ARROWOOD, Judge.

I. Appellate History

We review the instant case on remand from the Supreme Court of North

Carolina. In his initial appeal before this Court, Antiwuan Tyrez Campbell

(“defendant”) appealed from judgment entered against him for first-degree murder.

STATE V. CAMPBELL

Opinion of the Court

Defendant argued that the trial court erred by concluding that he failed to establish a prima facie claim of racial discrimination in jury selection, as set forth by Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). In our first opinion, we denied the State’s motion to dismiss defendant’s appeal for insufficiency of the record and found no error in the trial court’s holding that defendant did not make a prima facie claim pursuant to Batson. Campbell, __ N.C. App. at __, __, 838 S.E.2d at 663, 666 (2020). Our Supreme Court granted defendant’s Petition for Writ of Certiorari and remanded the appeal to this Court by Special Order for review of our prior ruling, in light of the Supreme Court’s recent decisions in Hobbs, __ N.C. App. __, 841 S.E.2d 492, and Bennett, __ N.C. __, 843 S.E.2d 222. Based upon our review of Hobbs and Bennett and their application to the facts of the instant case, we reach the same result for the reasons set forth below. II. Background On 15 April 2015, defendant was indicted for the first-degree murder of Allen Wilbur Davis, Jr., as well as the second-degree kidnapping of K.J.^[1] The case came on for trial in Columbus County Superior Court before the Honorable Douglas B. Sasser on 24 July 2017. On that date, the trial court addressed several pretrial motions filed by defense counsel, including “a motion for a complete recordation of all the proceedings.” Counsel specifically noted that she was “not requesting that [complete

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Opinion of the Court

recordation] include jury selection,” and that her motion was “[j]ust for appeal purposes.” The trial court granted the motion for recordation. Jury selection commenced the following day. However, as requested by defense counsel, those proceedings were not recorded. On the second day of jury selection, as the parties were seating alternate jurors, defense counsel objected to the State’s use of peremptory challenges, alleging that they were exercised in a racially discriminatory manner in violation of Batson. By this point in the proceedings, the State had exercised four peremptory challenges, three of which were used to strike African American prospective jurors: Ms. Vereen, Ms. Holden, and Mr. Staton. Defense counsel asserted that “the State . . . has tried extremely hard for every African-American, to excuse them for cause[,]” adding that “the last two alternate [African American] jurors . . . excused showed no leaning one way or the other or indicated that they would not be able to hear the evidence, apply the law, and render a verdict.” Defense counsel further noted that [w]e had Ms. Vereen on the front, who the State stayed on her over and over again, trying to get her removed for cause, and they finally used a peremptory on her. And then we move to our alternate, Mr. Staton. [The prosecutor] tried twice to get him removed for cause. After considering defense counsel’s argument, the trial court denied defendant’s Batson challenge.

STATE V. CAMPBELL

Opinion of the Court

Later that day, however, Judge Sasser stated that “upon further reflection, although I do not find that a prima facie case has been established for discrimination pursuant to Batson, in my discretion, I am still going to order the State to proceed as to stating a racially-neutral basis for the exercise of the peremptory challenges[.]” The State then offered the following the bases for the exercise of its peremptory challenges for each of the stricken African American prospective jurors: 1. The first juror, Ms. Vereen, had indicated that she knew Clifton Davis (“Mr. Davis”) and had dated his brother, both of whom were potential witnesses at defendant’s trial. Mr. Davis was a friend of defendant, and was allegedly at the scene with him at the time of the crimes. ^[2]. The second juror, Mr. Staton, was challenged because he “made several conflicting statements during the State’s questioning to try to ensure if he could be fair and impartial or not.” Further, he knew K.J.’s mother, who was “a fact witness and . . . an eyewitness . . . to the kidnapping.” 3. The third juror, Ms. Holden, was stricken because she had been a classmate of two potential witnesses at defendant’s trial. The State also explained that an additional reason for the peremptory strike against Ms. Holden was the fact when she was describing her political science background and nature as a student, she also was indicating that she was a participant, if not an organizer, for Black Lives Matter at her current college with her professor, and whether or not that would have any implied unstated issues that may arise due to either law enforcement, the State, or other concerns we may have.

