Appeal by defendant from judgment entered 3 March 1999 by
Judge J. Richard Parker in Pitt County Superior Court. Heard in
the Court of Appeals 18 April 2000.
Michael F. Easley, Attorney General, by Amy C. Kunstling,
Assistant Attorney General, for the State.
Robert L. Shoffner, Jr., Public Defender, by James Kevin
Antinore, Assistant Public Defender, for defendant-appellant.
EDMUNDS, Judge.
Defendant Jan C. Gilbert appeals from jury verdicts finding
him guilty of second-degree kidnapping and assault on a female. We
find defendant's conviction to be free from prejudicial error.
Defendant's challenges focus on the procedures followed in his
case. On Saturday, 27 September 1997, defendant was arrested forassault on a female and assault by pointing a gun and was held
pursuant to N.C. Gen. Stat. § 15A-534.1 (1995). On the morning of
Monday, 29 September 1997, defendant appeared before a district
court judge and was released on bond. Thereafter, on 30 October
1997, defendant was arrested for second-degree kidnapping, a charge
predicated on the same incident that led to the earlier assault
charges. Defendant was received at the detention facility at 9:14
p.m. on 30 October 1997 and was held pursuant to section 15A-534.1.
A hearing was set for 9:00 a.m. the next morning. At that hearing,
defendant appeared before a district court judge, who ordered that
defendant be released on an unsecured bond, but only after 2:00
p.m. that afternoon.
Prior to trial, defendant moved to dismiss the charge of
second-degree kidnapping, on the grounds that section 15A-534.1
does not apply to kidnapping charges and that his detention from
9:14 p.m. on 30 October 1997 to 2:00 p.m. on 31 October 1997
violated his due process and double jeopardy constitutional rights.
The trial court denied defendant's motion, and the case proceeded
to trial.
The State presented evidence that defendant had been involved
in a five-year, extra-marital affair with the victim and had
fathered the victim's two children. When the victim told defendant
in February or March 1997 that she wanted to end their affair, hereplied that she would not get out of the relationship alive, fired
a gun at her, and told her the shot was a warning and that next
time he would not miss. During the following six or seven months,
the victim repeatedly told defendant that she wanted to end their
relationship. Defendant always responded by telling the victim
that she would not get out of the relationship alive and that “[h]e
would fix [her] for the next man.”
On 25 September 1997, defendant came to the victim's trailer
at around 4:30 p.m., where he drank and watched television. Afriend of the victim twice stopped by to ask the victim to come
play cards with her. The victim declined, saying that she did not
want to upset defendant. When the friend told defendant that she
wanted the victim to come play cards, defendant responded that the
victim was not leaving and that he would shoot the friend and her
brother, Malcolm Tyson (Tyson), if defendant discovered that the
victim had been seeing Tyson. After the friend departed, defendant
started beating the victim. He pushed her onto a couch, sat on top
of her, and hit her in her head and stomach. Defendant told the
victim he would kill her if he found out that she was seeing anyone
else, then pulled the victim onto another couch, pinned her arms
behind her, and continued beating her. The victim testified that
at some point during the assault, defendant put a gun to the back
of her head. He showed her a bullet and said that it had a hollow
point and would tear up her insides. The victim tried to leave the
trailer but was restrained by defendant.
The victim finally was able to leave her trailer the next
morning, after defendant departed. She testified that she suffered
a bruised eye, a bruise under her nose, a scratch on her nose, and
that some of her fingernails had been pulled off at the roots
during the struggle. The victim went to her friend's home, where
she told Tyson that defendant had beaten her. The victim's mother
took her to the magistrate's office to swear out a warrant against
defendant and then to the hospital emergency room.
Defendant testified that he went to the victim's trailer at
around 9:30 p.m. on the evening in question. The victim wassmoking marijuana and acting “out of it.” Her friend came by the
trailer twice. When the victim saw a photograph of defendant's
wife in his wallet, she tried to grab the wallet to tear up the
photograph. The victim bit defendant's forearm in an attempt to
retrieve the photograph, then fell against the side of the couch,
hurting her shoulder. According to defendant, the victim began
crying, then “all of a sudden she just grabbed herself, took her
hands and just hit herself right in the face.” Defendant grabbed
the victim's forearm until she calmed down. He denied ever
pointing a gun at the victim.
