              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1027

                               Filed: 16 October 2018

Sampson County, No. 15 CRS 53153-54, 156, 165

STATE OF NORTH CAROLINA

             v.

CORY DION BENNETT, Defendant.


      Appeal by defendant from judgments entered on or about 16 March 2017 by

Judge John E. Nobles, Jr. in Superior Court, Sampson County. Heard in the Court

of Appeals 2 April 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
      Kiziah, for the State.

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


      STROUD, Judge.


      Defendant appeals from convictions for several drug-related offenses.

Defendant’s Batson argument regarding jurors stricken by the State fails because he

failed to make a prima facie case that the State’s challenges were racially motivated.

The trial court’s jury instruction on acting in concert was supported by the evidence.

We conclude there was no error in defendant’s trial.

                                 I.     Background
                                       STATE V. BENNETT

                                          Opinion of the Court



        On 4 December 2015, law enforcement officers responded to a complaint about

drug activity at a mobile home where defendant and his girlfriend, Ms. Smith,1 had

been living for about two months. Their landlord met the officers at the residence

and knocked on the door. Ms. Smith opened the door to the home and officers

immediately smelled a chemical odor associated with making methamphetamine.

During their initial pat-down of defendant, they found a methamphetamine pipe and

a receipt from IGA, dated 4 December 2015, for crystal lye. During their initial sweep

of the home when they arrested defendant and Ms. Smith, the officers found items

used in making methamphetamine including pliers, rubber gloves, measuring

devices, lithium batteries, lye, and aluminum foil; they also found drug paraphernalia

including a methamphetamine pipe, chemicals used to make methamphetamine, and

Sudafed pills. When he was standing outside the residence, Sudafed pills began

falling out of defendant’s pants.2 The officers got a search warrant, and, during the

search of the mobile home under the warrant, they found much more drug

paraphernalia and many other items associated with methamphetamine production

throughout the home. Defendant was tried by a jury and convicted of five counts of

possession      of   methamphetamine            precursor,       one   count     of    manufacturing




        1 We will use a pseudonym to protect the privacy of this witness.
        2Defendant later told the officers the bags of pills had fallen into his pants when he was sitting
on the couch because he wears his pants low.

                                                  -2-
                                STATE V. BENNETT

                                  Opinion of the Court



methamphetamine, and two counts of trafficking in methamphetamine. Defendant

timely appeals his convictions to this Court.

                                II.    Jury Selection

      Defendant first contends that “[t]he trial judge erred in his handling of

[d]efendant’s Batson motion because there was prima facie evidence that the

prosecutor’s use of peremptory strikes was racially motivated.” (Original in all caps).

      “The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution and Article I, Section 26 of the North Carolina Constitution

prohibit race-based peremptory challenges during jury selection.” State v. Taylor,

362 N.C. 514, 527, 669 S.E.2d 239, 253–54 (2008). Moreover,

             [t]he clear error standard is a federal standard of review
             adopted by our courts for appellate review of the Batson
             inquiry.

                    In Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69
             (1986), modified, Powers v. Ohio, 499 U.S. 400, 111 S. Ct.
             1364, 113 L.Ed.2d 411 (1991), the United States Supreme
             Court established a three-step test to determine whether
             the State’s peremptory challenges of prospective jurors are
             purposefully discriminatory. Under Batson, the defendant
             must first successfully establish a prima facie case of
             purposeful discrimination. If the prima facie case is not
             established, it follows that the peremptory challenges are
             allowed. If the prima facie case is established, however, the
             burden shifts to the prosecutor to offer a race-neutral
             explanation for each peremptory challenge at issue. If the
             prosecutor fails to rebut the prima facie case of racial
             discrimination with race-neutral explanations, it follows
             that the peremptory challenges are not allowed. Finally,
             the trial court must determine whether the defendant has


                                         -3-
                               STATE V. BENNETT

                                 Opinion of the Court



            proven purposeful discrimination.

                   If the prosecutor volunteers his reasons for the
            peremptory challenges in question before the trial court
            rules whether the defendant has made a prima facie
            showing or if the trial court requires the prosecutor to give
            his reasons without ruling on the question of a prima facie
            showing, the question of whether the defendant has made
            a prima facie showing becomes moot, and it becomes the
            responsibility of the trial court to make appropriate
            findings on whether the stated reasons are a credible,
            nondiscriminatory basis for the challenges or simply
            pretext.

