               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-998-2

                                   Filed: 21 July 2020

Columbus County, No. 15 CRS 50590

STATE OF NORTH CAROLINA

              v.

ANTIWUAN TYREZ CAMPBELL


      Appeal by defendant from judgment entered 2 August 2017 by Judge Douglas

B. Sasser in Columbus County Superior Court. Originally heard in the Court of

Appeals     19 September 2019,     and     opinion   filed   21 January 2020   upholding

defendant’s convictions, __ N.C. App. __, 838 S.E.2d 660 (2020). Remanded to the

Court of Appeals by Special Order of the North Carolina Supreme Court entered

5 June 2020 for reconsideration in light of State v. Hobbs, __ N.C. App. __, 841 S.E.2d

492 (2020), and State v. Bennett, __ N.C. __, 843 S.E.2d 222 (2020).


      Attorney General Joshua H. Stein, by Assistant Attorney General Peter A.
      Regulski, for the State.

      Geeta N. Kapur for defendant-appellant.


      ARROWOOD, Judge.


                              I.         Appellate History

      We review the instant case on remand from the Supreme Court of North

Carolina.    In his initial appeal before this Court, Antiwuan Tyrez Campbell

(“defendant”) appealed from judgment entered against him for first-degree murder.
                                        STATE V. CAMPBELL

                                         Opinion of the Court



Defendant argued that the trial court erred by concluding that he failed to establish

a prima facie claim of racial discrimination in jury selection, as set forth by Batson v.

Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). In our first opinion, we denied the

State’s motion to dismiss defendant’s appeal for insufficiency of the record and found

no error in the trial court’s holding that defendant did not make a prima facie claim

pursuant to Batson. Campbell, __ N.C. App. at __, __, 838 S.E.2d at 663, 666 (2020).

      Our Supreme Court granted defendant’s Petition for Writ of Certiorari and

remanded the appeal to this Court by Special Order for review of our prior ruling, in

light of the Supreme Court’s recent decisions in Hobbs, __ N.C. App. __, 841 S.E.2d

492, and Bennett, __ N.C. __, 843 S.E.2d 222. Based upon our review of Hobbs and

Bennett and their application to the facts of the instant case, we reach the same result

for the reasons set forth below.


                                        II.     Background

      On 15 April 2015, defendant was indicted for the first-degree murder of Allen

Wilbur Davis, Jr., as well as the second-degree kidnapping of K.J.1 The case came on

for trial in Columbus County Superior Court before the Honorable Douglas B. Sasser

on 24 July 2017. On that date, the trial court addressed several pretrial motions filed

by defense counsel, including “a motion for a complete recordation of all the

proceedings.” Counsel specifically noted that she was “not requesting that [complete


      1   A pseudonym is used to protect the juvenile’s privacy.

                                                 -2-
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                                  Opinion of the Court



recordation] include jury selection,” and that her motion was “[j]ust for appeal

purposes.”   The trial court granted the motion for recordation.       Jury selection

commenced the following day. However, as requested by defense counsel, those

proceedings were not recorded.

      On the second day of jury selection, as the parties were seating alternate

jurors, defense counsel objected to the State’s use of peremptory challenges, alleging

that they were exercised in a racially discriminatory manner in violation of Batson.

By this point in the proceedings, the State had exercised four peremptory challenges,

three of which were used to strike African American prospective jurors: Ms. Vereen,

Ms. Holden, and Mr. Staton. Defense counsel asserted that “the State . . . has tried

extremely hard for every African-American, to excuse them for cause[,]” adding that

“the last two alternate [African American] jurors . . . excused showed no leaning one

way or the other or indicated that they would not be able to hear the evidence, apply

the law, and render a verdict.” Defense counsel further noted that

             [w]e had Ms. Vereen on the front, who the State stayed on
             her over and over again, trying to get her removed for
             cause, and they finally used a peremptory on her. And then
             we move to our alternate, Mr. Staton. [The prosecutor]
             tried twice to get him removed for cause.

After considering defense counsel’s argument, the trial court denied defendant’s

Batson challenge.




