State v. Griffin

• Court: Court of Appeals of North Carolina
• Decided: March 5, 2025
• Docket: 24-156
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-156

Filed 5 March 2025

Mecklenburg County, Nos. 18 CRS 16909, 16911, 223051

STATE OF NORTH CAROLINA

v.

JAMAAL GRIFFIN, Defendant.

Appeal by defendant from judgments entered 18 May 2023 by Judge Patrick

Thomas Nadolski in Mecklenburg County Superior Court. Heard in the Court of

Appeals 11 June 2024.

Carolina Appeal, by Attorney Drew Nelson, for the defendant-appellant.

Attorney General Jeff Jackson, by Assistant Attorney General Caden W. Hayes, for the State.

STADING, Judge.

Jamaal Griffin (“Defendant”) appeals from final judgments entered against

him pursuant to jury verdicts finding him guilty of first-degree murder and

possession of a firearm by a felon. Defendant was also found guilty of one count of

conspiracy to commit robbery with a dangerous weapon; however, the trial court

arrested judgment on this conviction at sentencing. For the reasons below, we discern

no error. STATE V. GRIFFIN

Opinion of the Court

I. Background

This matter concerns an armed robbery resulting in the killing of Churchill

Zoker on 30 June 2018. A grand jury indicted Defendant for multiple offenses,

including first-degree murder, possession of a firearm by a felon, and conspiracy to

commit robbery with a dangerous weapon. Jury selection for Defendant’s trial

commenced on 1 May 2023. The parties agreed on twelve prospective jurors—

including Mr. Stolz, to be seated as Juror No. 7. Next, the parties began selection of

three prospective alternate jurors—Mr. Brent, Mr. Caldwell, and Mr. Spain. After

questioning, defense counsel struck Mr. Caldwell but was satisfied with the other two

alternates.

The next day, the parties reconvened to select a final alternate juror. But Mr.

Stolz’s wife had unexpectedly gone into labor, leading the trial court to excuse him

from jury service. The State argued that another prospective juror from the jury

venire1 should replace Mr. Stolz since the jury had not yet been empaneled.2

1 “Jury venire” is used synonymously with “jury pool” and “jury panel” in North Carolina. See, e.g., State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 530 (2004) (N.C. Gen. Stat. § 15A-1211 “uses the term ‘panel’ to refer to the entire jury pool or venire . . . .”). 2 Courts use both “empanel” and “impanel.” See United States v. Haymond, 588 U.S. 634, 662–

63, 139 S. Ct. 2369, 2388 (2019) (Alito, J., joined by Thomas, C.J., and Kavanaugh, J., dissenting) (“[T]here is simply no way that the federal courts could empanel enough juries to adjudicate all those proceedings, let alone try all those proceedings in accordance with the Sixth Amendment’s Confrontation Clause.”); see also Yeager v. United States, 557 U.S. 110, 118, 129 S. Ct. 2360, 2366 (2009) (citation omitted) (“Instead, a jury’s inability to reach a decision is the kind of ‘manifest necessity’ that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled.”).

-2- STATE V. GRIFFIN

According to the State, the procedure in N.C. Gen. Stat. § 15A-1214(g) (2023) was

controlling:

If at any time after a juror has been accepted by a party, and before the jury is impaneled, it is discovered that the juror has made an incorrect statement during voir dire or that some other good reason exists:

....

(2) If the judge determines there is a basis for challenge for cause, he must excuse the juror or sustain any challenge for cause that has been made.

Any replacement juror called is subject to examination, challenge for cause, and peremptory challenge as any other unaccepted juror.

Counsel for Defendant conceded the applicability of the statute but disputed

its outcome. Instead, counsel proposed that Mr. Brent, one of the prospective

alternate jurors, take Mr. Stolz’s place, and a new alternate juror should be selected

from the jury venire. Counsel for Defendant expressed concern that peremptory

challenges were exhausted for the prospective twelve jurors, but noted her client

retained an additional strike for any new prospective alternate juror.

The trial court ultimately agreed with the State’s argument, deciding that

another juror would be seated from the jury venire, and the prospective alternate

jurors would remain in place. The trial court noted Defendant’s objection.

Defendant’s counsel stated, “[w]e just really wanted to slide [Mr. Brent] over. But

I’ve read the statute. The jury isn’t impaneled. It seems like the statute is on point

-3- STATE V. GRIFFIN

in that.” Following this discussion, the clerk called Ms. Nannini as a prospective

juror to replace Mr. Stolz as prospective Juror No. 7, and both parties accepted her.

