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    "judges": [
      "Judges ROBERT C. HUNTER and CALABRIA concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. TYUS SENTELL HEADEN, Defendant"
    ],
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      {
        "text": "GEER, Judge.\nDefendant Tyus Sentell Headen appeals from his conviction of voluntary manslaughter. Defendant, who is African-American, contends that the trial court erred in overruling his objection, pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), to the State\u2019s peremptory challenge of a prospective juror who is also African-American. Defendant argues that he met his burden of making a prima facie showing of racial discrimination and that the State\u2019s explanation for the challenge was a pretext for a race-based strike.\nUnder the applicable standard of review, because the State volunteered its basis for the challenge before the trial court ruled on whether defendant had established his prima facie case, we consider whether the trial court\u2019s findings \u2014 that (1) the State offered a race-neutral explanation for its challenge and (2) defendant ultimately failed to prove the State purposefully discriminated \u2014 were clearly erroneous. Our review of the record shows that the State did offer a race-neutral explanation for its challenge, and we are not persuaded by defendant\u2019s arguments that the State\u2019s explanation was pretextual. We must, therefore, uphold the trial court\u2019s ruling.\nFacts\nThe State\u2019s evidence tended to establish the following facts. On the evening of 7 August 2005, following a rally at a local drag racetrack, a group of motorcycle riders gathered for an anniversary cookout sponsored by the Carolina Kings, a motorcycle club in Greensboro, North Carolina. The cookout was held at the home of club member Jeff Hinson. Defendant and an acquaintance, Terry Neal, were not members of the club, but they attended the cookout.\nDefendant had recently withdrawn $4,500.00 and was carrying the cash in his pocket. At some point during the evening, Neal reached into defendant\u2019s pocket, and the two men began to scuffle. A gun fell onto the ground. Defendant picked up the gun, pointed it at Neal, and shot.\nAs Neal stumbled and ran toward the house, defendant followed with the gun. Witnesses saw defendant holding the gun, heard the gun being fired in the house, and saw blood in the house. Neal made his way out of the house and into the front yard, where he took a couple of deep breaths, gasped for air, and stopped breathing. Albert Glaseo brought defendant outside and wrestled with him. The gun went off again, and the shot went into the ground. Defendant then left.\nAn autopsy performed on Neal revealed two gunshot wounds. One bullet pierced the muscle tissue of Neal\u2019s buttock and exited his right thigh. The other bullet, which the medical examiner estimated had been fired from less than two feet away, went through both of Neal\u2019s lungs and esophagus, exited the chest cavity, and lodged in his left upper arm. This wound, which ultimately caused Neal\u2019s death, resulted in both lungs collapsing, created a large amount of blood, and made it difficult for Neal to breathe.\nDefendant was indicted for first degree murder on 6 September 2005. His case was first tried in October 2006, but the trial court granted the State\u2019s and defendant\u2019s joint motion for a mistrial after the jury indicated it was \u201chopelessly deadlocked.\u201d When the case came on for retrial in May 2008, the trial court dismissed the entire jury pool due to an error in the method by which the jurors were selected for service. Defendant\u2019s case was finally retried in July 2008.\nAt the retrial, defendant testified on his own behalf. He explained that he was standing near Neal at the party when Neal put his right hand in defendant\u2019s left pocket and took defendant\u2019s money. Defendant dropped his beer and grabbed Neal\u2019s right hand with both of his hands. According to defendant, Neal, with his left hand, brandished a gun in defendant\u2019s face. The two men started wrestling, and defendant grabbed at the top of the gun. The gun went off and fell between them. Neal backed up, stumbled, and ran fast toward the house. Defendant claimed he did not know how the gun went off and did not realize Neal had been shot.