State v. Bell (N.C. 2025): Preservation and Section 15A-1419’s Procedural Bar Foreclose Post‑Conviction J.E.B. Gender‑Bias Claims Based on Later Prosecutor Affidavits

Introduction

In State v. Bell, the Supreme Court of North Carolina reaffirms a stringent preservation regime for equal protection challenges to peremptory strikes under J.E.B. v. Alabama (gender discrimination) and clarifies how the state’s post‑conviction procedural bar in Section 15A‑1419 applies to such claims. The case arises from Bryan Christopher Bell’s 2001 capital trial for the brutal murder of an elderly victim. On direct appeal in 2004, Bell litigated Batson claims (race), but did not raise a J.E.B. claim (gender). Nearly a decade later, a prosecutor’s affidavit (prepared in an unrelated proceeding) appeared to admit purposeful gender‑based jury selection in Bell’s trial. Bell sought relief via an amended motion for appropriate relief (AMAR), contending that the State’s gender discrimination required vacatur and a new trial.

After this Court granted limited certiorari and remanded for an evidentiary hearing, the superior court found it more likely than not that the State’s peremptory strike of juror Viola Morrow was motivated in substantial part by gender. Nonetheless, the Supreme Court holds that Bell’s J.E.B. claim was not preserved at trial and, even assuming preservation, is procedurally barred because the claim could have been brought on direct appeal without the later affidavit. The opinion emphasizes finality and faithful adherence to statutory post‑conviction requirements, while a concurrence decries North Carolina’s broader Batson/J.E.B. jurisprudence as rendering constitutional rights “a mirage” in post‑conviction practice.

Key issues:

Whether Bell preserved a J.E.B. claim by objecting at trial (he did not).
Whether Section 15A‑1419(a)(3) bars post‑conviction review because the claim “could have been” raised on direct appeal (it does).
Whether a prosecutor’s later affidavit constitutes a “new factual predicate” or otherwise supplies good cause under Section 15A‑1419(b)–(c) to overcome the bar (it does not in these circumstances).
Whether, if preserved, “dual motivation” analysis would apply (rendered moot by the procedural holding).

Summary of the Opinion

The Court (Justice Barringer) affirms denial of Bell’s AMAR. It holds:

Preservation: Bell failed to preserve any gender‑based objection under J.E.B. because neither he nor his co‑defendant objected to gender discrimination during voir dire, despite multiple on‑the‑record statements by the State indicating a desire to seat more men and to remove women, including as to juror Morrow.
Procedural Bar: Even assuming preservation, Section 15A‑1419(a)(3) requires denial because Bell was “in a position to adequately raise” the J.E.B. claim on direct appeal; the trial record already contained sufficient information to litigate the issue (Hyman standard). The later Butler affidavit did not supply a new, previously undiscoverable factual predicate, but merely summarized what was inferable from the trial record.
Good‑Cause Exception: Bell failed to show good cause under Section 15A‑1419(b)–(c). He did not demonstrate State action concealing the basis for the strike, a newly recognized retroactive right, or a factual predicate undiscoverable through reasonable diligence. He also did not argue a “fundamental miscarriage of justice.”
Mootness: Because the claim is unpreserved and procedurally barred, the Court does not reach whether the trial court erred on intent, whether “dual motivation” applies, or whether to remand for any further evidentiary proceedings.

The Court underscores that objections at trial “serve crucial functions” and that strict adherence to post‑conviction procedures promotes both fairness and finality. It notes that any complaint about trial counsel’s failure to object on gender grounds should be pursued, if at all, via an ineffective assistance of counsel (IAC) MAR under Section 15A‑1415(b)(3).

Detailed Analysis

Factual and Procedural Backdrop

Bell was convicted of first‑degree murder (on both theories), first‑degree kidnapping, and burning personal property, and was sentenced to death. On direct appeal, he raised numerous Batson challenges (including to the peremptory strike of Black female venire member Viola Morrow), but did not assert a J.E.B. gender‑discrimination claim. This Court affirmed in 2004 and the U.S. Supreme Court denied certiorari in 2005.

