State v. Blake

853 S.E.2d 838

STATE of North Carolina

v.Jermail BLAKE

No. COA19-1135

Court of Appeals of North Carolina.

Filed: December 31, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Alexander G. Walton, for the State.

Sarah Holladay, for defendant.

STROUD, Judge.

Defendant appeals from his conviction for voluntary manslaughter. Defendant argues there was prejudicial error in three phases of his trial: (1) structural error based upon the jury's disregard of the trial court's instructions; (2) denial of his right to be present for all stages of his trial as he was not present for post-trial motions; and (3) error in the Order denying his Motion for Appropriate Relief, by imposing a bar on future post-conviction litigation. We conclude there was structural error where a number of jurors told the presiding judge immediately after indicating their verdict was unanimous, but before judgment was entered, that they were not "sure that the defendant committed this crime but, ... ‘Someone -- that man died, so someone needs to go to prison[.]’ " Accordingly, Defendant is entitled to a new trial. We also vacate the Order denying Defendant's Motion for Appropriate Relief.

I. Factual and Procedural Background

The offense charged arose from a party on the night of 30 December 2016 at Anthony Angle's house. Three witnesses testified for the State about the events of 30 December 2016. Their accounts to the exact details were not entirely consistent and in some instances contrary to the physical evidence, but all indicated that Defendant and Altereck Shields got into a physical altercation that resulted in Mr. Shield's death.

Mr. Angle testified that Mr. Shields arrived at the party around 11:30 AM. Approximately an hour later Defendant, who is Mr. Angle's cousin, and one of Defendant's friends arrived at the party. Mr. Angle sold Defendant a gram of cocaine, and Defendant consumed half that amount. Defendant and Mr. Shields got into an argument in the kitchen "about who the -- who were the best Bloods, East Coast or West Coast, at the time." Mr. Angle stepped out of the kitchen for a minute, and when he returned, Defendant and Mr. Shields were in a scuffle and "barrel hooked up." Mr. Angle and other people at the party tried to break Defendant and Mr. Shields up but they were unsuccessful and decided to "push ‘em out the door so they don't bust holes in the wall." After the two men were outside, Mr. Angle observed Defendant and Mr. Shields fall over a small wall and continue fighting. Then Mr. Shields straddled Defendant while he was still on the ground and hit him several times with his fists. Mr. Angle saw Defendant produce a knife and stab Mr. Shields with one of his kitchen knives. Then one of the party guests said, "You done killed my cousin," and started beating Defendant; others then joined in. Mr. Angle tried to stop the crowd but could not and called 911. Mr. Shields ultimately died because of his injuries.

Defendant was indicted on one count of second degree murder and tried at the 20 May 2019 criminal session of Superior Court, Rowan County, with the Honorable Anna M. Wagoner presiding. The State presented testimony from eight witnesses; Defendant presented evidence consisting of photographs, documents, and recordings, but no witnesses testified for Defendant. The jury deliberations begin at 11:46 AM on 21 May 2019. At 12:23 PM the trial judge indicated she had received a note from the jury:

THE COURT: All right. I just have a note from the jury with some questions which I will read out loud. The first one is: May we have pictures of the back of the house; Number 2: Pictures of kitchen and dining room; and, Number 3: Is there a record of 911 call by Mr. Andrade or Andrade or whatever the [sic] call him? And if yes, can we have?

After discussing with counsel, the trial court agreed to show the jury the requested pictures, but there was no record of the 911 call to present to the jury. The court went on recess for lunch until 1:46 PM. When the jury returned to the courtroom, they were allowed to look at the pictures and asked an additional question about the ages of the Defendant and the deceased.

