                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1161

                               Filed: 20 September 2016

Lee County, No. 09 CRS 52451, 52454

STATE OF NORTH CAROLINA

               v.

BRIAN MICHAEL McQUEEN, Defendant.


         Appeal by Defendant from judgments entered 23 July 2014 by Judge C.

Winston Gilchrist in Lee County Superior Court. Heard in the Court of Appeals 25

August 2016.


         Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell,
         for the State.

         Leslie C. Rawls for Defendant-Appellant.


         HUNTER, JR., Robert N., Judge.


         Brian Michael McQueen (“Defendant”) appeals following a jury verdict

convicting him of first degree murder and robbery with a firearm. Following the

verdicts, the trial court imposed a sentence of life without parole.      On appeal,

Defendant contends he is entitled to a new trial because the trial court clearly erred

in denying his Batson challenges. We disagree and hold the trial court did not commit

error.

                      I. Factual and Procedural Background
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      On 24 September 2009, a Lee County grand jury indicted Defendant, a Black

male, on one count of first degree murder and one count of robbery with a dangerous

weapon.    On 30 November 2009, the case was declared a capital offense.           At

arraignment, Defendant pled not guilty. On 12 July 2012, defense counsel filed a

pretrial motion entitled, “Motion to Prohibit District Attorney From Peremptorily

Challenging Prospective Black Jurors.” In it, Defendant requested the trial court

“prohibit the District Attorney from exercising peremptory challenges as to potential

black jurors, or in the alternative, to order that the District Attorney state reasons

on the record for peremptory challenges of such jurors.”        The trial court denied

Defendant’s motion.

      The case was called for trial 5 May 2014.          On the jury questionnaires,

prospective jurors were asked to answer “yes” or “no” to the question, “Have you or a

family member ever been charged with a crime?” Juror 2 answered “no,” Juror 10

answered “yes,” Juror 11 answered “no,” and Juror 12 answered “yes.”

      On the second day of jury selection, 13 May 2014, prospective Juror 2 was

called alone into the jury box. Juror 2 is a seventy-year-old black male who serves as

a pastor and works as a security officer. He described his “thoughts about the death

penalty” as follows:

             Well, I don't agree with the death penalty because of the
             fact that . . . my religion says, "Thou Shalt Not Kill,” and I
             don't want to be responsible for taking somebody's life. So
             I don't agree with the death penalty under no


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              circumstances. But now, as far as going to jail for life, I
              would agree to that, but not the death penalty. . . . I can’t
              preach one thing and then turn around and do something
              else.

Juror 2 elaborated, “I’m totally against the death penalty, but maybe in some cases I

might would change my mind,” such as a defendant who “chop[ped] [a person] into

pieces and then maybe burn[ed] them.” The State asked to strike Juror 2 for cause,

which the trial court denied. The State exercised a peremptory challenge and struck

Juror 2. On voir dire, defense counsel raised a Batson challenge and the trial court

found “there is no prima facie case” and summoned the next prospective juror.

      Juror 10 was called to the jury box on 4 June 2014, the seventeenth day of jury

selection.   Juror 10 is a thirty-one-year-old black female who works as a line

technician. On voir dire, the State asked her which crimes she or her family members

were charged with. She did not state she was convicted of any crimes, though her

records indicated she was convicted of three counts of driving without a license and

charged with felony possession of cocaine and possession of drug paraphernalia.

When asked about her thoughts about the death penalty, she stated, “no one has the

right to take another person’s life,” because she believes in the Commandment, “Thou

Shalt Not Kill.”

