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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 24. Right of jury trial in criminal cases.

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death 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. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

(The provisions of this section are similar to those of Art. I, § 13, Const. 1868, as amended in 1946. Amended by § 2013-300, s. 1.)

Cross References. - As to jurors, generally, see G.S. § 9-1 et seq.

As to the rights of defendants in criminal cases to grand juries and trial juries from which persons have not been arbitrarily excluded on discriminatory grounds, see also N.C. Const., Art. I, § 19 and the notes thereunder.

For provision prohibiting exclusion from jury service on discriminatory grounds, see N.C. Const., Art. I, § 26.

Editor's Note. - Session Laws § 2013-300, s. 2, provides: "The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at a statewide general election to be held on November 4, 2014, which election shall be conducted under the laws then governing elections in the State. Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes. The question to be used in the voting systems and ballots shall be:

"[ ] FOR [ ] AGAINST

"Constitutional amendment providing that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in court and with the consent of the trial judge, waive the person's right to a trial by jury."

Session Laws § 2013-300, s. 3, provides: "If a majority of the votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State, who shall enroll the amendment so certified among the permanent records of that office. The amendment becomes effective December 1, 2014, and applies to criminal offenses arraigned in superior court on or after that date."

This Constitutional amendment was approved by a majority of the voters voting at the election held on November 4, 2014, and the results of the election were certified by the State Board of Elections.

Legal Periodicals. - For case law survey as to indictment and trial by jury, see 45 N.C.L. Rev. 878 (1967).

For note on jurisdiction of courts-martial to try servicemen for civilian offenses, see 48 N.C.L. Rev. 380 (1970).

For note on juries in the juvenile justice system, see 48 N.C.L. Rev. 666 (1970).

For note on right to jury trial in criminal contempt proceedings, see 6 Wake Forest Intra. L. Rev. 356 (1970).

For comment on capital sentencing statute, see 16 Wake Forest L. Rev. 765 (1980).

For survey of 1982 law on criminal procedure, see 61 N.C.L. Rev. 1090 (1983).

For article, "State v. McCarver: The Role of Jury Unanimity in Capital Sentencing," see 74 N.C.L. Rev. 2061 (1996).

For article, "The Constitutional Tension Between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts," see 38 Wake Forest L. Rev. 1111 (2003).

For note, "The Constitutional Right to a Jury Under Blakely v. Washington: Can North Carolina Defendants Waive Their State Right?," see 83 N.C. L. Rev. 1548 (2005).

CASE NOTES





I. In General.

II. Unanimous Verdict of Twelve.

III. Selection of Jurors.

IV. Petty Misdemeanors.



I. IN GENERAL.



Editor's Note. - Some of the cases cited below were decided under former Art. I, § 13, Const. 1868, before and after its amendment in 1946 and prior to the amendment by Session Laws § 2013-300, s. 1.

The defendant has an absolute constitutional right to plead not guilty and be tried by a jury. He should not and could not be punished for exercising that right. State v. Langford, 319 N.C. 340, 354 S.E.2d 523 (1987).

Common-Law Principle. - It is a fundamental principle of the common law, declared in Magna Charta and incorporated in this section, that no person shall be convicted of any crime but by the unanimous verdict of a jury in open court. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

The essential attributes of trial by jury, as guaranteed by this section, are the number of jurors, their impartiality and a unanimous verdict. State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934).

Trial as to Each Essential Element. - Defendant is entitled as of right to a jury trial as to every essential element of the crime charged, including the question as to his identity. State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968); State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978).

It is fundamental that one charged with a crime in this state is entitled, as a matter of right, under both the federal and State Constitutions, to a jury trial as to every essential element of the crime charged. However, the punishment imposed is generally not an element of the crime. State v. Field, 75 N.C. App. 647, 331 S.E.2d 221, cert. denied and appeal dismissed, 315 N.C. 186, 337 S.E.2d 582 (1985).

Trial Court's Omission of Elements of Crime in Jury Instructions Reviewed Under Harmless Error Test. - In defendant's trial for felony murder and robbery with a dangerous weapon, while the trial court erred in instructing the jury on felony murder, any error violating defendant's jury trial right under N.C. Const., Art. I, § 24 was harmless because there was no reasonable probability that outcome would have been different absent the error. State v. Bunch, 363 N.C. 841, 689 S.E.2d 866 (Mar. 12, 2010).

The right to be tried by one's peers of the vicinage is subject to the ability to secure a fair trial; both defendant and the State are entitled to a fair trial, and a fair trial requires an impartial jury; where it appeared necessary to judge to remove the case to some neighboring county in order to secure a fair trial, such removal to a neighboring county did not violate the constitutional prohibition. State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989).

"Open Court" Not Applicable to Civil Proceedings. - This section is directed to an "open court" proceeding during a criminal conviction only, and it is not applicable to civil proceedings. WSOC Television, Inc. v. State ex rel. Att'y Gen., 107 N.C. App. 448, 420 S.E.2d 682, cert. denied, 333 N.C. 168, 424 S.E.2d 905 (1992).

Jury Trial May Not Be Waived After Plea of Not Guilty. - A defendant in a criminal prosecution for a felony or a misdemeanor may not waive his constitutional right to trial by jury in the superior court after entering a plea of "not guilty" without changing his plea, nor may the General Assembly permit him to do so by statute; and where the court, after a plea of "not guilty," finds the defendant guilty without a jury trial, the judgment will be stricken out and the cause remanded. State v. Hill, 209 N.C. 53, 182 S.E. 716 (1935). See also, State v. Muse, 219 N.C. 226, 13 S.E.2d 229 (1941).

A jury trial cannot be waived in a criminal action; hence, where the facts were agreed upon by the State and the accused and submitted to the judge for his decision, it was held that such a procedure was not warranted by the law. State v. Holt, 90 N.C. 749 (1884).

Where a defendant enters a plea of "not guilty" in the superior court, he may not thereafter, without being permitted to change his plea, waive his constitutional right of trial by jury. State v. Rogers, 162 N.C. 656, 78 S.E. 293, 46 L.R.A. (n.s.) 38, 1914A Ann. Cas. 867 (1913). See also, State v. Hartsfield, 188 N.C. 357, 124 S.E. 629 (1924).

Upon defendant's appeal from judgment and sentence by the court after defendant had entered a conditional plea of guilty, the case would be remanded in order that a jury may pass upon defendant's guilt or innocence in accordance with defendant's constitutional right. State v. Ellis, 210 N.C. 170, 185 S.E. 662 (1936).

In the superior court, on indictment originating therein, trials by jury in a criminal action cannot be waived by the accused. State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968).

It is rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the superior court as long as his plea remains "not guilty." State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

When a defendant pleads not guilty in cases where a trial by jury is guaranteed by the organic law, he must be tried by a jury of twelve, and he cannot waive jury trial. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

The right to a jury trial is not only guaranteed by the Sixth Amendment to the United States Constitution, but under the North Carolina Constitution the right also can not be waived by a defendant who pleads not guilty. State v. Thompson, 118 N.C. App. 33, 454 S.E.2d 271 (1995).

Thoughtful and full deliberation in an effort to achieve unanimity has only a salutary effect on our judicial system: It tends to prevent arbitrary and capricious sentence recommendations. State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert denied, 517 U.S. 1110, 116 S. Ct. 1332, 134 L. Ed. 2d 482 (1996).

And this applies to misdemeanors as well as to the more serious offenses. State v. Pulliam, 184 N.C. 681, 114 S.E. 394 (1922).

But Plea of Guilty Renders Jury Unnecessary. - A defendant may plead guilty, or nolo contendere, or autrefois convict, and the impaneling of a jury is unnecessary. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

Conviction by Jury Necessary to Punishment. - It is fundamental that a defendant charged with crime, other than a petty misdemeanor, who pleads not guilty, may be punished only after conviction by a jury. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

A criminal defendant may not be punished at sentencing for exercising his constitutional right to trial by jury. State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990).

Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the State and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result. State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990).

A trial by a jury which is improperly constituted is so fundamentally flawed that the verdict cannot stand; thus, defendant was entitled to a new sentencing hearing where an alternate juror was substituted for a juror who was dismissed after participating in half a day of deliberations. State v. Bunning, 346 N.C. 253, 485 S.E.2d 290 (1997).