Defendant’s counsel renewed the objection:

[DEFENDANT’S ATTORNEY]: Your Honor, just to preserve for the record that defense objects to taking someone f[rom] the general pool and putting them in seat number 7, rather than placing in alternate number 1 in seat number 7, and then replacing the other people. We want to preserve that for the record. I know I have been researching. I haven’t found anything, but we think it’s necessary to preserve that because the State is supposed to pass to us a set of complete -- 12 jurors. Obviously, they passed to us last week. We selected two alternates. What happened this morning happened. And the voir dire was reopened and we had to question -- instead of the ones we have -- we have to question one that wasn’t passed to us with a complete pool, so we want to preserve that for the record.

THE COURT: All right. Your objection is noted for the record. Anything else?

[DEFENDANT’S ATTORNEY]: No, Your Honor. Thank you.

Later that day, the parties also accepted another prospective alternate juror, Mr.

Young. Thereafter, all jurors and alternate jurors were officially empaneled.

During Defendant’s case-in-chief, the trial court informed the parties that

empaneled Juror No. 1, Ms. Emeram, had a “scheduling conflict,” and expressed

“trepidation” because this juror could have pressure to reach a verdict on an improper

basis. During voir dire, all parties were aware of this possible conflict and agreed to

accept Ms. Emeram because they did not foresee the length of the trial. After

-4- STATE V. GRIFFIN

questioning Ms. Emeram, a bench conference was held, and the trial court excused

her without objection from the parties. One of the alternate jurors, Mr. Brent, was

then seated as Juror No. 1. Following deliberations, the jury found Defendant guilty

of first-degree murder, possession of a firearm by a felon, and conspiracy to commit

robbery with a dangerous weapon. Defendant gave notice of appeal in open court.

II. Jurisdiction

Jurisdiction is proper with our Court since Defendant appeals from a “final

judgment of a superior court,” and “entered a plea of not guilty to a criminal charge,

and . . . [was] found guilty of a crime.” See N.C. Gen. Stat. §§ 7A-27(b)(1) (2023) and

15A-1444(a) (2023).

III. Analysis

Defendant asserts a single issue for appeal: whether the trial court committed

error by filling Mr. Stolz’s seat with someone from the jury venire rather than one of

the prospective alternate jurors. He maintains the trial court’s decision contravenes

N.C. Gen. Stat. § 15A-1215(a) (2023) and amounts to error per se or structural error.

After careful consideration, we disagree.

“When an alleged statutory violation by the trial court is properly preserved,

either by timely objection or . . . by operation of rule of law, we review for prejudicial

error pursuant to N.C. [Gen. Stat.] § 15A-1443(a).” State v. Austin, 378 N.C. 272,

276–77, 861 S.E.2d 523, 528 (2021); e.g., State v. Jaynes, 353 N.C. 534, 544–45, 549

S.E.2d 179, 189 (2001) (“[W]hen a trial court acts contrary to statutory mandate and

-5- STATE V. GRIFFIN

the defendant is prejudiced thereby, the right to appeal the court’s action is

preserved, notwithstanding defendant’s failure to object at trial.”).3 “[I]f the

[preserved] error relates to a right not arising under the United States Constitution,

. . . review requires the defendant to bear the burden of showing prejudice.” Austin,

378 N.C. at 277, 861 S.E.2d at 528 (citations omitted and emphasis added). “[A] new

trial does not automatically follow a finding of statutory error.” State v. Garcia, 358

N.C. 382, 406, 597 S.E.2d 724, 742–43 (2004). Indeed, “[t]his Court has consistently

required that defendants claiming error in jury selection procedures show prejudice

in addition to a statutory violation before they can receive a new trial.” Id. at 406,

597 S.E.2d at 743. To show prejudice, a “defendant must prove that a reasonable

possibility exists that, had the error not been committed, a different result would

have been reached at trial.” Id. at 407, 597 S.E.2d at 743 (quoting N.C. Gen. Stat. §

15A-1443(a)).

In criminal cases, jurors are selected under N.C. Gen. Stat. § 15A-1214(a)

(2023), which provides: “The clerk, under the supervision of the presiding judge, must

call jurors from the panel by a system of random selection which precludes advance

knowledge of the identity of the next juror to be called.” The trial court may permit

the seating of one or more alternate jurors under N.C. Gen. Stat. § 15A-1215(a).

Those alternate jurors “must be sworn and seated near the jury with equal

3 Defendant properly objected on statutory grounds and later renewed this objection before

the jury was empaneled.

