{ "id": 4156241, "name": "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY JAMAR LEE, Defendant", "name_abbreviation": "State v. Lee", "decision_date": "2008-04-01", "docket_number": "No. COA07-539", "first_page": "474", "last_page": "482", "citations": [ { "type": "official", "cite": "189 N.C. App. 474" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "632 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636398 ], "year": 2006, "pin_cites": [ { "page": "792", "parenthetical": "holding that defendant waived appellate review by failing to object or move for a mistrial on the basis of jury misconduct, but noting that no prejudice appeared in the record" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0777-01" ] }, { "cite": "643 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638284 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "911", "parenthetical": "citations, ellipses, brackets and quotation marks omitted" }, { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0909-01" ] }, { "cite": "650 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639388 ], "year": 2007, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0639-01" ] }, { "cite": "573 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "612", "parenthetical": "\"Notwithstanding defendant's failure to properly preserve this issue for review, in the interests of justice and pursuant to our authority under N.C.R. App. P. 2, we elect to review the merits of defendant's argument.\"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251077 ], "year": 2002, "pin_cites": [ { "page": "564", "parenthetical": "\"Notwithstanding defendant's failure to properly preserve this issue for review, in the interests of justice and pursuant to our authority under N.C.R. App. P. 2, we elect to review the merits of defendant's argument.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0561-01" ] }, { "cite": "179 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8233996 ], "year": 2006, "pin_cites": [ { "page": "25", "parenthetical": "holding that defendant waived appellate review by failing to object or move for a mistrial on the basis of jury misconduct, but noting that no prejudice appeared in the record" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0001-01" ] }, { "cite": "441 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531110, 2526795, 2527021, 2530901, 2528511 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0563-01", "/nc/335/0563-05", "/nc/335/0563-04", "/nc/335/0563-03", "/nc/335/0563-02" ] }, { "cite": "436 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521295 ], "year": 1993, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0280-01" ] }, { "cite": "234 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "292 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571639 ], "year": 1977, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0617-01" ] }, { "cite": "361 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743134 ], "year": 2007, "pin_cites": [ { "page": "301-02", "parenthetical": "citations, ellipses, brackets and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0299-01" ] }, { "cite": "186 N.C. App. 182", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8155315 ], "year": 2007, "pin_cites": [ { "page": "192-93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0182-01" ] }, { "cite": "368 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "627", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1443(a)" } ], "opinion_index": 0 }, { "cite": "322 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517272 ], "year": 1988, "pin_cites": [ { "page": "456-57", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1443(a)" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0452-01" ] }, { "cite": "588 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "492", "parenthetical": "\"North Carolina [Rule 608(b)] prohibits the use of extrinsic evidence, i.e., the testimony of another witness, to attack a witness' credibility.\"" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958827 ], "year": 2003, "pin_cites": [ { "page": "510", "parenthetical": "\"North Carolina [Rule 608(b)] prohibits the use of extrinsic evidence, i.e., the testimony of another witness, to attack a witness' credibility.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0504-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "89-90" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "197 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "548", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559660 ], "year": 1973, "pin_cites": [ { "page": "603", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0589-01" ] } ], "analysis": { "cardinality": 860, "char_count": 18930, "ocr_confidence": 0.736, "pagerank": { "raw": 4.3341757668126914e-08, "percentile": 0.27263133873828166 }, "sha256": "d6b132ff9cad3801d06fd0d7a68ca6418fcd7ac77172ab80918945bc4b3ea098", "simhash": "1:0258582472270852", "word_count": 3088 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "No prejudicial error.", "Judges TYSON and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY JAMAR LEE, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\n. Defendant Gregory Jamar Lee appeals from judgments entered upon a jury verdict finding him guilty of first degree murder, attempted robbery with a dangerous weapon, and first degree burglary. Defendant contends that the trial court erred by: (1) admitting extrinsic evidence that defendant had lied to a witness about an unrelated matter, (2) denying defendant\u2019s motion to dismiss a juror for cause, and (3) failing to declare a mistrial on the grounds that one of the jurors had been sleeping during the trial. After careful review of the record, we conclude that defendant received a fair trial, free of prejudicial error.