State v. Payne

357 S.E.2d 612, 320 N.C. 138, 1987 N.C. LEXIS 2174

• Court: Supreme Court of North Carolina
• Decided: July 7, 1987
• Docket: 66A85
• Status: Published

Opinions

MITCHELL, Justice.

The defendant contends, inter alia, that the trial court committed reversible error by communicating with the jurors out of open court and in the absence of the defendant, counsel, or a court reporter. We agree and hold that the defendant is entitled to a new trial. Because the defendant’s other assignments of error are not likely to arise upon retrial, we do not reach or discuss them.

A complete review of the evidence is not necessary to an understanding of the legal issues involved in this case. Briefly, the State’s evidence tended to show that the victim was killed with a hatchet and had been penetrated vaginally shortly before death. A man was seen running from the victim’s house into a nearby barn. Police arrived and found the defendant in the barn’s loft.

At the conclusion of jury selection, the trial court told the court reporter:

The COURT: You may show that I am giving the jury a break and that I am going to administer my admonitions to them in the jury room.

As there is no indication of record to the contrary, we must assume that the trial court caused the record to speak the complete truth in this regard, and that the trial court actually took the steps indicated.

Article I, section 23 of the Constitution of North Carolina provides: “In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony . . . .” The sixth amendment to the Constitution of the United States gives an accused the same protection. Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923 (1965). This protection guarantees an accused the right to be present in person at every stage of his trial. State v. Moore, 275 N.C. 198, 208, 166 S.E. 2d 652, 659 (1969). “[I]t is well established in this State that an accused cannot waive his right to be present at every stage of his trial upon an indictment charging him with a capital felony . . . .” Id. In capital cases such as the present case, “it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial.” State v. Jenkins, 84 N.C. 813, 814 (1881). Furthermore, the trial court’s admonitions to the jury came at a critical stage in the present case, because the defendant’s presence at that time could have had a reasonably substantial relation to his ability to present a full defense. See Snyder v. Massachusetts, 291 U.S. 97, 105-106, 78 L.Ed. 674, 678 (1934).

“Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of the particular case, . . . where the appellate court can declare a belief that it was harmless beyond a reasonable doubt.” State v. Taylor, 280 N.C. 273, 280, 185 S.E. 2d 677, 682 (1971). See N.C.G.S. § 15A-1443(b) (1983). The State cannot meet its burden of showing that the trial court’s error was harmless beyond a reasonable doubt in the present case, however, because the defendant, counsel, and the court reporter all were absent during the ensuing admonitions. See Graves v. State, 377 So. 2d 1129 (Ala. Crim. App. 1979) (new trial ordered under similar circumstances); People v. Heard, 388 Mich. 182, 200 N.W. 2d 73 (1972) (same); State v. Murphy, 17 N.D. 48, 115 N.W. 84 (1908) (same); State v. Mims, 306 Minn. 159, 235 N.W. 2d 381 (1975) (same); Graham v. State, 73 Okla. Crim. 337, 121 P. 2d 308 (1942) (same); State v. Elmore, 279 S.C. 417, 308 S.E. 2d 781 (1983) (same); State v. Wroth, 15 Wash. 621, 47 P. 106 (1896) (same). Cf., State v. Moya, 138 Ariz. 12, 672 P. 2d 964 (1983) (conviction affirmed where court reporter present in similar situation); Smith v. Commonwealth, 321 S.W. 2d 786 (Ky. 1959) (conviction affirmed where counsel for both parties were present). Therefore, the defendant is entitled to a new trial. See State v. Bailey, 307 N.C. 110, 296 S.E. 2d 287 (1982) (prejudicial error found in non-capital case where sheriff, a prosecution witness, had apparently innocent ex parte contact with jurors); State v. Mettrick, 305 N.C. 383, 289 S.E. 2d 354 (1982) (prejudice conclusively presumed in non-capital case where sheriff and deputy, key prosecution witnesses, had apparently innocent ex parte contact with jurors).

We do not doubt that the action of the trial court was taken in good faith and resulted from its concern for the efficient conduct of the trial and for the comfort of the jurors who faced a long and arduous task in this capital case. Nevertheless, we must hold that the trial court’s ex parte admonitions to the jury amounted to error requiring a new trial of the defendant for these charges.

New trial.