A party moving for a new trial grounded upon misrepresentation by a juror during voir dire must show: (1) the juror concealed material information during voir dire; (2) the moving party exercised due diligence during voir dire to uncover the information; (3) and the juror demonstrated actual bias or bias implied as a matter of law that prejudiced the moving party. State v. Buckom, 126 N.C. App. 368, 485 S.E.2d 319 (1997), cert. denied, 522 U.S. 973, 118 S. Ct. 425, 139 L. Ed. 2d 326 (1998).

Juror Misrepresentation Did Not Deny Defendant Right to Trial by Impartial Jury. - Defendant was not denied his rights to confrontation, to effective assistance of counsel, to due process, to a jury trial, and to be free from cruel and unusual punishment when the trial court denied defendant's motion for a mistrial based on the alleged misconduct of a juror; the juror inadvertent failure to disclose the 40-year-old information she had forgotten did not amount to concealment, and the juror demonstrated no bias. State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004).

Denial of a party's right to exercise intelligent peremptory strikes, based solely upon juror misrepresentation during voir dire, is not guaranteed by Art. I, §§ 19 and 24 of the North Carolina Constitution. State v. Buckom, 126 N.C. App. 368, 485 S.E.2d 319 (1997), cert. denied, 522 U.S. 973, 118 S. Ct. 425, 139 L. Ed. 2d 326 (1998).

Defendant's Sentence Need Not Be Based on Unanimous Recommendation. - Neither Art. I, § 24, nor any other provision of the North Carolina Constitution requires that a defendant's sentence be based upon a unanimous recommendation of a jury. State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).

Premature Selection of Foreperson Not a Constitutional Violation. - Court found no violation of G.S. § 15A-1215(a) or the defendant's constitutional rights under this section when 12 jurors prematurely selected a foreperson while alternates were still present in jury room, because they made no deliberations nor had any other conversation regarding the facts of the case. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Special Verdict in Trial for Nonsupport. - In a prosecution under G.S. § 49-2, a verdict upon the issues of paternity and nonsupport, if resolved in favor of the State, is sufficient to support a judgment against defendant without a general verdict by the jury of guilty. This does not contravene the provisions of this section and N.C. Const., Art. I, § 23 requiring trial and verdict by jury in criminal cases. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Jury Instructions. - Defendant was not deprived of his constitutional rights, because no conflict existed between "Issues and Recommendation as to Punishment" form and oral instructions given by the trial court. State v. Peterson, 350 N.C. 518, 516 S.E.2d 131 (1999), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181, 145 L. Ed. 2d 1087 (2000).

Trial court's curative instruction to the jury following the prosecutor's comment at trial was sufficient, even though not made immediately after the prosecutor's comments, as the the trial court stated that the comment was improper, and the statement was followed by an instruction to the jury not to consider the failure of the accused to offer the accused as a witness. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).

Trial judge did not coerce the jury by giving an Allen charge because while the jury's note "clearly stated" that one juror would not change his or her mind, the trial court had discretion to reinstruct the jury in situations where it perceived a deadlock; the trial judge asked the jury, which had been deliberating for only 75 minutes, to continue to deliberate until 5:00 p.m. and instructed the jurors that they would resume deliberations the next morning if needed. State v. Blackwell, 228 N.C. App. 439, 747 S.E.2d 137 (2013).

Jury Request to Review Testimony. - Both this section and G.S. § 15A-1233 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. Failure of the trial court to comply with these mandates entitles defendant to press these points on appeal, notwithstanding his failure to object at trial. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985).

The trial judge's response to the jury's request to review certain testimony by sending a message to the jury through the bailiff, rather than by addressing the jury as a whole in open court, though erroneous, was not prejudicial to defendant. State v. McLaughlin, 320 N.C. 564, 359 S.E.2d 768 (1987).

Special Instruction to Jury Foreperson Violated Constitution. - Defendant's rights under N.C. Const., Art. I, § 24 were violated as a jury foreperson received more than one instruction that the remaining jurors did not receive after the foreperson was ejected by the remaining jurors due to concerns about the foreperson's impartiality; defendant was entitled to a consistently-instructed jury under the constitution. State v. Wilson, 192 N.C. App. 359, 665 S.E.2d 751 (2008), aff'd, 363 N.C. 478, 681 S.E.2d 325 (2009).

Judge's Communication with Jury Via Written Notes. - Judge's communication with jury in the jury room via written notes violated the requirements of G.S. § 15A-1233(a); however, where the judge communicated with all jurors, his notes having been delivered to the jury as a whole, there was no violation of the North Carolina Constitution, and defendant failed to show other prejudice. State v. Colvin, 92 N.C. App. 152, 374 S.E.2d 126 (1988), cert. denied, 324 N.C. 249, 377 S.E.2d 758 (1989).

Conversation Between Court and Juror. - Where the record established that the substance of a conversation between a juror and the court related to the juror's having "overheard something about the case," where the court excused the juror, and to insure that "no one should be suspicious" about his ability to be fair and impartial, this juror was removed from the case prior to deliberations, and where no other juror indicated that he or she had overheard anything about the case, the conversation between the court and the juror could not have influenced the verdict. State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993).

Conversation Between Judge and Foreperson Unrecorded. - Defendant's claim that the trial court had unrecorded bench conversations with a jury foreperson in violation of N.C. Const., Art. I, § 24 was preserved for review, even without an objection at trial under N.C. R. App. P. 10(b)(1). State v. Wilson, 192 N.C. App. 359, 665 S.E.2d 751 (2008), aff'd, 363 N.C. 478, 681 S.E.2d 325 (2009).

Inquiry Into Alleged Communication Between Prosecution and Juror Was Not Required. - Trial court did not err by refusing to inquire further into an alleged communication between the prosecution and a juror where there was no indication that the alleged inappropriate communication had any influence on the juror or the verdict of the entire jury; there was no evidence that the juror heard what the assistant district attorney discussed with the clerk in the courtroom, in the presence of the court. State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306 (2005).

Inquiry by Trial Judge as to Jury's Numerical Split. - In the absence of a federal or state constitutional basis requiring the adoption of a per se rule, the court will look to the "totality of the circumstances" in evaluating a trial judge's inquiry as to a jury's numerical split. State v. Yarborough, 64 N.C. App. 500, 307 S.E.2d 794 (1983).

The context of inquiry as to the jury's numerical split may show that the inquiry is coercive, but such an inquiry is not inherently coercive or violative of this section's guarantee of the right to a trial by jury. State v. Yarborough, 64 N.C. App. 500, 307 S.E.2d 794 (1983).

An inquiry into a jury's numerical division is often useful in timing recesses, in determining whether there has been any progress toward verdict, and in deciding whether to declare a mistrial because of a dead-locked jury. State v. Yarborough, 64 N.C. App. 500, 307 S.E.2d 794 (1983); State v. Fowler, 312 N.C. 304, 322 S.E.2d 389 (1984).

Inquiries into the division of the jury are not a per se violation of this section when the trial court makes it clear that it does not desire to know whether the majority is for conviction or acquittal. Such inquiries are not inherently coercive, and without more do not violate the right to trial by jury guaranteed by the North Carolina Constitution. The appropriate standard is whether in the totality of the circumstances the inquiry is coercive. State v. Fowler, 312 N.C. 304, 322 S.E.2d 389 (1984).

Trial judge's questions about the numerical division of a jury do not constitute a per se violation of this section. Rather, the proper analysis is whether, in considering the totality of the circumstances, the inquiry was coercive. State v. Bussey, 321 N.C. 92, 361 S.E.2d 564 (1987).

Trial judge did not violate defendant's right to trial by jury by asking the jury about its numerical division on the issue of guilt when the jury could not reach a verdict on charges of conspiracy to traffic in cocaine by transportation, trafficking in cocaine by transportation, and maintaining a vehicle which was used for unlawfully keeping or selling controlled substances, or abuse its discretion by giving the jury an instruction on further deliberations, pursuant to G.S. § 15A-1235. State v. Batchelor, 157 N.C. App. 421, 579 S.E.2d 422 (2003).

The disjunctive phrasing of the jury instruction was not a fatal ambiguity which resulted in a nonunanimous jury verdict. State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996).

Polling of Jurors Was Proper. - Where each of the jurors individually was told the charges for which the jury had returned a guilty verdict and was asked whether this was their verdict and whether they still assented to the verdict there was no error in the manner in which the jury was polled. State v. Ramseur, 338 N.C. 502, 450 S.E.2d 467 (1994).

