DocketNumber: No. COA14–883.
Citation Numbers: 774 S.E.2d 382, 241 N.C. App. 586
Judges: Stroud
Filed Date: 6/16/2015
Status: Precedential
Modified Date: 7/29/2022
*587Rashawn Mackey ("defendant") appeals from judgments entered on jury verdicts, in which the jury found him guilty of first-degree murder and discharging a firearm into an occupied vehicle. Defendant contends that the trial court violated (1) his constitutional rights to an impartial jury and a fair trial; (2) his constitutional right to presence; and (3) N.C. Gen.Stat. § 15A-1234 (2013). We hold that the trial court committed no prejudicial error.
I. Background
On or about 13 January 2012, Mr. Anderson approached two female teenagers, Ms. Lewis and her friend, at a Charlotte bus stop.
On 15 January 2012, Lewis and three female teenage friends went to a party at defendant's apartment, where they met defendant and four or five other male teenagers. Ms. Jones, one of Lewis's friends, observed one of the men holding a handgun. During the party, the teenagers smoked marijuana and played a video game. After finishing work at 5:00 p.m., Anderson called Lewis to get directions to defendant's apartment so that he could pick her up. Lewis did not know the directions, so she passed her cell phone to a few of the men, who then gave Anderson directions to a dead-end road in defendant's apartment complex. Lewis overheard some of the men discussing robbing Anderson.
While it was dark outside, Lewis, Jones, and another female friend walked to the dead-end road to meet Anderson. Anderson soon arrived in his car. Lewis entered the car and sat in the passenger seat, while Jones spoke to Anderson through the driver's side window.
Defendant and two other men then approached the car, and Lewis quickly got out of the car. One of the men nudged Jones out of their way. Defendant then pointed a gun at Anderson and told him to give him his money. Anderson was frightened and did not respond. Defendant then shot Anderson in the head, killing him.
*588On or about 30 January 2012, a grand jury indicted defendant for murder and discharging a firearm into an occupied vehicle. See N.C. Gen.Stat. §§ 14-17, -34.1 (2011). At the trial in January and February 2014, Mr. Smith, one of defendant's fellow jail inmates, testified that he and defendant had once been members of the same gang and that in January 2012, while they were in jail, defendant confessed to him that he had killed a man during a botched robbery. Smith also testified that in December 2013, defendant told him more details about the murder and gave him the names of potential witnesses whom he wanted to be persuaded to not testify. Smith testified that later that month, defendant told him to mark certain potential witnesses for execution and to threaten to mark one potential witness's mother and grandmother for execution. Smith further testified that on Sunday, 26 January 2014, defendant asked him to mark Jones for execution; Jones had begun testifying on Friday, 24 January 2014. Smith also testified that defendant had told him that two of his fellow gang members would be present in the courtroom to observe which witnesses testified. Smith finally testified that on Monday, 27 January 2014, while waiting in a holding cell at the courthouse, he overheard defendant telling a fellow gang member to mark Smith for execution, because Smith had agreed to testify against defendant.
In his own testimony, defendant denied that he had killed Anderson and testified that he was smoking a cigarette on the porch of his apartment when he heard the gunshot. Defendant also testified that he neither asked Smith to mark certain witnesses for execution nor did he speak to Smith about his case.
On 30 January 2014, during the trial, the jury sent its first note to the trial judge, in which it asked, "What is the expected length of the case at this point in time?" The trial judge did not disclose this note to defendant or his counsel, nor did it address the note on the record. In the late afternoon on Monday, 3 February 2014, the jury began its deliberations. Around 10:00 a.m. on Tuesday, 4 February 2014, the jury sent its second note to the trial judge, in which it requested the following pieces of evidence: the audio recording and transcript of a phone call between defendant and his mother, a letter written by one of defendant's fellow inmates, a transcript of defendant's interview with a police detective, and four notes which defendant gave to Smith listing the names of potential witnesses that he wanted to be intimidated or killed. The jury also requested the legal definitions of direct evidence and circumstantial evidence. The trial court disclosed this jury note to the parties and, without objection from either party, denied the jury's request for the transcript of defendant's interview with a police detective as it was *589never tendered or received into evidence, *385but granted the jury's remaining requests.
On 4 February 2014, during the jury's deliberations, the jury sent its third note to the trial judge.
