State v. Rollins ( 2012 )

BRYANT, Judge.

Where the trial court did not abuse its discretion in failing to hold an evidentiary hearing pursuant to defendant’s motion for appropriate relief, we hold no error.

Facts and Procedural History

On 19 May 2010, defendant Demario Jaquinta Rollins was convicted of common law robbery and misdemeanor assault inflicting serious injury. On 28 May 2010, defendant filed a motion for appropriate relief (“MAR”) pursuant to section 15A-1414 of the North Carolina General Statutes. Defendant alleged that he was entitled to a new trial because he “did not receive a fair trial as a result of a juror watching irrelevant and prejudicial television publicity during the course of the trial, failing to bring this fact to the attention of the parties or the Court, and arguing vehemently for conviction during jury deliberations.” Defendant also prayed for an evidentiary hearing on the claim set forth in his MAR. On 12 July 2010, the trial denied defendant’s MAR by concluding that it was without merit and that an evidentiary hearing was not required. The trial court’s order stated that

[n]othing in the motion or affidavit indicates which news broadcast the juror supposedly viewed, the degree of attention the juror paid to the news story about the defendant’s case, or the extent of any information the juror actually received or remembered from the news broadcast. There is nothing in the motion or affidavit to indicate that the juror shared any of the contents of the news story with other jurors during the trial or the jury’s deliberations. In his affidavit, Mr. Bossard[, a fellow juror,] speculates that the juror must have been influenced by the news broadcast because she was “very outspoken” and “certain of her beliefs” during the jury’s deliberations. In his motion, defendant assumes that the juror must have viewed a news broadcast on News 14 Carolina which contained a reference to other crimes the defendant is alleged to have committed after the robbery for which defendant was convicted in this case.

The undersigned judge concludes that the defendant’s motion is without merit and does not require an evidentiary hearing.

Defendant appeals from this order.

Defendant’s sole issue on appeal is whether the trial court erred in denying his MAR without holding an evidentiary hearing in violation of section 15A-1420 of the North Carolina General Statues and according to the holding in State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998).

N.C.G.S. § 15A-1420 states that “[a]ny party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit.” N.C.G.S. § 15A-1420(c)(l) (2011). However, defendant’s MAR was filed pursuant to N.C.G.S. § 15A-1414 which provides that a defendant may file a MAR asserting that he did not receive a fair and impartial trial within 10 days after entry of judgment. N.C.G.S. § 15A-1414 (2011). We note that “[a]n evidentiary hearing is not required when the motion is made in the trial court pursuant to G.S. 15A-1414, but the court may hold an evidentiary hearing if it is appropriate to resolve questions of fact.” N.C.G.S. § 15A-1420(c)(2) (2011). Therefore, “we review the trial court’s order denying an evidentiary hearing for abuse of discretion. Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Elliot, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (citation and quotations omitted).

Defendant argues that his MAR demonstrated “sufficient particularity to require a hearing on his claim” and that pursuant to the Supreme Court’s holding in McHone, the trial court erred by denying him an evidentiary hearing. Defendant’s MAR asserted that defendant “did not receive a fair trial as a result of a juror watching irrelevant and prejudicial television publicity during the course of the trial, failing to bring this fact to the attention of the parties or the Court, and arguing vehemently for conviction during jury deliberations.” Defendant’s contentions of juror misconduct were based on the affidavit of Tom Bossard, a juror on defendant’s jury. Tom Bossard stated in his affidavit the following:

2. [A]fter the trial was over, while we were in the elevator on the way out of the building, a fellow juror asked me and a couple other jurors whether we had seen the news broadcast on Monday evening. She said there was something related to the case on the news broadcast that she had seen. The other jurors and I responded that we had not seen the news broadcast.

3. This juror had been fairly quiet . . . throughout the proceedings. It was ironic because she became very outspoken and certain of her beliefs during the deliberations.

4. She was basically going “head to head” with me throughout our deliberations. . . . Once I heard her mention the news broadcast in the elevator, it made sense to me that that was why she became so adamant. It seemed to me that she was basing everything on that news broadcast.

