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No. COA07-1471TWENTY-NINE-A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA)
) From RUTHERFORDCounty
v.)
)
JACK MEREDITH MARTIN,)
Defendant.)
______)
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DEFENDANT APPELLANT’S BRIEF
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INDEX
Table of Authorities
Questions Presented......
Statement of the Case......
Statement of Grounds for Appellate Review
Statement of the Facts
Argument
I.The trial court abused its discretion and committed reversible prejudicial error when it failed to set aside the jury verdict, sua sponte, upon learning of jury misconduct.
Standard of Review
Argument
II.The trial court abused its discretion when it failed to conduct an adequate hearing into the impact on jurors of information relevant to issues in the trial and provided by other jurors during deliberations.
Standard of Review
Argument
III.The trial court committed reversible and prejudicial error when it deprived Mr. Martin of his constitutional rights to be present during all critical stages of the proceedings by conducting a limited hearing into juror misconduct without advising Mr. Martin that the hearing would occur or providing him with the opportunity to be present. Mr. Martin was entitled to be present under Article I, § 23 of the North Carolina Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
Standard of Review
Argument
IV.Mr. Martin was deprived of his right to a fair and impartial jury when deliberating jurors considered matters relevant to issues in the case that were not presented as evidence in the trial. Mr. Martin was entitled to this right under Article I, § 24 of the North Carolina Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
Standard of Review
Argument
V.Mr. Martin was deprived of his right to confront and cross-examine witnesses against him during jury deliberations when certain jurors disclosed to others purported facts about matters relevant to issues in the case that seemed to contradict Mr. Martin’stestimony in court. Mr. Martin was entitled to this right under Article I, § 23 of the North Carolina Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
Standard of Review
Argument
VI.Mr. Martin was denied his right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution and N.C. Gen. Stat. § 15-10 by the lack of a trial for over two years after the alleged incident, during which time he was incarcerated at a significant distance and harmed by the deprivation of his constitutional rights and following which lapse of time, Mr. Martin was expected to argue the pending motions with no notice of the hearing and no opportunity to prepare to present evidence or argument.
Standard of Review
Argument
VII.Mr. Martin was denied his right to an attorney when the court permitted his attorney to withdraw without an adequate inquiry into the basis for the withdrawal or an adequate inquiry into Mr. Martin’s knowing and voluntary waiver and when Mr. Martin never knowingly and voluntarily waived his right to counsel, all in violation of N.C. Gen. Stat. § 15A-1242 and the sixth and fourteenth amendments to the United States Constitution and Article I, § 19 of the North Carolina Constitution.
Standard of Review
Argument
VIII.The trial court erred by failing to grant Mr. Martin’s request for a court-appointed investigator when he had been declared indigent, was proceeding pro se, requested an investigator, was entitled to one by statute, and was harmed by his inability to investigate the case.
Standard of Review
Argument
Conclusion
Certificate of Service
Index to Appendix
Table of Authorities
Cases
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) 27, 29
Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971)..17
Fincher v. Rhyne, 266 N.C. 64, 145 S.E.2d 316 (1965) 22
Harper Furniture Co. v. Southern Express Co., 144 N.C. 639, 57 S.E. 458 (1907) 21
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) 21
Jernigan v. Hanover Fire Ins. Co. of N.Y., 235 N.C. 334, 69 S.E.2d 847 (1952) 22
Morgan v. United States, 380 F.2d 915 (5th Cir. 1967) 17
O’Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965) 16
Oakes v. Howard, 440 F.2d 1075 (6th Cir. 1971)..17
Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) 24
Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907) 23
Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 554 S.E.2d 331 (2001) 18
Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) 16