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                                    Opinion of the Court



      Later that day, however, Judge Sasser stated that “upon further reflection,

although I do not find that a prima facie case has been established for discrimination

pursuant to Batson, in my discretion, I am still going to order the State to proceed as

to stating a racially-neutral basis for the exercise of the peremptory challenges[.]”

The State then offered the following the bases for the exercise of its peremptory

challenges for each of the stricken African American prospective jurors:

      1. The first juror, Ms. Vereen, had indicated that she knew Clifton Davis (“Mr.

Davis”) and had dated his brother, both of whom were potential witnesses at

defendant’s trial. Mr. Davis was a friend of defendant, and was allegedly at the scene

with him at the time of the crimes.

      2. The second juror, Mr. Staton, was challenged because he “made several

conflicting statements during the State’s questioning to try to ensure if he could be

fair and impartial or not.” Further, he knew K.J.’s mother, who was “a fact witness

and . . . an eyewitness . . . to the kidnapping.”

      3. The third juror, Ms. Holden, was stricken because she had been a classmate

of two potential witnesses at defendant’s trial. The State also explained that

             an additional reason for the peremptory strike against Ms.
             Holden was the fact when she was describing her political
             science background and nature as a student, she also was
             indicating that she was a participant, if not an organizer,
             for Black Lives Matter at her current college with her
             professor, and whether or not that would have any implied
             unstated issues that may arise due to either law
             enforcement, the State, or other concerns we may have.


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                                    STATE V. CAMPBELL

                                    Opinion of the Court




      Following the State’s explanation of the bases for the exercise of its peremptory

challenges, the trial court reiterated that it “continues to find . . . that there has not

been a prima facie showing as to purposeful discrimination” in violation of Batson.

      At the conclusion of the trial, the jury returned verdicts finding defendant not

guilty of second-degree kidnapping, but guilty of first-degree murder. Defendant

timely appealed.

                                    III.   Discussion

      Defendant argues that the trial court erred in ruling that he failed to establish

a prima facie showing that the State exercised peremptory challenges in a racially

discriminatory manner, in violation of Batson. The State filed a motion to dismiss

defendant’s appeal. After first disposing of the State’s motion, we turn to the merits

of defendant’s appeal.

                               A.      Motion to Dismiss

      The State argues that defendant’s failure to include in the appellate record a

transcript of the jury selection proceedings warrants dismissal of defendant’s appeal.

We disagree and again deny the State’s motion to dismiss on this ground.

      The record in this case is minimally sufficient to permit appellate review. We

disagree with the proposition that, in order to be entitled to review of a Batson claim,

a defendant must include a verbatim transcript of jury selection in the record. We

find no support in our statutes or case law which lead to such a result. We hasten to


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                                  Opinion of the Court



add that if a defendant anticipates making a Batson discrimination argument, it is

extremely difficult to prevail on such grounds without a transcript of jury selection.

             A three-step process has been established for evaluating
             claims of racial discrimination in the prosecution’s use of
             peremptory challenges. First, defendant must establish a
             prima facie case that the peremptory challenge was
             exercised on the basis of race. Second, if such a showing is
             made, the burden shifts to the prosecutor to offer a racially
             neutral explanation to rebut defendant’s prima facie case.
             Third, the trial court must determine whether the
             defendant has proven purposeful discrimination.

State v. Cummings, 346 N.C. 291, 307-308, 488 S.E.2d 550, 560 (1997) (citations

omitted), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).

      In determining whether a defendant has established a prima facie case of

discrimination, our Supreme Court has noted that “[s]everal factors are relevant[.]”

State v. Hoffman, 348 N.C. 548, 550, 500 S.E.2d 718, 720 (1998).

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

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




                                         -6-
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                                   Opinion of the Court



      A verbatim transcript need not be furnished in every case for us to review

whether a defendant established a prima facie Batson claim before the trial court.

