{ "id": 12131152, "name": "STATE OF NORTH CAROLINA v. DEANO DONDAY FLOYD", "name_abbreviation": "State v. Floyd", "decision_date": "1994-07-05", "docket_number": "No. 9312SC764", "first_page": "412", "last_page": "423", "citations": [ { "type": "official", "cite": "115 N.C. App. 412" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "59 ALR2d 841", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "79 ALR3d 14", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "1 ALR2d 1291", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "404 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519820 ], "year": 1991, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0138-01" ] }, { "cite": "255 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570604 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0419-01" ] }, { "cite": "241 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573313 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0418-01" ] }, { "cite": "277 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "303 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571552 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0112-01" ] }, { "cite": "282 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565398 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0122-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "150" }, { "page": "152-53" }, { "page": "153" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "497" }, { "page": "497" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "357 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1214851 ], "year": 1987, "pin_cites": [ { "page": "795" } ], "opinion_index": 1, "case_paths": [ "/ga/257/0325-01" ] }, { "cite": "407 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "147" } ], "opinion_index": 1 }, { "cite": "329 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554806 ], "year": 1991, "pin_cites": [ { "page": "431" } ], "opinion_index": 1, "case_paths": [ "/nc/329/0423-01" ] }, { "cite": "388 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "325 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491524, 2490757, 2487690, 2488241, 2492148 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/325/0712-05", "/nc/325/0712-04", "/nc/325/0712-03", "/nc/325/0712-02", "/nc/325/0712-01" ] }, { "cite": "383 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "413" } ], "opinion_index": 1 }, { "cite": "95 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521620 ], "year": 1989, "pin_cites": [ { "page": "499-500" } ], "opinion_index": 1, "case_paths": [ "/nc-app/95/0494-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "150" }, { "page": "150-51" }, { "page": "151" }, { "page": "151" } ], "opinion_index": 1 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "497-98" }, { "page": "498" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0489-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 25272, "ocr_confidence": 0.725, "pagerank": { "raw": 2.445090710396653e-07, "percentile": 0.8034929835677679 }, "sha256": "2ad2e4ff6b49fa634b76659ecfd4810b499c03f71a2cb2347eaa6af325b20392", "simhash": "1:454a717e281e1f5f", "word_count": 4106 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN concurs.", "Judge GREENE dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. DEANO DONDAY FLOYD" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendant first argues that the prosecutor impermissibly used peremptory challenges to excuse prospective jurors based upon their race. The record reveals that the prosecutor challenged five of five prospective black jurors, and that defendant timely objected to each challenge.\n.When asserting a claim of racial discrimination in jury selection defendant must first make out a prima facie case of racial discrimination. Defendant makes a prima facie case by showing that (1) he is a member of a racial minority, (2) that members of his race were peremptorily excused, and (3) that racial discrimination appeared to be the motivation for excusing the members of his race. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986), State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990). The court found that defendant made a prima facie case, and the State does not argue to the contrary. Because defendant made his prima facie case, the State was required to articulate race neutral reasons which were \u201c \u2018clear and reasonably specific\u2019. . . [and] \u2018related to the particular case to be tried.\u2019 \u201d Porter, 326 N.C. at 497, 391 S.E.2d at 150 (citing Batson). After the State\u2019s rebuttal defendant had the right of surrebuttal, which he exercised, to show that the State\u2019s reasons were pretextual. Id. The court found and concluded that the prosecutor rebutted defendant\u2019s prima facie case and that the prosecutor\u2019s reasons for excusing the black jurors were not pretextual.