State v. Watlington

903 S.E.2d 404

STATE of North Carolina

v.Jalen O’Keith WATLINGTON, Defendant.

No. COA22-972

Court of Appeals of North Carolina.

Filed June 18, 2024

West Codenotes

Recognized as Unconstitutional

N.C. Gen. Stat. Ann. § 15A-1215(a)

Appeal by defendant from judgment entered on or about 27 April 2022 by Judge David T. Lambeth Jr. in Superior Court, Alamance County. Heard in the Court of Appeals 8 August 2023. Alamance County, No. 17CRS56552

Attorney General Joshua H. Stein, by Assistant Attorney General Donna B. Wojcik, for the State.

Thomas, Ferguson & Beskind, LLP, by Kellie Mannette, Chapel Hill, and Jay H. Ferguson, Durham, for defendant-appellant.

STROUD, Judge.

Defendant appeals his judgment for assault by pointing a gun and discharging a weapon into an occupied vehicle. Defendant did not object to the substitution of a juror after deliberations had begun, and the jury was properly constituted, impaneled, and instructed under North Carolina General Statute Section 15A-1215(a). Nonetheless, on appeal Defendant has challenged North Carolina General Statute Section 15A-1215(a) as unconstitutional, and based on State v. Chambers, — N.C. App. —, 898 S.E.2d 86 (2024) and In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), we have no choice but to vacate Defendant’s convictions and judgment and remand for a new trial on all charges.

I. Background

The State’s evidence tended to show that on 30 November 2017, Mr. Brandon Miles and Ms. Racshell Carr were driving in a Chevrolet. Defendant was driving a Toyota and backed into the Chevrolet’s line of travel, causing Mr. Miles to swerve out of the way to avoid a collision. Immediately after this near collision, at a stop light, Defendant and Defendant’s passenger both pulled out guns. Ms. Carr called the police. The occupants of the two cars exchanged words at the next light, and by that time, Ms. Carr was on the phone with the police, and they told her to get Defendant’s tag number.

The vehicles then separated, driving onto different streets, but Mr. Miles eventually turned around to get Defendant’s tag number. When Mr. Miles found the Toyota, Defendant and his passenger were both waiting at a stop sign with their guns displayed. Shots were fired at Mr. Miles and Ms. Carr, who ducked.

On or about 2 July 2018, Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI") and discharging a weapon into an occupied vehicle ("firing into a vehicle’’). After a seven day trial, the jury found Defendant "guilty of assault by pointing a gun[.]" (Capitalization altered.) The jury also found Defendant guilty of firing into a vehicle. The trial court entered judgment; Defendant appealed.

II. Juror Substitution

After all evidence had been presented in the case, on 25 April 2022 at about 4:11 pm, the jury was sent to the jury room to select a foreperson and begin deliberations. At about 4:50 pm, the jury sent the trial court a request to see some exhibits, and the jury was brought back to the courtroom. The alternate jurors were also present. Three of the State’s exhibits were published to the jury, and they were sent home at 5:00 pm and told to return at 9:30 am the next morning.

On 26 April 2022, Juror No. 10 was missing. The clerk contacted Juror No. 10 and she informed the trial court she had recently injured her foot resulting in swelling, a trip to the emergency room, and doctor’s instructions to stay off the foot. The trial court was concerned about the juror’s ability to concentrate on the case; the trial court spoke to counsel for the State and Defendant, and neither objected to Juror No. 10 being released and seating the first alternate juror. In deciding to seat the alternate juror, the trial court referred specifically to North Carolina General Statute Section 15A-1215(a), which became effective on 1 October 2021. See N.C. Gen. Stat. § 15A-1215 (2023) (Editor’s Note).

In accord with North Carolina General Statute Section 15A-1215(a), the trial court instructed the jury to begin deliberations anew. The trial court further instructed, "This means you should disregard entirely any deliberations taking place before the alternative juror was substituted and consider freshly the evidence as if the previous deliberations had never occurred" and

[a]lthough starting over may seem frustrating, please do not let it discourage you. It is important to our system of justice that each juror has a full and fair opportunity to explore his or her views and respond to the views of others so that you may come to a unanimous verdict. All the previous instructions given to you, including the unanimity requirement for a verdict, remain in effect.

The twelve jurors then started deliberations at 10:17am on 26 April 2022.

