppose,’ and the other

because the trial court failed to make sufficient findings of fact to establish a record

of Ms. Aubrey’s body language.”

¶ 26 Next, the trial court reviewed the arguments presented by defendant that the

State’s peremptory strikes constitute a Batson violation. First, the court noted

defendant’s statistical evidence regarding jury selection in this case. Specifically, the

court observed:

Three of the 22 venire members were non-white. The
prosecutor used 4 of 7 peremptory strikes allotted to each
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party by statute. Among those venire members whom the
State struck, 2 were African[-]American women. Hence,
the State struck 2 of the 3 non-white members of the
venire, which also turned out to be all the non-white female
venire members. The remaining two peremptory strikes
exercised by the State were of white males.

¶ 27 The trial court then considered “[t]he evidence proffered by the [d]efendant

relating to statewide disparities in the exercise of peremptory challenges[.]”

Specifically, the court observed “that in non-capital cases studied from 2011-2012,

[North Carolina] prosecutors struck black venire members at about twice the rate of

white” (citing D. Pollitt & B. Warren, Thirty Years of Disappointment: North

Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1964 (2016)).

¶ 28 Next, the trial court considered defendant’s side-by-side comparison of the

questioning of white and Black potential jurors regarding their ability to focus during

trial. Specifically, regarding the allegedly disparate questioning of Mr. David

Williams and Ms. Aubrey on this issue, the court “[did] not find this side-by-side

comparison particularly pertinent because Mr. Williams had previously stated that,

with respect to his supervisory duties, ‘I can juggle things around,’ whereas Ms.

Aubrey did not indicate any flexibility in her ‘day and night’ work schedule that might

ease her concern about missing work.”

¶ 29 Finally, the trial court turned to the third step of the Batson analysis:

“determin[ing] whether the defendant has shown purposeful discrimination”

(internal citation omitted). Again, the trial court ruled that “[d]efendant has shown
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that the race-neutral justifications offered by the prosecutor cannot be supported by

the record—either because the prosecutor mis-remembered the potential juror’s

answer or because the trial court failed to make an adequate record of the body

language of the prospective juror.” Further, the court noted that “[t]he [d]efendant

has also shown evidence of statistical disparities in the exercise of peremptory

challenges by prosecutors in statewide jury selection studies in data collected from

1990 to 2012.”

¶ 30 The trial court then stated its ultimate conclusion:

However, the [c]ourt cannot conclude from this record that
in this case, the State has engaged in “purposeful
discrimination.” As the [d]efendant points out, the
applicable standard is, given all relevant circumstances,
“whether it was more likely than not that the challenge
was improperly motivated.” Johnson v. California, 545
U.S. 162, 170 (2005). Even on this relaxed “more likely
than not” standard, this [c]ourt concludes that essential
evidence of purposeful discrimination—which is the
[d]efendant’s burden to prove—is lacking.

¶ 31 In support of this conclusion, the trial court noted that “[t]he cases in which

the [U.S.] Supreme Court has found that the state exercised peremptory challenges

in a purposefully discriminatory fashion are strikingly different from the case at

hand.” By way of example, the court noted that both Foster and Miller-El included

glaring evidence of racial discrimination by prosecutors, including: (1) a finding that

the prosecutor’s explanations were “misrepresentations” and “contradicted by the

record,” Foster, 578 U.S. at 505; (2) “a jury list . . . found in the prosecutor’s file with
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each black prospective juror highlighted in bright green,” id. at 1744; (3) Black

prospective jurors being subjected to a “trick question” that was not asked of white

prospective jurors, Miller-El, 545 U.S. at 255; and (4) “a specific policy [in the

prosecutor’s office] of systematically excluding blacks from juries” evidenced by a

training manual that “outlined the reasoning for excluding minorities from jury

service.” Id. at 266.

¶ 32 By comparison, the trial court found “this case . . . markedly distinguishable

from the facts of this controlling authority.” Specifically, the court noted:

Unlike that authority, here the direct evidence of
purposeful discrimination is not a “mischaracterization” of
the record with “no grounding in fact.” Rather, it appears
to be an instance of a prosecutor mis-remembering whether
the prospective juror had said “I suppose” in responding to
a question of whether she could be fair and impartial, or
whether she could focus given her “day and night”
employment and concern about missing work. And, unlike
the controlling authority, no evidence has been presented
of a systemic policy of the prosecutor’s office to exclude
black jurors, or of a trial strategy in this specific case to
exclude black jurors. In other words, the [c]ourt concludes
that the quantum of evidence in this case, both direct and
circumstantial, is insufficient to support the conclusion
that the prosecutor engaged in purposeful discrimination
by excluding 2 of 3 non-white jurors.

¶ 33 Therefore, the trial court concluded “that defendant has not established that it

is more likely than not that the State engaged in purposeful discrimination in

excluding prospective jurors Jeffreys and Aubrey[.]” Accordingly, “the [c]ourt again

order[ed] that [d]efendant’s Batson objections must be OVERRULED.” Finally, in
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accordance with this Court’s 14 August 2018 Order, the trial court forwarded its order

to this Court for further proceedings.

¶ 34 On 23 August 2019, defendant filed a supplementary petition for discretionary

review with this Court based on the trial court’s rehearing order. In this petition,

defendant argued that this Court should “summarily reverse the trial court’s order,

vacate the judgments and order a new trial because the record unequivocally

demonstrates that the State failed to meet [its] burden to proffer a race neutral

reason” for its peremptory strike of Ms. Aubrey. Alternatively, defendant argued that

“this Court should certify the decision below for plenary review because this case

presents important principles of Batson jurisprudence” and “presents the perfect

vehicle to review the appropriate standard [for] evaluating the evidence at trial and

[the] standard of review on appeal.” On 26 February 2020, this Court denied

defendant’s request for summary reversal but allowed his petition “for the purpose of

affording plenary review of the issues raised in that petition.”

¶ 35 Before this Court, defendant argued that the trial court erred in finding that

he “failed to meet his burden to show purposeful discrimination because the State

failed to articulate a reason for the peremptory strikes of Black jurors that was

legitimate, facially valid[,] reasonably specific[,] or related to the case to be tried.”

Defendant further contended that the trial court clearly erred by “viewing the

evidence in the light most favorable to the state,” and ignoring or justifying evidence
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from which improper discriminatory intent could be inferred.

¶ 36 In response, the State argued that: (1) it had given facially valid, race-neutral

reasons for its peremptory challenges at step two of the Batson test; and (2) the trial

court did not clearly err at step three of the Batson test by overruling defendant’s

Batson objection. The parties elaborated upon these points at oral arguments before

this Court on 6 October 2021.

II. Analysis

¶ 37 Now, we must consider whether the trial court’s ruling regarding defendant’s

Batson challenge was clearly erroneous. See Snyder, 552 U.S. at 477 (“On appeal, a

trial court’s ruling on the issue of discriminatory intent must be sustained unless it

is clearly erroneous”); State v. Chapman, 359 N.C. 328, 339 (2005) (“Thus, the

standard of review is whether the trial court’s [Batson] findings are clearly

erroneous”). Such “clear error” is “deemed to exist when, on the entire evidence[,] the

Court is left with the definite and firm conviction that a mistake has been committed.”

State v. Bennett, 374 N.C. 579, 592 (2020) (cleaned up). In order to make this

determination, we first summarize the applicable history and precedent regarding

racial discrimination in jury selection and Batson challenges.

A. Batson History and Precedent

¶ 38 Juries are at the heart of our constitutional democracy. See U.S. Const. amend.

VI (establishing the right to a jury in criminal trials); U.S. Const. amend VII
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(establishing the right to a jury in civil suits); Duncan v. Louisiana, 391 U.S. 145, 149

(1968) (noting “that trial by jury in criminal cases is fundamental to the American

scheme of justice . . .”). Principally, juries “safeguard[] a person accused of crime

against the arbitrary exercise of power by a prosecutor or judge.” Batson, 476 U.S. at

86 (citing Duncan, 391 U.S. at 156). More broadly, though, jury service also “affords

ordinary citizens a valuable opportunity to participate in a process of government, an

experience fostering, one hopes, a respect for law.” Powers v. Ohio, 499 U.S. 400, 407

(1991) (citing Duncan, 391 U.S. at 187 (Harlan, J., dissenting)). “Indeed, with the

exception of voting, for most citizens the honor and privilege of jury duty is their most

significant opportunity to participate in the democratic process.” Id.

¶ 39 Because juries are so fundamental to our system, racial discrimination in jury

selection is deeply harmful. “Purposeful racial discrimination in the selection of the

venire . . . denies [a criminal defendant] the protection that a trial by jury is intended

to secure.” Batson, 476 at 86; see also Miller-El, 545 U.S. at 237 (“Defendants are

harmed, of course, when racial discrimination in jury selection compromises the right

of trial by impartial jury.”). In addition to the defendant, such discrimination also

harms the excluded juror, who is unduly denied the civic responsibility and

opportunity of jury participation. See Batson, 476 U.S. at 87 (noting that “by denying

a person participation in jury service on account of his race, the State

unconstitutionally discriminated against the excluded juror”). Even more broadly,
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“[t]he harm from discriminatory jury selection extends beyond that inflicted on the

defendant and the excluded juror to touch the entire community.” Id. “That is, the

very integrity of the courts is jeopardized when a prosecutor’s discrimination invites

cynicism respecting the jury’s neutrality and undermines public confidence in

adjudication.” Miller-El, 545 U.S. at 238 (cleaned up). In short, racial discrimination

in jury selection “is at war with our basic concepts of a democratic society and a

representative government.” Smith v. Texas, 311 U.S. 128, 130 (1940).

¶ 40 Accordingly, our courts have long sought to protect the sanctity of juries from

the stain of racism. In 1880, the U.S. Supreme Court held that state laws limiting

jury service to white men violate the Equal Protection Clause of the Fourteenth

Amendment of the U.S. Constitution. Strauder, 100 U.S. at 310. Even after Strauder,

though, “critical problems persisted.” Flowers v. Mississippi, 139 S. Ct. 2228, 2239

(2019). Specifically, “[e]ven though laws barring blacks from serving on juries were

unconstitutional after Strauder, many jurisdictions [still] employed various

discriminatory tools to [exclude] black persons from . . . jury service.” Id.

¶ 41 Peremptory strikes were one such tool. See id. (“And when [other] tactics failed,

or were invalidated, prosecutors could still exercise peremptory strikes in individual

cases to remove most or all black prospective jurors.”). “Peremptory strikes have very

old credentials . . . traced back to the common law[,]” and “traditionally may be used

to remove any potential juror for any reason—no questions asked.” Id. at 2238. With
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this unquestioned discretion, though, also comes the potential for veiled

discrimination. See Miller-El, 545 U.S. at 238 (noting “the practical difficulty of

ferreting out discrimination in selections [that are] discretionary by nature”). Indeed,

“[i]n the century after Strauder, the freedom to exercise peremptory strikes for any

reason meant that the problem of racial exclusion from jury service remained

widespread and deeply entrenched[,]” putting the practice squarely in conflict with

well-established principles of equal protection. Flowers, 139 S. Ct. at 2239 (cleaned

up).

¶ 42 In Batson v. Kentucky, the U.S. Supreme Court resolved this conflict in favor

of equal protection. 476 U.S. at 89 (holding that “the State’s privilege to strike

individual jurors through peremptory challenges[] is subject to the commands of the

Equal Protection Clause”). Specifically, the Court held that “[a]lthough a prosecutor

ordinarily is entitled to exercise permitted peremptory challenges for any reason at

all, . . . the Equal Protection Clause forbids the prosecutor to challenge potential

jurors solely on account of their race.” Id. (cleaned up). And contrary to a previous

ruling suggesting that proof of repeated strikes of Black prospective jurors over a

number of cases was necessary to establish an equal protection violation, the Batson

Court held that “a defendant may [show] purposeful racial discrimination in selection

of the venire by relying solely on the facts concerning its selection in his case.” Id. at
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95; cf. Swain v. Alabama, 380 U.S. 202, 227 (1965) (establishing the systematic

discrimination requirement overruled in Batson).

¶ 43 The Batson Court further established a three-step process by which courts

analyze claims of racially motivated peremptory strikes, now called “Batson

challenges.” First, a defendant bringing a Batson challenge must “make out a prima

facie case of purposeful discrimination by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93–94.

“In deciding whether the defendant has made the requisite showing, the trial court

should consider all relevant circumstances.” Id. at 96.

¶ 44 Second, “[o]nce the defendant makes a prima facie showing, the burden shifts

to the State to come forward with a [race-]neutral explanation for challenging [the]

jurors.” Id. at 97. Although there may be “any number of bases on which a prosecutor

reasonably may believe that it is desirable to strike a juror who is not excusable for

cause[,]. . . the prosecutor must give a clear and reasonably specific explanation of his

legitimate reasons for exercising the challenges.” Id. at 98, n.20 (cleaned up).

