State v. Crummy

420 S.E.2d 448, 107 N.C. App. 305, 1992 N.C. App. LEXIS 694
CourtCourt of Appeals of North Carolina
DecidedSeptember 1, 1992
DocketNo. 915SC716
StatusPublished
Cited by3 cases

This text of 420 S.E.2d 448 (State v. Crummy) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crummy, 420 S.E.2d 448, 107 N.C. App. 305, 1992 N.C. App. LEXIS 694 (N.C. Ct. App. 1992).

Opinion

WALKER, Judge.

Defendants bring forth twelve assignments of error for this Court to consider on appeal. Defendant Pierce proffers two additional objections. In light of the magnitude and complex nature of this case, we find it prudent to address each contention separately.

I

Defendants first argue the trial court erred when it excused venirepersons on the basis of ex parte communications. The trial court instructed the Jury Intake Officer and Deputy Clerk that they were to discuss with the venirepersons any problems they may have in sitting on the jury. The Jury Intake Officer and Deputy Clerk were then to use their discretion and to dismiss any prospective juror if appropriate. Subsequently, a college student, a teacher, and two other persons were excused. Although the teacher was black neither the Officer nor the Clerk could recall the race of the other venirepersons who were excused. The trial court found that neither the State nor the defendants had any vested interest in these prospective jurors.

[313]*313The court indicated to counsel that the motivation for the delegation of this responsibility was to help those experiencing hardship who had recently been added to the venire and was not to discriminate against any jurors because of their race. The court expressed concern that those persons being added to the venire would not have sufficient time to get their affairs in order, since the order under which they were subpoenaed to appear was signed only two weeks earlier. In this regard the court found that:

[IJnasmuch as the Court commutes some 65 miles away he left the Jury Intake Officer and the Clerk with the responsibility to relieve pressures created by emergencies if in the opinion of the Clerk and Intake Officer that it was an emergency or could work a hardship for these people, as they had little or no notice and the Court wanting to do the humane thing, wanting to give latitude in that respect, treating everybody alike whether they were black, yellow, red or white or whatever and that’s the way it was done and that there is no showing here that there was any knowledge or indication or desire by anyone to excuse anybody because of race or sex or whatever, but only to help those people that expressed a hardship and the Court’s desire to be humane and help them with their own problem and let them go back to their own business or whatever rather than having to sit here in this jury.

Defendants contend that these actions by the trial court deprived them of their right to be present at every stage of the proceeding as guaranteed by Article I, Section 23 of the North Carolina Constitution and the Sixth Amendment of the United States Constitution. State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990). Defendants argue they were also denied the Sixth Amendment right to the assistance of counsel in criminal prosecutions because venirepersons were questioned and excused outside the presence of counsel. Furthermore, defendants submit that the trial court’s actions violated G.S. 9-15(a) which provides in part that:

The court, and any party to an action, or his counsel of record shall be allowed, in selecting the jury, to make direct oral inquiry of any prospective juror as to the fitness and competency of any person to serve as a juror.

“Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, . . . where the appellate court can declare a [314]*314belief that it was harmless beyond a reasonable doubt.” State v. Taylor, 280 N.C. 273, 280, 185 S.E.2d 677, 682 (1972); State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987); See also G.S. 15A-1443. Thus far, whether or not such ex parte examinations of venirepersons constitutes prejudicial error has been addressed by our Supreme Court primarily in capital cases, which defendants now rely upon for support. In State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992), however, the Court addressed this question where the defendant was charged with first-degree murder and second-degree murder.

The pertinent facts of Cole indicated that a jury panel was .present for the trial of cases during the week commencing 17 July 1989. Before selecting a grand jury and a grand jury foreman, the court considered excuses from prospective jurors by questioning them individually at the bench and off the record. Neither the defendant nor his attorney was present at the bench. The record did not reflect the contents of these discussions but indicates the court said, “I’ve excused those or deferred those that seemed appropriate.” Subsequently, on Tuesday, 19 July 1989, the defendant’s case was called for trial and jury selection began. The following day a second pool of prospective jurors reported for duty and were questioned individually at the bench concerning requests to be excused or deferred from service. Neither the defendant nor his counsel was present at the bench during these conferences and the record does not reveal the substantive nature of these discussions. As a result, however, the court excused some of these prospective jurors.

The Court held it was not error for the court to excuse prospective jurors following the unrecorded bench conferences on 17 July 1989 because the defendant’s trial had not commenced at that time. “The jurors were not excused at a stage of the defendant’s trial and the defendant did not have the right to be present at the conferences." Id. at 275, 415 S.E.2d at 717. On the contrary, it was error to excuse prospective jurors pursuant to the unrecorded bench conferences on 19 July 1989 because “[t]he defendant’s trial had commenced at that time and he had an unwaivable right to be present at all stages of the trial.” Id. We note that in the instant case defendants have not established whether the prospective jurors were excused before or after the commencement of defendants’ trial. Additionally, we note that the trial court in Cole failed to disclose on the r,ecord the substance of the bench conversations regarding why the prospective jurors were excused.

[315]*315In the recent case State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992) our Supreme Court held that a new trial was warranted where numerous prospective jurors were excused after private unrecorded bench conferences in a capital case. The Court asserted that the State had failed to satisfy its burden of showing that the exclusion of these defendants from the private conversations was “harmless beyond a reasonable doubt.” Without determining the applicability of this burden of proof in the case before us, we conclude that Johnston is not dispositive.

In rendering its decision, the Johnston Court noted that the record was devoid of evidence as to why the prospective jurors were excused. The Court also stated that it was unable to ascertain whether the errors were harmless beyond a reasonable doubt because the record failed to reveal the substantive nature of these conversations. On the contrary, in the instant case the Jury Intake Officer and the Clerk stated that the reasons for excusing venirepersons were hardship or health, and the court reconstructed these events, placed them on the record, and stated its approval.

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Cite This Page — Counsel Stack

Bluebook (online)
420 S.E.2d 448, 107 N.C. App. 305, 1992 N.C. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crummy-ncctapp-1992.