\nI. Background\nAt trial, the State presented the following evidence: On 5 June 2002, defendant met Ricky Morris, Jerome Freeman, Marcus Hawley and Michael Sullivan at Sullivan\u2019s Durham County home. They traveled to Roxboro, Person County, armed with a .410 shotgun and an SKS rifle (\u201cchopper\u201d), where defendant announced a plan to forcibly enter an auto customizing shop owned by Adam Wolfe, shoot everyone in the shop and take a Cadillac Escalade belonging to Wolfe that defendant had earlier inquired about purchasing. Defendant abandoned that plan when he determined \u201cit was getting too late and . . . there [were] too many people over there.\u201d Defendant, Freeman and Hawley went into the Wal-Mart near Wolfe\u2019s shop, where defendant purchased ammunition for the .410 shotgun and Freeman purchased ammunition for the chopper.\nThey drove back to Durham where defendant and Sullivan fired shots at a Cadillac Escalade belonging to a person who allegedly had stolen a large sum of money from defendant. They then drove to defendant\u2019s home in Durham County, right across the street from the home of Mrs. Lois Cannady. Morris armed himself with a shotgun from defendant\u2019s home at defendant\u2019s request. Defendant armed himself with the .410 shotgun, and Sullivan armed himself with the chopper. Defendant kicked open the backdoor of Mrs. Cannady\u2019s home and entered with his four accomplices. Freeman \u201cpeeked\u201d into the room occupied by Mrs. Cannady, and she fired a shot at him. Sullivan returned fire with the chopper, fatally wounding Mrs. Cannady.' Defendant and his four accomplices fled from Mrs. Cannady\u2019s home and returned to Sullivan\u2019s home.\nOn 3 February 2003, the Durham County Grand Jury indicted defendant for first degree murder, attempted robbery with a dangerous weapon, first degree burglary, misdemeanor larceny, and felonious possession of a stolen vehicle. Defendant was tried before a jury in Superior Court, Durham County, with the jury returning verdicts on 7 September 2005. The jury found defendant guilty of larceny and possession of a stolen vehicle, but did not reach a verdict on the charges of attempted robbery with a dangerous weapon, first degree burglary, or first degree murder. Judgment was continued on the convictions.\nDefendant was tried again on the charges of attempted robbery with a dangerous weapon, first degree burglary, and first degree murder from 24 April to 17 May 2006 in Superior Court, Durham County. Defendant testified at trial, asserting as his defenses that he was not armed when the group entered Mrs. Cannady\u2019s home, and that he lacked mens rea, or criminal intent, on the basis that he had been forced to participate in the crime under duress.\nOn 17 May 2006, the jury found defendant guilty of first degree murder, attempted robbery.with a dangerous weapon, and first degree burglary. Upon the jury\u2019s verdicts, the trial court sentenced defendant to life imprisonment without parole for first degree murder and continued judgment on the other two convictions. Defendant appeals.\nII. Analysis\nA. Admission of Evidence\nDefendant first assigns error to the following testimony, elicited on redirect examination by the State from Adam Wolfe, who owned the Roxboro auto customizing shop that defendant had planned to forcibly enter before going to the home of Mrs. Cannady:\n[The State:] Did you say that [defendant] was calling you every day?\n[Witness:] Several times [a day].\n[The State:] About what?\n[Witness:] Just kept trying to get me to meet him and talk to his dad [about buying my Escalade],\nSomebody had called me and said it was [defendant\u2019s father] on the phone and that he was trying to see my Escalade and that he was flying out of town and that he wanted to see me before he went out of town so he could make a decision on the truck.\n[The State:] Did you end up making that meeting?\n[Witness:] I went, and that\u2019s when I met [defendant] at Northern [High School] that day, early that morning, and he took me to a-\u2014 down some gravel road, and nobody was there. It was like an old farmhouse. Then we turned around and came back out. I don\u2019t know the name of that road, but we came back out to the intersection and took anther left and went down to another gravel road, and I felt that \u2014 I didn\u2019t feel right about the situation, because I knew he had been lying on several occasions, so\u2014\n[Defense Counsel:] I\u2019ll object and move to strike that.\n[The Court:] Overruled. Overruled. Go ahead.\n[Re-cross examination by defendant.]\n[Defense counsel:] [Why did you let him in your shop after hours if] you thought that you knew he was lying?\n[Witness:] I knew he was lying. There\u2019s no doubt about that. Now, that doesn\u2019t mean he couldn\u2019t get a[n] Escalade. I just knew he was lying about who he was . . . and who his dad was.