¶ 45 Third, in light of both parties’ submissions, “[t]he trial court then [must]

determine if the defendant has established purposeful discrimination.” Id. at 98. At

this step, the judge must assess “whether the prosecutor’s proffered reasons are the

actual reasons, or whether the proffered reasons are pretextual and the prosecutor

instead exercised peremptory strikes on the basis of race.” Flowers, 139 S. Ct. at 2244.
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¶ 46 In the years since Batson, the U.S. Supreme Court has further clarified each

step of this framework. Several of these clarifications are pertinent to our analysis

here. Generally, “[t]he Constitution forbids striking even a single prospective juror

for a discriminatory purpose.” Snyder, 552 U.S. at 478. Next, regarding a step one,

defendants may “present a variety of evidence to support a claim that a prosecutor’s

peremptory strikes were made on the basis of race[,]” including:

statistical evidence about the prosecutor’s use of
peremptory strikes against black prospective jurors as
compared to white prospective jurors in the case; evidence
of a prosecutor’s disparate questioning and investigation of
black and white prospective jurors in the case; side-by-side
comparisons of black prospective jurors who were struck
and white prospective jurors who were not struck in the
case; a prosecutor’s misrepresentations of the record when
defending the strikes during the Batson hearing; relevant
history of the State’s peremptory strikes in past cases; or
other relevant circumstances that bear upon the issue of
racial discrimination.

Flowers, 139 S. Ct. at 2243 (cleaned up).

¶ 47 Regarding step two, the U.S. Supreme Court has noted that a prosecutor’s

proffered reasoning need not be “persuasive, or even plausible. At this second step of

the inquiry, the issue is only the facial validity of the prosecutor’s explanation. Unless

a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered

will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (cleaned up).

However, while a prosecutor may raise demeanor-based rationales for a peremptory

strike, without “a specific finding [by the trial judge] on the record concerning [the
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Opinion of the Court

potential juror’s] demeanor,” a reviewing court “cannot presume that the trial judge

credited the prosecutor’s assertion [regarding the potential juror’s demeanor].”

Snyder, 552 U.S. at 479. Likewise, a prosecutor’s “shifting explanations” or

“misrepresentations of the record” may be considered indications of pretext. Foster,

578 U.S. at 512.

¶ 48 Finally, the U.S. Supreme Court has provided useful guidance for both trial

courts engaging in Batson step three and for appellate courts reviewing Batson

rulings. First, “in considering a Batson objection, or in reviewing a ruling claimed to

be Batson error, [a court may consult] all of the circumstances that bear upon the

issue of racial animosity.” Snyder, 552 U.S. at 478. Notably, Batson analysis “does

not call for a mere exercise in thinking up any rational basis. If the stated reason does

not hold up, its pretextual significance does not fade because a trial judge, or an

appeals court, can imagine a reason that might not have been shown up as false.”

Miller-El, 545 U.S. at 252. Next, appellate courts reviewing a trial court’s Batson

ruling “need not . . . decide that any one [fact] alone would require reversal. All that

[it] need[s] to decide . . . is that all of the relevant facts and circumstances taken

together establish that the trial court . . . committed clear error in concluding that

the State’s peremptory strike of [one] black prospective juror . . . was not motivated

in substantial part by discriminatory intent.” Flowers, 139 S. Ct. at 2251. Finally,
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Opinion of the Court

while a trial court’s Batson determination is granted significant deference upon

review, “deference does not by definition preclude relief.” Miller-El, 545 U.S. at 240.1

¶ 49 This Court has likewise provided clarification of its framework for analyzing

claims of racial discrimination in jury selection. Principally, this Court has adopted

the Batson test for review of peremptory challenges under the North Carolina

Constitution. See State v. Fair, 354 N.C. 131, 140 (2001) (“Our courts have adopted

the Batson test for review of peremptory challenges under the North Carolina

Constitution.”); State v. Taylor, 362 N.C. 514, 527 (discussing the Batson test and

noting that “this Court subsequently adopted that same test”); State v. Waring, 364

N.C. 443, 474 (2010) (“Our review of race-based . . . discrimination during petit jury

selection has been the same under both the Fourteenth Amendment to the United

States Constitution and Article 1, Section 26 of the North Carolina Constitution”).

Regarding the first step, “a prima facie showing of racial discrimination is not

intended to be a high hurdle for defendants to cross. Rather, the showing need only

be sufficient to shift the burden to the State to articulate race-neutral reasons for its

peremptory challenge.” Hobbs, 374 at 350 (cleaned up). Regarding the second step,

1 Notably, while the trial court’s firsthand ability to assess a prosecutor’s demeanor
and credibility render this significant appellate deference appropriate, there are also human
factors that render an appellate court’s removed consideration of a Batson challenge useful;
namely, while a trial judge may feel understandably or unconsciously hesitant to imply that
a prosecutor engaged in racial discrimination while that prosecutor is standing right in front
of her, appellate judges enjoy a review of the written record further removed from such
immediate interpersonal dynamics.
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“[t]he State’s explanation must be clear and reasonably specific, but does not have to

rise to the level of justifying a challenge for cause. Moreover, unless a discriminatory

intent is inherent in the prosecutor’s explanation, the reason offered will be deemed

race neutral.” Id. at 352 (internal quotations omitted). Finally, in engaging in our

own analysis, this Court seeks to be “sensitive to Batson’s requirements” and must

align itself with applicable guidance from the U.S. Supreme Court. Waring, 364 N.C.

at 475.

B. Case at Bar

¶ 50 With this history and precedent as our guide, we now consider defendant’s

present Batson challenge. “On appeal, a trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly erroneous.” Snyder, 552

U.S. at 477; see also Waring, 364 N.C. at 475 (“The trial court’s ruling will be

sustained unless it is clearly erroneous.”). As noted above, such “clear error” is

“deemed to exist when, on the entire evidence[,] the Court is left with the definite and

firm conviction that a mistake has been committed.” Bennett, 374 N.C. at 592 (cleaned

up). We are left with such a conviction here, and therefore hold that the trial court’s

order overruling defendant’s Batson challenge was clearly erroneous.

1. Batson Step One: Prima Facie Showing

¶ 51 In the first step of a Batson challenge, “a defendant must make a prima facie

showing that a peremptory challenge has been exercised on the basis of race[.]”
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Snyder, 552 U.S. at 476; see Taylor, 362 N.C. at 527 (“First, the defendant must make

a prima facie showing that the state exercised a race-based peremptory challenge”).

“[A] defendant satisfies the requirements of Batson’s first step by producing evidence

sufficient to permit the trial judge to draw an inference that discrimination has

occurred.” Johnson, 545 U.S. at 170; see State v. Hobbs, 374 N.C. 345, 350 (2020)

(quoting Johnson for this proposition). “A prima facie showing of racial discrimination

is not intended to be a high hurdle for defendants to cross. Rather, the showing need

only be sufficient to shift the burden to the State.” Hobbs, 374 N.C. at 350 (cleaned

up).

¶ 52 In response to this initial challenge, the prosecutor may argue that the

defendant has failed to establish prima facie showing of discrimination. “However,

once a prosecutor has offered a race-neutral explanation for the peremptory challenge

and the trial court has ruled on the ultimate question of intentional discrimination,

the preliminary issue of whether the defendant had made a prima facie showing

becomes moot.” Bell, 359 N.C. at 12 (cleaned up); see also Hobbs, 374 N.C. at 354

(“Where the State has provided reasons for its peremptory challenges, thus moving

to Batson’s second step, and the trial court has ruled on them, completing Batson’s

third step, the question of whether a defendant initially established a prima facie

case of discrimination becomes moot.”).

¶ 53 Here, immediately after the prosecutor completed his questioning of potential
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jurors, defense counsel raised a Batson challenge regarding the prosecutor’s

peremptory strikes of Ms. Jeffreys and Ms. Aubrey. In support of her challenge,

defense counsel noted both the State’s disproportionate use of peremptory strikes

against Black prospective jurors and the lack of other distinguishing factors between

the excluded Black potential jurors and accepted white potential jurors. Specifically,

defense counsel stated:

[S]o far, there have been four challenges by the State and
if my numbers are correct, there were two white males and
two black females. Ms. Viola Jeffreys who was originally
placed in Seat No. 5 and then subsequently Ms. Gwendolyn
Aubrey who was placed in Seat No. 5, both women are
African-American. They are the only African-Americans
seated in the jury box at this point in time.2 Both have been
cut by the State. I’m at a loss as to what it was that caused
the State to determine that they should be cut in light of
the comparables in the jury pool. The only distinction I see
is color. Therefore, we would object to and challenge the
State’s peremptory challenges made thus far.

¶ 54 The trial court then gave the prosecutor an opportunity to address the Batson

challenge. Rather than asserting that defendant had not established prima facie

showing of discrimination, the prosecutor instead began providing justifications for

the challenged peremptory strikes. As the trial court identified in its subsequent

response, this moved directly to the second step of the Batson analysis:

All right. This is a three-step process and the first step is
for the defense to make a prima facie argument. Mr. Wiggs,

Later, when asked to self-identify his race, Juror #12 stated “My dad is black and
2

my mom is Chinese . . . [s]o I’m whatever you call that.”
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Opinion of the Court

you moved directly to the second step, which is fine, which
is that you offered neutral—with what you purport to be
neutral justification.

Accordingly, step one of defendant’s Batson challenge was rendered moot, and “we

need not examine whether defendant met his initial burden.” Hobbs, 374 N.C. at 355

(cleaned up). The trial court, therefore, did not err in concluding the same.3

2. Batson Step Two: Race-Neutral Reasoning

¶ 55 Second, “[o]nce the defendant makes prima facie showing, the burden shifts to

the State to come forward with a neutral explanation for challenging black jurors.”

Batson, 476 U.S. at 97; see Fair, 354 N.C. at 140 (“If this showing is made, the court

advances to the second step, where the burden shifts to the state to offer a facially

valid, race-neutral rationale for its peremptory challenge”). As noted above, this step

“does not demand an explanation that is persuasive, or even plausible[,]” but only one

that is facially race-neutral. Purkett, 514 U.S. at 768; see Fair, 354 N.C. at 140

(stating this same proposition). “As long as the state’s reason appears facially valid

and betrays no inherent discriminatory intent, the reason is deemed race-neutral.”

Fair, 354 N.C. at 140.

¶ 56 Here, during the initial Batson inquiry before trial, the prosecutor contended

3The Court of Appeals also correctly, if implicitly, held step one of the Batson inquiry
to be moot when it noted that “the trial court heard the State’s reasons for striking Jeffreys
and Aubrey prior to making a ruling on defendant’s Batson objections,” and subsequently
moved to step two. Clegg, 2017 WL 3863494 at *3.
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that he struck both Ms. Jeffreys and Ms. Aubrey for their body language and lack of

eye contact. He further asserted that he struck Ms. Jeffreys because of her potential

bias toward defendant arising from her previous employment at Dorothea Dix

Hospital, and that he struck Ms. Aubrey because she answered “I suppose” to a

question asking whether she could be fair and impartial. The trial court subsequently

found that these reasons “constitute neutral justifications for exercising peremptory

challenges” in satisfaction of Batson step two.

¶ 57 Later, at the Batson rehearing, the prosecutor offered slightly different reasons

for his peremptory strikes of Ms. Jeffreys and Ms. Aubrey. Regarding Ms. Jeffreys,

the prosecutor again asserted that the peremptory strike “was based primarily on her

stated occupation as being retired from Dorothea Dix Hospital, with the

understanding that she was a nurse to mental health patients who were suffering

from mental health diseases.” Because defendant’s “mental health was an underlying

issue and concern for the defense,” the prosecutor contended, “it was the State’s belief

[that Ms. Jeffreys] would possibly be sympathetic to the defendant despite

overwhelming evidence of his guilt.” The prosecutor did not mention Ms. Jeffreys’s

body language or lack of eye contact at the rehearing.

¶ 58 Regarding his strike of Ms. Aubrey, the prosecutor proffered two rationales at

the rehearing. The first was the same as before trial: “her body language and her lack

of eye contact.” Second, the prosecutor noted that Ms. Aubrey had replied “I suppose”
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to a question regarding whether she felt confident that she could focus on the trial.

The prosecutor further noted that when he asked Ms. Aubrey a follow-up question on

this issue, she replied “I think so.” These short and equivocal answers, combined with

“her body language and her lack of eye contact,” the prosecutor asserted, created

concern about “whether or not [Ms. Aubrey] could be an engaged juror throughout

[the trial].”

¶ 59 The prosecutor then addressed the shift in this reasoning between the initial

Batson inquiry and the rehearing. Noting that he was “completely flustered when

this was brought up during trial[,]” the prosecutor conceded that he “missp[oke] with

respect to the…question that Ms. Aubrey was answering.” He then confirmed that

Ms. Aubrey had in fact answered “I suppose” not to a question about being fair and

impartial, but about being confident in her ability to focus on the trial, and that he

had “confus[ed] those questions and her answer.”

¶ 60 In assessing the prosecutor’s proffered reasons at the rehearing, the trial court

again accepted the justifications as race-neutral in satisfaction of the State’s burden

of production under Batson step two. Regarding the proffered reason for the strike of

Ms. Jeffreys, the trial court stated during the rehearing that her previous

employment at Dorothea Dix was a “distinguishing race[-]neutral fact” and “an

appropriate ground for a peremptory challenge.” The court further stated in its

written rehearing order that “[a]s to juror Viola Jeffreys, the State offered a race-
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neutral reason for exercising the strike.”