\nOn review, the trial judge\u2019s findings are entitled to great deference, rightly so because he is present when the jurors are examined. He is able to judge the prosecutor\u2019s credibility and to gain a first hand impression of the prosecutor\u2019s demeanor. Based upon these factors as well as his experience and the prosecutor\u2019s statements and questions, the trial judge determines if the prosecutor excused prospective jurors based on their race. See State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1991).\nOur examination of the transcript revealed valid race neutral reasons, articulated by the prosecutor, for excusing the prospective black jurors, and, giving the trial judge\u2019s findings due deference, we are compelled to affirm the judge\u2019s ruling.\nThe prosecutor excused the first prospective black juror because she seemed to have trouble understanding the burden of proof and her duty should the State prove defendant\u2019s guilt beyond a reasonable doubt. This prospective juror also had a son approximately defendant\u2019s age who was involved in a breaking and entering. The prosecutor excused the next prospective black juror because he was evasive in that he was reluctant to reveal his involvement in an assault on his wife and sister-in-law. This prospective juror concealed two other charges against him of assault and communicating threats. He also had a relative involved in an armed robbery.\nThe next prospective black juror seemed very head-strong, according to the prosecutor, and not amenable to deliberation. The prosecutor drew this conclusion from the prospective juror\u2019s statements about her involvement in her adult daughter\u2019s affairs, which ultimately resulted in her daughter being unemployed. The prosecutor further supported his perception of the prospective juror with her responses to job-related questions. The prosecutor also had difficulty making eye contact with this prospective juror.\nThe fourth prospective black juror was excused because she had been arrested on drug charges, and she concealed convictions for writing worthless checks. The final prospective black juror was excused because he was charged with driving while impaired, and the prosecutor concluded from the juror\u2019s statements that he had a discipline problem in the military.\nDefendant\u2019s efforts to show that these reasons were pretextual are not sufficient to persuade us to reverse the trial judge\u2019s ruling. Part of defendant\u2019s strategy consists of comparing traits of excused jurors with traits of jurors accepted by the prosecutor. It has long been recognized that this strategy is of little use because it \u201cfails to address the factors as a totality which when considered together provide an image of a juror considered in the case undesirable by the State.\u201d Porter, 326 N.C. at 501, 391 S.E.2d at 152-53. \u201c\u2018[M]erely because some of the observations regarding each stricken venireper-son may have been equally valid as to other members of the venire who were not challenged [does not] require [] . . . finding the reasons were pretextual.\u2019 \u201d Id. at 501, 391 S.E.2d at 153. The cold record before us does not provide enough support for defendant\u2019s remaining arguments to convince us to disregard the trial judge\u2019s conclusion that the prosecutor was not motivated by racial discrimination.\nDefendant argues next that the trial court erred in joining the cases for trial and in denying his motion to sever. Two or more offenses may be joined for trial when the offenses \u201care based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d N.C. Gen. Stat. \u00a7 15A-926(a) (1988). The decision to join offenses for trial is in the trial judge\u2019s discretion and will not be disturbed absent an abuse of that discretion. State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981). In deciding whether or not to join offenses it is appropriate to consider commonality of facts, see State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981), and the nature of the joined offenses. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978).\nThe two robberies were separated by less than twenty-four hours. Both robberies took place at Quick Stop convenience stores in the Fayetteville area, and in both robberies the perpetrator used a silver automatic handgun, although the clerk at Quick Stop 95 testified that it was a 9mm, and a spent shell casing established that a .25 caliber was used at the Quick Stop 31. In both robberies the robber walked up to the counter and distracted the store clerk with a transaction before revealing his weapon and demanding money. Based upon these facts and our review of pertinent case law we conclude that these offenses were properly joined for trial. See Bracey, 303 N.C. 112, 277 S.E.2d 390; State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979).\nWe also conclude that joinder of these offenses was not prejudicial to defendant.