State v. Jeune , 104 N.C. App. 388 ( 1991 )

EAGLES, Judge.

I

In his first assignment of error the defendant argues that the trial court committed prejudicial error by failing to grant his motion to join his trial with the trial of his brother, Frederick Jeune. We find no prejudicial error.

It is a well settled rule of law in this jurisdiction that the decision whether to try the defendants separately or jointly is ordinarily within the sound discretion of the trial judge and, absent an abuse of that discretion, will not be overturned on appeal. State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Fox, 274 N.C. 277, 168 S.E.2d 492 (1968).

State v. Boykin, 307 N.C. 87, 90, 296 S.E.2d 258, 260 (1982).

Here, the defendant contends that he was denied a fair trial because his brother was acquitted of the charges of raping and kidnapping Mrs. Ward in a separate trial. However, the defendant has failed to include anything in the record from which we could determine that the trial court abused its discretion by denying the defendant’s motion to consolidate the two trials. This assignment is overruled.

II

The defendant next argues that his rights under the Sixth and Fourteenth Amendments have been violated. Specifically, the defendant claims the trial court erred by failing to grant a mistrial on its own motion when a State’s witness served as bailiff during a portion of the trial. We agree.

Initially, we note that the State argues that defendant’s appeal on this issue should be dismissed because the defendant failed to properly preserve the question for appellate review. Assuming, arguendo, that the defendant failed to properly preserve this issue,

[t]his Court may, . . . pass upon constitutional questions not properly raised below in the exercise of its supervisory jurisdiction. Rule 2 of the Rules of Appellate Procedure; Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963).

State v. Elam, 302 N.C. 157, 161, 273 S.E.2d 661, 664 (1981). See also State v. O’Neal, 77 N.C. App. 600, 604, 335 S.E.2d 920, 923 (1985). In our discretion, we choose to address defendant’s constitutional claims.

Deputy David Carpenter, an investigating officer, testified concerning the condition of the car in which the defendant and Mrs. Ward had intercourse. He testified that there were scuff marks on the “driver’s side, rear passenger door window[,]” and that they “could be made by [a] small narrow [shoe] heel” like the one Mrs. Ward was wearing. He also testified that the back seat was displaced and that he found an earring underneath the back seat of the car. Mrs. Ward testified and identified the earring: “That’s my earring I had on that night.”

During the trial, Deputy Carpenter also acted as bailiff. After defense counsel brought this to the attention of the trial judge, the judge asked Deputy Carpenter what he had done. Deputy Carpenter told the judge that he had “held the gate open” for the jury; “opened the jury room door”; and “told them to take their seats and sit down.” Deputy Carpenter also said that he had acted as bailiff because he “was instructed by the sheriff to assist in the courtroom.”

Though during trial defendant did not move for a mistrial, defendant argues that Deputy Carpenter’s actions conveyed an appearance of impropriety which standing alone so affronts the traditional notions of due process and a fair trial that the defendant should be entitled to a new trial. Defendant relies on State v. Mettrick, 305 N.C. 383, 289 S.E.2d 354 (1982) and State v. Wilson, 314 N.C. 653, 336 S.E.2d 76 (1985). The State, however, argues the defendant is not entitled to a new trial and relies on the earlier Supreme Court decision in State v. Macon, 276 N.C. 466,173 S.E.2d 286 (1970). After careful examination of these competing precedents, we agree with the defendant.

In Macon, two State witnesses, both Deputy Sheriffs, served as courtroom bailiffs over the defendant’s objection. Macon, 276 N.C. at 470, 173 S.E.2d at 288. The Supreme Court stated, “a State’s witness is disqualified to act as custodian or officer in charge of the jury in a criminal case. . . . Under such circumstances prejudice is conclusively presumed.” Id. at 473, 173 S.E.2d at 290. However, after applying the facts of the case to the then existing case law, the Supreme Court held:

The exposure of the jury to these bailiffs was brief, incidental, and without legal significance. Hence, defendant not only fails to show actual prejudice —he fails to show circumstances affording any reasonable ground upon which to attack the fairness of the trial or the integrity of the verdict. The only service of the bailiffs to the jurors was in “opening the door to send them out or call them in as occasion required.” We hold on the facts in this record that defendant received a fair trial in a fair tribunal in keeping with basic requirements of Due Process. There is nothing to support the contention that his constitutional rights under thé Sixth and Fourteenth Amendments have been violated.