Trial court's failure to inquire why jurors requested to be referred to by individual juror number the day after they returned guilty verdicts and were polled by name did not indicate that defendant was denied a fair trial; defendant's speculation that the jurors were influenced by the seizure suffered by defendant's mother after the verdict was returned or by defendant's attack of a law enforcement officer after the jury was removed from the court room was not enough to show exposure to external influence not was it a de facto indicator of prejudice. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Judge's Warning to Restrict Public Egress Was Proper. - Where trial judge informed those in the courtroom that he was concerned that the jury would be distracted by the movement of spectators in and out of the room and where he consequently warned them that if they wished to leave the courtroom, they should do so immediately, for they would not be allowed to do so after closing arguments began, barring an emergency, the order was not a denial of a public trial in violation of this section since judge did not vacate the courtroom nor bar the courtroom door without due warning to those within and without, and since the judge was authorized under G.S. § 15A-1034(a) to impose reasonable limitations on access to the courtroom. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

Clearing Courtroom During Testimony of Child Rape Victim. - In a prosecution for first-degree rape of a child, the constitutional right of defendant to a public trial was not violated by the court's order that, during the testimony of the seven-year-old victim, the courtroom be cleared of all persons except defendant, defendant's family, defense counsel, defense witnesses, the prosecutor, the State's witnesses, officers of the court, members of the jury, and members of the victim's family. State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981).

Juvenile Proceedings. - Constitutional guaranty of trial by jury has no application to a proceeding under the Juvenile Court Act. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1970).

Absent a statute providing for a jury trial, it is almost universally held that in juvenile court delinquency proceedings the alleged delinquent has no right under the pertinent State or federal Constitutions to demand that the issue of his delinquency be determined by a jury. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1970).

The bifurcated procedure that the legislature has established for impaired driving cases, with the jury determining whether G.S. § 20-138.1 has been violated and the judge determining the length of punishment required under G.S. § 20-179, is constitutional. State v. Field, 75 N.C. App. 647, 331 S.E.2d 221, cert. denied and appeal dismissed, 315 N.C. 186, 337 S.E.2d 582 (1985).

Because the factors before the trial judge in determining sentencing are not elements of the offense, their consideration for purposes of sentencing is a function of the judge and is not susceptible to constitutional challenge based upon either the right to a jury trial under U.S. Const., Amend. VI or this section. State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986), involving sentencing under G.S. § 20-179 for impaired driving.

Increase in Punishment Based on Aggravating Factor. - Trial judge's increasing of defendant's punishment under the Safe Roads Act of 1983 after a finding of a grossly aggravating factor, namely, that defendant had a prior conviction for a similar offense within seven years, did not in any way deprive defendant of his right to jury trial. State v. Denning, 76 N.C. App. 156, 332 S.E.2d 203 (1985), modified and aff'd, 316 N.C. 523, 342 S.E.2d 855 (1986).

Driver's License Revocation. - Since an action to revoke a driver's license is a civil action, jury trial is not necessary. State v. Carlisle, 20 N.C. App. 358, 201 S.E.2d 704 (1973), aff'd, 285 N.C. 229, 204 S.E.2d 15 (1974).

Disbarment Proceedings. - In disbarment proceedings, respondent's exception on the ground that the proceedings deprived him of his right to trial by jury was untenable when the matters in issue were determined by a jury upon his appeal to the superior court. In re West, 212 N.C. 189, 193 S.E. 134 (1937).

The North Carolina Workers' Compensation Act was held not to be unconstitutional as impairing the right of trial by jury guaranteed by this section. Hanks v. Southern Pub. Util. Co., 204 N.C. 155, 167 S.E. 560 (1933).

Subsection (c) of G.S. § 15A-928 does not violate the right to jury trial embodied in this section. State v. Smith, 291 N.C. 438, 230 S.E.2d 644 (1976).

Determination of Appropriate Sentence. - North Carolina courts have long adhered to the principle forbidding a trial court from improperly considering the defendant's exercise of her rights under this provision of the Constitution as an influential factor in determining the appropriate sentence. State v. Pavone, 104 N.C. App. 442, 410 S.E.2d 1 (1991).

Defendant's right to a jury trial was violated where a sentence was enhanced based on the fact that he committed a crime while on probation; probationary status should have been a factor determined by a jury. State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895 (2005).

Trial court's finding of an aggravating factor under G.S. § 15A-1340.16(d)(12) at defendant's trial was harmless beyond a reasonable doubt, and did not violate N.C. Const., Art. I, § 24. State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, 550 U.S. 948, 127 S. Ct. 2281, 167 L.E.2d 1114 (2007).

Imposition of an aggravated sentence on defendant's conviction for assault with a deadly weapon with intent to kill inflicting serious injury did not violate defendant's right to a jury trial because while G.S. § 15A-1340.16 did not apply based on when the crime occurred, a common-law procedural mechanism existed for submitted aggravating factors to the jury in the form of a special verdict; overwhelming evidence was presented that defendant shot a rival gang member in the rival gang member's territory, supporting the aggravating factor that defendant committed the crime to further or benefit the purposes of a criminal street gang. State v. Roberson, 182 N.C. App. 133, 641 S.E.2d 347 (2007), review denied, 361 N.C. 367, 646 S.E.2d 540 (2007).

Trial court did not deprive the defendant of a fair trial by denying the defendant's pre-trial motion to continue the trial to a date more than 20 days after the defendant was charged in a true bill of indictment with habitual felon status; the assistant district attorney handling the case, notified the court that the State was not going to proceed with the habitual felon charge until a later date, if at all, and after the jury verdict was announced, the State dismissed the defendant's habitual felon indictment so that defendant was sentenced solely on the substantive charges against the defendant. State v. Adams, 156 N.C. App. 318, 576 S.E.2d 377 (2003), cert. denied, 357 N.C. 166, 580 S.E.2d 698 (2003).

Failure to Intervene Ex Mero Motu. - Defendant's rights to due process and a fair trial under N.C. Const., Art. I, §§ 18, 19, 23, 24, and 27 were not violated by the trial court's failure to intervene ex mero motu in the prosecutor's closing argument, as while comparisons between criminal defendants and animals were strongly disfavored, the state's use of an analogy to animals in packs helped explain the complex legal theory surrounding premeditation and deliberation. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476 (2011), review denied 365 N.C. 197, 709 S.E.2d 920, 2011 N.C. LEXIS 534 (N.C. 2011), dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (N.C. 2011).

Multiple Short-Form Indictments Did Not Create a Danger of Ununanimous Verdicts. - Appellate court erred in reversubg defendant's convictions of first-degree statutory rape, G.S. § 14-27.2, and taking indecent liberties with a minor, G.S. § 14-202.1(a)(1), as defendant was properly charged by short-form indictments on all the charges as authorized by G.S. § 15-144.2(a), because there was no danger of a nonunanimous verdict resulting from the multiple indictments in violation of N.C. Const., Art. 1, § 24, and G.S. § 15A-1237(b), as even if some jurors disagreed on the kinds of sexual misconduct committed, the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties as required by G.S. § 14-202.1(a)(1), and because defendant was indicted on five counts of statutory rape, the victim testified to five specific incidents of statutory rape, and five verdicts of guilty were returned. State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006).

State's Recidivist Statutes Survive Double Jeopardy Challenges. - Recidivist statutes, or repeat-offender statutes, survived double jeopardy challenges because they increased the severity of the punishment for the crime being prosecuted, and they did not punish a previous crime a second time; the Apprendi and Blakely holdings did not extend to the habitual misdemeanor assault statute, G.S. § 14-33.2. State v. Massey, 179 N.C. App. 803, 635 S.E.2d 528 (2006), review denied, 361 N.C. 224, 643 S.E.2d 15 (2007).

Blakely Error Harmless. - Trial court's Blakely error in finding that defendant committed the present offense while on pretrial release on another charge without submitting the question to a jury was harmless pursuant to G.S. § 15A-1443(b) because defendant never disputed that he was on pretrial release when he committed the crimes, and the validity of the charges for which he was on pretrial release was irrelevant. State v. Watts, 185 N.C. App. 539, 648 S.E.2d 862 (2007), cert. denied, 552 U.S. 1287, 128 S. Ct. 1719, 170 L.E.2d 525 (2008).