-6- STATE V. GRIFFIN

opportunity to see and hear the proceedings. . . .” Id. And, “[i]f at any time prior to

a verdict being rendered, any juror dies, becomes incapacitated or disqualified, or is

discharged for any other reason, an alternate juror becomes a juror, in the order in

which selected, and serves in all respects as those selected on the regular trial panel.”

Id. But if the judge determines there is a basis for challenge for cause “at any time

after a juror has been accepted by a party, and before the jury is impaneled, it is

discovered that . . . some . . . good reason exists,” “he must excuse the juror.” N.C.

Gen. Stat. § 15A-1214(g). Ultimately, “[t]he intended result of jury selection is to

empanel an impartial and unbiased jury.” Garcia, 358 N.C. at 407, 597 S.E.2d at

743. Trial judges have “broad discretion to see that a competent, fair and impartial

jury is impaneled . . . .” State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757

(1979). They also have “the power to regulate and supervise the selection of a jury so

that the defendant and the State have the benefit of trial by an impartial jury.” State

v. McLamb, 313 N.C. 572, 575, 330 S.E.2d 476, 478 (1985).

Latching onto the language of N.C. Gen. Stat. § 15A-1215(a)—“any time prior

to a verdict being rendered, any juror dies, becomes incapacitated or disqualified, or

is discharged for any other reason, an alternate juror becomes a juror”—Defendant

claims that the trial court erred in selecting someone from the jury venire to replace

Mr. Stolz, rather than seating one of the prospective alternate jurors. Defendant

claims this subsection is effective after the “initial twelve jurors have been selected.”

Stated another way, Defendant proffers that the duties of an alternate juror are

-7- STATE V. GRIFFIN

triggered before the jury is empaneled. This necessarily presents a novel argument

for our consideration: whether those prospective, yet-to-be members of the to-be-

empaneled jury who have been accepted by each party, are properly classified as

jurors or alternate jurors.

The criminal jury selection statutes do not offer a precise definition of “juror”

or “alternate juror.” See N.C. Gen. Stat. Ch. 15A, Subch. XII, Art. 72. We therefore

consider the plain meaning of “juror” or “alternate juror” in view of Article 72. State

v. Langley, 371 N.C. 389, 395, 817 S.E.2d 191, 196 (2018) (internal quotation marks

and citation omitted) (“The intent of the General Assembly may be found first from

the plain language of the statute, then from the legislative history, the spirit of the

act and what the act seeks to accomplish.”). The term “juror” “should be distinguished

from potential juror or4 veniremember.” Bryan A. Garner, Garner’s Modern English

Usage 635 (5th ed. 2022) (ellipses omitted). “The difference is that a potential juror

or veniremember hasn’t yet been selected to sit on the jury . . . a juror is someone who

has been empaneled on the jury.” Id. It follows that a plain-meaning analysis

disfavors Defendant’s urged position because an alternate juror does not become so

until empaneled. This definitional analysis accords with the language of N.C. Gen.

Stat. § 15A-1214(g).

4 “Or” is a disjunctive term, indicating application to one of the two categories listed. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012).

-8- STATE V. GRIFFIN

Defendant also disputes the applicability of N.C. Gen. Stat. § 15A-1214(g), as

he maintains that N.C. Gen. Stat. § 15A-1215(a) is controlling. Subsection 15A-

1214(g) discusses discovered concerns regarding a prospective juror amounting to a

basis for a challenge for cause after a juror has been accepted, but not yet empaneled.

See N.C. Gen. Stat. § 15A-1214(g). While the circumstances presented here are

unique, this subsection applies since it squarely addresses scenarios within the

procedural posture of the present matter and provides the proper course of action.

See id. (“any time after a juror has been accepted . . . and before the jury is impaneled”;

“[a]ny replacement juror called is subject to examination, challenge for cause, and

peremptory challenge as any other unaccepted juror.”). A trial court judge is

permitted to “excuse a juror without challenge by either party if he determines that

grounds for challenge for cause are present.” Id. § 15A-1211 (2023). The trial court

did not explicitly state he was exercising his statutory authority to challenge this

juror for cause, but the record makes that determination readily apparent. See id. §

15A-1212(9). In its effort to resolve this quandary, the trial court followed the

protocol provided in subsection 15A-1214(g)—he called a replacement juror from the

jury venire, and they were “subject to examination, challenge for cause, and

peremptory challenge as any other unaccepted juror.”

