                IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 181A93-4

                                 Filed 5 June 2020

STATE OF NORTH CAROLINA

               v.
RAYFORD LEWIS BURKE


      On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review orders entered

on 3 June 2014 and 31 July 2014 by Judge Joseph N. Crosswhite, Senior Resident

Superior Court Judge, in Superior Court, Iredell County, dismissing the claims raised

in defendant’s motions for appropriate relief. Heard in the Supreme Court on 26

August 2019.


      Joshua H. Stein, Attorney General, by Jonathan P. Babb and Danielle Marquis
      Elder, Special Deputy Attorneys General, for the State-appellee.

      Center for Death Penalty Litigation, by Gretchen M. Engel; and Malcolm R.
      Hunter Jr. for defendant-appellant.

      Cassandra Stubbs, Irena Como, Burton Craige, James Coleman, and Irv
      Joyner, for ACLU Capital Punishment Project, ACLU of North Carolina Legal
      Foundation, North Carolina Advocates for Justice, and North Carolina
      Conference of the NAACP, amici curiae.

      ACLU Capital Punishment Project, by Brian Stull; and The 8th Amendment
      Project, by Henderson Hill, for Promise of Justice Initiative and 12 Former
      Judges, Justices and Law Enforcement Officials, amici curiae.

      Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney; and Jin Hee Lee
      and Kerrel Murray for NAACP Legal Defense & Educational Fund, Inc.,
      amicus curiae.


      EARLS, Justice.
                                   STATE V. BURKE

                                  Opinion of the Court




      Defendant, Rayford Lewis Burke, was convicted of one count of first-degree

murder and sentenced to death in 1993.          After we affirmed his conviction and

sentence on direct appeal, defendant filed a motion for appropriate relief on 25

November 1997. The trial court denied that motion on 16 December 2011. We denied

review.

      Defendant filed a second motion for appropriate relief (RJA MAR) on 6 August

2010, pursuant to the North Carolina Racial Justice Act (RJA), arguing that he was

entitled to a sentence of life imprisonment without the possibility of parole. The RJA

was amended by the General Assembly in June 2012, and defendant filed an

amendment to his RJA MAR on 30 August 2012. The General Assembly repealed the

RJA on 19 June 2013. S.L. 2013-154 § 5(a), 2013 N.C. Sess. Laws 368, 372. On 3

December 2013, defendant filed a second amendment to his RJA MAR (Amended RJA

MAR). After the State filed a motion to dismiss and a motion for judgment on the

pleadings, the trial court dismissed and denied as being without merit defendant’s

claims under the RJA MAR and defendant’s August 2012 amendments to the RJA

MAR on 3 June 2014. On 31 July 2014, the trial court dismissed the claims asserted

in defendant’s Amended RJA MAR as procedurally barred and, in the alternative,

denied defendant’s claims as being without merit. Defendant appeals from both

orders.




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                                   STATE V. BURKE

                                  Opinion of the Court



      For the reasons articulated in State v. Ramseur, No. 388A10 (N.C. Jun. 5,

2020), we vacate the orders of the trial court and remand for further proceedings not

inconsistent with this opinion and our opinion in Ramseur. The trial court concluded

that the claims in defendant’s RJA MAR and Amended RJA MAR were void due to

the repeal of the RJA. However, the RJA repeal was unconstitutional under both the

North Carolina Constitution and the Federal Constitution as applied to defendant

and others similarly situated.     Further, the General Assembly’s amended RJA,

enacted in 2012, can only be applied to defendant insofar as it affects the procedural

aspects of the adjudication of his claims. As a result, the evidentiary provisions

contained in the original, unamended RJA apply to the adjudication of defendant’s

RJA claims.

      The trial court also concluded, in the alternative, that the claims in defendant’s

RJA MAR and Amended RJA MAR were without merit and procedurally barred. The

alleged procedural bars are negated by the language of the RJA. See North Carolina

Racial Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1215 (codified at

N.C.G.S. § 15A-2012(b) (repealed 2012) (“Notwithstanding any other provision or

time limitation contained in Article 89 of Chapter 15A of the General Statutes, a

defendant may seek relief from the defendant’s death sentence upon the ground that

racial considerations played a significant part in the decision to seek or impose a

death sentence by filing motion seeking relief.”).