\nDefendant picked up the gun and chased after Neal \u2014 not to shoot him, but to get his money back. In the house, when Glaseo grabbed defendant, the gun went off again. Glaseo marched defendant outside and tried to get him to calm down. They were wrestling when the gun went off for a third time. Defendant denied having brought the gun to the party or even owning or knowing much about guns. When he was asked about several kinds of ammunition that had been found in his bedroom, he said that he had bought the ammunition for a friend who used it to make belts.\nOn 5 August 2008, the jury returned a verdict of guilty of voluntary manslaughter. The court sentenced defendant to a presumptive-range term of 75 to 99 months imprisonment. Defendant timely appealed to this Court.\nDiscussion\nIn his sole argument on appeal, defendant contends that the trial court erred in determining that defendant did not make a prima facie showing of racial discrimination by the State in its use of one of its two peremptory challenges during jury selection. Defendant further contends that the court erred in finding that the State\u2019s explanation for its peremptory challenge was race-neutral and not pretextual. These errors, defendant claims, violated his constitutional right to a jury selected without regard to race.\nJury selection began on 29 July 2008 with the clerk calling the first panel of 12 prospective jurors, including juror number six, William Brooks, a black and Indian male. The prosecutor questioned the first panel, inquiring of Brooks, as he did with many of the other prospective jurors., as to where in the county he resided. After questioning the entire panel, the prosecutor announced that he would exercise two peremptory challenges. The prosecutor chose to strike Brooks and juror number one, a white male.\nAt that point, defense counsel informed the trial court that he intended to make a Batson challenge. The prospective jurors were escorted from the courtroom. Defense counsel noted for the record that defendant is African-American. Defense counsel then stated that in the first trial, \u201cthere appeared to be racial overtones from some members of the jury that could possibly caused [sic] that jury to be unable to reach a verdict.\u201d Defense counsel provided the court with no further explanation about what \u201cracial overtones\u201d may have existed.\nDefense counsel also asserted that during the first attempt to retry the case, the bailiff overheard one of the prospective jurors \u2014 a black male \u2014 indicate \u201cthat he was going to find [defendant] not guilty regardless of any evidence that was presented.\u201d Defense counsel argued that Brooks was the only African-American male on the panel, but admitted that he could not tell whether juror number 11, a woman, was also African-American. Defense counsel then argued: \u201cThere\u2019s a definite pattern that emerged between the first trial, I would contend, and what the jurors were overheard [sic] by the bailiffs during the second trial and it would fall right in line to excuse an African-American male in this case.\u201d\nThe trial court asked the State, \u201cDid you wish to say something at this point, Mr. DA?\u201d The prosecutor explained:\n[As Brooks] walked in I observed that he was heavily tattooed up and down his arms. And was attired in baggy jeans hanging low with a big red, blood red color splotch on the back of the pocket, like splattered down the jeans. I observed that attire and those tattoos and I \u2014 again, it has nothing to do with his race, it just has to do with what he chose to wear to court today and his choice of applying, you know, that much ink. Maybe that\u2019s the wrong reason but I contend, Your Honor, that that\u2019s certainly something the State is inclined or able to take into account on an individual and I did so.\nThe prosecutor further noted that he had tried over 130 cases, and this was the first time he had ever faced a Batson challenge. Defense counsel responded, \u201cI don\u2019t believe that my Batson challenge in any way, shape or form is a racial accusation against\u201d the prosecutor, and he reiterated that he \u201csimply [saw] what [he] call[ed] a pattern emerging.\u201d\nThe trial court then summoned Brooks back to the courtroom and asked him to state his race for the record. Brooks responded, \u201cBlack and Indian.