Applied in State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Parker, 29 N.C. App. 413, 224 S.E.2d 280 (1976); State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977); State v. Coats, 301 N.C. 216, 270 S.E.2d 422 (1980); State v. Deyton, 59 N.C. App. 326, 296 S.E.2d 497 (1982); State v. McEntire, 71 N.C. App. 720, 323 S.E.2d 439 (1984); State v. Britt, 93 N.C. App. 126, 377 S.E.2d 79 (1989); State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992); State v. Honaker, 111 N.C. App. 216, 431 S.E.2d 869 (1993); State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000); State v. Reaves, 142 N.C. App. 629, 544 S.E.2d 253 (2001); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004); State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005); State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009); State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); State v. Jefferies, - N.C. App. - , 776 S.E.2d 872 (2015).

Cited in Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981); State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982); State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985); State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783 (1986); State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986); State v. Davis, 86 N.C. App. 25, 356 S.E.2d 607 (1987); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987); State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988); State v. Godwin, 95 N.C. App. 565, 383 S.E.2d 234 (1989); State v. Hope, 96 N.C. App. 498, 386 S.E.2d 224 (1989); Ragan v. County of Alamance, 98 N.C. App. 636, 391 S.E.2d 825 (1990); State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997); In re Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991); State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991); State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410 (1993); State v. Harris, 333 N.C. 544, 428 S.E.2d 823 (1993); State v. Nelson, 341 N.C. 695, 462 S.E.2d 225 (1995); State v. Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997); State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997); State v. Larry, 345 N.C. 497, 481 S.E.2d 907 (1997), cert. denied, 522 U.S. 917, 118 S. Ct. 304, 139 L. Ed. 2d 234 (1997); State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S. 1090, 119 S. Ct. 844, 142 L. Ed. 2d 698 (1999); State v. McNeil, 350 N.C. 657, 518 S.E.2d 486 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 321 (2000); State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000); State v. Galloway, 145 N.C. App. 555, 551 S.E.2d 525 (2001), appeal dismissed, 356 N.C. 307, 570 S.E.2d 885 (2002); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002); State v. Price, - N.C. App. - , 611 S.E.2d 891 (2005); State v. Norris, 360 N.C. 507, 630 S.E.2d 915 (2006); State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68 (2007), cert. denied 717 S.E.2d 384, 2011 N.C. LEXIS 728 (N.C. 2011); State v. Replogle, 181 N.C. App. 579, 640 S.E.2d 757 (2007); State v. Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007); State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21 (2008); State v. Jacobs, 193 N.C. App. 602, 668 S.E.2d 346 (2008); State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009); State v. Lackey, 204 N.C. App. 153, 693 S.E.2d

218 (2010); State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), review denied 717 S.E.2d 377, 2011 N.C. LEXIS 666 (N.C. 2011); State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012); State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299 (2012), review denied, 365 N.C. 566, 724 S.E.2d 532, 2012 N.C. LEXIS 290 (N.C. 2012); State v. Smith, 225 N.C. App. 471, 736 S.E.2d 847 (2013); State v. Caudill, 227 N.C. App. 119, 742 S.E.2d 268 (2013), dismissed and review denied 747 S.E.2d 578, 2013 N.C. LEXIS 929 (2013); State v. Hill, 227 N.C. App. 371, 741 S.E.2d 911 (2013), review denied, 747 S.E.2d 577, 2013 N.C. LEXIS 903 (2013); State v. Ward, - N.C. App. - , - S.E.2d - (Nov. 1, 2016); State v. Robinson, - N.C. App. - , - S.E.2d - (Dec. 20, 2016).

II. UNANIMOUS VERDICT OF TWELVE.



Jury Must Have 12 Persons. - It is elementary that the jury provided by law for the trial of indictments is composed of 12 persons; a less number is not a jury. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

And No More. - If a defendant in a felony trial cannot consent to a trial by fewer than 12 jurors, it is clear that he cannot assent to deliberations by more than 12. State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976).

A verdict by 11 jurors is a nullity, despite defendant's failure to assign his conviction by 11 jurors as error. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

Unanimous Verdict of 12 Required. - A verdict of guilty rendered by a number of jurors less than 12 is unconstitutional. State v. Berry, 190 N.C. 363, 130 S.E. 12 (1925).

No person may be finally convicted of any crime except by the unanimous consent of 12 jurors who have been duly impaneled to try his case. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

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, 212 S.E.2d 113 (1975).

To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged. State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982); State v. McDougall, 308 N.C. 1, 301 S.E.2d 308, cert. denied, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983); 501 U.S. 1223, 111 S. Ct. 2840, 115 L. Ed. 2d 1009 (1991).

Defendant was granted a new trial of the kidnapping charge because defendant's right to a unanimous jury verdict was violated by virtue of the inclusion of the "removal" instruction; where the victim was moved a short distance of several feet, and was not transported from one room to another, the victim was not "removed" within the meaning of the kidnapping statute. State v. Boyd, 214 N.C. App. 294, 714 S.E.2d 466 (2011).

Verdict Unaffected by Subsequent Change of Mind. - If the jury is unanimous at the time the verdict is returned, the fact that some of them change their minds at any time thereafter is of no consequence; the verdict rendered remains valid and must be upheld. State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991).

Risk of Nonunanimous Verdict. - The risk of a nonunanimous verdict arises if the trial court instructs the jury that it may find the defendant guilty of the crime charged on either of two alternative grounds and each alternative ground constitutes a separate and distinct offense. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428 (1999).

There is no risk of a nonunanimous verdict where the statute under which the defendant is charged criminalizes a single wrong that may be proved by evidence of the commission of any one of a number of acts, and the court instructs the jury disjunctively as to various alternative acts that will establish an element of the offense, because in such a case the particular act performed is immaterial. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428 (1999).

Determination of Ambiguity As to Verdict Unanimity. - If a statute criminalizes two or more discrete and separate wrongs, and a jury instruction permitting conviction on either of two alternative grounds possibly could result in a nonunanimous verdict, the court must examine the verdict, the charge, the jury instructions, and the evidence to determine whether any ambiguity as to unanimity has been removed. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428 (1999).

When defendant was charged with 10 counts of statutory rape, the trial court submitted all 10 counts to the jury without differentiating among them, the indictment alleged 10 counts occurring between two dates, without specifying a date for any one charge, and the verdict sheets indicated guilty verdicts without specifying a particular offense, defendant's constitutional right to a unanimous jury verdict was violated because it could not be said that the jury unanimously agreed that defendant committed any particular offense. State v. Holden, 160 N.C. App. 503, 586 S.E.2d 513 (2003), aff'd, 359 N.C. 60, 602 S.E.2d 360 (2004).

Because of the trial court's failure to ensure that each juror had in mind the same instances of abuse when voting to convict defendant of multiple counts of first-degree sexual offense and indecent liberties with a minor, defendant's right to a unanimous jury verdict was jeopardized. State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280 (2005).

Jury instruction error rendered the jury verdict fatally ambiguous, depriving defendant of defendant's constitutional right to a unanimous verdict granted by N.C. Const., Art. I, § 24. State v. Haddock, 191 N.C. App. 474, 664 S.E.2d 339 (2008).

Submission of an issue to the jury in the disjunctive is reversible error if it renders the issue ambiguous and thereby prevents the jury from reaching a unanimous verdict. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986).

A verdict of guilty following submission in the disjunctive of two or more possible crimes to the jury in a single issue is ambiguous and therefore fatally defective. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986).

By instructing the jury that it could find defendant guilty of trafficking in marijuana if it found that defendant knowingly possessed or knowingly transported 10,000 pounds or more of marijuana, the trial judge submitted two possible crimes to the jury, as the jury could find defendant guilty if it found that he committed either or both of the crimes submitted to it. Thus, the jury's verdict of guilty was fatally defective because it was ambiguous, depriving defendant of his constitutional right to be convicted by a unanimous jury. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986).

The trial court committed reversible error in instructing the jury that it could convict the defendant of first degree sex offense if it found that he forced the victim to perform either fellatio or anal intercourse, as defendant had a constitutional right to be convicted by the unanimous verdict of a jury in open court, and under this instruction there was no way to tell whether the defendant was convicted of second degree sexual offense because the jury unanimously agreed that the defendant engaged in fellatio, anal intercourse, both fellatio and anal intercourse, or whether some members of the jury found that he engaged in fellatio but not anal intercourse, and some found that he engaged in anal intercourse but not fellatio. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403 (1987), aff'd, 93 N.C. App. 579, 378 S.E.2d 812 (1989).

Instructions in a disjunctive form on the charge of maliciously assaulting in a secret manner were fatally ambiguous, thereby resulting in an uncertain verdict in violation of defendant's right to a unanimous verdict. State v. Lyons, 330 N.C. 298, 410 S.E.2d 906 (1991).