State v. Wright, 189 N.C. App. 346, 351, 658 S.E.2d 60, 63-64 (2008) (citations and

quotation marks omitted).

                   In reviewing this determination, we are mindful

            that trial courts, given their experience in supervising voir

            dire and their ability to observe the prosecutor’s questions

            and demeanor firsthand, are well qualified to decide if the

            circumstances    concerning     the    prosecutor’s   use   of

            peremptory challenges creates a prima facie case of

            discrimination. The trial court’s findings will be upheld on

            appeal unless they are clearly erroneous-that is, unless “on

            the entire evidence we are left with the definite and firm

            conviction that a mistake has been committed.




                                        -4-
                                   STATE V. BENNETT

                                    Opinion of the Court



       Taylor, 362 N.C. at 527-28, 669 S.E.2d at 254 (citations, quotation marks, and

brackets omitted).

      To establish a prima facie case of “purposeful discrimination,” a defendant

must show that the State used peremptory challenges to remove jurors on the basis

of race. Review of the denial of a Batson challenge is highly fact specific, and cannot

be reduced to simple formula:

                     In deciding whether the defendant has made the

             requisite showing, the trial court should consider all

             relevant circumstances. For example, a “pattern” of strikes

             against black jurors included in the particular venire might

             give rise to an inference of discrimination. Similarly, the

             prosecutor’s    questions       and     statements   during voir

             dire examination and in exercising his challenges may

             support or refute an inference of discriminatory purpose.

             These examples are merely illustrative.                  We have

             confidence     that     trial     judges,     experienced       in

             supervising voir dire, will be able to decide if the

             circumstances      concerning     the     prosecutor’s    use   of

             peremptory challenges creates a prima facie case of

             discrimination against . . . jurors [of a certain race].



                                             -5-
                                STATE V. BENNETT

                                   Opinion of the Court




      Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69,

88 (1986); see also State v. Smith, 328 N.C. 99, 120-21, 400 S.E.2d 712, 724 (1991)

(“We have also considered questions and statements made by the prosecutor during

voir dire examination and in exercising his peremptories which may either lend

support to or refute an inference of discrimination. . . . We have concluded that the

discrimination in a case need not be pervasive, as even a single act of invidious

discrimination may form the basis for an equal protection violation.” (Citations,

quotation marks, and brackets omitted)). Because of the fact specific nature of any

Batson challenge, the Supreme Court “decline[d] . . . to formulate particular

procedures to be followed upon a defendant’s timely objection to a prosecutor’s

challenges.” Batson, 476 U.S. at 99, 106 S. Ct. at 1724-25, 90 L. Ed. 2d at 89-90.

      The record must contain evidence sufficient to conduct a review of the

defendant’s specific argument on appeal. See State v. Brogden, 329 N.C. 534, 546,

407 S.E.2d 158, 166 (1991). Depending on the specific argument of the defendant,

the evidence required for appellate review may include record evidence of the race of

certain or all members of the jury pool. For proper review of denial of a Batson

challenge, it is necessary that the record establishes the race of any prospective juror

that the defendant contends was unconstitutionally excused for discriminatory

purpose by peremptory challenge. Our Supreme Court has addressed this issue:



                                          -6-
                                     STATE V. BENNETT

                                       Opinion of the Court



                       If a defendant in cases such as this believes a

                prospective juror to be of a particular race, he can bring this

                fact to the trial court’s attention and ensure that it is made

                a part of the record. Further, if there is any question as to

                the prospective juror’s race, this issue should be resolved by

                the trial court based upon questioning of the juror or other

                proper evidence[.]



       State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2d 554, 557 (1988) (emphasis

added).3 If there is not any question about a prospective juror’s race, neither the

defendant nor the trial court is required to make inquiry regarding that prospective

juror’s race:

                       The race of one of the peremptorily challenged jurors

                was not clearly discernible to the attorneys in this case or

                to the judge. The court found as fact that this prospective

                juror was either black or Indian. Our Supreme Court has

                stated that “if there is any question as to the prospective

                juror’s race, this issue should be resolved by the trial court



       3   We note that our Supreme Court did not dismiss the defendant’s Batson argument in
Mitchell, it considered then “overruled” the defendant’s Batson argument. Mitchell, 321 N.C. at 656,
365 S.E.2d at 557-58.

