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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
STATE OF NORTH CAROLINA
No. 04 CRS 72874
CHRISTOPHER FIELDS 05 CRS 23217
Appeal by defendant from judgment entered 10 August 2006 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 18 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant.
On 17 May 2004, an indictment was handed down charging
Christopher Fields (Defendant) with trafficking by possession of
heroin, in violation of N.C. Gen. Stat. § 90-95(h)(4). On 7
November 2005, a second indictment charged Defendant with felony
conspiracy to traffic in 28 or more grams of heroin. On 10 August
2006, a jury found Defendant guilty of both charges. The trial
court entered judgment against Defendant on 10 August 2006,
sentencing him to 225 to 279 months incarceration. From this
judgment, Defendant appeals. For the reasons that follow, we find
that Defendant's trial was free from error. The relevant evidence is summarized as follows: On 19 March
2004, Defendant and Kevin Williams (Williams) had returned from New
York to the residence of Angelica Barrino-Ezekiel (Barrino-
Ezekiel), located in High Point, North Carolina. Rodney Hines
(Hines) also came to Barrino-Ezekiel's apartment the same day to
receive heroin from Defendant to sell.
Later that evening, officers of the High Point Police
Department, including Detective Marc Kun (Detective Kun), executed
a search warrant on Barrino-Ezekiel's residence. Inside, the
officers found Defendant, Williams and Hines in the living room and
hallway of the apartment, and Barrino-Ezekiel in the bedroom. A
search of the apartment with a K-9 unit revealed approximately
sixty grams of heroin in the kitchen and living room. Police also
found a handgun wrapped in a T-shirt on the couch. All four people
were arrested and charged with trafficking heroin.
Prior to the trial, Hines, Williams and Barrino-Ezekiel
entered into plea agreements. On 8 September 2005, Hines and
Williams pled guilty to trafficking heroin, and on 1 November 2005,
Barrino-Ezekiel pled guilty to maintaining a dwelling for a
At trial, Hines and Williams testified that they and Defendant
sold heroin, which was transported by Defendant from New York to
High Point; that Defendant provided, bagged and packaged the heroin
into bindles and bundles, for them to sell; and that Defendant
was in charge of the heroin enterprise.
I: Admissibility of Character Evidence
In his first argument, Defendant contends that the trial court
erred by admitting the testimony of four witnesses regarding
Defendant's character and reputation as a drug dealer. We
N.C. Gen. Stat. § 8C-1, Rule 404(a) (2005), provides that
[e]vidence of a person's character or a trait of his character is
not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion[.] However, N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2005) provides that:
Evidence of other crimes, wrongs, or acts is .
. . admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.
Our courts have characterized Rule 404(b) as a general rule of
inclusion of relevant evidence of other crimes, wrongs or acts by
a defendant[.] State v. Coffey
, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990). One exception requires the exclusion of this
evidence if its only probative value is to show that the defendant
has the propensity or disposition to commit an offense of the
nature of the crime charged. Id.
In light of the perils inherent in introducing prior crimes[,
wrongs, or acts] under Rule 404(b), several constraints have been
placed on the admission of such evidence. State v. Carpenter
N.C. 382, 388, 646 S.E.2d 105, 110 (2007). First, evidence of
other crimes, wrongs, or acts must be relevant to the currently
alleged crime. N.C.G.S. § 8C-1, Rule 401 (2005)[.] Id.
Evidence is relevant if it has any logical tendency, however
slight, to prove a fact in issue. State v. Smith
, 357 N.C. 604,
613, 588 S.E.2d 453, 460 (2003), cert. denied
, 542 U.S. 941, 159 L.
Ed. 2d 819 (2004).
'In criminal cases, every circumstance that is
calculated to throw any light upon the supposed crime is
admissible. The weight of such evidence is for the jury.' Id.
613-14, 588 S.E.2d at 460 (quoting State v. Lytch
, 142 N.C. App.
576, 580, 544 S.E.2d 570, 573 (2001)) (internal quotation marks
omitted). Second, [t]he use of evidence under Rule 404(b) is
guided by t[he] constraints [of] 'similarity and temporal
proximity.' State v. Bidgood
, 144 N.C. App. 267, 271, 550 S.E.2d
198, 201 (2001) (quoting State v. Barnett
, 141 N.C. App. 378, 389-
90, 540 S.E.2d 423, 431 (2000)). Third, [o]nce the trial court
determines evidence is properly admissible under Rule 404(b), it
must still determine if the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. N.C.