Defendant contends "the trial court violated Article I, Section 24 of the North Carolina Constitution when it allowed an alternate juror to substitute for Juror #10 on the second day of deliberations." (Capitalization altered.) Defendant specifically argues a 2021 amendment to North Carolina General Statute Section 15A-1215 allowing a juror to be replaced with an alternate even after deliberation has begun, with instructions to begin deliberations anew, is unconstitutional. The State argues Defendant failed to preserve his constitutional argument because he did not object to the substitution of the juror. The State relied in part upon the only case addressing this issue as of the date the State filed its brief, an unpublished case from this Court in April 2023, State v. Poole, which determined the defendant had waived his constitutional argument by failure to object to the juror substitution or to raise any constitutional argument regarding the amendment to North Carolina General Statute Section 15A-1215(a) at trial:

Effective 1 October 2021, the General Assembly amended N.C. Gen. Stat. §§ 15A-1215 and 15A-1221 to permit an alternate juror to replace a regular juror after deliberations have begun. 2021 N.C. Sess. Laws 374, 374-75, ch. 94, §§ 1-2. The General Assembly added, among other language, the following: "[i]f an alternate juror replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew." N.C. Gen. Stat. § 15A-1215(a) (2021). On appeal, defendant presents the question of whether the 2021 amendment to N.C. Gen. Stat. § 15A-1215(a) permitting substitution of an alternate juror after jury deliberations have begun violates Article I, Section 24 of the North Carolina Constitution.

"It has never been doubted that the Constitution of this State requires a unanimous verdict for a valid conviction for any crime." State v. Williams, 286 N.C. 422, 427, 212 S.E.2d 113, 117 (1975). "Article I, Section 24 of the North Carolina Constitution, which guarantees the right to trial by jury, contemplates no more or less than a jury of twelve persons." State v. Banning, 346 N.C. 253, 256, 485 S.E.2d 290, 292 (1997). Defendant’s constitutional challenge to N.C. Gen. Stat. § 15A-1215(a) (amended 2021) appears to be an issue of first impression in this State. We first address whether defendant’s constitutional claim is preserved for appellate review.

At trial, defendant did not object to the alternate juror substitution, nor did he argue that N.C. Gen. Stat. § 15A-1215(a) (amended 2021) is unconstitutional. "While Appellate Rule 10([a])(1) protects judicial economy and speaks to our adversarial system of justice by requiring the parties to object in the majority of instances, it nevertheless recognizes that some questions may be deemed preserved for review by rule or law." State v. Wilson, 363 N.C. 478, 486, 681 S.E.2d 325, 331 (2009). Defendant cites to State v. Ashe, for its general rule that where "the error violates [a] defendant’s right to a trial by a jury of twelve, [a] defendant’s failure to object is not fatal to his right to raise the question on appeal." 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (citations omitted).

However, we are not persuaded that the holding in Ashe compels a determination that defendant’s issue is preserved for review notwithstanding his counsel’s failure to object at trial. In Ashe, the Court’s determination on the issue of preservation was based on the well-established principle that "when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action is preserved, notwithstanding defendant’s failure to object at trial." 314 N.C. at 39, 331 S.E.2d at 659 (emphasis added).

Our Supreme Court’s holding in Ashe was narrow and specific, stating:

Both Art. I, § 24 of the North Carolina Constitution and N.C.G.S. § 15A-1233(a) require the trial court to summon all jurors into the courtroom before hearing and addressing a jury request to review testimony and to exercise its discretion in denying or granting the request. Under the principles stated above, failure of the trial count to comply with these statutory mandates entitles defendant to press these points on appeal, notwithstanding a failure to object at trial.

Id. at 40, 331 S.E.2d at 659 (emphasis added). We note that this is the only time Ashe mentions the North Carolina Constitution. The Court in Ashe addressed the question of whether the trial court had failed to comply with the statutory mandate in N.C. Gen. Stat. 15A-1233(a). This mandate, when considered together with Article 1, Section 24 of the North Carolina Constitution, imposed dual requirements on the trial court. The Court did not dis- cuss a constitutional violation; it only addressed a statutory violation.

No. COA22-836 (unpublished), 2023 WL 2979046 (April 18, 2023) slip op. at *3-5.

Although State v. Poole was unpublished and thus has no precedential value, N.C. R. App. P. 30(e)(3) ("An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority."), this Court in Poole noted the case appeared to present "an issue of first...