Ruling puts murder trial back in light

Feb. 4—The dismissal of a juror leading up to the high-profile 2001 capital murder trial of two men accused, and ultimately convicted, of killing an elderly Newton Grove woman was "improperly motivated by a gender discriminatory intent" by the state, in violation of the Equal Protection Clause of the Constitution, a judge has ruled. The ruling came in the wake of a December hearing on the defendants' claims of gender discrimination during jury selection for the trial, which resulted in a life sentence for one and a death sentence for another.

The joint evidentiary hearing was held Dec. 6-7, 2022, in Onslow County Superior Court with Senior Resident Superior Court Judge Charles H. Henry presiding. The judge issued his "findings of fact and conclusions of law" last week, filed on Jan. 23 with the Supreme Court of North Carolina.

Henry cited "direct evidence of discriminatory intent as well as the additional cumulative weight of the circumstantial evidence tending to show purposeful discrimination" in coming to his conclusion.

"The defendants produced evidence sufficient to permit the court to draw an inference that intentional gender discrimination had occurred during jury selection by the state," the judge stated, specifically pointing to the dismissal of a juror and notes and statements made by state prosecutors that he said showed an "inherent gender discriminatory intent" in making their decision.

The judge did not order a remedy for the violation — whether a retrial or another recourse — so it is unclear exactly what the ruling means for the case.

In August 2001, the defendants Antwaun Kyral Sims and Bryan Christopher Bell were convicted as co-defendants of, among other charges, first degree murder. After a capital sentencing hearing, the jury recommended a sentence of death for Bell and life without parole for Sims in the death of Newton Grove resident Elleze Kennedy, who was kidnapped from her home on Jan. 3, 2000, and beaten.

The 89-year-old was ultimately placed in the trunk of her 1998 Cadillac, driven around and the car burned at the end of a dirt path down a wooded path off Ira B. Tart Road while Kennedy was still alive. Kennedy was found dead in her charred Cadillac the next day.

A third suspect, Chad Lamont Williams, implicated himself, Sims and Bell in the crime, testifying during the 2001 capital murder trial. Sims and Bell did not take the stand. In a separate proceeding in October 2001, Williams was also sentenced to life in prison.

Bell was 19 at the time of the murder. Sims and Williams were 18 years old. Bell and Williams are now 41. Sims is 40.

Bell and Sims were both present in the courtroom for the joint evidentiary hearing in December.

Bell was represented by attorneys Dionne Gonder and Michael Ramos; Sims was represented by assistant appellate defender David Andrews and attorney Mani Dexter. The State of North Carolina was represented by Special Deputy Attorneys General Kimberly Callahan and Teresa Postell and Assistant District Attorney Robert Thigpen.

In preparing the findings, the judge considered the trial transcript of the jury selection, consisting of 2,502 pages, juror questionnaires, pre-hearing briefs with attachments submitted by all the parties, testimony and exhibits offered at the hearing, and oral arguments made at the conclusion of the hearing and post-hearing briefs.

Jury selection

The trial began in July 9, 2001 with jury selection, which was concluded on July 25, 2001 before Judge Jay D. Hockenbury. The State of North Carolina was represented by District Attorney Dewey Hudson and Assistant District Attorneys Greg Butler and Bob Roupe. Bell was represented by attorneys Terry Alford and David Braswell. Sims was represented by attorneys Carl Ivarsson and George Franks.

Each juror, prior to the jury selection process, completed a 40-item questionnaire which contained, in addition to other biographical data, that juror's gender, race and age. Those questionnaires were maintained by the Onslow County Clerk of Court and were admitted into evidence by stipulation at the December hearing as well as the transcript of the jury selection.

From the review of the transcript, a major issue before the trial judge in 2001 was ruling on the race-based objections raised by the defendants in response to the peremptory challenges of nine black jurors by the state. However, in December's hearing, it was alleged gender discrimination by the state, not racial, that came under fire by the defense in the state's exercise of peremptory challenges.

A peremptory strike is a party's right to remove a potential juror without giving a reason. Each party has a specified number of such strikes to use during jury selection and an unlimited number of challenges for cause which are used when the party believes the potential juror cannot be impartial.