¶ 61 The trial court likewise found the prosecutor’s rehearing reasoning for striking

Ms. Aubrey to be race-neutral. Specifically, the court’s rehearing order stated that

“had the prosecutor, in offering his race-neutral basis for exercising the strike of Ms.

Aubrey, stated that he was concerned that she had answered ‘I suppose[]’ to the

question of whether she could focus, . . . that, in the [c]ourt’s view, would have

constituted a neutral justification for the strike.” The court later likewise described

the “body language” and “lack of eye contact” justification as another “race-neutral

reason articulated by the prosecutor.”

¶ 62 We cannot find that the trial court erred in determining that the prosecutor

met his burden of production under Batson step two. To be clear, as clarified by the

U.S. Supreme Court in Purkett, the inquiry here is limited only to whether the

prosecutor offered reasons that are race-neutral, not whether those reasons

withstand any further scrutiny; that scrutiny is reserved for step three. See 514 U.S.

at 767–68; Johnson, 545 U.S. at 171 (“Thus, even if the State produces only a frivolous

or utterly nonsensical justification for its strike, the case does not end—it merely

proceeds to step three.”). The prosecutor’s proffered reasons here—body language and

lack of eye contact, concern of bias, concern of partiality, and concern of lack of focus—

are all facially race-neutral. Accordingly, the trial court’s findings here and

subsequent decision to move to step three of the Batson analysis was not erroneous.
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3. Batson Step Three: Determining Discrimination

¶ 63 Under Batson’s third and final step, “[t]he trial court…[has] the duty to

determine if the defendant has established purposeful discrimination.” 476 U.S. at

98; see Waring, 364 N.C. at 475 (“Finally, the trial court must then determine whether

the defendant has met the burden of proving purposeful discrimination”) (cleaned

up). At this stage, the trial judge must consider all of the relevant circumstances and

reasoning submitted by both parties to “determine whether the prosecutor’s stated

reasons were the actual reasons or instead were a pretext for discrimination.”

Flowers, 139 S. Ct. at 2241. In conceptualizing this framework as a whole, a common

judicial analogy proves illustrative: in step one (and in subsequent rebuttal),4 the

defendant places his reasoning on the scale; in step two (and in subsequent rebuttal),5

the State places its counter-reasoning on the scale; in step three, the court carefully

weighs all of the reasoning from both sides to ultimately “decid[e] whether it was

more likely than not that the challenge was improperly motivated.” Johnson, 545 U.S.

at 170; see Hobbs, 374 N.C. at 351 (quoting Johnson for this proposition). If so, the

defendant has established a Batson violation.

¶ 64 Here, the trial court’s rehearing order carefully described its step three

4 After the prosecutor proffers race-neutral reasoning in step two, “[o]ur courts allow
the defendant to submit evidence to show that the state’s proffered reason is merely a pretext
for discrimination.” Fair, 354 N.C. at 140. Trial courts may subsequently allow the prosecutor
an opportunity for surrebuttal before making their ultimate ruling under step three.
5 See note 4 above.
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analysis weighing the reasoning submitted by defendant and the prosecutor. First,

the court ruled that the prosecutor’s peremptory strike of Ms. Jeffreys (on the basis

of concern of potential bias) did not constitute a Batson violation. Specifically, the

court stated:

The record reflects that, in prior proceedings in this case,
the [d]efendant’s competency had been called into question
and evaluations ordered. The State’s stated basis for
striking Ms. Jeffreys due to her work history in the mental
health field is rationally related to the defendant’s
potential competency issues, and thus the [c]ourt finds this
reason is supported by the record and constitutes an
appropriate justification for the strike.

Because we later conclude that the trial court clearly erred in overruling defendant’s

Batson challenge regarding Ms. Aubrey, and “[t]he Constitution forbids striking even

a single prospective juror for a discriminatory purpose[,]” we decline to consider

whether the trial court’s ruling regarding Ms. Jeffreys was also clearly erroneous.

Snyder, 552 U.S. at 478.

¶ 65 Second, the trial court weighed the reasoning provided by both defendant and

the prosecutor regarding the peremptory strike of Ms. Aubrey. After reviewing the

transcript from the initial Batson inquiry, the trial court stated that “[i]t is evident

from the record that both the trial court’s and the prosecutor’s memory of the answers

given by Ms. Aubrey was conflated. She did not say ‘I suppose’ in response to a

question of whether she could be ‘fair and impartial.’ ” Rather, the court went on to

observe from the record, she provided that answer in response to the prosecutor’s
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question about whether she felt confident that she could focus on the trial. The trial

court then stated the following:

8. In retrospect, had the prosecutor, in offering his race-
neutral basis for exercising the strike of Ms. Aubrey, stated
that he was concerned that she had answered “I suppose”
to the question of whether she could focus, when coupled
with her concern that she worked ‘day and night’ and would
miss work, that, in the [c]ourt’s view, would have
constituted a neutral justification for the strike.

9. However, as it stands, the State’s offered reason for
striking Ms. Aubrey based on her “I suppose” answer is not
supported by the record because the prosecutor associated
that answer with whether she could be “fair and impartial,”
not whether she could focus.

¶ 66 The trial court then observed that under the U.S. Supreme Court’s ruling in

Foster, “when reasons that are offered by a prosecutor as a basis for exercising a strike

contradict or mischaracterize the record, those reasons must be rejected in evaluating

whether race was a motivating factor in exercising the strike,” citing Foster, 578 U.S.

at 505, 510. “Moreover,” the court continued, “a trial court is not permitted to consider

race-neutral reasons for exercising a strike that are not articulated by the

prosecutor,” citing Miller-El, 545 U.S. at 250–52. Accordingly, the trial court ruled

that “[s]trict application of the rules articulated in Foster and Miller-El to the race-

neutral (but mis-remembered) reasons provided by the prosecutor justifying Ms.

Aubrey’s strike . . . require the [c]ourt to exclude and not consider the reason

articulated by the prosecutor – that Ms. Aubrey said that ‘she supposed’ she could be
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fair and impartial – because that reason is contradicted by the record.”

¶ 67 Having thus rejected the prosecutor’s “I suppose” rationale, the trial court then

moved on to consider what it noted was “the only [remaining] race-neutral reason

articulated by the prosecutor[:] . . . the ‘body language’ and ‘lack of eye contact’

rationale.” However, the trial court found that this reasoning, too, was invalid.

Specifically, the court noted that “[t]he ‘body language’ rationale was disputed by trial

counsel for the [d]efendant, and the trial court made no specific findings regarding

Ms. Aubrey’s body language or demeanor.” Under the U.S. Supreme Court’s ruling in

Snyder, the trial court stated, “the ‘body-language’ race-neutral justification offered

by the prosecutor cannot be viewed as sufficient” in the absence of any corroborating

findings of fact by the trial court. “As such,” the trial court ruled, “both race-neutral

justifications offered by the prosecutor fail – one because the prosecutor mis-

remembered the question to which Ms. Aubrey responded ‘I suppose,’ and the other

because the trial court failed to make sufficient findings of fact to establish a record

of Ms. Aubrey’s body language.” In other words, the prosecution had placed two

reasons on the scale, and the trial court deemed them both weightless.

¶ 68 The trial court then considered the evidence proffered by defendant tending to

show racial discrimination. Specifically, the court weighed defendant’s statistical

evidence “both relating to the trial at issue and [to] North Carolina at large.” With

respect to this trial, that evidence identified that of the twenty-two members of the
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jury pool, three were people of color. Further, of the prosecutor’s four peremptory

strikes, two were used strike two of those three potential jurors of color, “which also

turned out to be all the” women of color. Proportionally, then, the State struck about

ten percent of the eligible white jurors and about sixty-six percent of the eligible

jurors of color, resulting in a jury of eleven white members and one member of mixed

race. When asked by defense counsel to identify their race, none of the selected jurors

self-identified as African American.6

¶ 69 The trial court then noted defendant’s evidence of racial disparities in the

exercise of peremptory strikes across North Carolina. Specifically, the court noted

that this evidence indicated “that in noncapital cases studied from 2011–12,

prosecutors struck black venire members at about twice the rate of white.” (citing

Pollitt & Warren, 94 N.C. L. Rev. at 1964).

¶ 70 Finally, the trial court weighed defendant’s “side-by-side comparison of

questioning of white jurors and African[-]American jurors.” Specifically, the court

considered defendant’s comparison of the prosecutor’s questioning of Ms. Aubrey with

that of fellow prospective juror Mr. David Williams regarding their ability to focus

during trial. The court noted the following exchange from the record:

Prosecutor: I don’t need specifics, but, you know, is there a
possibility that your mind could drift somewhere else when
we need you to be focusing on the proceedings here?

6 See note 2.
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Mr. Williams: I have 11 employees out in the field, so –

Prosecutor: Okay. Ms. Aubrey, do you feel confident you
can focus on what’s going on here?

Ms. Aubrey: I suppose.

Prosecutor: I want you to be confident about it. You just
don’t want to be a juror or do you feel like if you were here,
you could focus and do what we need you to do?

Ms. Aubrey: I think so.

¶ 71 Upon review, though, the trial court did not find this comparison “particularly

pertinent because Mr. Williams had previously stated that, with respect to his

supervisory duties, ‘I can juggle things around[,]’ whereas Ms. Aubrey did not indicate

any flexibility in her ‘day and night’ work schedule that might ease her concern about

missing work.”

¶ 72 The trial court then moved to its final determination regarding defendant’s

Batson challenge. “Here,” the court ruled, “[d]efendant has shown that the race-

neutral justifications offered by the prosecutor cannot be supported by the record –

either because the prosecutor mis-remembered the potential juror’s answer or

because the trial court failed to make an adequate record of the body language of the

prospective juror.” “The [d]efendant has also shown,” the court continued, “evidence

of statistical disparities in the exercise of peremptory challenges by prosecutors in

statewide jury selection studies in data collected from 1990 to 2012.” Reaching its

ultimate conclusion, though, the court stated:
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However, the [c]ourt cannot conclude from this record that
in this case, the State has engaged in “purposeful
discrimination.” As the [d]efendant points out, the
applicable standard is, given all relevant circumstances,
“whether it was more likely than not that the challenge
was improperly motivated.” Johnson v. California, 545
U.S. 162, 170 (2005). Even on this relaxed “more likely
than not” standard, this [c]ourt concludes that essential
evidence of purposeful discrimination—which is the
defendant’s burden to prove—is lacking.

¶ 73 To support this conclusion, the trial court reasoned that “[t]he cases in which

the [U.S.] Supreme Court has found that the state exercised peremptory challenges

in a purposefully discriminatory fashion are strikingly different from the case at

hand.” As examples, the court discussed Foster and Miller-El, in which the

prosecutors had exhibited “smoking-gun” evidence of racial discrimination such as,

respectively, highlighting the names of all Black potential jurors on their juror list

and asking Black potential jurors a “trick question” not asked of white potential

jurors. See Foster, 578 U.S. at 493–95; Miller-El, 545 U.S. at 255. The trial court

reasoned that because this case was “markedly distinguishable” from those cases and

involved “an instance of a prosecutor mis-remembering” rather than a

“‘mischaracterization’ of the record[,]” “the quantum of evidence in this case . . . is

insufficient to support the conclusion that the prosecutor engaged in purposeful

discrimination.”

¶ 74 Our review of the trial court’s Batson step three analysis reveals several errors

that collectively leave this Court “with the definite and firm conviction that a mistake
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has been committed[,]” thus rendering the trial court’s determination clearly

erroneous. Bennett, 374 N.C. at 592. As noted above, “[w]e need not and do not decide

that any one of those [errors] alone would require reversal. All that we need to decide,

and all that we do decide, is that all of the relevant facts and circumstances taken

together establish that the trial court committed clear error in concluding that the

State’s peremptory strike of [a] black prospective juror . . . was not ‘motivated in

substantial part by discriminatory intent.’ ” Flowers, 139 S. Ct. at 2235 (quoting

Foster, 578 U.S. at 512). Before discussing the trial court’s errors, though, it is first

worth noting several points of analysis on which the trial court was correct.

¶ 75 First, the trial court acted properly in rejecting the prosecutor’s proffered “I

suppose” reasoning. As the U.S. Supreme Court illustrated in Foster, proffered

reasons that are contradicted by the record are unacceptable in supporting a

challenged peremptory strike. See 578 U.S. at 505. (“Moreover, several of Lanier’s

reasons…are similarly contradicted by the record”). Likewise, shifting explanations

indicate pretext and should be viewed with suspicion. See id. at 507 (“As an initial

matter, the prosecutor’s principal reasons for the strike shifted over time, suggesting

that those reasons may be pretextual.”).

¶ 76 Here, the prosecutor’s “fair and impartial” reasoning during the initial Batson

inquiry was contradicted by the record, and his “focus” reasoning during the

rehearing amounted to a shifting explanation. Whether the initial misstatement was
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the product of accidental “misremembering,” as the trial court found, or intentional

“mischaracterizing” does not change the fact that the proffered reason was plainly

unsupported by the record. Accordingly, the trial court properly rejected this

rationale.7 To the extent that the trial court viewed this misstatement “in the light

most favorable to the prosecutor,” as it offhandedly remarked during the rehearing,

though, that would reflect a fundamental misunderstanding of the Batson framework

and constitute error. However, because the trial court articulated the correct burden

of proof in its written order, we do not consider this remark further.

