Opinion
No. 07-317.
Filed November 6, 2007.
Guilford County No. 04-CRS-72874.
Appeal by defendant from judgment entered 10 August 2006 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 18 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant.
On 17 May 2004, an indictment was handed down charging Christopher Fields (Defendant) with trafficking by possession of heroin, in violation of N.C. Gen. Stat. § 90-95(h)(4). On 7 November 2005, a second indictment charged Defendant with felony conspiracy to traffic in 28 or more grams of heroin. On 10 August 2006, a jury found Defendant guilty of both charges. The trial court entered judgment against Defendant on 10 August 2006, sentencing him to 225 to 279 months incarceration. From this judgment, Defendant appeals. For the reasons that follow, we find that Defendant's trial was free from error. The relevant evidence is summarized as follows: On 19 March 2004, Defendant and Kevin Williams (Williams) had returned from New York to the residence of Angelica Barrino-Ezekiel (Barrino-Ezekiel), located in High Point, North Carolina. Rodney Hines (Hines) also came to Barrino-Ezekiel's apartment the same day to receive heroin from Defendant to sell.
Later that evening, officers of the High Point Police Department, including Detective Marc Kun (Detective Kun), executed a search warrant on Barrino-Ezekiel's residence. Inside, the officers found Defendant, Williams and Hines in the living room and hallway of the apartment, and Barrino-Ezekiel in the bedroom. A search of the apartment with a K-9 unit revealed approximately sixty grams of heroin in the kitchen and living room. Police also found a handgun wrapped in a T-shirt on the couch. All four people were arrested and charged with trafficking heroin.
Prior to the trial, Hines, Williams and Barrino-Ezekiel entered into plea agreements. On 8 September 2005, Hines and Williams pled guilty to trafficking heroin, and on 1 November 2005, Barrino-Ezekiel pled guilty to maintaining a dwelling for a controlled substance.
At trial, Hines and Williams testified that they and Defendant sold heroin, which was transported by Defendant from New York to High Point; that Defendant provided, bagged and packaged the heroin into "bindles" and bundles, for them to sell; and that Defendant was in charge of the heroin enterprise.
I: Admissibility of Character Evidence
In his first argument, Defendant contends that the trial court erred by admitting the testimony of four witnesses regarding Defendant's character and reputation as a drug dealer. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(a) (2005), provides that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]" However, N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides that:
Evidence of other crimes, wrongs, or acts is . . . admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Our courts have characterized Rule 404(b) as a "general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant[.]" State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). One exception requires the exclusion of this evidence "if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." Id.
"In light of the perils inherent in introducing prior crimes[, wrongs, or acts] under Rule 404(b), several constraints have been placed on the admission of such evidence." State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007). First, evidence of other crimes, wrongs, or acts "must be relevant to the currently alleged crime. N.C.G.S. § 8C-1, Rule 401 (2005)[.]" Id. "Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue." State v. Smith, 357 N.C. 604, 613, 588 S.E.2d 453, 460 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004). "`In criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. The weight of such evidence is for the jury.'" Id. at 613-14, 588 S.E.2d at 460 (quoting State v. Lytch, 142 N.C. App. 576, 580, 544 S.E.2d 570, 573 (2001)) (internal quotation marks omitted). Second, "[t]he use of evidence under Rule 404(b) is guided by t[he] constraints [of] `similarity and temporal proximity.'" State v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001) (quoting State v. Barnett, 141 N.C. App. 378, 389-90, 540 S.E.2d 423, 431 (2000)). Third, "[o]nce the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. N.C. Gen. Stat. § 8C-1, Rule 403 [(2005).]" Bidgood, 144 N.C. App. at 271, 550 S.E.2d at 201.
In the instant case, Defendant specifically assigns error to the following testimony of Hines, Williams, Detective Kun and Barrino-Ezekiel stating that the testimony describes Defendant's character and general reputation as a drug dealer in violation of Rule 404(a), rather than "crimes, wrongs, or acts," admissible under Rule 404(b). We find Defendant's argument unpersuasive.