Id.

Were Macon our only precedent our decision would be different, but twelve years later in State v. Mettrick, 305 N.C. 383, 289 S.E.2d 354 (1982), the Supreme Court again addressed the issue. In Mettrick, the Ashe County trial court ordered that a special venire of jurors be brought from another county. Id. at 384, 289 S.E.2d at 355. The Ashe County sheriff and one of his deputies transported the prospective jurors in two activity buses to Ashe County. After the jury was selected, the sheriff and his deputy continued to transport the jurors daily between counties. Id. Both officers were State’s witnesses.

The Supreme Court stated:

We have previously held that, where a witness for the State acts as a custodian or officer in charge of the jury in a criminal case, prejudice is conclusively presumed. State v. Macon, 276 N.C. 466, 473, 173 S.E.2d 286, 290 (1970); Compare Turner v. Louisiana, 379 U.S. 466, 13 L.Ed. 2d 424, 85 S.Ct. 546 (1965). In such cases the appearance of a fair trial before an impartial jury is as important as the fact of such a trial. The integrity of our system of trial by jury is at stake. No matter how circumspect officers who are to be witnesses for the State may be when they act as custodians or officers in charge of the jury in a criminal case, cynical minds often will leap to the conclusion that the jury has been prejudiced or tampered with in some way. If allowed to go unabated, such suspicion would seriously erode confidence in our jury system. For this reason we have adopted the rule that prejudice is conclusively presumed in such cases.

Id. at 385, 289 S.E.2d at 356.

After examining the “factual indicia of custody and control” the Supreme Court determined that the sheriff and his deputy “acted as custodians or officers in charge of the jury. . . .” Id. at 386, 289 S.E.2d at 356. This raised a conclusive presumption of prejudice despite the fact that the evidence presented no hint of malice or misconduct by the officers. Id. The Court ordered a new trial.

The issue was most recently revisited in Justice Meyer’s opinion for a unanimous court in State v. Wilson, 314 N.C. 653, 336 S.E.2d 76 (1985). There, “[t]he prosecuting attorney’s wife was a courtroom officer and was the bailiff in charge of the jury.” Id. at 655, 336 S.E.2d at 76. During a break in jury deliberations, she engaged in friendly conversation with the jury after two of the jurors told her they had seen her riding to and from work with her husband. Id. at 655, 336 S.E.2d at 76-77. The bailiff told the court that she did not attempt to influence the jury at any time. Id. at 655, 336 S.E.2d at 77. Ordering a new trial Justice Meyer restated this bright line rule:

This Court has held that where the custodian or officer in charge of the jury in a criminal case is a witness for the State, prejudice to the defendant is conclusively presumed and he is entitled to a new trial. (Citations omitted.)

* * *

The State contends that this situation differs from that in Mettrick, because in Mettrick the close association between the law enforcement officers and the jurors gave them an opportunity to bolster their personal credibility as witnesses and thus directly influence the case, whereas here the bailiff was not a witness in the case. This argument, however, overlooks the underlying rationale of the Mettrick decision. There, we said the appearance of a fair trial before an impartial jury is as important as the fact that a defendant actually receives such a trial. State v. Mettrick, 305 N.C. at 385, 289 S.E.2d at 356. We find this reasoning to be equally applicable here. Our jury system depends on the public’s confidence in its integrity. We must zealously guard against any actions or situations which would raise the slightest suspicion that the jury in a criminal case had been influenced or tampered with so as to be favorable to either the State or the defendant. Any lesser degree of vigilance would foster suspicion and distrust and risk erosion of the public’s confidence in the integrity of our jury system. ... We wish to emphasize that there is absolutely nothing in the record to remotely suggest that the bailiff actually attempted to influence the jury in any manner. However, whether any tampering or attempted tampering took place is irrelevant. It is the appearance of the opportunity for such influence that is determinative.