¶ 77 Second and similarly, the trial court properly rejected the prosecutor’s “body

language and lack of eye contact” reasoning. As the U.S. Supreme Court indicated in

Snyder, while demeanor-based reasoning can be rightly credited “where a trial judge

has made a finding that an attorney credibly relied on demeanor in exercising a

strike[,]” without such corroboration “we cannot presume that the trial judge credited

the prosecutor’s assertion” regarding the potential juror’s demeanor. 552 U.S. at 479.

Here, not only did the trial judge not corroborate the prosecutor’s assertion regarding

Ms. Aubrey’s body language and eye contact, defense counsel specifically refuted it.

7 While the dissent claims that “the trial court may have taken the holding in Miller-
El too literally” in rejecting the State’s proffered reasoning here (¶ 26), we understand the
trial court to have simply concluded that the U.S. Supreme Court meant what it said when
it held that “[i]f the stated reason does not hold up, its pretextual significance does not fade
because a trial judge, or an appeals court, can imagine a reason that might not have been
shown up as false.” Miller-El, 545 U.S. at 252. Notably, the Court of Appeals made this same
misstep when it provided its own “clarification” to the State’s actual proffered reason. See
Clegg, WL 3863494 at *4.
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Because the trial court made no specific findings of fact regarding Ms. Aubrey’s body

language, it properly rejected this reasoning at the rehearing.

¶ 78 What’s more, the prosecutor’s demeanor-based reasoning here was even less

specific—and therefore less credible—than that rejected in Snyder. In Snyder, the

prosecutor claimed that the rejected juror was “nervous,” a description that at least

minimally invokes a commonly understood set of more specific behaviors. Id. Here,

the prosecutor merely stated that he struck Ms. Aubrey due to her “body language”

without ever specifying anything in particular that might have been concerning about

her body language. Further, during the initial pre-trial Batson inquiry, the prosecutor

never distinguished between Ms. Jeffreys and Ms. Aubrey when discussing body

language—he only referred to the two Black women collectively, twice referring to

“their body language” without any further specification. This complete lack of

specificity significantly undermines the credibility of the prosecutor’s reasoning.

¶ 79 Historical context provides even more reason for courts engaging in a Batson

analysis to view generalized “body language and lack of eye contact” justifications

with significant suspicion. For example, as recently as 1995, prosecutorial training

sessions conducted by the North Carolina Conference of District Attorneys included

a “cheat sheet” titled “Batson Justifications: Articulating Juror Negatives." See Pollitt

& Warren, 94 N.C. L. REV. at 1980 (noting a North Carolina trial court’s summary of

this document in a 2012 Order on a defendant’s motion for appropriate relief). This
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document provided prosecutors with a list of facially race-neutral reasons that they

might proffer in response to Batson objections. See id.; see also Jacob Biba, Race

Neutral, THE INTERCEPT, Nov. 8, 2021, https://theintercept.com/2021/11/08/north-

carolina-jury-racial-discrimination/ (describing the prosecutorial training and Batson

Justification worksheet); Tonya Maxwell, Black juror’s dismissal, death penalty,

revisited in double homicide, THE ASHEVILLE CITIZEN-TIMES, Nov. 3, 2016,

https://www.citizen-times.com/story/news/local/2016/11/03/black-jurors-dismissal-

death-penalty-revisited-double-homicide/93168824/ (same). The list included both

“body language” and “lack of eye contact,” in addition to “attitude,” “air of defiance,”

and “monosyllabic” responses to questions.8

¶ 80 Of course, North Carolina is not unique here. When placed within our well-

established national history of prosecutors employing peremptory challenges as tools

of covert racial discrimination, this historical context cautions courts against

accepting overly broad demeanor-based justifications without further inquiry or

corroboration. See Flowers, 139 S. Ct. at 2239–40 (“And when [other discriminatory]

tactics failed, or were invalidated, prosecutors could still exercise peremptory strikes

in individual cases to remove most or all black prospective jurors.”). Accordingly, the

trial court properly rejected the prosecutor’s unconfirmed and generalized “body

8 Here, in justifying his peremptory strike of Ms. Aubrey, the prosecutor repeatedly
noted that her answers were “short.”
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language and lack of eye contact” rationale below.

¶ 81 Third and finally, the trial court acted properly in considering defendant’s

statistical evidence regarding the disproportionate use of peremptory strikes against

Black potential jurors in both this case and statewide. As recently identified by the

U.S. Supreme Court in Flowers, such data is included among the many types of

evidence that a defendant may present, and a court may consider, within a Batson

challenge. 139 S. Ct. at 2243 (listing examples of the variety of evidence defendants

may present in Batson challenges).

¶ 82 Despite the areas in which the trial court acted properly, though, several other

areas of its Batson step three analysis were erroneous. Like the U.S. Supreme Court

in Flowers, we do not identify any one of the trial court’s mistakes as independently

requiring reversal. Rather, we determine that “all of the relevant facts and

circumstances taken together establish that the trial court committed clear error in

concluding that the State’s peremptory strike of [Ms. Aubrey] was not motivated in

substantial part by discriminatory intent.” Flowers, 139 S. Ct. at 2251. Specifically,

we note four interrelated errors: (1) overruling defendant’s Batson challenge after

rejecting all of the race-neutral reasons provided by the prosecutor; (2) applying an

improperly high burden of proof; (3) independently considering reasoning not offered

by the prosecutor; and (4) giving inadequate consideration to racially disparate

questioning and acceptance of comparable jurors.
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¶ 83 First, the trial court erred by ruling that defendant had not met his Batson

burden after determining that “both race-neutral justifications offered by the

prosecutor fail.” Under the Batson framework, after the defendant and the State have

offered their reasoning, the trial court must determine, in light of these submissions,

“whether it was more likely than not that the [peremptory] challenge was improperly

motivated.” Johnson, 545 U.S. at 170. If the trial court finds that all of the

prosecutor’s proffered race-neutral justifications are invalid, it is functionally

identical to the prosecutor offering no race-neutral justifications at all. In such

circumstances, the only remaining submissions to be weighed—those made by the

defendant—tend to indicate that the prosecutor’s peremptory strike was “motivated

in substantial part by discriminatory intent.” Flowers, 139 S. Ct. at 2251. As a

consequence, then, a Batson violation has been established.

¶ 84 Here, after careful analysis, the trial court explicitly ruled that “both race-

neutral justifications by the prosecutor fail.” At that point, the only valid reasoning

remaining for the court to consider was evidence presented by defendant tending to

show that the peremptory challenge of Ms. Aubrey was motivated in substantial part

by discriminatory intent: disparate data, disparate questioning, and disparate

acceptance of substantially comparable jurors. Accordingly, after finding that both

race-neutral justifications for the prosecutor’s peremptory strike of Ms. Aubrey failed,

the trial court should have ruled on this record that defendant met his burden under
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Batson. Ruling otherwise was erroneous.

¶ 85 Second, the trial court erred by holding defendant to an improperly high

burden of proof. Under Batson, defendants must “establish purposeful

discrimination.” 476 U.S. at 98. The U.S. Supreme Court has described this

requirement as showing that a peremptory strike was “motivated in substantial part

by discriminatory intent[,]” Flowers, 139 S. Ct. at 2251, or “whether it was more likely

than not that the challenge was improperly motivated.” Johnson, 545 U.S. at 170.

¶ 86 Here, while the trial court properly recited this burden, it failed to apply it with

fidelity. Instead, it looked for smoking-gun evidence of racial discrimination similar

to what has been present in previous U.S. Supreme Court cases that have found

Batson violations, namely Foster, 578 U.S. 488, and Miller-El, 545 U.S. 231. After

noting the glaring evidence of discrimination present in those cases, the trial court

found that “[t]his case is markedly distinguishable from the facts of this controlling

authority.”

¶ 87 While that may be true, it is not the facts of those decisions that make them

controlling authority—it’s the law. Highlighted names and trick questions are not

required for a defendant to show that a peremptory was “motivated in substantial

part by discriminatory intent.”9 Flowers, 139 S. Ct. at 2251. Rather, as defendant did

9Notably, the jury selections at question in both Foster and Miller-El took place in the
late 1980s, either before or immediately after Batson was first decided. See 578 U.S. at 492
(summarizing the initial crime and trial process); 545 U.S. at 235–236 (same). Given the
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here, a defendant may present a wide variety of direct and circumstantial evidence

in supporting a Batson challenge. See id. at 2243 (listing examples of acceptable

evidence); Hobbs, 374 N.C. at 356 (same). By implicitly holding defendant to an

improperly high burden, the trial court erred in its Batson step three analysis.

¶ 88 Third, the trial court erred by considering within its Batson step three analysis

reasoning not presented by the prosecution on its own accord. In Miller-El, the U.S.

Supreme Court held that “[a] Batson challenge does not call for a mere exercise in

thinking up any rational basis. If the stated reason does not hold up, its pretextual

significance does not fade because a trial judge, or an appeals court, can imagine a

reason that might not have been shown up as false.” 545 U.S. at 252. Indeed, the trial

court here noted as much both during the rehearing and in its subsequent order.

During the rehearing, for instance, the trial court stated:

[T]he [c]ourt cannot interpose [a] valid basis for the
exercise of [a] peremptory challenge when the State fails to
raise it . . . I would find that had the State said [“Ms.
Aubrey] works day and night . . . and she’s sitting there
slouching in her chair,[”] . . . it would be one thing. But I
don’t think I can interpose that objection for the prosecutor
in this case and say look, [had they] said that, . . . that
would have been the basis of my ruling. So I think I’m stuck
with what they said.

¶ 89 In its subsequent order, though, the trial court did not “st[i]ck with what they

historical context noted above, it is unsurprising that Batson cases arising from trials in the
late twentieth century may reveal more blatant evidence of racial discrimination in jury
selection than those arising from trials today.
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said.” For instance, when considering the prosecutor’s questioning of Ms. Aubrey and

Mr. Williams, the court ruled that the comparison was “not . . . particularly pertinent

because Mr. Williams had previously stated that, with respect to his supervisory

duties, ‘I can juggle things around[,]’ . . . whereas Ms. Aubrey did not indicate any

flexibility in her ‘day and night’ work schedule that might ease her concern about

missing work.” But the prosecution had never advanced this “day and night”

argument on its own accord—not at the initial Batson inquiry, and not the

subsequent rehearing. While the prosecution certainly could have argued that Ms.

Aubrey’s “day and night” work schedule might impact her ability to focus during trial,

it did not. Accordingly, the trial court erred by considering this reasoning within its

step three analysis.

¶ 90 Fourth and finally, the trial court erred by failing to adequately consider the

disparate questioning and disparate acceptance of comparable white and Black

prospective jurors. See Flowers, 139 S. Ct. at 2246 (“We next consider the State’s

dramatically disparate questioning of black and white prospective jurors in the jury

selection process.”). As typical during jury selection, the prosecutor in this case

collectively asked all of the then-seated jurors whether they felt confident that they

could focus during the trial. Specifically, the prosecutor asked:

[D]o you all feel like you can, if you serve as a juror, . . . pay
attention to the testimony and the evidence while you’re in
the courtroom [and] focus exclusively on what’s going on in
the courtroom? I know we all have distractions in our lives,
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but is there anything that’s such a major distraction that
your mind may be somewhere else when you should be
focusing on what’s going on? I’m not asking you to tell me
exactly what it is, but anybody have any kind of issues like
that going on?

Notably, in response to an earlier question from the trial court about “anything going

on in [their lives] that would make it difficult or impossible for [them] to serve,”

several of the jurors had indicated that they had potential work- or family-related

logistical challenges, such as having to find coverage at work (Juror #6) or having one

or more young children at home (Jurors # 9 and # 12), among others. Nevertheless,

when none of the then-seated jurors responded to the prosecutor’s question about

focus, the prosecutor took them at their word and immediately moved on to another

topic without further questioning.

¶ 91 Later, the prosecutor used peremptory strikes to remove three of the initial

jurors (including Ms. Jeffreys), leading to the seating of three replacement jurors,

including Ms. Aubrey and Mr. David Williams. Like the initial batch of jurors, the

trial court asked the three replacements whether they had anything going on in their

lives that would make it difficult or impossible for them to serve. Ms. Aubrey

responded: “[o]ther than missing work, no[,]” before clarifying in response to a follow-

up question by the court that she worked both “[d]ay and night.” Mr. Williams

responded: “I’m an irrigation contractor and this is our season, and I’m one of the

service techs. But I can juggle things around.” Later, the prosecutor asked the three
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Opinion of the Court

replacement jurors the same question he had previously posed to the initial batch:

Is there anything going on in your personal life . . . that
would maybe take you away mentally from being engaged
in what’s going on here in the courtroom? Again, I don’t
need to know specifics, but, you know, is there a possibility
that your mind could drift somewhere else when we need
you to be focusing on the proceedings here?

In response, like all of the initial jurors previously, Ms. Aubrey remained silent. Then,

Mr. Williams spoke up, and the following exchange took place:

[Mr. Williams]: I have 11 employees out in the field, so —

Mr. Wiggs: Okay. Ms. Aubrey, do you feel confident that
you can focus on what’s going on here?

[Ms. Aubrey]: I suppose.

Mr. Wiggs: I want you to be confident about it. You just
don’t want to be a juror or do you feel like if you were here,
you could focus and do what we need you to do?