STATE V. CAMPBELL

Opinion of the Court

Following the State’s explanation of the bases for the exercise of its peremptory challenges, the trial court reiterated that it “continues to find . . . that there has not been a prima facie showing as to purposeful discrimination” in violation of Batson. At the conclusion of the trial, the jury returned verdicts finding defendant not guilty of second-degree kidnapping, but guilty of first-degree murder. Defendant timely appealed. III. Discussion Defendant argues that the trial court erred in ruling that he failed to establish a prima facie showing that the State exercised peremptory challenges in a racially discriminatory manner, in violation of Batson. The State filed a motion to dismiss defendant’s appeal. After first disposing of the State’s motion, we turn to the merits of defendant’s appeal. A. Motion to Dismiss The State argues that defendant’s failure to include in the appellate record a transcript of the jury selection proceedings warrants dismissal of defendant’s appeal. We disagree and again deny the State’s motion to dismiss on this ground. The record in this case is minimally sufficient to permit appellate review. We disagree with the proposition that, in order to be entitled to review of a Batson claim, a defendant must include a verbatim transcript of jury selection in the record. We find no support in our statutes or case law which lead to such a result. We hasten to

STATE V. CAMPBELL

Opinion of the Court

add that if a defendant anticipates making a Batson discrimination argument, it is extremely difficult to prevail on such grounds without a transcript of jury selection. 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, 307-308, 488 S.E.2d 550, 560 (1997) (citations omitted), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). In determining whether a defendant has established a prima facie case of discrimination, our Supreme Court has noted that “[s]everal factors are relevant[.]” State v. Hoffman, 348 N.C. 548, 550, 500 S.E.2d 718, 720 (1998). 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 [African Americans] such that it tends to establish a pattern of strikes against [African Americans] in the venire, the prosecution’s use of a disproportionate number of peremptory challenges to strike [African American] jurors in a single case, and the State’s acceptance rate of potential [African American] jurors. Id. (quoting State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995)).

STATE V. CAMPBELL

Opinion of the Court

A verbatim transcript need not be furnished in every case for us to review whether a defendant established a prima facie Batson claim before the trial court. See State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409, 412 (1989) (acknowledging even without a verbatim transcript of jury selection, the record contained “the barest essentials” to permit review: “the racial composition of the jury, the number of [African American] jurors excused, and the State’s proffered reasons for their exclusion. The record also contains defense counsel’s response to the prosecutor’s explanations and the trial judge’s conclusions.”). Yet a defendant must include some evidence in the record, in one form or another, shedding light on the aforementioned factors to enable appellate review of a Batson claim. A narrative summary of voir dire proceedings, made during the Batson hearing and agreed to by defense counsel, the prosecutor, and the trial court, as was done here, may suffice to permit review. Moreover, the narrative summary in this case was minimally sufficient to enable review. While we believe that such a narrative must contain more relevant information in order to prevail, as discussed infra in our determination on the merits, unlike the dissent, we find remand to be unnecessary. The dissent opines that the trial court erred in failing to make specific findings of fact as to the Quick factors in its determination that defendant had not made a prima facie showing, and believes

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Opinion of the Court

remand for entry of such findings to be appropriate.^[2] We disagree. The trial court’s findings on defendant’s Batson claim were indeed conclusory: “[A]t this point, the Court does not find that the State’s exercise of peremptory challenges has even reached [the very low hurdle for making a prima facie claim] yet. . . . [T]he Court has found at this point there’s not a prima facie showing, and the Court will deny the Batson challenge.” Nonetheless, remand is inappropriate. While the absence of a transcript of voir dire does not preclude our review, it does preclude remand in the instant case. “[T]he failure of a trial court to find facts is not prejudicial where there is no ‘material conflict in the evidence on voir dire.’ ” Sanders, 95 N.C. App. at 500-501, 383 S.E.2d at 413 (emphasis in original) (quoting State v. Riddick, 291 N.C. 399, 408, 230 S.E.2d 506, 512 (1976)). In Sanders, where the trial court entered a similar conclusory finding, we [were] forced to assume that no material difference in fact existed since the defendant failed her duty to assure the availability of a jury voir dire transcript for our review. Thus, the trial judge’s failure to make adequate factual findings d[id] not constitute reversible error. Further, the defendant’s failure to secure a voir dire transcript ma[de] remand for further findings by the trial judge pointless. Without such transcript, we still would be unable to determine whether the trial judge’s [new] findings had a basis in fact.