Gen. Stat. § 8C-1, Rule 403 [(2005).] Bidgood
, 144 N.C. App. at
271, 550 S.E.2d at 201.
In the instant case, Defendant specifically assigns error to
the following testimony of Hines, Williams, Detective Kun and
Barrino-Ezekiel stating that the testimony describes Defendant's
character and general reputation as a drug dealer in violation of
Rule 404(a), rather than crimes, wrongs, or acts, admissible
under Rule 404(b). We find Defendant's argument unpersuasive.
At trial, Hines testified as follows:
Q: During March of 2004, who were you
getting your heroin from to sell [at the
High Point location]?
Court: Overruled. You may answer.
Q: And what would you do with that heroin?
A: Sell it.
Q: How was it packaged, or how would you
A: Packaged in bundles.
Q: Who did that?
A: He bagged it up for me.
Q: Who did?
Q: Did you see him do that?
A: Yes, sir.
Q: And describe what he did.
A: He'd mix it up. Take it, mix it up with
some cut, put it in a blender and mix it
up, and bag it up in little bags.
Williams also testified at trial about the deal he made with
Defendant in exchange for Defendant's care of his family:
Q: . . . [Y]ou told him that you were
responsible for the sale of the heroin,
the heroin was yours?
A: Yeah, I did say that. First of all, we
had a deal, okay, me and [Defendant] and
Rodney Hines. If I took the rap, he'd
get me an attorney, take care of my
family, and got [sic] me out of here. Heleft me for dead in here. I'm the one
who sat up here and manned up to the
heroin. I'm the one who sat up here and
said yeah, it was mine's [sic], so they
could get out and take care of my family
and get me out of here. . . .
. . . .
Q: And you now know it's not just a small
amount, it's not a matter of a couple of
years, but it's a matter of 18 to 21.
A: I didn't even know what was going on.
Like I said, I just know I got charged,
okay? That's for one. Two, like I said,
I sat in here. I waited and waited and
waited, okay, like I said. Me and
[Defendant] and Rodney had a deal, okay?
I took the rap. I take the rap saying
the drugs is [sic] mine, and my family
get tooken [sic] care of, and they get me
out of here. That's it. That's all I
At another point in the trial, Williams testified that he and
Defendant traveled to New York for the purpose of bringing drugs to
High Point to sell:
Q: . . . Who came down to High Point from
New York first, you or [Defendant]? . . .
Defense: Object to relevance, your Honor.
Court: Overruled. You may answer.
Q: And what caused you to come to High
A: Selling drugs, get money.
Q: And did anyone ask you to do that?
A: Yeah. [Defendant] asked me to come down
here with him.
Q: So who were you selling heroin for?
At trial, Detective Kun testified with regard to two previous
interviews with Williams:
[Williams] said that the heroin that was found
that day was [Defendant's] and Rodney Hines'
[heroin]. . . . [Williams further] said that
he, [Defendant] and [another man] . . . drove
the Mustang to New York . . . so [Defendant]
could get some heroin to bring back to High
Point to sell. . . . Williams stated that in
November of 2003 he came to High Point at the
request of [Defendant], to sell heroin for
Williams stated [that Defendant] had Hines
working for him to sell heroin when he arrived
in High Point. [Defendant] had Hines rent a
house at [a High Point location] to sell
heroin from. He stated that [Defendant],
Hines, and [a third person] sold heroin at
[the High Point location] from November to the
time they were arrested. He also stated that
. . . Williams would sell approximately 10
bundles of heroin a day[.] . . . Williams
stated that [Defendant] kept heroin buried or
hidden in the yard[.]
Detective Kun further testified:
Q: Do you remember [Barrino-Ezekiel] saying
that the heroin in the apartment on March
19 of '04 was Rodney Hines' at that time?
Q: What, if anything, do you recall her
saying about them taking turns?
Defense: Your Honor, I'm going to object.
He's not charged with anything other
than March 19th.
Court: Overruled. The jury can consider it
in evaluating the credibility of the
witnesses. Go ahead.
A: We were asking her about whose heroin it
was, and she was talking about taking
turns with the money, and whose money itwas, and who would actually purchase the
heroin that was brought back from New
York to sell.