[Ms. Aubrey]: I think so.

Mr. Wiggs: Okay. Thank you.

Later, without asking any further questions to either Ms. Aubrey or Mr. Williams,

the prosecutor used a peremptory strike to remove Ms. Aubrey from the jury pool, but

did not remove Mr. Williams.

¶ 92 On review, this exchange stands out for two reasons: first for what the

prosecutor did do, and second for what he did not do. First, out of the fifteen potential

jurors that the prosecutor had asked about their ability to focus up to this point
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(twelve initial and three replacements), Ms. Aubrey was the only one the prosecutor

singled out for further specific questioning. And while Ms. Aubrey was the only

potential juror who noted that she worked both “day and night,” she was far from the

only one who had substantially similar work- or family-related logistical challenges

that might impact her ability to focus. Accordingly, Ms. Aubrey’s “day and night”

comment alone cannot bear the weight of justifying this disparate questioning.

Indeed, “[a] per se rule that a defendant cannot win a Batson claim unless there is an

exactly identical white juror would leave Batson inoperable; potential jurors are not

products of a set of cookie cutters.” Miller-El, 545 U.S. at 247, n.6. In any event, as

noted above, if the prosecutor was concerned about Ms. Aubrey working day and

night, he never stated as much.

¶ 93 Second, this exchange stands out because of what the prosecutor did not do:

follow up with Mr. Williams. After the prosecutor asked the question about focus, Mr.

Williams, unique among the fifteen jurors up to this point, volunteered information

that could most reasonably be understood as indicating that he had a professional

obligation that might impact his ability to focus during trial: “I have 11 employees

out in the field, so —”.10 Indeed, Mr. Williams had previously noted that he was self-

10 The State has suggested that it is possible that, instead of indicating why he might
not be able to focus during trial, Mr. Williams’ comment may have been providing a reason
why he could focus during trial: because he “ha[d] 11 employees out in the field” who might
be able to cover for him in his absence. While this explanation is not completely without
merit, given the full context of the record (including the fact that none of the other fourteen
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Opinion of the Court

employed and that “this is our season[.]” Instead of following up with Mr. Williams

about this comment, though, the prosecutor instead, without explanation, turned

immediately to Ms. Aubrey: “Okay. Ms. Aubrey, do you feel confident you can focus

on what’s going on here?” Ms. Aubrey then replied “I suppose[,]” and later, “I think

so[,]” responses that are perfectly normal in jury selection and perhaps even more

honest and conversational than a flat “yes.” Indeed, if Ms. Aubrey had answered with

a flat “yes,” given the historical context noted above, one can realistically imagine a

prosecutor seeking to justify a peremptory strike on the grounds that such an answer

was too short, cold, or confident.

¶ 94 While “disparate questioning or investigation alone does not constitute a

Batson violation[,]” it “can . . . , along with other evidence, inform the trial court’s

evaluation of whether discrimination occurred.” Flowers, 139 S. Ct. at 2248. When

viewed in the context of the full record, this exchange illustrates disparate

questioning and exclusion of Ms. Aubrey compared to substantially comparable white

potential jurors who were unquestioned and accepted by the prosecutor. Accordingly,

the trial court should have fully considered this evidence within the totality of

jurors felt compelled go out of their way to provide the prosecutor with a reason to prove why
they could focus in response to a question asking for potential reasons why they could not) it
appears more likely that Mr. Williams was beginning to suggest that he might not be able to
focus. In any event, even accepting both potential meanings as reasonable, the most notable
aspect of this exchange is that the prosecutor never followed up with Mr. Williams to clarify
what exactly his comment was suggesting.
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defendant’s submissions. Its failure to do so was erroneous.

¶ 95 “To reiterate, we need not and do not decide [whether] any of these four [errors]

alone would require reversal.” Id. at 2251. Rather, we determine that when these

errors are considered cumulatively and within the context of the full record of this

case, we are “left with the definite and firm conviction that a mistake has been

committed.” Bennett, 374 N.C. at 592. Accordingly, we hold that the trial court’s

ruling overruling defendant’s Batson challenge was clearly erroneous.

III. Remedy

¶ 96 Having determined that a Batson violation indeed occurred, we must now

consider a just remedy. Because the finding of a Batson violation during jury selection

necessitates the reversal of a defendant’s subsequent conviction by that jury, see

Batson, 476 U.S. at 100 (noting that the finding of a violation “require[s] that

petitioner’s conviction be reversed”); Flowers, 139 S. Ct. at 2252 (Alito, J., concurring)

(agreeing with the majority opinion “that petitioner’s capital conviction cannot

stand”), it would ordinarily follow that a defendant would receive a new trial.

¶ 97 Here, however, defendant has already served his entire sentence of active

imprisonment from his now-reversed conviction, and has been discharged from all

post-release supervision. N.C.G.S. 15A-1335 provides that “[w]hen a conviction or

sentence imposed in superior court has been set aside on direct review or collateral

attack, the court may not impose a new sentence for the same offense, or for a
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different offense based on the same conduct, which is more severe than the prior

sentence less the portion of the prior sentence previously served.”

IV. Conclusion

¶ 98 Today, as surely as in 1880 and 1986, racial discrimination in jury selection

violates a defendant’s constitutional right to equal protection of the law. See Strauder,

100 U.S. 303; Batson, 476 U.S. 79. Furthermore, it undermines the credibility of our

judicial system as a whole, thus tearing at the very fabric of our democratic society.

See Batson, 476 at 87 (“The harm from discriminatory jury selection extends beyond

that inflicted on the defendant and the excluded juror to touch the entire

community.”). Accordingly, the Batson framework establishes a process through

which we seek to root out any remaining vestiges of racial discrimination in jury

selection through the use of peremptory strikes.

¶ 99 In reality, the finding of a Batson violation does not amount to an absolutely

certain determination that a peremptory strike was the product of racial

discrimination. Rather, the Batson process represents our best, if imperfect, attempt

at drawing a line in the sand establishing the level of risk of racial discrimination

that we deem acceptable or unacceptable.11 If a prosecutor provides adequate

11See People v. Gutierrez, 2 Cal. 5th 1150, 1182–83 (2017) (Liu, J., concurring) (“In most
cases, courts cannot discern a prosecutor’s subjective intent with anything approaching
certainty. But the issue is not whether the evidence of improper discrimination approaches
certainty or even amounts to clear and convincing proof. The ultimate issue is whether it was
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legitimate race-neutral explanations for a peremptory strike, we deem that risk

acceptably low. If not, we deem it unacceptably high.

¶ 100 Here, that risk was unacceptably high. After the prosecutor struck two Black

women from the jury, defendant raised a Batson challenge presenting evidence

tending to indicate that racial discrimination was a substantial motivating factor.

The prosecutor then proffered two race-neutral justifications for each peremptory

strike. Upon review of the peremptory strike of Ms. Gwendolyn Aubrey, the trial court

found that “both race-neutral reasons offered by the prosecutor fail.” At that point,

the only valid reasoning remaining for the trial court to consider was defendant’s

evidence of discrimination. As a consequence, the totality of the evidence presented

for the court to consider established that it was sufficiently likely that the strike was

motivated in substantial part by discriminatory intent. This constitutes a substantive

violation of defendant’s constitutional right to equal protection under the Fourteenth

Amendment of the United States Constitution, and the trial court clearly erred in

ruling to the contrary. Accordingly, the trial court’s order overruling defendant’s

Batson objection is reversed, defendant’s conviction is vacated, and the case is

remanded to the trial court for any further proceedings.

more likely than not that the challenge was improperly motivated. This probabilistic
standard is not designed to elicit a definitive finding of deceit or racism. Instead, it defines a
level of risk that courts cannot tolerate in light of the serious harms that racial discrimination
in jury selection causes to the defendant, to the excluded juror, and to public confidence in
the fairness of our system of justice.”) (cleaned up).
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REVERSED AND REMANDED.
 Justice EARLS concurring.

¶ 101 I join fully in the majority’s opinion. I agree that the prosecutor’s use of a

peremptory challenge to exclude Ms. Aubrey, an African-American prospective juror,

from the jury empaneled to hear this case violated the Equal Protection Clause of the

Fourteenth Amendment. Indeed, “[e]qual justice under law requires a criminal trial

free of racial discrimination in the jury selection process.” Flowers v. Mississippi, 139

S. Ct. 2228, 2242 (2019). I also agree that it is proper to reverse the trial court’s order

overruling Mr. Clegg’s Batson objection and for his conviction to be vacated. Mr. Clegg

has served his sentence and completed post-release supervision. By statute, where a

conviction has been set aside “the court may not impose a new sentence for the same

offense, or for a different offense based on the same conduct, which is more severe

than the prior sentence less the portion of the prior sentence previously served.”

N.C.G.S. § 15A-1335 (2021). The State’s interest in prosecuting and punishing Mr.

Clegg for the crimes with which he was charged has already been fully satisfied.

¶ 102 I would further hold that the prosecutor’s use of a peremptory challenge to

exclude Ms. Jeffreys, another African-American woman, also violated the Fourteenth

Amendment under Batson. It is important to address this question because the

constitutional interest involved here is not simply the Fourteenth Amendment right

of the defendant to a trial free from racial discrimination. “The Batson decision was

grounded in the criminal defendant’s right to equal protection of the
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Earls, J., concurring

laws . . . . Batson also concluded, however, that race-based exclusion of jurors violates

the equal protection rights of the excluded jurors . . . .” Barbara D. Underwood,

Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum.

L. Rev. 725, 726 (1992) (footnote omitted) (citing Batson v. Kentucky, 476 U.S. 79, 85–

87 (1986)). The United States Supreme Court recently reaffirmed this understanding,

which flows directly from the Court’s holding in Strauder:

In the words of the Strauder Court: ‘The very fact that
colored people are singled out and expressly denied by a
statute all right to participate in the administration of the
law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to
individuals of the race that equal justice which the law
aims to secure to all others.’ For those reasons, the Court
ruled that the West Virginia statute excluding blacks from
jury service violated the Fourteenth Amendment.

Flowers, 139 S. Ct. at 2239 (cleaned up) (quoting Strauder v. West Virginia, 100 U.S.

303, 308 (1879)). On numerous other occasions the United States Supreme Court has

made clear that the equal protection rights of excluded jurors are also recognized and

can be asserted by third parties. See, e.g., Edmonson v. Leesville Concrete Co., 500

U.S. 614, 629–30 (1991) (prospective jurors have an equal protection right to be free

of race-based jury selection in civil cases as well as criminal cases); Powers v. Ohio,

499 U.S. 400, 425 (1991) (rights of excluded jurors can be invoked by one civil litigant

against another, and by a criminal defendant of a different race from that of the
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Earls, J., concurring

excluded juror).

¶ 103 In Powers, the Court explained that while an individual does not have a right

to be chosen to sit on any particular jury, they do have a right not to be excluded from

jury service because of their race. Powers, 499 U.S. at 409.

It is suggested that no particular stigma or dishonor
results if a prosecutor uses the raw fact of skin color to
determine the objectivity or qualifications of a juror. We do
not believe a victim of the classification would endorse this
view; the assumption that no stigma or dishonor attaches
contravenes accepted equal protection principles. Race
cannot be a proxy for determining juror bias or competence.
“A person’s race simply ‘is unrelated to his fitness as a
juror.’ ”

Id. at 410 (quoting Batson, 476 U.S. at 87). Thus, “[a] venireperson excluded from

jury service because of race suffers a profound personal humiliation heightened by its

public character.” Id. at 413–14. Although not evidence in the record of this case, the

following material submitted with an amicus brief in the Batson case is illustrative

of the harm to prospective jurors:

In November of 1984, a person summoned for jury service
in Brooklyn, New York, wrote a letter to the District
Attorney complaining about race discrimination in jury
selection. The person wrote that in a murder case against
a Hispanic defendant, a majority of the prospective jurors
were black, but an all-white jury was chosen, and it
appeared to the writer that black jurors were being
excluded on the basis of race. The writer asked: ‘If we
Blacks don't have common sense and don't know how to be
fair and impartial, why send these summonses to us? Why
are we subject to fines of $ 250.00 if we don't appear and
told it's our civic duty if we ask to be excused? Why bother
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Earls, J., concurring

to call us down to these courts and then overlook us like a
bunch of naive or better yet ignorant children? We could be
on our jobs or in schools trying to help ourselves instead of
in courthouse halls being made fools of.’

Underwood, Ending Race Discrimination, at 745. While it is inevitably a burden,

“with the exception of voting, for most citizens the honor and privilege of jury duty is

their most significant opportunity to participate in the democratic process.” Powers,

499 U.S. at 407. One of the principal justifications for retaining the jury system is

that it provides an opportunity for ordinary citizens “to participate in the

administration of justice.” Id. at 406 (citing Duncan v. Louisiana, 391 U.S. 145, 147-

58 (1968)). Therefore, to be excluded from that opportunity based on one’s race creates

a unique kind of irreparable harm. See also Edmonson, 500 U.S. at 628 (“If

peremptory challenges based on race were permitted, persons could be required by

summons to be put at risk of open and public discrimination as a condition of their

participation in the justice system. The injury to excluded jurors would be the direct

result of governmental delegation and participation.”)