                                               -7-
                                 STATE V. BENNETT

                                   Opinion of the Court



             based upon questioning of the juror or other proper

             evidence.”    State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2

             d 554, 557 (1988). In this case no inquiry was made and

             the question was left unanswered.             Defendant has

             therefore failed to present a sufficient record on appeal to

             include this prospective juror in the category of black

             prospective       jurors       peremptorily      challenged.



      State v. Robinson, 97 N.C. App. 597, 601, 389 S.E.2d 417, 420 (1990) (emphasis

added).

      We do not believe that the Supreme Court cases cited by the concurring opinion

stand for the principle that the only method a trial court may use to support a finding

concerning the race of a prospective juror is to ask that juror (and, apparently, just

accept the juror’s racial self-identification). As the concurring opinion apparently

recognizes by citing Brogden, all our Supreme Court requires is “proper evidence [of]

the race of each juror[.]” Brogden, 329 N.C. at 546, 407 S.E.2d at 166. Certainly, not

all African-Americans can be readily identified as such based upon outward

appearances. That is why our Supreme Court rejected a scheme whereby the races

of prospective jurors could be established for the record based upon notations of an

attorney or a court reporter’s “subjective impressions.” Id. When the race of a



                                          -8-
                                 STATE V. BENNETT

                                   Opinion of the Court



prospective juror is not obvious, a person’s subjective impressions may well be

erroneous.

      The concurring opinion conflates the role attorneys and other court personnel

play in the process with the role of the trial court:

                    Subjective impressions of a juror’s race made by a

             court reporter, clerk, or trial counsel are all insufficient to

             establish an adequate record on appeal. It follows then that

             the subjective impressions of a juror’s race made by the

             parties or trial court judge would also be insufficient to

             establish a proper record of the juror’s races on appeal.



      (Citations omitted) (emphasis added).



             We agree that the subjective impressions of the race of a prospective

juror made by “the parties” is not relevant. However, “[t]he trial court has broad

discretion in overseeing voir dire[.]” State v. Campbell, 359 N.C. 644, 666, 617 S.E.2d

1, 15 (2005).    In jury voir dire the trial court is charged with making legal

determinations based upon its factual findings.

                    “To allow for appellate review, the trial court must

             make specific findings of fact at each stage of the Batson



                                           -9-
                                STATE V. BENNETT

                                  Opinion of the Court



             inquiry that it reaches.” This Court “must uphold the trial

             court's findings unless they are ‘clearly erroneous.’” Under

             this standard, the fact finder’s choice between two

             permissible views of the evidence “cannot” be considered

             clearly erroneous. We reverse “only” when, after reviewing

             the entire record, we are “left with the definite and firm

             conviction that a mistake has been committed.”



      State v. Headen, 206 N.C. App. 109, 114–15, 697 S.E.2d 407, 412 (2010)

(emphasis added) (citations and brackets omitted). “Where the record is silent upon

a particular point, it will be presumed that the trial court acted correctly in

performing his judicial acts and duties.” State v. Fennell, 307 N.C. 258, 262, 297

S.E.2d 393, 396 (1982). This presumption of correctness applies to findings made by

the trial court. State v. James, 321 N.C. 676, 686, 365 S.E.2d 579, 585 (1988).

             Further, the judge’s subjective impressions are not only relevant, but an

integral part of the judge’s duties: “Upon review, the trial court’s determination

[whether to excuse a prospective juror] is given great deference because it is based

primarily on evaluations of credibility. Such determinations will be upheld as long

as the decision is not clearly erroneous.” State v. Fair, 354 N.C. 131, 140, 557 S.E.2d

500, 509–10 (2001) (citations omitted). Further:



                                         - 10 -
                                STATE V. BENNETT

                                   Opinion of the Court



                    [I]t is the trial court that “is entrusted with the duty

             to hear testimony, weigh and resolve any conflicts in the

             evidence, find the facts, and, then based upon those

             findings, render a legal decision, in the first instance, as to

             whether or not a constitutional violation of some kind has

             occurred.”



      State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 67 (2012) (citation omitted).