      The State used a peremptory challenge to strike Juror 10 and defense counsel

raised a Batson challenge. The trial court found Defendant did not establish a prima

facie case but gave “the State an opportunity to state race-neutral reasons for the


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record.” The State claimed it struck Juror 10 because of her thoughts regarding the

death penalty, and because she failed to disclose her criminal history when the State

questioned her. The trial court afforded defense counsel “an opportunity to provide

surrebuttal and to show the reasons offered by the State were inadequate or

pretextual.” On surrebuttal, defense counsel stated religion was not a strong enough

basis for a peremptory challenge and that the State did not ask Juror 10 about her

criminal charges. The State responded by providing additional reasons for striking

Juror 10: when asked whether she believed law enforcement treated her brother

fairly, she responded, “I would hope so,” with a “smirk” on her face; when asked

whether her brother’s situation would affect her ability to be fair and impartial to

both sides in this case, she paused, looked away, and said, “I have no opinion about

any of his situations, he did what he did.” The trial court found Defendant did not

make out a prima facie case for his Batson challenge and ordered Juror 10’s criminal

record to be included in the court file. The trial court stated:

             The Court finds that [the criminal] record certainly
             provides an additional basis for the State’s exercise of a
             peremptory challenge. However, the Court also finds that
             the State’s bases for the exercise of a peremptory challenge
             to this juror were adequate, race-neutral and non-
             discriminatory and non-pretextual, even in the absence of
             any evidence of the [juror] having any criminal record
             herself.

      Juror 11 was called to the jury box on 9 June 2014, the twentieth day of jury

selection. Juror 11 is a sixty-four-year-old black male who works for the North


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Carolina Department of Transportation. On voir dire, he stated his great-niece

worked for a potential witness, Mr. Webb, Defendant’s former attorney. Juror 11

stated he spoke with Mr. Webb on multiple occasions. Juror 11 also worked with

Defendant’s grandfather in the 1960s, whom he last saw twelve to fifteen years prior

to trial. Although he did not indicate so on the jury questionnaire, Juror 11 was

familiar with five names on the witness lists. The record shows Juror 11 pled guilty

to four prior charges regarding worthless checks with restitution of $3,869.56 in one

of those instances. When asked about the worthless check charges, Juror 11 stated,

there were “two or three . . . and the bank would call me, notify me, I [would] go put

the money there or what have you.” The record also shows Juror 11 was twice charged

with driving while his license revoked, though he only referred to a seatbelt violation

when the State asked him about previous traffic offenses on voir dire.

      The State used a peremptory challenge raised concern about Juror 11’s

truthfulness and criminal history, stating, “[I]f we cannot trust a juror to be honest

with us about matters which are essentially public record, then I don’t know that we

could trust them in terms of them telling use about other matters which are not easily

verifiable.” Defense counsel raised a Batson challenge and alleged the State was

disproportionately striking black jurors. In response, the State claimed it struck

Juror 11 because of his criminal history, his truthfulness, he knew one of the State’s

witnesses and four of Defendant’s witnesses, his great-niece currently worked for a



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potential witness, and he previously worked with Defendant’s grandfather. The State

reiterated, “It’s a combination of things. It’s a read you get from somebody.” On

surrebuttal, defense counsel stated there was a “double standard being applied” to

black prospective jurors. The trial court denied Defendant’s challenge and stated the

following:

             The Court finds that the defendant—bear in mind the
             defendant’s low hurdle for the defendant to get over, has
             stated a prima facie case with respect to a Batson
             challenge. However, the Court finds that the State has
             provided and acted upon race-neutral, non-discriminatory
             and non-pretextual reasons for exercising its peremptory
             challenge. . . . [I am] [g]etting a little bit concerned about
             the rate of challenges, so I just draw that to the attention
             of counsel. Certainly, as I’ve indicated, there was ample
             reason to challenge [Juror 11] and all of the previous jurors
             that have been struck by the State as well.

      Juror 12 was called to the jury box on 11 June 2014, the twenty-second day of

jury selection. Juror 12 is a forty-nine-year-old white male who is unemployed and

previously worked in construction. He did “computer work” for potential witness Mr.

Webb in the past, and Mr. Webb previously represented his wife for a traffic violation.

Juror 12 had two worthless check charges with restitution of $10.00 and $20.00

respectively, and was previously charged with assault by pointing a gun and driving

without a license. Juror 12 answered directly to all questions regarding previous

criminal charges.

