State v. Hobbs ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1255
Filed: 17 July 2018
Cumberland County, No. 10 CRS 63629
STATE OF NORTH CAROLINA
v.
CEDRIC THEODIS HOBBS, JR.
Appeal by defendant from judgments entered 18 December 2014 by Judge
Robert F. Floyd in Cumberland County Superior Court. Heard in the Court of
Appeals 7 June 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
Kunstling Irene, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling
Rozear, for defendant-appellant.
TYSON, Judge.
Cedric Theodis Hobbs, Jr. (“Defendant”) appeals from a jury’s guilty verdicts,
convicting him of first-degree murder, robbery with a dangerous weapon, attempted
robbery with a dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. We find no error.
I. Background
Rondriako Burnett was murdered on 5 November 2010 in or around Thomson,
Georgia. Keon, Burnett’s brother, testified that the last time he had seen his brother
STATE V. HOBBS
Opinion of the Court
alive was that afternoon when he had left with Defendant, who was riding in
Burnett’s red Suburban SUV. The next morning, Burnett’s sister received a call
informing her that a body, later confirmed to be Burnett, had been found. Burnett’s
red Suburban SUV was not found with his body. A .380-caliber bullet was recovered
from Burnett’s body during the autopsy.
On the morning of 6 November 2010, Kyle Harris and Demarshun Sanders,
were working at Cumberland Pawn Shop, located in a small shopping center in
Fayetteville, North Carolina. At approximately 8:45 a.m., Sanders observed
Defendant and a woman sitting inside of a red SUV in the parking lot of the center.
Shortly thereafter, around 9:00 a.m., Defendant entered the store to pawn a CD
player. Harris told Defendant he would not accept the CD player because it was not
working. Subsequently, Defendant returned to the store seeking to pawn car
speakers. He told Harris that his SUV was broken down and he needed help. Upon
hearing Defendant’s reasoning, Harris agreed to accept the speakers and paid
Defendant $45.00. The red SUV remained parked in the parking lot for the rest of
the day and was observed there by several employees and customers.
Later that evening, Harris, Derrick Blackwell, and Sean Collins were working
inside the pawn shop when Defendant re-entered, carrying a backpack. Defendant
was accompanied by the woman previously seen inside the red SUV, later identified
-2-
STATE V. HOBBS
Opinion of the Court
as Alexis Mattocks, who was carrying a suitcase. Defendant and his companion
casually browsed the store, while the employees played video games on their laptops.
Defendant pulled a gun, identified as a silver-chromed Lorcin .380 caliber
handgun, and pointed it at all three employees. Defendant told the employees to
empty their pockets, demanded their phones, wallets, and keys, and for the cash
register be emptied.
To fulfill Defendant’s request, Harris began walking toward the cash register.
Defendant pulled the trigger and shot Harris in the upper chest. Defendant then
walked behind the counter, pointed the gun at Blackwell, and instructed him to
empty the cash register. After taking the money inside the register, Defendant
directed his attention to Collins, who was instructed to empty his pockets. Collins
complied, and threw the contents of his pockets on the ground towards Defendant.
Defendant took money off the floor and proceeded to grab the wounded Harris’ car
keys from his belt loop.
Defendant exited the store and moved some items from the red SUV, later
confirmed to be Burnett’s stolen Suburban, and drove off in Harris’ silver colored
Saturn Ion. When first responders arrived on the scene, Harris was unresponsive.
Harris died from the injuries resulting from the gunshot wound.
On the night of 6 November 2010, Washington, D.C. Police Officer Jerry Reyes
observed a Saturn Ion bearing a North Carolina license plate. Officer Reyes checked
-3-
STATE V. HOBBS
Opinion of the Court
the plate, learned the vehicle was stolen, and began pursuit. When back-up officers
arrived, Officer Reyes executed a traffic stop. There were three people inside the car:
Defendant, who was driving, Mattox, and their young child. Officer Reyes pulled
Defendant out of the car, handcuffed and arrested him.