See State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409, 412 (1989)

(acknowledging even without a verbatim transcript of jury selection, the record

contained “the barest essentials” to permit review: “the racial composition of the jury,

the number of [African American] jurors excused, and the State’s proffered reasons

for their exclusion.   The record also contains defense counsel’s response to the

prosecutor’s explanations and the trial judge’s conclusions.”). Yet a defendant must

include some evidence in the record, in one form or another, shedding light on the

aforementioned factors to enable appellate review of a Batson claim. A narrative

summary of voir dire proceedings, made during the Batson hearing and agreed to by

defense counsel, the prosecutor, and the trial court, as was done here, may suffice to

permit review.    Moreover, the narrative summary in this case was minimally

sufficient to enable review.

      While we believe that such a narrative must contain more relevant information

in order to prevail, as discussed infra in our determination on the merits, unlike the

dissent, we find remand to be unnecessary. The dissent opines that the trial court

erred in failing to make specific findings of fact as to the Quick factors in its

determination that defendant had not made a prima facie showing, and believes




                                          -7-
                                      STATE V. CAMPBELL

                                       Opinion of the Court



remand for entry of such findings to be appropriate.2 We disagree. The trial court’s

findings on defendant’s Batson claim were indeed conclusory: “[A]t this point, the

Court does not find that the State’s exercise of peremptory challenges has even

reached [the very low hurdle for making a prima facie claim] yet. . . . [T]he Court has

found at this point there’s not a prima facie showing, and the Court will deny the

Batson challenge.”

       Nonetheless, remand is inappropriate. While the absence of a transcript of

voir dire does not preclude our review, it does preclude remand in the instant case.

“[T]he failure of a trial court to find facts is not prejudicial where there is no ‘material

conflict in the evidence on voir dire.’ ” Sanders, 95 N.C. App. at 500-501, 383 S.E.2d

at 413 (emphasis in original) (quoting State v. Riddick, 291 N.C. 399, 408, 230 S.E.2d

506, 512 (1976)). In Sanders, where the trial court entered a similar conclusory

finding,

               we [were] forced to assume that no material difference in
               fact existed since the defendant failed her duty to assure
               the availability of a jury voir dire transcript for our review.
               Thus, the trial judge’s failure to make adequate factual
               findings d[id] not constitute reversible error. Further, the
               defendant’s failure to secure a voir dire transcript ma[de]
               remand for further findings by the trial judge pointless.
               Without such transcript, we still would be unable to
               determine whether the trial judge’s [new] findings had a
               basis in fact.

       2  We note that our Supreme Court’s recent decisions in Hobbs and Bennett do not support this
proposition. Nor do they address what findings are necessary in an order ruling that a defendant has
not made a prima facie Batson claim, let alone in the instant circumstances where the record of jury
selection is only minimally sufficient to permit our review.

                                               -8-
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                                  Opinion of the Court




Id. at 501, 383 S.E.2d at 413. The Court then proceeded to review the trial court’s

conclusory finding based “only [on] the information adduced at the Batson inquiry.”

Id. Such is the appropriate course of action in this case.

              B.    Reviewing the Merits of Defendant’s Batson Claim

      Reviewing defendant’s Batson claim based upon the transcript of the trial

court’s hearing on the matter, we find no error.

      “[T]he State’s privilege to strike individual jurors through peremptory

challenges[ ] is subject to the commands of the Equal Protection Clause.” Batson, 476

U.S. at 89, 90 L. Ed. 2d at 82. “When the government’s choice of jurors is tainted with

racial bias, that overt wrong casts doubt over the obligation of the parties, the jury,

and indeed the court to adhere to the law throughout the trial.” Miller-El v. Dretke,

545 U.S. 231, 238, 162 L. Ed. 2d 196, 212 (2005) (internal quotation marks,

alterations, and citation omitted). When a defendant makes such an allegation, the

trial court is obligated to address defendant’s claim with the three-step analysis set

forth in Cummings, 346 N.C. at 307-308, 488 S.E.2d at 560, detailed supra part A.