At trial, Hines testified as follows: Q: During March of 2004, who were you getting your heroin from to sell [at the High Point location]?
A: [Defendant].
Defense: Objection.
Court: Overruled. You may answer.
A: [Defendant].
Q: And what would you do with that heroin?
A: Sell it.
Q: How was it packaged, or how would you package it?
A: Packaged in bundles.
Q: Who did that?
A: He bagged it up for me.
Q: Who did?
A: [Defendant].
Q: Did you see him do that?
A: Yes, sir.
Q: And describe what he did.
A: He'd mix it up. Take it, mix it up with some cut, put it in a blender and mix it up, and bag it up in little bags. Williams also testified at trial about the deal he made with Defendant in exchange for Defendant's care of his family:
. . . .
Q: . . . [Y]ou told him that you were responsible for the sale of the heroin, the heroin was yours?
A: Yeah, I did say that. First of all, we had a deal, okay, me and [Defendant] and Rodney Hines. If I took the rap, he'd get me an attorney, take care of my family, and got [sic] me out of here. He left me for dead in here. I'm the one who sat up here and manned up to the heroin. I'm the one who sat up here and said yeah, it was mine's [sic], so they could get out and take care of my family and get me out of here. . . .
. . . .
Q: And you now know it's not just a small amount, it's not a matter of a couple of years, but it's a matter of 18 to 21.
A: I didn't even know what was going on. Like I said, I just know I got charged, okay? That's for one. Two, like I said, I sat in here. I waited and waited and waited, okay, like I said. Me and [Defendant] and Rodney had a deal, okay? I took the rap. I take the rap saying the drugs is [sic] mine, and my family get tooken [sic] care of, and they get me out of here. That's it. That's all I wanted.
At another point in the trial, Williams testified that he and Defendant traveled to New York for the purpose of bringing drugs to High Point to sell:
Q: . . . Who came down to High Point from New York first, you or [Defendant]? . . .
Defense: Object to relevance, your Honor.
Court: Overruled. You may answer.
A: [Defendant].
Q: And what caused you to come to High Point?
A: Selling drugs, get money.
Q: And did anyone ask you to do that?
A: Yeah. [Defendant] asked me to come down here with him.
Q: So who were you selling heroin for?
A: [Defendant].
At trial, Detective Kun testified with regard to two previous interviews with Williams:
[Williams] said that the heroin that was found that day was [Defendant's] and Rodney Hines' [heroin]. . . . [Williams further] said that he, [Defendant] and [another man] . . . drove the Mustang to New York . . . so [Defendant] could get some heroin to bring back to High Point to sell. . . . Williams stated that in November of 2003 he came to High Point at the request of [Defendant], to sell heroin for [Defendant].
Williams stated [that Defendant] had Hines working for him to sell heroin when he arrived in High Point. [Defendant] had Hines rent a house at [a High Point location] to sell heroin from. He stated that [Defendant], Hines, and [a third person] sold heroin at [the High Point location] from November to the time they were arrested. He also stated that . . . Williams would sell approximately 10 bundles of heroin a day[.] . . . Williams stated that [Defendant] kept heroin buried or hidden in the yard[.]
Detective Kun further testified:
Q: Do you remember [Barrino-Ezekiel] saying that the heroin in the apartment on March 19 of `04 was Rodney Hines' at that time?
A: Yes.
Q: What, if anything, do you recall her saying about them taking turns?
Defense: Your Honor, I'm going to object. He's not charged with anything other than March 19th.
Court: Overruled. The jury can consider it in evaluating the credibility of the witnesses. Go ahead.
A: We were asking her about whose heroin it was, and she was talking about taking turns with the money, and whose money it was, and who would actually purchase the heroin that was brought back from New York to sell.
Q: And did I ask her in your presence where [Defendant] was one of the ones taking turns?
A: Yes, you did.
Q: And what did she say?
