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State v. Gaines4/11/1997
party exercising the challenge is required to explain the basis for the strike." J.E.B., 511 U.S. 127 at 144-45, 128 L. Ed. 2d 89 at 106-07, 114 S. Ct. 1419. This Court has identified several factors which may be relevant in determining whether a defendant has established a prima facie showing of purposeful discrimination under Batson. Those factors include defendant's race; the victim's race; the race of key witnesses; questions and statements made by the prosecutor during jury selection which tend to support or refute an inference of discrimination; repeated use of peremptory challenges against venire members of one race such that it tends to establish a pattern or the prosecution's use of a disproportionate number of peremptory challenges to prospective jurors of that race, State v. Ross, 338 N.C. 280, 285, 449 S.E.2d 556, 561 (1994); and whether the State used all of its peremptory challenges, State v. Jackson, 322 N.C. 251, 255, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027, 109 S. Ct. 3165 (1989). Another factor is the ultimate racial makeup of the jury. State v. Smith, 328 N.C. 99, 124, 400 S.E.2d 712, 724 (1991). We conclude that these same type considerations are also relevant in determining whether a defendant has established a prima facie showing of purposeful gender discrimination.
Defendants do not identify any specific instance of gender-based discrimination, and our review of this record does not disclose a prima facie case of purposeful discrimination.
Fewer male jurors were called into the jury box for voir dire than females; the State attempted to excuse more men than women and, in fact, excused an equal number of men and women; the State did not use all of its peremptory challenges; the pattern of jury selection disclosed a relatively even pattern of early strikes; defendants have not advanced any logical reason to conclude that the State had a motive to eliminate women from their jury; and of the twelve jurors and three alternates selected to serve on this case, eight were male and seven were female.
In the absence of a prima facie showing of purposeful discrimination, defendants cannot show prejudice or error in the trial court's action. This assignment of error is overruled.
Defendants next contend the trial court erroneously allowed three witnesses to testify as to statements allegedly made by the victim immediately after the shooting. Specifically, these witnesses testified that the victim said that he believed he was going to die, that he was having trouble breathing, and that he wanted them to tell his wife that he loved her.
The State's evidence at trial showed that after the victim was shot, Officer Fred Allen arrived at the motel . Officer Allen was joined by Officer Beverly Stroup. Both Stroup and Allen testified that the victim made several statements including the statement, "Tell Hilda that I love her." Paramedic crew chief Michael Keller testified that the victim stated several times that he could not breathe. Keller also testified that the victim repeatedly asked, "Am I going to die?" and stated several times, "I'm going to die." Defendants concede that these statements are arguably admissible under the excited utterance or dying declaration exceptions to the hearsay rule; however, defendants contend the statements are irrelevant, inflammatory, and unfairly prejudicial.
We first conclude that these statements were excited utterances and thus are not excluded by the hearsay rule. See N.C.G.S. § 8C-1, Rule 803(2) (1992). We also conclude that these statements are relevant. In criminal cases every circumstance that is calculated to throw any light on the supposed crime is admissibl
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