STATE OF NORTH CAROLINA GENERAL COURT OF JUSTICE COUNTY OF FORSYTH SUPERIOR COURT DIVISION 96 CRS 9440 STATE OF NORTH CAROLINA ) ) v. ) DEFENDANT’S MOTION ) FOR APPROPRIATE RELIEF ) HENRY JEROME WHITE ) Defendant Henry Jerome White’s conviction and sentence of life imprisonment without parole were obtained in violation of state and federal law prohibiting race discrimination in jury selection. Through counsel, and pursuant to N.C. Gen. Stat. § 15A-1411 to 1422, White respectfully requests that the Court vacate his conviction and grant a new trial. As set forth below, this Court should summarily grant White relief because the Court of Appeals previously held that White’s prosecutor struck black jurors with discriminatory intent. And since White’s direct appeal, the legal standard has changed such that White is now entitled to relief as a matter of law. Alternatively, this Court should hold an evidentiary hearing on White’s claims of race discrimination in jury selection. PROCEDURAL HISTORY 1. In 1997, in Forsyth County Superior Court, White was tried capitally, convicted of first-degree murder, and sentenced to life imprisonment without parole. White’s conviction and sentence were affirmed on direct appeal. State v. White, 131 N.C. App. 734 (1998) (attached as Exhibit 1). 2. As discussed in the Court of Appeals opinion, in 1996, Carl Marshburn was robbed and killed at an auto paint and body shop in Winston-Salem where he worked. White’s cousin Harry Beaufort testified for the State at trial. Beaufort said when he and White went to the auto shop to pick up Beaufort’s paycheck, White went inside by himself, fired two gunshots, and came out with several hundred dollars. White testified it was Beaufort who went inside by himself and killed Marshburn. White said he knew Beaufort meant to rob Marshburn, but did not know Beaufort was going to kill him. White, 131 N.C. App. at 736-37. 3. In the State’s closing argument at trial, even the prosecutor conceded Beaufort had a role in the murder: “We’re not contending Harry Beaufort . didn’t know what went on. That he didn’t have a role, somehow . [White] may or he may have not been helped in some portion by Mr. Beaufort.” Tp. 1409.1 Despite this, Beaufort was never charged with any crime for his role in the murder. 4. Among other issues, White argued on appeal that the trial court erred in overruling his objections under Batson v. Kentucky, 476 U.S. 79 (1986), that the State improperly struck potential black jurors based on their race. 5. At the trial court Batson hearing, the prosecutor said he struck Sonya Jeter and Caryl Reynolds because they were “[b]oth black females.” White, 131 N.C. App. at 739.2 6. On appeal, the Court of Appeals — in an opinion authored by then Judge Timmons-Goodson — found, in light of this admission, that “it is apparent that race was a predominant factor in [the prosecutor’s] decision to strike” jurors Jeter and Reynolds. Similarly, the Court found the prosecutor’s comment “on its face, belies racial neutrality and manifests an intent to exclude these individual jurors based upon their membership in a distinct class.” Id. at 740. 7. Nonetheless, the Court found no error because the prosecutor had provided other facially-neutral reasons for striking Jeter and Reynolds, and, under the law at that time, Batson was not violated unless a peremptory strike was “based solely upon race.” Id. at 740-41 (emphasis in original). 8. The Court of Appeals found no error under Batson or any of the other arguments raised on direct appeal, and affirmed White’s conviction and sentence. White’s appellate counsel did not seek review in the N.C. or U.S. Supreme Court. 9. After his direct appeal concluded in 1998, White filed a pro se MAR in 2001, which Resident Superior Court Judge Ronald E. Spivey summarily denied. White, again proceeding pro se, sought certiorari review in the Court of Appeals, but 1 The complete transcript of White’s trial, including jury selection, is attached to this pleading in Exhibit 2 as a DVD. 2 In total, White’s trial counsel objected to the State’s strikes against four black jurors: Roderick Conrad, Tp. 123; Sonya Jeter and Caryl Reynolds, Tp. 235; and Brenda Gwyn, Tp. 427. The instant motion primarily discusses jurors Jeter and Reynolds, and White’s request for relief is based on the race discrimination against Jeter and Reynolds. - 2 - that petition was also summarily denied. See White v. North Carolina, No. COAP01- 325 (order denying petition for writ of certiorari issued June 1, 2001). White’s pro se MAR did not raise any Batson issues. 