      The State passed on Juror 12, prompting defense counsel to re-argue its Batson

challenge regarding Juror 11. Defense counsel argued, “the State is now passing on

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a white juror when that juror . . . appears to have the same issues that the State used

to excuse African American jurors.” The State responded and distinguished Jurors

11 and 12, and emphasized, “his answers regarding past involvement with the court

system” were not the “sole reason for challenging [Juror 11].” The State contended

Juror 12 had a previous business relationship Mr. Webb, whereas Juror 11’s relative

currently works for Mr. Webb, and Juror 11 has met with Mr. Webb “three to four

times.” Moreover, Juror 11’s worthless check charges totaled to over $4,000.00 and

Juror 12’s only totaled to $30.00. Juror 11 did not acknowledge his prior charges and

Juror 12 did so without additional questioning. On surrebuttal, defense counsel

pointed out the similarities in Juror 11 and 12’s criminal records and argued Juror

11 did not have a close relationship with his great-niece or Mr. Webb. The trial court

denied defense counsel’s Batson challenge again, and stated:

             The Court’s prior rulings with respect to the Batson
             challenge to [Juror 11] are confirmed in all respects. The
             previous findings are confirmed. The defendant’s . . .
             renewed Batson challenge is denied. State has offered race-
             neutral reasons for challenging [Juror 11] peremp-torily.
             Those reasons are non-discriminatory and are non-
             pretextual.

      At the conclusion of jury selection, four out of the fifteen chosen jurors (26.6%)

were African American, ten (66.7%) were Caucasian, and one (6.7%) was White

American Indian. At trial, after the close of the evidence, the jury that heard the case

consisted of three African Americans, eight Caucasians, and one White American

Indian. The alternate jurors consisted of one African American and two Caucasians.

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The record shows the parties questioned eighty-six prospective jurors on voir dire.

Twenty-one (24.4%) of those prospective jurors identified themselves as African

American, fifty-nine (68.6%) as White, one (1.17%) as Asian, one (1.17%) as Hispanic,

one (1.17%) as Multiracial, one (1.17%) as Spanish, one (1.17%) as White American

Indian, and one (1.17%) as White-Hispanic Mix.

      After opening statements, the State presented evidence of two eyewitnesses

who identified Defendant, two expert witnesses, statements made by Defendant to

police, and photos of the crime scene. The following is a summary of the evidence

taken in the light most favorable to Defendant.

      In April 2009, Imad Asmar (“Asmar”), a Palestinian, purchased the Jackpot

Mini Mart, a convenience store in Sanford, North Carolina. Asmar worked with his

brother Ali Mustafa (“Mustafa”), and his son, Ahmad Imad Asmar (“A.J.”). Defendant

regularly visited the Jackpot Mini Mart.

      Around 9:00 p.m. on 17 August 2009, Asmar arrived at the Jackpot Mini Mart

while A.J. and Mustafa were working. Asmar’s wife and younger son waited in the

car while Asmar went inside the store. Asmar told A.J. to take his wife and son

something to drink. A.J. took drinks to the two in the parking lot and sat with them

in the car. Mustafa came out of the store but returned when a customer arrived. The

customer left and Defendant walked towards the store and flashed a peace sign with




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his hand towards A.J. A.J. recognized Defendant, who had visited the store earlier

that day.

      Asmar and Mustafa talked at the front counter when Defendant entered the

store. Immediately, Defendant walked towards the counter, pulled out a .38 caliber

revolver, and shot at Asmar and Mustafa multiple times. Four bullets struck Asmar

in the chest, left shoulder, and both arms. Defendant demanded cash and stated, “I

need hundreds.” Defendant shot Asmar again as Asmar walked towards the exit.

Defendant shot Mustafa in the neck, and Mustafa gave Defendant all of the money

in the cash register and his pockets. The entire exchange lasted thirty seconds.

Defendant walked out of the store and flashed a peace sign at A.J. again before

walking into the nearby woods.