      The trial court’s orders concerning jury selection are entitled to deference on

review. See State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997) (noting that

the trial court is afforded deference on jury selection rulings because the trial court

has “the opportunity to see and hear a juror and has the discretion, based on its

observations and sound judgment, to determine whether a juror can be fair and


                                         -9-
                                  STATE V. CAMPBELL

                                   Opinion of the Court



impartial”) (citation omitted). Thus, we “must uphold the trial court’s findings unless

they are clearly erroneous.” State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823,

829 (1998) (internal quotation marks and citation omitted).

      “[W]hen a trial court rules that the defendant has failed to establish a prima

facie case of discrimination, this Court’s review is limited to a determination of

whether the trial court erred in this respect.” State v. Bell, 359 N.C. 1, 12, 603 S.E.2d

93, 102 (2004) (citation omitted), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094

(2005). However, an exception to this limited scope of review applies where the

subsequent proceedings of the trial court render moot its initial determination that a

defendant has not established a prima facie Batson claim. See Hobbs, __ N.C. App.

at __, 841 S.E.2d at 499-501 (citations omitted). In such cases, our review proceeds

to the remaining steps of the Batson inquiry. Id.

      When the State “volunteers [its] reasons for the peremptory challenges in

question before the trial court rules [on] whether the defendant has made 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 proffered explanation is nondiscriminatory.

State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996) (citations omitted),

cert. denied, 519 U.S. 1061, 136 L. Ed. 2d 618 (1997).




                                          - 10 -
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                                  Opinion of the Court



      This result does not necessarily follow where the State provides its race-

neutral reasons for exercising its peremptory challenges only when required to do so

by the trial court after a ruling that no prima facie claim has been made. As noted

by our Supreme Court in its recent decision in Hobbs, two results may follow in such

instances. Where the trial court rules that a defendant has not made a prima facie

Batson claim, proceeds to require the State to provide its nondiscriminatory reasons

for its peremptory challenges, and then enters findings approving of the State’s

offered reasons, step one of the Batson inquiry is rendered moot. Hobbs, __ N.C. App.

at __, 841 S.E.2d at 500-501 (citations omitted).

      In Hobbs, the trial court determined that the defendant had not made out a

prima facie Batson claim. Id. at __, 841 S.E.2d at 496. The court then asked the

State, for purposes of the record, to explain its use of peremptory challenges against

the African American jurors it had excused thus far. Id. After the State offered its

reasons, the trial court gave the defendant an opportunity to rebut the State’s

explanations and argue that they were pretextual. Id. The trial court characterized

the proceedings as “a full hearing on the defendant’s Batson claim.” Id. Following

the hearing, the court made extensive oral findings in support of an alternate ruling

that the State’s offered reasons for the challenges were not pretextual. Id. at __, 841

S.E.2d at 496-97. Our Supreme Court held that these steps taken by the trial court

after its initial ruling that the defendant had not established a prima facie Batson



                                         - 11 -
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                                   Opinion of the Court



claim rendered the initial ruling moot. Id. at __, 841 S.E.2d at 500-501. Thus, the

Court engaged in full review of the trial court’s findings on the State’s offered reasons

and the defendant’s contention that they were pretextual. Id.

       On the other hand, where the trial court rules that a defendant has not made

a prima facie Batson claim, proceeds to require the State to provide its

nondiscriminatory reasons for its peremptory challenges, and then does not make any

findings assessing the veracity of the State’s explanations, step one of the court’s

Batson inquiry is not rendered moot. See Hoffman, 348 N.C. at 551-52, 500 S.E.2d at

721.

       Here, the trial court’s treatment of defendant’s Batson claim more closely

resembles the proceedings in the Hoffman line of cases than in Hobbs. The State only

offered the nondiscriminatory bases for its peremptory challenges after the trial court

required it to do so, after the court’s ruling that defendant’s prima facie claim failed.