Richardson v. United States, 360 F.2d 366 (5th Cir. 1966) 17
Row v. Row, ___ N.C. App. ___, 650 S.E.2d 1 (2007) 30
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) 21, 25
Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) 19
State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976) 21
State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995) 26
State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S.Ct. 2560, 135 L.Ed.2d 1077 (1996) 20
State v. Drake, 31 N.C. App. 187, 229 S.E.2d 51 (1976) 14
State v. Edmonds, 19 N.C. App. 105, 198 S.E.2d 27 (1973) 19
State v. Evans, 153 N.C. App. 313, 569 S.E.2d 673 (2002) 32
State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418 (1997) 33
State v. Gardner, 311 N.C. 489, 319 S.E.2d 591 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985) 33
State v. Garner, 136 N.C. App. 1, 523 S.E.2d 689 (1999) 32
State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993) 9
State v. Gerald, 304 N.C. 511, 284 S.E.2d 312 (1981) 32
State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1973) 19
State v. Godwin, 95 N.C. App. 565, 383 S.E.2d 234 (1989) 32
State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001) 27
State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000) 9
State v. Heatwole, 344 N.C. 1, 473 S.E.2d 310 (1996) 15
State v. Hill, 179 N.C. App. 1, 632 S.E.2d 777 (2006) 14, 25
State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978) 19
State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999) 32
State v. Jackson, 77 N.C. App. 491, 335 S.E.2d 903(1985) 14
State v. Johnson, 295 N.C. 227, 244 S.E.2d 391 (1978) 8, 14, 23, 25
State v. Joyner, 167 N.C. App. 635, 606 S.E.2d 196 (2004) 9
State v. Lemons, 352 N.C. 87, 530 S.E.2d 542 (2000), cert. denied, 531 U.S. 1091, 121 S.Ct. 813, 148 L.Ed.2d 698 (2001) 18
State v. Lewis, ___ N.C. App. ___, ___ S.E.2d. ___ (2008) (2008 WL 131223) (COA07-518) 17, 22
State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73 (1999) 29
State v. McBride, ___N.C. App. ___, 653 S.E.2d 218 (2007) 29
State v. Pharr, 110 N.C. App. 430, 430 S.E.2d 267 (1993) 19
State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000) 26
State v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (1988) 15
State v. Rutherford, 70 N.C. App. 674, 320 S.E.2d 916 (1984) 16
State v. Rutherford, 70 N.C. App. 674, 320 S.E.2d 916 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d. 897 (1985) 12
State v. Scott, ___ N.C. App. ___, 653 S.E.2d 908, 909 (2007) 31
State v. Selph, 33 N.C. App. 157, 234 S.E.2d 453 (1977) 17
State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992) 32
State v. Watson, 310 N.C. 384, 312 S.E.2d 448 (1984) 32
State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994) 29
State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985) 13
State v.Heatwole, 344 N.C. 1, 473 S.E.2d 310 (1996), cert. denied, 520 U.S. 1122, 117 S.Ct. 1259, 137 L.Ed.2d 339 (1997) 16
Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) 25
United States ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974) 17
United States v. Howard, 506 F.2d 865 (5th Cir. 1975) 17
United States v. Humphrey, 208 F.3d 1190 (10th Cir. 2000) 10
Vigil v. Zavaras, 298 F.2d 935 (10th Cir. 2002).23
White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985) 13
Statutes
N.C. Gen. Stat. § 15-10 (2008)...... 26
N.C. Gen. Stat. § 15A-1240 (2008)...... 15
N.C. Gen. Stat. § 15A-1242 (2008)...... 30, 32
N.C. Gen. Stat. § 15A-1414 (2008)...... 12
N.C. Gen. Stat. § 15A-1420 (2008)...... 13
N.C. Gen. Stat. § 15A-1443 (2008)...... 18, 20
N.C. Gen. Stat. § 7A-27(2008)...... 3
N.C. Gen. Stat. § 7A-450 (2008)...... 33
N.C. Gen. Stat. § 7A-454 (2008)...... 33
Rules
N.C. R. App. P. 10...... 8
N.C. R. Ev. 606...... 14
Constitutional Provisions
N.C. Const. Art. I, § 23...... 19, 24
N.C. Const. Art. I, § 24...... 21
U.S. Const. amend. VI...... 19, 21
U.S. Const. amend. XIV...... 19, 24, 26
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No. COA07-1471TWENTY-NINE-A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA)
) From RUTHERFORDCounty
v.)
)
JACK MEREDITH MARTIN,)
Defendant.)
______)
Questions Presented
I.Whether the trial court abused its discretion and committed reversible prejudicial error when it failed to set aside the jury verdict, sua sponte, upon learning of jury misconduct.
II.Whether the trial court abused its discretion when it failed to conduct an adequate hearing into the impact on jurors of information relevant to issues in the trial and provided by other jurors during deliberations.