      Thereafter, Mustafa rushed out of the store and called emergency medical

services (“EMS”). Mustafa asked A.J. which direction Defendant fled, and Mustafa

relayed Defendant’s whereabouts to the 911 dispatcher. Sanford police officers and

EMS personnel arrived minutes later. Paramedics took Asmar to the hospital where

he later died. An autopsy revealed Asmar was shot four to five times.

      Lead investigator Detective Keith Rogers of the Sanford Police Department

and Detective Eric Pate presented photo lineups to A.J. and Mustafa separately.

Both A.J. and Mustafa identified Defendant as the robber.




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       Five hours later, police arrested Defendant and took him to the police station.

Detective Rogers interviewed Defendant and Defendant claimed he was not involved

in the robbery. Later, Defendant stated he accompanied another person who shot the

men. Ultimately, Defendant confessed and told police he decided to rob the store but

the gun accidentally went off during the robbery when Asmar reached for it.

Defendant told officers he got the gun from a man named “Cougar” to rob the store,

and he and Cougar split the stolen money. Defendant told police he “didn’t want to

kill anybody.”

       On 15 July 2014, the jury convicted Defendant of first degree murder and

robbery with a firearm. The trial court imposed a sentence of life without parole.

Defendant timely entered his notice of appeal.

                               II. Standard of Review

       “The ‘clear error’ standard is a federal standard of review adopted by our

courts for appellate review of the Batson inquiry.” State v. James, 230 N.C. App. 346,

348, 750 S.E.2d 851, 854 (2013) (citing State v. Cofield, 129 N.C. App. 268, 275 n.1,

498 S.E.2d 823, 829 n. 1 (1998)). “Since the trial judge’s findings . . . largely will turn

on evaluation of credibility a reviewing court ordinarily should give those findings

great deference.” James, 230 N.C. App. at 348, 750 S.E.2d at 854 (citations omitted).

“The trial court’s ultimate Batson decision will be upheld unless the appellate court




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is convinced that the trial court’s determination is clearly erroneous.” Id. (citation

omitted).

                                      III. Analysis

      In a capital murder case, the defendant and State are each afforded fourteen

peremptory challenges during jury selection. N.C. Gen. Stat. § 15A-1217(a). However,

Article I, Section 26 of the Constitution of North Carolina and the Equal Protection

Clause of the Fourteenth Amendment of the United States Constitution “prohibit race-

based peremptory challenges during jury selection.” James, 230 N.C. App. at 348, 750

S.E.2d at 854 (citation omitted).

      In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court

announced a three-part test for Batson objections. Our Supreme Court utilized this

analysis in State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), and set out the

following test:

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

Id. at 527, 669 S.E.2d at 254 (citations omitted). Defendant challenges the first and

third prongs of the Batson test. He contends the trial court clearly erred in finding

he did not make a prima facie showing that the State exercised a race-based

peremptory challenge to Jurors 2, 10, and 11.

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      The burden of presenting a prima facie showing the State exercised a race-

based peremptory challenge is a low hurdle for defendants. James, 230 N.C. App. at

349, 750 S.E.2d at 854. The defendant must show that he is a “member of a cognizable

racial group and . . . the [State] has used peremptory challenges to remove from the

jury members of the defendant’s race.” State v. Jackson, 322 N.C. 251, 254, 368

S.E.2d 838, 840 (1988). The showing only need be “sufficient to shift the burden to

the State to articulate race-neutral reasons for its peremptory challenge.” James,

230 N.C. App. at 349, 750 S.E.2d at 854 (quoting State v. Hoffman, 348 N.C. 548, 553,

500 S.E.2d 718, 722 (1998)).

      When the State volunteers its reasons for striking a juror, or the trial court

requires the State to give such reasons, prior to making a finding, “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 credible, nondiscriminatory basis for the challenges or simply

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

      After the defendant’s prima facie showing, the burden shifts to the State to

give race-neutral reasons for its strike. Under this second prong, the State must

articulate legitimate, clear, and specific reasons which provide a race-neutral

explanation for exercising the challenge. Jackson, 322 N.C. at 254, 368 S.E.2d at 840.