Unlike Hobbs, here the court did not allow defense counsel to argue that the State’s

proffered nondiscriminatory reasons for the challenges were pretextual. The court’s

language clearly indicated its opinion that the State had provided sufficient

nondiscriminatory reasons was not the basis of its decision:

             And the Court continues to find . . . that there has not been
             a prima facie showing as to purposeful discrimination. And
             the Court finds that even if there had been a showing, that
             the State has offered a race-neutral justification as to the
             exercise of each of its peremptory challenges thus far, and
             there’s been no showing or evidence of purposeful


                                          - 12 -
                                 STATE V. CAMPBELL

                                  Opinion of the Court



             discrimination. And, again, the Court denies the Batson
             challenge.

Furthermore, the court did not make extensive findings on the State’s reasons, nor

did it characterize the proceedings as a “full hearing” on defendant’s Batson claim, as

did the trial court in Hobbs. Indeed, in the case at bar the court clearly did not

conduct a full hearing that would have required defendant to have an opportunity to

rebut the State’s proffered reasons.

      Therefore, step one of the trial court’s Batson inquiry was not rendered moot.

Accordingly, we are precluded from considering in our analysis the reasons given for

the State’s exercise of the peremptory challenges to the three African American jurors

at issue, as we would if the trial court had reached step two of its Batson inquiry.

      Next, we address defendant’s argument that the trial court’s order on his

Batson claim is facially deficient. Defendant asserts that in its written order, the

trial court “found only that there was not a prima facie showing made to establish

any violations by the State for its exercise of peremptory challenges.” However, given

that the court never reached the second step of the Batson analysis, this was the only

finding that was required. The trial court is only tasked with making “specific

findings of fact at each stage of the Batson inquiry that it reaches.” State v. Headen,

206 N.C. App. 109, 114, 697 S.E.2d 407, 412 (2010) (citation omitted). The record on

appeal includes the trial court’s order on defendant’s Batson challenge, setting forth




                                         - 13 -
                                        STATE V. CAMPBELL

                                         Opinion of the Court



the factual basis of the challenge and the court’s decision on the matter. Thus, the

trial court’s order is not facially deficient, as defendant contends.

        We now turn to a substantive analysis of the trial court’s order finding that

defendant failed to establish a prima facie Batson claim. From the transcript of the

hearing, we are only able to ascertain defendant’s race and that the State used three

of its four peremptory challenges to remove prospective African American jurors and

alternates.3 However, we do not know the victim’s race, the race of key witnesses,

questions and statements of the prosecutor that tend to support or refute a

discriminatory intent, or the State’s acceptance rate of potential African American

jurors. Finally, we see nothing in the record from which we can ascertain the final

racial composition of the jury.

        We will not “assume error by the trial judge when none appears on the record

before” us. State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645 (1983) (citation

omitted). Without more information regarding the factors set forth in Hoffman and

Quick, defendant has not shown us that the trial court erred in its finding that no




        3 As noted by the dissent, the hearing transcript sufficiently establishes the race of the
challenged jurors for our review by clearly indicating that the trial court and counsel for the State and
defendant agreed as to the race of each juror at issue. See Bennett, __ N.C. at __, 843 S.E.2d at 232-
33 (internal quotation marks and citations omitted) (holding that race of challenged jurors at issue
can be established for appellate review where “the record reveals the complete absence of any dispute
among counsel for the parties and the trial court concerning the racial identity of the persons who
were questioned during the jury selection process, . . . resulting in what amounts to a stipulation of
the racial identity of the relevant prospective jurors. . . . [Such a stipulation] may take a variety of
forms and may be found by implication.”).

                                                 - 14 -
                                  STATE V. CAMPBELL

                                   Opinion of the Court



prima facie showing had been made. Therefore, we uphold the trial court’s ruling on

the merits of defendant’s Batson claim.

      Our Supreme Court’s recent decision in Bennett does not affect the result of

this case. In Bennett, our Supreme Court held that the defendant had made a prima

facie Batson claim where record revealed that “all of the State’s peremptory

challenges were directed to African American prospective jurors, . . . the State did not

peremptorily challenge any white prospective juror, and . . . neither of the African

American jurors that the State peremptorily challenged provided any answers during

the course of the jury selection process that cast any doubt upon their ability to be

fair and impartial to the State.” __ N.C. at __, 843 S.E.2d at 237-38 (footnote omitted).