The Washington, D.C. Police learned an occupant of the stolen Saturn was a
“person of interest” in connection with a robbery/homicide in Fayetteville, North
Carolina, and contacted the Fayetteville Police Department. After verifying
Defendant was the “person of interest” and seeing blood located on Defendant’s shoes,
Washington D.C. Police obtained a search warrant for the Saturn. The subsequent
search recovered a .380-caliber Lorcin handgun. The bullets removed from the bodies
of Rondriako Burnett and Kyle Harris matched with a test shot later fired from the
recovered Lorcin .380-caliber handgun.
The Fayetteville Police Department obtained North Carolina warrants, and
Detective Sondergaard traveled to Washington D.C. to interview Defendant.
Defendant stated his purpose for the robbery was to get “[m]oney and guns” and he
had fired his weapon to “scare” the employees of the pawn shop, but he “wasn’t trying
to shoot” Harris.
On 4 August 2014, Defendant was indicted for first-degree murder, first-degree
kidnapping, two counts of second-degree kidnapping, two counts of robbery with a
dangerous weapon, two counts of attempted robbery with a dangerous weapon, and
-4-
STATE V. HOBBS
Opinion of the Court
conspiracy to commit robbery with a dangerous weapon. Defendant gave notice to
assert the defenses of mental infirmity, diminished capacity, and automatism.
A capital first-degree murder trial and for the other related charges
commenced against Defendant. At the close of the State’s evidence, Defendant moved
to dismiss all charges. The court dismissed the three kidnapping charges, but denied
Defendant’s motion to dismiss any of the remaining charges.
Defendant did not testify at trial, but presented evidence of his background
though the testimony of various family members, and evidence of his mental health
through expert witnesses. The testimony of his family members stated Defendant
had survived a troubled childhood. He had lived in bad neighborhoods where drive-
by shootings were frequent, and drug use and violence were present. His father
abused alcohol and drugs during Defendant’s childhood and adolescence. His mother
abused Defendant by spanking him repeatedly. Defendant’s mother was described
as “different” and “real strange” by Defendant’s aunts.
Abandoned by his parents, Defendant went to live with his aunt and uncle,
who suffered through many evictions and also lived in crime-ridden neighborhoods.
Even though Defendant was described as a bright student, his behavior and
performance began to change drastically in high school. In 1997, Defendant was
arrested for armed robbery and was placed into a drug treatment program.
Defendant lost interest in the marching band, his grades began to drop, and his
-5-
STATE V. HOBBS
Opinion of the Court
absences from school increased. His probation was revoked and he served time in
prison. After meeting Alexis Mattocks, and after the birth of their daughter,
Defendant was described as beginning to turn his life around.
Defendant returned to Georgia in August 2010 after residing in Washington,
D.C. for several years, when his family was evicted from their home. A couple of
months after moving back to Georgia, Defendant relapsed into drug use and bought
drugs from Rondriako Burnett.
Dr. Ginger Calloway, a psychologist, testified regarding Defendant’s and his
parents’ prior mental health diagnoses and Defendant’s substance abuse. Dr.
Calloway asserted Defendant’s background and experiences were all influential on
Defendant’s actions at the time of the murders.
Defendant told Dr. Calloway he had routinely carried a gun when he lived in
D.C. because of the violence, began committing robberies in 1997 to obtain money,
and he had used and sold drugs. He also stated to Dr. Calloway he had not intended
to kill Harris.
Dr. George Corvin, a psychiatrist, testified about his diagnoses of Defendant,
which included persistent depressive disorder, post-traumatic stress disorder,
multiple substance abuse disorder, and characteristics of borderline personality
disorder and paranoid personality disorder. Dr. Corvin opined that Defendant’s
mental abilities were affected by mental illness at the time of the offenses.