10. In 2018, undersigned counsel moved in this Court for appointment to represent White on an additional MAR in light of the Batson issue raised on appeal and a subsequent change in law bearing on the issue. In August 2018, the Court granted the undersigned counsel’s request to be appointed for the preparation and presentation of an MAR. CLAIMS FOR RELIEF I. IN LIGHT OF A RECENT RETROACTIVE CHANGE IN STATE LAW, WHITE IS ENTITLED TO A NEW TRIAL BASED ON THE COURT OF APPEALS’ BINDING DETERMINATION THAT RACE WAS A PREDOMINANT FACTOR IN JURY SELECTION. 11. The Court of Appeals has already concluded “race was a predominant factor in [the prosecutor’s] decision to strike” two prospective black jurors, Jeter and Reynolds, White, 131 N.C. App. at 740, and this ruling is the binding law of the case. Accordingly, in light of a recent retroactive change in state law that Batson is violated if race is a significant — as opposed to the sole — factor, White is entitled to relief as a matter of law. A. This Court is bound by the Court of Appeals’ prior holding that race was a “predominant factor” in the State’s decision to strike two black jurors. 12. The Court of Appeals could not have been clearer in its holding that “[f]rom the prosecutor’s statements, it is apparent that race was a predominant factor in his decision to strike Jeter and Reynolds from the venire.” See White, 131 N.C. App. at 740. 13. This holding is the law of the case and is binding on this Court. See Lea Co. v. North Carolina Bd. of Transp., 323 N.C. 697, 699 (1989) (“A decision of [the Supreme Court] on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal”); North Carolina National Bank v. Virginia Carolina Builders, 307 N.C. 563, 566 (1983) (“Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent - 3 - appeal of the same case”). The law of the case doctrine applies to criminal as well as civil matters. See, e.g., State v. Summers, 351 N.C. 620, 622 (2000); State v. Boyd, 148 N.C. App. 304, 308 (2002). Likewise, it applies in post-conviction proceedings. See State v. Wiggins, No. 99 CRS 100006, 2005 WL 857109, at *1 (N.C. Super. Mar. 18, 2005) (applying law of the case doctrine to deny an MAR based on Court of Appeals prior holding). 14. Accordingly, this Court is bound by the Court of Appeals’ prior determination that race was a “predominant factor” and that White’s prosecutor acted with “an intent to exclude [jurors] . based upon their membership in a distinct [racial] class.” 131 N.C. App. at 740. B. After White’s direct appeal, there was a change in state law controlling his Batson claim; that change in law is retroactively applicable and now requires relief. 15. The Court of Appeals’ binding, prior holding with respect to racial motivation dictates a grant of relief on White’s MAR. This is so because, as discussed below, there has been a recent, retroactive change in state law that now gives the Court of Appeals’ prior holding determinative effect in this case. 16. At the time White’s claim was addressed on appeal, the North Carolina courts held that a Batson violation was established only if “the challenge [was] based solely upon race.” White, 131 N.C. App. at 740 (emphasis in original; citations omitted).3 17. In 2010, over a decade after White was decided, the Supreme Court of North Carolina rejected the sole factor approach to Batson. The state supreme court explained in State v. Waring, 364 N.C. 443, 480 (2010), that “the third step in a Batson analysis is the . question whether the defendant has shown ‘race was significant in determining who was challenged and who was not.’” Waring, 364 N.C. at 480 (emphasis in original; citation omitted). 18. In reaching this conclusion, the state supreme court rejected the prior rule that a Batson violation requires race to be “the sole reason for the State’s 3 The U.S. Supreme Court held in Batson that, in order to prevail, the moving party must “establish[] purposeful discrimination.” 476 U.S. at 79. However, the U.S. Supreme Court left it to individual jurisdictions “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Id. at 99. - 4 - peremptory challenge.” Waring, 364 N.C. at 480-81 (explaining that the trial court articulated “an incorrect standard” when it said the defendant had to show under Batson that the State’s strike was “based solely on the fact that [the juror] was an African-American female.”).