In 2012, Bell amended his MAR to add—for the first time—a J.E.B. claim centered on the peremptory strike of Ms. Morrow, relying on a 2012 affidavit by Assistant District Attorney Gregory Butler stating, among other things, that the State “was looking for male jurors,” “was making a concerted effort to send male jurors to the defense,” and highlighted Morrow’s rheumatoid arthritis. The MAR court summarily denied relief as procedurally barred.

On limited certiorari, the Supreme Court remanded for an evidentiary hearing on J.E.B. only. After hearing evidence (including the Butler affidavit, comparative juror analysis, and statistical evidence from Dr. Frank Baumgartner), the superior court found the strike of Morrow was more likely than not substantially motivated by gender. The remand court, however, did not revisit the procedural bar and separately observed that defendants never made a gender‑based objection at trial.

The Supreme Court ultimately affirms on purely procedural grounds: absence of preservation and the mandatory statutory bar.

Precedents and Authorities Driving the Decision

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) and Batson v. Kentucky, 476 U.S. 79 (1986): Establish the equal protection prohibition on using peremptory strikes to remove jurors on the basis of gender (J.E.B.) or race (Batson), and the three‑step analytical framework for claims.
State v. Garcia, 358 N.C. 382 (2004) and State v. Best, 342 N.C. 502 (1996): Constitutional claims not raised and passed upon at trial will not be reviewed for the first time on appeal; underscores the preservation requirement that controls here.
State v. Hyman, 371 N.C. 363 (2018): Defines when a claim “could have been brought” on direct review: the appellate record must contain sufficient information to permit resolution of the claim. The Court uses Hyman’s standard to conclude Bell’s trial record—without the later affidavit—was sufficient to press J.E.B. on direct appeal.
State v. Tucker, 385 N.C. 471 (2023): Reinforces the mandatory nature of Section 15A‑1419’s bar and frames the “good cause”/“actual prejudice” and “fundamental miscarriage of justice” exceptions. The Court analogizes to Tucker to deny relief and to insist on strict, regular enforcement of post‑conviction procedures.
State v. Frogge, 359 N.C. 228 (2005) and State v. Biber, 365 N.C. 162 (2011): Articulate the standards of review for MAR rulings (factual findings supported by evidence; legal conclusions reviewed de novo).
Miller‑El v. Dretke, 545 U.S. 231 (2005): Recognizes the relevance of “side‑by‑side” comparisons between struck jurors and similarly situated jurors of another group; the Court notes that such comparisons were possible on Bell’s “cold record.”
State v. Reber, 386 N.C. 153 (2024): Quoted for the principle that preservation alerts the trial court to potential error in time to correct it; underscores the institutional value of contemporaneous objections.

The Court’s Legal Reasoning

The opinion proceeds in two discrete steps.

Preservation failure at trial and on direct appeal. The Court catalogues multiple statements by the State during voir dire expressly signaling gender‑based aims: e.g., “We have taken off … females because we felt like we needed more men on the jury”; “I’d like to have a few men. … There ain’t no men”; and “we have nothing but seven white women—seven women on the jury now.” Yet neither Bell nor his co‑defendant raised a gender‑based objection, even when the State itself raised a J.E.B. objection to the defense’s pattern of striking male jurors. Nor did Bell press J.E.B. on direct appeal. Under Garcia and Best, that omission is dispositive: the claim is not preserved.
Mandatory procedural bar in Section 15A‑1419(a)(3) (even if preserved). The Court assumes arguendo that the claim is preserved but holds that the AMAR is barred because Bell was “in a position to adequately raise” J.E.B. on direct appeal. Applying Hyman, the Court finds the cold record sufficient:
- Direct evidence of intent: The trial transcript captured the State’s on‑the‑record preference for seating men and its declaration that it was removing women accordingly.
- Statistical proof available without the affidavit: As Dr. Baumgartner later demonstrated using only the trial record and questionnaires, the State used a statistically significant percentage of strikes against women (e.g., 83% in his analysis).
- Side‑by‑side comparisons possible on the face of the record: The Court points to the contrasting treatment of Ms. Morrow (rheumatoid arthritis; struck) and male jurors Northern and Burris (serious cardiac issues; accepted or considered acceptable), noting the different questioning and accommodations offered.
The Butler affidavit thus did not supply a “factual predicate” that could not have been discovered with reasonable diligence (Section 15A‑1419(c)(3)). Rather, it summarized and characterized what the transcript already laid bare. Nor was there “State action” concealing the basis for the strike (Section 15A‑1419(c)(1)), given the State’s open‑court statements. Bell did not argue “fundamental miscarriage of justice” (Section 15A‑1419(b)(2)). Because no “good cause” showing was made, the Court does not reach “actual prejudice.”

