Opinion
No. 946SC354
Filed 6 June 1995
Jury §§ 255, 259 (NCI4th) — Batson hearing — prosecutor on witness stand — justification of peremptory challenge There was no error where a prosecution for conspiracy to traffick in cocaine had been remanded for a Batson hearing because the prosecutor had peremptorily challenged juror Beverly Askew, a black woman, after asking the clerk prior to his examination of Ms. Askew whether there was a white male in the venire; the prosecutor on remand took the witness stand and offered his explanation in a question and answer format without being sworn and without being subject to cross-examination; the explanation was that a deputy had told the prosecutor that Ms. Askew did not appear to be a leader, that she lived with people connected with drugs, and that the white male remaining in the pool would make a good leader; and the court found that the prosecutor's explanation was race neutral. Defendant waived his right to argue the issue that the trial court erred by allowing the prosecutor to testify without first being sworn by failing to object after the prosecutor took the stand; under State v. Jackson, 322 N.C. 251, defendant had no right to cross-examine the prosecutor; and the prosecutor's proffered explanations for exercising the peremptory strike were not merely pretextual.
Am Jur 2d, Jury § 244.
Use of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.
Appeal by defendant from judgment entered 12 July 1990 by Judge Orlando Hudson in Hertford County Superior Court. Heard in the Court of Appeals 23 January 1995.
Attorney General Michael F. Easley, by Assistant Attorney General Debra C. Graves, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Charles L. Alston, Jr., and Assistant Appellate Defender Benjamin Sendor, for defendant appellant.
Judge MARTIN concurs in the result only with a separate opinion.
Judge JOHNSON dissents.
Defendant was convicted of two counts of conspiracy to traffick in cocaine on 12 July 1990. During jury selection, defendants objected twice under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986). The first objection occurred immediately after the clerk called juror Beverly Askew. At that time the prosecutor asked the clerk if there was a white male out there, there being the venire. The second objection occurred after the prosecutor questioned and excused Askew. Each time the court determined that a prima facie showing of a Batson violation had not been made.
On appeal, we stated that "[s]tanding alone, the prosecutor's peremptory challenge of Askew would not amount to a prima facie showing of purposeful discrimination." State v. Hall, 104 N.C. App. 375, 383, 410 S.E.2d 76, 81 (1991). We concluded, however, that "[t]he prosecutor's question of the clerk prior to his examination of Askew . . . is a relevant circumstance which, when combined with the prosecutor's subsequent peremptory challenge of Askew, a black woman, raises an inference of purposeful discrimination on the prosecutor's part thereby establishing a prima facie showing." Id. (emphasis in original). We remanded for an evidentiary hearing to determine whether the prosecutor's explanation for his peremptory challenge of Askew was race-neutral.
On remand, Judge Hudson, who had presided over defendant's trial, presided over the Batson hearing. Debra Graves from the North Carolina Department of Justice represented the State. Before the State offered the prosecutor's explanation, the following colloquy took place:
[MS. GRAVES]: So what we'd like to do is go ahead and . . . put Mr. Beard [the prosecutor] on the witness stand to state his explanation for the remark and his explanation for the excusal of Ms. Askew.
THE COURT: All right. And the parameters will be what, as far as what defense counsel can ask, if anything, first of all?
MS. GRAVES: Well, I don't believe that his attorney has any right to cross-examine the prosecutor.
THE COURT: Well, I don't either, that's why I asked you.
MS. GRAVES: North Carolina law does not permit that and we would not agree to it.
. . .
MR. WARMACK: . . . [w]hat I'm saying is in relation to the court's addressing the issue of my being able to cross-examine the district attorney, as to not what he said at that point in time, but presumably now he is going to take the stand and testify as to his reasons for excusing Ms. Askew.
THE COURT: Yeah.
MR. WARMACK: My position is that we would be entitled to cross-examine him because he is taking the witness stand as a witness under oath, not just standing up in front of the court saying this is why I did what I did.