Defendant's wife testified that defendant came home around
2:30 a.m. on 26 September 1997, showed her an injury on his arm,
and told her that the victim had bitten him. She acknowledged that
she had obtained a restraining order against defendant in October
1997, claiming that defendant threatened to kill her and tormented
her one night. She testified, however, that she lied when she
sought the restraining order.
The jury found defendant guilty of second-degree kidnapping
and assault on a female and not guilty of assault by pointing a
gun. The trial court consolidated defendant's convictions and
sentenced him to a term of imprisonment of twenty-nine to forty-
four months. After the jury was excused, the trial court
discovered that the wrong defendant's name was printed at the top
of the verdict form. Defendant made a motion for a mistrial, which
the trial court denied. The trial court ordered the jury to return
the next day, at which time the jury foreman signed and dated acorrected jury verdict sheet. As the corrected verdict sheet was
passed to the other jurors, one juror advised the court, “I find
myself having reasonable doubt about the verdict we passed. Is it
too late to say that since we're reviewing this now?” The trial
court responded that it was too late to change the verdict.
Defendant renewed his motion for a mistrial, which again was
denied. The trial court readopted the sentence and appellate
entries. Defendant appeals.
I.
Defendant first contends the trial court erred by denying his
pretrial motion to dismiss the charge of second-degree kidnapping.
He argues that, because he was illegally held without bond after
his arrest, he was denied his constitutional due process rights and
his protections against double jeopardy.
A trial court's authority to dismiss charges against a
criminal defendant is governed by N.C. Gen. Stat. § 15A-954 (1999),
which states in pertinent part:
(a) The court on motion of the defendant
must dismiss the charges stated in a criminal
pleading if it determines that:
(1) The statute alle
ged to have
been violated is
unconstitutional on its face or
as applied to the defendant.
. . . .
(4) The defendant's
constitutional
rights have been flagrantly
violated and there is such
irreparable prejudice to the
defendant's preparation of his
case that there is no remedy
but to dismiss the prosecution.The Release Order that was filled out when defendant was arrested
on 30 October 1997 and held overnight contains a handwritten
notation citing “15A-534.1,” which apparently was added by the
magistrate who completed the form that evening. Section 15A-534.1
applies to a defendant “charged with assault on or communicating a
threat to . . . a person with whom the defendant lives or has lived
as if married,” N.C. Gen. Stat. § 15A-534.1(a), and states that
such “[a] defendant may be retained in custody not more than 48
hours from the time of arrest without a determination being made
under this section by a judge,”
id. § 15A-534.1(b). Therefore,
section 15A-534.1 applied to defendant's 27 September 1997 arrest
for assault on the victim, but not to his 30 October 1997 arrest
for kidnapping.
Defendant argued that “the magistrate's and district court
judge's failure to set pretrial release conditions from 9:14 p.m.
on October 30, 1997 to 2:00 p.m. on October 31, 1997 resulted in
defendant's illegal incarceration.” Consequently, defendant
continued, the illegal incarceration resulting from defendant's
second arrest arising out of the same incident “created an improper
infringement upon defendant's liberty interests and constituted a
sufficient violation of defendant's state and federal
constitutional Due Process rights, his protections from Double
Jeopardy, and his statutory rights under N.C.G.S. [§] 15[A]-
954(a)(4) to dictate that the charge of Second Degree Kidnapping be
dismissed.” At the conclusion of the hearing, the trial court made
the following findings of fact: [T]he defendant was arrested on a charge of
second-degree kidnapping according to the
release order which has been marked for
identification as Defendant's Exhibit 3 at
9:14 p.m., on the 30th day of October 1997;
that the defendant was taken before a
magistrate, whose name I could not discern,
and was held without bond pursuant to 15A-
534.1; that the defendant was subsequently
taken before District Court Judge James Martin
on the morning of October 31st, 1997, at which
time Judge Martin set conditions of release,
including the condition that the defendant be
released upon giving unsecured bond in the
amount of $1,000 to be effective at 2 p.m. on
the 31st day of October, 1997, and that the
defendant was released at that time.
. . . .
And that the defendant was held without
bond for a period of less than 24 hours prior
to his release from jail.
