State v. Evans

268 N.C.App. 552

837 S.E.2d 1

STATE of North Carolina

v.Dejaun EVANS, Defendant.

No. COA19-330

Court of Appeals of North Carolina.

Filed: December 3, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Derek L. Hunter, for the State.

Law Office of Kellie Mannette, PLLC, Chapel Hill, by Kellie Mannette, for Defendant-Appellant.

INMAN, Judge.

Dejaun Evans ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a felon. On appeal, Defendant contends that the trial court erred by: (1) failing to extend the session of court in which his trial began, resulting in entry of judgment out of session and without jurisdiction; and (2) responding to a question from the jury with a written request for clarification read to the jury by the bailiff, in violation of criminal procedure statutes. After careful review, we hold that Defendant has failed to demonstrate reversible error.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant was arrested on 29 April 2016 by the Charlotte-Mecklenburg Police Department in connection with a robbery after being identified in a photo lineup by the victim. Defendant was indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon on 9 May 2016. He was initially tried on these charges in September of 2017; that trial ended in a mistrial after the jury was unable to reach a unanimous verdict.

Defendant's second trial began on 15 August 2018 in Mecklenburg County, and included an additional charge for possession of a firearm by a felon. Special Superior Court Judge Athena Brooks presided over the trial pursuant to a commission "begin[ning] August 15, 2018 and continu[ing] Three Days or until business is completed." Judge Brooks was also assigned by separate commission to hold court in Mecklenburg County for the following week beginning 20 August 2018.¹

On 17 Friday 2018, at the conclusion of the third day of trial, Judge Brooks called a weekend recess. Following the jury's departure from the courtroom, the prosecutor asked if "it would be appropriate at this time to make findings why we're holding this session to next week[.]" Judge Brooks replied, "I have the commission next week is—I have on the road commission." The prosecutor concluded the exchange by responding "Understood. I didn't know if that had to be on the record." The trial resumed the following Monday, 20 August 2018, in a different courtroom without any further comment on the weekend recess by the court or counsel.

The State and Defendant rested their cases later that day and court recessed for the evening. The next morning, Judge Brooks instructed the jury on the pertinent law, which included the following instruction on photographic lineup evidence consistent with the Eyewitness Identification Reform Act, N.C. Gen. Stat. §§ 15A-284.50 et seq. (2019):

THE COURT: ... A photo lineup conducted by a local law enforcement agency is required to meet all of the following requirements:

....

The photograph of the suspect shall be contemporaneous and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.

Once Judge Brooks completed the instructions, the jury left the courtroom to begin its deliberations in a jury room.

Later the same day, the jury sent a written note to the trial court requesting: (1) an opportunity to review a tape recording that had been entered into evidence; (2) instruction on whether the jury was required to find Defendant guilty of all charges, or if it could find Defendant not guilty as to some; (3) instruction on "[h]ow ... ‘contemporary photo’ [is] defined by the court[;]" and (4) a copy of the jury instructions. The trial court read each request aloud, and engaged in the following discussion with the parties:

THE COURT: All right. Number 3, I don't understand. It says how is contemporary photo defined by the Court. I don't know if that's my accent that came out as contemporary or if the words got confused by the jury. I simply will need more information to answer that. Any position for the state?

[THE PROSECUTOR]: The state would agree.

THE COURT: Anything for the defendant?

[DEFENDANT'S COUNSEL]: In the Eyewitness Identification Reform Act, it says contemporary photo.

....

THE COURT: I just want to make sure it's not my accent or my using the jury instruction. I just don't know.

....

[THE PROSECUTOR]: ... I would say that based on the question, it could be what [Defendant's counsel] is saying, it could be some other things, I would simply tell the jury that we're unclear what their question is, if they could define it further and we could readdress it.

THE COURT: Just to make sure that that's what they're talking about.

[DEFENDANT'S COUNSEL]: Doesn't the jury instruction say a contemporaneous photo album?

....

THE COURT: Okay. It says contemporary.

....

How is contemporary photo defined, I'm going to ask for a little more clarification as to that. I guess basically just ask them is it contemporary photo in regard to the lineup or something else just so I'll know where the words come from. I mean, I don't know how to get to that point other than flat out asking.

