State v. Hamer

858 S.E.2d 777

STATE of North Carolina

v.Demon HAMER

No. 279A20

Supreme Court of North Carolina.

Filed June 11, 2021

Joshua H. Stein, Attorney General, by Robert C. Ennis, Assistant Attorney General, for the State-appellee.

W. Michael Spivey, for defendant-appellant.

BERGER, Justice.

¶ 1 On November 29, 2018, defendant was found guilty in a bench trial of speeding 94 miles per hour in a 65 mile-per-hour zone. A divided panel of the Court of Appeals determined that even though the trial court failed to follow the procedure set forth in N.C.G.S. § 15A-1201 for waiver of defendant's right to a jury trial, defendant was not prejudiced by the trial court's noncompliance. Defendant appeals.

I. Factual and Procedural Background

¶ 2 On the afternoon of January 12, 2018, Trooper Tracy Hussey with the North Carolina State Highway Patrol observed a black 2017 Jeep traveling westbound on I-40 in Orange County. Using a handheld LIDAR device for speed detection, Trooper Hussey determined that the vehicle was traveling 94 miles per hour. The speed limit on this section of I-40 is 65 miles per hour.

¶ 3 Trooper Hussey relayed information about the 2017 black Jeep to Trooper Michael Dodson with the North Carolina State Highway Patrol, who then initiated a traffic stop. Trooper Dodson identified the driver of the Jeep as defendant. Trooper Dodson issued a citation to defendant for speeding 94 miles per hour in a 65 mile-per-hour zone in violation of N.C.G.S. § 20-141(j1) and for reckless driving in violation of N.C.G.S. § 20-140(b).

¶ 4 On July 26, 2018, defendant pleaded guilty in Orange County District Court to speeding 94 miles per hour in a 65 mile-per-hour zone, and he was ordered to pay a $50.00 fine and costs. The State dismissed the reckless driving charge. Defendant filed written notice of appeal for trial de novo in Orange County Superior Court. Defendant entered a plea of not guilty, and he was appointed a public defender for the traffic charges.

¶ 5 When the matter came on for trial, defense counsel announced that defendant wanted his case to be tried in a bench trial. The State consented to this request. The following exchange occurred on the record in open court:

THE COURT: Okay. So first of all, just technically, the defendant is waiving a jury trial?

[DEFENSE COUNSEL]: That's correct, Your Honor.

THE COURT: Okay. And I presume that there is a statute that allows that?

[DEFENSE COUNSEL]: That is correct, Your Honor. We have—the State and I have—the State has consented. We have—there is no disagreement about the bench trial.

THE COURT: Is it the same statute that says that Class I felonies can be waived? Is it under that same statute?

[DEFENSE COUNSEL]: If I'm not mistaken, Your Honor—

THE COURT: I know that one requires the consent of the State.

[DEFENSE COUNSEL]: I apologize.

[THE STATE]: Your Honor, I believe it's controlled by 15A-1201—

THE COURT: Okay. Which does allow waiver of trial in a misdemeanor?

[THE STATE]: That's correct, Your honor. Or I believe any charge except a capital offense.

THE COURT: Okay.

[DEFENSE COUNSEL]: It's 15A-1201 subsection (b).

THE COURT: Thank you, sir. So just as a technical matter, this is a—so that—that's accepted by the [c]ourt under that statute since the State consents.

¶ 6 After the State rested its case-in-chief, the trial court revisited defendant's waiver of jury trial in the following exchange:

THE COURT: ... I was just reading 20-1250—I'm sorry—15A-1201, we complied completely with that statute with the exception of the fact that I'm supposed to personally address the defendant and ask if he waives a jury trial and understands the consequences of that. Would you just explain that to your client.

(Pause in proceedings while [defense counsel] consulted with the defendant.)

[DEFENSE COUNSEL]: Okay, Your Honor.

THE COURT: Okay. ...

....

Mr. Hamer, I just have to comply with the law and ask you a couple of questions. That statute allows you to waive a jury trial. That's 15A-1201. Your [defense counsel] has waived it on your behalf. The State has consented to that. Do you consent to that also?

DEFENDANT: Yes, sir.

THE COURT: And you understand that the State has dismissed the careless and reckless driving. The only allegation against you is the speeding, and that is a Class III misdemeanor. It does carry a possible fine. And under certain circumstances it does carry [a] possibility of a 20-day jail sentence. Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: All right. Is that acceptable to you?

DEFENDANT: Yes, sir. I feel confident it was.