"This is a rather unusual inquiry because, from a review of the jury selection transcript, it is clear that the defendants never raised a gender-based Batson objection that the trial could address," Judge Henry stated in his findings.

Twelve jurors were selected along with four alternates to hear the case. During the course of the selection, which extended over 12 days, a total of 92 jurors — 52 females and 40 males — were called into the jury box to be examined by the court and the parties. Twenty-two jurors were struck for various causes, 11 males and 11 females, leaving 71 eligible jurors. Of those, 41 were female and 30 were male.

The state used 24 peremptory strikes — 20 on women, four on men — leaving 47 eligible jurors: 21 women and 26 men.

Expert weighs in

The attorneys for Bell requested that Frank R. Baumgartner, a distinguished professor of political science at UNC-Chapel Hill, review data on the use of state peremptory strikes in his capital trial, "with particular attention to the question of whether there was a statistically significant and substantively important difference in the rate of such strikes by gender."

Baumgartner has authored 15 books and scores of journal articles in the major peer-reviewed academic journals of political science.

Since 2009, Baumgartner has been involved in the study of the death penalty in North Carolina, especially the role of race and gender in the operation of the death penalty. More recently, he has begun researching capital and non-capital juries and the jury selection process. He has also been accepted as an expert on statistical matters.

"In summary, since males were excluded 4 times out of 30, or at a rate of 13 percent, and females were excluded 20 times out of 41, or at a rate of 49 percent, and the ratio of 49/13 is 3.67, we can say that females were excluded at 3.67 times the rate of males. Excluding one group at more than three times the rate of the other is a substantively important and a statistically significant difference," Baumgartner stated in an analysis that was entered as a defendants' exhibit at the December hearing.

"It is also clear that the state dramatically altered the composition of the jury pool by using 83 percent of its peremptory strikes to remove women as opposed to men. Women constituted 41 of 71 venire members before the state strikes were imposed, but they represented 21 of 47 afterwards. This altered the composition of the jury pool from 58 percent female to 45 percent," Baumgartner stated in his analysis, titled "Analysis of Gender Differences in Use of State Peremptory Strikes in the Case of State v Bell," dated June 29, 2022.

"This is a substantively important transformation of the jury pool," Baumgartner stated. "In my professional judgement, there is no question about the differences in the rates of state peremptory strikes by gender: they are very important substantively, highly significant statistically, and they changed the gender composition of the jury pool."

"The answer to the question of whether gender was an important factor in state use of peremptory strikes is a resounding yes," the professor stated.

'There ain't no men'

While Baumgartner's analysis approached the statistics of jury selection, the defense also pointed to statements made by the state.

In the fifth round of jury selection back in 2001, the state used a peremptory strike on a black female who cited a medical situation, Rheumatoid arthritis. The defendants raised a race-based Batson objection to the state's challenge, but did not bring up gender. The court overruled the defense objection after hearing from the parties.

In the Batson/J.E.B. framework, the state must provide gender neutral offered two gender neutral reasons why it exercised its peremptory strike of the juror. The state offered two gender netural explanations in the case of the female juror, one in court (her health issues) and one later in ADA Butler's affidavit (having two children the same age as the defendants).

The peremptory challenge of the female juror was the state's 13th at the time, with 11 exercised against females. The state had passed by this time 16 females, of which 10 had been seated.

Along with verbal statements, in the margin of the juror's questionnaire, in someone's handwriting other than the juror, are the written comments: — 2 children age of (defendants) — illness (rheumatoid arthritis can flare up at anytime and incapacitate her) — no man yet on the panel, and we've already seated 10 jurors!

In Butler's sworn affidavit he disclosed his explanation for Morrow's removal by peremptory challenge, that the "State was looking for male jurors and (a) potential foreperson. (The state) was making a concerted effort to send male jurors to the defense as they were taking off every male juror."