Q: And did I ask her in your presence where
[Defendant] was one of the ones taking
A: Yes, you did.
Q: And what did she say?
A: She said he did take turns, yes.
We find the case of State v. Love, 131 N.C. App. 350, 507
S.E.2d 577 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382 (1999),
instructive here. In Love, the trial court allowed the testimony
of a witness who had previously sold cocaine for defendant and
[had] been paid by defendant in drugs and currency. Id. at 356,
507 S.E.2d at 582. This Court stated that this testimony was not
unduly prejudicial, . . . and that it was properly admitted under
Rule 404(b) to show defendant's intent to plan and commit a
conspiracy. Id.; see also State v. Rosario, 93 N.C. App. 627,
638-39, 379 S.E.2d 434, 441, disc. review denied, 325 N.C. 275, 384
S.E.2d 527 (1989) (holding that one witness' testimony concerning
the defendant's selling and using cocaine and another witness'
testimony that he had previously sold cocaine for the defendant was
Similarly, the testimony here is not unduly prejudicial and
clearly relevant to the charges of trafficking heroin and
conspiring to traffic heroin. See N.C. Gen. Stat. § 90-95(h)(4)
(2005) and N.C. Gen. Stat. § 14-2.4(a) (2005). The transcript
reflects that the foregoing evidence was offered and admitted forthe purpose of establishing knowledge, plan, scheme, or design,
which are proper purposes under Rule 404(b).
Defendant also contends that the trial court erred by allowing
the testimony of Barrino-Ezekiel, specifically her testimony that
Defendant had been in jail since he returned to North Carolina in
June 2006. At trial, Barrino-Ezekiel stated:
Q: And since [Defendant has] been back here,
well, he's been incarcerated since he's
been here, hasn't he?
Court: I assume you're going into her
Court: All right. For that purpose, the
jury can consider it. The fact that
the defendant is in jail should not
effect your verdict in any way. Go
Q: And since he has been here in our jail
since June of this year, you've been to
see him several times, haven't you?
Barrino-Ezekiel's testimony that Defendant was incarcerated was not
admitted to prove Defendant's character and acting in conformity
therewith, as Defendant argues in his brief, but rather, the State
sought to show through Barrino-Ezekiel's jail visitations evidence
of the romantic relationship between Barrino-Ezekiel and Defendant.
This, in turn, demonstrated her motivation for silence, and her
failure to corroborate the incriminating testimony of Hines and
Williams. We conclude that the foregoing evidence _ the testimony of
Williams, Hines, Detective Kun and Barrino-Ezekiel _ was not
admitted to prove Defendant's character in order to show that he
acted in conformity therewith. The testimony had probative value
other than to show that the Defendant had the propensity or
disposition to commit the offenses of trafficking by possession and
conspiracy to traffic heroin. The testimony was relevant to the
charges of trafficking heroin and conspiracy to traffic heroin, and
sufficiently similar and temporally proximate to the crimes
charged. Moreover, the probative value of the testimony was not
substantially outweighed by the danger of unfair prejudice. We
overrule this assignment of error.
II: Motion to Dismiss
In his next argument, Defendant contends that the trial court
erred by denying Defendant's motion to dismiss for lack of
sufficient evidence to establish constructive possession and
conspiracy. We disagree.
Upon a defendant's motion to dismiss, 'the question for the
Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of the defendant's being the perpetrator
of such offense.' State v. Scott, 356 N.C. 591, 595, 573 S.E.2d
866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261
S.E.2d 114, 117 (1980)). If so, the motion is properly denied.
In reviewing challenges to the sufficiency of evidence, we
must view the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences. State
v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
[C]ontradictions and discrepancies do not warrant dismissal of the
case [but] are for the jury to resolve. Id.
Here, Defendant was charged with trafficking in a controlled
substance and felony conspiracy. See G.S. § 90-95(h)(4) and G.S.
A: Constructive Possession
To sustain a charge of trafficking in heroin by possession,
the State must present substantial evidence that the substance was
possessed, and that the substance was knowingly possessed. State
v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). 'An
accused's possession of narcotics may be actual or constructive.'