When analyzing these reasons, we “address the factors as a totality which when



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considered together provide an image of a juror considered in the case undesirable by

the State.” State v. Porter, 326 N.C. 489, 501, 391 S.E.2d 144, 152–53 (1990). Our

Supreme Court identified multiple race-neutral reasons a party may rely upon when

exercising peremptory challenges: “[r]eservations of a juror concerning his or her

ability to impose the death penalty;” a potential juror or relative of the juror’s criminal

history; reservations about whether law enforcement treated a family member fairly;

a potential juror’s familiarity with the defendant or defendant’s family; excessive eye

contact or failure to make appropriate eye contact; or other reasons which correspond

to a valid for-cause challenge but do not rise to the level of for-cause excusal. See

State v. Cummings, 346 N.C. 291, 310, 488 S.E.2d 550, 561; Porter, 326 N.C. at 499,

391 S.E.2d at 151; State v. Carter, 212 N.C. App. 516, 524, 711 S.E.2d 515, 523 (2011);

State v. Crummy, 107 N.C. App. 305, 322, 420 S.E.2d 448, 457 (1992); Hernandez v.

New York, 500 U.S. 352, 362–63 (1991).

       Following the State’s rebuttal, the defendant has a right of surrebuttal to show

the State’s race-neutral reasons are merely pretext. Porter, 326 N.C. at 497, 391

S.E.2d at 150. To determine whether the defendant makes such a showing, “the trial

court should consider the totality of the circumstances, including counsel’s credibility,

and the context of the information elicited.” State v. Cofield, 129 N.C. App. 268, 279,

498 S.E.2d 823, 831 (1998) (citing State v. Barnes, 345 N.C. 184, 212, 481 S.E.2d 44,




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59 (1997); State v. Thomas, 329 N.C. 423, 432, 407 S.E.2d 141, 148 (1991), cert.

denied, 522 U.S. 824 (1997)).

      Our Supreme Court utilized the following factors to determine if a party

engaged in purposeful discrimination:

             (1) the susceptibility of the particular case to racial
             discrimination; (2) whether similarly situated whites were
             accepted as jurors; (3) whether the [party at issue] used all
             of its peremptory challenges; (4) the race of the witnesses
             in the case; (5) whether the early pattern of strikes
             indicated a discriminatory intent; and (6) the ultimate
             racial makeup of the jury. In addition, [a]n examination of
             the actual explanations given by the [party at issue] for
             challenging black veniremen is a crucial part of testing
             defendant’s Batson claim. It is satisfactory if these
             explanations have as their basis a “legitimate hunch” or
             “past experience” in the selection of juries.

James, 230 N.C. App. at 351, 750 S.E.2d at 856 (citing State v. Robinson, 336 N.C.

78, 93–94, 443 S.E.2d 306, 312–13 (1994), cert. denied, 513 U.S. 1089 (1995)).

      Recently, the United States Supreme Court reversed the Georgia Supreme

Court and found the prosecution engaged in purposeful discrimination in a murder

case involving a Black male defendant and an elderly white female victim. See Foster

v. Chatman, ___ U.S. ___, 136 S.Ct. 1737 (2016). The jury venire list in Foster reveals

the following: the State made a legend on the list indicating green highlighting

“represents Blacks”; the State highlighted the names of Black prospective jurors;

“[t]he letter ‘B’ also appeared next to each [B]lack prospective juror’s name; the State

wrote “B#1,” “B#2,” and “B#3,” next to the names of three black prospective jurors;


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the State made a list of “definite NO’s,” with six names, five of which were black

jurors; the State made a note that reads, “Church of Christ . . . NO. No Black

Church.”; and every jury questionnaire completed by a Black juror had the race

circled. Id., ___ U.S. at ___, 136 S.Ct. at 1744. The State gave reasons for striking

the jurors that did not involve race. Id. ___ U.S. at ___, 136 S.Ct. at 1751. At oral

argument Justice Kagan asked, “Isn’t this as clear a Batson violation as a court is

ever going to see?” Relying upon the State’s case file and jury notes, the Court held

the State’s strikes of Black perspective jurors was pretextual and reversed and

remanded the case. Id. ___ U.S. at ___, 136 at 1753.

