State v. McCarver , 329 N.C. 259 ( 1991 )

404 S.E.2d 821 (1991) 329 N.C. 259

STATE of North Carolina
v.
Ernest Paul McCARVER.

No. 217A88.

Supreme Court of North Carolina.

June 12, 1991.

Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Sp. Deputy Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, for defendant-appellant.

WEBB, Justice.

We hold that pursuant to State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990) and State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987), we are bound to order a new trial. In Smith we held it was prejudicial error for the court to excuse jurors after an unrecorded bench conference. We said, relying on the N.C. Const. art. I, § 23, State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989) and State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), that a defendant has the right, which may not be waived in a capital case, to be present at every stage of his trial, including the selection and impanelling of the jury.

Unless the State can show that this denial of the defendant's right to be present is harmless beyond a reasonable doubt there must be a new trial. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991). In this case, as in Smith, there was no record made of the conversations at the bench and we are unable to determine whether the error was harmless beyond a reasonable doubt.

The State has made a motion to amend the record on appeal to include an affidavit made on 21 March 1991 by the judge who tried the case with his notes made at the trial. The judge explained in this affidavit why he excused the jurors. We do not believe this is helpful to the State. The court reporter did not record the bench conferences, as required by N.C. G.S. § 15A-1241. We will not substitute for this statutory requirement an affidavit made approximately three years after the event. The affidavit was not a part of the record made of the trial.

We do not discuss the defendant's other assignments of error as they may not recur at a new trial.

For errors made in the selection of the jury which found the defendant guilty of first degree murder and armed robbery there must be a new trial.

NEW TRIAL.