Opinion
No. 07-273.
Filed February 5, 2008.
Cumberland County, No. 05 CRS 65317.
Appeal by defendant from judgments entered 2 November 2006 by Judge Franklin F. Lanier in Cumberland County Superior Court. Heard in the Court of Appeals 17 October 2007.
Attorney General Roy Cooper, by Special Counsel Caroline Farmer, for the State. Hosford Hosford, P.C., by Geoffrey W. Hosford, for defendant-appellant.
Glenn Barry McDougald ("defendant") appeals from judgments entered on jury verdicts finding him guilty of non-felonious breaking and entering, felony larceny, and assault on a female. We find no error.
On 17 April 2005, Valerie Campana ("victim") was sleeping in her daughter Kiaya's bedroom. The victim awoke to the sound of her dog barking in her backyard. After securing the dog inside the house, the victim returned to sleep in Kiaya's bedroom. The second time the victim awoke, she found a man lying in bed with her. The man brushed over her right breast and touched her hips and buttocks. The victim pretended to be asleep. The man stood up and turned on the light. The victim again pretended to be asleep. The man left the room and shut the door. The victim tried to use her cell phone but it was out of service. She opened the bedroom door and yelled "[t]here's a man in the house." From the bedroom door, the victim could see the man in her kitchen. The victim saw the man leave through the kitchen window. The police were called.
Near the window, a deputy from the Cumberland County Sheriff's Department found a cigarette butt and an unopened bottle of beer. The victim purchased a six pack of bottled beer that evening. One bottle of beer was missing. The unopened bottle found outside the window matched the brand of beer the victim purchased that evening and placed in her refrigerator.
The police matched defendant's fingerprints to fingerprints found on the beer bottle. A DNA profile of DNA found on the cigarette butt matched the defendant's DNA sample. On 31 October 2005, the defendant was indicted for first-degree burglary, felonious larceny, and assault on a female.
Trial was held on 31 October 2006 in Cumberland County Superior Court. During jury selection, the State exercised its peremptory challenges with three jurors of African-American descent. The defendant is African-American and the victim is Caucasian. Defendant objected to the challenges and the court conducted a hearing pursuant to the United States Supreme Court case Batson v. Kentucky. After hearing arguments by counsel, Judge Franklin F. Lanier ("Judge Lanier") concluded the State did not use its peremptory challenges for racially discriminatory reasons. On 2 November 2006, the jury returned verdicts finding defendant guilty of non-felonious breaking and entering, felony larceny and assault on a female. Defendant moved to set aside the verdict for felony larceny on the basis that the felony larceny verdict was inconsistent with the verdict of non-felonious breaking and entering. The trial court denied the motion. Judge Lanier sentenced defendant to ten to twelve months for felony larceny, 150 days for assault on a female, and 120 days for breaking and entering, in the North Carolina Department of Correction and ordered all sentences to run consecutively. Defendant filed notice of appeal on 3 November 2006.
I. Motion to Set Aside the Verdict
Defendant contends the trial court erred by denying his motion to set aside the jury verdict because the verdict of non-felonious breaking and entering is inconsistent with the verdict of felony larceny. We disagree.
In support of his argument, defendant cites cases articulating the principle that when a defendant is acquitted of breaking and entering, but convicted of felony larceny, the jury requires an instruction on the value of the stolen property to properly render a felony larceny verdict. State v. Perry, 52 N.C. App. 48, 52-53, 278 S.E.2d 273, 277, aff'd by, 305 N.C. 225, 237, 287 S.E.2d 810, 817 (1982); State v. Cornell, 51 N.C. App. 108, 112, 275 S.E.2d 857, 860 (1981); State v. Keeter, 35 N.C. App. 574, 575, 241 S.E.2d 708, 709 (1978) (failure to reach a verdict on breaking and entering charge precluded acceptance of guilty verdict for felony larceny). The case sub judice differs from these cases in one important respect. Defendant was not acquitted of breaking and entering; he was found guilty of non-felonious breaking and entering.