¶ 104 Considering this harm, we should examine the parties’ arguments and decide

whether the prosecutor’s decision to use a peremptory challenge to exclude Ms.

Jeffreys was an equal protection violation. As the majority explains, on remand the

trial court found that the prosecutor had offered a race-neutral reason for excluding

Ms. Jeffreys, namely that she was previously employed as a nurse at Dorothea Dix

Hospital and therefore may be sympathetic to Mr. Clegg’s mental health issues. This
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Earls, J., concurring

is a race-neutral explanation supported by the record and satisfies the State’s burden

of production under Batson’s second step.

¶ 105 In examining whether this explanation is persuasive, under Batson’s third

step, additional facts are significant to provide context. The trial court found that

Ms. Jeffreys’s employment at Dorothea Dix Hospital was “rationally related to the

Defendant’s potential competency issues.” However, Mr. Clegg’s competency issues

had already been resolved pre-trial, as the court had already determined that he was

competent to stand trial and there was no reason to believe that the jury would hear

about or have anything to decide about his competency. Significantly, the prosecutor

did not ask any other juror if they had experience with mental health or competency

issues. See Miller-El v. Dretke, 545 U.S. 231, 246 (2005) (“[T]he State's failure to

engage in any meaningful voir dire examination on a subject the State alleges it is

concerned about is evidence suggesting that the explanation is a sham and a pretext

for discrimination[.]” (first alteration in original) (quoting Ex parte Travis, 776 So. 2d

874, 881 (Ala. 2000))). These facts alone are sufficient to demonstrate that the

prosecutor’s race-neutral explanation is pretextual.

¶ 106 However, the trial court erred in failing to acknowledge and factor into its

analysis statistics cited by Mr. Clegg on remand which showed that prior to his trial

in 2016, from 2011 to 2012, Wake County prosecutors struck Black prospective jurors

at 1.7 times the rate of white prospective jurors in all jury trials in North Carolina
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Earls, J., concurring

during that year. This information is relevant to determining whether discrimination

has occurred in this particular case. See State v. Hobbs, 374 N.C. 345, 359–60 (2020)

(trial court erred in failing to weigh historical evidence of racial discrimination in jury

selection); see also Flowers v. Mississippi, 139 S. Ct. at 2245 (“Most importantly for

present purposes, after Batson, the trial judge may still consider historical evidence

of the State’s discriminatory peremptory strikes from past trials in the jurisdiction,

just as Swain had allowed.)

¶ 107 Considering the very localized and specific statistical evidence of the racially

disparate use of peremptory challenges by prosecutors, the statewide data that was

acknowledged by the trial court, the lack of any documented reason to exclude Ms.

Jeffreys beyond a reason that appears to be pretextual, and the fact that the

prosecutor here used two of his four peremptory challenges to strike all of the Black

female prospective jurors,1 it was clearly error for the trial court to conclude that Mr.

Clegg failed to carry his burden of demonstrating racial discrimination in the

prosecutor’s use of a peremptory challenge to exclude Ms. Jeffreys from the jury. Cf.

Snyder v. Louisiana, 552 U.S. 472, 485, 478 (2008) (a trial court’s finding of

discrimination against one juror is evidence of discrimination against other jurors).

1 The State exercised four peremptory strikes: Viola Jeffreys, Gwendolyn Aubrey,
Joseph Barello, and Brian Williams. The State struck 10%–11% of eligible white jurors (2/19)
and 66% of eligible non-white jurors (2/3). All the women of color called to serve were stricken
by the State.
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Earls, J., concurring

¶ 108 The State also asserted that it excluded Ms. Jeffreys, as it did Ms. Aubrey,

because of her “body language and failure to make eye contact” without further

elaboration of what about Ms. Jeffreys’ body language explained the decision to

exclude her from the jury. The trial court concluded that this justification could not

be supported by the record because there was not “an adequate record of the body

language of the prospective juror.”

¶ 109 In addition to the inadequate record, I would follow other courts that have

found such explanations insufficient to constitute a valid, race-neutral explanation.

See, e.g., State v. Giles, 407 S.C. 14, 20–22 (2014) (explanation provided by proponent

of a peremptory challenge at second step of Batson process must be clear and

reasonably specific to be legally sufficient); Zakour v. UT Med. Grp., Inc., 215 S.W.3d

763, 775 (Tenn. 2007) (finding explanation that six prospective female jurors were

stricken because of their body language, without providing more detail, was not clear,

reasonably specific, legitimate and reasonably related to the particular case being

tried); Spencer v. State, 238 So. 3d 708, 712 (Fla. 2018) (under Florida law, second

step of Batson requires prosecutor to identify “clear and reasonably specific” race-

neutral explanation that is related to case being tried (quoting State v. Slappy, 522

So.2d 18, 22 (Fla. 1988))), cert. denied, 138 S. Ct. 2637. I would therefore hold that

that a general reference to a person’s body language without more and particularly

without documentation of such facts on the record, is not a valid race-neutral
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Earls, J., concurring

explanation of a peremptory challenge that satisfies the second step of Batson even

under the standard set by the United States Supreme Court in its decision in Purkett

v. Elem, 514 U.S. 765 (1995).

¶ 110 The Purkett Court took a very broad approach to the second step, suggesting

that virtually any race-neutral explanation, if “plausible,” is satisfactory. Purkett, 514

U.S. at 768. However, the Court has also explained that ‘seat-of-the-pants instincts’

may often be just another term for racial prejudice.” Batson, 476 U.S. at 106

(Marshall, J., concurring). The Washington Supreme Court has specifically identified

“body language” and “failing to make eye contact” as reasons for a peremptory

challenge that historically have been “associated with improper discrimination in

jury selection” and required that if any party intends to offer such a reason for a

peremptory challenge, notice must be provided to the court and the other parties “so

the behavior can be verified and addressed in a timely manner.” Wash. Gen. R. 37(i).

Moreover, “[a] lack of corroboration by the judge or opposing counsel verifying the

behavior shall invalidate the given reason for the peremptory challenge.” Id.

Therefore, I agree with the Louisiana Supreme Court and others that have held that

a general explanation, such as body language cannot be a satisfactory race-neutral

explanation because “[s]uch an all inclusive reason falls far short of an articulable

reason that enables the trial judge to assess the plausibility of the proffered reason

for striking a potential juror.” Alex v. Rayne Concrete Serv., 2005-1457 (La. 1/26/07);
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Earls, J., concurring

951 So. 2d 138, 153. Indeed, “[i]f trial courts were required to find any reason given

not based on race satisfactory, only those who admitted point-blank that they

excluded veniremen because of their race would be found in violation of the

Fourteenth Amendment’s guarantee of equal protection.” Id. at 154 (quoting State v.

Collier, 553 So. 2d 815, 821 (La. 1989)).

¶ 111 More generally, guaranteeing that juries are selected without racial bias is

important to the administration of justice not only for the rights of the litigants and

the rights of prospective jurors, but also for the legitimacy of the court system itself.

Taylor v. Louisiana, 419 U.S. 522, 530–31 (1975) (fair representation of juries is

essential to (1) guard against the exercise of “arbitrary power” and by invoking the

“commonsense judgment of the community as a hedge against the overzealous or

mistaken prosecutor,” (2) uphold “public confidence in the fairness of the criminal

justice system,” and (3) share the administration of justice which “is a phase of civic

responsibility”).

¶ 112 When racial bias infects jury selection, it is an affront to individual dignity and

removes important voices from the justice system. Writing nearly one hundred years

ago, Chief Justice Taft explained:

The jury system postulates a conscious duty of
participation in the machinery of justice . . . . One of its
greatest benefits is in the security it gives the people that
they, as jurors actual or possible, being part of the judicial
system of the country can prevent its arbitrary use or
abuse.
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Earls, J., concurring

Balzac v. Porto Rico, 258 U.S. 298, 310 (1922). More recently, when expanding Batson

to the civil context, Justice Kennedy explained why eliminating racial bias in

courtroom is fundamental:

Few places are a more real expression of the constitutional
authority of the government than a courtroom, where the
law itself unfolds. Within the courtroom, the government
invokes its laws to determine the rights of those who stand
before it. In full view of the public, litigants press their
cases, witnesses give testimony, juries render verdicts, and
judges act with the utmost care to ensure that justice is
done.

Race discrimination within the courtroom raises
serious questions as to the fairness of the proceedings
conducted there. Racial bias mars the integrity of the
judicial system and prevents the idea of democratic
government from becoming a reality.

Edmonson, 500 U.S. at 628. Just four years ago, in overturning a conviction rendered

by a jury that was found to have based its decision explicitly on the defendant’s race,

the Court again explained the significance of the jury in our legal system and our

democracy:

The jury is a central foundation of our justice system
and our democracy. Whatever its imperfections in a
particular case, the jury is a necessary check on
governmental power. The jury, over the centuries, has been
an inspired, trusted, and effective instrument for resolving
factual disputes and determining ultimate questions of
guilt or innocence in criminal cases. Over the long course
its judgments find acceptance in the community, an
acceptance essential to respect for the rule of law. The jury
is a tangible implementation of the principle that the law
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Earls, J., concurring

comes from the people.

Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 860 (2017). Given the importance of fair

jury selection processes, it is incumbent on this Court to take reasonable steps to

address the obstacles we face. We must acknowledge that this Court’s Batson

jurisprudence has not been effective. This case is the first case where we have

reversed a conviction on Batson grounds. The record is clear:

Since 1986, and as of September 6, 2016, the
Supreme Court of North Carolina has decided seventy-four
cases on the merits in which it adjudicated eighty-one
Batson claims raised by criminal defendants over alleged
racial discrimination against minority jurors in the State’s
exercise of peremptory challenges at criminal trials. To
date, that [C]ourt has not found a substantive Batson
violation in any of those cases. In seventy-one of those
seventy-four cases, that [C]ourt found no Batson error
whatsoever. In the three remaining cases, that [C]ourt held
the trial court erred at Batson’s first step in finding no
prima facie case existed and conducted or ordered further
review. However, none of these three cases has ultimately
resulted in the holding of a substantive Batson violation.

Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North

Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1961 (2016)

(footnotes omitted). Faced with a similarly stark record, the Washington Supreme

Court observed in 2013 that its experience was “rather shocking and underscores the

substantial discretion that is afforded to trial courts under Batson. And while this

alone does not prove that Batson is failing, it is highly suggestive in light of all the

other evidence that race discrimination persists in the exercise of peremptories.”
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Earls, J., concurring

State v. Saintcalle, 178 Wash. 2d 34, 46, 309 P.3d 326, 335, cert. denied, 571 U.S. 1113

(2013), and overruled in part on other grounds by Seattle v. Erickson, 188 Wash. 2d

721, 398 P.3d 1124 (2017); see also Miller-El, 545 U.S. at 268–70 (Breyer, J.,

concurring) (reviewing the body of evidence showing that Batson has done very little

to prevent prosecutors from exercising race-based challenges).

¶ 113 Justice Marshall predicted that “[m]erely allowing defendants the opportunity

to challenge the racially discriminatory use of peremptory challenges in individual

cases will not end the illegitimate use of the peremptory challenge.” Batson, 476 U.S.

at 105 (Marshall, J., concurring). In brief, and perhaps stating the obvious, the

Batson framework makes it very difficult for litigants to prove intentional

discrimination, “even where it almost certainly exists.” Erickson, 188 Wash. 2d at

735–36, 398 P.3d at 1131–32 (quoting Saintcalle, 178 Wash. 2d at 46, 309 P.3d at

335). Batson also completely fails to address peremptory strikes that occur due to

implicit or unconscious bias,2 as Marshall pointed out when referencing prosecutors’

and judges’ “conscious or unconscious” bias. Batson, 476 U.S. at 106 (Marshall, J.,

concurring). Other natural human inclinations also make it difficult for counsel to

assert that a member of the bar is acting out of purposeful discrimination3 and judges

2See, e.g., Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-
Neutral Justifications: Experimental Examination of Peremptory Use and the Batson
Challenge Procedure, 31 Law & Hum. Behav. 261, 266–67 (2007).
3 Mr. Batson had to insist that his counsel “object anyway” to the prosecutor’s use of

peremptory challenges during jury selection at his trial. Sean Rameswaram, Object Anyway,
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Earls, J., concurring

are reluctant to sustain such objections. Cf. People v. Gutierrez, 2 Cal. 5th 1150, 1183,

395 P.3d 186, 208 (2017) (Liu, J., concurring) (“[I]t is more likely than not that one or

more strikes were improperly motivated. But I do not think the finding of a violation

should brand the prosecutor a liar or a bigot. Such loaded terms obscure the systemic

values that the constitutional prohibition on racial discrimination in jury selection is

designed to serve.”).

¶ 114 Appellate judges are similarly uncomfortable overturning jury verdicts,

especially when the crimes charged are extremely serious. The fact that the first time

this Court has ever vacated a conviction on Batson grounds occurs here where Mr.

Clegg has already completely served his time is indicative of why the Batson

framework has failed to adequately address the constitutional violation

acknowledged by the United States Supreme Court in Strauder v. West Virginia, 100

U.S. 303, 310 (1880).

¶ 115 Indeed, in 1986 Justice Marshall stated that “[t]he decision today will not end

the racial discrimination that peremptories inject into the jury-selection process.

That goal can be accomplished only by eliminating peremptory challenges entirely.”