-6-
STATE V. HOBBS
Opinion of the Court
Defendant told Dr. Corvin he had relapsed and began using cocaine again
approximately two weeks before the offenses. Defendant also told Dr. Corvin that
the day before he shot Burnett, he and Burnett had engaged in an altercation over
money. Burnett had shot a gun into the air, which startled Defendant, upset
Mattocks, and made their baby cry. Defendant shot Burnett the next day and stated
he was mad at Burnett and wanted to kill him.
Dr. Corvin testified that he understood Defendant had taken Mattocks and
their baby out of Georgia, because Defendant’s family had been talking about taking
the baby away from them. They hid Burnett’s SUV until after dark, then drove to
Fayetteville, North Carolina, to the Cumberland Pawn Shop.
Once there, the vehicle would not start, and they came up with a plan to rob
the pawn shop. They bought duct tape and planned to have Defendant hold the gun.
Mattocks was to restrain the employees with the duct tape, take money and guns
from the pawn shop, steal Harris’ Saturn, and then they would drive to Washington,
D.C. to sell the guns.
Dr. Corvin stated Defendant had told him that he did not intend to hurt anyone
during the robbery, and displayed remorse for killing Harris, but not for killing
Burnett, who Defendant thought was a “very bad person.” Dr. Corvin opined
Defendant’s ability to think, reason, and make judgments was compromised at the
-7-
STATE V. HOBBS
Opinion of the Court
time of the robbery. Dr. Corvin stated while Defendant did plan and intended the
robbery, he personally doubted Defendant had intended to kill Harris.
Based upon the evidence presented, defense counsel made three written
requests for jury instructions at the charge conference. Defense counsel proposed
instructions on: (1) first-degree murder with premeditation and deliberation; (2) lack
of mental capacity; and (3) deliberation. The trial court denied the requests for
deliberation and first-degree murder with premeditation and deliberation. The court
indicated that these proposed instructions were covered in substance in the pattern
jury instructions, but granted defense counsel’s request for a proposed instruction on
lack of mental capacity.
The jury found Defendant guilty of all charges, including first-degree murder
on both the basis of premeditation and deliberation and under the felony murder rule.
The jury deadlocked 11-to-1 in favor of a capital sentence. The trial judge sentenced
Defendant to life imprisonment without parole for the first-degree murder conviction,
consolidated with one of the attempted robbery with a dangerous weapon convictions,
followed by consecutive sentences on each of the remaining convictions. Defendant
filed timely notice of appeal.
II. Jurisdiction
An appeal of right lies with this court from a final judgment of the superior
court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2017).
-8-
STATE V. HOBBS
Opinion of the Court
III. Issues
Defendant argues the trial court erred when it denied defense counsel’s
proffered jury instructions and denied Defendant’s first three Batson challenges.
IV. Jury Instructions
A. Standard of Review
This Court has recognized “the proper standard of review depends upon the
nature of a defendant’s request for a jury instruction.” State v. Edwards, 239 N.C.
App. 391, 392, 768 S.E.2d 619, 620 (2015). Defendant argues the standard of review
for this issue is de novo, and cites State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d
144, 149 (2009).
The issue in Osorio was whether sufficient evidence existed to support a jury
instruction on acting in concert. Id. “Whether evidence is sufficient to warrant an
instruction . . . is a question of law[.]” State v. Cruz, 203 N.C. App. 230, 242, 691
S.E.2d 47, 54 (2010). We review questions of law de novo. Edwards, 239 N.C. App. at
393, 768 S.E.2d at 621 (citation omitted).
Where the issue is not a question of law or reviewed de novo, the appropriate
standard of review is for an abuse of discretion. State v. Lewis, 346 N.C. 141, 145, 484
S.E.2d 379, 381 (1997) (“[w]hether the trial court instructs using the exact language
requested by counsel is a matter within its discretion and will not be overturned
absent a showing of abuse of discretion.”) (quoting State v. Herring, 322 N.C. 733,
-9-
STATE V. HOBBS
Opinion of the Court
742, 370 S.E.2d 363, 369 (1988)); State v. Shepherd, 156 N.C. App. 603, 607, 577
S.E.2d 341, 344 (2003) (“the choice of instructions given to a jury ‘is a matter within
the trial court’s discretion and will not be overturned absent a showing of abuse of
discretion.’”) (quoting State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152, cert.
denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002)).