Finally, the Court underscores a proper procedural channel for any critique of trial counsel’s failure to object on gender grounds: a separate MAR alleging ineffective assistance of counsel under Section 15A‑1415(b)(3), which would allow fact‑finding and review on an adequate record.

The Role and Limits of the Remand Findings

On remand, the superior court found it “more likely than not” that the State’s strike of Ms. Morrow “was motivated in substantial part by a gender discriminatory intent,” relying on the Butler affidavit, the prosecutor’s statements, side‑by‑side comparisons, and statistical analyses. The Supreme Court does not disturb those findings but treats them as legally irrelevant to the dispositive procedural question. In a notable move, the Court uses the substance and type of evidence developed on remand to illustrate that equivalent avenues (direct statements, comparative analysis, statistics) were already available from the trial record—underscoring that Bell could have brought the claim on direct appeal without the later affidavit. Because preservation and the statutory bar control, the merits—including any “dual motivation” analysis—are moot.

The Concurrence’s Perspective (Earls, J., joined by Riggs, J.)

Justice Earls concurs in the result only. She agrees relief is foreclosed by existing precedent but criticizes North Carolina’s Batson/J.E.B. jurisprudence as erecting “a fortress of procedural barriers” that converts a constitutional protection into “a right without a remedy.” Key themes:

Even with a prosecutor’s sworn admission of gender‑based intent and contemporaneous notes (“no man on panel, + we’ve already seated 10 jurors!”), post‑conviction relief is unavailable, revealing systemic inadequacy.
North Carolina is an outlier in the paucity of successful Batson/J.E.B. claims on appeal and in post‑conviction, a pattern she traces to heightened prima facie expectations, deferential review, and constrained use of plain‑error and Rule 2.
She urges structural reforms: alternative Batson standards (e.g., Washington’s General Rule 37 addressing implicit bias), elimination or redesign of peremptories (e.g., Arizona’s abolition), immediate reseating remedies, negotiated strikes, and professional accountability mechanisms.
While bound by current law, she calls on the Court to “champion new pathways” that vindicate the equal protection guarantees recognized since Strauder (1880).

Impact and Practical Implications

Immediate Doctrinal Effects

Preservation is decisive. Defense counsel must articulate J.E.B. objections during voir dire the moment gender‑based motives are reasonably inferable—especially when prosecutors speak on the record about wanting “more men” or removing “females.” Failure to object is fatal to appellate review.
Section 15A‑1419’s bar applies robustly to J.E.B. claims. If not raised on direct appeal, a later MAR will be denied unless the defendant proves a qualifying “good cause” exception (and, where applicable, “actual prejudice”), with the Court reading “new factual predicate” narrowly.
Later affidavits are not cure‑alls. A prosecutor’s post‑trial affidavit that merely recapitulates what the trial record already revealed will not be treated as “new evidence” to unlock post‑conviction review.
IAC is the prescribed vehicle for counsel‑omission complaints. Claims that trial counsel failed to object to clear J.E.B. violations should be brought as ineffective assistance MARs, enabling fact development on counsel’s performance and prejudice.
Open questions remain. Because the Court does not reach the merits, whether and how a “dual motivation” or mixed‑motive standard applies to J.E.B. claims in North Carolina remains unsettled.