A: She said he did take turns, yes.
We find the case of State v. Love, 131 N.C. App. 350, 507 S.E.2d 577 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382 (1999), instructive here. In Love, the trial court allowed the testimony of a witness who had previously "sold cocaine for defendant and [had] been paid by defendant in drugs and currency." Id. at 356, 507 S.E.2d at 582. This Court stated that "this testimony was not unduly prejudicial, . . . and that it was properly admitted under Rule 404(b) to show defendant's intent to plan and commit a conspiracy." Id.; see also State v. Rosario, 93 N.C. App. 627, 638-39, 379 S.E.2d 434, 441, disc. review denied, 325 N.C. 275, 384 S.E.2d 527 (1989) (holding that one witness' testimony concerning the defendant's selling and using cocaine and another witness' testimony that he had previously sold cocaine for the defendant was properly admitted).
Similarly, the testimony here is not unduly prejudicial and clearly relevant to the charges of trafficking heroin and conspiring to traffic heroin. See N.C. Gen. Stat. § 90-95(h)(4) (2005) and N.C. Gen. Stat. § 14-2.4(a) (2005). The transcript reflects that the foregoing evidence was offered and admitted for the purpose of establishing knowledge, plan, scheme, or design, which are proper purposes under Rule 404(b).
Defendant also contends that the trial court erred by allowing the testimony of Barrino-Ezekiel, specifically her testimony that Defendant had been in jail since he returned to North Carolina in June 2006. At trial, Barrino-Ezekiel stated:
Q: And since [Defendant has] been back here, well, he's been incarcerated since he's been here, hasn't he?
A: Yes.
Defense: Objection.
Court: I assume you're going into her motivation?
State: Yes.
Court: All right. For that purpose, the jury can consider it. The fact that the defendant is in jail should not effect your verdict in any way. Go ahead.
Q: And since he has been here in our jail since June of this year, you've been to see him several times, haven't you?
A: Yes.
Barrino-Ezekiel's testimony that Defendant was incarcerated was not admitted to prove Defendant's character and acting in conformity therewith, as Defendant argues in his brief, but rather, the State sought to show through Barrino-Ezekiel's jail visitations evidence of the romantic relationship between Barrino-Ezekiel and Defendant. This, in turn, demonstrated her motivation for silence, and her failure to corroborate the incriminating testimony of Hines and Williams. We conclude that the foregoing evidence — the testimony of Williams, Hines, Detective Kun and Barrino-Ezekiel — was not admitted to prove Defendant's character in order to show that he acted in conformity therewith. The testimony had probative value other than to show that the Defendant had the propensity or disposition to commit the offenses of trafficking by possession and conspiracy to traffic heroin. The testimony was relevant to the charges of trafficking heroin and conspiracy to traffic heroin, and sufficiently similar and temporally proximate to the crimes charged. Moreover, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice. We overrule this assignment of error.
II: Motion to Dismiss
In his next argument, Defendant contends that the trial court erred by denying Defendant's motion to dismiss for lack of sufficient evidence to establish constructive possession and conspiracy. We disagree.
Upon a defendant's motion to dismiss, "`the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of the defendant's being the perpetrator of such offense.'" State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). If so, the motion is properly denied. In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). "[C]ontradictions and discrepancies do not warrant dismissal of the case [but] are for the jury to resolve." Id.
Here, Defendant was charged with trafficking in a controlled substance and felony conspiracy. See G.S. § 90-95(h)(4) and G.S. § 14-2.4(a).
A: Constructive Possession
To sustain a charge of trafficking in heroin by possession, the State must present substantial evidence that the substance was possessed, and that the substance was knowingly possessed. State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). "`An accused's possession of narcotics may be actual or constructive.'" Id. (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). A defendant has constructive possession of contraband "`when he has both the power and the intent to control its disposition or use.'" State v. Thorpe, 326 N.C. 451, 454, 390 S.E.2d 311, 313 (1990) (quoting State v. Fuqua, 234 N.C. 168, 170, 66 S.E.2d 667, 668 (1951)). If "the defendant does not have exclusive control over the premises, constructive possession cannot be shown without other incriminating circumstances." State v. Forbes, 104 N.C. App. 507, 511, 410 S.E.2d 83, 86 (1991), disc. review denied, 330 N.C. 852, 413 S.E.2d 554 (1992). "`[C]onstructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury[.]'" State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992) (quoting State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)).