As the issue here involves the judge’s choice in the instructions given to the
jury, we review the trial court’s ruling for an abuse of discretion. See Lewis, 346 N.C.
at 145, 484 S.E.2d at 381.
B. Abuse of Discretion
“This Court has consistently held that a trial court is not required to give a
[defendant’s] requested instruction verbatim. Rather, when the [defendant’s] request
is correct in law and supported by the evidence, the court must give the instruction
in substance.” State v. Wallace, 351 N.C. 481, 525, 528 S.E.2d 326, 353 (2000) (citation
and internal quotation marks omitted). This rule applies even when the requested
instructions are based on language from opinions of the Supreme Court of North
Carolina. State v. Harden, 344 N.C. 542, 555, 476 S.E.2d 658, 664 (1996), cert. denied,
520 U.S. 1147, 137 L. Ed. 2d 483 (1997).
The additional jury instructions defense counsel proffered all relate to the
mental and/or emotional condition of Defendant at the time of the murder and
whether Defendant had the mental capacity to consider the consequences of his
- 10 -
STATE V. HOBBS
Opinion of the Court
actions. Such language is present in the Pattern Jury Instructions. Defendant has
failed to show the trial court abused its discretion in denying Defendant’s additional
language, the substance of which was included in the jury instructions the trial court
gave. See Wallace, 351 N.C. at 525, 528 S.E.2d at 353; see also State v. Jones, 342
N.C. 628, 632-33, 467 S.E.2d 233, 235 (1996).
Further, the trial court allowed and gave Defendant’s proposed instruction on
lack of mental capacity. This instruction informed the jury that “[i]f, as a result of
post-traumatic stress disorder, persistent depressive disorder, or some other mental
infirmity, the defendant did not have the specific intent to kill, formed after
premeditation and deliberation, he is not guilty of first degree murder.” The jury was
clearly instructed concerning their ability to consider Defendant’s mental illnesses
and condition as part of their deliberation.
Finally, Defendant was found guilty of first-degree murder based upon
premeditation and deliberation and under the felony murder rule. Presuming,
arguendo, the trial court erred by denying Defendant’s requested instructions, such
error would not be prejudicial. See State v. Farmer, 333 N.C. 172, 194, 424 S.E.2d
120, 133 (1993) (finding that where the defendant was convicted of first-degree
murder under both the felony murder rule and the theory of premeditation and
deliberation, “it would not have been reversible error for the trial court to have failed
to give any instructions concerning premeditation and deliberation.”).
- 11 -
STATE V. HOBBS
Opinion of the Court
V. Batson Challenges
Defendant challenges the State’s exclusion of potential jurors, who are the
same race as Defendant, by the State’s use of peremptory challenges under Batson v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
A. Standard of Review
Defendant cites Piedmont Triad Regional Water Authority v. Sumner Hills,
Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001), to support his assertion that this
issue should be reviewed de novo, as it presents a constitutional question. However,
in ruling on criminal cases involving Batson challenges, the Supreme Court of North
Carolina has upheld “the trial court’s determination unless [the Court was] convinced
it is clearly erroneous.” State v. Golphin, 352 N.C. 364, 427, 533 S.E.2d 168, 211
(2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001) (citing State v. Kandies,
342 N.C. 419, 434-35, 467 S.E.2d 67, 75, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167
(1996)); State v. Lawrence, 352 N.C. 1, 14, 530 S.E.2d 807, 816 (2000) (‘“Where there
are two permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous’”) (quoting State v. Thomas, 329 N.C. 423, 433, 407 S.E.2d 141,
148 (1991)). “When the trial court explicitly rules that a defendant failed to make out
a prima facie case, review by this Court is limited to whether the trial court’s finding
was error.” Golphin, 352 N.C. at 426, 533 S.E.2d at 211.