In any event, nothing about Defendant’s contention shows that he was

prejudiced against having a competent, fair, and impartial jury. See State v.

Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000) (holding that no prejudice was

-9- STATE V. GRIFFIN

shown despite the trial court’s direct deviation from statutory jury selection

procedures). In fact, in his brief, Defendant does not address prejudice, instead he

asserts that the applicable standard of review does not require a showing of prejudice.

To that end, Defendant argues that the violation was error per se or structural

error. See State v. Lawrence, 365 N.C. 506, 514, 723 S.E.2d 326, 332 (2012) (“Like

structural error, error per se is automatically deemed prejudicial and thus reversible

without a showing of prejudice.”). “In a limited class of cases, the [United States

Supreme] Court has . . . held that ‘some errors necessarily render a trial

fundamentally unfair.’” Id. at 513–14, 723 S.E.2d at 331 (quoting Rose v. Clark, 478

U.S. 570, 577, 106 S. Ct. 3101, 3106 (1986)). These types of errors are referred to as

“structural” and “require automatic reversal regardless of a showing of prejudice . . .

because they ‘affect[ ] the framework within which the trial proceeds, rather than

simply an error in the trial process itself[.]’” Id. (citations omitted).

The Supreme Court has noted six instances where structural error had been found: (1) “total deprivation of the right to counsel”; (2) “lack of an impartial trial judge”; (3) “unlawful exclusion of grand jurors of defendant’s race”; (4) violation of “the right to self- representation at trial”; (5) violation of “the right to a public trial”; and (6) “erroneous reasonable-doubt instruction to jury.”

State v. Hamer, 377 N.C. 502, 506, 858 S.E.2d 777, 781 (2021) (citation omitted).

“North Carolina courts also apply a form of structural error known as error per

se. Like structural error, error per se is automatically deemed prejudicial and thus

- 10 - STATE V. GRIFFIN

reversible without a showing of prejudice.” Lawrence, 365 N.C. at 514, 723 S.E.2d at

331–32.

Contrary to Defendant’s argument, our relevant jurisprudence—citing

statutory error—does not allow us to dispense of the prejudice prong. See, e.g.,

Garcia, 358 N.C. at 406, 597 S.E.2d at 743 (“This Court has consistently required

that defendants claiming error in jury selection procedures show prejudice in addition

to a statutory violation before they can receive a new trial.”); see also State v. Golphin,

352 N.C. 364, 412, 533 S.E.2d 168, 202 (2000) (“However, assuming, without deciding,

that the trial court violated [N.C. Gen. Stat.] § 15A-1214(a), defendants cannot show

prejudicial error.”); see also State v. Woodley, 286 N.C. App. 450, 465–66, 880 S.E.2d

740, 751 (2022) (overruling jury selection argument because defendant failed to show

prejudice).

For example, in Garcia, our Supreme Court determined that “the procedures

employed at trial violated the express requirements of N.C. [Gen. Stat.] § 15A-

1214(f).” 358 N.C. at 406, 597 S.E.2d at 742. But since the defendant “made no

attempt, either in written brief or at oral argument . . . to show how the identified

statutory violation prejudiced his case[,]” the Court overruled his argument. Id. at

407, 597 S.E.2d at 743. Similarly, in State v. Gurkin, our Court determined that “the

trial court violated the statutorily mandated procedure for jury selection.” 234 N.C.

App. 207, 214, 758 S.E.2d 450, 455 (2014). Yet since the defendant failed to show or

argue prejudice, we held “that the trial court’s deviation from the statutory procedure

- 11 - STATE V. GRIFFIN

does not warrant a new trial.” Id. at 214, 758 S.E.2d at 456. Since Defendant failed

to demonstrate prejudice, his contentions as to statutory error are overruled. See

Austin, 378 N.C. at 276–77, 861 S.E.2d at 528.

Defendant also contends that the trial court’s failure to adhere to N.C. Gen.

Stat. § 1215(a) infringed on his constitutional right to a fair and impartial jury. To

that end, Defendant argues that the trial court committed either error per se or

structural error because he was tried by an improperly constituted jury. See State v.

Poindexter, 353 N.C. 440, 444, 545 S.E.2d 414, 416 (2001) (“A trial by a jury that is

improperly constituted is so fundamentally flawed that the verdict cannot stand.”);

see also Garcia, 358 N.C. at 410, 597 S.E.2d at 745 (“Defendant has shown only a

technical violation of the state jury selection statute. Without more, this statutory

violation is insufficient to support a claim of constitutional structural error.”).