In the instant case, since the State did not show that Defendant had actual or exclusive possession of the drugs found in the apartment primarily occupied by Barrino-Ezekiel, the focal issue becomes whether the evidence established other incriminating circumstances.
According to the testimony of Detective Kun, the officers entered the apartment in High Point, and found Hines, Williams and Defendant in the living room and hallway. Barrino-Ezekiel was asleep in the bedroom. Detective Kun stated:
When I actually went into the house, I noticed Kevin Williams standing directly behind the couch as soon as you go in. And the others, Rodney Hines and [Defendant], were down the hallway, and they were already prone, laying on the ground at that point. And I actually handcuffed Mr. Williams behind the couch.
The officers searched Defendant, and Detective Kun stated, "[h]e had money on him[,] . . . about twenty-nine hundred, I believe." Police found a gun wrapped in a white T-shirt on the couch in the living room and three sets of keys on the kitchen table. Police also found four cell phones "in the kitchen, and . . . one [in] the master bedroom." None of the phones were confirmed to be registered to Defendant. In the living room, Detective Kun discovered approximately 57 grams of heroin: In the corner of the living room was a flower pot, a fake artificial tree. And in the bottom of that, there was Spanish moss on the very bottom of it where the roots were. And when that was pulled back, I found seven pellets of what turned out to be heroin.
Detective Kun also found approximately 2.6 grams of heroin in six bundles in a plastic Taco Bell cup on the counter in the kitchen of the home. The officers ultimately found approximately sixty grams of heroin.
We find the case of State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, disc. review denied, 360 N.C. 70, 623 S.E.2d 36 (2005), to be persuasive in the instant case. In Harrington:
[N]either [of the defendants] had exclusive possession of the marijuana found in the garage of the house. For this reason, each argues that there was insufficient evidence that he had dominion or control over the marijuana. However, the State presented other incriminating evidence that was sufficient to allow the charge of possession for each defendant to go to the jury. In particular, the evidence of drug paraphernalia found in various areas of the house where both defendants resided, and the testimony of [one witness] that both defendants were engaged in the sale of marijuana and both had access to the garage, was sufficient for the issue of possession to survive a motion to dismiss.
Id. at 24-25, 614 S.E.2d at 345.
Here, the apartment was primarily occupied by Barrino-Ezekiel. However, both Hines and Williams testified that the heroin found in Barrino-Ezekiel's apartment was for sale in Defendant's heroin enterprise. Williams specifically stated that the heroin found in the apartment belonged to Defendant. Hines and Williams testified that Defendant provided them with heroin, prepared and packaged by Defendant, which all three men sold. This testimony, combined with evidence of approximately sixty grams of heroin and a handgun in Barrino-Ezekiel's apartment, and roughly $2,900 held by Defendant at the time of his arrest, is sufficient evidence, viewed in a light most favorable to the State, to establish incriminating circumstances, such that the trial court did not err by denying Defendant's motion to dismiss. This assignment of error is overruled.