B. Three-Prong Batson Test
- 12 -
STATE V. HOBBS
Opinion of the Court
“In Batson the United States Supreme Court set out a three-pronged test to
determine whether a prosecutor impermissibly excluded prospective jurors on the
basis of their race.” State v. Bonnett, 348 N.C. 417, 433, 502 S.E.2d 563, 574 (1998)
(citing Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405 (1991)),
cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999).
“First, the defendant must make a prima facie showing that the state exercised
a peremptory challenge on the basis of race.” State v. Fair, 354 N.C. 131, 140, 557
S.E.2d 500, 509 (2001) (citing Lawrence, 352 N.C. at 14, 530 S.E.2d at 815). This
showing is “based on all relevant circumstances, such as defendant’s race, the victim’s
race, the race of key witnesses, questions and statements of the prosecutor which
tend to support or refute an inference of discrimination, a pattern of strikes against
minorities, or the State’s acceptance rate of prospective minority jurors.” State v.
White, 349 N.C. 535, 548, 508 S.E.2d 253, 262 (1998) (citation omitted). Numerical
analysis of the accepted and dismissed jurors of a particular race is not dispositive
proof of discrimination, but it “can be useful in helping us and the trial court
determine whether a prima facie case of discrimination has been established.” State
v. Barden, 356 N.C. 316, 344, 572 S.E.2d 108, 127 (2002).
“The first step of the Batson analysis is not intended to be a high hurdle for
defendants to cross. Rather, the showing need only be sufficient to shift the burden
to the State to articulate race-neutral reasons for its peremptory challenge.” State v.
- 13 -
STATE V. HOBBS
Opinion of the Court
Wiggins, 159 N.C. App. 252, 262, 584 S.E.2d 303, 311-12 (2003) (citation and internal
quotation marks omitted), cert. denied, 541 U.S. 910, 158 L. Ed. 2d 256 (2004).
If a prima facie showing is made by a defendant,
the burden shifts to the State to articulate a race-neutral
reason for striking the particular juror. The State’s
explanation must be clear and reasonably specific, but does
not have to rise to the level of justifying a challenge for
cause. Moreover, unless a discriminatory intent is inherent
in the prosecutor’s explanation, the reason offered will be
deemed race neutral.
Golphin, 352 N.C. at 426, 533 S.E.2d at 211 (citations and internal quotation marks
omitted). A defendant may “submit evidence to show that the state’s proffered reason
is merely a pretext for discrimination.” Fair, 354 N.C. at 140, 557 S.E.2d at 509.
Finally,
the trial court must decide whether the defendant has
proven purposeful discrimination. This involves weighing
various factors such as susceptibility of the particular case
to racial discrimination, whether the State used all of its
peremptory challenges, the race of witnesses in the case,
questions and statements by the prosecutor during jury
selection which tend to support or refute an inference of
discrimination, and whether the State has accepted any
African-American jurors.
Id. (citations and internal quotation marks omitted).
Upon review, this Court considers several non-exclusive factors:
(1) the characteristic in question of the defendant, the
victim and any key witnesses;
(2) questions and comments made by the prosecutor during
jury selection which tend to support or contradict an
- 14 -
STATE V. HOBBS
Opinion of the Court
inference of discrimination based upon the characteristic
in question;
(3) the frequent exercise of peremptory challenges to
prospective jurors with the characteristic in question that
tends to establish a pattern, or the use of a
disproportionate number of peremptory challenges against
venire members with the characteristic in question;
(4) whether the State exercised all of its peremptory
challenges; and,
(5) the ultimate makeup of the jury in light of the
characteristic in question.
Wiggins, 159 N.C. App. at 263, 584 S.E.2d at 312 (citations omitted).
