Appeal by defendant from judgment dated 11 October 1996 by Judge Franklin R. Brown in Edgecombe County Superior Court. Heard in the Court of Appeals 24 February 1998.
The opinion of the court was delivered by: Greene, Judge.
Demetrius Antoine Cofield (Defendant) appeals his conviction for the first-degree murder of Mohammed Suleiman Mullah (Mullah) in the perpetration of attempted armed robbery.
During jury selection, defense counsel peremptorily challenged prospective jurors Anita Cooke (Cooke), James Russ (Russ), Milton Moore, Jr. (Moore), and Michael Speight (Speight) on behalf of Defendant, who is African-American. The State objected to their removal, contending that the challenges at issue were racially motivated, and noted that "each of these four jurors . . . are Caucasian, [and] have given no . . . answers that the State would feel would entitle [defense] counsel to remove them . . . ."
The State specifically noted that Cooke had indicated that she would consider both the death penalty and life imprisonment, and had stated there was no reason she could not be fair. The State also noted that one of the accepted African-American jurors "has almost the identical credentials [as Cooke, and these jurors] parallel each other consistently and entirely." As for Russ, the State contended that "he's heard about the incident, just like Number Two, who is black, yet the defendant is willing to let Number Two sit up there, when both Number Two and [Russ] have almost identical credentials." As for Moore, "he has been on a jury, just as Number Two, who is black, has been on a jury. He has said he could consider both punishments. He has given no reason . . . that the State has heard that would show that he is impartial to [Defendant] in any way." As for Speight, the State contended that he "has indicated that he could consider both [life and death] punishments. He has given no indication that the State has seen that he would be impartial, or unfair to this [Defendant] in any way."
The Court found the following facts:
The Jury passed to [Defendant] consisted of four black males, two white males, two black females and four white females. . . . The challenged jurors were all white . . . . [T]he Court listened to the juror voir dire, which is of record, and examined juror questionnaires of the jurors passed by the State to [Defendant]; . . . that the Court adopts the objections of the State and the questions and answers of the jurors on voir dire and the information contained in the questionnaire as its findings of fact.
The trial court found that the State had made out a prima facie case of racially motivated peremptory challenges.
Defense counsel then attempted to rebut the State's prima facie case with race-neutral explanations for the challenges. As for Cooke, defense counsel stated that she was formerly employed by Nash General Hospital. "She, by her own admission and own statement, indicated that she was familiar with Doctor Levy. Doctor Levy [who performed the autopsy on Mullah] is a very important witness in this case for the State . . . ." Defense counsel also noted that Cooke's sister-in-law was a victim of a recent breaking and entering, and that her uncle had worked with the Rocky Mount Police Department, as did the officers involved in Defendant's case. Defense counsel explained that Russ was challenged because "when asked as to his race, he calls himself Caucasian [rather than white]," and this indicated to defense counsel "that, perhaps, this gentleman has, in his own mind, some difficulty with races." In addition, Russ had requested, and the trial court had denied, excusal from jury duty for health reasons. Furthermore, defense counsel noted that Russ had served as a pilot in the military, and "we do not need to have individuals with the propensities of a prior military record serving on a jury in this case . . . base[d] . . . on the experience of counsel, both personally and also in general." Russ also "is a member of the VFW, nothing finer than the VFW, but in this case we do not believe that a member of VFW should be sitting as a member in this case, on the jury panel." Finally, defense counsel stated that Russ had been challenged in part due to the fact that his facial expressions appeared to reveal some concern on his part that a family member had been raped in the past. As for Moore, defense counsel stated that he had a "dominat[ing]" attitude when he answered questions. Moore described his race as "Anglo-Saxon" on the jury questionnaire, and defense counsel felt that this might mean that "race causes [Moore] some difficulty." Moore also had a military background, and "is a member of the Rainbow Gun Club." As for Speight, defense counsel felt he "very clearly was . . . telling a lie to the Court, when the Court was asking him questions concerning how he knew [one of the witnesses], and why he didn't bring that to the Court's attention before." In addition, defense counsel "just did not like [Speight], did not like his attitude. He did not look us in the eye, he didn't look up. We thought he was being deceptive, being untruthful."
The State did not immediately offer any additional argument as to the four challenged jurors. The trial court removed Speight pursuant to defense counsel's peremptory challenge, but sustained the State's objections to the removal of the other three prospective jurors challenged. After additional questioning of the prospective jurors, defense counsel again peremptorily challenged Cooke, Russ, and Moore, offering the following additional reasons:
Moore refuses to answer the questions asked and posed upon him by counsel. His answer to any questions were over and over that he didn't remember. His attitude as displayed in the courtroom was not only obnoxious, but was rude. . . .
In addition, [Moore] was mimicking what the Court was saying to counsel earlier about, "That's already been asked. You've already asked that" . . . on at least two occasions. [Moore] . . . was the foreperson on a previous jury. . . .
[Russ did not complete his answers, and] has a family member who has suffered from a rape in the past. . . .
[Cooke] was familiar [with] and . . . knew Dr. Levy, [an expert witness for the State]. . . . [S]he only saw him once or so, or twice or so. Nevertheless, she . . . has a family member, who was a sister-in-law that was involved in a breaking and entering, and . . . she has a retired uncle from the [police department involved in this case].
The trial court, after hearing defense counsel's explanations for use of the Defendant's peremptory challenges, found "that [defense counsel] failed to advance race-neutral reasons for the peremptory challenges at issue," and "had failed to rebut the prima facie case of purposeful racial discrimination."
Although the trial court determined that defense counsel's explanations were not facially race neutral, it nonetheless allowed the State to offer surrebuttal arguments that defense counsel's explanations were merely pretextual excuses for purposeful racial discrimination. The State noted:
[Cooke's] relative, her uncle, she said . . . that she was "a little girl" when he retired [from the police department]. . . . She does not [currently] know anybody with [that police department]. . . .
As to [Moore], Your Honor, if there had been any "obnoxious" attitude elicited, it's been, the State would contend, because [Moore] has been asked the same question, with all respect to counsel, at least three or four times, and each time, including the first time, he gave an articulate, intelligent answer, which the State could understand what he was saying the first time. We would say he probably feels his answer was articulate ...