\nThe court is required to grant a severance motion if it is necessary for \u201ca fair determination of the defendant\u2019s guilt or innocence of each offense.\u201d G.S. 15A-927(b). The court must determine whether \u201cin view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.\u201d G.S. 15A-927(b)(2).\nBracey, 303 N.C. at 116, 277 S.E.2d at 394. The test on review is are the offenses \u201cso separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant.\u201d State v. Cummings, 103 N.C. App. 138, 141, 404 S.E.2d 496, 498 (1991). As indicated, the circumstances were similar and the offenses occurred less than twenty-four hours apart. Furthermore, the evidence was not complicated, and the court adequately separated the offenses in the jury charge. The verdict sheet distinguished each charge by naming the store clerk and the store number involved in each offense. The verdict sheets for the assault and robbery of the customer contained the customer\u2019s name. Defendant was, therefore, not prejudiced by the denial of his motion to sever. See Bracey, 303 N.C. 112, 277 S.E.2d 390.\nDefendant next argues that the trial judge erred in excluding evidence which supported his theory of the case. First, defendant argues that his sister should have been permitted to testify about an incident that occurred prior to the robberies between defendant and the Quick Stop 95 store clerk who identified him. Defendant contends this evidence provided a basis from which the clerk could have identified defendant without his involvement in the robbery, thus strengthening his alibi defense.\nOn voir dire defendant\u2019s sister testified that in July 1991, nearly a month before the robberies, defendant attempted to purchase beer at the Quick Stop 95. The clerk refused to sell defendant beer because he did not have identification. Defendant returned with identification, but the clerk again refused to sell beer to defendant because the identification was expired. Defendant went to his sister\u2019s home and told her about this incident. Defendant\u2019s sister testified that she knew which clerk defendant was talking about because of defendant\u2019s description of the clerk and the name he called the clerk. She testified that \u201c[t]here\u2019s only one lady in the store that could \u2014 that could be describe as the name that he caller her.\u201d Defendant described the clerk as that \u201cdyke-ish bitch\u201d or \u201cbitch dyke.\u201d\nAlthough we agree with defendant that evidence of an altercation with an eyewitness is relevant as a general rule, that evidence loses its relevance when the identity of the person with whom defendant argued is merely speculation. We conclude that the court properly ruled that the identification of the store clerk was too speculative for the evidence to be relevant.\nSecond, defendant\u2019 argues the court erred in excluding photographs taken in January 1993, a year and a half after the robberies, showing the distance between the Quick Stop 95 and another convenience store across the street from the Quick Stop 95. The placement of the convenience stores was relevant because defendant was identified by the Quick Stop clerks when he entered the Quick Stop 95 four days after the robberies. The close proximity of another convenience store shows how unlikely it would be for defendant to return to the store he allegedly robbed four days earlier when another convenience store was just across the street.\nThe prosecutor objected because the photographs did not depict the scene as it appeared in August 1991. Apparently the street between the Quick Stop 95 and the other convenience store was widened between 1991 and 1993. The photographer was unable to say how much the road was widened or how much property, if any, was taken from the convenience store lots. The photographer did testify that the stores were in the same place in 1991. Because the photographs were offered to show the placement of the stores, the modification to the street between them had very little bearing on their relevance. We hold that the photographs were relevant and admissible. Exclusion of the photographs is not reversible error however.\nBefore defendant offered the photographs into evidence the photographer testified about the contents of the photographs. Therefore, anything the jury would have seen in the photographs was described to them. It is not difficult for jurors to visualize convenience stores on opposite sides of a street, and, therefore, defendant suffered no prejudice from the exclusion of the photographs.\nDefendant also argues that the court erred by excluding his expert witness\u2019s testimony. Because the State\u2019s case was based entirely on eyewitness testimony, defendant put on an expert in the field of eyewitness identification who would have told the jury how unreliable eyewitness testimony is. He also would have explained the factors which affect its accuracy. Because the defendant is black and the State\u2019s witnesses are white the expert was specifically prepared to discuss the problems with cross-racial identification. The State objected to the expert\u2019s testimony, and, after voir dire, the court ruled the testimony inadmissible.