In McHone, the defendant was convicted of two counts of first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. The defendant was sentenced to death for each murder and 10 years imprisonment for the assault conviction. McHone, 348 N.C. at 255, 499 S.E.2d at 761-62. The McHone defendant filed an initial MAR and thereafter, a supplemental MAR, which was denied without an evidentiary hearing by the trial court. Id. at 256, 499 S.E.2d at 762. The MAR alleged that the State had sent to the trial court, a proposed order denying defendant’s MAR without providing defendant a copy — a contention which the State acknowledged. Accordingly, the McHone defendant alleged that the State had engaged in an improper ex parte communication with the trial court in violation of his rights to due process under the state and federal constitutions. Id. at 258, 499 S.E.2d at 763. The McHone defendant argued that he was entitled to an evidentiary hearing “because some of his asserted grounds for relief required the trial court to resolve questions of fact” and the McHone Court agreed, holding that the trial court was presented with a question of fact- — whether an ex parte communication did, in fact, occur — which it was required to resolve through an evidentiary hearing. Id. The McHone Court concluded that pursuant to N.C.G.S. § 15A-1420, “an evidentiary hearing is required unless the motion presents assertions of fact which will entitle the defendant to no relief even if resolved in his favor, or the motion presents only questions of law[.]” Id.

The instant case is distinguishable from McHone. Based on the record, defendant’s evidence was insufficient to “show the existence of the asserted ground for relief.” N.C.G.S. § 15A-1420(c)(6). There is insufficient evidence to determine whether juror misconduct occurred as defendant’s motion and Bossard’s affidavit merely contained general allegations and speculation. See State v. Harris, 338 N.C. 129, 143, 449 S.E.2d 371, 377 (1994) (holding that the trial court did not err by failing to hold an evidentiary hearing where the MAR contained a general allegation and “[t]here were no specific contentions that required an evidentiary hearing to resolve questions of fact.”)

In State v. Elliot, 360 N.C. 400, 628 S.E.2d 735 (2006), the defendant filed a MAR alleging juror misconduct occurred when two jurors met and prayed outside of the jury room during a recess from deliberations. Id. at 417, 628 S.E.2d at 747. The trial court denied the defendant’s MAR without an evidentiary hearing. Id. The Elliot court held that even assuming the individual jurors’ prayers constituted misconduct, defendant’s documentary evidence was insufficient to show the required prejudice. Id. at 419, 629 S.E.d at 748.

Although [the] defendant could have sought affidavits from potential witnesses to support his claim of juror misconduct raised in the [MAR], [the] defendant presented nothing save a few newspaper accounts which shed very little light on the alleged discussions between the two jurors concerning the case, and certainly failed to shed light on any prejudice to defendant which arose from discussions, if any, surrounding the prayer.

Id.

A review of the record reveals that defendant’s MAR failed to specify: which news broadcast the juror in question had seen besides a possible broadcast summary from the News 14 Carolina website¹; the degree of attention the juror in question had paid to the broadcast; the extent to which the juror in question received or remembered the broadcast; whether the juror in question had shared the contents of the news broadcast with other jurors; and the prejudicial effect, if any, of the alleged juror misconduct. Bossard’s affidavit raised speculation, not specific contentions requiring an evidentiary hearing. Furthermore, defendant speculated on the possible effect of the alleged juror misconduct by stating things such as “it was reasonable to believe that the news broadcast influenced her opinion and the deliberations of the jury” and “[i]nMr. Bossard’s opinion, the juror based her decisions during deliberations on the news broadcast.” Defendant’s speculation based on Bossard’s speculation long after jury deliberations ended, is insufficient to merit an evidentiary hearing. Therefore, we are unable to conclude that the trial court abused its discretion by failing to hold an evidentiary hearing. Defendant’s argument is overruled.

No error.

Judge STEELMAN concurs. Judge HUNTER, Robert C., dissents by separate opinion.

1 . The dissenting opinion includes a detailed summary of a news broadcast relating to defendant that was printed on a website. However, there is nothing in Mr. Bossard’s affidavit to indicate what broadcast the jury may have seen, nor does it mention a website. Therefore, defendant’s showing in support of an evidentiary hearing contains mere speculation as to the content and effect of the broadcast Mr. Bossard alleges the juror must have seen.