      We disagree with the concurring opinion’s conclusion that findings of fact made

by the trial court should be given no more weight than “[s]ubjective impressions of a

juror’s race made by a court reporter, clerk, or trial counsel . . . .” We also disavow

any suggestion that our holding would permit the trial court to make a finding of fact

about a prospective juror’s race “by accepting an interested party’s or counsel’s

untested perceptions as fact.” We simply hold that if the trial court determines that

it can reliably infer the race of a prospective juror based upon its observations during

voir dire, and it thereafter makes a finding of fact based upon its observations, a

defendant’s burden of preserving that prospective juror’s race for the record has been

met. Absent evidence to the contrary, it will be presumed that the trial court acted

properly – i.e. that the evidence of the prospective juror’s race was sufficient to

support the trial court’s finding in that regard. Fennell, 307 N.C. at 262, 297 S.E.2d



                                          - 11 -
                                 STATE V. BENNETT

                                   Opinion of the Court



at 396. If the State disagrees with the finding of the trial court, it should challenge

the finding at trial and seek to introduce evidence supporting its position.

Questioning the juror at that point could be warranted. Here, however, the State

clearly agreed with the trial court’s findings related to the race of the five identified

prospective jurors.    Absent any evidence that the trial court’s findings were

erroneous, “we must assume that the trial court's findings of fact were supported by

substantial competent evidence.” State v. James, 321 N.C. 676, 686, 365 S.E.2d 579,

585 (1988).

      Nothing in the appellate opinions of this State require the trial court to engage

in needless inquiry if a prospective juror’s race is “clearly discernable” without further

inquiry. Here, the record demonstrates that it was “clearly discernable” to the trial

court, and the attorneys for the State and Defendant, that five of the 21 prospective

jurors questioned on voir dire were African-American, and that two prospective jurors

were excused pursuant to peremptory challenges by the State.              The following

discussion and ruling occurred on defendant’s Batson motion:

                     MS. BELL: Judge, I do have a Batson motion. And,
              Judge, the basis of my motion goes to the fact that in Seat
              Numbers 10, we had two jurors, [Mr. Jones] and [Ms.
              Taylor], both of whom were black jurors, and both of whom
              were excused. And, Judge, in the State’s voir dire of both
              jurors, there was no overwhelming evidence, there was
              nothing about any prior criminal convictions, any feelings
              about -- towards or against law enforcement, there’s no
              basis, other than the fact that those two jurors happen to



                                          - 12 -
                               STATE V. BENNETT

                                  Opinion of the Court



          be of African-American decent [sic] they were excused.4
                 We heard from Mr. [Jones] who stated that he was a
          supervisor here in Clinton and had a breaking and entering
          two and a half years ago. Nobody was charged, but he had
          no feelings towards law enforcement, no negative
          experience with the DA’s office. And, with Ms. [Taylor], we
          heard that she owned a beauty salon that was next to ABC
          Insurance. She didn’t know anyone in the audience or
          anyone in the case. There was nothing that was deduced
          during the jury voir dire that would suggest otherwise.

          THE COURT:             Mr. Thigpen?

          MR. THIGPEN:      Judge, I don’t think Ms. Bell’s made a
          prima facie showing discriminatory intent, which is
          required under Batson. The simple fact that both jurors
          happen to have been African-American and I chose to
          excuse them peremptorily, is not sufficient to raise a
          Batson challenge.

          THE COURT:         Seems to me that you excused two, but
          kept three African-Americans. Am I right?

          MR. THIGPEN:        Yes, sir, that’s right; including Mr.
          [Anderson], who is Juror Number 5, who is an African-
          American male; Ms. [Robins], Juror Number 9, who is an
          African-American female; and Juror Number 7, Ms.
          [Moore], an African-American female.

          THE COURT:      All right. I don’t see where you’ve
          overcome or made a prima facie showing of lack of
          neutrality.
                ....



                 THE COURT:             Okay. Who was it you excused?



4   We have used pseudonyms to protect the privacy of jurors.

                                         - 13 -
                   STATE V. BENNETT

                     Opinion of the Court




      MR. THIGPEN:           I excused [Mr. Jones] and [Ms.

Taylor] who had been both seated in Seat Number 10.

      ....



      MS. BELL: . . . . I’m making my case that I have

made a prima facie showing, that there was no other reason

[for excusing the two African-American prospective jurors],

other than that of race[.]



      THE COURT: All right.           I’m going to deny your

motion. Madam Clerk, the Court, from the evidence, the

arguments of counsel on the record, the Court finds there

is no evidence of a showing of prejudice based on race or

any of the contentions in Batson, GS 912A, GS 15A-958.

The Court further finds that out of the five jurors who were

African-American, three still remain on the panel and have

      been passed by the State. The Court concludes there

is no prima facie showing justifying the Batson challenge;

therefore, the defendant’s motion is denied.