Batson, 476 U.S. at 102–03 (Marshall, J., concurring). The Arizona Supreme Court

has taken this observation seriously and, by general rule, has eliminated the use of

More Perfect Podcast (July 16, 2016), interview of James Batson,
https://www.wnycstudios.org/podcasts/radiolabmoreperfect/episodes/object-anyway.
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Earls, J., concurring

peremptory challenges in civil and criminal trials. See Order Amending Rules 18.4

and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil

Procedure, Ariz. Sup. Ct. No. R-21-0020 (Aug. 30, 2021). Washington State’s General

Rule 37, adopted by the Washington Supreme Court in 2018, establishes a new

standard and identifies presumptively invalid reasons for peremptory challenges that

have been associated with improper discrimination in the past. Wash. Gen. R. 37(i);

see also State v. Jefferson, 192 Wash. 2d 225, 242, 429 P.3d 467, 476 (2018)

(identifying Batson’s deficiencies and asserting the court’s “inherent authority to

adopt such procedures to further the administration of justice”). The Connecticut

Supreme Court established a jury selection task force to review the problems with

Batson that it carefully outlined in its opinion in State v. Holmes, 334 Conn. 202, 221

A.3d 407 (2019), and to propose necessary solutions. See Holmes, 334 Conn. at 250,

221 A.3d at 436–37.

¶ 116 Social science research indicates that

compared to diverse juries, all white juries tend to spend
less time deliberating, make more errors, and consider
fewer perspectives. In contrast, diverse juries were
significantly more able to assess reliability and credibility,
avoid presumptions of guilt, and fairly judge a criminally
accused. By every deliberation measure heterogeneous
groups outperformed homogeneous groups. These studies
confirm what seems obvious from reflection: more diverse
juries result in fairer trials.
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Earls, J., concurring

Id. at 235 (cleaned up) (quoting Saintcalle, 178 Wash. 2d at 50, 309 P.3d at 337).4 As

in other jurisdictions, “this appeal presents us with an occasion to consider whether

further action on our part is necessary to promote public confidence in the perception

of our state’s judicial system with respect to fairness to both litigants and their fellow

citizens.” Id. at 236. If we are to give more than lip service to the principle of equal

justice under the law, we should not bury our heads in the sand and pretend that

thirty-five years of experience with Batson will magically change. There are a variety

of tools at our disposal, we urgently need to use them.

4 See, e.g., Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know
About Race and Juries? A Review of Social Science Theory and Research, 78 Chi.-Kent L. Rev.
997 (2003); Samuel R. Sommers, Determinants and Consequences of Jury Racial Diversity:
Empirical Findings, Implications, and Directions for Future Research, 2 Soc. Issues & Pol’y
Rev., no. 1, 2008, at 65–102; Samuel R. Sommers, On Racial Diversity and Group Decision
Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. of
Personality & Soc. Psych., no. 4, 2006, at 597–612.
 Justice BERGER dissenting.

¶ 117 “[T]he back and forth of a Batson hearing can be hurried, and prosecutors can

make mistakes when providing explanations [for the use of peremptory challenges].

That is entirely understandable, and mistaken explanations should not be confused

with racial discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228, 2250, 204 L. Ed.

2d 638, 663 (2019) (emphasis added). This is plainly apparent because “Batson

prohibits purposeful discrimination, not honest, unintentional mistakes.” Aleman v.

Uribe, 723 F.3d 976, 982 (9th Cir. 2013).

¶ 118 Trial court judges are uniquely positioned to consider and evaluate whether

peremptory strikes are the product of purposeful discrimination. The Supreme Court

has “recognized that these determinations of credibility and demeanor lie peculiarly

within a trial judge’s province.” Flowers, 139 S. Ct. at 2244, 204 L. Ed. 2d at 656

(quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208 (2008)).

Because “the trial judge’s findings in the context under consideration here largely

will turn on evaluation of credibility, a reviewing court ordinarily should give those

findings great deference.” Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S. Ct. 1712,

1724 n.21 (1986).

¶ 119 Consistent with precedent, the trial court evaluated the explanations provided

by the prosecutor for the strikes of Ms. Viola Jeffreys and Ms. Gwendolyn Aubrey.

Based upon the entire record, the trial court determined that the mistaken
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Berger, J., dissenting

explanation provided was indeed “an instance of a prosecutor misremembering,” not

purposeful discrimination. The majority agrees that the explanation provided by the

prosecutor was a mistake, yet reaches its desired result by distorting precedent, and

mischaracterizing the record and the trial court order.

¶ 120 The question presented by this case is whether a mistaken explanation offered

by an attorney during step two of a Batson inquiry is sufficient for the opponent of a

peremptory strike to demonstrate purposeful racial discrimination. The mistaken

explanation provided by the prosecutor cannot, by definition, be purposeful

discrimination.

¶ 121 Because the trial court’s order should be affirmed, I respectfully dissent.

I. Factual Background

¶ 122 There is no question in this case as to defendant’s guilt.1 It is uncontroverted

that on January 25, 2014, defendant robbed a Wake County business at gun point.

Defendant threatened to kill the employee, a black female, and he pointed a firearm

at her stomach. After only receiving $85 from the cash register, defendant pressed

the firearm against the employee’s neck. Defendant then noticed a safe, and he

pointed the firearm at the employee’s left temple and ordered her to open it.

Defendant fled the scene when the employee did not have the combination to the safe.

1 The only two arguments made by defendant in the Court of Appeals concerned the
Batson argument at issue here, and his contention that the victim-impact testimony was not
relevant.
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Berger, J., dissenting

¶ 123 Defendant was tried and convicted of robbery with a dangerous weapon.

During jury selection, defendant objected to use of peremptory challenges by the

prosecutor against two black females, Ms. Viola Jeffreys and Ms. Gwendolyn Aubrey.

The prosecutor struck Ms. Jeffreys due to her work history with Dorothea Dix

Hospital. When the prosecutor explained his strike of Ms. Aubrey, the prosecutor

provided a mistaken explanation. The prosecutor said that “when I asked her if she

could be fair and impartial, her answer was ‘I suppose.’ I wasn’t confident that she

was confident that she could be fair and impartial.” The problem, however, is that

Ms. Aubrey was not asked if she could be fair and impartial; instead, Ms. Aubrey

answered “I suppose” when responding to a question concerning her ability to focus

during the trial.

II. Analysis

¶ 124 Peremptory challenges “are challenges which may be made or omitted

according to the judgment, will, or caprice of the party entitled thereto[.]” State v.

Smith, 291 N.C. 505, 526, 231 S.E.2d 663, 676 (1977). “The essential nature of the

peremptory challenge denotes that it is a challenge exercised without a reason stated,

without inquiry and without being subject to the court’s control.” Id. Peremptory

challenges “permit rejection for a real or imagined partiality,” id., subject to the

limitations set forth in the Batson line of cases.
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Berger, J., dissenting

¶ 125 Under Batson, “[o]nce the opponent of a peremptory challenge has made out a

prima facie case of racial discrimination (step one), the burden of production shifts to

the proponent of the strike to come forward with a race-neutral explanation (step

two).” Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770–71 (1995). “The

ultimate inquiry is whether the State was ‘motivated in substantial part by

discriminatory intent.’ ” State v. Hobbs, 374 N.C. 345, 353, 841 S.E.2d 492, 499 (2020)

(quoting Foster v. Chatman, 578 U.S. 488, 513, 136 S. Ct. 1737, 1754 (2016)).

¶ 126 It is in step three of the Batson analysis that the trial court determines

whether purposeful discrimination was the motivation for the peremptory strike.

Flowers, 139 S. Ct. at 2241, 204 L. Ed. 2d at 655. “It is the honesty of the prosecutor’s

explanation—and that alone—which a trial judge must assess at the third step of

the Batson analysis.” Lamon v. Boatwright, 467 F.3d 1097, 1102 (7th Cir. 2006).

¶ 127 “As in any equal protection case, the ‘burden is, of course,’ on the defendant

who alleges discriminatory selection of the venire ‘to prove the existence of purposeful

discrimination.’ ” Batson, 476 U.S. at 93, 106 S. Ct. at 1721 (quoting Whitus v.

Georgia, 385 U.S. 545, 550, 87 S. Ct. 643, 646–47 (1967)). The burden of proof “rests

with, and never shifts from, the opponent of the strike.” Johnson v. California, 545

U.S. 162, 171, 125 S. Ct. 2410, 2417 (2005) (quoting Purkett, 514 U.S. at 768, 115 S.

Ct. at 1769 (per curiam)).
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Berger, J., dissenting

¶ 128 A “trial judge’s assessment of the prosecutor’s credibility is often important.”

Flowers, 139 S. Ct. at 2243–44, 204 L. Ed. 2d at 656. The Supreme Court has

“recognized that these determinations of credibility and demeanor lie peculiarly

within a trial judge’s province.” Id. at 2244, 204 L. Ed. 2d at 656 (quoting Snyder,

552 U.S. at 477, 128 S. Ct. at 1208). “On appeal, a trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly erroneous.” Snyder, 552

U.S. at 479, 128 S. Ct. 1203; accord State v. Lawrence, 352 N.C. 1, 14, 530 S.E.2d 807,

816 (2000). This Court has stated that “where there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be clearly erroneous.” State v.

Thomas, 329 N.C. 423, 433, 407 S.E.2d 141, 148 (1991) (quoting Anderson v. Bessemer

City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985)); see also

Hobbs, 374 N.C. at 366–67, 841 S.E.2d at 508 (Newby, J., dissenting).

¶ 129 Because “the trial judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, a reviewing court ordinarily should give

those findings great deference.” Batson, 476 U.S. at 98 n.21, 106 S. Ct. 1712 n.21; see

also Flowers, 139 S. Ct. at 2244, 204 L. Ed. 2d at 656 (“The [Supreme] Court has

described the appellate standard of review of the trial court’s factual determinations

in a Batson hearing as highly deferential.) (cleaned up); Foster, 578 U.S. at 500, 136

S. Ct. at 1747 (the third step “turns on factual determinations, and, in the absence of

exceptional circumstances, we defer to state court factual findings unless we conclude
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Berger, J., dissenting

that they are clearly erroneous.”) (cleaned up); Hernandez v. New York, 500 U.S. 352,

364, 368 111 S. Ct. 1859, 1868–69, 1871 (1991) (discussing the Supreme Court’s

“respect for factual findings made by state courts” and the “deference to state-court

factual determinations, in particular on issues of credibility.”); and Lawrence, 352

N.C. at 14, 530 S.E.2d at 816 (because the third Batson step “is essentially a question

of fact, the trial court’s decision as to whether the prosecutor had a discriminatory

intent is to be given great deference[.]”).

A. Viola Jeffreys

¶ 130 Again, the two prospective jurors at issue here are Ms. Viola Jeffreys and Ms.

Gwendolyn Aubrey. Ms. Jeffreys was struck due to her work history with Dorothea

Dix Hospital. The relevant portions of the transcript are set forth below.2

THE COURT: Ms. Jeffreys, can you tell us
about yourself, ma’am?

[Ms. Jeffreys]: I live on [REDACTED].

....

THE COURT: And do you work, employed,
either at home or outside the home?

[Ms. Jeffreys]: No, retired.

THE COURT: What type of work did you do
before you retired?

2The trial court initially questioned prospective jurors before allowing the parties to
engage in voir dire.
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Berger, J., dissenting

[Ms. Jeffreys]: I was a nurse aide at Dorothea
Dix.

....

[The State]: Ms. Jeffreys, I’m going to call
you out. I wanted to ask you about your work as a
nurse’s aide, is that right, at Dorothea Dix?

[Ms. Jeffreys]: Dorothea Dix, yes.

[The State]: How long did you do that?

[Ms. Jeffreys]: 14 years.

[The State]: And when did you stop working
there?

[Ms. Jeffreys]: I stopped there about seven
months ago.

[The State]: You stopped working there
about seven months ago?

[Ms. Jeffreys]: It had been about two years. I’m
sorry. About two years.

[The State]: About two years ago was when
you stopped working at Dorothea Dix? And I guess I
kind of know what a nurse’s aide does, but can you
elaborate a little bit?

[Ms. Jeffreys]: They care of the patient. We give
them baths and make sure they take medicine, stuff
like that.

[The State]: What type of ailments and –

[Ms. Jeffreys]: Mostly diabetes. . . . Patients
that have diabetes or something like that.
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Berger, J., dissenting

¶ 131 It is uncontroverted that defendant argued pretrial motions related to his

mental health issues. During voir dire, the prosecutor explained that he struck Ms.

Jeffreys because of “the underlying issues that have been brought out so far, I found

that maybe she would not be able to fairly assess the evidence in this case.” On

remand, the prosecutor provided the same basis for use of the peremptory challenge—

that based on mental health issues put forth by defendant, Ms. Jeffreys may be

sympathetic to defendant’s case because of her work history at a mental health

institution.

¶ 132 The trial court found that the prosecutor had provided a race-neutral reason

for striking Ms. Jeffreys “based upon [her] employment history as a nurse’s aide at

Dorothea Dix Hospital.” The trial court further found that “[d]efendant’s competency

had been called into question and evaluations ordered [, and] the State’s stated basis

for striking Ms. Jeffreys due to her work history in the mental health field is

rationally related to [d]efendant’s potential competency issues.” Finally, the trial

court found that the reason for striking Ms. Jeffreys was “supported by the record

and constitutes an appropriate justification for the strike.”