A disjunctive jury instruction on a first-degree sexual offense did not risk a nonunanimous verdict by defining a sexual act as either cunnilingus or penetration, where the statutory definition of "sexual act" did not create disparate offenses, but merely enumerated alternative methods of showing the commission of a sexual act. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428 (1999).

While the evidence presented by the State tended to show that the marijuana weighed 18 pounds, defendant testified that the weight of the box was about six or seven pounds, thus, the evidence could support an inference that defendant possessed and/or transported exactly 10 pounds of marijuana, which did not qualify as trafficking in marijuana under G.S. § 90-95(h)(1)(a). Considering the evidence and erroneous jury instructions that the jury should find defendant guilty if it found that he possessed "10 pounds or more but less than 50 pounds" of marijuana, the appellate court could not conclude that the jury unanimously convicted defendant under the conduct proscribed in G.S. § 90-95(h)(1)(a). State v. Trejo, 163 N.C. App. 512, 594 S.E.2d 125 (2004).

Where the jury was instructed on alternative theories of second-degree kidnapping, some of which lacked sufficient evidentiary support, and it was unclear which theory the jury based defendant's conviction on, defendant was entitled to a new trial on the second-degree kidnapping charge. State v. Johnson, 183 N.C. App. 576, 646 S.E.2d 123 (2007).

Unanimous Verdict of Single Offense. - Permitting the jury to consider the DWI defendant's driving both at the time of the accident as well as when he later returned to the accident scene in his truck did not result in him being convicted on less than a unanimous verdict, since this section proscribes a single offense, not crimes in the disjunctive, and even if all jurors did not agree as to the time and extent of the defendant's drunkenness, they unanimously found him guilty of the single offense of impaired driving. State v. McCaslin, 132 N.C. App. 352, 511 S.E.2d 347 (1999).

Defendant's conviction for habitual impaired driving did not have to be overturned despite the fact that the verdict sheet given to the jury did not differentiate between the two statutory definitions of impaired driving, and thus it was not known which definition applied; the fact remained that the jury unanimously found defendant guilty of the single offense of impaired driving, which meant that defendant was not deprived of his state constitutional and state statutory right to a unanimous verdict. State v. Bradley, 181 N.C. App. 557, 640 S.E.2d 432 (2007).

Defendant was not deprived of his right to a unanimous verdict under N.C. Const., Art. I, § 24 by a jury instruction on separate specific traffic offenses that, although distinct, might serve to establish a single element of involuntary manslaughter, culpable negligence. State v. Davis, 198 N.C. App. 443, 680 S.E.2d 239 (2009).

Capital Cases. - Verdict of death in a capital case must be by unanimous vote of the 12 jurors. State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), overruled on other grounds, State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988).

Trial judge correctly instructed jury that it could find immoral, improper, or indecent liberties with a child upon a finding that defendant either improperly touched his son or induced his son to touch him; the instruction did not permit conviction by less than a unanimous verdict. State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990).

Trial court committed no error in its instruction to the jury concerning the charges of indecent liberties with a child and first degree sexual offense by not requiring a finding of unanimity to each charged offense. State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672 (2001).

Trial court did not err by allowing defendant to be convicted with fewer than 12 jurors finding him guilty because the trial court's use of the term "consensus" in an instruction did not violate the verdict unanimity requirement, as the trial judge twice repeated that the jury had to unanimously agree on a verdict. State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310 (2005).

Trial court's disjunctive instruction on the charge of felony operation of a motor vehicle to elude arrest was not improper; while many of the enumerated aggravating factors are in fact separate crimes under various provisions of the general statutes, they are not separate offenses, but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a class H felony. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009), cert. denied, - U.S. - , 130 S. Ct. 553, 175 L. Ed. 2d 385 (2009).

Defendant failed to show any plain error in the trial court's instructions to the jury, which charged that defendant was guilty if the jury found that he sold between 10 and 50 pounds of marijuana, because the State provided evidence that the weight of the marijuana involved in a police informant's transactions with defendant was 11 pounds and 13 pounds; the State provided evidence that the weight of the marijuana involved in a police informant's transactions with defendant was 11 pounds and 13 pounds, and because the jury was not presented with any evidence that the weight of marijuana involved was exactly 10 pounds, it was not probable that the instructional error had an impact on the jury's verdicts. State v. Charles, 194 N.C. App. 500, 669 S.E.2d 859 (2008), cert. denied, writ dism'd, 363 N.C. 658, 685 S.E.2d 511 (2009).

Jury instructions on three alternative theories of guilt under which defendant could be convicted of burglary did not violate N.C. Const., Art. I, § 24 as the separate theories of guilt were not separate offenses, and all of the theories required a common mindset to burglarize the victims' home and an act in furtherance of the crime; the instructions were proper, even though two theories required defendant's presence and one required him to not be present. State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120 (2011).

Court of appeals erred in vacating defendant's conviction for first-degree kidnapping because the trial court's disjunctive jury instruction did not violate defendant's constitutional right to be convicted only by the unanimous verdict of a jury in open court; it is not necessary for the State to prove, nor for the jury to find, that defendant committed a particular act other than that of confining, restraining, or removing the victim, and beyond that, defendant's intent or purpose is the focus. State v. Walters, 368 N.C. 749, 782 S.E.2d 505 (2016).

Instruction to Single Juror. - Court of appeals properly granted defendant a new trial on the ground that the trial court violated defendant's right to a unanimous jury verdict under N.C. Const., Art. I, § 24 by giving instructions to the foreperson that it did not give to the rest of the jury because the error was preserved for appeal, notwithstanding defendant's failure to object, when the trial court's instructions to a single juror violated defendant's right to a unanimous jury verdict, and the trial court gave the foreperson instructions during its recorded and unrecorded conversations that it did not provide to the rest of the jury in violation of defendant's right to a unanimous jury verdict; the State failed to show that the error was harmless beyond a reasonable doubt because the trial court instructed only the foreperson that the jurors needed to resolve the issue in the jury room, and its failure to similarly instruct the remaining jurors could have given them the impression that it had resolved the matter, foreclosing further debate during deliberations. State v. Wilson, 363 N.C. 478, 681 S.E.2d 325 (Aug. 28, 2009).

Where the trial court instructed a single juror in violation of defendant's right to a unanimous jury verdict under N.C. Const., Art. I, § 24, the error is deemed preserved for appeal notwithstanding the defendant's failure to object because the right to a unanimous jury verdict is fundamental to the system of justice; while N.C. App. R. 10(b)(1) protects judicial economy and speaks to the 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, 681 S.E.2d 325 (Aug. 28, 2009).

Verdict Declared Unanimous Despite Initial Unresponsiveness. - Where the trial court, upon receiving an unresponsive answer to question concerning the unanimity of the verdict, repeated the question and received a responsive and affirmative answer, there was no ambiguity in the announcement of the verdict and defendant was convicted in the fashion provided for by the Constitution. State v. Coats, 46 N.C. App. 615, 265 S.E.2d 486, aff'd, 301 N.C. 216, 270 S.E.2d 422 (1980).

Right to Poll Jury. - The defendant was entitled as a matter of right to know whether each juror assented to the verdict, announced by the juror who undertook to answer for the jury, and to that end he had the right to insist that a specific question be addressed to and answered by each juror in open court, as to whether he assented to said verdict. State v. Boger, 202 N.C. 702, 163 S.E. 877 (1932).

When requested in apt time, a party is entitled to have the jury polled; that is, to have an inquiry directed to each juror in order to ascertain his assent to the announced verdict. When the jury is so polled and the verdict is challenged, the record must affirmatively establish that each juror assented to the verdict entered. State v. Dow, 246 N.C. 644, 99 S.E.2d 860 (1957).

When requested in apt time, both defendant and the prosecuting attorney for the State have a legal right to demand that the jury be polled. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968).

The right to have the jury polled is surely one of the best safeguards for the protection of the accused, and as an incident to jury trials would seem to be a constitutional right, and its exercise only a mode, more satisfactory to the prisoner, of ascertaining the fact that it is the verdict of the whole jury. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971).

A defendant has a constitutional right, upon timely request, to have the jury polled as a corollary to his right to a unanimous verdict. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976).

The right to a poll of the jury in criminal actions is firmly established by this section and by statute. State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991).

Polling of Jury Described. - The polling of the jury is a procedure whereby the jurors are asked individually the finding they have arrived at. The practice requires each juror to answer for himself, thus creating an individual response. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968).

