State v. Selph

234 S.E.2d 453 (1977)

33 N.C. App. 157

STATE of North Carolina v. Jerry Lee SELPH.

No. 7611SC904.

Court of Appeals of North Carolina.

May 4, 1977.

*455 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Ralf F. Haskell and Associate Atty., Elisha H. Bunting, Jr., Raleigh, for the State.

James W. Narron, Smithfield, for defendant-appellant.

ARNOLD, Judge.

The principal argument on this appeal concerns the possibility of misconduct by one of the jurors. Defendant contends that his attorney should have been allowed to question vigorously this juror as to whether she talked to Mrs. Aswald about the case. The trial judge, according to defendant, misapplied an axiom of common law announced by Lord Mansfield in Vaise v. Delaval, 1 T.R. 11, 99 Eng.Rep. 944 (K.B.1785), which says that a juror will not be heard to impeach his own verdict. This rule apparently was first followed in North Carolina in Suttrell v. Dry, 5 N.C. 94 (1805).

Counsel for defendant, in an excellent and lucid brief, argues that defendant has been denied his constitutional rights to an impartial jury and to confront witnesses against him. Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966). He also contends that because he was refused permission to examine the juror (". . . the one person present who knew what actually happened . . .") there was a denial of due process. Defendant asserts that these rights were violated because he was not allowed to examine the juror, or because the trial judge failed to conduct a vigorous examination of her. He argues that the judge should have made findings of fact and conclusions of law regarding allegations and evidence of possible jury misconduct, and that Mrs. Irving's conduct was so suspicious that the judge abused his discretion by not conducting a more vigorous examination. We do not agree.

Defendant relies on many federal cases to support his constitutional arguments. The leading case is Parker v. Gladden, supra, wherein substantial evidence showed that the bailiff told several jurors that the defendant was "wicked" and "guilty". The United States Supreme Court held that these remarks violated the defendant's rights to an impartial jury and to confront the witnesses against him, i. e., the bailiff. The court further held that the bailiff's remarks were so prejudicial as to violate due process. In other words, their probable effect on a typical juror would reasonably appear to be harmful beyond any cure. Parker, of course, is distinguishable from the case at bar, because the bailiff's remarks were known and obviously prejudicial. In the present case, Mrs. Aswald's remarks are unknown, and thus, those parts of Parker which consider irreparable inherent violations of due process and the right to cross examine witnesses are inapposite.

Defendant cites numerous cases in support of his contention that his rights have been violated. Most are distinguishable in that the trial court refused to hold any sort of hearing to determine the facts of the alleged jury misconduct. See Remmer v. U. S., 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954); U. S. v. Howard, 506 F.2d 865 (5th *456 Cir. 1975); Oakes v. Howard, 440 F.2d 1075 (6th Cir. 1971); Richardson v. U. S., 360 F.2d 366 (5th Cir. 1966). These cases all involve specific allegations of misconduct supported by direct evidence, and the various trial courts erred in refusing to hold hearings.

In two other cases the trial court conducted an inadequate hearing in its attempt to discover and evaluate jury misconduct. These are: U. S. ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974), and Morgan v. U.S., 380 F.2d 915 (5th Cir. 1967). In both cases the hearings were, under the circumstances, manifestly inadequate. In Bensinger, the hearing was abbreviated, and the findings ignored some of the uncontradicted evidence. In Morgan, the trial court's findings were ambiguous.

In the case at bar, the trial judge's inquiry was sufficient to guarantee an impartial jury and to satisfy due process. The trial judge in North Carolina traditionally has conducted these inquiries according to his sound judicial discretion. Stone v. Baking Co., 257 N.C. 103, 125 S.E.2d 363 (1962); State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976). The hearing which the judge held was an exercise in sound discretion. His inquiry, though not in a vigorous and adversary manner, was unmistakably clear and broad enough. It was addressed to the entire jury so as to elicit from Mrs. Irving, or any member of the jury, whether there had been improper conversation with anyone concerning this case. Mrs. Irving's silence, and the silence of her fellow jurors, supports the conclusion that no improper conversation occurred. Denial of defendant's motions for mistrial and new trial on grounds of jury misconduct amounts to a finding by the trial court that no misconduct occurred. State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).

Defendant's remaining assignments of error have been reviewed, and we find no prejudicial error. The State delayed too long before taking defendant before a district court judge for his initial appearance. G.S. 15A-601(c). However, this delay is not prejudicial error. State v. Burgess, N.C.App., 234 S.E.2d 40 (filed April 20, 1977). Nor did the judge commit prejudicial error by admitting allegedly irrelevant testimony that defendant was armed while breaking into the drugstore. Other evidence against defendant completely overwhelmed the effect of this small bit of evidence. The decision against defendant could not have been different had this testimony been excluded. Finally, though certain testimony concerning defendant's cache of drugs may have been inadmissible, the defendant did not make a timely objection to this, and so his objection is waived. State v. Blount, 20 N.C.App. 448, 201 S.E.2d 566 (1974).

In defendant's trial we find no prejudicial error.

No error.

MORRIS and HEDRICK, JJ., concur.