III.Whether the trial court committed reversible and prejudicial error when it deprived Mr. Martin of his constitutional rights to be present during all critical stages of the proceedings by conducting a limited hearing into juror misconduct without advising Mr. Martin that the hearing would occur or providing him with the opportunity to be present.
IV.Whether Mr. Martin was deprived of his right to a fair and impartial jury when deliberating jurors considered matters relevant to issues in the case that were not presented as evidence in the trial.
V.Whether Mr. Martin was deprived of his right to confront and cross-examine witnesses against him during jury deliberations when certain jurors disclosed to others purported facts about matters relevant to issues in the case that seemed to contradict Mr. Martin’s testimony in court.
VI.Whether Mr. Martin was denied his right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution and N.C. Gen. Stat. § 15-10 by the lack of a trial for over two years after the alleged incident, during which time he was incarcerated at a significant distance and harmed by the deprivation of his constitutional rights and following which lapse of time, Mr. Martin was expected to argue the pending motions with no notice of the hearing and no opportunity to prepare to present evidence or argument.
VII.Whether Mr. Martin was denied his right to an attorney when the court permitted his attorney to withdraw without an adequate inquiry into the basis for the withdrawal or an adequate inquiry into Mr. Martin’s knowing and voluntary waiver and when Mr. Martin did not knowingly and voluntarily waived his right to counsel, all in violation of N.C. Gen. Stat. § 15A-1242 and the sixth and fourteenth amendments to the United States Constitution and Article I, § 19 of the North Carolina Constitution.
VIII.Whether the trial court erred by failing to grant Mr. Martin’s request for a court-appointed investigator when he had been declared indigent, was proceeding pro se, requested an investigator, was entitled to one by statute, and was harmed by his inability to investigate the case.
Statement of the Case
In the June 6, 2007 Rutherford County Superior CourtCriminal Session, the Honorable Ronald K. Payne Presiding, a jury convicted Appellantof Second Degree Murder and two counts of Attempted First Degree Murder. Judge Payne sentenced him to 189-236 months for the Second Degree Murder and 250-309 months consolidated for the two Attempted First Degree Murders. Mr. Martin gave oral Notice of Appeal. (T p 432, lines9-10.)
Two days later, the trial court conducted a hearing into reported juror misconduct. The State appeared; the Defendant was unaware of the hearing. (R p. 145.)
The Clerk ordered the transcripts on June 19, 2007. (R p. 137.) The trial court extended the time to deliver the transcripts, and they were deliveredon September 10, 2007. The Proposed Record was timely served and settled on November 17, 2007. (T. p. 146.)
The Record was filed on December 4, 2007 and docketed on December 6, 2007. The Clerk mailed the printed Record on December 12, 2007. This Court extended the time to file Appellant’s brief until February 11, 2008.
Statement of Grounds for Appellate Review
This appeal arises from the final judgment of the Superior Court in a criminal matter following trial by jury. N.C. Gen. Stat. § 7A-27(b)(2008) confers grounds for appellate review.
Statement of the Facts
In May 2005, Mr. Martin, Phillip Chiasson, and Phillip Salks lived in a two-story building in Chimney Rock. The landlord lived on the top floor. Mr. Martin lived in an apartment on the main floor. Phillip Chiasson lived in an adjacent apartment. Phillip Salks lived in a basement apartment. (Trial T p. 104, lines 23-25; p. 105, lines 13-18; p 278, line 5-p. 279, line 15; p. 327, lines 21-23.) The men hung out and played cards together regularly. (Trial T p. 107, lines 21-23; p. 148, lines 21-24; p. 329, lines 11-17.) Mr. Martin testified that Mr. Chiasson and Mr. Salks drank heavily every night. (Trial T p. 330, lines 6-19.)
Mr. Martin testified that he had minor conflicts with and suspicions about Mr. Chiasson. Mr. Martin once locked his keys inside his apartment and Mr. Chiasson climbed through the back window to let him in. (Trial T p. 148, line 25-p.p. 149, line 8; p. 333, line 10-p. 334, line 4.) Mr. Martin testified that one of his apartment keys was missing afterward, and he saw it on Mr. Chiasson’s key ring. (Trial T p. 33, line 14-p. 334, line 12 and p. 340, lines 11-16.) Mr. Chiasson denied taking the key. (Trial T p. 154, lines 19-22.) Mr. Martin noticed food and beer missing from his apartment and suspected Mr. Chiasson. (Trial T p 334, line 22-p. 335, line 7.)