"The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is committed pursuant to a breaking or entering in violation of section 14-54 of the General Statutes." State v. Brooks, 178 N.C. App. 211, 215, 631 S.E.2d 54, 57 (2006), review denied by, 361 N.C. 222, 642 S.E.2d 708 (2007) (citation omitted). Felony larceny is proven, inter alia, by either larceny of goods which have a value of more than $1,000 or "without regard to the value of the property in question, if the larceny is any of the following: . . . (2) Committed pursuant to a violation of G.S. . . . 14-54. . . ." N.C. Gen. Stat. § 14-72 (2007). A person violates N.C. Gen. Stat. § 14-54(b) if he "wrongfully breaks or enters any building." N.C. Gen. Stat. § 14-54(b) (2007). The crime of breaking and entering "with intent to commit any felony or larceny therein" is a Class H felony. N.C. Gen. Stat. § 14-54(a). The statutory definition of felony larceny does not distinguish misdemeanor breaking and entering violations from felony breaking and entering violations. N.C. Gen. Stat. §§ 14-72(b)(2), 14-54(b) (2007); Brooks, supra.
Defendant's only basis for review on this issue is that the felony larceny conviction was inconsistent. Failure to instruct the jury on misdemeanor larceny is not in error where the verdicts of felony larceny and misdemeanor breaking and entering are not inconsistent. State v. Perkins, 181 N.C. App. 209, 221, 638 S.E.2d 591, 599 (2007) (guilty verdict on misdemeanor breaking and entering did not preclude jury from convicting defendant of felony larceny). Because felony larceny is defined in part as larceny committed pursuant to a violation of N.C. Gen. Stat. § 14-54, the two verdicts are not inconsistent. N.C. Gen. Stat. § 14-72. No error.
II. Peremptory Challenges
Defendant next argues the State impermissibly excluded jurors on the basis of their race without providing a facially valid explanation for their exclusion. We disagree.
"Article I, Section 26 of the Constitution of North Carolina prohibits the use of peremptory challenges for racially discriminatory reasons as does the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000) (internal citations omitted).
Batson v. Kentucky is the seminal case on raising an Equal Protection violation to a prosecutor's use of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83 (1986), holding modified by, Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991). In Batson, the United States Supreme Court held that
[a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, United States v. Robinson, 421 F. Supp. 467, 473 (Conn. 1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.
Batson, 476 U.S. at 89, 90 L. Ed. 2d at 82-83. To establish a prima facie case of discriminatory purpose, the defendant must show: (1) that he is a member of a "cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race"; (2) "that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate"; and (3) that "these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88 (internal citations and quotations omitted).
"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88. The prosecution must articulate reasons "which are clear and reasonably specific and related to the particular case to be tried," but those reasons need not rise to the level of a challenge for cause. State v. Robinson, 346 N.C. 586, 597, 488 S.E.2d 174, 181-82 (1997) (citations omitted); State v. Degree, 114 N.C. App. 385, 389-90, 442 S.E.2d 323, 325-26 (1994) (exclusion of two black jurors because one was young and unmarried and one had a son involved in court proceeding the next day is race-neutral). "The issue at this stage is the facial validity of the prosecutor's explanation; and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral." Lawrence, 352 N.C. at 14, 530 S.E.2d at 816 (citations omitted); see also State v. McClain, 169 N.C. App. 657, 668, 610 S.E.2d 783, 791 (2005). "Our courts also permit the defendant to introduce evidence at this point that the State's explanations are merely a pretext." Lawrence, 352 N.C. at 14, 530 S.E.2d at 816. "The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89; see also State v. Hardy, 353 N.C. 122, 128, 540 S.E.2d 334, 340-41 (2000) (citations omitted).
