Opinion
NO. COA11-86
09-06-2011
STATE OF NORTH CAROLINA v. JEFFREY SCOTT SPEAKS
Attorney General Roy A. Cooper, III, by Assistant Attorney General Melissa H. Taylor, for the State. Anne Bleyman for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Forsyth County Nos. 08CRS029803, 059220
Appeal by defendant from judgment entered on or about 10 August 2010 by Judge Richard W. Stone in Superior Court, Forsyth County. Heard in the Court of Appeals 18 July 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Melissa H. Taylor, for the State.
Anne Bleyman for defendant-appellant.
STROUD, Judge.
Jeffrey Scott Speaks ("defendant") appeals from judgment entered pursuant to jury verdicts finding him guilty of felonious operation of a motor vehicle to elude arrest, failure to stop for a red light, and attaining the status of an habitual felon. The trial court sentenced defendant to a mitigated term of 80 to 105 months imprisonment. Defendant gave notice of appeal in open court.
Defendant first argues the trial court erred in denying his motion for a mistrial, made after an alternate juror was not discharged upon the final submission of the case to the jury and was allowed to retire to the jury room with the jury. We disagree.
The decision to grant or deny a mistrial lies within the sound discretion of the trial court and is "entitled to great deference since [the trial court] is in a far better position than an appellate court to determine the effect of any [misconduct] on the jury." Absent an abuse of discretion, therefore, the trial court's ruling will not be disturbed on appeal.State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008), cert. denied, __ U.S. _, 175 L. Ed. 2d 84 (2009) . "An abuse of discretion occurs when a ruling is 'manifestly unsupported by reason, which is to say it is so arbitrary that it could not have been the result of a reasoned decision.'" Id.
"It is well settled in North Carolina that the presence of an alternate in the jury room during deliberations violates N.C.G.S. § 15A-1215(a) and constitutes reversible error per se." State v. Parker, 350 N.C. 411, 426, 516 S.E.2d 106, 117 (1999) (emphasis in original) (citations omitted), cert. denied, 528 U.S. 1084, 145 L.Ed. 2d 681 (2000). However, "'where the alternate's presence in the jury room is inadvertent and momentary, and it occurs under circumstances from which it can be clearly seen or immediately determined that the jury has not begun its function,' the alternate's presence will not void the trial." Id.
Moreover, the Supreme Court of North Carolina ruled that:
[I]f the judge . . . believes it probable that the jury has not begun its consideration of the evidence, he may properly recall the jury and the alternate and, in open court, inquire of them whether there had been any discussion of the case. If the answer is No, the alternate will be excused and the jury returned to consider its verdict. If the answer is Yes, there must be a mistrial. No inquiry into the extent or nature of the deliberations is permissible.State v. Bindyke, 288 N.C. 608, 629, 220 S.E.2d 521, 535 (1975).
Here, the trial court concluded its jury charge and sent the jury, along with the alternate juror, to the jury room. Shortly thereafter, the verdict sheet was given to the jury. A couple of minutes after the jury sheet was given to the jury, the clerk asked the court if the alternate juror had been released. At that point, defendant's counsel moved for a mistrial. The trial court brought the jury back into the courtroom and inquired if the jury had begun its deliberations. The jurors stated they had chosen their foreperson, and the foreperson had begun reading aloud the copy of the trial court's instructions, but they had not yet begun their deliberations and had not spoken about any evidence. The court denied defendant's motion for a mistrial, finding the jury had not begun deliberations while the alternate was with them in the jury room. The court released the alternate and instructed the jury to return to the jury room, re-select a foreperson, and begin its deliberations.
We hold that the trial court did not abuse its discretion in denying defendant's motion for a mistrial. The jury had not yet begun its deliberations before the trial court corrected its error and released the alternate juror. The foreperson's reading aloud the copy of the instructions given by the trial court does not amount to the beginning of deliberations by the jury. Since the alternate juror was not present during deliberations, defendant suffered no prejudice due to the trial court's error. See Parker, 350 N.C. at 426, 516 S.E.2d at 119 (holding the defendant suffered no prejudicial error where an alternate juror had been allowed into the jury room and had participated in the selection of the foreperson, but the trial court corrected its error and released the alternate before the jury had begun its deliberations).
Defendant next presents several arguments regarding his conviction for attaining the status of an habitual felon. [Defendant argues: (1) that it was illegal for the State to use two convictions to establish his status as an habitual felon that had been used in a prior prosecution for the same purpose; (2) that it was improper for the trial court to use convictions obtained in the same week to establish both his habitual felon status and determine his prior record level; (3) that the State erred in manipulating his prior record level by selecting prior felony convictions that carried fewer sentencing points to establish his status as an habitual felon; and (4) that the Habitual Felon Act violates his constitutional rights to be free of cruel and unusual punishment. Defendant concedes that this Court has previously addressed these issues and overruled arguments similar to those he now presents. See State v. Cates, 154 N.C. App. 737, 739-40, 573 S.E.2d 208, 210 (2002) (holding it was within prosecutor's discretion to select among the defendant's prior convictions for purposes of proving his habitual felon status and calculating his prior record level), disc. review denied, 356 N.C. 682, 577 S.E.2d 897, cert. denied, 540 U.S. 846, 157 L.Ed. 2d 84 (2003); State v. Stinnett, 129 N.C. App. 192, 200, 497 S.E.2d 696, 701 ("North Carolina courts have consistently held that when a punishment does not exceed the limits fixed by statute, the punishment cannot be classified as cruel and unusual in a constitutional sense."), disc. rev. denied, 348 N.C. 508, 510 S.E.2d 669, cert. denied, 525 U.S. 1008, 142 L.Ed. 2d 436 (1998); State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996) (holding it is permissible to use separate convictions within the same week to establish a defendant's habitual felon status and prior record level); State v. Smith, 112 N.C. App. 512, 517, 436 S.E.2d 160, 162 (1993) ("[B]eing an habitual felon is a status, that once attained is never lost. If the legislature had wanted to require the State to show proof of three new underlying felonies before a new habitual felon indictment could issue, then the legislature could have easily stated such."). Defendant urges this Court to re-examine our prior holdings, and further raises these issues so as to not be considered to have abandoned these claims under N.C.R. App. P. 28(b)(6). However, "[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). None of this Court's prior decisions on the issues defendant now presents have been overturned by a higher court, and we are thus bound by those decisions. Accordingly, defendant's arguments are overruled.
NO ERROR.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).