State v. Campbell

866 S.E.2d 325

STATE of North Carolina

v.Allen Anthony CAMPBELL, Defendant.

No. COA20-646

Court of Appeals of North Carolina.

Filed October 19, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Thomas J. Campbell, for the State.

Anne Bleyman, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Allen Anthony Campbell ("Defendant") appeals from a judgment entered upon jury verdicts finding him guilty of various traffic offenses. We agree with both Defendant and the State that the trial court's comments during jury selection deprived Defendant of a fair and impartial trial. Defendant is entitled to a new trial.

I. Background

¶ 2 On 22 July 2019, in connection with events occurring on 7 June 2019, Defendant was indicted with driving while license revoked, failure to heed light or siren, speeding, reckless driving to endanger, fictitious altered title or registration card, failure to wear a seat belt, fleeing to elude arrest, and attaining habitual felon status. Defendant's jury trial began on 18 November 2019 in Guilford Country Superior Court. During jury selection, the prosecutor questioned the whole panel of potential jurors:

Do any of the 12 of you have such strong personal beliefs -- some folks call it "sitting in judgment" -- that they don't feel comfortable sitting and listening to the evidence in this case and rendering a verdict of either "guilty" or "not guilty" in this case? And that could be because of religious reasons or ethical reasons or moral reasons. Anybody have such strong beliefs?

In response, prospective juror Hairston raised his hand. After explaining that the jury's role is not "really judging a defendant" but, instead, "to determine whether the State has met its burden of proof[,]" the prosecutor inquired if juror Hairston would "still feel uncomfortable or ... would be unable to perform the function of a juror in this case[.]" Juror Hairston said "yes" based on "religion[.]"

¶ 3 When the prosecutor moved to challenge juror Hairston for cause, the trial court interjected:

THE COURT: Well, hold on. Let me question Mr. Hairston a little bit more. So, Mr. Hairston, you're saying that you don't think because of -- what religion are you?

JUROR HAIRSTON: Non-denominational. A Baptist.

THE COURT: So non-denomina[tional] Baptist, you don't think that you could sit here and listen to the facts of the case and decide whether you think this gentleman over here is "guilty" or "not guilty"?

JUROR HAIRSTON: No, ma'am.

THE COURT: Okay. I'm going -- we're going to excuse him for cause, but let me just say this, and especially to African Americans: Everyday we are in the newspaper stating we don't get fairness in the judicial system. Every single day. But none of us -- most African Americans do not want to serve on a jury. And 90 percent of the time, it's an African American defendant. So we walk off these juries and we leave open the opportunity for -- for juries to exist with no African American sitting on them, to give an African American defendant a fair trial. So we cannot keep complaining if we're going to be part of the problem. Now I grew up Baptist, too. And there's nothing about a Baptist background that says we can't listen to the evidence and decide whether this gentleman, sitting over at this table, was treated the way he was supposed to be treated and was given -- was charged the way he was supposed to be charged. But if your -- your non-denomina[tional] Baptist tells you you can't do that, you are now excused.

The jury was impaneled, and the trial proceeded.

¶ 4 After presentation of the evidence, the trial court dismissed the fictious altered title or registration card charge. On 21 November 2019, the jury returned verdicts finding Defendant not guilty of failure to wear a seat belt, and guilty of the remaining charges. Defendant pleaded guilty to attaining habitual felon status. The trial court arrested the convictions for driving while license revoked and reckless driving, and sentenced Defendant to 86 to 116 months imprisonment. Defendant appeals.

II. Trial Court's Statements

¶ 5 Defendant argues he "was denied a fair trial in an atmosphere of judicial calm before an impartial judge and a jury with free will in violation of his rights." (Capitalization altered.) Specifically, Defendant asserts his "due process rights to a fair trial were violated" because "he was tried by a judge with particular views on religion that intimidated the jurors from exercising their own beliefs" and "[t]he judge also gratuitously interjected race into the trial." We agree.

A. Preservation

¶ 6 Defendant acknowledges that he did not object to the trial court's statements during jury selection. See N.C. R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."). Defendant asserts his argument is preserved as a matter of law because the trial court violated North Carolina General Statute § 15-1222, which prohibits a trial judge from expressing "any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2019) ; see also State v. Young , 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) ("A defendant's failure to object to alleged expressions of opinion by the trial court in violation [ N.C. Gen. Stat. § 15A-1222 and N.C. Gen. Stat. § 15A-1232 ] does not preclude his raising the issue on appeal."). Alternatively, in the event this Court deems Defendant's argument was not preserved as a matter of law, Defendant asks this Court to invoke Rule 2 "to suspend the Rules and review the claim of the lack of an atmosphere of judicial calm to prevent the manifest injustice of allowing [Defendant] to be convicted in violation of his rights to a trial before an impartial judge and an unprejudiced jury."

¶ 7 Although the trial court's statements could be construed as opinions on the role African Americans play in the justice system or the teachings of a "Baptist background[,]" the opinions did not go to "fact[s] to be decided by the jury." N.C. Gen. Stat. § 15A-1222. As a result, a remaining vehicle for this Court to review Defendant's unpreserved argument is Appellate Rule 2 :

To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.

N.C. R. App. P. 2. " Rule 2 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. Campbell , 369 N.C. 599, 603, 799 S.E.2d 600, 602 (2017) (emphasis in original) (citation omitted). Here, noting that "Defendant has sufficiently shown he is entitled to a new trial[,]" the State concedes "that this is one of the narrow circumstances in which it is appropriate for this Court to invoke Rule 2." We agree that this case presents an exceptional circumstance justifying the use of Rule 2. See id. As a result, in the exercise of our discretion, we suspend Rule 10(a)(1) ’s preservation requirements under Rule 2 and review the merits of Defendant's argument. N.C. R. App. P. 2.

B. Analysis

¶ 8 Defendant argues he is entitled to a new trial because the trial court's statements "intimidated the jurors from exercising their beliefs, free will, or judgment throughout the remainder of jury selection and the trial" and "also surprisingly interjected race into this matter."¹ The State concedes that the trial court's statements constitute structural error and Defendant is entitled to a new trial.

Structural error is a rare form of constitutional error resulting from structural defects in the constitution of the trial mechanism which are so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.

State v. Garcia , 358 N.C. 382, 409, 597 S.E.2d 724, 744 (2004) (internal citations and quotation marks omitted). Structural "error[ ] is reversible per se." Id. The United States Supreme Court has identified six instances of structural error; this case implicates an instance of "a biased trial court judge[.]" State v. Polke , 361 N.C. 65, 73, 638 S.E.2d 189, 194 (2006) (citation omitted); see also State v. Frink , 158 N.C. App. 581, 587, 582 S.E.2d 617, 620 (2003) ("Structural error may arise by the absence of an impartial judge." (citation omitted)). A biased trial court judge is a structural error requiring a new trial because it is a "well-recognized rule that every person charged with a crime has a right to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Cousin , 292 N.C. 461, 462, 233 S.E.2d 554, 556 (1977) (citation omitted).

¶ 9 The trial court's open court comments encouraging juror participation were specifically directed at African Americans in the venire. These comments appear to reflect the trial court's desire that Defendant—who is African American—have a fair trial by virtue of a representative jury. But "the probable effect or influence upon the jury, and not the motive of the judge, determines whether the party whose right to a fair trial has been impaired is entitled to a new trial." State v. Bryant , 189 N.C. 112, 114, 126 S.E. 107, 108 (1925). Our Supreme Court has cautioned that

[m]any decisions have warned that remarks made before prospective jurors must be engaged in with the greatest of care and that the judge must be careful not to make any statement or

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