STATE OF NORTH CAROLINA
v. Forsyth County
No. 04 CRS 52469
DENORRIS LAVELLE SANDERS
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury for the State.
Franklin E. Wells, Jr. for defendant-appellant.
ELMORE, Judge.
Defendant was charged with robbery with a firearm, first
degree kidnapping and first degree sexual offense. The State's
evidence tended to show that C.J. was walking to her car parked in
an apartment complex parking lot when two men approached her. One
man had a gun and told her not to scream. The two men pushed her
into a nearby wooded area where one of the two men demanded oral
sex from C.J. After C.J. complied, the two men took her purse and
left the area. C.J. was later taken to the hospital and examined.
During the examination, swabs were taken of a dried substance on
C.J.'s face and chin. Although C.J. was unable to identify any
suspects, a test concluded that samples taken from C.J.'s facecontained DNA likely to be from defendant.
A jury found defendant guilty as charged. The trial court
arrested judgment on the first degree kidnapping charge and
sentenced defendant to an active term of imprisonment for robbery
with a firearm, second degree kidnapping and first degree sexual
offense. Defendant appeals.
Defendant argues that the trial court erred by failing to
declare a mistrial sua sponte after it had been alerted that jurors
had been discussing the case before the jury had been adjourned for
deliberations. We disagree.
A trial court is required to “declare a mistrial upon the
defendant's motion if there occurs during the trial an error or
legal defect in the proceedings, or conduct inside or outside the
courtroom, resulting in substantial and irreparable prejudice to
the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2005). “It is
well settled that a motion for a mistrial and the determination of
whether defendant's case has been irreparably and substantially
prejudiced is within the trial court's sound discretion.” State v.
McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-23 (1998)(quoting
State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242 (1996)), cert.
denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
Here, the trial court instructed the jury not to discuss the
case with fellow jurors and others on the first day of the trial.
Shortly after recess on the second day of testimony, defense
counsel told the trial court that he heard some of the jurors
discussing the case. The following exchange took place: THE COURT: I need to put something on the
record. During the recess, Mr. Crump, I think
you asked - - said that you heard, overheard
the jurors discussing the case?
MR. CRUMP: I did, Your Honor.
THE COURT: And I did ask, I believe, one of
the Bailiffs went back there and what is your
name?
DEPUTY: Deputy Fuell (phoenetic).
THE COURT: Fuell, and I believe you just
cautioned the Jury not to talk about the case.
DEPUTY: Yes, ma'am.
THE COURT: All right, Mr. Crump and I
discussed that, I didn't have a chance to talk
to the District Attorney about the response,
but I believe the Defendant agreed that I
should caution them, send the Bailiff back to
caution the Jury. Either party have anything
for the record regarding that?
MR. RABIL: No, Your Honor.
MR. CRUMP: I don't, Your Honor.
THE COURT: Bring them back in.
Prior to recessing at the end of day two, the trial judge
again instructed the jurors not to talk to anyone about the trial
and not to deliberate. At the start of day three, the judge stated
on the record:
THE COURT: I know the Defendant is not in
here. The Bailiff said that one of the jurors
had approached him wanting to know something
about credentials, how the State and the
Defendant could - - credentials for the nurse.
Is that their question?
BAILIFF: That was her question, she wanted to
know how are they to believe who a person is
without some sort of credentials being
presented, and I told her that was something
that - -
THE COURT: Yeah, and I think he tried to tell
her, you know, not to be speculating.
BAILIFF: Yes, ma'am.
THE COURT: I don't really know what that
question was about, but you ought to know that
the Bailiff had been approached about that.
MR. RABIL: Are we supposed to hold a badge up
or something?
THE COURT: Maybe she wanted to see a license
or something, I don't know.
MR. RABIL: She testified she's was licensed,
so.
THE COURT: Well, yeah, without objection. I
thought it was kind of unusual too, but I
wanted you both to know that she had asked the
Bailiff about it. I think from now on what the
Bailiff needs to say is once the Jury is back
in the jury room deliberating if they have a
legal question or something I guess they can
write it out. I wish they would quit talking
to people, but I appreciate you telling me
that, it's the right thing to do.
BAILIFF: Yes, ma'am.
Before the jury came in, the trial court asked the prosecutor and
defendant's attorney whether they wanted her to give any jury
instructions outside of the pattern jury instructions. Once the
jury came in, the trial court stated:
Ladies and Gentlemen, get you (sic) settled
in. I understand that someone did approach
the Bailiff in the hall with a question, at
this point we can't answer or I can't answer
questions. We need to wait until the Jury has
gone back to the jury room deliberating, and
then if the Jury has a question you can write
it out for me and I will answer your question
for the Jury as a whole, but we don't want
jurors finding out things on their own about
the case, and that would include talking to
other people outside of the courtroom, even if
you have questions. We need you to wait untilyou go back to deliberate on your verdict, and
then if you have a question I will answer it
after I talked to the attorneys about how best
to answer your questions. Does anybody have
any question about that?
Defendant did not object to the instruction nor did he request
further action by the trial court. Defendant did not move for a
mistrial or object to the trial court's method of handling the
alleged discussion of the case. Finally, prior to deliberations,
the trial court instructed the jury as follows:
You must then apply the law which I am about
to give you to those facts. It's absolutely
necessary that you understand and apply the
law as I give it to you, and not as you think
it is, or as you might like it to be. This is
important because justice requires that
everyone tried for the same crime be treated
in the same way and have the same law applied
to him.
Defendant asserts that the trial court's failure to declare a
mistrial constituted plain error. An assertion of plain error on
appeal pursuant to N.C.R. App. P. 10(c)(4) requires defendants to
cite authority defining the relevant standard and to apply that
standard to the specific facts of the case at hand. State v.
Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert.
denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). In his brief,
defendant fails to cite any authority or define the plain error
standard as required. Even if defendant had properly argued plain
error, the North Carolina Supreme Court has restricted review for
plain error to issues involving either errors in the trial judge's
instructions to the jury or rulings on the admissibility of
evidence. State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996),cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998). Since plain
error review is not available here, this assignment of error is
waived. In any event, we conclude the trial court did not abuse
its discretion in failing to declare a mistrial since the trial
court admonished the jurors and properly instructed the jury
afterwards.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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