B: Conspiracy to Traffic
To sustain a charge of conspiracy to traffic in heroin, the State must present substantial evidence of "`an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means.'" State v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000) (quoting State v. Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998)). "`Direct proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.'" Clark, 137 N.C. App. at 95, 527 S.E.2d at 322 (quoting State v. Aleem, 49 N.C. App. 359, 363, 271 S.E.2d 575, 578 (1980)). "No express agreement need be proved; proof of circumstances which point to a mutual implied understanding to commit the unlawful act is sufficient to prove a conspiracy." State v. Howell, 169 N.C. App. 741, 748, 611 S.E.2d 200, 205, disc. review denied, 360 N.C. 71, 622 S.E.2d 500 (2005) (citing State v. Smith, 237 N.C. 1, 16-17, 74 S.E.2d 291, 301-02 (1953)). "A conspiracy `may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'" Clark, 137 N.C. App. at 95, 527 S.E.2d at 322 (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)). "In finding the existence of a criminal conspiracy, jurors are allowed to make the logical inference that `one who conspires to bring about a result intends the accomplishment of that result, or of anything which naturally flows from its attempted accomplishment.'" State v. Valentine, 357 N.C. 512, 522, 591 S.E.2d 846, 855 (2003) (quoting State v. Small, 301 N.C. 407, 419, 272 S.E.2d 128, 136 (1980)).
In the instant case, Defendant generally argues that "[t]here was no evidence, either circumstantial or direct of an agreement between [Defendant] and the other witnesses to traffic in heroin." We disagree.
In this case, Hines testified that Defendant would supply him with heroin to sell, packaged in "bindles" and bundles. Hines' testimony was corroborated by William's testimony that Defendant asked him to come from New York to High Point to sell drugs. When asked about the specifics of the "heroin operation," Hines stated that "we was [sic] all selling, me, [Defendant], and Mr. Williams. . . . [Defendant] already had to go back and forth to New York[.]" Hines said that "[the heroin] was coming from New York[,]" specifically from an area in Queens, the former home of [Defendant] and Williams. The testimony of Hines and Williams, combined with evidence of approximately sixty grams of cocaine and a handgun found in Barrino-Ezekiel's apartment, along with evidence of $2,900 held by Defendant, was sufficient evidence from which a reasonable juror could determine Defendant conspired to traffic heroin. See Howell, 169 N.C. App 741, 611 S.E.2d 200.
Our careful review of the record in this case reveals evidence of an agreement or mutual understanding between Defendant, Hines, Williams and Barrino-Ezekiel, which encompassed both the transportation of the heroin from New York to High Point and their possession and sale of the heroin once it arrived. This assignment of error is overruled.
III: Juror Dismissal
In his next argument, Defendant contends that the trial court erred by failing to excuse two jurors. We disagree.
N.C. Gen. Stat. § 15A-1211(d) (2005) allows a judge to dismiss a juror for cause "without challenge by any party if he determines that grounds for challenge for cause are present." N.C. Gen. Stat. § 15A-1212(9) (2005) sets forth reasons for which a juror may be challenged for cause, including when a juror "is unable to render a fair and impartial verdict." We review a trial court's ruling for abuse of discretion. State v. Lasiter, 361 N.C. 299, 301, 643 S.E.2d 909, 911 (2007). "A trial court abuses its discretion if its determination is `manifestly unsupported by reason' and is `so arbitrary that it could not have been the result of a reasoned decision.'" Id. at 301-02, 643 S.E.2d at 911 (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). In the instant case, Defendant failed to challenge the jurors at trial pursuant to N.C. Gen. Stat. § 15A-1212 (2005). Defendant argues the trial court should have excused the juror pursuant to G.S. § 15A-1211(d). See State v. Bates, 172 N.C. App. 27, 34, 616 S.E.2d 280, 285-86 (2005), disc. review denied, 360 N.C. 537, 634 S.E.2d 218 (2006). After the jury was impaneled, but before it began hearing evidence, one juror told the court that drug dealers had murdered his nephew, and this trial brought back memories of the murder. The juror stated:
[A] man was killed . . . [a]nd the people that did it, they knew that [my nephew] knew that they did it, and [my nephew] was gonna [sic] come to me. And that same week they got a hold of him, and they shot [him]. And it just kind of, you know, left a memory of it. And it was six years ago, so I figured, you know that everything was fine. But as we started speaking about guns and the lifestyle, it just . . . brought up a lot of things in my mind, to be honest.