Based upon these findings, the trial court concluded:
[T]he magistrate who initially processed the
defendant pursuant to G.S. 15A-534.1
mistakenly believed that second-degree
kidnapping was one of the offenses covered by
said statute and was of the opinion that he
would not be in a position to set a bond
without the defendant appearing before a judge
as required by G.S. 15A-534.1; that the
defendant subsequently appeared before a
district court judge on the morning of October
31, 1997, and, according to Defendant's
Exhibit 3 was released upon an unsecured bond
at 2 p.m. on that same date; that the Court
cannot discern why Judge Martin made the
effective release of the defendant at 2 p.m.
rather than some other time, but can only
speculate that Judge Martin was also of the
opinion that General Statute 15A-534.1 applied
to the second-degree kidnapping; that although
the defendant was held in custody from 9:14
p.m. on the 30th day of October 1997 until 2
p.m. on the 31st day of October 1997, upon the
mistaken belief that General Statute 15A-534.1
applied to the second-degree kidnapping
charges, the defendant has not shown that his
constitutional rights have been violatedresulting in irreparable prejudice as required
by G.S. 15A-954(a)(4).
Accordingly, the trial court denied defendant's motion.
However, the trial court did not rule specifically on the
constitutionality of section 15A-534.1; instead, it ruled only that
“the defendant has not shown that his constitutional rights have
been violated resulting in irreparable prejudice as required by
G.S. 15A-954(a)(4).” Defendant argued double jeopardy during the
hearing on his motion to dismiss, and after the trial court recited
its findings of fact and conclusions of law, defense counsel
requested additional findings regarding defendant's claim of double
jeopardy. The trial court refused to make the additional findings
and noted defendant's objection. Defendant now contends the trial
court erred because it “failed to use the proper standard when it
based its ruling solely on the 'irreparable prejudice' standard of
15A-954(a)(4).”
Defendant does not assign error to the trial court's
conclusion based upon section 15A-954(a)(4), and thus we do not
address that issue. Instead, we turn to whether the trial court's
failure to address defendant's constitutional challenges (pursuant
to section 15A-954(a)(1)) resulted in prejudicial error.
A.
[1]We first address defendant's standing to raise a
constitutional challenge to section 15A-534.1. The State contends
that “[b]ecause § 15A-534.1 does not apply to the kidnapping
charge, this Court need not decide defendant's facial and 'as
applied' due process and double jeopardy challenges to § 15A-534.1.” However, the statute at issue was applied to defendant,
whether improperly or not, and we therefore believe that defendant
now has standing to challenge its constitutionality in that
application.
See Messer v. Town of Chapel Hill, 346 N.C. 259, 260,
485 S.E.2d 269, 270 (1997) (per curiam) (“'Standing to challenge
the constitutionality of a legislative enactment exists where the
litigant has suffered, or is likely to suffer, a direct injury as
a result of the law's enforcement.'”);
State v. Fredell, 283 N.C.
242, 247, 195 S.E.2d 300, 304 (1973) (“Uniformly, the accused has
been permitted to assert the invalidity of the law only upon a
showing that his rights were adversely affected by the particular
feature of the statute alleged to be in conflict with the
Constitution.”).
B.
[2]Defendant asks this Court to find that section 15A-534.1
is facially violative of the North Carolina Constitution's
protections relating to due process and double jeopardy. Our
Supreme Court recently addressed this issue with regard to the
Fifth and Fourteenth Amendments to the United States Constitution
and found the statute to be valid.
See State v. Thompson, 349 N.C.
483, 508 S.E.2d 277 (1998). Defendant's arguments relating to the
North Carolina Constitution focus on the “due process” aspects of
the case. However, because our Constitution's “law of the land”
clause (N.C. Const. art. I, § 19) has been held equivalent to the
Fourteenth Amendment's Due Process Clause,
see State v. Collins,
169 N.C. 323, 84 S.E. 1049 (1915);
Buchanan v. Hight, 133 N.C. App.299, 515 S.E.2d 225,
disc. review denied, 351 N.C. 351, 53
9 S.E.2d
280 (1999), we believe that our Supreme Court's holding in
Thompson
is controlling. Therefore, we hold that section 15A-534.1 does not
violate the North Carolina Constitution on due process grounds.
Defendant also claims he was subjected to double jeopardy, in
violation of our state constitution. A defendant in North Carolina
is protected against double jeopardy through the “law of the land”
provision of the state constitution.