A criminal defendant's right to have the jury polled is the right to have questions propounded to the jurors, individually, concerning whether each juror assented and still assents to the verdict tendered to the court. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976).

The predominant purpose of the poll is to ascertain if the verdict as tendered by the jury is the unanimous verdict of a jury in open court, as prescribed by this section. Lipscomb v. Cox, 195 N.C. 502, 142 S.E. 779 (1928).

The object of the jury poll is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has been in fact reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968); State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976); State v. Davis, 61 N.C. App. 522, 300 S.E.2d 861 (1983).

By having the jury polled, a defendant can ascertain if there has been any misunderstanding of the requirement of unanimity by any juror. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971).

The rationale behind requiring that any polling of the jury be before dispersal is to ensure that nothing extraneous to the jury's deliberations can cause any of the jurors to change their minds. State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991).

The purpose of polling the jury is to ensure that the jurors unanimously agree with and consent to the verdict at the time it is rendered. State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991).

Only two questions are necessary to elicit whether the juror assented in the jury room and still assents in open court to the jury verdict. The first is: "Was this your verdict?" The addition of the second question "Is this now your verdict?" relates to the same time period addressed in the third question, "Do you still agree and assent thereto?" The second and third questions refer to the present in-court state of mind of the juror and serve only to emphasize by repetition that the crucial assent is the juror's assent to the verdict when he returns to the courtroom. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976).

Right of Juror to Dissent. - When the verdict has been received from the foreman and has been entered, it is the duty of the clerk to cause the jury to hearken to their verdict as the court has it recorded, and to read it to them and say: "So say you all?" At this time any juror may retract on the ground of conscientious scruples, mistake, fraud, or otherwise, and his dissent would then be effectual. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968).

Any juror may dissent from a verdict to which he has agreed in the jury room at any time before it is received and entered up. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976).

Verdict Not Defective Where Juror Eventually Freely Assents. - A jury verdict is not defective if it appears that a juror eventually freely assented to the verdict. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976).

Coercion of Unanimous Verdict. - Jury could have reasonably concluded that it was required to deliberate until it reached a unanimous verdict, which was a violation of G.S. § 15A-1235(c) and N.C. Const., Art. I, § 24, where the trial court encouraged deliberations despite being told three times that jury was deadlocked, and it did not address juror's request to be absent the next day so he could attend his wife's surgery. State v. Dexter, 151 N.C. App. 430, 566 S.E.2d 493 (2002).

A verdict is not defective if a juror understood that he or she has a right to dissent and eventually freely assented to the verdict. State v. Davis, 61 N.C. App. 522, 300 S.E.2d 861 (1983).

Trial court did not coerce the jury's verdict by instructing the deadlocked jury on acting in concert, an instruction that should have originally been included, or inquiring into the numerical division of the jury's deadlock, as the court did not address whether the majority favored conviction. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896 (2007), review denied, 361 N.C. 704, 653 S.E.2d 878 (2007), appeal dismissed, review denied, 362 N.C. 372 (2008).

Trial judge's re-instructions to a deadlocked jury did not contain the substance of G.S. § 15A-1235(b) and, as a result, unconstitutionally coerced unanimous guilty verdicts because it did not contain a suggestion to the jurors that, in the exchange of ideas and deliberation with each other, no juror was expected to surrender his honest conviction nor reach an agreement that could do violence to individual judgment. State v. Gillikin, 217 N.C. App. 256, 719 S.E.2d 164 (2011).

Although defendant argued the trial court's re-instructions to the jury coerced the jury to return unanimous verdicts in violation of N.C. Const., Art. I, § 24, under the totality of the circumstances, the trial court's instruction to the jury they were going to stay longer with a goal of reaching a unanimous verdict on two remaining counts was not coercive, especially in light of the overwhelming evidence of defendant's guilt. State v. Lee, 218 N.C. App. 42, 720 S.E.2d 884 (2012).

Trial court violated G.S. § 15A-1235 when it instructed the deadlocked jury regarding the time and expense associated with the trial and a possible retrial and gave the jury 30 minutes to reach a verdict, as such resulted in a coerced verdict in violation of this section. State v. May, 230 N.C. App. 366, 749 S.E.2d 483 (2013).

Charge on Unanimity Not Required in Absence of Request. - In the absence of a request, a trial judge is not required to charge the jury that its verdict must be unanimous. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971).

Omission of Charge Held Harmless. - Where the jury was polled and all the jurors assented to the verdict in open court, defendant was assured that all the jurors agreed with the verdict rendered, and the omission of the charge on unanimity was entirely harmless. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971).

Selection of Alternate Juror Not Unconstitutional. - Former G.S. § 9-21 (see now G.S. § 9-18) providing that the court may order the selection of an alternate juror in those cases which seem likely to be protracted, does not infringe upon this constitutional provision. State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934).

But presence of alternate in the jury room during deliberations violates this section and G.S. § 9-18 and constitutes reversible error per se. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975); State v. Rowe, 30 N.C. App. 115, 226 S.E.2d 231 (1976); State v. Turner, 48 N.C. App. 606, 269 S.E.2d 270 (1980).

No Violation of Right to Unanimous Verdict. - When a criminal jury indicated it was having difficulty reaching a verdict, the trial court's request that the jury reveal the numerical split of its vote was not a per se violation of defendant's right to a unanimous verdict, under N.C. Const., Art. I, § 24, when the trial court made it clear that it did not desire to know whether the majority was for conviction or acquittal. State v. Rasmussen, 158 N.C. App. 544, 582 S.E.2d 44 (2003), cert. denied, 357 N.C. 581, 589 S.E.2d 362 (2003).

There was no risk of a lack of unanimity where defendant was charged with and convicted of the same number of offenses, and the evidence supported that number of offenses, and using the same underlying act to support convictions for both first-degree sexual offense and indecent liberties did not violate defendant's constitutional protection against double jeopardy; where the instructions told jury that it must "agree unanimously" on particular sex offenses and limited consideration of first-degree sexual offenses to the approximate dates on which they were alleged to have occurred and to a specific act, and dates and acts corresponded with the evidence, the instructions were proper and there was no lack of unanimity. State v. Brewer, 171 N.C. App. 686, 615 S.E.2d 360 (2005), cert. denied, - N.C. - , 632 S.E.2d 493 (2006).

Defendant's right to an unanimous verdict under N.C. Const., Art. I, § 24, G.S. § 15A-1201, and G.S. § 15A-1237(b) was not violated by generic testimony, or evidence of more incidents than there were criminal charges. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868 (2006), review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

Defendant was found guilty by a unanimous jury where the trial judge was clear in the jury instructions that specific incident corresponded to a particular charge and that the jury must be unanimous in reaching a verdict on each charge. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267 (2006).

Where the State presented sufficient evidence to support the elements of each crime charged, defendant's constitutional right to a unanimous jury was not violated despite defendant's contention that neither the jury instructions nor the verdict sheets required the jury to unanimously agree on the specific acts defendant committed to support each verdict. State v. Wallace, 179 N.C. App. 710, 635 S.E.2d 455 (2006), cert. denied, appeal dismissed, 361 N.C. 436, 649 S.E.2d 896 (2007).

When defendant was convicted of contributing to the delinquency of a minor under G.S. § 14-316.1, a jury did not have to unanimously agree as to the act that defendant encouraged or assisted the minor involved in the crime to commit, for which the juvenile could be adjudicated a delinquent, as long as it agreed that he encouraged or assisted the juvenile in the performance of such an act, because a conviction properly resulted from producing, promoting or contributing to any condition of delinquency, and the crime's gravamen was defendant's conduct, rather than that of the juvenile. State v. Cousart, 182 N.C. App. 150, 641 S.E.2d 372 (2007).

Defendant's convictions for felonious sexual act with a minor under the age of 13 and indecent liberties were erroneously reversed on the theory that it could not be said that the jury unanimously found defendant committed the same specific act to support each conviction because, while different jurors might have found defendant committed different acts of misconduct, as the evidence showed more acts of misconduct than defendant was charged with, the jury unanimously agreed that sexual misconduct occurred; thus, defendant's right to a unanimous verdict was not violated. State v. Massey, 361 N.C. 406, 646 S.E.2d 362 (2007).