"At the time of the state's challenge, all 10 jurors were female. Because juror ... was a female, this admission "betrays (an) inherently discriminatory intent" based on gender bias," Judge Henry stated. "From this affidavit and the other submitted by ADA Butler, even though the district attorney had expressed a desire for equal gender representation on the jury, it appears that in the Sims/Bell trial, the state, after the second round of jury selection, were seeking male jurors and a strong foreperson who, in their mind, were more likely to return a death verdict than female."

The jury selection transcript shows the state's concern about the defendants' peremptory challenges of male jurors.

That concern was expressed as early as the fourth day of jury selection when a prospective male juror, in a note to the judge, asked that he be placed on a later panel so that he could go out of state on a pre-planned trip. By that time, six jurors has been selected, all female. The parties discussed his request, and the state wanted him to be moved up to an earlier date for consideration.

The state's rationale for that request was revealed in a short exchange with the court by DA Dewey Hudson: "I'd like to have (a) few men. I would like to have a representative jury. There (sic) ain't no men."

On the seventh day of jury selection in round three, defendant Sims used a peremptory challenge to remove a white male juror without asking him any questions. By this time, the defendants had removed peremptorily all six male jurors passed to them by the state.

It was actually the state at that time that tried to raise a gender-based Batson challenge.

In an exchange with the court, the state argued that they are "entitled to have a jury that's representative of the community. As the court is aware, we have nothing but seven ... women on the jury now, and we are entitled to a jury that's representative of the community. I don't think it's fair for them to be able to take off all the men off the jury, and the case law supports that."

Judge Henry pointed to those statements and others, along with Baumgartner's analysis, in making his ruling.

"This concern about the number of females being seated on the jury, explains why the state would make a concerted effort to remove female jurors from being seated in the remaining open seats on the jury," Judge Henry stated. "It was more likely than not that the state's peremptory challenge of (the female juror) was motivated in substantial part by a gender discriminatory intent."

None of the attorneys involved in the original trial of this case were called as witnesses for December's hearing. Butler was subpoenaed, but his subpoena was withdrawn shortly before the hearing.

'Didn't have to happen'

During that 2001 trial, the state pointed to a "mountain of evidence that points unerringly" to Bell, Sims and Williams, producing 125 pieces of physical evidence over the course of 10 days of testimony, including a red cloth found in the back seat of Kennedy's car stained with Sims' semen and Bell's jeans, stained with Kennedy's blood. Foot tracks, palm prints, hair also clearly placed them at the scene, the state maintained.

They wanted a vehicle, a plan of Bell's, and chose Kennedy as a random target as she exited Hardee's in Newton Grove. They could have just taken the vehicle, state attorneys said, but the plan changed. They assaulted her and Bell told Williams and Sims to put her in the car.

"They needed a car and she was an easy target," said DA Hudson said during closing arguments, according to an Aug. 15, 2001 article in The Sampson Independent. "She did not deserve to die."

Hudson, in delivering his argument, talked about the elderly woman born in 1910 and the fear she must have felt.

"On her last day, she spent time with her son, she cooked him cornbread and they ate it ... it was the last meal he would have with his mother. She met her friends at Hardee's and she had her last dinner with Betty Tart. Then she left to go home ... that's when the nightmare began," Hudson stated in that 2001 closing argument. "She lived through two world wars, Vietnam, plagues , diseases, polio, measles, mumps. She lived in the age of cancer and AIDS. She was 89 years old and still driving, taking care of herself. She made it through all that to end up dead in the trunk of her own car."

ADA Butler, who also delivered closing arguments for the state, said it just didn't have to happen.

"Imagine the pain she must have suffered. Her face was battered and bloody, but she was conscious enough to roll around moaning in the trunk of the car ... imagine being in that trunk, hurting and scared, in the dark, not knowing where you were going ... the music blaring. Imagine the terror."

"You didn't have to put to put her in the back seat of her car, beaten and bloodied ... you didn't have to put her in the trunk," said Butler to Bell and Sims, back in that Onslow County courtroom in August 2001. "If all you wanted to do was steal a car, why didn't you leave her at her house and just take the car? This didn't have to happen."

Editor Chris Berendt can be reached at 910-592-8137 ext. 2587.