Practice Pointers

For defense counsel
- Object contemporaneously under both Batson and J.E.B.; request the court to proceed through all three steps and to make findings.
- Build a record: request the State’s reasons on the record; conduct side‑by‑side comparisons; track strike rates by gender; preserve juror questionnaires.
- If the court overrules the objection, renew it and ensure all grounds (race and gender) are distinctly preserved for appeal.
- If no objection was made, evaluate an IAC MAR as the proper remedy rather than attempting to recharacterize a post‑trial affidavit as “new evidence.”
For prosecutors
- Avoid on‑the‑record generalizations about a desire for “more men” or “fewer women.” Such statements are direct evidence of discriminatory intent.
- Document specific, individualized, gender‑neutral reasons contemporaneously; ensure consistent voir dire across similarly situated jurors.
For trial courts
- When a party raises a Batson/J.E.B. objection—or when the record suggests discriminatory patterns—promptly elicit the State’s reasons and make detailed findings at each step.
- Consider remedies that immediately address violations, including reseating improperly struck jurors or discharging the venire, as appropriate.

Complex Concepts Simplified

Peremptory challenge: A party’s strike of a prospective juror without needing to state cause. Even so, peremptories cannot be used to discriminate based on race (Batson) or gender (J.E.B.).
Batson/J.E.B. three‑step test:
1. The challenger makes a prima facie showing that the strike was based on a protected trait (patterns, statements, comparative evidence).
2. The proponent must offer a facially neutral reason (not necessarily persuasive).
3. The court decides whether the challenger proved purposeful discrimination in light of all circumstances.
Preservation: Raising an objection at the time of the alleged error so the trial court can rule on it. Without preservation, appellate courts typically will not review a constitutional claim.
Motion for Appropriate Relief (MAR): North Carolina’s post‑conviction mechanism to attack a conviction or sentence after direct appeal.
Section 15A‑1419’s procedural bar: Requires denial of a MAR if the defendant could have raised the issue on direct appeal but did not, absent a statutory exception.
Good cause and actual prejudice (Section 15A‑1419(b)–(c)): Exceptions to the bar if the failure to raise the claim earlier resulted from (i) State action (including IAC), (ii) a new retroactive right, or (iii) a factual predicate not discoverable with reasonable diligence; and the defendant shows prejudice. A separate exception exists for a “fundamental miscarriage of justice.”
“Factual predicate”: A basic fact from which a necessary inference arises. In Bell, the Court held a later affidavit summarizing trial‑record inferences was not a new factual predicate.
Dual motivation/mixed motive: A merits doctrine (not reached here) addressing situations where a strike is motivated both by a legitimate reason and by a prohibited factor (e.g., gender). Different jurisdictions use different tests to assess whether discrimination was a substantial motivating factor and whether the strike would have occurred absent the improper motive.

Conclusion

State v. Bell crystallizes a demanding message: in North Carolina, J.E.B. (gender) and Batson (race) claims must be made in real time and pursued on direct appeal; they will almost never be rescued in post‑conviction unless the narrow statutory exceptions are satisfied. The Court holds that a prosecutor’s later affidavit echoing what the trial transcript already revealed is not a “new factual predicate” and cannot supply “good cause” under Section 15A‑1419 to bypass the bar. The opinion prioritizes preservation and finality, points defendants to the IAC pathway for counsel’s failures, and leaves unresolved the merits issues (including any “dual motivation” framework).

Justice Earls’s concurrence underscores the human and systemic costs of jury discrimination and calls for doctrinal or procedural reforms to ensure that Batson/J.E.B. claims are not rights without remedies. Whether through judicial innovation or legislative action, Bell highlights the tension between the values of finality and the constitutional promise of equal protection in jury selection. For now, the controlling rule is clear: preserve J.E.B. objections at trial, or risk losing them forever.