"[T]he trial court's decision as to whether the prosecutor had a discriminatory intent is to be given great deference and will be upheld unless the appellate court is convinced that the trial court's determination is clearly erroneous." Lawrence, 352 N.C. at 14, 530 S.E.2d at 816 (citations omitted); McClain, 169 N.C. App. at 668, 610 S.E.2d at 791; State v. Moore, 167 N.C. App. 495, 500, 606 S.E.2d 127, 130 (2004). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." State v. Thomas, 329 N.C. 423, 433, 407 S.E.2d 141, 148 (1991) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 84 L. Ed. 2d 518, 528 (1985)). Hesitancy in answering and equivocal responses to questions during voir dire can constitute race-neutral reasons for a prosecutor's exercise of peremptory challenges in death penalty cases. McClain, 169 N.C. App. at 669, 610 S.E.2d at 791; State v. Robinson, 346 N.C. 586, 598, 488 S.E.2d 174, 182 (1997).
In the case sub judice, the State exercised its peremptory challenges with three African-American jurors: juror number five Stacy Stubbs ("Stubbs"), juror number seven Donald Carr ("Carr") and juror number twelve Renee Hutchinson ("Hutchinson"). The defendant raised a Batson v. Kentucky challenge on the basis that the State excluded these jurors because of their race. The trial court found the defendant made a prima facie showing of discrimination on the part of the State.
The State then presented race-neutral reasons for exercising the challenges to the jurors. Stubbs was excluded because he had a long list of criminal convictions, including convictions for breaking and entering, larceny, robbery, assault, and an assault on a female charge, charges similar to the case at bar. Stubbs also hesitated to answer the State's query regarding whether his experience would cause a problem sitting as a juror. Stubbs later said he "might have a problem coming up with a decision . . . because [he's] been in a [similar] situation." Stubbs also said he might not be fair since he was a defendant himself. After further questioning, Stubbs said he would make a decision based on the evidence and not his prior experience.
Carr was excluded because he had past felony convictions of burglary and attempted rape and indicated to counsel during voir dire that he could be fair at the trial although he felt he had not been treated fairly by the court system. Carr also indicated that the prosecutor in the present case was the same prosecutor at the time he was tried and convicted.
Hutchinson was excluded because the father of her son was currently incarcerated for an armed robbery conviction. In addition, she volunteered that she just separated from her husband, and appeared to become very emotional during the voir dire. The State did not exercise peremptory challenges against three other jurors of African-American descent.
Defense counsel argued that Stubbs, Carr, and Hutchinson indicated during voir dire that they would be impartial. According to the defense, Hutchinson did not appear to be emotional. The trial court found as fact that the reasons given for excluding the jurors were race-neutral and acceptable trial tactics in the jurisdiction.
The purpose of a Batson challenge is to prevent the prosecution from excluding jurors on the basis of the jurors' race. Batson, 476 U.S. at 89, 90 L. Ed. 2d at 82-83. The prosecution may not assume that a juror's race impedes his or her impartiality. Id. The prosecution excluded these jurors because their impartiality could be impeded due to their personal history with the criminal justice system and not because of their race. See State v. Carmon, 169 N.C. App. 750, 756, 611 S.E.2d 211, 215 (2005) (no purposeful discrimination where the State explained four jurors were excused because of prior criminal history, one juror had a son with a criminal conviction, and two other African-American jurors were not challenged by the State). Because the State articulated legitimate race-neutral reasons which were not rebutted by evidence of pretext, we conclude that denial of defendant's Batson motion was not clearly erroneous. State v. Nicholson, 355 N.C. 1, 22, 558 S.E.2d 109, 125 (2002); see also State v. Chapman, 359 N.C. 328, 339, 611 S.E.2d 794, 806 (2005) (trial court's findings are binding on appeal unless appellate court is left with the definite and firm conviction that a mistake was committed); State v. Alvarez, 168 N.C. App. 487, 494, 608 S.E.2d 371, 376 (2005) (trial court is in the best position to assess the prosecutor's credibility). Defendant's assignments of error are overruled.
Finally, we note that defendant assigned four assignments of error in the record and argued only two of them in his brief. Those two assignments of error not argued are abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
No error.
Judges STEPHENS and ARROWOOD concur.
Report per Rule 30(e).