See State v. Crocker, 239
N.C. 446, 80 S.E.2d 243 (1954). In a criminal jury case in North
Carolina, “jeopardy attaches when a defendant in a criminal
prosecution is placed on trial: (1) On a valid indictment or
information, (2) before a court of competent jurisdiction,
(3) after arraignment, (4) after plea, and (5) when a competent
jury has been empaneled and sworn to make true deliverance in the
case.”
State v. Bell, 205 N.C. 225, 228, 171 S.E. 50, 52 (1933)
(citation omitted). Similarly, under federal law, jeopardy in a
criminal jury trial attaches when the jury is empaneled and sworn.
See United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L.
Ed. 2d 642
(1977);
Downum v. United States, 372 U.S. 734, 10 L. Ed.
2d 100 (1963). Because the key factor for determining jeopardy --
the empaneling and swearing of the jury -- is the same in both
systems, it does not appear to us that the state constitution
grants any greater rights than those provided by the federal
constitution. Accordingly, we hold that the double jeopardy
guarantees in the United States and North Carolina constitutions
are equivalent. Therefore, consistent with our Supreme Court'sholding in
Thompson, we hold that section 15A-534.1 “survives
defendant's facial constitutional challenge on double-jeopardy
grounds.”
Thompson, 349 N.C. at 496, 508 S.E.2d at 285.
C.
[3]Defendant also contends section 15A-534.1, as applied in
this case, violated defendant's state and federal constitutional
rights. Defendant argues that “the magistrate unconstitutionally
delayed the post-detention process to which defendant was entitled
under the Due Process Clause of the Fifth Amendment and Article I,
Sec. 19 of our state's Constitution.” As noted above, when
defendant was brought before the magistrate at 9:14 p.m. on 30
October 1997, the magistrate ordered defendant held without bond
until 9:00 a.m. the next day and noted “15A-534.1” on the Release
Order. Defendant was brought before a judge the next morning, and
conditions of release were established (permitting defendant's
release at 2:00 p.m. upon payment of an unsecured bond).
Turning first to defendant's due process concerns as they
relate to the delay in receiving a bond hearing, we have found only
two cases that have discussed the “as applied” constitutionality of
section 15A-534.1. In
Thompson, 349 N.C. 483, 508 S.E.2d 277, the
defendant was arrested at 3:45 p.m. on a Saturday. The
magistrate's order of commitment did not authorize the defendant's
release from jail for a bond hearing until 3:45 p.m. the following
Monday, forty-eight hours later. In accordance with this order,
the defendant was held until Monday afternoon, instead of being
brought into court before a judge at the start of court on Monday. The Supreme Court held that this delay of approximately six hours
and forty-five minutes was “unnecessary, unreasonable, and thus
constitutionally impermissible.”
Thompson, 349 N.C. at 500, 508
S.E.2d at 288. In so holding, the Court looked at the following
factors:
“[T]he importance of the private interest and
the harm to this interest occasioned by delay;
the justification offered by the Government
for delay and its relation to the underlying
governmental interest; and the likelihood that
the interim decision may have been mistaken.”
Id. at 499, 508 S.E.2d at 287 (quoting
FDIC v. Mallen, 486 U.S.
230, 242, 100 L. Ed. 2d 265, 279 (1988)). Applying these factors
to the facts before the Court, the
Thompson Court stated:
[I]t is beyond question that the private
interest at stake, liberty, is a fundamental
right. “Th[e] traditional right to freedom
before conviction permits the unhampered
preparation of a defense, and serves to
prevent the infliction of punishment prior to
conviction.” . . .
Delay in post-deprivation judicial review
under N.C.G.S. § 15A-534.1(b) may result in
significant harm to a defendant's private
interest in liberty prior to trial. . . .
. . . The State has a legitimate interest
in providing that a legally trained judge
perform individualized determinations of bail
and set conditions of release in domestic-
violence cases. The State, however, also
claims a corollary interest in detaining a
domestic-violence arrestee while securing a
judge to perform this function. . . . Here,
once a judge became available to conduct a
post-detention hearing on Monday morning,
further delay in providing this hearing did
not serve any underlying interest of the
State. All such interests had been served in
full. . . .
. . . . &nb
sp; Th[e] “cooling off” justification for
detaining a domestic-violence arrestee beyond
the time at which a judge is available to
consider the conditions of that arrestee's
pretrial release has no relationship to the
State's interest in having a judge, rather
than a magistrate, conduct domestic-violence,
pretrial-release hearings under N.C.G.S.
§ 15A-534.1(b). . . .