Mr. Martin decided to see if Mr. Chiasson was entering the apartment in his absence. He testified that twice he parked on Main Streetwhere he could see the house. (Trial T p. 336, lines 4-12 and p. 340, line 20-p. 341, line 2.) Two years later, in jury deliberations, the foreperson and another juror reported to their fellow jurors that there was no parking area there. (June 14, 2007 T p. 4, lines 3-5. Appendix to Brief p. A64) Mr. Martin testified that the first time, he watched the house with binoculars and saw Mr. Chiasson enter Mr. Martin’s locked apartment. The incident confirmed in Mr. Martin’s mind that Mr. Chiasson had a key. (Trial T p. 336, line 13-p. 337, line 13.) The second time, Mr. Martin left his car in the secluded spot and waited in his apartment, hoping to catch Mr. Chiasson in the act. Mr. Chiasson did not enter that night. (Trial T p. 340, line 22-p. 341, line 25.)
Mr. Chiasson and Mr. Salks were the alleged victims in the Attempted First Degree Murders. (R pp. 128-129.) Jonathan Lehi Moore, an old friend of Mr. Salks, was the alleged victim in the Second Degree Murder conviction. (R p. 127; Trial T p. 106, lines 4-9 and p. 280, lines 1-25.)
On May 28, 2005, the men decided to have a cookout at their apartments. Mr. Martin provided food and alcohol. Mr. Moore was working with Mr. Salks that day, and came with him. (Trial T p. 107, lines 10-p. 108, line 1; p. 343, lines 19-24; p. 344, lines 10-25; p. 281, line 18-p. 282, line 22; p. 283, line 2-p. 284, line 8.) Everyone was drinking and enjoying themselves, as the men played cards in Mr. Chiasson’s living room. About 1:00 a.m., Mr. Chiasson and Mr. Salks left the card table to go to a bathroom. (Trial T. p. 110, line 1-p. 112, line 15; p. 283, line 9-p. 287, line 11.)
When they returned to the living room, Mr. Moore and Mr. Martin werescuffling or wrestling. The fish tank was broken. Mr. Chiasson and Mr. Salks separated the men and told Mr. Martin to leave, which he did. (Trial T p. 113, line 16-p. 115, line 18; p. 118, lines 17-25; p. 289, line 10-p. p. 291, line 5.) Mr. Martin testified that there had been bickering earlier in the evening, and that Mr. Moore was inebriated. (Trial T p. 348, lines 15-p. 349, line 6.) His autopsy showed a.28 BAC. (Trial T p. 273, lines 3-8.) Mr. Martin testified that he and Mr. Moore had an exchange while Mr. Chiasson and Mr. Salks were out of the roomand Mr. Moore fell into the fish tank. (T p. 348, line 24-p. 349, line 24.)
Mr. Martin testified that it was not unusual for someone to be asked to leave. As a rule, the person returned shortly. Mr. Martin left and returned a short time later to recover his things. (Trial T p. 349, line 23-p. 350, line 11.) The testimony differed about what happened upon his return.
Mr. Martin testified that when he returned, Mr. Chiasson was standing in the doorway, glaring at him. Mr. Chiasson lifted his shirt and pulled out a pistol, which he had shown Mr. Martin in the past. Mr. Martin went for the gun. As he and Mr. Chiasson struggled, the gun fired several times, hitting the other two men. Mr. Chiasson got the gun away and left the porch. Mr. Martin ran to his car. He drove away and then realized that he did not have his phone to call the police. He pulled into a store, but found no pay phone. (Trial T p. 350, line 12-p. 354, line 6.) During jury deliberations over two years later, a juror told the other jurors that there were three pay phones in a store near the shooting and that two of the three worked. (June 14, 2007 T p. 4, lines 5-7. Appdx. p. A64) Mr. Martin returned to the house to get his cell phone, and the police arrived shortly afterward. (Trial T p. 354, line 6-p. 355, line 8.)