      Here, one of the State’s peremptory challenges was exercised against a white

prospective juror and three were exercised against African American prospective

jurors.   Defendant has failed to preserve an adequate record concerning the

challenged jurors’ answers to any questions asked by the State.           While we are

concerned that it appears seventy-five percent of the State’s peremptory challenges

involve African American prospective jurors, this standing alone is not sufficient to

sustain a Batson challenge. See State v. Barden, 356 N.C. 316, 344, 572 S.E.2d 108,

127 (2002) (citation omitted) (stating that numerical analyses of relative proportion

of State’s strikes used against potential jurors of each race and overall acceptance

rate of potential jurors of each race not alone dispositive of question whether



                                          - 15 -
                                 STATE V. CAMPBELL

                                  Opinion of the Court



defendant has established prima facie Batson claim), cert. denied, 538 U.S. 1040, 155

L. Ed. 2d 1074 (2003); State v. Maness, 363 N.C. 261, 275-76, 677 S.E.2d 796, 805-806

(2009) (citations omitted) (holding State’s use of five of eight peremptory strikes

against African American potential jurors insufficient to establish prima facie Batson

claim), cert. denied, 559 U.S. 1052, 176 L. Ed. 2d 568 (2010); State v. Lemons, No.

COA12-913, 2013 WL 152353, at *3-*4 (N.C. Ct. App. Jan. 15, 2013) (holding State’s

use of four peremptory challenges against potential African American jurors and none

against potential white jurors did not amount to prima facie Batson claim); State v.

Mays, 154 N.C. App. 572, 577, 573 S.E.2d 202, 206 (2002) (holding mere fact of State’s

use of seventy percent, or nine of thirteen, of peremptory challenges against African

American prospective jurors insufficient to establish prima facie Batson claim).

Given the posture in which we find this case, where defendant’s trial counsel

specifically declined to have jury selection recorded and the deficient record with

respect to the other Quick factors, we are unable to find the trial court erred in its

determination that defendant failed to establish a prima facie Batson violation.

      Defendants are entitled to have their Batson claims and the trial court’s

rulings thereon subjected to appellate scrutiny. To do so, it is incumbent on counsel

to preserve a record from which the reviewing court can analyze the Quick factors.

Thus, we urgently suggest that all criminal defense counsel follow the better practice

and request verbatim transcription of jury selection if they believe a Batson challenge



                                         - 16 -
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                                   Opinion of the Court



might be forthcoming. However, if that is not initially done, it is incumbent upon

counsel to place before the trial court evidence speaking to all the Quick factors for

evaluation on appeal. Without such information, it is highly improbable that such a

challenge will succeed. Such is the pitfall of defendant’s case in this appeal.

                                  IV.     Conclusion

      For the foregoing reasons, we find no error.

      NO ERROR.

      Judge ZACHARY concurs.

      Judge HAMPSON concurs in part, dissents in part by separate opinion.




                                          - 17 -
 No. COA18-998-2 – State v. Campbell


      HAMPSON, Judge, concurring in part, dissenting in part.


      Having reconsidered this matter in light of our Supreme Court’s recent

decisions in State v. Hobbs, ___ N.C. ___, 841 S.E.2d 492 (2020), and State v. Bennett,

___ N.C. ___, 843 S.E.2d 222 (2020), I continue to concur in the majority opinion in

part and dissent in part. In my prior dissent, I concluded the appropriate remedy in

this case was a remand for purposes of allowing the trial court to make an additional

record on the preliminary question of whether Defendant had established a prima

facie Batson4 challenge. I reach the same result here.

      First, I continue to agree with the majority the record before us is sufficient to

permit appellate review. See State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409,

412 (1989) (acknowledging that although the “lack of a voir dire transcript detracts

from our ability to review the substance of the proffered reasons,” the record

contained “the barest essentials” to permit review: “the racial composition of the jury,

the number of black jurors excused, and the State’s proffered reasons for their

exclusion[,]” while also noting “[t]he record also contains defense counsel’s response

to the prosecutor’s explanations and the trial judge’s conclusions”). Consequently, I

concur that the State’s Motion to Dismiss the Defendant’s Appeal was and remains

correctly denied.