. . . .
We now consider the final
FDIC factor:
“the likelihood that the interim decision [to
detain defendant] may have been mistaken.” A
first magistrate determined that there was
probable cause to arrest defendant on a
domestic-violence charge based upon the
allegations of one individual. A second
magistrate ordered defendant detained based
solely upon that probable-cause determination.
When his case came to trial, defendant pled
not guilty and asserted that he did not commit
a crime of domestic violence. There is no
record evidence establishing definitively
whether detention was warranted.
Id. at 499-502, 508 S.E.2d at 287-88 (internal citations omitted)
(second and last alterations in original). Accordingly, the
Supreme Court reversed the decision of this Court and remanded for
further remand for entry of an order of dismissal.
See id. at 503,
508 S.E.2d at 289.
The second case,
State v. Malette, 350 N.C. 52, 509 S.E.2d 776
(1999), distinguished
Thompson. In
Malette, the defendant was
arrested on 3 December 1995 and was taken before a magistrate on
that date. The magistrate ordered that the defendant be held
pursuant to section 15A-534.1, and on 4 December 1995, the
defendant was taken before a district court judge, who set a
secured bond of $10,000. On 7 December 1995, the State and defense
counsel agreed to a secured bond of $1,000 on the condition thatthe defendant have no contact with the victim. The defendant was
then released. When his case was called for trial, the defendant
moved to dismiss the charge on constitutional grounds. The trial
court granted the defendant's motion, and the State appealed to
superior court, which found the statute constitutional and remanded
the case for trial. This Court affirmed. Our Supreme Court
affirmed this Court's decision, stating the following:
In the case
sub judice, the record does
not indicate that there was unreasonable delay
in holding the post-detention hearing. On
Sunday, 3 December 1995, defendant was
arrested and taken before a magistrate who
ordered that he be brought before a judge
pursuant to N.C.G.S. § 15A-534.1(b) on the
very next day, Monday, 4 December 1995.
Defendant was in fact brought before District
Court Judge Carolyn Johnson on Monday, 4
December 1995, and she set a secured bond of
$10,000, which subsequently was reduced to
$1,000. There is no evidence here that the
magistrate arbitrarily set a forty-eight-hour
limit as in
Thompson or that the State did not
move expeditiously in bringing defendant
before a judge.
Id. at 55, 509 S.E.2d at 778. Accordingly, the statute was
constitutional as applied to the defendant in
Malette.
We believe that the case at bar is determined by
Malette. As
in
Malette, and unlike
Thompson, there is no evidence here that an
arbitrary limit was placed on the time defendant would be held in
detention before seeing a judge. Defendant was taken into custody
on the evening of 30 October 1997, and the magistrate ordered that
he be taken before a judge at the first opportunity. Accordingly,
defendant was presented to a district court judge at the start of
court the next day, 31 October 1997. At that point, the judgedetermined conditions of release; defendant was to be detained
until 2:00 p.m. that afternoon, at which time defendant could be
released upon a $1,000 unsecured bond. Because defendant was
brought before a judge as soon as one was available, defendant was
heard “'at a meaningful time and in a meaningful manner.'”
Thompson, 349 N.C. at 503, 508 S.E.2d at 289 (citation omitted).
The delay in receiving a bond hearing did not violate defendant's
due process rights.
See State v. Jenkins, 137 N.C. App. 367, 527
S.E.2d 672,
disc. review denied, 352 N.C. 153, --- S.E.2d ---
(2000).
[4]We next address defendant's contention that the district
court judge's order requiring defendant to remain in custody until
2:00 that afternoon was an unconstitutional application of section
15A-534.1. Assuming that the judge was applying section 15A-
534.1(a) when he delayed defendant's release, our Supreme Court in
Thompson stated that such a delay by a judge is permissible. “A
judge conducting [a hearing pursuant to section 15A-534.1] 'may
retain the defendant in custody for a reasonable period of time'
beyond the initial forty-eight hours authorized by N.C.G.S. § 15A-
534.1(b) if the judge determines that 'release of the defendant
will pose a danger of injury to the alleged victim.'”
Thompson,
349 N.C. at 501, 508 S.E.2d at 288 (quoting N.C. Gen. Stat. § 15A-
534.1(a)). The approximately five additional hours of detention
ordered by the trial court were not unreasonable.
D.