\u201d The trial court excused Brooks from the courtroom and rendered its decision on defendant\u2019s Batson challenge:\nMr. Brooks has now identified that his heritage is black and Indian. ...\nThe Court will now move on to consider relevant circumstances to determine whether or not the defendant has made out a prima facia case of a Batson violation.\nThe Court is going to consider the relevant circumstances, which would include pattern of peremptories against minorities, include intentional regular and repeated peremptories against minorities, disproportionate peremptories against minorities, the manner of jury selection including questions and remarks by the contested party during jury selection and the mannerisms of the contested party, the racial dynamics of the case.\nAt this point the Court is aware of \u2014 of purported race of the defendant and the purported race of the victim and the attorneys in the case, at least as it appears by sight, the past history of the parties, if any, including whether the challenge party has a habit, to the Court\u2019s knowledge, of systematically excluding minorities in case after case and the credibility of the plaintiff.\n\u2022 The Court, after considering all of these factors, after this first round, if you will, of jury selection will find in my discretion that the defendant has not made out a prima facia case of any Batson violation.\nThe Court will go on to note that even though the Court did not request the State make any response, the State wished to make a response, apparently, and did so and stated reasons why Juror Number 1 and 6 were excused.\nThe Court will find that even if it could be argued that a prima facia case was made, which this Court will find it was not, the Court would then find again this an academic exercise at this point. The State has offered race neutral explanations for why they chose to excuse Juror Number 6, Mr. Brooks.\nSo the Court will find that at this stage of the trial there have been no Batson errors ....\nIn Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719, the United States Supreme Court explained that \u201cthe Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or oh the assumption that black jurors as a group will be unable impartially to consider the State\u2019s case against a black defendant.\u201d Our Supreme Court has construed Batson as outlining a \u201cthree-part test for determining whether the state impermissibly excluded a juror on the basis of race\u201d: (1) \u201cthe defendant must make a prima facie showing that the state exercised a race-based peremptory challenge\u201d; (2) \u201c[i]f the defendant makes the requisite showing, the burden shifts to the state to offer a facially valid, race-neutral explanation for the peremptory challenge[]\u201d; and (3) \u201cthe trial court must decide whether the defendant has proved purposeful discrimination.\u201d State v. Taylor, 362 N.C. 514, 527, 669 S.E.2d 239, 254 (2008), cert. denied, - U.S. -, 175 L. Ed. 2d 84, 130 S. Ct. 129 (2009).\n\u201cTo allow for appellate review, the trial court must make specific findings of fact at each stage of the Batson inquiry that it reaches.\u201d State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823, 829 (1998). This Court \u201cmust uphold the trial court\u2019s findings unless they are \u2018clearly erroneous.\u2019 \u201d Id. (quoting State v. Barnes, 345 N.C. 184, 210, 481 S.E.2d 44, 58, cert. denied sub nom. Chambers v. North Carolina, 522 U.S. 876, 139 L. Ed. 2d 134, 118 S. Ct. 196 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473, 118 S. Ct. 1309 (1998)). Under this standard, the fact finder\u2019s choice between two permissible views of the evidence \u201c \u2018cannot\u2019 \u201d be considered clearly erroneous. Id. at 276, 498 S.E.2d at 829 (quoting Hernandez v. New York, 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412, 111 S. Ct. 1859, 1871 (1991)). We reverse \u201conly\u201d when, after reviewing the entire record, we are \u201c \u2018left with the definite and firm conviction that a mistake ha[s] been committed.\u2019 \u201d Id. (quoting Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412, 111 S. Ct. at 1871).\n\u201cGenerally, when a trial court rules that the defendant has failed to establish a prima facie case of discrimination, this Court\u2019s review is limited to a determination of whether the trial court erred in this respect.