State v. Thomas

748 S.E.2d 620, 230 N.C. App. 127, 2013 WL 5621852, 2013 N.C. App. LEXIS 1081
Court of Appeals of North Carolina·Decided October 15, 2013·No. No. COA13-175·Published·Cited by 2 cases

Opinion

McGEE, Judge.

Danny Lamont Thomas (Defendant) was convicted of multiple criminal charges, including four counts of first-degree murder, on 5 May [128]*1282011. The basic issue argued in Defendant’s appeal involves a juror who sat on the panel that convicted Defendant.

Jury voir dire was conducted, and the jury was impaneled on 20 April 2011. Heather Hinson (Hinson) was juror number eight. On the third day of the evidentiary portion of the trial, during a break in the testimony of the State’s ninth witness, Centia Wilson (Wilson), Hinson informed a court official that she knew Wilson from high school. Hinson had not recognized Wilson’s name, partly because it had changed since high school. The trial court informed Defendant and the State, and Hinson was called for questioning outside the presence of the other jurors.

The trial court asked Hinson a number of questions concerning the nature of her relationship with Wilson. Hinson testified that Wilson was a high school acquaintance, but they were not true friends in high school, and had not kept in touch after graduation from high school in 1993. Hinson testified she could remain fair and impartial, and that her past acquaintance with Wilson would not affect her ability to serve as a juror. The trial court then asked both the Assistant District Attorney and Defendant’s counsel if they had any questions for Hinson. Both the State and Defendant declined to question Hinson further, but Defendant moved to excuse Hinson for cause or, failing that, to be allowed to use a remaining peremptory challenge to remove Hinson from the jury. The trial court denied Defendant’s motions and the trial continued with Hinson on the jury. Defendant was convicted on all charges. Defendant appeals.

I.

The relevant issue on appeal is whether the trial court erred in refusing to allow Defendant to use a remaining peremptory challenge to remove Hinson from the jury. We are compelled to hold that there was error.

H.

A.

The outcome of this appeal is controlled by State v. Holden, 346 N.C. 404, 488 S.E.2d 514 (1997). la Holden,

[a]fter the close of all the evidence, the prosecutor informed the court that he had received information concerning [a juror]. The prosecutor advised the court that he had learned that [the juror] had in the last few years presented an argument against the death penalty in which she had asserted that no person had the right to take the life [129]*129of another person, that too many black defendants were receiving the death penalty, and that something should be done about this. The prosecutor told the court that his source was “an officer of the court.”

Holden, 346 N.C. at 428, 488 S.E.2d at 527. The trial court reopened voir dire, and the juror was questioned by the trial court, the prosecutor, and defense counsel. Id. Following this voir dire, the prosecutor asked the trial court to remove the juror for cause. The trial court declined, so the prosecutor asked to use a remaining peremptory challenge to remove the juror, even though all evidence had already been presented. The trial court allowed the prosecutor to use a peremptory challenge to remove the juror. Id. The defendant argued on appeal that the trial court abused its discretion by reopening voir dire after the close of all the evidence based only on information obtained from an unnamed “officer of the court.” Id. The defendant further argued the trial court erred “by permitting the State to exercise a peremptory challenge to excuse a juror after the jury was impaneled.” Id. at 428, 488 S.E.2d at 526-27.

Our Supreme Court acknowledged that the relevant statute did not address reopening questioning of a juror after the jury had been impaneled, stating:

While not addressed by [the relevant] statute, [N.C. Gen. Stat. § 15A-1214(g)], this Court has held that the trial court may reopen the examination of a juror after the jury is impaneled and that this decision is within the sound discretion of the trial court. State v. McLamb, 313 N.C. 572, 575-76, 330 S.E.2d 476, 479 (1985); State v. Kirkman, 293 N.C. 447, 452-54, 238 S.E.2d 456, 459-60 (1977).

Holden, 346 N.C. at 429, 488 S.E.2d at 527. N.C. Gen. Stat. § 15A-1214(g) states:

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:
(1) The judge may examine, or permit counsel to examine, the juror to determine whether there is a basis for challenge for cause.
(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.
[130]*130(3) If the judge determines there is no basis for challenge for cause, any party who has not exhausted his peremptory challenges may challenge the juror.
Any replacement juror called is subject to examination, challenge for cause, and peremptory challenge as any other unaccepted juror.

N.C. Gen. Stat. § 15A-1214(g) (2011). Having held that existing law allowed the trial court discretion to reopen voir dire for a juror after the jury was impaneled, our Supreme Court in Holden then simply adopted the statutory standard for challenging a juror after the juror had been accepted, but before the full jury had been impaneled, as codified in N.C.G.S. § 15A-1214(g). See Holden, 346 N.C. at 429, 488 S.E.2d at 527.

Our Supreme Court cited an earlier opinion which interpreted N.C.G.S. § 15A-1214(g), in the pre-impaneling context, for the proposition that “ ‘[o]nce the trial court reopens the examination of a juror, each party has the absolute right to exercise any remaining peremptory challenges to excuse such a juror.’ ” Holden, 346 N.C. at 429, 488 S.E.2d at 527 (citing State v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291, 297 (1996)). In Holden, our Supreme Court held that this absolute right to use a remaining peremptory challenge to remove a juror applied even after the jury had been impaneled (or, on the facts of Holden, even after the evidentiary portion of the trial had been concluded), so long as the trial court had not abused its discretion in reopening the examination of the juror. Id.

B.

Allowing, as an absolute right, the removal of a juror with a peremptory challenge before the jury has been impaneled serves legitimate goals and results in limited disruption in the trial process. However, serious questions arise when this “right” is removed from the context in which it was established in N.C.G.S. § 15A-1214(g), and applied after the jury has been impaneled.

Possible troubling scenarios include: (1) near the end of a trial the defense believes is going against the defendant, a concern is raised about the conduct of multiple jurors. The trial court allows voir dire

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State v. Thomas, 748 S.E.2d 620, 230 N.C. App. 127, 2013 WL 5621852, 2013 N.C. App. LEXIS 1081 (N.C. Ct. App. 2013).

748 S.E.2d 620 (State v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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