[5]Although no case has addressed whether section 15A-534.1
violates a defendant's right to be free from double-jeopardy on an
“as applied” basis, the
Thompson Court did state:
[W]hen an individual arrested upon an
allegation of domestic violence undergoes
regulatory detention under N.C.G.S. § 15A-
534.1(b) for a brief period of time while
awaiting the first available judge to hold a
pretrial release hearing under N.C.G.S. § 15A-
534.1(a), no double-jeopardy concern arises.
349 N.C. at 496, 508 S.E.2d at 284-85. Accordingly, because the
detention was only to await hearing before the “first available
judge,” defendant was not exposed to double jeopardy for the
kidnapping charge. Similarly, we hold that the judge's order
requiring defendant to remain in custody until 2:00 p.m. as a
condition of defendant's release pursuant to section 15A-534.1(a)
does not give rise to double jeopardy.
In light of our preceding analysis, any error by the trial
court in not directly addressing the constitutionality of the
statute was harmless. Defendant's constitutional assignments of
error are overruled.
II.
[6]Alternatively, defendant contends that the trial court
erred by denying his motion to dismiss based on the district court
judge's failure to make findings of fact. Section 15A-534.1(a)(1)
and (b) speak of different determinations that may be made by the
court. However, the statute sets forth no requirement that the
judge make findings of fact to support any of these determinations. We considered an analogous situation in
State
v. O'Neal, 108
N.C. App. 661, 424 S.E.2d 680 (1993), where we analyzed N.C. Gen.
Stat. § 15A-534 (1992) (procedure for determining conditions of
pre-trial release). Section 15A-534 required the judicial official
to consider:
the nature and circumstances of the offense
charged; the weight of the evidence against
the defendant; the defendant's family ties,
employment, financial resources, character,
and mental condition; whether the defendant is
intoxicated to such a degree that he would be
endangered by being released without
supervision; the length of his residence in
the community; his record of convictions; his
history of flight to avoid prosecution or
failure to appear at court proceedings; and
any other evidence relevant to the issue of
pretrial release.
In
O'Neal, we stated:
While it is clear from the statute that the
judicial official imposing pretrial release
must consider these factors, it is less
certain what record he must make of his
considerations. In
State v. Knoll, 322 N.C.
535, 369 S.E.2d 558 (1988), the record appears
to have contained specific findings of fact by
the trial court regarding the conduct of the
magistrate in setting bail. Based on these
findings, our Supreme Court concluded that the
statute had been violated to the detriment of
the defendants.
Id. at 545-47, 369 S.E.2d at
564-65. This Court, in
State v. Overton, 60
N.C. App. 1, 298 S.E.2d 695 (1982), . . .
noted that the judicial official determining
the conditions of pretrial release was
required to consider the factors in N.C. Gen.
Stat. § 15A-534(c), but made no indication
that a
written record of that consideration
existed, nor that the lack of such a writing
would warrant the conclusion that the factors
had not been properly considered.
Id. at
32-33, 298 S.E.2d at 714 (based on the
statutory factors, $1 million bail was not
unreasonable for conspiracy to manufacture, to
sell or deliver, or to possess heroin).
. . . .
The defendant in the present case
correctly asserts that the record is devoid of
any written findings regarding the imposition
of the secured bond, and there is no
indication that the trial judge considered the
factors in N.C. Gen. Stat. § 15A-534(c) when
he established the conditions of the
defendant's pre-trial release. . . .
[S]ection 15A-534(c) requires the judicial
official to consider the factors listed but
does not require him to keep a written record
of such consideration. We are, therefore, not
willing to conclude, as the defendant
contends, that the absence of such findings in
the record indicates noncompliance with the
statute. . . . Neither the transcript from
[the pretrial] hearing, nor anything else in
the record, indicates that the judge
did not
consider the appropriate factors in either the
initial establishment of the bond, in the
later modification, or in subsequent refusals
to modify. Absent some evidence to the
contrary from the defendant, we must conclude
that the law relating to pretrial release was
properly applied to him.
108 N.C. App. at 664-65, 424 S.E.2d at 682.
A similar analysis applies to the case at bar. While the
judge is permitted to make certain determinations under the
statute, there is no requirement that there be any written record
of those determinations. Following the language of
O'Neal,
“[a]bsent some evidence to the contrary from the defendant, we must
conclude that the law relating to pretrial release was properly
applied to him.”