\u201d State v. Bell, 359 N.C. 1, 12, 603 S.E.2d 93, 102 (2004), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094, 125 S. Ct. 2299 (2005). \u201cWhen, however, the prosecutor volunteers his reasons to the trial court before the trial court rules, then, despite the trial court\u2019s ultimate ruling that defendant failed to establish a prima facie case, the appellate court proceeds as though the defendant had established a prima facie case and examines the prosecutor\u2019s explanations. In such a case, the appellate court considers the prosecutor\u2019s explanations pursuant to step two of Batson, and then proceeds to step three, inquiring whether the trial court was correct in its ultimate determination that the State\u2019s use of peremptory challenges did not constitute intentional discrimination.\u201d State v. Mays, 154 N.C. App. 572, 575, 573 S.E.2d 202, 205 (2002).\nThus, although defendant argues that the trial court erred in finding that defendant failed to make out a prima facie case of discrimination, \u201c[w]hether defendant established aprima facie case is moot as the prosecutor here \u2018volunteered] his reasons for the peremptory challenges ....\u2019\u201d State v. Wright, 189 N.C. App. 346, 352, 658 S.E.2d 60, 64 (quoting State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996), cert. denied, 519 U.S. 1061, 136 L. Ed. 2d 618, 117 S. Ct. 695 (1997)), disc. review denied, - N.C. -, 667 S.E.2d 280 (2008). The sole issues before this Court are whether the trial court\u2019s findings as to the second and third steps of Batson are clearly erroneous. Bell, 359 N.C. at 12, 603 S.E.2d at 102.\nAccordingly, we first review the trial court\u2019s finding that the State offered a race-neutral explanation for striking Brooks. \u201cTo rebut a prima facie case of discrimination, the prosecution must \u2018articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.\u2019 \u201d State v. McClain, 169 N.C. App. 657, 668, 610 S.E.2d 783, 791 (2005) (quoting State v. Cummings, 346 N.C. 291, 308-09, 488 S.E.2d 550, 560 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873, 118 S. Ct. 886 (1998)). The State\u2019s explanation \u201cneed not \u2018rise to the level justifying a challenge for cause,\u2019 and need not be \u2018persuasive, or even plausible.\u2019 In fact, the challenges may be based on . . . counsel\u2019s \u2018legitimate hunches ....\u2019\u201d Cofield, 129 N.C. App. at 277, 498 S.E.2d at 830 (internal citation omitted) (quoting Barnes, 345 N.C. at 209, 481 S.E.2d at 57). The issue at this stage is mere \u2018\u2018facial validity,\u201d and \u201cabsent a discriminatory intent, which is inherent in the reason, the explanation given will be deemed race-neutral.\u201d McClain, 169 N.C. App. at 668, 610 S.E.2d at 791.\nIn this case, the State\u2019s explanation for peremptorily challenging Brooks included that Brooks was \u201cheavily tattooed up and down his arms\u201d and was \u201cattired in baggy jeans hanging low with a big red, blood red color splotch on the back of the pocket, like splattered down the jeans.\u201d The prosecutor expressed concern over what Brooks \u201cchose to wear to court today and his choice of applying . . . that much ink.\u201d\nCourts from other jurisdictions have found similar explanations about clothing and tattoos to be sufficiently race-neutral to satisfy the second step of Batson. See, e.g., United States v. Jones, 245 F.3d 990, 993 (8th Cir. 2001) (\u201c[T]he veniremember\u2019s grooming may be a sufficiently race neutral explanation, as may his style of dress ....\u201d (internal citation omitted)); State v. Washington, 288 S.W.3d 312, 316 (Mo. Ct. App. E.D. 2009) (noting \u201cdistinctive tattoo\u201d would be \u201c \u2018individualistic\u2019 trait[]\u201d that \u201ccould have applied equally to any venireperson\u201d); State v. Williams, 97 S.W.3d 462, 471 (Mo.) (\u201cStriking a prospective juror based upon clothing and attire is [sic] does not reflect an inherent racial bias motivating the strike.\u201d), cert. denied, 539 U.S. 944, 156 L. Ed. 2d 631, 123 S. Ct. 2607 (2003); Knuckles v. State, 236 Ga. App. 449, 452-53, 512 S.E.2d 333, 337 (1999) (\u201c[Unconventional methods of self-adornment in attire, hair style, hair color, shaving the head, jewelry, tattoos, or scarification, may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines. Such may constitute a race/gender-neutral reason to strike.