An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1354


Filed: 1 July 2003


         v.                        Gaston County
                                No. 00 CRS 51907-09
                                    00 CRS 51911-12
                                    02 CRS 55780

    Appeal by defendant from judgments entered 17 May 2002 by Judge Timothy S. Kincaid in Superior Court, Gaston County. Heard in the Court of Appeals 30 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Richard Votta, for the State.

    Richard G. Roose for defendant-appellant.

    WYNN, Judge.

    By this appeal, defendant, Jeffery Montagu Lowe, contends the trial court erred in declaring a mistrial and impaneling a new jury when a juror became ill during an overnight recess. We conclude the trial court's findings of fact supported its mistrial declaration.
    The facts tend to show that the trial court took an overnight recess after the jury was impaneled and opening arguments were made. At the reconvening of court the next morning, the court noted for the record that juror number ten had been hospitalized at 2:00 a.m. that morning with reported food poisoning. The court asked for the parties' input as to how to proceed. The prosecutorasked the court to declare a mistrial. The defendant asked the court to delay the trial pending receipt of further information from the juror. Without making any additional statements, the court directed the clerk to make the following entry:    
        Let the record show counsel and the Defendant are present. Further let the record show that the jury was duly impaneled yesterday afternoon. Further let the record show that the eleven jurors have shown up this morning; that the jury coordinator was informed that juror number ten, Donna Earl, was hospitalized reportedly with food poisoning at about 2:00 A.M. this date. Further let the record show it does not appear that she will be present this day. The Court therefore concludes as a matter of law that there is grounds for declaring this matter to be mistried and that this trial may not proceed in conformity with law. It is therefore ordered that this matter be declared mistried and that these jurors are being released and they may return to the jury assembly room for trial in another case, and we will summon a new jury panel.

The court then proceeded to select a new jury; and subsequently, the defendant was found guilty of discharging a firearm into occupied property, assault with a deadly weapon inflicting serious injury, three counts of assault with a deadly weapon, and possession of a firearm by a felon.
    A mistrial may be declared by the trial judge, upon motion of a party or his own motion, “if: (1) [i]t is impossible for the trial to proceed in conformity with law; or (2) [i]t appears there is no reasonable probability of the jury's agreement upon a verdict.” N.C. Gen. Stat. § 15A-1063 (2001). “Before granting a mistrial, the judge must make finding of facts with respect to the grounds for the mistrial and insert the findings in the record ofthe case.” N.C. Gen. Stat. § 15A-1064. Findings of fact are required to ensure that the declaration of a mistrial is based on real necessity. State v. Jones, 67 N.C. App. 377, 382, 313 S.E.2d 808, 812 (1984). The ultimate decision to grant a mistrial is within the discretion of the trial judge, whose decision will not be disturbed unless it is “'manifestly unsupported by reason,'” or is “'so arbitrary that it could not have been the result of a reasoned decision.'” State v. Shoff, 128 N.C. App. 432, 434, 496 S.E.2d 590, 592, cert. denied, 348 N.C. 289, 501 S.E.2d 923 (1998)(quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) and State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)). We conclude the court adequately complied with the requirements of N.C. Gen. Stat. § 15A-1064 by incorporating its findings of facts into the trial transcript.
    Likewise, we find the court did not abuse its discretion. The Official Commentary to N.C. Gen. Stat. § 15A-1063(1) cites the death or disablement of a juror during the course of trial and the absence of an alternate or replacement juror as examples of a situation in which it is impossible for a trial to proceed in conformity with law. The record in this case shows that only twelve jurors were seated for the trial at the time the juror became ill. Consequently, when the seated juror became ill and unable to attend the trial that day, it became impossible for the trial to proceed in conformity with a criminal defendant's right to trial by a jury of twelve. See N.C. Gen. Stat. § 15A-1201.
    Moreover, we are unable to find any prejudice resulting to thedefendant as a result of the court's granting of the mistrial. At the time the court declared the mistrial, no evidence had been received. During selection of the jury which ultimately returned the verdicts, the defendant only exercised three of his six statutory peremptory challenges. Prejudice in jury selection may not be claimed when the defendant fails to exhaust his peremptory challenges. State v. Avery, 315 N.C. 1, 21, 337 S.E.2d 786, 797 (1985).
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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