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Opinion of the Court

Id. at 501, 383 S.E.2d at 413. The Court then proceeded to review the trial court’s conclusory finding based “only [on] the information adduced at the Batson inquiry.” Id. Such is the appropriate course of action in this case. B. Reviewing the Merits of Defendant’s Batson Claim Reviewing defendant’s Batson claim based upon the transcript of the trial court’s hearing on the matter, we find no error. “[T]he State’s privilege to strike individual jurors through peremptory challenges[ ] is subject to the commands of the Equal Protection Clause.” Batson, 476 U.S. at 89, 90 L. Ed. 2d at 82. “When the government’s choice of jurors is tainted with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial.” Miller-El v. Dretke, 545 U.S. 231, 238, 162 L. Ed. 2d 196, 212 (2005) (internal quotation marks, alterations, and citation omitted). When a defendant makes such an allegation, the trial court is obligated to address defendant’s claim with the three-step analysis set forth in Cummings, 346 N.C. at 307-308, 488 S.E.2d at 560, detailed supra part A. The trial court’s orders concerning jury selection are entitled to deference on review. See State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997) (noting that the trial court is afforded deference on jury selection rulings because the trial court has “the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and

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Opinion of the Court

impartial”) (citation omitted). Thus, we “must uphold the trial court’s findings unless they are clearly erroneous.” State v. Cofield, 129 N.C. App. 268, 275, 498 S.E.2d 823, 829 (1998) (internal quotation marks and citation omitted). “[W]hen a trial court rules that the defendant has failed to establish a prima facie case of discrimination, this Court’s review is limited to a determination of whether the trial court erred in this respect.” State v. Bell, 359 N.C. ^[1], 12, 603 S.E.2d 93, 102 (2004) (citation omitted), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005). However, an exception to this limited scope of review applies where the subsequent proceedings of the trial court render moot its initial determination that a defendant has not established a prima facie Batson claim. See Hobbs, __ N.C. App. at __, 841 S.E.2d at 499-501 (citations omitted). In such cases, our review proceeds to the remaining steps of the Batson inquiry. Id. When the State “volunteers [its] reasons for the peremptory challenges in question before the trial court rules [on] whether the defendant has made 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 findings on whether” the proffered explanation is nondiscriminatory. State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386 (1996) (citations omitted), cert. denied, 519 U.S. 1061, 136 L. Ed. 2d 618 (1997). - 10 - STATE V. CAMPBELL Opinion of the Court This result does not necessarily follow where the State provides its race- neutral reasons for exercising its peremptory challenges only when required to do so by the trial court after a ruling that no prima facie claim has been made. As noted by our Supreme Court in its recent decision in Hobbs, two results may follow in such instances. Where the trial court rules that a defendant has not made a prima facie Batson claim, proceeds to require the State to provide its nondiscriminatory reasons for its peremptory challenges, and then enters findings approving of the State’s offered reasons, step one of the Batson inquiry is rendered moot. Hobbs, __ N.C. App. at __, 841 S.E.2d at 500-501 (citations omitted). In Hobbs, the trial court determined that the defendant had not made out a prima facie Batson claim. Id. at __, 841 S.E.2d at 496. The court then asked the State, for purposes of the record, to explain its use of peremptory challenges against the African American jurors it had excused thus far. Id. After the State offered its reasons, the trial court gave the defendant an opportunity to rebut the State’s explanations and argue that they were pretextual. Id. The trial court characterized the proceedings as “a full hearing on the defendant’s Batson claim.” Id. Following the hearing, the court made extensive oral findings in support of an alternate ruling that the State’s offered reasons for the challenges were not pretextual. Id. at __, 841 S.E.2d at 496-97. Our Supreme Court held that these steps taken by the trial court after its initial ruling that the defendant had not established a prima facie Batson - 11 - STATE V. CAMPBELL Opinion of the Court claim rendered the initial ruling moot. Id. at __, 841 S.E.2d at 500-501. Thus, the Court engaged in full review of the trial court’s findings on the State’s offered reasons and the defendant’s contention that they were pretextual. Id. On the other hand, where the trial court rules that a defendant has not made a prima facie Batson claim, proceeds to require the State to provide its nondiscriminatory reasons for its peremptory challenges, and then does not make any findings assessing the veracity of the State’s explanations, step one of the court’s Batson inquiry is not rendered moot. See Hoffman, 348 N.C. at 551-52, 500 S.E.2d at 721. Here, the trial court’s treatment of defendant’s Batson claim more closely resembles the proceedings in the Hoffman line of cases than in Hobbs. The State only offered the nondiscriminatory bases for its peremptory challenges after the trial court required it to do so, after the court’s ruling that defendant’s prima facie claim failed. Unlike Hobbs, here the court did not allow defense counsel to argue that the State’s proffered nondiscriminatory reasons for the challenges were pretextual. The court’s language clearly indicated its opinion that the State had provided sufficient nondiscriminatory reasons was not the basis of its decision: And the Court continues to find . . . that there has not been a prima facie showing as to purposeful discrimination. And the Court finds that even if there had been a showing, that the State has offered a race-neutral justification as to the exercise of each of its peremptory challenges thus far, and there’s been no showing or evidence of purposeful - 12 - STATE V. CAMPBELL Opinion of the Court discrimination. And, again, the Court denies the Batson challenge. Furthermore, the court did not make extensive findings on the State’s reasons, nor did it characterize the proceedings as a “full hearing” on defendant’s Batson claim, as did the trial court in Hobbs. Indeed, in the case at bar the court clearly did not conduct a full hearing that would have required defendant to have an opportunity to rebut the State’s proffered reasons. Therefore, step one of the trial court’s Batson inquiry was not rendered moot. Accordingly, we are precluded from considering in our analysis the reasons given for the State’s exercise of the peremptory challenges to the three African American jurors at issue, as we would if the trial court had reached step two of its Batson inquiry. Next, we address defendant’s argument that the trial court’s order on his Batson claim is facially deficient. Defendant asserts that in its written order, the trial court “found only that there was not a prima facie showing made to establish any violations by the State for its exercise of peremptory challenges.” However, given that the court never reached the second step of the Batson analysis, this was the only finding that was required. The trial court is only tasked with making “specific findings of fact at each stage of the Batson inquiry that it reaches.” State v. Headen, 206 N.C. App. 109, 114, 697 S.E.2d 407, 412 (2010) (citation omitted). The record on appeal includes the trial court’s order on defendant’s Batson challenge, setting forth - 13 - STATE V. CAMPBELL Opinion of the Court the factual basis of the challenge and the court’s decision on the matter. Thus, the trial court’s order is not facially deficient, as defendant contends. We now turn to a substantive analysis of the trial court’s order finding that defendant failed to establish a prima facie Batson claim. From the transcript of the hearing, we are only able to ascertain defendant’s race and that the State used three of its four peremptory challenges to remove prospective African American jurors and alternates.^[3] However, we do not know the victim’s race, the race of key witnesses, questions and statements of the prosecutor that tend to support or refute a discriminatory intent, or the State’s acceptance rate of potential African American jurors. Finally, we see nothing in the record from which we can ascertain the final racial composition of the jury. We will not “assume error by the trial judge when none appears on the record before” us. State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645 (1983) (citation omitted). Without more information regarding the factors set forth in Hoffman and Quick, defendant has not shown us that the trial court erred in its finding that no