(1) Do we have any concern for our safety following the verdict? Based on previous witness gang [information] and large [number] of people in court during the trial[.]
Please do not bring this up in court[.]
(2) We need 12 letters-1 for each juror showing we have been here throughout this trial[.]
At 3:30 p.m. on Tuesday, 4 February 2014, the jury rendered its verdicts, in which it found defendant guilty of first-degree murder under the felony murder rule but not on the basis of premeditation and deliberation, and discharging a firearm into an occupied vehicle. The trial court sentenced defendant to life imprisonment without parole for the first-degree murder conviction and arrested judgment for the conviction of discharging a firearm into an occupied vehicle. Defendant gave notice of appeal in open court.
II. Standard of Review
We review alleged violations of constitutional rights de novo. State v. Ward,
*590III. Rights to an Impartial Jury and a Fair Trial
Defendant contends that the trial court's failure to question the jurors about the third jury note violated his rights to an impartial jury and a fair trial under the Sixth and Fourteenth Amendments of the U.S. Constitution and article I, sections 19 and 23 of the North Carolina Constitution. See U.S. Const. amend. VI, XIV ; N.C. Const. art. I, §§ 19, 23.
Every person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment. It is the duty of both the court and the prosecuting attorney to see that this right is sustained.
State v. Williams,
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.
Smith v. Phillips,
In Campbell, during a recess at trial, the defendant broke a window and unsuccessfully attempted to escape from the courthouse. Id. at 633,
Similarly, in State v. Hurst, during voir dire, a prospective alternate juror stated that he had read a newspaper article concerning the defendant's trial in the jury room.
Defendant specifically argues that the trial court erred in failing to conduct a Campbell inquiry. But Campbell and Hurst are distinguishable. Here, the jury was not potentially exposed to any extrinsic or "improper and prejudicial matters[.]" See Campbell,
*592membership with [a gang]. As this evidence was part of and intrinsic to the trial, there was no cause for inquiry with the jurors."). Second, the number of people in the courtroom is not an "improper and prejudicial" matter. See Campbell,
Relying on Holbrook v. Flynn, defendant contends that the trial court erred in failing to question the jurors about the jury note, especially given its reference to the large number of people in the courtroom. See
IV. Right to Presence
A. Analysis
Defendant next contends that the trial court's failure to disclose the third jury note violated his right to presence under the Sixth and Fourteenth Amendments of the U.S. Constitution and article I, sections 19 and 23 of the North Carolina Constitution. See U.S. Const. amend. VI, XIV ; N.C. Const. art. I, §§ 19, 23.
Although the United State Supreme Court has stated that the confrontation clause of the federal constitution guarantees each criminal defendant the fundamental right to personal presence at all critical stages of the trial, our state constitutional right of confrontation has been interpreted as being broader in scope, guaranteeing the right of every accused to be present at every stage of his trial.
State v. Badgett,
The Confrontation Clause in Article I, Section 23 of the North Carolina Constitution guarantees an accused the right to be present in person at every stage of his trial. This right to be present extends to all times during the trial when anything is said or done which materially affects defendant as to the charge against him.
....
The trial court errs when it communicates with a juror in the absence of the defendant. A defendant's actual presence in the courtroom can be negated by the court's cloistered conversations with jurors or prospective jurors. Such actions may prevent the defendant from participating in the proceeding, either personally or through counsel; and they deprive the defendant of any real knowledge of what transpired.
State v. Jones,
The State relies on United States v. Gagnon for the proposition that "[t]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right." See
B. Prejudice
We next examine whether the trial court's error prejudiced defendant. "Once a violation of the right to be present is apparent, the State then has the burden to show that the violation was harmless beyond a reasonable doubt."
In Jones, the ex parte communication was "benign" and "did not relate in any way to defendant's trial."
In contrast, in State v. Payne, the trial court gave admonitions to the jury in the jury room outside the presence of the defendant.