\u201d).\nConsistent with these other jurisdictions, we conclude that the reason proposed by the State in this case was race-neutral. Heavy tatooing and inappropriate, casual clothing \u2014 standing alone \u2014 is not unique to any particular race, but rather crosses racial lines. Further, in a murder case, concern about a prospective juror\u2019s wearing clothes made to appear blood-spattered is both a race-neutral concern and one particularly related to the subject matter of this case. We, therefore, hold that the trial court\u2019s finding that the State\u2019s explanation was race-neutral is not clearly erroneous.\nNext, we move to the third step of Batson and consider whether the trial court\u2019s finding that there was ultimately no Batson error was clearly erroneous. In the third step, the defendant may introduce evidence that the State\u2019s explanation is merely a pretext, and \u201c \u2018the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.\u2019 \u201d State v. Gaines, 345 N.C. 647, 668, 483 S.E.2d 396, 408 (quoting Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866), cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177, 118 S. Ct. 248 (1997). This stage is where the \u201c \u2018persuasiveness of the justification [offered by the State] becomes relevant ....\u2019\u201d State v. Wiggins, 159 N.C. App. 252, 262, 584 S.E.2d 303, 312 (quoting Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (1995)), disc. review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 541 U.S. 910, 158 L. Ed. 2d 256, 124 S. Ct. 1617 (2004).\nIn attempting to show that the State\u2019s explanation was pretextual, a defendant may proceed by showing \u201cthat the reasons presented \u2018pertained just as well to some white jurors who were not challenged and who did serve on the jury.\u2019 \u201d State v. McCord, 158 N.C. App. 693, 696, 582 S.E.2d 33, 35 (2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 343, 154 L. Ed. 2d 931, 954, 123 S. Ct. 1029, 1043 (2003) (\"Miller-El I\"). Other factors that a defendant may rely upon in showing pretext include \u201cthe defendant\u2019s race, the victim\u2019s race, and the race of the State\u2019s key witnesses!;] . . . whether the prosecutor made racially motivated statements or asked racially motivated questions of black prospective jurors and whether there was a discemable difference in the prosecutor\u2019s method of questioning black prospective jurors that raises an inference of discrimination];] . . . [and] whether the prosecutor used a disproportionate number of peremptory challenges to strike black jurors in a single case.\u201d State v. Gregory, 340 N.C. 365, 397-98, 459 S.E.2d 638, 656 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478, 116 S. Ct. 1327 (1996).\nWe note first that the requirement under Batson is purposeful discrimination; disparate impact is not sufficient. See United States v. Roberts, 163 F.3d 998, 999 (7th Cir. 1998) (\u201cBatson establishes a rule of disparate treatment, not of disparate impact . . .'.\u201d). In other words, a defendant must demonstrate that the State intentionally challenged the prospective juror based on his or her race. It is not enough that the effect of the challenge was to eliminate all or some African-American jurors. On this point, the State argues with some persuasive force that defense counsel\u2019s admission at trial that he was not making \u201cin any way, shape or form ... a racial accusation against\u201d the prosecutor was inconsistent with the requirement of purposeful discrimination.\nOn the other hand, the statement may also be read as defense counsel\u2019s saying he did not think the prosecutor was a racist, but that the prosecutor was using the strike for a strategic purpose because prior African-American jurors or prospective jurors had exhibited a reluctance to convict defendant. Strategically using a race-based strike is just as much a violation of Batson. Thus, we turn to the merits of defendant\u2019s arguments regarding pretext.\nDefendant purports to rely extensively on the statistics involved in this case. Defendant argues that the prosecutor used \u201chalf of his strikes . . . against African Americans.\u201d In addition, defendant claims that by excluding Brooks, the prosecutor \u201cprevented his acceptance of any African Americans .... His acceptance rate of African Americans was zero.