Wilson, 314 N.C. at 655-656, 336 S.E.2d at 77.

We acknowledge that Macon is factually similar to the instant ease. There, as here, “[t]he only service of the bailiffs to the jurors was in ‘opening the door to send them out or call them in as occasion required.’ ” Macon, 276 N.C. at 473, 173 S.E.2d at 290. Even so, we do not believe that Macon controls here.

In oral argument there were contentions that Macon requires a showing of actual prejudice in order to warrant a new trial. We note, however, Macon did not express such a requirement. In Macon the court stated:

Hence, defendant not only fails to show actual prejudice — he fails to show circumstances affording any reasonable ground upon which to attack the fairness of the trial or the integrity of the verdict.

Macon, 276 N.C. at 473, 173 S.E.2d at 290. Nonetheless, to the extent that Macon may be construed as requiring a showing of actual prejudice, we believe that that requirement has been implicitly overruled by Mettrick and Wilson.

In oral argument contentions were also made that Wilson requires that a custodian or officer in charge of the jury be a crucial witness to raise a conclusive presumption of prejudice to the defendant. We disagree. In Wilson our Supreme Court stated:

We hold that an immediate family member of either a prosecutor trying the case, a defendant, a defendant’s counsel defending the case, or a crucial witness for either the prosecution or the defense is prohibited from serving as custodian or officer in charge of the jury in a criminal case.

Wilson, 314 N.C. at 656, 336 S.E.2d at 77. This holding addressed the issue of when, if ever, an immediate family member of a person involved in a criminal trial could serve as a custodian or officer in charge of the jury. The court held that an immediate family member of (1) a prosecutor trying the case, (2) a defendant, (3) a defendant’s counsel defending the case, or (4) a crucial witness for the prosecution or the defense was prohibited from serving as custodian or officer in charge of the jury in a criminal case.

The rule governing witnesses serving as bailiffs was clearly stated in Wilson.

[W]here the custodian or officer in charge of the jury in a criminal case is a witness for the State, prejudice to the defendant is conclusively presumed and he is entitled to a new trial. State v. Mettrick, 305 N.C. 383, 289 S.E.2d 354 (1982); State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970). See also Turner v. Louisiana, 379 U.S. 466, 13 L.Ed. 2d 424 (1965).

Wilson, 314 N.C. at 655, 336 S.E.2d at 77.

The issue here, then, is whether Deputy Carpenter was a custodian or an officer in charge of the jury. It is clear and the State concedes that “the Wilson Court described the courtroom bailiff as being [an] officer in charge of the jury. . . .” Deputy Carpenter was a bailiff and therefore an officer in charge of the jury. Accordingly, prejudice to the defendant is conclusively presumed.

The State argues, however, that Macon controls here because it is factually similar to the instant case. This argument overlooks the recent extension made by the Wilson Court. If followed, the State’s argument would require us to reach an incongruous result. Under Wilson an immediate family member of a person involved in a criminal trial is prohibited from serving as a courtroom bailiff, even though that person is not a witness and does not testify. Wilson, 314 N.C. at 656, 336 S.E.2d at 77. However, under the State’s argument a person would be allowed to serve as courtroom bailiff despite the fact that he is also a witness and actually testifies. Macon, 276 N.C. at 473, 173 S.E.2d at 290. In short, the State’s construction of our case law erroneously holds that an appearance of impropriety is not created by a witness serving as a bailiff, while an appearance of impropriety is created by a family member serving as a bailiff. This is at best inconsistent. The State’s argument would promote the very appearance of impropriety that our decisions have been trying to eliminate. We reject this construction of our case law and relying on Wilson and Mettrick, we remand for a new trial.

Ill

We do not reach the defendant’s remaining assignments of error.

New trial.

Chief Judge HEDRICK concurs. Judge Greene dissents.