                             - 14 -
                                 STATE V. BENNETT

                                   Opinion of the Court




      (Emphasis added).

      Reading the trial court’s ruling in context, it seems apparent that the fact that

the prospective jurors in question were African-American was clear to the trial court.

It is only “if there is any question as to the prospective juror’s race [that] this issue

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

proper evidence.” Mitchell, 321 N.C. at 656, 365 S.E.2d at 557. The trial court made

a finding that five African-Americans had been questioned on voir dire, that three

made it onto the jury, and that the other two were excused pursuant to the State’s

use of peremptory challenges.

      However, the State contends that defendant has failed to properly preserve

this argument for appeal.       Assuming, arguendo, that defendant’s argument is

properly before us, we find no error in the ruling of the trial court and affirm. See

State v. Willis, 332 N.C. 151, 162, 420 S.E.2d 158, 162 (1992) (“Assuming it was error

to sustain the objections to this testimony by defendant Willis and that it was error

for the court to hold that it could not find Willis was a member of a cognizable

minority, we cannot hold this was prejudicial error.”).

                                III.   Jury Instruction

      Last, defendant contends that the trial court erred in instructing the jury over

his objection on acting in concert “when the evidence failed to support an inference



                                          - 15 -
                                  STATE V. BENNETT

                                    Opinion of the Court



that . . . [defendant] and [Ms. Smith] were acting together in the commission of any

crime.” (Original in all caps).

                    The standard of review for appeals regarding jury
             instructions to which a defendant has properly requested
             at trial is the following: This Court reviews jury
             instructions contextually and in its entirety. The charge
             will be held to be sufficient if it presents the law of the case
             in such manner as to leave no reasonable cause to believe
             the jury was misled or misinformed. Under such a
             standard of review, it is not enough for the appealing party
             to show that error occurred in the jury instructions; rather,
             it must be demonstrated that such error was likely, in light
             of the entire charge, to mislead the jury. If a party requests
             a jury instruction which is a correct statement of the law
             and which is supported by the evidence, the trial judge
             must give the instruction at least in substance.

State v. Cornell, 222 N.C. App. 184, 190-91, 729 S.E.2d 703, 708 (2012) (citation,

quotation marks, ellipses, and brackets omitted).          “In order to support a jury

instruction on acting in concert, the State must prove that the defendant is present

at the scene of the crime and acts together with another who does the acts necessary

to constitute the crime pursuant to a common plan or purpose to commit the crime.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citation and

quotation marks omitted).

      Ms. Smith was also charged with various crimes and entered into a plea

agreement with the State to testify against defendant. The State elected not to call

her to testify at defendant’s trial, but defendant called her to testify.

      Defendant argues that


                                           - 16 -
                                STATE V. BENNETT

                                   Opinion of the Court



             The jury should have been told that the state’s burden was
             to prove that [defendant] accomplished each crime on his
             own. Instead, the judge told jurors they could convict
             [defendant] if they found that he alone or he acting in
             concert with [Ms. Smith] had committed the crimes.
             Because there was no evidence to support the suggestion
             that Ms. [Smith] was involved, [defendant] is entitled to a
             new trial.

Defendant claims that Ms. Smith’s testimony “corroborated [defendant’s] statement:

she said the two of them had returned to the house shortly before law enforcement

arrived with the landlord. When she and [defendant] returned to the home, they

found the glass was broken in the back door.”

      Defendant argues that the evidence merely shows that Ms. Smith was

“present” at the mobile home and

             [a] person’s mere presence is not enough to establish acting
             in concert. “A defendant’s mere presence at the scene of
             the crime does not make him guilty [...] even if he
             sympathizes with the criminal act and does nothing to
             prevent it.” State v. Capps, 77 N.C. App. 400, 402-03, 335
             S.E.2d 189, 190 (1985). The state is required to prove a
             common purpose, plan, or scheme State v. Forney, 310 N.C.
             126, 134, 310 S.E.2d 20, 25 (1984), and in this case Ms.
             [Smith] denied any such plan or purpose.