C. Trial Court’s Determination
During voir dire, defense counsel raised four challenges to the jury venire
under Batson, and argued the State had exercised peremptory challenges to excuse
prospective jurors based upon their race. Three of these challenges are argued on
appeal: prospective jurors Robert Layden and Brian Humphrey, prospective juror
Curtis Landry, and prospective juror William McNeill. By failing to raise and argue
the fourth challenge on appeal, Defendant has abandoned his assertion of error to
this challenge. N.C.R. App. P. 28(a). We address each remaining challenge in turn.
1. Jurors Layden and Humphrey
For the first challenge, defense counsel asserted the State had used six out of
their eight peremptory challenges to excuse black jurors, even though the responses
- 15 -
STATE V. HOBBS
Opinion of the Court
elicited from the excused black potential jurors were allegedly similar in substance
to white jurors who had remained in the pool.
The trial court found Defendant had failed to make a prima facie showing.
However, the trial court improperly requested the State to articulate for the record
its reasons for challenging these prospective jurors. After hearing arguments, the
trial court reaffirmed its finding that Defendant had failed to make a prima facie
showing.
Defendant argues that the trial court’s ruling became moot once the State gave
its reasons for its peremptory challenges. It is true that
[i]f 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[.]
State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996). However, if, as here,
the trial court rules the defendant did not make a prima facie showing, and merely
asks for the State’s reasoning underlying its decision to challenge “for the record,” the
issue is not moot. Id. at 359, 471 S.E.2d at 386-87. On this challenge, “our review is
limited to whether the trial court erred in finding that defendant failed to make a
prima facie showing.” Id. at 359, 471 S.E.2d at 387; State v. Smith, 351 N.C. 251, 262,
524 S.E.2d 28, 37 (2000) (“Where the trial court rules that a defendant has failed to
make a prima facie showing, our review is limited to whether the trial court erred in
- 16 -
STATE V. HOBBS
Opinion of the Court
finding that defendant failed to make a prima facie showing, even if the State offers
reasons for its exercise of the peremptory challenges.”).
In State v. Smith, the defendant made a Batson challenge after the State had
exercised six of its eight peremptory challenges to excuse black potential jurors. 351
N.C. at 262, 524 S.E.2d at 37. As here, the defendant in Smith did not assert his first
Batson challenge until after the State had exercised its eighth peremptory strike. Id.
351 N.C. at 263, 524 S.E.2d at 37. Where a defendant has not made any previous,
specific Batson challenge, the trial court has “no obligation to inquire into the reasons
for striking those [previously excused] jurors.” Id.
“Although not dispositive, one factor tending to refute an allegation of
peremptory challenges being exercised on the basis of race is the acceptance rate of
black jurors by the prosecution.” Id. (citation omitted). At the time of Defendant’s
challenge, eleven black potential jurors were examined by the State, and the State
passed five, one of whom was later dismissed by the trial court for cause. Defendant
used two of five peremptory challenges to strike black jurors.
At the time of Defendant’s first Batson challenge, the jury consisted of two
white males, two black males, and two white females. If Defendant had not used his
two peremptory strikes, the composition of the jury at the time of his first challenge
would have been four black jurors, three males and one female, and four white jurors.
- 17 -
STATE V. HOBBS
Opinion of the Court
As to the other factors, Defendant is black, and while the murder victim was
white, at least one of the other victims of the robbery was black. Further, key
witnesses relating to the homicide of Burnett in Georgia and Defendant’s arrest in
Washington, D.C. were black. After reviewing the record, “we also conclude that the
prosecutor did not make any racially motivated comments, nor did he ask racially
motivated questions of the black prospective jurors.” Id.
Considering all the relevant factors, we conclude the trial court did not err in
finding Defendant had failed to establish a prima facie showing for prospective jurors
Layden and Humphrey. See White, 349 N.C. at 548, 508 S.E.2d at 262. Defendant’s
arguments are overruled.