\nAlthough our impression is that the testimony was admissible, we do not address this issue because defendant waived his right to argue it on appeal. The judge found as an alternative reason for excluding the evidence that the defendant waived his right to present the evidence because the expert, who was from South Carolina, left for the airport before the court ruled on the admissibility of his testimony. Defendant did not assign error to this finding and accordingly waived the right to argue the admissibility of the evidence. N.C.R. App. P. 10.\nWe reviewed defendant\u2019s remaining arguments and find no prejudicial error.\nNo error.\nJudge MARTIN concurs.\nJudge GREENE dissents.", "type": "majority", "author": "ARNOLD, Chief Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree, for the reasons given below, with the majority\u2019s conclusion that \u201cthe transcript revealed valid race neutral reasons, articulated by the prosecutor, for excusing the prospective black jurors, and, giving the trial judge\u2019s findings due deference, we are compelled to affirm the judge\u2019s ruling.\u201d\nA defendant has \u201cthe ultimate burden of persuading the court that intentional racial discrimination has guided the use of peremptory challenges,\u201d and our courts have noted several factors for the trial judge to consider in determining whether a defendant has met this ultimate burden. State v. Porter, 326 N.C. 489, 497-98, 391 S.E.2d 144, 150 (1990). The trial judge should consider \u201c \u2018the susceptibility of the particular case to racial discrimination,\u2019 \u201d taking into account \u201c[t]he race of the defendant, the victims, and the key witnesses,\u201d \u201cthe prosecutor\u2019s demeanor to determine whether the prosecutor is \u2018engaging in a careful process of deliberation based on many factors,\u2019 \u201d and \u201cthe explanation itself.\u201d Id. at 498, 391 S.E.2d at 150-51. In evaluating the prosecutor\u2019s explanation, reference to objective and subjective criteria is involved, and \u201c[t]he trial judge should consider whether \u2018similarly situated white veniremen escaped the State\u2019s challenges\u2019 and \u2018the relevance of the State\u2019s justification\u2019 to the case at trial.\u201d Porter, 326 N.C. at 498, 391 S.E.2d at 151. In addition, \u201c[t]he trial judge should evaluate the explanation \u2018in light of the explanations offered for the prosecutor\u2019s other peremptory strikes\u2019 and \u2018the strength of the prima facie case.\u2019 \u201d Id. at 498-99, 391 S.E.2d at 151. \u201cIn reviewing both the substantive validity of the State\u2019s proffered reasons and the prosecutor\u2019s credibility in so offering them, the trial judge should take great care to assure that these reasons axe bona fide and not simply \u2018sham excuses belatedly contrived to avoid admitting acts of group discrimination ....\u2019\u201d State v. Sanders, 95 N.C. App. 494, 499-500, 383 S.E.2d 409, 413, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989). The prosecutor\u2019s questions and statements during jury selection are also relevant, and \u201cthe prosecution\u2019s \u2018use of a disproportionate number of peremptory challenges to strike black jurors in a single case\u2019 \u201d is \u201cindicative of racial discrimination.\u201d State v. Thomas, 329 N.C. 423, 431, 407 S.E.2d 141, 147 (1991).\nThe circumstances of this case and the transcript of the voir dire reveal that the prosecutor used five of his six peremptory challenges to exclude every African-American called into the jury box and that \u201csimilarly situated white veniremen escaped the State\u2019s challenges\u201d due to disparate treatment of similarly situated veniremembers of different races. Therefore, the prosecutor\u2019s reasons for using peremptory challenges against prospective black jurors were merely pretextual. For example, the prosecutor gave two reasons for challenging the first prospective black juror. First, the prosecutor stated the first prospective black juror had trouble understanding the burden of proof. Second, she had a son about defendant\u2019s age who had committed a breaking and entering.\nUnder the first reason, the following exchange took place between the prosecutor and the first prospective black juror:\nMr. Stiehl: . . . you heard [J]udge Britt earlier talking about the state has the burden of proving guilt beyond a reasonable doubt. Do you recall those words?\nJuror #5: Yes.\nMr. Stiehl: Okay. And do you understand that that does not require the state to prove guilt beyond all doubt or all shadow of a doubt?\nJuror #5: Yes.