Because the trial court did not give any disjunctive instruction and, in any event, the unanimity cases relied upon by defendant did not apply to a charge of conspiracy to traffic in cocaine, the trial court's instruction did not create a risk of a non-unanimous verdict. State v. Davis, 188 N.C. App. 735, 656 S.E.2d 632 (2008), cert. denied, 362 N.C. 364, 664 S.E.2d 313 (2008).

Because the trial court determined that a juror, who had discussed the case with another juror in a bathroom attached to the juror room, had not been intimidated or received outside information and was in agreement with the verdict reached by the jury, and no conversations had occurred outside the jury room, at most, the record established that the two jurors may have discussed the case between themselves; thus, there was no violation of the unanimity requirement. State v. Jackson, 189 N.C. App. 747, 659 S.E.2d 73 (2008), review denied, appeal dismissed, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, - U.S. - , 129 S. Ct. 1532, 173 L. Ed. 2d 662 (2009).

Trial court's instructions allowed a jury to find defendant guilty of felony murder if it found he committed either robbery with a dangerous weapon of the store owners or robbery with a dangerous weapon of a customer. Because either of these alternative acts established an element of felony murder - namely, the commission of one of the several felonies enumerated in G.S. § 14-17 - the N.C. Const., Art. 1, § 26 and G.S. § 15A-1237(b) requirements of jury unanimity were satisfied. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, - U.S. - , 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

Juror misconduct consisting of a juror's conversation about jury deliberations with a trial spectator that occurred after the jury's guilty verdict of murder but prior to sentencing was not grounds for a mistrial because there was no evidence that the jurors improperly discussed the case before the verdict; hence, defendant did not demonstrate prejudice as to the jury's determination of his guilt under G.S. § 15A-1061. State v. Hester, 216 N.C. App. 286, 715 S.E.2d 905 (2011), dismissed and review denied 365 N.C. 563, 724 S.E.2d 917, 2012 N.C. LEXIS 271 (N.C. 2012).

In defendant's trial on charges of taking indecent liberties with a child, defendant's constitutional right to a unanimous jury verdict, N.C. Const., Art. I, § 24, was not violated by the trial court's jury instructions and the verdict sheets because the trial court's instructions explicitly distinguished among the five indecent liberties charges and directed the jurors to find defendant guilty on each count only if they determined that defendant had committed the requisite acts within the designated time periods, which were set forth in the indictments, and, as the court informed the jurors in its instructions, each verdict sheet was paired with a particular indictment as indicated in the top right-hand corner of the verdict sheet State v. Comeaux, 224 N.C. App. 595, 741 S.E.2d 346 (2012).

Because each of the alternative acts alleged to support defendant's failure to register as a sex offender satisfied the third element of the jury instruction, that defendant changed his address and failed to notify the sheriff in the requisite time period, the requirement of jury unanimity was satisfied. State v. Crockett, 238 N.C. App. 96, 767 S.E.2d 78 (2014).

Jury was not presented with either an expressly or functionally disjunctive instruction on the charge of discharging a firearm into occupied property because the defendant was indicted for firing only into the home of the victim; at trial, the State presented evidence only suggesting that the home that was fired into was the victim's home; and the victim testified at length about the bullet holes and damage done to her home; thus, the defendant was not denied his right to a unanimous jury verdict. State v. Charleston, - N.C. App. - , 789 S.E.2d 513 (2016).

Insufficient Evidence Regarding Jurors Praying. - There was insufficient evidence to show the asserted ground for relief as defendant maintained in his motion for appropriate relief under G.S. § 15A-1420 that two jurors had prayed together outside the jury room in his death penalty case. This was not shown to have been misconduct as defendant did not present documentary evidence. G.S. § 15A-1420(b) required, that those jurors had discussed the case while they prayed, and their prayers did not constitute "deliberation" outside of the jury room, such that would have violated defendant's right to have a jury of 12 jurors under N.C. Const., Art. I, § 24. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

III. SELECTION OF JURORS.

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The right to trial by jury carries with it the right to be tried before a body selected in such a manner that competing and divergent interests and perspectives in the community are reflected rather than reproduced absolutely. State v. Bowman, 349 N.C. 459, 509 S.E.2d 428 (1998), cert. denied, 527 U.S. 1040, 119 S. Ct. 2403, 144 L. Ed. 2d 802 (1999).

Juror May Still Serve If Juror Can Lay Aside Opinion. - Notwithstanding a juror's opinion as to how a case should be decided, a juror may still serve if the court determines that the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, cert. denied, 332 N.C. 670, 424 S.E.2d 414 (1992).

Systematic Exclusion of Members of Defendant's Race from Grand Jury Requires Quashing of Indictment. - This section of the Constitution requires the sustaining of a motion to quash an indictment of a defendant who proves that the members of his race have been systematically excluded from the juries of the county in which he has been indicted. State v. Peoples, 131 N.C. 784, 42 S.E. 814 (1902).

The provisions of this section and N.C. Const., Art. I, § 19 are to be so interpreted and that systematic exclusion from the grand jury of persons, otherwise qualified, because of their race, requires, upon motion duly made, the quashing of an indictment returned against a member of that race by such grand jury, irrespective of the fact that all members of the grand jury were, themselves, qualified jurors. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

But Exclusion of Class of Persons from Jury Service Will Not Always Invalidate Indictment. - Even the complete exclusion, by State law, of a group or class of persons from eligibility for jury service will not make invalid an indictment by a grand jury, selected in accordance with such State law, so long as there is no reasonable basis for the conclusion that the ineligible group or class would bring to the deliberations of the jury a point of view not otherwise represented upon it, at least where the defendant is not a member of the excluded group. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

Petit juries must be drawn from a source fairly representative of the community; however, petit juries actually chosen need not mirror the community nor reflect the various distinctive groups in the population. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268 (1990).

Statistics of Underrepresentation. - Statistics concerning one jury pool, standing alone, are insufficient to show that underrepresentation of the defendant's race is due to systematic exclusion of the group in the jury selection process. State v. Bowman, 349 N.C. 459, 509 S.E.2d 428 (1998), cert. denied, 527 U.S. 1040, 119 S. Ct. 2403, 144 L. Ed. 2d 802 (1999).

A jury venire of only 8.3% African-Americans, where the census for the county revealed that African-Americans comprised 16.15% of the county's population, did not encroach on the defendant's constitutional right to be tried by a jury of his or her peers, where he did not allege systematic exclusion, only that the court should have taken affirmative steps to ensure that the jury venire called for his trial was racially proportionate; a 7.85% difference, standing alone, did not render the jury venire constitutionally infirm. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Showing Disproportionate Racial Representation. - To establish a prima facie case of disproportionate representation of a defendant's race in a jury venire, a defendant must show: (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the group representation in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. State v. Bowman, 349 N.C. 459, 509 S.E.2d 428 (1998), cert. denied, 527 U.S. 1040, 119 S. Ct. 2403, 144 L. Ed. 2d 802 (1999).

Evidence of Racial Exclusion Held Insufficient. - Mere statement in defendant's brief that the systematic maneuverings of the prosecutor excluded persons of defendant's race from the jury, which was not supported by the record, failed to show that members of defendant's race were systematically or arbitrarily excluded from the jury panel. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

The defendant failed to make a prima facie case of racially motivated peremptory challenges, where the State was willing to accept 40% of the blacks tendered. State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (1987).

Defendant found guilty of murder and robbery failed to establish a prima facie case of racial discrimination in the State's use of its peremptory challenges where the State's questions during voir dire focused on the prospective juror's feelings about capital punishment and the age of the juror, or his or her children, as compared with defendant's age; the venire persons were brought into the courtroom individually, so neither defendant nor the State knew how many black citizens were present in the venire or whether a black citizen would be examined next, and three of the first four jurors seated were black, as were both defendant and the victim, thus diminishing the likelihood that racial issues were inextricably bound up with the conduct of the trial. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268 (1990).

A small sample of 40 jurors from the master list of jurors of a county alone was insufficient to establish a systematic exclusion of blacks from the jury pool. State v. McNeill, 326 N.C. 712, 392 S.E.2d 78 (1990).

Use of a jury box containing only the names of property owners was not per se discriminatory and did not unfairly narrow the choice of jurors so as to impinge on defendant's statutory or constitutional rights. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

Exclusion of Age Group from Jury List. - The absence from the jury list of the names of persons between the ages of 18 and 21 during the period from July, 1971, the effective date of the amendment of G.S. § 9-3 lowering the age requirement for jurors from 21 years to 18 years, and September, 1971, the date of defendants' trial, was not unreasonable and did not constitute systematic exclusion of this age group from jury service. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Failure of defendant in a criminal prosecution to exhaust his peremptory challenges does not affect his right to attack an illegally constituted jury. State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944).