The court then asked the juror the following questions:
Court: [W]e just need to make sure that you can base your verdict on the evidence in this case.
Juror: Yes.
Court: Is that something you think you can do at this point?
Juror: Yes.
Court: All right. And you believe you can follow my instructions on the law?
Juror: Yes.
Court: Okay. I'll check in with you again at the end of the day, maybe, and just be sure you continue to feel comfortable with that.
Juror: Okay.
The next morning, the court said:
Court: . . . [W]e do want to be sure you can base your verdict on the evidence, and not on something that happened to . . . your nephew. Do you feel like you can base your verdict on the evidence and follow the law, or do you have concerns that what happened to your nephew might substantially —
Juror: Very much so.
Court: You're very concerned about it?
Juror: No.
Court: . . . You feel like you can be fair?
Juror: Very much so.
Court: All right. A lot of times, I think people get in here and they realize it's totally different, they're able to separate things out. And you feel like you can do that?
Juror: Yes, very much.
We must give deference to a trial court's exercise of discretion because "`[t]he trial judge is in a better position to weigh the significance of the pertinent factors than is an appellate tribunal.'" Lasiter, 361 N.C. at 305, 643 S.E.2d at 912 (quoting State v. Little, 270 N.C. 234, 240, 154 S.E.2d 61, 66 (1967)). The court "`has the advantage of seeing and hearing [jurors], so that he . . . can gain a `feel' of the case which a cold record denies to a reviewing court.'" Id. (quoting Little, 270 N.C. at 240, 154 S.E.2d at 66); see also State v. Rogers, 355 N.C. 420, 430, 562 S.E.2d 859, 867 (2002) (stating that "[a] judge who observes the prospective juror's demeanor as he or she responds to questions and efforts at rehabilitation is best able to determine whether the juror should be excused for cause"). Here, nothing in the transcript indicates this decision was manifestly unsupported by reason. Rather, the juror indicated that he could be fair and impartial. Accordingly, the trial court did not abuse its discretion by deciding not to dismiss the juror because of the murder of his nephew by drug dealers. This assignment of error is overruled.
Defendant also argues that the court erred by failing to dismiss a second juror, because the juror saw Defendant in handcuffs. We disagree.
On the second day of trial, defense counsel reported that two jurors witnessed Defendant enter the courtroom in handcuffs. The bailiff confirmed the incident. The court then questioned the two jurors separately:
Court: I think you may have seen [Defendant] in the back hallway over the recess?
Juror: Yes, ma'am.
Court: Can you tell me what you saw?
Juror: I just saw him in handcuffs, that's all.
Court: Have you shared that with any of the other jurors?
Juror: No, ma'am.
Court: If you would not share that, and if you would just put it out of your mind. It is not to affect your verdict or any deliberations in any way.
Juror: No, ma'am.
Court: Can you follow that instruction?
Juror: Yes, ma'am.
The second juror stated that she did not notice whether Defendant was in the hallway at all, and therefore, did not notice whether he was handcuffed.
We find the related decisions of State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001), and State v. Perry, 316 N.C. 87, 108-09, 340 S.E.2d 450, 463 (1986), instructive in this case. In both cases, our Supreme Court held that the trial court did not err by overruling the defendants' motions for mistrial after jurors or prospective jurors witnessed the defendant in restraints. Whether to allow a motion for mistrial is also a decision committed to the sound discretion of the trial court, which will not be overturned absent an abuse of that discretion. State v. Johnson, 341 N.C. 104, 114, 459 S.E.2d 246, 252 (1995). Here, even though one juror saw Defendant in handcuffs, the court inquired as to whether the juror had been prejudiced by what she observed. The court also gave her a curative instruction. In response, the juror indicated that she could be fair and follow the trial court's instructions. In light of the related cases of Ward, Perry and Bates, we hold that the trial court did not abuse its discretion by not dismissing the juror who witnessed defendant in handcuffs. This assignment of error is overruled. For the foregoing reasons, we conclude that defendant received a fair trial, free from error.
No Error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).