Id. at 665, 424 S.E.2d at 682. Accordingly, this
argument is without merit.
III.
[7]Defendant's next argument is that the trial court erred in
denying his motion for a mistrial after discovering that the juryhad returned a verdict on a verdict sheet that was captioned in the
name of a different defendant. He concedes that “[he] has no case
law to present the Court in support of this assignment,” but
nevertheless “contends that State and Federal Due Process
protections and concepts of Fundamental Fairness dictate that a man
should not be sentenced to prison by a judgment that is based upon
a verdict sheet that does not even have the defendant's name on
it.”
We review denials of motions for mistrial under an abuse of
discretion standard.
See State v. Dial, 122 N.C. App. 298, 308,
470 S.E.2d 84, 90 (1996). “An abuse of discretion occurs only upon
a showing that the judge's ruling was so arbitrary that it could
not have been the result of a reasoned decision.”
Id. at 308, 470
S.E.2d at 91 (citation omitted).
We begin by reviewing the action taken by the trial court.
Upon discovering the error in the verdict sheet, the trial court
stated the following:
Let me put this in the record. It has come to
my attention that . . . [t]he verdict sheet in
the case of State of North Carolina versus Jan
C. Gilbert was incorrectly prepared and shows
the name of the defendant being Russell Edward
Manning. The Court did not catch the error
prior to submitting the verdict sheet to the
jury; that the verdict sheet was prepared by
the court reporter from her computer which
obviously had the wrong defendant's name
contained thereon. This is a typographical
error as far as the Court is concerned, not
detected by the clerk of court while she
polled the jury and only after the sentence
was invoked and the jury left the courtroom,
did it come to the attention of the presiding
judge of the name of the defendant on the
verdict sheet.When the trial court inquired of the parties, “[b]efore sending the
verdict sheet to the jury to allow them to begin their
deliberations, are there any requests, corrections or additions to
the charge[?],” no objections were tendered; in fact, no one
noticed the discrepancy until after the jury had been released.
Absent such a timely objection to the error,
see Tin Originals,
Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 667, 391 S.E.2d
831, 833 (1990), our review is limited to plain error.
Although we agree with defendant that there is no case law on
point with regard to this issue, we are not without guidance in our
analysis. First, N.C. Gen. Stat. § 15A-1237(a), (b) (1999)
establishes that a verdict must be (1) in writing, (2) signed by
the foreman, (3) made a part of the record in the case, (4)
unanimous, and (5) returned by the jury in open court. We
interpreted this section in
State v. Sanderson, 62 N.C. App. 520,
302 S.E.2d 899 (1983). In
Sanderson, where the defendant
challenged the sufficiency of the verdict, we stated:
[S]ection [15A-1237] is intended to aid the
trial court in avoiding the taking of verdicts
which are flawed by the inadvertent omission
of some essential element of the verdict
itself when given orally. A verdict form is
sufficient for this purpose if it provides the
court a proper basis upon which to pass
judgment and sentence the defendant
appropriately.
Id. at 524, 302 S.E.2d at 902 (internal citations omitted).
Accordingly, in determining whether there was error in the failure
to include an essential element of a drug violation, we stated:
When the indictments, the court's charge, and
the verdict form are considered together, webelieve (1) that it can be inferred that the
jury found the [omitted] element . . . and
(2) that the form itself, although improperly
omitting that element, sufficiently identified
the offenses found by the jury to enable the
court to pass judgment on the verdict and
sentence defendant appropriately.
Id.
Second, in
State v. McCoy, 105 N.C. App. 686, 414 S.E.2d 392
(1992), this Court found no prejudicial error when the jury sheet
called upon the jury to determine whether the defendant was guilty
of trafficking in 28 to 400 grams of cocaine, when the defendant
was actually charged with trafficking a 28- to 200-gram quantity.
We held that because “the record shows this discrepancy was merely
a clerical error,” the error “had no resulting prejudice since the
evidence before the jury clearly indicated defendant possessed and
transported 38 grams of cocaine.”
Id. at 691, 414 S.E.2d at 395.