2. Juror Landry
Defendant raised his second Batson challenge after the State had exercised its
ninth peremptory challenge. Defense counsel indicated that they “ha[d] nothing to
add” and renewed what they had “earlier said” in regards to the “general opposition
to why [they] needed to make a prima facie case.” The trial court noted the State had
used seven out of their nine peremptory challenges to excuse black prospective jurors
and, considering the previous facts cited, found Defendant had made a prima facie
showing and convened a hearing. After the hearing, Defendant’s Batson challenge
was denied.
- 18 -
STATE V. HOBBS
Opinion of the Court
When a trial court finds a defendant has made a prima facie showing, the first
prong of the analysis is satisfied. Wiggins, 159 N.C. App. at 264, 584 S.E.2d at 312
(citation omitted). We consider the State’s proffered reasoning for striking Landry,
and whether the trial court properly found these reasons were not pretextual. Id.
The prosecutor asserted potential juror Landry was excused because: (1) he
believed drugs and alcohol can make people do things they did not want to do; (2) he
had mentored individuals with substance abuse issues in his church; (3) his uncle
had died in prison while serving two life sentences; (4) he had stated he believed a
life sentence was taking a life; (5) he had left several questions on the juror
questionnaire unanswered; (6) he had given some “perplexing” responses to
questions; (7) he had allegedly walked out of court once singing “the sun will come
out tomorrow”; (8) he had nodded affirmatively when another juror, who was excused
for cause, mentioned her religious belief against the death penalty; (9) he had
previously been in a gang and had heard Defendant was in a gang; (10) he had failed
to appear in court on previous occasions; and, (11) he had stated he would hold it
against the State if it did not present all the evidence.
Defendant has failed to show any error in the trial court’s conclusion that the
State’s reasons for dismissing Landry were race-neutral. See State v. Bell, 359 N.C.
1, 13-16, 603 S.E.2d 93, 103-05 (2004) (valid and race-neutral reasons for excusing a
juror include: views on the death penalty, concern a juror might be unduly
- 19 -
STATE V. HOBBS
Opinion of the Court
sympathetic to the defendant, work in prison ministry, and work with Alcoholics
Anonymous); see also State v. Robinson, 336 N.C. 78, 95, 443 S.E.2d 306, 313 (1994)
(not answering questions in a direct manner and confusing the meaning of questions
asked were valid and race-neutral reasons to excuse jurors).
Defendant argues there were similar concerns with several of the white jurors
who the State did not strike but passed on to Defendant, and asserts the State did
not properly follow up with several of Landry’s responses to see if they would be a
problem. However, Defendant does not specify which white jurors had given similar
answers and were not excused. After a close reading of the record and transcript, we
do not find this argument to have merit. While some jurors had one factor in common
with Landry, none presented the range and multiplicity of issues the State stated for
challenging Landry.
The combination of factors present with Landry’s answers and demeanor led
to his dismissal. Defendant cannot show disparate treatment “because the same
combination of factors was not present” in the white jurors whom the State passed.
Bell, 359 N.C. at 14, 603 S.E.2d at 104. Defendant fails to show any error in the trial
court’s denial of Defendant’s second Batson challenge of prospective juror Landry.
3. Juror McNeill
Defendant’s third Batson challenge was asserted after the State had exercised
its eleventh peremptory challenge. Defense counsel reiterated the same arguments
- 20 -
STATE V. HOBBS
Opinion of the Court
previously asserted and reminded the court that Defendant had successfully
established a prima facie case based upon those grounds. After a hearing, the trial
court denied this Batson challenge.
At the time of the third challenge, the State had used eight out of eleven
peremptory challenges to excuse black prospective jurors, and had passed on eight
black prospective jurors to Defendant. Two of those black jurors were seated on the
jury panel, one had been dismissed for cause, and five of those prospective black
jurors were struck by Defendant’s peremptory challenges.
In support of its neutral justification, the State stated McNeill was excused
after he hesitated to reply when asked if he could vote to impose the death penalty,
and then stated he preferred life in prison over the death penalty. Further, he
disclosed he had family members with substance abuse issues, a sister with apparent
anxiety, and as a pastor, he had often counseled individuals with substance abuse
issues.
