State v. Norris
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-282 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Rutherford County No. 11 CRS 50720, 50730 FLOYD LYNBIRD NORRIS JR. Appeal by defendant from judgment entered 18 September 2012 by Judge James U. Downs in Rutherford County Superior Court. Heard in the Court of Appeals 27 August 2013. Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State. Law Offices of John R. Mills NPC, by John R. Mills, for defendant-appellant. STEELMAN, Judge. Where a witness answer to a question posed by defense counsel was non-responsive, the trial court correctly sustained the State s objection. elicited in defendant. separate Where the same evidence was ultimately testimony, there was no prejudice to Where defendant did not make a prima facie showing of improper racial motivation in the State s excusal of a juror, -2the trial court did not err in overruling defendant s objection. The temporary absence of the trial court during jury selection did not constitute structural error. I. Factual and Procedural History On 10 March 2011, Brian Adkins, a Rutherford County Deputy Sheriff, pulled over a vehicle occupied (defendant) and three other persons. vehicle, one arrested and of the passengers charged with by Floyd Norris When Adkins approached the shot at attempted him. Defendant first-degree was murder, conspiracy to commit murder, and assault on a law enforcement officer. At jury selection, the State used a peremptory challenge to excuse prospective juror Rankins, the only prospective juror under the age of twenty-five. African-American The trial judge was not in the courtroom during the State s voir dire of Mr. Rankins. Defendant challenged peremptory challenge directed to the State s juror exercise Rankins of pursuant Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986). a to The trial court found that defendant had not made out a prima facie case of discrimination under Batson, and overruled defendant s objection. -3On 18 September 2012, defendant was convicted of attempted first-degree murder, conspiracy to commit murder, and assault on a law enforcement officer. The convictions were consolidated for judgment, and defendant was sentenced to an active term of imprisonment of 157 to 198 months. Defendant appeals. II. Cross-Examination In his first argument, defendant contends that the trial court erred by precluding defendant from cross-examining a witness for the State concerning his status as a probationer at the time of the shooting. We disagree. A. Standard of Review Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion. State v. Demos, 148 N.C. App. 343, 351, 559 S.E.2d 17, 22 (2002) (quoting State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986)). B. Analysis During the trial, vehicle, Latitus Corry, one of the other passengers testified for the State. in the On cross- examination, defendant sought to impeach Corry with his prior -4criminal record, pursuant to Rule 609 of the North Carolina Rules of Evidence. Defense counsel asked Corry: Q What, if anything, in the state of North Carolina have you been tried and convicted of that's a Class 2 misdemeanor or higher within the last ten years? A I was on juvenile probation before MR. GREENWAY Honor. [Prosecutor]: Objection, Your THE COURT: Sustained. Defendant contends that he was entitled to cross-examine Corry regarding his status as a probationer at the time of the shooting, for the purpose of impeaching his testimony. Rule 609 of the North Carolina Rules of Evidence provides that, for the purpose of impeaching a witness, evidence that the witness committed a Class 2 misdemeanor or higher-level offense is admissible, provided that (1) no more than ten years has elapsed since the date of conviction or release, whichever is later; (2) evidence of a conviction is not admissible where the defendant has been pardoned; and (3) evidence of juvenile convictions is generally not admissible, except to attack the credibility of an adult who is not the defendant. N.C. R. Evid. 609. In the instant case, the question posed by defense counsel -5was properly framed to elicit testimony concerning convictions which fell within the first part of Rule 609. We first note that defense counsel never asked Corry about being on probation. Second, Corry s answer was non-responsive to the question asked. and convicted of[.] Corry was asked what he had been tried Corry responded with a statement that he had been on juvenile probation before[.] The State did not object to the question posed by defense counsel, but rather to an unresponsive answer by the witness. The trial court properly sustained the objection. Even assuming arguendo that Corry s answer was somehow responsive to the question, defendant s argument still fails. Defendant contends that he was prejudiced by not being able to cross-examine Corry about his probationary status and his plea bargain. Even though the trial court sustained the State s objection, Corry testified that he was on juvenile probation. Corry further testified that, in exchange for an unsecured bond and dismissal of his charges, he had agreed to testify for the State against defendant. The substance of the testimony that defendant contends was excluded admission was admitted. It is of evidence without well established objection waives that the prior or -6subsequent objection to the admission of evidence of a similar character. State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979); see also State v. Augustine, 359 N.C. 709, 720, 616 S.E.2d 515, 525 (2005). The trial court did not abuse its discretion by sustaining the objection to a non-responsive answer. This argument is without merit. III. State s Exercise of Peremptory Challenge In his second argument, defendant contends that the trial court erred by failing to hold a proper Batson hearing at the time that the State exercised a peremptory challenge directed to juror Rankins. We disagree. A. Standard of Review In reviewing a ruling relating to a Batson challenge, the trial court's determination is given great deference because it is based primarily on