      Ms. Smith did deny she was involved in a plan to make methamphetamine

with defendant, but the jury did not have to believe her. See, e.g., State v. Green, 296

N.C. 183, 188, 250 S.E.2d 197, 200-01 (1978) (“The credibility of a witness’s

identification testimony is a matter for the jury’s determination, and only in rare

instances will credibility be a matter for the court’s determination.”        (Citation


                                          - 17 -
                               STATE V. BENNETT

                                 Opinion of the Court



omitted)). There was abundant evidence showing she was far more than “merely

present” at the home during methamphetamine production. We do not understand

defendant’s argument that “there was no evidence to support the suggestion that [Ms.

Smith] was involved” in the crimes charged.         She testified she pled guilty to

possession of methamphetamine precursor chemical and attempted trafficking for

methamphetamine by possession. She also testified that on 4 December 2015, before

their arrest and the search of the mobile home, she and defendant went to Walmart

to purchase Sudafed and to IGA. The receipt from IGA -- which showed that crystal

lye was purchased -- was found in defendant’s pocket when he was arrested and was

admitted as evidence. Sudafed and crystal lye are two primary ingredients used to

make methamphetamine. They then went back to defendant’s home, where Ms.

Smith testified they had previously made methamphetamine. Ms. Smith had been

living in the home with defendant for about two months, and officers found

methamphetamine ingredients, paraphernalia, and items used to produce

methamphetamine in plain view throughout the home in nearly every room --

bedroom, living room, bathroom, laundry room, and kitchen. Contrary to defendant’s

argument, all of the evidence, including Ms. Smith’s testimony, tends to show that

she was very much involved in making methamphetamine with defendant, despite

her denial of any “plan.” This evidence is more than sufficient to support an acting

in concert instruction.   We hold that the trial court did not err in giving the



                                        - 18 -
                               STATE V. BENNETT

                                 Opinion of the Court



instruction.

                                 IV.    Conclusion

      We conclude there was no error in defendant’s trial.

      NO ERROR.

      Chief Judge McGEE concurs.

      Judge BERGER concurs with separate opinion.




                                        - 19 -
       No. COA17-1027 – State v. Bennett




      BERGER, Judge, concurring in separate opinion.




      I concur in the result reached by the majority. However, I would find that

Defendant has waived review of his Batson challenge because he failed to preserve

an adequate record setting forth the race of the jurors. Our Supreme Court has stated

that findings as to the race of jurors may not be established by the subjective

impressions or perceptions of “the defendant, the court, [ ] counsel” or other court

personnel.   State v. Mitchell, 321 N.C. 650, 656, 365 S.E.2d 554, 557 (1988).

(emphasis added.) Because fact finding by guesswork or intuition is inappropriate, I

disagree with the majority’s conclusion that a trial court’s subjective impressions

concerning race are sufficient evidence to establish an adequate record on appeal.

      Other than speculative statements by counsel and the trial court, there is

nothing in the record that demonstrates, as the majority suggests, that it was “

‘clearly discernable’ to the trial court, and the attorneys for the State and Defendant,

that five of the 21 prospective jurors questioned on voir dire were African-American.”

Further inquiry should be required by a defendant alleging purposeful racial

discrimination in jury selection to establish an adequate record for appellate review.
                                 STATE V. BENNETT

                                   Opinion of the Court



      “An individual’s race is not always easily discernable.” Mitchell, 321 N.C. at

655, 365 S.E.2d at 557. When a defendant “believes a prospective juror to be of a

particular race, he can bring this fact to the trial court’s attention and ensure that it

is made a part of the record.” Id. at 656, 365 S.E.2d at 557. That was not done here.

      In State v. Mitchell, our Supreme Court held that the defendant had “failed to

present an adequate record on appeal from which to determine whether jurors were

improperly excused by peremptory challenges on the basis of race.” Id. at 655, 365

S.E.2d at 557. In so holding, the Court in Mitchell reasoned that

                    the burden is on a criminal defendant who alleges

             racial discrimination in the selection of the jury to establish

             an inference of purposeful discrimination. The defendant

             must provide the appellate court with an adequate record

             from which to determine whether jurors were improperly

             excused by peremptory challenges at trial. Statements of

             counsel alone are insufficient to support a finding of

             discriminatory use of peremptory challenges. . . .