\nMr. Stiehl: Okay. Do you understand what your duty as a juror would be should the state prove guilt beyond a reasonable doubt in this case?\nJuror #5: Yes.\nMr. Stiehl: And what would that be?\nJuror #5: That, um \u2014 after you said it \u2014 um, for me to be fair about everything that I hear and say.\nThe prosecutor then ended her voir dire and did not explain what would happen in such a situation or ask the trial judge for additional instructions. For the non-African American prospective jurors, the prosecutor did not ask any open-ended questions about the reasonable doubt standard; rather, he either asked close-ended questions or none at all. A typical exchange when the prosecutor asked a prospective white juror about the reasonable doubt standard is as follows:\nMr. Stiehl: ... Do you understand that as [J]udge Britt was mentioning to all of the jurors earlier, that the defendant is before you and other jurors and he\u2019s presumed innocent? In other words, it\u2019s up to the state of North Carolina to prove guilt through this trial beyond a reasonable doubt? Do you remember those words?\nJuror #4:1 understand that.\nMr. Stiehl: Okay. And I think in fact you may have even seen a video earlier, probably yesterday if you reported yesterday, where they talked about criminal cases and civil cases and \u201cyour role as a juror\u201d I believe is how it\u2019s presented?\nJuror #4: Yes, sir.\nMr. Stiehl: Anything about any of the presumption of innocence, proof of guilt beyond a reasonable doubt, anything that you\u2019ve heard thus far that you feel you and I need to talk about, or you feel comfortable with everything?\nJuror #4: No, I feel comfortable, sure.\nThe prosecutor also asked the prospective jurors if \u201ceither yourselves or a close friend or relative [had been] charged with armed robbery, some type of theft, or an assault such as assault with a deadly weapon with intent to kill inflicting serious injury or some type of lesser assault.\u201d The following exchange took place between the first prospective black juror and the prosecutor:\nJuror #5: Yes. It was a, uh \u2014 (pause)\u2014uh, a robbery. Uh, and my son was involved in it somehow. I didn\u2019t even know\u2014\nMr. Stiehl: Was that here in Cumberland County?\nJuror #5: Yes. No, I have that wrong. That was a breaking and entering.\nMr. Stiehl: Okay.\nJuror #5: It wasn\u2019t no robbery.\nMr. Stiehl: And was it allegedly a home or a business that was involved?\nJuror #5:1 don\u2019t even know.\nMr. Stiehl: Okay. Thank you, ma\u2019am.\nWhen the prosecutor questioned a prospective white juror about her husband\u2019s acquittal for felonious assault, however, he asked her detailed questions and made statements such as \u201cdid your husband have a belief that possibly he was going to be robbed,\u201d \u201c[s]o it was a jury trial,\u201d and \u201c[he was found] not guilty.\u201d In addition, he asked this prospective white juror, \u201cIs there anything about that experience that \u2014 that would prevent you from being fair to either side in this case?\u201d The prosecutor told the trial judge that his reason for challenging the first prospective black juror but not the prospective white juror is as follows:\nAdditionally, [the first prospective black juror] said her son had been involved in a breaking or entering \u2014 she didn\u2019t come down here \u2014 that was involved in it. Apart from [the prospective white juror] who went into a length \u2014 lengthy explanation about how she in fact had been the victim in a case, and how she and her husband had \u2014 or her husband had been found not guilty, uh, whereby it was a two on one confrontation that took place out on the roadway versus, uh, [the first prospective black juror]\u2019s son who, uh, either was caught red handed or tied to a break-in and there being no excuse offered or tendered by [the first prospective black juror] concerning her son\u2019s activities. Uh, that is what distinguished [the prospective white juror] from [the first prospective black juror].\nThe prosecutor, however, did not question the first prospective black juror about the incident with her son and did not ask her \u201c[i]s there anything about that experience that \u2014 that would prevent you from being fair to either side in this case\u201d as he did the prospective white juror.\nI find it unnecessary to recite the transcript for each prospective black juror excused by the prosecutor because the disparate treatment of this juror alone, coupled with the fact that the prosecutor used five of his six peremptory challenges to exclude every African-American called into the jury box, shows that the prosecutor\u2019s reasons were not \u201cbona fide\u201d and were \u201csham excuses belatedly contrived to avoid admitting acts of group discrimination\u201d and therefore violated defendant\u2019s right to a jury selected without regard to race. See generally Gamble v. State, 357 S.E.2d 792, 795 (Ga. 1987). For these reasons, I would grant defendant a new trial.