The erroneous allowance of an improper challenge for cause does not entitle the adverse party to a new trial, so long as only those who are competent and qualified to serve are actually empaneled upon the jury which tried his case. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

Challenge of Jurors for Opposition to Death Penalty. - In a first degree murder prosecution, the trial court properly sustained the State's challenge for cause to each juror who stated that in no event and under no circumstances could he render a verdict of guilty against any person, regardless of the evidence, if the punishment was death. State v. Miller, 276 N.C. 681, 174 S.E.2d 481 (1970), death penalty vacated, 408 U.S. 937, 92 S. Ct. 2863, 33 L. Ed. 2d 755 (1972).

As to exclusion of jurors who voiced objections to death penalty, see also, State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

Death qualification of jurors does not violate this Article. State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

"Death qualifying" juries in capital cases violates neither the United States Constitution nor the North Carolina Constitution. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

It was not error under N.C. Const., Art. I, § 19 or this section for the prosecution to use its peremptory challenges to excuse veniremen who had qualms about the death penalty but were not excludable pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, rehearing denied, 393 U.S. 898, 89 S. Ct. 67, 61 L. Ed. 2d 186 (1968). State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990), in light of People ex rel. Boyer v. Teague, 106 N.C. 576, 11 S.E. 665 (1890).

A defendant has no vested right to a particular juror. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

But Only to Reject Prejudiced Jurors. - When no systematic exclusion is shown, defendant's right is only to reject a juror prejudiced against him; he has no right to select one prejudiced in his favor. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

The presence on the jury of a judge who had earlier presided over the defendant's arraignment, granted the defendant time to file motions and initiate discovery, and set the case for trial, violated the defendant's right to trial by a jury of 12, a right which is inalienable in North Carolina, and denied him liberty without due process of law, and the fact that neither party challenged the judge's presence on the jury was irrelevant. Cox v. Turlington, 648 F. Supp. 1553 (E.D.N.C. 1986).

Defendant's constitutional right to an impartial jury was violated as a magistrate served on defendant's jury while having personal knowledge of defendant's prior drug charges and after having direct pretrial involvement with the charges for which the magistrate participated in deciding defendant's guilt or innocence. State v. Neal, 196 N.C. App. 100, 674 S.E.2d 713 (2009).

Equal Access to Criminal Records of Jurors. - An indigent defendant's lack of access to the Police Information Network (PIN) did not deny the defendant equal access to information in violation of this section of the North Carolina Constitution, where the court suggested alternative means to obtaining such information on jurors and the defendant's counsel did not subsequently object to the trial court's action or move for funds with which the defense could run its own criminal record checks. State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

Right to Impartial Jury. - Trial court's conduct at a suppression hearing in asking a police officer an additional question regarding the officer's investigative stop of defendant in a case where defendant was charged with and pled guilty to habitual driving while impaired did not violate defendant's right to trial by a jury; the question did not show that the trial court was partial to the State's case, but, instead, showed that the trial court was trying to understand the "whole picture on what happened," even if the question was outside the scope of what was appropriate for such a hearing. State v. Jones, 186 N.C. App. 405, 651 S.E.2d 589 (2007), aff'd, 362 N.C. 341, 661 S.E.2d 733 (2008).

IV. PETTY MISDEMEANORS.

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Purpose. - The purpose of conferring on the legislature power to provide means of trial other than by jury for petty misdemeanors is to avoid the inconvenience, expense and delay attendant upon indictment by the grand jury and the trial by the jury where the parties choose to waive it, in the ordinary course of criminal procedure. State v. Crook, 91 N.C. 536 (1884). See also, State v. Boykin, 211 N.C. 407, 191 S.E. 18 (1937).

Indictment by grand jury is dispensed with in the trial of petty misdemeanors under this section. State v. Lytle, 138 N.C. 738, 51 S.E. 66 (1905).

Legislature May Provide Other Means of Trial. - The legislature has power to designate the unlawful possession and transportation of intoxicants a petty misdemeanor and to provide means of trial for the offense other than by indictment and trial by jury. State v. Shine, 222 N.C. 237, 22 S.E.2d 447 (1942).

The provisions of this section empower the legislature to provide means other than petit juries for the trial of petty misdemeanors, with the right of appeal. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952); State v. Underwood, 244 N.C. 68, 92 S.E.2d 461 (1956).

In Inferior Courts. - It is permissible under this section for the General Assembly to provide for the trial of petty misdemeanors in inferior courts with the right of appeal to the superior court. State v. Lytle, 138 N.C. 738, 51 S.E. 66 (1905); State v. Brittain, 143 N.C. 668, 57 S.E. 352 (1907); State v. Hyman, 164 N.C. 411, 79 S.E. 284 (1913); State v. Tate, 169 N.C. 373, 85 S.E. 383 (1915); State v. Pasley, 180 N.C. 695, 104 S.E. 533 (1920); State v. Camby, 209 N.C. 50, 182 S.E. 715 (1935).

With Jury Trial De Novo on Appeal. - The only exception to the rule that nothing can be a conviction but the verdict of a jury is the constitutional authority granted the General Assembly to provide for the initial trial of misdemeanors in inferior courts without a jury, with trial de novo by a jury upon appeal. State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

The constitutional right of a defendant charged with a misdemeanor to have a jury trial is not infringed by the fact that he has first to submit to trial without a jury in the district court and then appeal to superior court in order to obtain a jury trial. State v. Sherron, 4 N.C. App. 386, 166 S.E.2d 836 (1969).

Right to Jury Trial Is Preserved by Requirement of Trial De Novo on Appeal. - The right of a trial by jury in a criminal action is preserved to the accused by the statutory requirement of a trial de novo in the superior court on appeal from a court of subordinate jurisdiction, and conviction in the superior court cannot be had unless upon the verdict of the jury, in accordance with the provisions of this section of the Constitution. State v. Pulliam, 184 N.C. 681, 114 S.E. 394 (1922).

The constitutional guaranty of a jury trial is met by the right of appeal which is given from an inferior court, in all cases, to the superior court. State v. Lytle, 138 N.C. 738, 51 S.E. 66 (1905). See also, State v. Hyman, 164 N.C. 411, 79 S.E. 284 (1913).

Jury Trials May Be Abolished in Inferior Courts. - Where defendants have the right to appeal to the superior court and obtain a trial de novo before a petit jury, the General Assembly may abolish jury trials in an inferior court by a direct enactment to that effect without transgressing this section. State v. Norman, 237 N.C. 205, 74 S.E.2d 602 (1953).

Waiver of Right of Appeal. - A person on trial for a misdemeanor in an inferior court with right of appeal to the superior court may waive his constitutional right to a trial by jury by consenting to the judgment therein entered, or by not appealing therefrom, and the fact that afterwards he employs an attorney and moves for appeal within the time allowed by the applicable statute will not affect the fact that he had personally acquiesced in the judgment entered. State v. Lakey, 191 N.C. 571, 132 S.E. 570 (1926).

Where, in a prosecution in the recorder's court for wilful failure to support his illegitimate child, defendant complied with the terms of the suspended judgment by making two payments according to its terms, paying the costs of court, and executing a compliance bond pursuant to the terms of the judgment, he would be deemed to have knowingly and intelligently waived his statutory right to appeal to the superior court. State v. Cooke, 268 N.C. 201, 150 S.E.2d 226 (1966).

Appellate Court May Increase Punishment in Trial De Novo. - Upon appeal from an inferior court for a trial de novo in the superior court, the superior court may impose punishment in excess of that imposed in the inferior court provided the punishment imposed does not exceed the statutory maximum. State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972).

Transfer of Untried Misdemeanors. - For case holding that statutes purporting to authorize the transfer of untried misdemeanor cases from an inferior court to the superior court and the initial trial of such transferred cases in the superior court upon the warrant of the inferior court repugnant to the declaration inherent in the second sentence of this section, that a person charged with the commission of a misdemeanor cannot be put on trial in the superior court upon the warrant of an inferior court unless he has been tried upon such warrant in the inferior court and has appealed from that court to the superior court, see State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

Assault and battery is not a petty misdemeanor within the proviso to this section. State v. Stewart, 89 N.C. 563 (1883); Schick v. United States, 195 U.S. 65, 24 S. Ct. 826, 49 L. Ed. 99 (1904).

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