Id. (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714
(1972)). A defendant has constructive possession of contraband
'when he has both the power and the intent to control its
disposition or use.' State v. Thorpe, 326 N.C. 451, 454, 390
S.E.2d 311, 313 (1990) (quoting State v. Fuqua, 234 N.C. 168, 170,
66 S.E.2d 667, 668 (1951)). If the defendant does not have
exclusive control over the premises, constructive possession cannot
be shown without other incriminating circumstances. State v.
Forbes, 104 N.C. App. 507, 511, 410 S.E.2d 83, 86 (1991), disc.
review denied, 330 N.C. 852, 413 S.E.2d 554 (1992).
'[C]onstructive possession depends on the totality of thecircumstances in each case. No single factor controls, but
ordinarily the questions will be for the jury[.]' State v.
Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd,
331 N.C. 113, 413 S.E.2d 798 (1992) (quoting State v. James, 81
N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)).
In the instant case, since the State did not show that
Defendant had actual or exclusive possession of the drugs found in
the apartment primarily occupied by Barrino-Ezekiel, the focal
issue becomes whether the evidence established other incriminating
According to the testimony of Detective Kun, the officers
entered the apartment in High Point, and found Hines, Williams and
Defendant in the living room and hallway. Barrino-Ezekiel was
asleep in the bedroom. Detective Kun stated:
When I actually went into the house, I noticed
Kevin Williams standing directly behind the
couch as soon as you go in. And the others,
Rodney Hines and [Defendant], were down the
hallway, and they were already prone, laying
on the ground at that point. And I actually
handcuffed Mr. Williams behind the couch.
The officers searched Defendant, and Detective Kun stated, [h]e
had money on him[,] . . . about twenty-nine hundred, I believe.
Police found a gun wrapped in a white T-shirt on the couch in the
living room and three sets of keys on the kitchen table. Police
also found four cell phones in the kitchen, and . . . one [in] the
master bedroom. None of the phones were confirmed to be
registered to Defendant. In the living room, Detective Kun
discovered approximately 57 grams of heroin: In the corner of the living room was a flower
pot, a fake artificial tree. And in the
bottom of that, there was Spanish moss on the
very bottom of it where the roots were. And
when that was pulled back, I found seven
pellets of what turned out to be heroin.
Detective Kun also found approximately 2.6 grams of heroin in six
bundles in a plastic Taco Bell cup on the counter in the kitchen of
the home. The officers ultimately found approximately sixty grams
We find the case of State v. Harrington, 171 N.C. App. 17,
614 S.E.2d 337, disc. review denied, 360 N.C. 70, 623 S.E.2d 36
(2005), to be persuasive in the instant case. In Harrington:
[N]either [of the defendants] had exclusive
possession of the marijuana found in the
garage of the house. For this reason, each
argues that there was insufficient evidence
that he had dominion or control over the
marijuana. However, the State presented other
incriminating evidence that was sufficient to
allow the charge of possession for each
defendant to go to the jury. In particular,
the evidence of drug paraphernalia found in
various areas of the house where both
defendants resided, and the testimony of [one
witness] that both defendants were engaged in
the sale of marijuana and both had access to
the garage, was sufficient for the issue of
possession to survive a motion to dismiss.
Id. at 24-25, 614 S.E.2d at 345.
Here, the apartment was primarily occupied by Barrino-Ezekiel.
However, both Hines and Williams testified that the heroin found in
Barrino-Ezekiel's apartment was for sale in Defendant's heroin
enterprise. Williams specifically stated that the heroin found in
the apartment belonged to Defendant. Hines and Williams testified
that Defendant provided them with heroin, prepared and packaged byDefendant, which all three men sold. This testimony, combined with
evidence of approximately sixty grams of heroin and a handgun in
Barrino-Ezekiel's apartment, and roughly $2,900 held by Defendant
at the time of his arrest, is sufficient evidence, viewed in a
light most favorable to the State, to establish incriminating
circumstances, such that the trial court did not err by denying
Defendant's motion to dismiss. This assignment of error is
B: Conspiracy to Traffic
To sustain a charge of conspiracy to traffic in heroin, the
State must present substantial evidence of 'an agreement, express
or implied, between two or more persons to do an unlawful act or to
do a lawful act by unlawful means.' State v. Clark, 137 N.C. App.
90, 95, 527 S.E.2d 319, 322 (2000) (quoting State v. Burmeister,
131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998)). 'Direct
proof of conspiracy is rarely available, so the crime must
generally be proved by circumstantial evidence.' Clark, 137 N.C.