                    [Here,] the defendant filed a motion to require the

             court reporter to note the race of every potential juror

             examined, which was also denied. Although this approach

             might have preserved a proper record from which an



                                            2
                   STATE V. BENNETT

                     Opinion of the Court



appellate court could determine if any potential jurors were

challenged solely on the basis of race, we find it

inappropriate. To have a court reporter note the race of

every potential juror examined would require a reporter

alone to make that determination without the benefit of

questioning by counsel or any other evidence that might

tend to establish the prospective juror’s race. The court

reporter, however, is in no better position to determine the

race of each prospective juror than the defendant, the court,

or counsel. . . . As the trial court noted, “The clerk might

note the race as being one race and in fact that person is

another race. My observation has been you can look at

some people and you cannot really tell what race they are.”

The approach suggested by the defendant would denigrate

the task of preventing peremptory challenges of jurors on

the basis of race to the reporter’s subjective impressions as

to what race they spring from.

      If a defendant in cases such as this believes a

prospective juror to be of a particular race, he can bring

this fact to the trial court’s attention and ensure that it is



                              3
                                     STATE V. BENNETT

                                       Opinion of the Court



               made a part of the record. Further, if there is any question

               as to the prospective juror’s race, this issue should be

               resolved by the trial court based upon questioning of the

               juror or other proper evidence, as opposed to leaving the

               issue to the court reporter who may not make counsel

               aware of the doubt. In the present case the defendant did

               not avail himself of this opportunity, despite the trial

               court’s suggestion at the pre-trial hearing that he might

               wish to do so during jury selection. . . . For whatever

               reason, counsel chose not to make any such inquiry at trial.

               Thus, the defendant has failed to demonstrate that the

               prosecutor exercised peremptory challenges solely to

               remove members of any particular race from the jury.



       Id. at 654-56, 365 S.E.2d at 556-58 (1988) (purgandum5) (emphasis added).

       The majority here relies almost exclusively on Mitchell to support its

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



       5  Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.

                                                 4
                                STATE V. BENNETT

                                  Opinion of the Court



the defendant nor the trial court is required to make inquiry regarding the

prospective juror’s race.” Based solely on Mitchell, further inquiry regarding each

juror’s race may not always be necessary when a defendant can somehow

demonstrate that each juror’s race was “clearly discernable.”        However, since

Mitchell, our Supreme Court has effectively held that further inquiry regarding each

juror’s race is required because perceptions and subjective impressions—standing

alone—are insufficient to establish jurors’ races.

      In State v. Payne, our Supreme Court similarly held that “we need not reach

the constitutional issues presented by this assignment of error, as we are not

presented with a record on appeal which will support the defendant’s argument that

jurors were improperly excused by peremptory challenges exercised solely on the

basis of race.” State v. Payne, 327 N.C. 194, 198, 394 S.E.2d 158, 160 (1990). The

relevant facts in Payne were as follows:

                    the defendant (who is white) objected to the State’s

             use of peremptory challenges against black jurors. The

             defendant requested that the courtroom clerk record the

             race and sex of the “prospective” jurors who had already

             been seated or excused, but the trial court denied his

             request. The next morning, the defendant renewed his

             objection via a written motion for the clerk to record the



                                           5
                         STATE V. BENNETT

                           Opinion of the Court



      race and sex of jurors. The motion was supported by an

      affidavit, subscribed by one of the defendant’s attorneys,

      purporting to contain the name of each black prospective

      juror examined to that point, and whether the State had

      peremptorily excused, challenged for cause, or passed the

      prospective juror to the defense (the defendant says one

      black juror did sit on the trial jury).     The trial court,

      viewing the affidavit’s allegations as true, nonetheless

      ruled that the defendant had failed to make a prima facie

      showing of a substantial likelihood that the State was

      using its peremptory challenges to discriminate against

      black jurors.



Id. at 198, 394 S.E.2d at 159-60.

Our Supreme Court agreed with the trial court’s assessment

             that had the defendant made his motion prior to jury

      selection, the court would have had each prospective juror

      state his or her race during the court’s initial questioning.

      This would have provided the trial court with an accurate

      basis for ruling on the defendant’s motion, and would also



                                    6
                         STATE V. BENNETT

                            Opinion of the Court



      have preserved an adequate record for appellate review.

      Having not made his motion to record the race of

      prospective jurors until after the twelve jurors who

      actually decided his case had been selected, the defendant

      attempted to support his motion via an affidavit purporting

      to provide the names of the black prospective jurors who

      had been examined to that point. That affidavit, however,

      contained only the perceptions of one of the defendant’s

      lawyers    concerning    the   races    of   those   excused—

      perceptions no more adequate than the court reporter’s or

      the clerk’s would have been, as we recognized in Mitchell.