      4   Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
                                    STATE V. CAMPBELL

                      Hampson, J., concurring in part, dissenting in part.



       Despite concluding Defendant in this case preserved his Batson challenge for

review even without complete recordation or a transcript of voir dire, the majority, in

effect, still concludes the record is insufficient to review Defendant’s Batson challenge

and holds Defendant has failed to show error in his case. Thus, this case continues

to illustrate the immense difficulty in preserving a Batson challenge for appellate

review that still remains under our existing caselaw. I agree a verbatim transcript

of jury selection is not always necessary to preserve a Batson challenge. Indeed, I

suspect in many cases the need to make a Batson challenge only becomes apparent

during the voir dire and after a defendant’s opportunity to request complete

recordation. Nevertheless, if there is any lesson to be drawn here from the majority

result, it appears it is that the surest (if not the only) way to preserve a Batson

challenge is to request recordation of jury voir dire in every single case for every single

defendant.

       Of course, this recordation is expressly not required by statute in noncapital

cases. See N.C. Gen. Stat. § 15A-1241(a)(1) (2019). Thus, there must be another way

to establish the necessary record to preserve the issue for appellate review. See, e.g.,

State v. Shelman, 159 N.C. App. 300, 310, 584 S.E.2d 88, 96 (2003) (requiring “a

transcript or some other document setting out pertinent aspects of jury selection” in

order to review a defendant’s Batson challenge (emphasis added)). Our Supreme

Court in Bennett illustrated through its prior caselaw such a pathway already exists:



                                             -2-
                                   STATE V. CAMPBELL

                     Hampson, J., concurring in part, dissenting in part.



this path simply requires the trial court and counsel for the parties to work

cooperatively to recreate the record by agreement or denoting where there is a

disagreement of fact. See ___ N.C. at ___, 843 S.E.2d at 231-34 (citations omitted).

Such a mechanism also already exists in our statutes governing North Carolina

criminal procedure. See N.C. Gen. Stat. § 15A-1241(c) (“When a party makes an

objection to unrecorded statements or other conduct in the presence of the jury, upon

motion of either party the judge must reconstruct for the record, as accurately as

possible, the matter to which objection was made.”). Here, for example, the trial court

and lawyers cooperated to partially recreate the record. Specifically, the parties each

put on the record their respective positions as to each peremptory challenge agreeing

the State used three out of four challenges on African American jurors and another

African American juror was excused for cause.

      The Supreme Court’s decision in Hobbs illustrates another task of vital

importance for trial courts: a trial court should explain the reasoning behind its

decision after considering all the circumstances relevant to the Batson challenge. ___

N.C. at ___, 841 S.E.2d at 502. While Hobbs was not addressing the prima facie

inquiry, its lesson still holds. The trial court’s ability to make firsthand observations

of jury selection and inquiries of trial counsel is exactly why we—as an appellate

court—must show great deference to the trial court. See State v. Nicholson, 355 N.C.

1, 21, 558 S.E.2d 109, 125 (2002) (“The trial court’s determination is given deference



                                            -3-
                                        STATE V. CAMPBELL

                         Hampson, J., concurring in part, dissenting in part.



on review because it is based primarily on firsthand credibility evaluations.” (citation

omitted)); see also State v. Hoffman, 348 N.C. 548, 554, 500 S.E.2d 718, 722 (1998)

(citations omitted). This is also why, however, it is so imperative that “ ‘[t]o allow for

appellate review, the trial court must make specific findings of fact at each stage of

the Batson inquiry that it reaches.’ ” State v. Headen, 206 N.C. App. 109, 114, 697

S.E.2d 407, 412 (2010) (quoting State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d

823, 829 (1998)). Here, the trial court did not make specific findings of fact to permit

appellate review regarding the relevant factors set out in State v. Quick5 in

determining whether there was a prima facie showing by Defendant under our Batson

analysis. See 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) (citation omitted). In my

view, the failure to explain how the trial court reached its decision—Defendant failed

to establish even a prima facie Batson challenge despite 75% of peremptory

challenges being exercised against African American jurors—was error.

