The opinion of the court was delivered by: Whichard, Justice.
Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Helms (William H.), J., on 14 November 1996 in Superior Court, Union County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to an additional judgment was allowed 5 December 1997. Heard in the Supreme Court 26 May 1998.
The evidence presented at trial tended to show that between 3:30 and 4:00 p.m. on 27 November 1995, defendant entered a jewelry store in Marshville, North Carolina, wearing a ski mask and carrying a sawed-off shotgun. Danny Cook, the victim, was behind the store's display counter when he saw defendant enter. When defendant entered, the victim told two customers in the store to get down. Defendant shot the victim in the chest from a distance of about three feet. Defendant then broke three glass display cases and took various items of jewelry, including some gold rings and necklaces. Defendant also stole two pistols.
On 22 January 1996 defendant was indicted for the first-degree murder of Danny Cook and robbery with a dangerous weapon. Defendant was tried capitally, and the jury returned verdicts finding him guilty of robbery with a firearm and first-degree murder on the theory of premeditation and deliberation and under the felony murder rule. Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. The trial court sentenced defendant accordingly and further sentenced him to 101 to 131 months' imprisonment for the robbery with a firearm conviction.
Defendant presents fourteen issues for review. Because we find Batson error in the selection of defendant's jury, we discuss only that issue.
Defendant argues the trial court erred by overruling his objections to the State's use of peremptory challenges to remove four black prospective jurors from the venire. Defendant argued to the trial court that the peremptory challenges were racially motivated in violation of the equal protection principles recognized in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).
A three-step process has been established for evaluating claims of racial discrimination in the prosecution's use of peremptory challenges. First, defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Second, if such a showing is made, the burden shifts to the prosecutor to offer a racially neutral explanation to rebut defendant's prima facie case. Third, the trial court must determine whether the defendant has proven purposeful discrimination.
State v. Cummings, 346 N.C. 291, 307-08, 488 S.E.2d 550, 560 (1997) (citations omitted), cert. denied, ___ U.S. ___, 139 L. Ed. 2d 873 (1998). Here, each time defendant objected to the State's use of a peremptory challenge to remove a black prospective juror from the venire, the trial court ruled that defendant had not made a prima facie showing of discrimination. Therefore, the trial court did not proceed to either step two or step three of the Batson analysis. We must decide whether the trial court erred when it concluded that defendant had not made a prima facie showing of discrimination.
Several factors are relevant to this determination. Those factors include the defendant's race, the victim's race, the race of the key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory challenges against blacks such that it tends to establish a pattern of strikes against blacks in the venire, the prosecution's use of a disproportionate number of peremptory challenges to strike black jurors in a single case, and the State's acceptance rate of potential black jurors.
State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995). In addition "the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.'" Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed. 1244, 1247-48 (1953)).
The first black prospective juror questioned by the State was Loma Mungo. She was excused for cause based on her opposition to the death penalty. Letitia Brown was the second. She was peremptorily challenged by the State. Defendant objected on Batson grounds, arguing that defendant was black, this prospective juror was black, and the victim was white. Defendant also pointed out that of the first thirty veniremen to be called, only two were black, and both were excused --one for cause, and the other peremptorily. Defendant further argued that the State's questioning of prospective juror Brown differed from that of the other prospective jurors by focusing on her extended family.
The trial court ruled that defendant had not made a prima facie showing of racial discrimination. It stated that the questions concerning Brown's extended family were appropriate because she stated that she lived with her grandmother. The court also stated that no pattern of peremptory challenges against black prospective jurors had been established.
This Court has considered similar situations. In State v. Smith, 347 N.C. 453, 496 S.E.2d 357 (1998), the Court noted that "[d]efendant has shown only that he is black and that the State peremptorily struck one black prospective juror." Id. at 462, 496 S.E.2d at 362. The Court held that "[t]his is insufficient to establish a prima facie case of racial discrimination." Id. Likewise, in Quick we held that the State's peremptory excusal of two of four black prospective jurors was insufficient to establish a prima facie case. Quick, 341 N.C. at 146, 462 S.E.2d at 189. This was so even though the defendant in Quick was black and the victims were white. Id. When prospective juror Brown was peremptorily challenged here, defendant had shown only that he was black, the victim was white, and the State had peremptorily challenged a single black prospective juror. As in Smith and Quick, this does not rise to the level of a prima facie case of discrimination. The trial court thus did not err with regard to prospective juror Brown.
Defendant argues that because the trial court also asked the State to articulate its reasons for excusing Brown for the record, step one of the Batson analysis became moot, and the trial court was required to determine whether the reasons offered by the State were race neutral. We disagree. This Court has explained:
If 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, and it becomes the responsibility of the trial court to make appropriate ...