      For the reasons stated in Mitchell, we conclude that the

      trial court did not err by denying the defendant’s motion

      for the clerk to record the race of “prospective jurors” after

      they had been excused and the jury had been selected. For

      similar reasons, we also conclude that the record before us

      on appeal will not support the defendant’s assignment of

      error.



Id. at 200, 394 S.E.2d at 160-61 (citations omitted).



                                     7
                                STATE V. BENNETT

                                   Opinion of the Court



      In State v. Brogden, our Supreme Court also held that the defendant “failed to

provide an adequate record regarding the race of the jurors, both those accepted and

those rejected, and has therefore waived any such objection.” State v. Brogden, 329

N.C. 534, 545, 407 S.E.2d 158, 165 (1991). Our Supreme Court reasoned that the

“defendant, in failing to elicit from the jurors by means of questioning or other proper

evidence the race of each juror, has failed to carry his burden of establishing an

adequate record for appellate review.” Id. at 546, 407 S.E.2d at 166 (emphasis added).

This holding was based on the fact that “the only records of the potential jurors’ race

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

and notations made by the court reporter of her subjective impressions.” Id.

      Although our Supreme Court appeared to limit the need for further inquiry to

instances when the jurors’ races were not “easily discernible” in Mitchell, 321 N.C. at

655, 365 S.E.2d at 557, subsequent cases have required defendants to provide “proper

evidence [of] the race of each juror,” Brogden, 329 N.C. at 546, 407 S.E.2d at 166, to

establish an adequate record for appellate review. Subjective impressions of a juror’s

race made by a court reporter, clerk, or trial counsel are all insufficient to establish

an adequate record on appeal. See Mitchell, 321 N.C. at 655-56, 365 S.E.2d at 557

(holding that a court reporter or court clerk’s identification of each juror’s race as

insufficient); Payne, 327 N.C. at 200, 394 S.E.2d at 161 (identifying an affidavit that

“contained only the perceptions of one of the defendant’s lawyers concerning the races



                                            8
                                 STATE V. BENNETT

                                   Opinion of the Court



of those excused” as inadequate); Brogden, 329 N.C. at 546, 407 S.E.2d at 166

(reaffirming that the “subjective impressions of defendant’s counsel and notations

made by the court reporter of her subjective impressions” of the jurors’ races are

insufficient). It follows then that the subjective impressions of a juror’s race made by

the trial court would also be insufficient to establish a proper record of a juror’s race

on appeal. See State v. Mitchell, 321 N.C. at 656, 365 S.E.2d at 557 (“The court

reporter, however, is in no better position to determine the race of each prospective

juror than the defendant, the court, or counsel.”) (emphasis added).

      The majority states that the record here “demonstrates that it was ‘clearly

discernable’ to the trial court, and the attorneys for the State and Defendant, that

five of the 21 prospective jurors questioned on voir dire were African-American.”

However, the record contains no evidence regarding the race of any juror or

prospective juror. Not a single juror was ever asked his or her race by Defendant or

the trial court. Rather, the record merely contains statements by counsel and the

trial court concerning their perceptions and subjective impressions of the prospective

jurors’ races. This is not enough. We cannot and should not rely on the trial court’s

and defense counsel’s perceptions of the jurors to simply conclude that the jurors’

races were “clearly discernible.” In the absence of any “proper evidence [of] the race

of each juror,” Brogden, 329 N.C. at 546, 407 S.E.2d at 166, I would find that




                                            9
                                 STATE V. BENNETT

                                   Opinion of the Court



Defendant has failed to provide a record on appeal sufficient to permit this Court to

review his Batson claim.

       The majority’s assertion that a trial court’s subjective impressions concerning

race equates with a credibility determination misses the mark. The majority would

essentially allow judges to take judicial notice of an individual juror’s race simply by

looking at him or her. It seems unusual that judges have acquired this unique skill

which is absent in court reporters, clerks, and lawyers. As our Supreme Court held

in Mitchell, trial courts are in no better position than court personnel, lawyers, or the

parties to determine a juror’s race based solely on subjective impressions and

perceptions.

       Where a party accuses opposing counsel of purposeful racial discrimination in

jury selection, that party should take appropriate steps to elicit evidence establishing

the race of jurors or prospective jurors. Without proper evidence set forth in the

record on appeal, this Court should decline to accept subjective impressions of race

as fact.




                                           10