THE COURT: I understand but I don't think that's a determining factor. The bottom line on it is some states let you do it, North Carolina is not one of those states. . . .
After more discussion, the prosecutor took the witness stand and offered his explanation in a question and answer format. He was not sworn, nor was he subjected to cross-examination.
The trial court found that the prosecutor's explanation was race-neutral. Defendant then offered the testimony of Luther Culpepper, a summer associate, and Rob Lewis and Larry Overton, attorneys at the original trial. The trial court found that the prosecutor's excusal of Askew was a legitimate use of a peremptory challenge and concluded defendant had not carried his burden of showing that the State's explanations were pretextual. Defendant appeals.
Defendant contends the trial court erred by allowing the prosecutor to testify without first being sworn. Defendant waived his right to argue this issue, having failed to object after the prosecutor took the stand without being sworn. State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984) (holding that the failure to object at the appropriate time is fatal to defendant's argument). Defendant also contends that the trial court erred in refusing to allow him to cross-examine the prosecutor. But defendant had no right to cross-examine the prosecutor. In State v. Jackson, our Supreme Court held unequivocally that "a defendant who makes a Batson challenge does not have the right to examine the prosecuting attorney. . . . The presiding judges are capable of passing on the credibility of the prosecuting attorneys without the benefit of cross-examination." State v. Jackson, 322 N.C. 251, 258, 368 S.E.2d 838, 842 (1988), cert. denied, 490 U.S. 1110, 104 L.Ed.2d 1027 (1989). The Court added "[w]e know of no reason why the defendant should be allowed to examine a prosecuting attorney at a post trial hearing if he could not do so at trial." Id; see also State v. Green, 324 N.C. 238, 376 S.E.2d 727 (1989); State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990).
Defendant relies on the fact that the prosecutor was positioned on the witness stand rather than counsel's table, and that he tendered his explanation in a question and answer format to distinguish Jackson. These facts do not change Jackson's clear holding, nor alter the reasoning behind that holding.
In Hall we determined that defendant met his burden of establishing a prima facie showing under Batson, and remanded for a Batson hearing to "determine whether the prosecutor's explanation for his peremptory challenge of Askew was race-neutral." Hall, 104 N.C. App. 375, 384, 410 S.E.2d 76, 81. At the time, the only "explanation" offered by the prosecutor came before he even questioned Askew. After excusing Askew, when defendant moved again under Batson, the prosecutor was not asked for, nor did he give, an explanation for excusing her. On remand he explained her excusal for the first time and, in doing so, restated and elaborated on his explanation for asking the clerk whether there was a white man out there.
The trial court did not err in accepting additional explanations. The prosecutor in this case has been accused of using a peremptory challenge in a racially discriminatory manner. He should not be prevented from explaining why he excused Askew and more fully explaining his statements in general. His additional explanations do not reveal that his proffered explanations were merely pretextual.
In determining whether the prosecutor's explanations are legitimate or a merely pretextual, the following is instructive:
The State must rebut with a "`clear and reasonably specific' explanation `related to the particular case to be tried.'" This explanation need not rise to the level required to justify exercising a challenge for cause. . . . [J]ury selection is "more art than science," and "[s]o long as the motive does not appear to be racial discrimination, the prosecutor may exercise peremptory challenges on the basis of `legitimate "hunches" and past experience.'"
We have held that it is permissible for the district attorney to explain to the court prior to jury selection that he "wanted a jury that was `stable, conservative, mature, government oriented, sympathetic to the plight of the victim, and sympathetic to law enforcement crime solving problems and pressures.'" We have also held that the ultimate racial makeup of the jury is relevant but not dispositive. Finally, . . . we have held that the State may rebut a charge of discrimination with evidence that the State accepted black jurors, that the State did not use all of its peremptory challenges, or that the early pattern of strikes does not indicate discriminatory intent.
State v. Smith, 328 N.C. 99, 124, 400 S.E.2d 712, 726 (1991) (citations omitted).