                                          -3-
                                    STATE V. BURKE

                                   Opinion of the Court



      As to the merits of defendant’s claims, the trial court abused its discretion by

summarily denying the claims without an evidentiary hearing. See State v. McHone,

348 N.C. 254, 258, 499 S.E.2d 761, 763 (1998) (“Under subsection (c)(4), read in pari

materia with subsections (c)(1), (c)(2), and (c)(3), an evidentiary hearing is required

unless the motion presents assertions of fact which will entitle the defendant to no

relief even if resolved in his favor, or the motion presents only questions of law, or the

motion is made pursuant to N.C.G.S. § 15A-1414 within ten days after entry of

judgment.”). To support each of his claims, defendant presented evidence that race

was a significant factor in jury selection, sentencing, and capital charging decisions

in the relevant jurisdictions at the time of his trial and sentencing. Defendant cited

several statistical studies, including an extensive statistical study of capital charging,

sentencing, and jury selection in North Carolina which was conducted by professors

at Michigan State University College of Law. Defendant also cited that study’s

underlying data. Defendant cited to and analyzed data from voir dire transcripts and

juror questionnaires from capital cases in his prosecutorial district. He also pointed

to expert testimony and anecdotal evidence that was presented and considered in

another RJA case, State v. Robinson. See State v. Robinson, No. 411A94 (N.C. argued

Aug. 26, 2019). Further, defendant pointed to evidence of race-based strikes during

jury selection in his own case and alleged that the State offered pretextual reasons

that were also used by the same office in connection with other litigation. In light of




                                           -4-
                                  STATE V. BURKE

                                  Opinion of the Court



the evidence and arguments presented by defendant, the trial court’s denial of his

claims without a hearing was an abuse of discretion.

      Consistent with our decision in Ramseur, we conclude that the RJA repeal and

the 2012 amendments altering the evidentiary requirements for an RJA claim cannot

be constitutionally applied in defendant’s case. We also conclude that the trial court

erred in ruling that defendant’s claims lacked merit and were procedurally barred

and erred by denying his RJA claims without a hearing. We remand for further

proceedings not inconsistent with this opinion.

      VACATED AND REMANDED.

      Justice ERVIN did not participate in the consideration or decision of this case.




                                          -5-
      Justice NEWBY dissenting.

      In January 1992, in cold blood in front of three eye witnesses, defendant shot

and killed the victim, Timothy Morrison, because Morrison had testified against him

in an earlier murder case. State v. Burke, 343 N.C. 129, 137–38, 469 S.E.2d 901, 904–

05 (1996). The jury found defendant guilty of first-degree murder. In the sentencing

phase the jury found that there were two statutory aggravating factors: that

defendant had previously committed a violent offense and that he murdered someone

who was a former witness against him. The jury sentenced defendant to death.

Defendant appealed his conviction and sentence to this Court. After extensive review,

this Court upheld defendant’s conviction and sentence, concluding that no prejudicial

error occurred and that the trial court properly imposed the death penalty. Id. at 163,

469 S.E.2d at 919.

      Subsequently, defendant challenged his murder conviction by filing a Motion

for Appropriate Relief (MAR) initially in 1997, amended in 2002, and amended again

several times thereafter. The trial court ultimately denied defendant’s MAR in 2011,

and this Court denied further review of the trial court’s decision in 2012.

      In the interim, on 6 August 2010, defendant filed a second MAR, this time

pursuant to the North Carolina Racial Justice Act (RJA). After the General Assembly

amended the RJA in June 2012, defendant filed an amendment to his RJA MAR on

30 August 2012 (first amendment to defendant’s RJA MAR). On 19 June 2013, the

General Assembly repealed the RJA. S.L. 2013-154, § 5(a), 2013 N.C. Sess. Laws 368,

372. After the State moved to dismiss defendant’s RJA claims, defendant filed
                                  STATE V. BURKE

                                 Newby, J., dissenting



another amendment to his RJA MAR in December 2013 (second amendment to

defendant’s RJA MAR), raising additional constitutional claims not previously

litigated.

       Ultimately on 3 June 2014, the trial court dismissed, and in the alternative

denied as being without merit, defendant’s original RJA MAR and the first

amendment to his RJA MAR. Subsequently, on 31 July 2014, the trial court also

dismissed, and in the alternative denied as being without merit, defendant’s second

amendment to his RJA MAR. Defendant now appeals both of the trial court’s orders

denying relief.

       This Court now reinstates defendant’s RJA claims that the trial court

previously dismissed and denied. For the reasons stated in the dissenting opinion in

State v. Ramseur, No. 388A10 (N.C. June 5, 2020), I respectfully dissent.




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