As with the previous venireman, we conclude the State presented valid, race-
neutral reasons for excusing prospective juror McNeill. See Robinson, 336 N.C. at 97,
443 S.E.2d at 314 (finding a dismissal of a juror who stated a preference of life
imprisonment over the death penalty was “clear and reasonable”); see also State v.
Maness, 363 N.C. 261, 272, 677 S.E.2d 796, 804 (2009) (excusing a juror who had
- 21 -
STATE V. HOBBS
Opinion of the Court
mental illness and who had worked with substance abusers, causing the State to fear
she would “overly identify with defense evidence” was valid and race-neutral).
Defendant argues McNeill’s involvement with family and parishioner
substance abuse had occurred many years ago and he did not presently know anyone
with such issues. He further argues McNeill did state he could consider the death
penalty and that the State had passed white jurors who had issues with anxiety.
After a close reading of the record and transcript, we again do not find these
arguments persuasive. As with the previous venireman, it is the aggregate of race-
neutral factors identified by the State that led to McNeill’s challenge and dismissal.
Defendant has failed to show disparate treatment in this Batson challenge. See Bell,
359 N.C. at 14, 603 S.E.2d at 104.
VI. Conclusion
The trial court did not abuse its discretion in denying two of Defendant’s three
proposed jury instructions. The jury was provided the proposed instructions in
substance with the pattern jury instructions the trial court gave. See Wallace, 351
N.C. at 525, 528 S.E.2d at 353. Further, the trial court did instruct the jury on
Defendant’s proposed instruction on lack of mental capacity, fully alerting the jury to
their ability to consider Defendant’s asserted mental illness as part of the required
intent for first-degree murder. Finally, Defendant failed to show any reversible error,
where he was convicted of first-degree murder under both the theory of premeditation
- 22 -
STATE V. HOBBS
Opinion of the Court
and deliberation and under the felony murder rule. See Farmer, 333 N.C. at 194, 424
S.E.2d at 133.
After reviewing all the “relevant circumstances,” the trial court did not err in
concluding Defendant had failed to make a prima facie showing in his first Batson
challenge. See White, 349 N.C. at 548, 508 S.E.2d at 262. It is well established that
a disproportionate number of State’s peremptory challenges to dismiss prospective
jurors of a particular race is not dispositive of discrimination, but is one factor for the
Court to consider. Barden, 356 N.C. at 344, 572 S.E.2d at 127 (“We emphasize that a
numerical analysis of the type employed here is not necessarily dispositive. However,
such an analysis can be useful in helping us and the trial court determine whether a
prima facie case of discrimination has been established.”); Smith, 351 N.C. at 263,
524 S.E.2d at 37; Wiggins, 159 N.C. App. at 265, 584 S.E.2d at 313.
An analysis of the peremptory challenges in this case goes against Defendant’s
argument. While the State, at the time of the last Batson challenge, had exercised
over seventy percent of its peremptory challenges for black jurors, the State
peremptorily challenged eight black prospective jurors and passed eight other black
prospective jurors to Defendant. One prospective black juror passed by the State was
struck by the trial court for cause. Defendant ultimately determined only two black
jurors were seated on the panel at the time of the third challenge, as he struck five
black potential jurors the State had passed to be seated.
- 23 -
STATE V. HOBBS
Opinion of the Court
Regarding the other two Batson challenges, the State presented valid, race-
neutral reasons for challenging the two jurors dismissed. Defendant failed to show
any purposeful discrimination. Fair, 354 N.C. at 140, 557 S.E.2d at 509. After
weighing all the factors considered by the trial court, Defendant has also failed to
show the trial court’s rulings were clearly erroneous. Golphin, 352 N.C. at 427, 533
S.E.2d at 211.
Defendant received a fair trial, free from prejudicial errors. Defendant’s
arguments are overruled. We find no error in the jury’s verdicts or the judgments
entered thereon. It is so ordered.
NO ERROR.
Judges DIETZ and BERGER concur.
- 24 -