Relying on Jones, Golphin, and Badgett, the State contends that the entire jury note was "administrative and non-substantive." See Jones,
One of the most salient facts about the jury's third note is unfortunately not provided by our record: the exact time the jury submitted the note. The trial transcript does not mention the third jury note, but the record does demonstrate that it was "not brought to the attention of the defendant or his counsel during the trial, and the trial court did not address the note[ ] on the record." The State argues that the third note was probably submitted simultaneously with the verdict or immediately thereafter, considering the content of the note, particularly the request for twelve notes to confirm the jurors' service. We do know that the third note was submitted on the last day of deliberations, and we agree that it is highly probable that the note came with the verdict and that may be why it was not mentioned in the transcript. The jury requested that the trial judge not address the third note in open court, and if it had already rendered a verdict, the trial judge may have spoken to the jurors about *596their questions after their service was complete. But probability is not sufficient, and we cannot rule based upon speculation about what might have happened. The burden is upon the State to show that any violation of the defendant's constitutional right was harmless beyond a reasonable doubt, so we must assume for purposes of our analysis that the third note was submitted at some point prior to the completion of deliberations and at a time when the defendant could have had an opportunity to request that the trial court address the note in some manner. See Jones,
Defendant contends that, had the trial court disclosed the third jury note, he could have renewed his objection to Smith's testimony under North Carolina Rule of Evidence 403 and moved to strike Smith's testimony. See N.C. Gen.Stat. § 8C-1, Rule 403. The State responds that the trial court would have denied such a motion, because Smith's testimony was "highly probative of defendant's guilt."
Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
While all evidence offered against a party involves some prejudicial effect, the fact that evidence is prejudicial does not mean that it is necessarily unfairly prejudicial. The meaning of unfair prejudice in the context of Rule 403 is an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, [on] an emotional one....
....
Generally, an attempt by a defendant to intimidate a witness to affect the witness's testimony is relevant and admissible to show the defendant's awareness of his guilt.
State v. Rainey,
Smith testified that he and defendant had once been members of the same gang and that in January 2012, while they were in jail, defendant *597confessed to him that he had killed a man during a botched robbery. Smith also testified that in December 2013, defendant told him more details about the murder and gave him the names of potential witnesses whom he wanted to be persuaded to not testify. Smith testified that later that month, defendant told him to mark certain potential witnesses for execution and to threaten to mark one potential witness's mother and grandmother for execution. Smith further testified that on Sunday, 26 January 2014, defendant asked him to mark Jones for execution, who had begun testifying on Friday, 24 January 2014. Smith also testified that defendant had told him that two of his fellow gang members would be present in the courtroom to observe which witnesses testified. Smith finally testified that on *390Monday, 27 January 2014, while waiting in a holding cell at the courthouse, he overheard defendant telling a fellow gang member to mark Smith for execution, because Smith had agreed to testify against defendant.
Smith's testimony is highly probative of defendant's guilt. Rainey,
Defendant contends that the third note indicates that the jury was "frightened[.]" But the jury asked: "Do we have any concern for our safety following the verdict?" The jury's question indicates that the jury believed there might be a potential safety concern but wanted to know the trial judge's thoughts. We hold that the wording of the jury's question does not evince fear, but the awareness of a potential safety concern. This type of concern would probably arise in any case in which there is evidence of a murder, threats to potential witnesses, and potential gang involvement, and it is entirely reasonable for jurors to express this type of general concern.
Additionally, we examine the jury's question in context. First, the jury submitted this question as the first of two questions in its third note. The second part of the third note deals with a purely administrative matter. The jury had also submitted the second note during its deliberations which contained requests for certain pieces of evidence and certain legal definitions. The fact that the jury submitted several other requests in addition to the question at issue indicates that the jury was not prejudiced by fear. See *598U.S. v. McAnderson,
Second, the jury spent almost a full day in its deliberations and requested several specific pieces of evidence and certain legal definitions. The jury rendered its verdicts a few hours after receiving most of the requested evidence and instructions.