        On the record we do have before us, I am persuaded Defendant’s objection to

the use of 75% of the State’s peremptory challenges on African American jurors in

this case sufficiently places this case in line with State v. Barden so as to require the

trial court to conduct a more fulsome analysis of Defendant’s objection and whether



        5 State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) (“Those factors include the
defendant’s race, the victim’s race, the race of the key witnesses, questions and statements of the
prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory
challenges against blacks such that it tends to establish a pattern of strikes against blacks in the
venire, the prosecution’s use of a disproportionate number of peremptory challenges to strike black
jurors in a single case, and the State’s acceptance rate of potential black jurors.” (citation omitted)).

                                                  -4-
                                       STATE V. CAMPBELL

                        Hampson, J., concurring in part, dissenting in part.



Defendant established a prima facie Batson challenge, including making specific

findings of fact sufficient for appellate review. See 356 N.C. 316, 344-45, 572 S.E.2d

108, 127-28 (2002) (holding the use of 71.4% of peremptory challenges on African

American jurors was supportive of a prima facie Batson violation). Barden, on a more

complete record, held a prima facie Batson violation had been established. Notably,

there, our Supreme Court pointed out there was “no hint of racism” in the prosecutor’s

questions and even noted the prosecutor accepted two (of seven) African American

jurors. Id. at 343-44, 572 S.E.2d at 127. Rather, the Supreme Court looked to both

the acceptance rate and the rate upon which the State exercised its peremptory

challenges against African American jurors.6 Acknowledging a numerical analysis is

not necessarily dispositive, the Barden Court nevertheless concluded the numerical

analysis was useful in determining a prima facie showing had been made. Id. at 344,

572 S.E.2d at 127 (citation omitted). In Barden, the numerical analysis revealed, at

least from a prima facie standpoint, a stark pattern in the acceptance and rejection

rates of African American jurors.

       I would still not go so far on this record as to hold Defendant met his burden

to establish a prima facie case for a Batson violation. In light of Barden, however,



       6  In Barden, the State used five of seven peremptory challenges on African American jurors—
the other two were used to strike a white juror and a Native American juror. At the same time, it also
appears there was a total of only seven African American prospective jurors called for voir dire—of
which the State struck five and accepted two. Id. at 344, 572 S.E.2d at 127. In other words, in that
case, the State used 71.4% of its peremptory strikes against African American jurors while also
striking 71.4% of all the eligible African American jurors.

                                                -5-
                                         STATE V. CAMPBELL

                          Hampson, J., concurring in part, dissenting in part.



the use of 75% of peremptory strikes against African American jurors in this case

requires more explanation and context for the trial court’s determination no prima

facie showing had been made. In particular, for example, while we know the State

used 75% of its peremptory challenges on African American jurors and struck another

for cause, we do not know the overall makeup of the jury pool or the rate at which

African American jurors were accepted.7

        Consequently, I would grant the limited remedy of remanding this case to the

trial court for specific findings of fact in order to permit appellate review of the trial

court’s decision, including any further evidentiary proceedings the trial court deems

necessary to accommodate its fact finding as to the factors it deems relevant. Cf.

Hoffman, 348 N.C. at 555, 500 S.E.2d at 723. As such, I respectfully dissent from the

majority result affording Defendant no relief from judgment.




        7 It is significant neither the defense nor the State set out the makeup of the jury on the record.
Under our caselaw, the acceptance rate of jurors seems to be just as applicable as the rejection rate to
either establishing or defending a prima facie Batson challenge. Further, the fact the only African
American prospective jurors discussed were the four excused either for cause or peremptorily could
imply those were the only four African American prospective jurors subjected to voir dire. Certainly,
there is also no record before us of any African American juror actually being seated in this case.

                                                   -6-