Mr. Salks testified that he was hanging a wet rug on the front porch railing when Mr. Martin returned. Mr. Salks asked what was wrong and then saw a gun in Mr. Martin’s hand. He felt safe and maintained his ground. Mr. Salks testified that Mr. Martin shot him in the diaphragm and in the head after he fell. Mr. Salks heard more shots, but did not know what else happened. (Trial T p. 292, line 3-p. 293, line 24.)
Mr. Chiasson testified that he told Mr. Moore to sit on the couch after Mr. Martin left and then began cleaning up the broken fish tank. While in the back of the apartment, he heard shots. He looked in and saw Mr. Moore on the living room floor and Mr. Martin in the living room with a gun. Mr. Martin shot atMr. Chiasson, grazing the back of his head. Mr. Chiasson jumped over the couch and they wrestled over the gun. Mr. Chiasson got it, ran out, put it in a trash can, and jumped in the river behind the house. Mr. Martin left in his car, and came back within five minutes. (Trial T p. 119, line 1-p. 127, line 17.)
Responding police officers found Mr. Salks wounded on the front porch and Mr. Moore dead in the living room. Mr. Martin was standing in the door of his apartment. Mr. Chiasson yelled from the river, and at the officer’s instruction, came out with his hands up. He showed the officers the gun in the trash can and said they’d wrestled for it. The officers noticed blood on Mr. Martin’s shirt from a busted lip. Mr. Martin told the officer he’d been injured when he and Mr. Chiasson wrestled for the gun. (Trial T p. 158, line 12-p. 163, line 9.)
The recovered gun had been stolen thirty years earlier in Amherst, Ohio. (Trial T p. 244, lines 4-18.) Behind sheet rock under the sink in Mr. Martin’s bathroom, Crime Scene Investigators found ammunition that matched the spent shells in the gun. (Trial T p. 230, line 3-p. 231, line 3.)
Argument
I.The trial court abused its discretion and committed reversible prejudicial error when it failed to set aside the jury verdict, sua sponte, upon learning of jury misconduct.
Assignment of Error No. 9;
Addendum to Record on Appeal, p. 1
Standard of Review
A trial court’s decision regarding juror misconduct is ordinarily reviewed for abuse of discretion. State v. Johnson, 295 N.C. 227, 244 S.E.2d 391 (1978). Mr. Martin did not object to the trial court’s failure to set aside the verdict or move for a new trial. While plain errormight ordinarily apply under N.C. R. App. P. 10 (c)(4), Mr. Martin was not advised of the hearing or the juror conduct. (June 14, 2007 T p. 2, lines 2-15 and p. 4, lines 10-15. Appndx. pp. A62-A64.) Because there was no opportunity to object in the trial court, plain error does not apply. Contrast the following cases in which the defendant had the opportunity to object and did not: State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000); State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993); and State v. Joyner, 167 N.C.App. 635, 606 S.E.2d 196 (2004).
Argument
Two days after sentencing, the trial judge conducted a limited hearing in which the trial clerk reported on a juror’s phone call to her. The State was represented by the District Attorney and an Assistant District Attorney. A Court Reporter was present and prepared a transcript, but neither Mr. Martin nor his standby counsel was aware of the hearing. Judge Payne ordered that a transcript of the hearing be delivered to the Appellate Defender and Mr. Martin, but took no other action. (June 14, 2007 T pp. 1-5. Appndx. pp. A61-A65.)
In the limited hearing, Deputy Clerk of Court Laura Bridges spoke. At the judge’s direction, she was not sworn. (June 14, 2007 T p. 3, lines 18-19.Appndx. p. A63.) Mrs. Bridges stated that a juror called her after sentencing to report that other jurors shared factual information not presented in the courtroom during jury deliberations. The information related to two matters about which Mr. Martin testified. It tended to contradict him and undermine his credibility.Mrs. Bridges stated:
The juror said that the foreperson in the deliberations – during deliberations said that he had found out something about the character of Jack Martin but was not allowed to say. Then she also told me that the foreperson and another woman knew that there was no parking area across from the scene. And one lady knew that there were pay phones, three pay phones, in a store nearby. One pay phone worked and two didn’t – one pay phone did not work and two did.