STATE V. CAMPBELL

Hampson, J., concurring in part, dissenting in part.

STATE V. CAMPBELL

Hampson, J., concurring in part, dissenting in part.

STATE V. CAMPBELL

Hampson, J., concurring in part, dissenting in part.

Defendant established a prima facie Batson challenge, including making specific findings of fact sufficient for appellate review. See 356 N.C. 316, 344-45, 572 S.E.2d 108, 127-28 (2002) (holding the use of 71.4% of peremptory challenges on African American jurors was supportive of a prima facie Batson violation). Barden, on a more complete record, held a prima facie Batson violation had been established. Notably, there, our Supreme Court pointed out there was “no hint of racism” in the prosecutor’s questions and even noted the prosecutor accepted two (of seven) African American jurors. Id. at 343-44, 572 S.E.2d at 127. Rather, the Supreme Court looked to both the acceptance rate and the rate upon which the State exercised its peremptory challenges against African American jurors.^[6] Acknowledging a numerical analysis is not necessarily dispositive, the Barden Court nevertheless concluded the numerical analysis was useful in determining a prima facie showing had been made. Id. at 344, 572 S.E.2d at 127 (citation omitted). In Barden, the numerical analysis revealed, at least from a prima facie standpoint, a stark pattern in the acceptance and rejection rates of African American jurors. I would still not go so far on this record as to hold Defendant met his burden to establish a prima facie case for a Batson violation. In light of Barden, however,

STATE V. CAMPBELL

Hampson, J., concurring in part, dissenting in part.

the use of 75% of peremptory strikes against African American jurors in this case requires more explanation and context for the trial court’s determination no prima facie showing had been made. In particular, for example, while we know the State used 75% of its peremptory challenges on African American jurors and struck another for cause, we do not know the overall makeup of the jury pool or the rate at which African American jurors were accepted.^[7] Consequently, I would grant the limited remedy of remanding this case to the trial court for specific findings of fact in order to permit appellate review of the trial court’s decision, including any further evidentiary proceedings the trial court deems necessary to accommodate its fact finding as to the factors it deems relevant. Cf. Hoffman, 348 N.C. at 555, 500 S.E.2d at 723. As such, I respectfully dissent from the majority result affording Defendant no relief from judgment.