[DEFENDANT'S COUNSEL]: Yeah. I think that's the only—the word contemporary, I think, in this trial has only been used at any point one time, and that was during jury instruction. No one has said contemporary other than jury instruction, and that word only appears in the eyewitness identification.

THE COURT: And if it comes back to that's what it is, I'm going to tell them to use their normal understanding of the word.

[DEFENDANT'S COUNSEL]: And could you ask them to rely on the evidence that was given at the trial?

THE COURT: Yes, sir. I always do that.

The trial court also engaged in the following discussion concerning the request for a copy of the jury instructions:

THE COURT: ... As opposed to giving them all of these [instructions], because there's a lot of notes and stuff, I would ask them to say which one specifically are you requesting so that we can sanitize it out of the law that's always in the footnotes and stuff before we give it to them. I don't have a problem giving it to them, but ... I'd rather give them one which conforms to the several that they're specifically asking about.

....

[DEFENDANT'S COUNSEL]: I would ask what—if they do want specific ones, and then ask—or do they want all of them, because they may want all of them.

THE COURT: If they want all of them, I'm giving it.

....

I'm going to ask them specifically which instruction or all.

Having resolved to ask the jury to clarify these two questions, counsel and the court turned their discussion to how to convey the request for clarification to the jurors. Judge Brooks asked the bailiff to deliver the request by reading the jury a written note, at which time the prosecutor asked for a bench conference. That conference was held off the record. The recorded proceedings resumed as follows:

THE COURT: I'm going to send this [written note² ] back. And this will be part of the file. And you could ask these two questions in regard to three and four. Don't engage in a colloquy back and forth. Just say the judge has these questions, I need an answer to these questions.

THE DEPUTY: Got you.

THE COURT: And read them only as they're asked so we have them in the record what we're reading.

....

THE DEPUTY: Right.

....

[DEFENDANT'S COUNSEL]: Your Honor should the question be presented to them in court on the record as opposed to –

THE COURT: The problem is, is if I ask them the question in court, then they may have to communicate, and we can't be a part of their understanding. That's why I was going to go ahead in the jury room, because they may have to have some conversation about which instruction, et cetera, and I don't want to be a part of that.

[DEFENDANT'S COUNSEL]: Can a deputy?

THE COURT: He is sworn since he's with the jury. If they start having colloquy, he knows to step out.

[DEFENDANT'S COUNSEL]: Well, that's my understanding.

THE COURT: And I don't want him to be standing there staring at them while they're talking. If they have a conversation, he'll step out. It may be the answer is very quick, it may be they need to communicate. If you'll just radio and remind them –

THE DEPUTY: Your Honor, the procedure is if you send a note back, we'll advise the judge wants you to answer these questions, they'll answer them and come back.

....

We would never ever listen to deliberations. Once this starts, we're out. I tell them we want to get out.

The jury returned written answers to the court's inquiry, apparently on the same note they originally sent to the court, informing Judge Brooks that the jury was requesting: (1) a definition of "contemporary photo ... [a]s to line up requirements[;]" and (2) "[i]nstructions for how a line up should be complied [sic] and the seven elements of ‘Robbery with a firearm.’ " With the clarifications in hand, and outside the presence of the jury, Judge Brooks suggested proposed responses to each request—neither counsel for the State nor Defendant objected. Judge Brooks called the jury back into the courtroom and provided the additional instructions.

The jury ultimately found Defendant guilty on all charges. The trial court consolidated Defendant's convictions for conspiracy and armed robbery and sentenced him to 70 to 96 months imprisonment. The trial court imposed a second, consecutive sentence of 12 to 24 months imprisonment for possession of a firearm by a felon. In addition, the trial court assessed court costs and restitution in the total amount of $1,738.99. Defendant entered written notice of appeal.

II. ANALYSIS

A. Standard of Review

Defendant's assertion that the trial court failed to properly extend the session in which the trial began implicates the trial court's jurisdiction, a question we review de novo . State v. Lewis , 243 N.C. App. 757, 761, 779 S.E.2d...