\u201d Defendant did not, however, sufficiently establish that latter fact at trial. Defense counsel admitted that \u201cby appearance, I cannot tell if [prospective juror] Ms. Campbell is of African-American decent [sic] or not.\u201d If Campbell, who was accepted as a juror, is African-American, then the \u201cstatistics\u201d would indicate that the State accepted 50% of the African-American prospective jurors. As this disparity in the possible \u201cacceptance rate[s]\u201d demonstrates, reliance upon statistics is meaningless when the the jury pool contains only one or two African-Americans.\nDefendant nonetheless repeatedly points to Miller-El v. Dretke, 545 U.S. 231, 241, 162 L. Ed. 2d 196, 214, 125 S. Ct. 2317, 2325 (2005) (\u201cMiller-El II\"), as \u201cemphasizing] the constitutional significance of the numerical disparities in the use of peremptory strikes against prospective jurors because of gender or race.\u201d Defendant\u2019s reliance on Miller-El II is misplaced.\nIn Miller-El I and Miller-El II, the United States Supreme Court was concerned about the prosecution\u2019s \u201cremarkable\u201d use of peremptory challenges against African-Americans: \u201cOut of 20 black members of the 108-person venire panel for Miller-El\u2019s trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were peremptorily struck by the prosecution. \u2018The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members[.]\u2019 \u201d Miller-El II, 545 U.S. at 240-41, 162 L. Ed. 2d at 214, 125 S. Ct. at 2325 (internal citation omitted) (quoting Miller-El I, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042). The Court recognized that \u201c \u2018[h]appenstance is unlikely to produce this disparity.\u2019 \u201d Id. at 241, 162 L. Ed. 2d at 214, 125 S. Ct. at 2325 (quoting Miller-El I, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042).\n\u201c[I]t is axiomatic in statistical analysis that the precision and dependability of statistics is directly related to the size of the sample being evaluated.\u201d Moultrie v. Martin, 690 F.2d 1078, 1083 (4th Cir. 1982). See also Capitol Hill Hosp. v. Baucom, 697 A.2d 760, 765 (D.C. 1997) (recognizing \u201cstatistics may be less elucidating when based on a small sample\u201d). The numbers in this case \u2014 by defendant\u2019s count, a sample size of one- \u2014 are not at all analogous to Miller-El I and MillerEl II \u2014 which had a larger sample size of 11. We question whether we can derive any \u201cremarkable\u201d inference from a sample size of one. Miller-El II, 545 U.S. at 240, 162 L. Ed. 2d at 214, 125 S. Ct. at 2325. See Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000) (where one of three of prosecutor\u2019s peremptory challenges had been exercised against African-American, and only four of 64 of prospective jurors in venire were African-American, observing \u201cthat the sample is so small that the statistical significance of the percentages is limited\u201d). See also State v. Nicholson, 355 N.C. 1, 22, 558 S.E.2d 109, 125 (\u201cWhile the state did exercise its first two peremptory challenges to excuse African-American jurors, those excus\u00e1is took place too early in voir dire to establish a pattern of discrimination.\u201d), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71, 123 S. Ct. 178 (2002).\nWe, therefore, find no persuasive value in defendant\u2019s claim that the State excluded 100% of the African-American prospective jurors and that 50% of the State\u2019s challenges were used against African-American prospective jurors. Based on the jury pool\u2019s containing only one or two African-Americans, and the State\u2019s exercising only two peremptory challenges, we cannot say in this case that \u201c \u2018[happenstance is unlikely to produce [the] disparity ....\u2019\u201d Miller-El II, 545 U.S. at 241, 162 L. Ed. 2d at 214, 125 S. Ct. at 2325 (quoting Miller-El I, 537 U.S. at 342, 154 L. Ed. 2d at 953, 123 S. Ct. at 1042).\nDefendant also points to his argument in the trial court that the State\u2019s peremptory challenge should be considered \u201cin light of\u2019 the procedural history of the case and the \u201cdefinite pattern that emerged\u201d because \u201cit would fall right in line to excuse an African-American male in this case.