Despite Defendant’s claim, he did not raise this argument at trial, denying the court

the opportunity to pass upon the issue. See N.C. R. App. P. 10; see also, e.g., State v.

Smith, 359 N.C. 199, 208, 607 S.E.2d 607, 615 (2005) (overruling defendant’s

assignment of error because he “failed to object . . . on constitutional grounds”). In

fact, when Defendant objected at trial, he only objected on statutory grounds. As a

consequence, Defendant failed to preserve his constitutional issue for appellate

review. See State v. Fleming, 350 N.C. 109, 122, 512 S.E.2d 720, 730 (1999); see also

State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995); see also State v. Hunter,

305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (“[A] constitutional question which is

- 12 - STATE V. GRIFFIN

not raised and passed upon in the trial court will not ordinarily be considered on

appeal.”).

Defendant implores us to exercise Rule 2 of the Appellate Rules of Procedure

to review the merits of this argument. Under Rule 2, this Court may suspend the

Appellate Rules “[t]o prevent manifest injustice to a party, or to expedite decision in

the public interest.” N.C. R. App. P. 2. Case law addresses the appropriateness of

discretionarily invoking Rule 2, which “relates to the residual power of our appellate

courts to consider, in exceptional circumstances, significant issues of importance in

the public interest or to prevent injustice which appears manifest to the Court and

only in such instances.” State v. Hart, 361 N.C. 309, 315–16, 644 S.E.2d 201, 205

(2007) (citations and quotation marks omitted). “[T]he exercise of Rule 2 was

intended to be limited to occasions in which a fundamental purpose of the appellate

rules is at stake, which will necessarily be rare occasions.” Id. at 316, 644 S.E.2d at

205 (citations and internal quotation marks omitted). “This assessment—whether a

particular case is one of the rare ‘instances’ appropriate for Rule 2 review—must

necessarily be made in light of the specific circumstances of individual cases and

parties, such as whether ‘substantial rights of an appellant are affected.’” State v.

Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602 (2017) (citations omitted). Put

another way, “precedent cannot create an automatic right to review via Rule

2. Instead, whether an appellant has demonstrated that his matter is the rare case

- 13 - STATE V. GRIFFIN

meriting suspension of our appellate rules is always a discretionary determination to

be made on a case-by-case basis.” Id. at 603, 799 S.E.2d at 603.

Defendant urges that we should invoke Rule 2 because allowing his conviction

by an improperly constituted jury “would represent manifest injustice.” But nothing

in the record or Defendant’s brief demonstrates “exceptional circumstances”

sufficient to justify suspending or varying the rules. Hart, 361 N.C. at 315, 644 S.E.2d

at 205. Although a constitutional right is a substantial right, Defendant has failed

to demonstrate error relating to a substantial right. Cf. State v. Bursell, 372 N.C.

196, 201, 827 S.E.2d 302, 306 (2019) (determining that “a constitutional right, such

as the Fourth Amendment right implicated here, is a substantial right” and since “the

State concede[d] that the trial court committed error relating to a substantial right,

the Court of appeals did not abuse its discretion by invoking Rule 2.”). Rather,

Defendant is no different than other litigants who failed to preserve their

constitutional arguments and failed to specifically argue manifest injustice on appeal.

See, e.g., State v. Ricks, 378 N.C. 737, 742, 862 S.E.2d 835, 839 (2021) (upholding our

Court’s decision, denying the invocation of Rule 2, “because the defendant was ‘no

different from other defendants who failed to preserve their constitutional

arguments’ and failed to argue ‘any specific facts’ to demonstrate that invoking Rule

2 would prevent ‘manifest injustice.’”).

In our discretion, we decline to invoke Rule 2. See State v. Barnes, 278 N.C.

App. 245, 248, 862 S.E.2d 852, 854 (2021) (“An appellate court’s decision to

- 14 - STATE V. GRIFFIN

invoke Rule 2 and suspend the appellate rules is always an exercise of discretion.”).

Consequently, Defendant’s unpreserved constitutional argument is dismissed.

IV. Conclusion

For the above reasons, we overrule Defendant’s assignment of statutory error.

See N.C. Gen. Stat. §§ 15A-1211, -1212, -1214, -1215(a) and -1443(a). We hold that

Defendant failed to preserve his constitutional argument for our review under N.C.

R. App. P. 10. Since the present circumstances do not warrant invoking Rule 2, we

decline further review of the matter.

NO ERROR.

Judges STROUD and COLLINS concur.

- 15 -