The jury returned to the jury room at 1:53 PM. At 4:09 PM the jury returned a unanimous verdict finding Defendant guilty of voluntary manslaughter. The trial court polled the jury, and all jurors individually indicated this was still their verdict. But after polling the jury, the trial court held an unrecorded bench conference with counsel and after coming back on the record said, "I just want to be sure because a few of the jurors were a little hesitant, unsure, if that was truly your verdict." The trial court questioned one juror individually, and she confirmed her agreement with the verdict. The trial court then thanked the jury for its service and asked the jury to step into the jury room. Between 4:19 PM and 4:28 PM, the trial court met with the jury and then met with counsel in an unrecorded conference in chambers. Immediately after the conference in chambers, Defendant's counsel made a motion to set aside the verdict "based on what Your Honor's heard. " (Emphasis added.) The motion was denied. The trial court had another unreported conference with counsel in chambers at 4:29 PM, and the proceedings resumed at 4:34 PM. The trial court then announced that the parties were discussing sentencing and decided to do the sentencing tomorrow morning "in order to give the defense an opportunity to decide what they may want to present in mitigation and anything else."

The next day, Defendant and the State appeared in court, and Defendant's counsel explained his client consented to hearing a matter in chambers:

Your Honor, I do have one matter for Your Honor to consider on the record; however, we're agreeable to do this -- my client is giving his consent to do this in chambers if Your Honor would prefer. That's actually our request.

The parties then proceeded to sentencing, and Defendant's counsel presented mitigating factors. Defendant was sentenced in the mitigated range, and he gave oral notice of appeal. Proceedings then continued on the record in the judge's chambers with the trial judge, Defendant's counsel, two assistant district attorneys, and the court reporter:

THE COURT: All right. We are having this hearing in chambers with the consent of the defendant because of the court's concern about the incredibly bad blood between these parties and the court would prefer that no one else be injured. Okay. Yes, sir, I think you had a --

MR. SEASE: Would specifically ask -- the defense would specifically ask for permission from Your Honor to renew and further enumerate on a motion to set aside the verdict at the close of all the evidence and the verdict has already been announced.

THE COURT: All right. You may renew it.

MR. SEASE: Thank you.

THE COURT: You're welcome.

MR. SEASE: At this juncture what we would consider is, although the deliberations of the jury are sacrosanct in nature, they can be delved into in a limited fashion if certain things apply and they're very, very limited. What I would propose to Your Honor in the way that this case played out is that during closing arguments, by no fault of the State whatsoever, a picture of the body of the victim was posted which led to the subsequent and understandable symp – strike that –

THE COURT: Upset.

MR. SEASE: -- sobbing and crying, and, again, understandable, why wouldn't they feel that way, but from the victim's family. It was what felt to the defense like eternity, it wasn't actually that long, but it continued on. The State stopped to try to further escort these people out so that it wouldn't distract anyone from the closing. We would contend that the jury, of course, heard it, and that based on the verdict and based on what the defense would feel – the defense would feel that that would be a realistic thing they would consider. It's an extraneous, prejudicial thing to consider for the jury, one that cannot be met by cross-examination by the defendant. It wasn't in evidence. It wasn't law. It wasn't anything but an extraneous consideration that's outside the purview of what they're allowed to consider. Further, it has come to our attention that juror No. 9 may be first cousin –

THE COURT: Who at one time was an alternate; correct?

MR. SEASE: Who at one time was an alternate and by the fact that the original juror No. 9 had a family emergency and did not come to court was placed into seat No. 9. And it has come to our attention that she may or may not but we believe that she may be first cousins with Denerio Robinson, Duck, one of the witnesses for the State. We have been able to corroborate that she lives beside of Robinsons, but to be fair it's not Denerio Robinson; it's Demeria, D-e-m-e-r-i-a, Robinson. We also have reason to believe that Denerio Robinson's dad's last name is Allen.

....

Just based on what -- the information that I've received about the case, we'd ask Your Honor to set that verdict aside[.]

The trial court denied Defendant's motions and informed counsel for both parties:

All right. Now, the court is going to put on the record as well that, after the jury announced its verdict and they were discharged, I spoke to them like I always speak to the jurors -- jury after the case was over. And several of them, say the majority, indicated to me that they did not believe any of the witnesses, that in their opinion the witnesses -- and I'm saying their because I don't know which -- I would say at least seven -- the witnesses were not believable, that they weren't sure that the defendant committed this crime but, quote, this is what I was told three or four times, "Someone -- that man died, so someone needs to go to prison," which I disclosed to the attorneys yesterday and I'm disclosing to them again today outside of the presence of the public and outside the presence of the defendant with his consent. I think that's it.

(Emphasis added.) After additional discussion...