¶ 7 Defendant was subsequently found guilty of speeding 94 miles per hour in a 65 mile-per-hour zone and was ordered to pay court costs. Defendant appealed and was assigned an appellate defender. On appeal, defendant argued that the trial court erred in conducting a bench trial because defendant did not knowingly and voluntarily waive his right to a jury trial.

¶ 8 In a published opinion filed on June 16, 2020, the Court of Appeals held that despite the trial court's initial noncompliance with N.C.G.S. § 15A-1201, the trial court remedied the initial error, thus satisfying N.C.G.S. § 15A-1201, and that defendant was not prejudiced by the error. State v. Hamer , 272 N.C. App. 116, 127, 845 S.E.2d 846, 853 (2020). The dissenting judge argued that the failure of the trial court to engage in a colloquy at the outset constituted structural error, requiring a new trial. Id. at 155, 845 S.E.2d at 870 (McGee, C.J., dissenting). Defendant appeals.

II. Analysis

¶ 9 On appeal, defendant argues that he did not knowingly and voluntarily waive his constitutional right to a jury trial. We disagree.

¶ 10 In 2014, the people of North Carolina amended our State constitution to allow criminal defendants to waive their right to trial by jury in favor of a bench trial. See N.C. Const. art. I, § 24 (stating that a criminal defendant in a noncapital case "in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly"); see also N.C.G.S. § 15A-1201(a) (2019) (where a noncapital "defendant enters a plea of not guilty [in superior court, the defendant] must be tried before a jury, unless the defendant waives the right to a jury trial, as provided in subsection (b) of this section").

¶ 11 A defendant in a noncapital case may "knowingly and voluntarily, in writing or on the record in the court and with the consent of the trial judge, waive the right to trial by jury." N.C.G.S. § 15A-1201(b). The defendant must provide notice of the waiver by either (1) a stipulation signed by the State and the defendant; (2) the filing of a written notice of intent with the court; or (3) providing notice in open court by the time of the arraignment or the calling of the calendar, whichever is earlier. N.C.G.S. § 15A-1201(c). Once the defendant provides notice, the court must then:

(1) Address the defendant personally and determine whether the defendant fully understands and appreciates the consequences of the defendant's decision to waive the right to trial by jury.

(2) Determine whether the State objects to the waiver and, if so, why. Consider the arguments presented by both the State and the defendant regarding the defendant's waiver of a jury trial.

N.C.G.S. § 15A-1201(d).

¶ 12 Defendant argues that he is entitled to a new trial because the trial court committed structural error through its noncompliance with N.C.G.S. § 15A-1201(d)(1).

¶ 13 The Supreme Court of the United States has previously defined structural error as "defect[s which] affect[ ] the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In other words, structural error is a defect in which "[t]he entire conduct of the trial from beginning to end is obviously affected." Id. at 309–10, 111 S.Ct. 1246. The Supreme Court has noted six instances where structural error had been found: (1) "total deprivation of the right to counsel"; (2) "lack of an impartial trial judge"; (3) "unlawful exclusion of grand jurors of defendant's race"; (4) violation of "the right to self-representation at trial"; (5) violation of "the right to a public trial"; and (6) "erroneous reasonable-doubt instruction to jury." Johnson v. United States , 520 U.S. 461, 468–69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

¶ 14 This Court has previously applied the Supreme Court's structural error interpretation in Fulminante and the six exceptions outlined in Johnson . See State v. Anderson , 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (applying Fulminante to the defendant's argument that the prosecutor's allegedly improper questions and comments constituted structural error); State v. Garcia , 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) ("In each of the six United States Supreme Court cases rectifying structural error, the defendant made a preliminary showing of a violated constitutional right and the identified constitutional violation necessarily rendered the criminal trial fundamentally unfair or unreliable as a vehicle for determining guilt or innocence.").

¶ 15 In support of his structural error argument, defendant cites to several cases in which our Court found the trial court committed "a form of structural error known as error per se" because the trial court violated a defendant's constitutional right to be tried by twelve jurors. State v. Lawrence , 365 N.C. 506, 514, 723 S.E.2d 326, 331 (2012) ("North Carolina courts also apply a form of structural error known as error per se" for certain violations of the North Carolina Constitution). See State v. Poindexter , 353 N.C. 440, 444, 545 S.E.2d 414, 416 (2001) (concluding that the defendant's constitutional rights were violated per se when the trial court dismissed one juror for misconduct and allowed the defendant to be capitally sentenced by less than twelve jurors); State v. Bunning ...