      When analyzing alleged disparate treatment of prospective jurors, we consider

whether the jurors in question are in fact similarly situated. State v. Waring, 364

N.C. 443, 490–91, 701 S.E.2d 615, 645 (2010). Our Supreme Court held:

             Merely because some of the observations regarding each
             stricken venireperson may have been equally valid as to
             other members of the venire who were not challenged does
             not require finding the reasons were pretextual. A
             characteristic deemed to be unfavorable in one prospec-tive
             juror, and hence grounds for a peremptory challenge, may,
             in a second prospective juror, be outweighed by other,
             favorable characteristics.

Porter, 326 N.C. at 501–502, 391 S.E.2d at 153 (quotations omitted). When there are

additional factors that distinguish jurors who are excused from those who are not,

and the defendant cannot make a showing of pretext, the defendant fails to meet his




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burden of proving purposeful discrimination. See State v. Jackson, 322 N.C. 251, 257,

368 S.E.2d 838, 841 (1988).

      Here, the two victims and the eyewitness in this case are Palestinian and

Defendant is black. The State exercised a peremptory strike against Juror 2, a black

male, who was questioned immediately following a third prospective juror, who was

also black and seated on the jury. When questioned about his thoughts concerning

the death penalty, Juror 2 stated he would not agree with the death penalty under

any circumstances, elaborating he was a pastor and agreeing with the death penalty

would make him a hypocrite, and that he might hypothetically agree to the death

penalty if a defendant chopped someone into pieces and burned them. Our Supreme

Court held that “[r]eservations of a juror concerning his or her ability to impose the

death penalty constitute a racially neutral basis for exercising a peremptory

challenge.” Cummings, 346 N.C. at 310, 488 S.E.2d at 561.

      The State exercised a peremptory strike against Juror 10, a black female. After

Defendant raised a Batson challenge, the State explained their bases for the strike:

Juror 10’s thoughts about the death penalty; her failure to disclose past criminal

charges; her reservations about whether law enforcement treated her brother fairly;

and her lack of eye contact when asked whether her brother’s prosecution would affect

her ability to be fair and impartial to both sides of the case. Our courts held the

aforementioned bases for exercising the peremptory challenge to be racially neutral.



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Id.; Porter, 326 N.C. at 499, 391 S.E.2d at 151; Crummy, 107 N.C. App at 322, 420

S.E.2d at 457.

      The State exercised a peremptory strike against Juror 11, a black male. The

State did not strike Juror 12, a white male. Jurors 11 and 12 were charged with

writing worthless checks and driving while license revoked in the past, and both knew

a potential witness, Mr. Webb. However, this “state of circumstances in itself does

not necessarily lead to a conclusion that the reasons given by [the State] were

pretextual.” Cofield, 129 N.C. App. at 279, 498 S.E.2d at 831 (citations omitted). As

in Jackson, there are additional factors distinguish Jurors 11 and 12: Juror 12

responded directly to questions about his criminal charges and Juror 11 minimized

his criminal history; Juror 11 avoided questions regarding his family member’s

criminal charges; and Juror 12 had a business relationship with Mr. Webb, whereas

Juror 11 spoke with Mr. Webb on multiple occasions and his great-niece worked for

Mr. Webb. 322 N.C. at 257, 368 S.E.2d at 841.

      After reviewing the record, it is clear the trial court properly considered the

totality of the circumstances, the credibility of the State, and the context of the

peremptory strikes against Jurors 2, 10, and 11. Cofield, 129 N.C. App. at 279, 498

S.E.2d at 831 (citations omitted). Therefore, in light of the record, we hold the trial

court did not commit clear error in rejecting Defendant’s Batson objections.

                                   IV. Conclusion



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For the foregoing reasons we hold the trial court did not commit error.

NO ERROR.

Judges McCULLOUGH and DIETZ concur.




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