App. at 95, 527 S.E.2d at 322 (quoting State v. Aleem, 49 N.C. App.
359, 363, 271 S.E.2d 575, 578 (1980)). No express agreement need
be proved; proof of circumstances which point to a mutual implied
understanding to commit the unlawful act is sufficient to prove a
conspiracy. State v. Howell, 169 N.C. App. 741, 748, 611 S.E.2d
200, 205, disc. review denied, 360 N.C. 71, 622 S.E.2d 500 (2005)
(citing State v. Smith, 237 N.C. 1, 16-17, 74 S.E.2d 291, 301-02
(1953)). A conspiracy 'may be, and generally is, established by a
number of indefinite acts, each of which, standing alone, might
have little weight, but, taken collectively, they point unerringly
to the existence of a conspiracy.' Clark, 137 N.C. App. at 95,
527 S.E.2d at 322 (quoting State v. Whiteside, 204 N.C. 710, 712,
169 S.E. 711, 712 (1933)). In finding the existence of a criminal
conspiracy, jurors are allowed to make the logical inference that
'one who conspires to bring about a result intends the
accomplishment of that result, or of anything which naturally flows
from its attempted accomplishment.' State v. Valentine, 357 N.C.
512, 522, 591 S.E.2d 846, 855 (2003) (quoting State v. Small, 301
N.C. 407, 419, 272 S.E.2d 128, 136 (1980)).
In the instant case, Defendant generally argues that [t]here
was no evidence, either circumstantial or direct of an agreement
between [Defendant] and the other witnesses to traffic in heroin.
In this case, Hines testified that Defendant would supply him
with heroin to sell, packaged in bindles and bundles. Hines'
testimony was corroborated by William's testimony that Defendant
asked him to come from New York to High Point to sell drugs. When
asked about the specifics of the heroin operation, Hines stated
that we was [sic] all selling, me, [Defendant], and Mr. Williams.
. . . [Defendant] already had to go back and forth to New York[ .]
Hines said that [the heroin] was coming from New York[,]
specifically from an area in Queens, the former home of [Defendant]
and Williams. The testimony of Hines and Williams, combined withevidence of approximately sixty grams of cocaine and a handgun
found in Barrino-Ezekiel's apartment, along with evidence of $2,900
held by Defendant, was sufficient evidence from which a reasonable
juror could determine Defendant conspired to traffic heroin. See
Howell, 169 N.C. App 741, 611 S.E.2d 200.
Our careful review of the record in this case reveals evidence
of an agreement or mutual understanding between Defendant, Hines,
Williams and Barrino-Ezekiel, which encompassed both the
transportation of the heroin from New York to High Point and their
possession and sale of the heroin once it arrived. This assignment
of error is overruled.
III: Juror Dismissal
In his next argument, Defendant contends that the trial court
erred by failing to excuse two jurors. We disagree.
N.C. Gen. Stat. § 15A-1211(d) (2005) allows a judge to dismiss
a juror for cause without challenge by any party if he determines
that grounds for challenge for cause are present. N.C. Gen. Stat.
§ 15A-1212(9) (2005) sets forth reasons for which a juror may be
challenged for cause, including when a juror is unable to render
a fair and impartial verdict. We review a trial court's ruling
for abuse of discretion. State v. Lasiter
, 361 N.C. 299, 301, 643
S.E.2d 909, 911 (2007).
A trial court abuses its discretion if
its determination is 'manifestly unsupported by reason' and is 'so
arbitrary that it could not have been the result of a reasoned
at 301-02, 643 S.E.2d at 911
(quoting White v.
, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). In the instant case, Defendant failed to challenge the jurors
at trial pursuant to N.C. Gen. Stat. § 15A-1212 (2005). Defendant
argues the trial court should have excused the juror pursuant to
G.S. § 15A-1211(d). See State v. Bates
, 172 N.C. App. 27, 34, 616
S.E.2d 280, 285-86 (2005), disc. review denied
, 360 N.C. 537, 634
S.E.2d 218 (2006).