evaluations of credibility. Such determinations will be upheld as long as the decision is not clearly erroneous. State v. Fair, 354 N.C. 131, 140, 557 S.E.2d 500, 509-510 (2001) (citations omitted). When the trial court explicitly rules that a defendant failed to make out a prima facie case, review by this Court is limited to whether the trial -7court's finding was error. State v. Golphin, 352 N.C. 364, 426, 533 S.E.2d 168, 211 (2000) B. Analysis When a peremptory defendant challenge, challenges and the asserts State s that the exercise basis of for a the challenge is an improper racial motivation, the trial court must conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986). Our Supreme Court has construed Batson as outlining a three-part test for determining whether the state impermissibly excluded a juror on the basis of race : (1) the defendant must make a prima facie showing that the state exercised a race-based peremptory challenge ; (2) [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[] ; and (3) the trial court must decide whether the defendant has proved purposeful discrimination. 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). State v. Headen, 206 N.C. App. 109, 114, 697 S.E.2d 407, 412 (2010). After the jury was selected, defendant brought to the attention of the trial court that the State had excused juror -8Rankins, who defendant contended was the only African-American gentleman that was -- I would say under age 25[.] The trial court noted first it was absent during the State s examination of juror Rankins. The trial court then stated that it understood the basis for the State s exercise of a peremptory challenge as to Rankins was Rankins answer to a question about whether or not he had some -- whether he was a fan of the police shows on television -- investigation shows. He said -- as I recall, he said he looked at a few of them but not many. The trial court concluded that this seemed to be a racially neutral basis for a challenge, and the State further remarked that I have excused answer[.] every other juror who gave that same exact The trial court further observed that there is another African-American gentleman who is a member of the jury. So there has been no systematic inclusion of anybody because of their ethnic background. 1 The trial court overruled defendant s objection to the State s excusal of juror Rankins. In the first step required in addressing a Batson challenge, the burden rests upon the defendant to make a prima facie showing that the exclusion of a juror was based upon race. In the instant case, defendant offered no evidence of racial 1 It would appear that the trial court intended to systematic exclusion, rather than systematic inclusion. say -9bias in jury selection, apart from the statement that Rankins was the only African-American gentleman that was -- I would say under age 25[.] But the trial court correctly observed that there is another African-American gentleman who is a member of the jury. While discrimination on the basis of race is a proper basis for a Batson challenge, discrimination on the basis of age is not. See Golphin, 352 N.C. at 431-32, 533 S.E.2d at 214 (holding that the trial court did not err in concluding that exclusion of potential jurors due to age was race-neutral). In the absence of any other evidence of racial bias in the jury selection, we hold that the trial court correctly ruled that defendant racial failed motivation to meet in his the burden State s challenge as to juror Rankins. of showing exercise of prima a facie peremptory As defendant failed to make his required prima facie showing, the trial court was not required to consider the remaining elements of Batson, and properly overruled defendant s objection. This argument is without merit. IV. Trial Judge s Absence In his third argument, defendant contends that the trial judge s absence from the constituted structural error. courtroom during We disagree. jury selection -10In the instant case, the jury selection was not recorded. The burden of providing us with all necessary records to conduct meaningful appellate review falls upon the appellant. R. App. P. 9. See N.C. The only record we have of the trial court s absence is its own statement that I was not present in the courtroom -- because I had to make a phone call to my office[.] We further note that defendant fails to cite substantial precedent for structural his argument error. that Defendant the judge s correctly cites absence to N.C. was Gen. Stat. § 15A-1211(b), which requires judicial determination of all challenges to the panel and all questions concerning the competency of jurors. judicial resolution This statute, however, merely requires a of challenges and questions, not active oversight of the entire juror selection process. Defendant cites to our decision in State v. Levya, 181 N.C. App. 491, 640 S.E.2d 394 (2007), for the premise that it is error for the judge to excuse himself from jury selection. Defendant s reliance on this case is misplaced. In Levya, the trial judge excused himself from the courtroom during jury selection, and authorized the parties to excuse jurors by stipulation, in violation of N.C. Gen. Stat. § 15A-1211. We held that defendant failed to show prejudice as a -11result of this conduct. 181 N.C. App. at 495-96, 640 S.E.2d at 396-97. Levya, unlike the instant case, concerned the trial court s abdication of its excusal of jurors. statutory responsibility to control the This duty, under N.C. Gen. Stat. § 15A-1211, rests exclusively with the trial court, and the parties may not excuse jurors by stipulation. the stipulated excusal of The instant case does not concern jurors, but merely the physical absence of the judge during a portion of the jury selection. Levya is not controlling or relevant to the instant case. Defendant has offered no substantial precedent or authority to support his argument that the trial absence for a portion of the jury selection. This argument is without merit. NO ERROR. Judges McGEE and ERVIN concur. Report per Rule 30(e). court erred in its
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