The prosecutor testified that Deputy Cowan told him that Askew did not appear to be a leader, and that she lived with people connected with drugs. Deputy Cowan also told the prosecutor that the white man remaining in the pool would make a good leader. The prosecutor explained that when Askew was called, his statement "was there a white man out there" was his attempt to distinguish the individuals remaining in the pool.
It seems obvious that the prosecutor had determined that he wanted the man whom Deputy Cowan had told him would make a good leader, and that he excused Askew, in reliance upon Deputy Cowan, in order to reach that man. Choosing the juror whom Deputy Cowan had indicated would make a good leader does not equate with discriminating against Askew on the basis of race. Judge Hudson failed to see or hear anything racial or pretextual in the prosecutor's statements, and deference should be given to Judge Hudson's ruling.
We can only read the record and, of course, the written word must stand on its own. But the trial judge is present for the full sensual effect of the spoken word, with the nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words.
The trial judge's findings, therefore, which turn in large part on the credibility of the witnesses, must be given great deference by this Court. Porter, 326 N.C. 489, 391 S.E.2d 144. "Because the trial court [is] in the best position to assess the prosecutor's credibility, we will not overturn its determination absent clear error." State v. Williams, 339 N.C. 1, 17, 452 S.E.2d 245, 255 (1994). Under the standard articulated above, we see no clear error.
In addition, there is nothing inherently suspect in the prosecutor's statement that he relied on advice from Deputy Cowan in deciding to strike Askew. Prosecutors frequently rely on investigators and others familiar with members of the venire in conducting jury selection. See State v. Martin, 105 N.C. App. 182, 412 S.E.2d 134, appeal dismissed and disc. review denied, 331 N.C. 556, 418 S.E.2d 670 (1992) (prosecutor excused one juror because investigator did not like that the juror had never held a professional position and another, in part, because investigator did not like his body language and demeanor); State v. McNeil, 99 N.C. App. 235, 393 S.E.2d 123 (1990) (juror excused because veteran detective did not feel comfortable with him). The prosecutor was not required to test the accuracy of Cowan's advice by questioning Askew, nor was his failure to question her along those lines evidence that his explanations were merely pretextual. In fact, the man whom Deputy Cowan said would make a good leader was elected foreman by the jury.
Clearly the panel, as ultimately composed, is not indicative of discriminatory intent on the prosecutor's part to exclude black jurors. See Porter, 326 N.C. 489, 391 S.E.2d 144. When Askew was called to the box, eleven jurors already had been seated, eight of whom were black. The empaneled jury consisted of eight black jurors, four white jurors and three black alternates, which strongly belies any suggestion of discriminatory intent on the prosecutor's part.
How plausible is it that the prosecutor would use racially discriminatory tactics to exclude blacks where not only defendant, but Judge Hudson, Deputy Cowan, and two of the State's key witnesses were also black? If we may reason from inference, it was most unlikely. Common sense irresistibly indicates that it was not in this prosecutor's best interest to use discriminatory practices. See Williams, 339 N.C. 1, 17-18, 452 S.E.2d 245, 255 (stating "[t]hat a black witness played such a key role in defendant's prosecution substantially undercuts any incentive on the prosecutor's part to remove blacks on the basis of their race"); Jackson, 322 N.C. 251, 368 S.E.2d 838 (stating that court could consider that the prosecutor's key witness was black).
Moreover, as to defendant's contention that the prosecutor's explanation was clearly pretextual simply because he passed on other jurors with similar traits, we have long recognized that this strategy is of little use as it "fails to address the factors as a totality which when considered together provide an image of a juror considered in the case undesirable by the State." Porter, 326 N.C. at 501, 391 S.E.2d at 152-153. Nor does the brevity of Askew's questioning suggests an improper intent to excuse her. Although it seems irrelevant, others were questioned similarly and also excused.
The order appealed from should be
Affirmed.
Judge MARTIN, Mark D., concurs in the result only with separate opinion.
Judge JOHNSON dissents with separate opinion.