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General William F Briley, Associate Attorney General Elizabeth Leonard McKay, and Associate Attorney General Lisa C. Bland, for the State.", "Appellate Defender Malcolm R. Hunter, Jr., by Assistant Appellate Defender Gordon Widenhouse, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEANO DONDAY FLOYD\nNo. 9312SC764\n(Filed 5 July 1994)\n1. Jury \u00a7 260 (NCI4th)\u2014 discrimination in jury selection\u2014 prima facie case rebutted \u2014 reasons for exclusion of blacks not pretextual\nThough defendant made out a prima facie case of racial discrimination in the jury selection process, the trial court did not err in finding and concluding that the prosecutor rebutted defendant\u2019s prima facie case and that the prosecutor\u2019s reasons for excusing the black jurors were not pretextual, where one prospective black juror seemed to have trouble understanding the burden of proof and her duty should the State prove defendant\u2019s guilt beyond a reasonable doubt, and she had a son defendant\u2019s age who was involved in a breaking and entering; the second juror was evasive and did not reveal his involvement in various crimes; the third juror seemed very headstrong and not amenable to deliberation; the fourth juror had been arrested on drug charges and concealed convictions for writing worthless checks; and the fifth juror was charged with driving while impaired and had a discipline problem in the military.\nAm Jur 2d, Jury \u00a7 235.\nProof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case. 1 ALR2d 1291.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n2. Criminal Law \u00a7 313 (NCI4th) \u2014 joinder of robbery cases\u2014 no error\nThe trial court did not err in joining armed robbery cases for trial and in denying defendant\u2019s motion to sever where the two robberies were separated by less than twenty-four hours; both robberies took place at Quik Stop convenience stores in the Fayetteville area; in both robberies the perpetrator used a silver automatic handgun; in both the robber walked up to the counter and distracted the store clerk with a transaction before revealing his weapon and demanding money; the evidence was not complicated; and the court adequately separated the offenses in the jury charge. N.C.G.S. \u00a7 15A-926(a).\nAm Jur 2d, Actions \u00a7 159.5.\nConsolidated trial upon several indictments or infor-mations against same accused, over his objection. 59 ALR2d 841.\n3. Evidence and Witnesses \u00a7 403 (NCI4th)\u2014 altercation with eyewitness \u2014 identity of eyewitness speculative \u2014 evidence inadmissible\nAlthough evidence of a prior altercation with an eyewitness is relevant as a general rule, that evidence loses its relevance when, as here, the identity of the person with whom defendant argued is merely speculation.\nAm Jur 2d, Evidence \u00a7\u00a7 307 et seq., 560 et seq.\n4. Evidence and Witnesses \u00a7 1708 (NCI4th)\u2014 photographic evidence improperly excluded \u2014 defendant not prejudiced\nThough photographic evidence was improperly excluded, defendant was not prejudiced, since the scene depicted in the photographs was described for the jury, and it was not a difficult scene for the jury to imagine.\nAm Jur 2d, Evidence \u00a7\u00a7 960 et seq.\nJudge Greene dissenting.\nAppeal by defendant from judgments entered 16 February 1993 by Judge Joe Freeman Britt in Cumberland County Superior Court. Heard in the Court of Appeals 12 April 1994.\nOn 5 August 1991 the Quick Stop 95 and the Quick Stop 31 in Fayetteville were robbed. A customer was robbed and shot during the Quick Stop 31 robbery. One clerk was on duty in each store during the robberies. They each closely observed the robber, and each gave police a description. After the robberies, the Quick Stop 31 clerk transferred to Quick Stop 95. On 9 August 1991 both clerks were on duty at the Quick Stop 95 when defendant entered the store to purchase a gallon of gasoline. At this time both clerks separately identified defendant as the robber and the police were called.\nDefendant was tried on three charges of robbery with a dangerous weapon and one charge of assault with a deadly weapon with intent to kill inflicting serious injury. The jury found defendant guilty of all charges, and the court sentenced him to consecutive twenty, twenty, and twenty-five year terms and a concurrent twenty-five year term. From this judgment defendant appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General William F Briley, Associate Attorney General Elizabeth Leonard McKay, and Associate Attorney General Lisa C. Bland, for the State.\nAppellate Defender Malcolm R. Hunter, Jr., by Assistant Appellate Defender Gordon Widenhouse, for defendant appellant." }, "file_name": "0412-01", "first_page_order": 444, "last_page_order": 455 }