Finally, a brief survey of other jurisdictions shows that
unless the error is fundamental,
see Pittman v. State, 621 So. 2d
351 (Ala. Crim. App. 1992) (holding that verdict form submitting a
crime of “intent to commit murder” as opposed to “attempted murder”
was insufficient to bestow upon the trial court jurisdiction to
pronounce judgment);
Com. v. DeHart, 650 A.2d 38 (Pa. 1994)
(holding that language requiring the jury to weigh “one aggravating
circumstance” against “any mitigating circumstance” instead of
“mitigating circumstances” may have led to an “improper weighing
process” and thus remanding for new sentencing), errors will not be
considered prejudicial,
see Lyons v. State, 690 So. 2d 695 (Fla.
Dist. Ct. App. 1997) (finding no prejudicial error in verdict formthat listed “Conspiracy to Commit Robbery” instead of “con
spiracy
to commit armed robbery or robbery with a dangerous weapon” because
error was merely “a typographical oversight” and jury was properly
instructed);
Broadus v. State, 487 N.E.2d 1298 (Ind. 1986) (holding
that error in indicating burglary instead of robbery on verdict
sheet was harmless where jury was well-acquainted with crime
charged, instructions repeatedly referred to robbery, and jury
polled after verdict);
Lindsey Masonry Co. v. Jenkins & Assoc., 897
S.W.2d 6 (Mo. Ct. App. 1995) (finding no error when typographical
error on one of three verdict sheets inverted the parties to read,
“On the claim of defendant Jenkins and Associates[,] Inc. against
plaintiff Lindsey Masonry Company, Inc.,” instead of “On the claim
of [p]laintiff Lindsey Masonry[,] Inc. against defendant Jenkins &
Associates, Inc.”).
In the case at bar, the verdict sheet lists the proper file
number for the case, and the proper charges listed are consistent
with the evidence presented at trial and with the court's
instructions. The transcript and exhibits are replete with
references to defendant by name, Jan C. Gilbert. After the verdict
was returned, the jury was polled, and each juror affirmed his or
her vote that defendant was guilty. We do not perceive that the
error in the verdict form resulted in any prejudice to defendant.
This assignment of error is overruled.
IV.
[8]Finally, defendant contends the trial court erred in
denying defendant's motion for a mistrial when a juror raiseddoubts about the accuracy of the verdict. After the jury returned
its verdict and defendant was sentenced, the trial court realized
the error in the verdict sheet. To rectify the discrepancy, the
trial court reconvened the jury the next morning and explained the
error on the verdict sheet. The trial court then directed the
foreman, “if [he] deem[ed] appropriate,” to conform the amended
verdict sheet to the original verdict sheet. The court had the
amended verdict sheet passed to the other jurors. We commend the
trial judge for his diligence in addressing the error in the
verdict form. Nevertheless, as if to prove Murphy's Law, one juror
stated while the corrected form was being circulated: “I find
myself having reasonable doubt about the verdict we passed. Is it
too late to say that since we're reviewing this now?” The trial
court said, “Yes, ma'am,” then noted the juror's concerns for the
record. Defendant renewed his motion for a mistrial, which again
was denied.
It has long been the law of this state that a juror's post-
conviction doubts about a verdict are insufficient to impeach a
defendant's verdict.
See, e.g.,
State v. Black, 328 N.C. 191, 400
S.E.2d 398 (1991). When the jury was polled upon the original
return of the verdict, all jurors assented the guilty verdict
against defendant.
The purpose of polling the jury is to
ensure that the jurors unanimously agree with
and consent to the verdict at the time it is
rendered. If the jury is unanimous at the
time the verdict is returned, the fact that
some of them change their minds at any time
thereafter is of no consequence; the verdict
rendered remains valid and must be upheld.
Id. at 198, 400 S.E.2d at 402 (internal citations omitted). The
trial court could have amended the verdict without reconvening the
jury to make the verdict sheet conform to the intentions of the
jury.
See Cox v. R.R., 149 N.C. 86, 88, 62 S.E. 761, 762 (1908)
(“'From the earliest period the courts have freely exercised the
power of amending verdicts so as to correct manifest errors, both
of form and of substance, to make them conform to the intention of
the jury.'”). The trial court's scrupulousness in having the
corrected verdict form signed by the foreperson of the recalled
jury and in allowing the jurors to view the corrected form did not
change the general rule (subject to statutory exceptions) that a
juror may not impeach his or her own verdict.
See N.C. Gen. Stat.
§ 15A-1240 (1999);
State v. Carter, 55 N.C. App. 192, 284 S.E.2d
733 (1981). This assignment of error is overruled.
No error.
Judges GREENE and MCGEE concur.
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