\u201d Here, in order to establish a basis for the State\u2019s strategic exclusion of a black juror, defense counsel relied on what had occurred at defendant\u2019s first trial and at the first attempt to retry the case. Defendant did not, however, present any evidence to support his counsel\u2019s assertions regarding what occurred during the prior proceedings.\nWhile defendant did submit to this Court a transcript of the jury selection at the first attempted retrial, there is nothing in the record to indicate that this transcript was provided to the trial court for consideration in connection with the Batson challenge. In fact, the cover page of that transcript indicates that the transcript was ordered on 8 August 2008 and delivered on 15 December 2008 \u2014 after the Batson ruling and after defendant was tried and convicted. This Court \u201ccannot review evidence which was not considered by the trial court in its analysis.\u201d Gupton v. Son-Lan Dev. Co., 205 N.C. App. 133, 138, 695 S.E.2d 763, 767 (2010). See also State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (\u201cThis Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.\u201d).\nDefense counsel\u2019s statements regarding what occurred in the prior proceedings do not constitute evidence. As our Supreme Court has stated, \u201cit is axiomatic that the arguments of counsel are not evidence.\u201d State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996). See also State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (\u201cDefendant presented no evidence. His position with respect to his inability to comply was related through the statements of his counsel. We hold that counsel\u2019s statements were not competent evidence . . . .\u201d). Defendant bore the burden of demonstrating pretext. Since he did not present evidence to the trial court to support his contentions regarding the \u201cracial overtones\u201d in the prior proceedings, the prior proceedings cannot form a basis for overturning the trial court\u2019s decision.\nDefendant also challenges the State\u2019s comments about Brooks\u2019 clothing and tattoos as being a pretextual basis for excluding a black male from the jury. See Knuckles, 236 Ga. App. at 453, 512 S.E.2d at 337 (holding that if an aspect of a juror\u2019s physical appearance disfavored by State \u201c[is] shown to be unique to a racial or gender identification, then it could constitute an impermissible explanation,\u201d but \u201csuch exclusive identification with race or gender would be part of the movant\u2019s ultimate burden of persuasion\u201d). Defendant has not shown that Brooks\u2019 type of clothing or tattoos are exclusively identifiable with African-Americans, but rather suggests that the State\u2019s reason must be pretextual because the prosecutor \u201cdid not ask Mr. Brooks about his tattoos or his attire\u201d and \u201c[m]ore importantly, he did not ask any other prospective juror if he or she had a tattoo or ever wore baggy pants.\u201d\nAs the prosecutor explained, however, the issue was not whether a person had ever worn baggy pants or had a covered-up tattoo, but rather \u201cwhat [Brooks] chose to wear to court today and his choice of applying, you know, that much ink.\u201d Defendant did not at trial point to any other prospective juror wearing inappropriate clothing for court or having extensive, visible tattoos. We do not believe that the prosecutor\u2019s failure to ask Brooks or any other prospective juror about readily visible features or attire is suggestive of racial discrimination. Compare Snyder v. Louisiana, 552 U.S. 472, 480-83, 170 L. Ed. 2d 175, 182-84, 128 S. Ct. 1203, 1209-1211 (2008) (remanding where challenged juror \u201cwas 1 of more than 50 members of the venire who expressed concern that jury service or sequestration would interfere with work, school, family, or other obligations,\u201d other jurors\u2019 conflicts \u201cappealed] to have been at least as serious\u201d as that of challenged juror, and \u201cshared characteristic\u201d was \u201cthoroughly explored\u201d by trial court during voir dire).\nWe find this case similar to State v. Augustine, 359 N.C. 709, 714, 616 S.E.2d 515, 521 (2005), cert. denied, 548 U.S. 925, 165 L. Ed. 2d 988, 126 S. Ct. 2980 (2006), in which the Supreme Court concluded that no purposeful discrimination occurred when the defendant argued that the prospective juror in question \u201cwas the first African-American prospective juror to be considered, that the number of African Americans who had been summoned for the jury pool in this case was small, and that [she] had indicated during voir dire that she could consider both the death penalty and life imprisonment without parole as potential punishments in this case.