After the jury was impaneled, but before it
began hearing evidence, one juror told the court that drug dealers
had murdered his nephew, and this trial brought back memories of
the murder. The juror stated:
[A] man was killed . . . [a]nd the people that
did it, they knew that [my nephew] knew that
they did it, and [my nephew] was gonna [sic]
come to me. And that same week they got a
hold of him, and they shot [him]. And it just
kind of, you know, left a memory of it. And
it was six years ago, so I figured, you know
that everything was fine. But as we started
speaking about guns and the lifestyle, it just
. . . brought up a lot of things in my mind,
to be honest.
The court then asked the juror the following questions:
Court: [W]e just need to make sure that you
can base your verdict on the
evidence in this case.
Court: Is that something you think you can
do at this point?
Court: All right. And you believe you can
follow my instructions on the law?
Court: Okay. I'll check in with you again
at the end of the day, maybe, and
just be sure you continue to feel
comfortable with that.
The next morning, the court said:
Court: . . . [W]e do want to be sure you
can base your verdict on the
evidence, and not on something that
happened to . . . your nephew. Do
you feel like you can base your
verdict on the evidence and follow
the law, or do you have concerns
that what happened to your nephew
might substantially _
Juror: Very much so.
Court: You're very concerned about it?
Court: . . . You feel like you can be fair?
Juror: Very much so.
Court: All right. A lot of times, I think
people get in here and they realize
it's totally different, they're able
to separate things out. And you
feel like you can do that?
Juror: Yes, very much.
We must give deference to a trial court's exercise of
discretion because '[t]he trial judge is in a better position to
weigh the significance of the pertinent factors than is an
appellate tribunal.' Lasiter
, 361 N.C. at 305, 643 S.E.2d at 912
(quoting State v. Little
270 N.C. 234, 240, 154 S.E.2d 61, 66
(1967)). The court 'has the advantage of seeing and hearing
[jurors], so that he . . . can gain a 'feel' of the case which a
cold record denies to a reviewing court.' Id.
270 N.C. at 240, 154 S.E.2d at 66); see also State v. Rogers
N.C. 420, 430, 562 S.E.2d 859, 867 (2002) (stating that [a] judgewho observes the prospective juror's demeanor as he or she responds
to questions and efforts at rehabilitation is best able to
determine whether the juror should be excused for cause). Here,
nothing in the transcript indicates this decision was manifestly
unsupported by reason. Rather, the juror indicated that he could
be fair and impartial. Accordingly, the trial court did not abuse
its discretion by deciding not to dismiss the juror because of the
murder of his nephew by drug dealers. This assignment of error is
Defendant also argues that the court erred by failing to
dismiss a second juror, because the juror saw Defendant in
handcuffs. We disagree.
On the second day of trial, defense counsel reported that two
jurors witnessed Defendant enter the courtroom in handcuffs. The
bailiff confirmed the incident. The court then questioned the two
Court: I think you may have seen
[Defendant] in the back hallway over
Juror: Yes, ma'am.
Court: Can you tell me what you saw?
Juror: I just saw him in handcuffs, that's
Court: Have you shared that with any of the
Juror: No, ma'am.
Court: If you would not share that, and if
you would just put it out of your
mind. It is not to affect yourverdict or any deliberations in any
Juror: No, ma'am.
Court: Can you follow that instruction?
Juror: Yes, ma'am.
The second juror stated that she did not notice whether Defendant
was in the hallway at all, and therefore, did not notice whether he
We find the related decisions of State v. Ward
, 354 N.C. 231,
555 S.E.2d 251 (2001), and State v. Perry
, 316 N.C. 87, 108-09, 340
S.E.2d 450, 463 (1986), instructive in this case. In both cases,
our Supreme Court held that the trial court did not err by
overruling the defendants' motions for mistrial after jurors or
prospective jurors witnessed the defendant in restraints. Whether
to allow a motion for mistrial is also a decision committed to the
sound discretion of the trial court, which will not be overturned
absent an abuse of that discretion. State v. Johnson
, 341 N.C. 104,
114, 459 S.E.2d 246, 252 (1995). Here, even though one juror saw
Defendant in handcuffs, the court inquired as to whether the juror
had been prejudiced by what she observed. The court also gave her
a curative instruction. In response, the juror indicated that she
could be fair and follow the trial court's instructions. In light
of the related cases of Ward
, we hold that the
trial court did not abuse its discretion by not dismissing the
juror who witnessed defendant in handcuffs. This assignment of
error is overruled. For the foregoing reasons, we conclude that defendant received
a fair trial, free from error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
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