In summary, viewing the third jury note in context demonstrates that Smith's testimony did not suggest decision on an improper, emotional basis, and the jury in fact did not make its decision on an improper, emotional basis. See Rainey,
Defendant also contends that, had the trial court disclosed the jury note, he could have requested that the trial court (1) conduct individual voir dire of the jury "to find which jurors in particular feared for their safety and the extent to which that fear influenced their deliberations"; (2) instruct the jury that "there was no evidence that [defendant] or any courtroom spectator intended to harm the jurors"; (3) instruct the jury to not consider the number of people in the courtroom for any purpose; and (4) instruct the jury "to set aside [its] fears, and that [it was] not to permit [its] fears to influence [its] evaluation of [defendant's] credibility or of his case." But as discussed above, the record indicates that Smith's testimony did not cause the jury to base its decision on fear or any other improper basis, and the jury in fact did not make its decision on an improper, emotional basis. Nor did the jury consider any improper extrinsic information. Accordingly, had defendant made these requests, the trial court could have properly denied all of them. See U.S. v. Thornton,
V. Statutory Violation
Defendant next contends that the trial court violated N.C. Gen. Stat. § 15A1234. Defendant specifically asserts that this statute requires a trial court (1) to disclose every jury note to a defendant and to hear the defendant in connection with every note; and (2) to respond to every jury note in open court. N.C. Gen. Stat. § 15A1234 provides:
(a) After the jury retires for deliberation, the judge may give appropriate additional instructions to:
(1) Respond to an inquiry of the jury made in open court; or *600(2) Correct or withdraw an erroneous instruction; or
(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law which should have been covered in the original instructions.
(b) At any time the judge gives additional instructions, he may also give or repeat other instructions to avoid giving undue prominence to the additional instructions.
(c) Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard.
The parties upon request must be permitted additional argument to the jury if the additional instructions change, by restriction or enlargement, the permissible verdicts of the jury. Otherwise, the allowance of additional argument is within the discretion of the judge.
(d) All additional instructions must be given in open court and must be made a part of the record.
N.C. Gen.Stat. § 15A-1234 (emphasis added). "Whether or not to give additional instructions rests within the sound discretion of the trial court and will not be overturned absent abuse of that discretion."
*392State v. Bartlett,
As noted above, defendant argues that this statute requires a trial court (1) to disclose every jury note to a defendant and to hear the defendant in connection with every note and (2) to respond to every jury note in open court. Although we would agree that because of a defendant's right to presence under article I, section 23 of the North Carolina Constitution, the trial court should disclose every jury note to a defendant, as discussed above, N.C. Gen.Stat. § 15A-1234 does not direct this disclosure. See N.C. Gen.Stat. § 15A-1234. This statute addresses the circumstances when a trial judge may give additional instructions to the jury after it has retired for deliberations; one of those circumstances is to "[r]espond to an inquiry of the jury made in open court[.]"
*601
Defendant relies on State v. King,
[ N.C. Gen.Stat. § 15A-1234(a)(1) ] does not mandate that all twelve jurors agree that a question be asked before it can be brought before the court. Rather, this statute merely requires that all communications between the court and the jury be conducted in open court with all members of the jury present.
Defendant also relies on State v. Ashe,
VI. Conclusion
For the foregoing reasons, we hold that the trial court did not commit prejudicial error.
NO ERROR.
Judges DILLON and DAVIS concur.
Names have been changed to protect the identity of the witnesses and the victim.
The State contends that the record is silent on whether the trial judge received this note, whether the jury sent this note before the verdict, and whether defendant was aware of this note at the time. But the record includes a narrative pursuant to North Carolina Rule of Appellate Procedure 9(c), which states: "During the trial, the jury sent out three notes to the court that were ultimately filed with the Superior Court Clerk and that appear in the Record on Appeal. Two of those notes-the first beginning, 'What is the expected length ...' (dated January 30, 2014; page 200 of the record), and the second beginning, 'Do we have any concern for our safety ...' (dated February 4, 2014; page 202 of the record)-were not brought to the attention of the defendant or his counsel during the trial, and the trial court did not address the notes on the record." N.C.R.App. P. 9(c). We note that the record unfortunately does not provide the exact time that the jury submitted this note.
On appeal, defendant does not challenge the trial court's decision to admit Smith's testimony, although he did object to this evidence at trial and his objection was overruled. But in addressing the issue of prejudice, defendant does contend that, had the trial judge informed defendant of the jury note, he could have renewed his objection to Smith's testimony under North Carolina Rule of Evidence 403 and moved to strike Smith's testimony. See N.C. Gen.Stat. § 8C-1, Rule 403 (2013). We address this argument below in our discussion on prejudice.
The trial court did not allow the jury to consider the transcript of defendant's interview with a police detective, which was requested in the second jury note, as it was never tendered or received into evidence.