\u201d The Court reasoned that \u201cnumerous factors support[ed] the trial court\u2019s ruling\u201d: the case \u201cwas not particularly susceptible to racial discrimination\u201d because the defendant, victim, and three critical witnesses were African-American; the State \u201cneither made any racially motivated statements nor asked any racially motivated questions of\u2019 the African-American prospective juror; the State contemporaneously peremptorily challenged a white prospective juror; and the African-American prospective juror had a son near the defendant\u2019s age who was serving a sentence in federal prison. Id. at 716, 616 S.E.2d at 522.\nIn this case, as in Augustine, both defendant and the victim were African-American. See also State v. Chapman, 359 N.C. 328, 342, 611 S.E.2d 794, 808 (2005) (\u201c[T]he shared race of the involved parties tends to contradict an inference of purposeful discrimination by prosecutors.\u201d); Nicholson, 355 N.C. at 22, 558 S.E.2d at 125 (finding no \u201cinference of discrimination\u201d where defendant, both victims, and two key State witnesses were African-American).\nOur review of the record indicates that the State asked no racially motivated questions, and defendant has not contended otherwise. Brooks, like the other prospective jurors, stated his occupation and marital status for the record. The State asked Brooks only one question \u2014 where in the county he lived \u2014 and Brooks replied that he lived in the northern part of Guilford County. \u201cThere was no discernable difference in the prosecutor\u2019s method of questioning [Brooks] from the method of questioning the rest of the jury venire.\u201d Gregory, 340 N.C. at 398, 459 S.E.2d at 657.\nIn addition, like the prosecutor in Augustine, the State contemporaneously challenged both a black prospective juror and a white prospective juror. These were the only two peremptory challenges by the State. Defendant left unresolved the question whether one of the jurors, who was accepted by the State, was African-American.\nFinally, Brooks had chosen to wear clothes to court that simulated blood-spattered clothing, and he was heavily tattooed. Defendant did not show that any other prospective jurors wore similarly inappropriate clothing or had comparable tattooing.\nIn view of the circumstances preserved in the record and under the applicable standard of review, we cannot conclude that the trial court\u2019s findings as to the State\u2019s race-neutral explanation or defendant\u2019s failure to show purposeful discrimination were clearly erroneous. We, therefore, hold that the trial court did not err in denying defendant\u2019s Batson challenge and in allowing the State to exercise its peremptory challenge.\nNo error.\nJudges ROBERT C. HUNTER and CALABRIA concur.\n. \u201cNormally our state appellate courts utilize an \u2018any competent evidence\u2019 standard of review of the findings of fact entered by the trial court. The \u2018clear error\u2019 standard is a federal standard of review adopted by our courts for appellate review of the Batson inquiry.\u201d Cofield, 129 N.C. App. at 275 n.1, 498 S.E.2d at 829 n.1 (internal citation omitted).\n. We note that defendant has not suggested that any racial discrimination occurred in the selection of the jury pool.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.",
      "Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TYUS SENTELL HEADEN, Defendant\nNo. COA09-606\n(Filed 3 August 2010)\nCriminal Law\u2014 Batson challenge \u2014 race-neutral explanation\u2014 failure to show purposeful discrimination\nThe trial court did not err in a voluntary manslaughter case by denying defendant\u2019s Batson challenge based on the State offering a race-neutral explanation and defendant failing to show purposeful discrimination. Heavy tattooing and inappropriate casual clothing, standing alone, are not unique to any particular race.\nAppeal by defendant from judgment entered 21 August 2008 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 28 October 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant."
  },
  "file_name": "0109-01",
  "first_page_order": 133,
  "last_page_order": 147
}