¶ 133 The prosecutor’s questions of Ms. Jeffreys were focused on her work at

Dorothea Dix, which was a state-operated psychiatric hospital. Ms. Jeffreys was the

only prospective juror who indicated she worked or had worked in a mental health

facility.
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Berger, J., dissenting

¶ 134 In overruling defendant’s Batson challenge as it relates to Ms. Jeffreys, the

trial court concluded as a matter of law that defendant “had not established that it is

more likely than not that the State engaged in purposeful discrimination[.]” The trial

court’s determination as to Ms. Jeffreys was not clearly erroneous and should be

affirmed.

¶ 135 The majority mentions Ms. Jeffreys more than thirty times in its opinion, but

they do not analyze or even consider the legitimate reasons for her strike because

doing so destroys their narrative. To be clear, there is no determination by the

majority that the prosecutor’s strike of Ms. Jeffreys was motivated by race. However,

the majority uses carefully selected portions of the record, including Ms. Jeffreys’s

demographic information, to lump her in with the discussion of Ms. Aubrey, implying

that both strikes were based on race. While the cherry-picked facts and

circumstances may be helpful to their desired result, analysis of Ms. Jeffreys’ strike

is required for a proper review. See Flowers, 139 S. Ct. at 2251, 204 L. Ed. 2d at 664

(in a Batson analysis, an appellate court is to review “all of the relevant facts and

circumstances taken together.”); see also State v. Bennett, 374 N.C. 579, 339 (2005)

(“clear error” review is based “on the entire evidence.”).3 The majority’s failure to

3The majority actually quotes this portion of Bennett in its analysis, yet declines to
analyze the strike of Ms. Jeffreys.
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Berger, J., dissenting

include an intellectually honest analysis of Ms. Jeffreys’ strike demonstrates just one

reason why the opinion is jurisprudentially suspect.

B. Gwendolyn Aubrey

¶ 136 Similarly, defendant has failed to demonstrate purposeful discrimination in

the use of a peremptory challenge for prospective juror Ms. Gwendolyn Aubrey. When

the prosecutor explained his strike of Ms. Aubrey, the prosecutor provided a mistaken

explanation. The prosecutor said that “when I asked her if she could be fair and

impartial, her answer was ‘I suppose.’ ” I wasn’t confident that she was confident

that she could be fair and impartial.” The voir dire of Ms. Aubrey is set forth below.4

THE COURT: Ms. Aubrey, can you tell us a
little bit about yourself, ma’am?

[Ms. Aubrey]: I live in south Raleigh. I work in
the food service industry. I’ve not served on a jury
before.

THE COURT: Married? Single?

[Ms. Aubrey]: Single.

....

THE COURT: And anything going on in your
life that would make it difficult or impossible for you
to serve?

[Ms. Aubrey]: Other than missing work, no.

4 As with Ms. Jeffreys, the trial court initially questioned prospective jurors before
allowing the parties to engage in voir dire.
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Berger, J., dissenting

THE COURT: Missing work. Yes, ma’am. You
work daytime?

[Ms. Aubrey]: Day and night.

THE COURT: Yes, ma’am. All right. There will
be more questions about that, I’m sure, but thank
you for bringing that concern to our attention.

....

[The State]: As far as the new potential
jurors, any of you ever been the victim of a crime
before? Friends or family ever been the victim of any
crime? . . .

[Ms. Aubrey]: I had my car broken into once.

[The State]: And you said you did or
somebody—

[Ms. Aubrey]: I did.

[The State]: Can you say when that was?

[Ms. Aubrey]: I don’t know. Maybe like late
‘90s.

[The State]: Okay. Did you have any of your
belongings taken from you?

[Ms. Aubrey]: Yes, sir, I did.

[The State]: Do you know if anybody was
charged?

[Ms. Aubrey]: No.

[The State]: Did you ever get any of your
belongings back?
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Berger, J., dissenting

[Ms. Aubrey]: No.

[The State]: Was it reported to law
enforcement?

[Ms. Aubrey]: No, sir, it wasn’t.

[The State]: It was not reported? Okay.

....

[The State]: Can you tell me just a little bit
about how you’re familiar with firearms?

[Ms. Aubrey]: I had an ex-boyfriend who was a
gun enthusiast and taught me how to shoot a gun.

[The State]: Do you own any firearms now?

[Ms. Aubrey]: No, sir.

[The State]: Do you ever shoot or handle
weapons, firearms, now?

[Ms. Aubrey]: No, sir.

....

[The State]: Okay. And Judge Ridgeway
asked you about things going on in your life, and I
just want to kind of follow up on that. We all have
our normal responsibilities in life. Is there anything
going on in your personal life—and I don’t need to
know specifically—you know, that would maybe
take you away mentally from being engaged in
what’s going on here in the courtroom? Again, I don’t
need to know specifics, but, you know, is there a
possibility that your mind could drift somewhere
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Berger, J., dissenting

else when we need you to be focusing on the
proceedings here?

....

[The State]: Okay. Ms. Aubrey, do you feel
confident you can focus on what’s going on here?

[Ms. Aubrey]: I suppose.

[The State]: I want you to be confident about
it. You just don’t want to be a juror or do you feel like
if you were here, you could focus and do what we
need you to do?

[Ms. Aubrey]: I think so.

[The State]: Okay. Thank you.

¶ 137 The State then excused Ms. Aubrey from the panel. Defense counsel objected

to the use of peremptory challenges against Ms. Jeffreys and Ms. Aubrey, stating,

“[t]he only distinction I see is color.”

¶ 138 The prosecutor then argued to the trial court:

Judge, what I would tell you, first of all, I want to note that
I think it’s very offensive that there’s an allegation being
made that I’m excusing jurors for racial reasons. What I
can tell you is that both the potential jurors in Seat No. 5,
body language to me, they would not look at me. The most
recent juror, Ms. Jeffreys—excuse me. Ms. Jeffreys was the
first juror. The most recent juror, when I asked her if she
could be fair and impartial, her answer was “I suppose.” I
wasn’t confident that she was confident that she could be
fair and impartial. The first juror, Ms. Jeffreys, talked
about her experience as a nurse’s aide with Dorothea Dix.
With some of the underlying issues that have been brought
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Berger, J., dissenting

out so far, I found that maybe she would not be able to
fairly assess the evidence in this case.
As Ms. Darrow pointed out, there’s been an equal
number of white jurors and African-American jurors that
have been excused. Based on their answers, based on their
body language, based on their failure to look at me when I
was trying to communicate with them, and also based on
their answers with respect to the last juror, her not being
confident that she could be fair and impartial, frankly, I
think that would be potential reason to challenge her for
cause.
Other than that, Judge, that’s how the State is
viewing the excusal of those jurors.

¶ 139 At trial, the objection lodged by defense counsel was overruled. Upon remand,

the trial court found that “[i]t is evident from the record that both the trial court and

the prosecutor’s memory of the answers given by Ms. Aubrey [were] conflated.” The

trial court further found that

[i]n retrospect, had the prosecutor, in offering his race-
neutral basis for exercising the strike of Ms. Aubrey, stated
that he was concerned that she had answered “I suppose”
to the question of whether she could focus, when coupled
with her concern that she worked “day and night” and
would miss work, that, in the Court’s view, would have
constituted a neutral justification for the strike.

¶ 140 In other words, the prosecutor and the trial court were mistaken about the

question posed by the State and the response given by Ms. Aubrey, and that but for

the mistaken explanation, the record revealed that there was a race-neutral

explanation for the strike of Ms. Aubrey. This portion of the trial court’s order is far

different from what the majority characterizes as the trial court “rejecting the ‘I
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Berger, J., dissenting

suppose’ rationale.” Nonetheless, the trial court, citing Miller-El v. Dretke, 545 U.S.

231, 125 S. Ct. 2317 (2002), determined that it could not consider the incorrectly

stated, but plainly apparent, reason for striking Ms. Aubrey.

¶ 141 The trial court then analyzed other reasons proffered by the prosecutor for the

strike, including body language and lack of eye contact by Ms. Aubrey, purported

disparities in use of peremptory challenges,5 and a comparison of the questions posed

to white and black prospective jurors.6 As to body language and lack of eye contact,

the trial court made no findings of fact during the original trial. Citing Snyder v.

Louisiana, 552 US 472 (2008), the trial court determined that in the absence of a

finding of fact on a prospective juror’s demeanor, the State’s race-neutral explanation

for striking Ms. Aubrey had to fail.

5 The trial court also referenced a study of peremptory challenges in capital trials from
1990 to 2010 and non-capital cases from 2011–2012 in paragraphs 18 and 22. One could
argue that this data is stale. Both of these studies are more than ten years old, and,
presumably, some of the data used in the capital case study is more than thirty years old.
Certainly, North Carolina’s people, population, and attitudes have changed over the last
thirty years. The majority seemingly acknowledges this point in footnote 9. Perhaps it is
time for an updated, independent study of jury selection commissioned by the Administrative
Office of the Courts.
6 It seems obvious, but jury selection typically involves general questioning of

prospective jurors to probe basic information. Based on responses, individual prospective
jurors may, not shall, receive follow-up questions. The majority focuses on disparate
questioning in its findings. However, “disparate questioning or investigation alone does not
constitute a Batson violation.” Flowers v. Mississippi, 139 S. Ct. 2228, 2248, 204 L. Ed. 2d
638, 661 (2019). The proper standard is “dramatically disparate questioning” id., which is
not present here.
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Berger, J., dissenting

¶ 142 While the trial court may have taken the holding in Miller-El too literally when

it determined that it could not consider the mistaken explanation provided by the

prosecutor, the trial court’s ultimate conclusion was correct. The trial court clearly

set forth its reasoning, making the types of credibility determinations contemplated

by the Supreme Court of the United States and by this Court, and the trial court’s

decision is entitled to great deference.

¶ 143 The majority acknowledges what is plainly apparent from the record and the

trial court’s order - that the prosecutor’s explanation for the strike of Ms. Aubrey was

a “mistake.” If “Batson and its progeny direct trial judges to assess the honesty-not

the accuracy-of a proffered race-neutral explanation,” Lamon, 467 F.3d at

1101(emphasis in original), and the majority acknowledges this was a mistake, the

strike cannot be the result of purposeful discrimination. See Bethea v.

Commonwealth, 297 Va. 730, 754, 831 S.E.2d 670, 682 (2019) (a “prosecutor’s race-

neutral reason cannot at the same time be both an unintentional mistake and a

pretextual, purposeful misrepresentation.”).

¶ 144 Defendant has not shown purposeful discrimination or bad faith in the

prosecutor’s mistaken explanation; it is only theorized by the majority. Yet, the

majority finds the prosecutor’s mistaken explanations here were “shifting” and

“plainly unsupported by the record.” The majority then erroneously postulates that

because the race-neutral explanations failed, the only remaining evidence must be
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Berger, J., dissenting

given weight and that it must be assigned to defendant. It is the factfinder that

assigns weight to evidence, and the factfinder can assign as much or as little weight

as it determines appropriate. That is not a higher burden.

¶ 145 Moreover, the majority’s disparate questioning analysis is internally

inconsistent. The majority here expressly recognizes that there is an explanation for

the prosecutor’s questioning of Mr. Williams that “is not completely without merit.”

Indeed, the trial court found that the side-by-side comparison between Mr. Williams

and Ms. Aubrey was not “particularly pertinent” as Mr. Williams had previously

mentioned he could juggle things around while Ms. Aubrey “did not indicate any

flexibility in her ‘day and night’ work schedule that might ease her concern about

missing work.” This should be dispositive as to any further analysis given the well-

established deferential standard of review that this Court is required to apply. But,

the majority again impermissibly speculates and draws its own inferences from the

cold record rather than deferring to the findings of the trial court. In so doing, the

majority encroaches on the authority vested in the trial court.

¶ 146 To be sure, “[e]qual justice under law requires a criminal trial free of racial

discrimination in the jury selection process.” Flowers, 139 S. Ct. at 2242, 204 L. Ed.

2d at 655. But this Court is not equipped, nor is it our role, to find facts and weigh

evidence. Even if one were to assume this is a close case, which it is not, “where there

are two permissible views of the evidence, the fact-finder’s choice between them
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Berger, J., dissenting

cannot be clearly erroneous.” State v. Thomas, 329 N.C. 423, 433, 407 S.E.2d 141,

148 (1991) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504,

1511, 84 L.Ed.2d 518, 528 (1985)); see also Hobbs, 374 N.C. at 366–67, 841 S.E.2d at

508 (Newby, J., dissenting).

III. Conclusion

¶ 147 From its unique position, the trial court observed the strikes of Ms. Jeffreys

and Ms. Aubrey and heard the explanations for the strikes offered by the State. In a

comprehensive order, the trial court made detailed findings of fact and conclusions of

law, ultimately overruling defendant’s objections to the peremptory strikes. The

majority, however, declines to give the trial court any measure of deference, adopting

its own view of the evidence. In so doing, the majority ignores the caution advised by

the Supreme Court that “mistaken explanations should not be confused with racial

discrimination.” Flowers, 139 S. Ct. at 2250, 204 L. Ed. 2d at 663.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.