\nDefendant contends that admission of this testimony violated Rule 608(b) of the North Carolina Rules of Evidence. The State contends that defendant waived his objection by eliciting the same information on re-cross examination, and therefore this assignment of error is not properly before this Court for review. Alternatively, the State contends that the testimony did not violate Rule 608(b), because the testimony was first elicited by the State on re-direct examination and Rule 608 applies only to exclude testimony elicited on cross examination. As a third alternative, the State contends the testimony was admissible under Rule 404(b).\nThe well established rule in this State is that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost[. However], [t]he rule does not mean that the adverse party may not, on cross-examination, explain the evidence, or destroy its probative value, or even contradict it with other evidence upon peril of losing the benefit of his exception.\nState v. Van Landingham, 283 N.C. 589, 603, 197 S.E.2d 539, 548 (1973) (citations and quotation marks omitted). The record indicates that defendant questioned Wolfe on re-cross examination about his statement that defendant was lying only for the purpose of attempting to contradict it. He did not thereby waive his objection. We will therefore review this assignment of error.\nSpecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 608(b). Extrinsic evidence within the meaning of Rule 608 is \u201c[e]vidence that is calculated to impeach a witness\u2019s credibility, adduced by means other than cross-examination of the witness.\u201d Black\u2019s Law Dictionary 597 (8th edition, 2004).\nThe State\u2019s argument that Rule 608(b) operates to exclude only testimony which is elicited on cross examination is nonsensical. In fact, a careful reading reveals Rule 608(b) excludes all evidence of \u201c[s]p'ecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility\u201d other than conviction of a crime and two specific types of testimony elicited on cross examination of the witness. N.C. Gen. Stat. \u00a7 8C-1, Rule 608(b); State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89-90 (1986); State v. Johnson, 161 N.C. App. 504, 510, 588 S.E.2d 488, 492 (2003) (\u201cNorth Carolina [Rule 608(b)] prohibits the use of extrinsic evidence, i.e., the testimony of another witness, to attack a witness\u2019 credibility.\u201d). The foregoing testimony was not admissible under Rule 608(b).\nNext we consider the State\u2019s contention that Wolfe\u2019s testimony was admissible under Rule 404(b). Specifically, the State contends that taken as a whole, Wolfe\u2019s testimony was admissible under Rule 404(b) because it showed intent or motive. However, defendant assigned error not to the whole of Wolfe\u2019s testimony, but to the specific statement that \u201cI knew [defendant] had been lying.\u201d We discern no other purpose for this testimony than to attack defendant\u2019s credibility, which brings it squarely within the prohibition of Rule 608(b) as discussed above. The admission of this testimony was error.\nHowever, an error is reversible, entitling defendant to a new trial, N.C. Gen. Stat. \u00a7 15A-1447(a) (2005), only \u201c \u2018where there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial.\u2019 \u201d State v. Williams, 322 N.C. 452, 456-57, 368 S.E.2d 624, 627 (1988) (quoting N.C. Gen. Stat. \u00a7 15A-1443(a)). Examining the entire record, we find that the State presented testimony from two of the individuals, Jerome Freeman and Ricky Morris, who were present with defendant when Mrs. Cannady was murdered.\nFreeman and Morris were also present with defendant in the hours before the crime when defendant went to Wolfe\u2019s shop armed with the .410 shotgun and declared his intention to kill everyone at Wolfe\u2019s shop in order to take Wolfe\u2019s Escalade, which defendant said belonged to him. Freeman and Morris testified that after deciding not to carry out the plan to take Wolfe\u2019s Escalade, defendant entered the Wal-Mart near Wolfe\u2019s shop to purchase ammunition for the .410 shotgun. They also testified that defendant led the group to Mrs. Cannady\u2019s house and that defendant kicked in the door.\nThis evidence, which directly contradicted defendant\u2019s statement that he was not armed when he entered Mrs. Cannady\u2019s home, was highly probative circumstantial evidence of defendant\u2019s state of mind at the time of the crime and was therefore indirectly more damaging to defendant\u2019s credibility than the testimony of Wolfe. We cannot say as a matter of law that absent the erroneous admission of extrinsic evidence of the specific incident which attacked defendant\u2019s character for truthfulness, there is a reasonable possibility that the jury\u2019s verdict would have been different. State v. Graham, 186 N.C. App. 182, 192-93, 650 S.E.2d 639, 647 (2007). This assignment of error is overruled.\nB. Juror Number 3\nDefendant next assigns error to the trial court\u2019s denial of his motion to dismiss Juror Number 3 for cause. Defendant argues that because Juror Number 3 was once the next-door neighbor of Deputy Sheriff Barnes, and also the accountant who prepared annual tax returns for Deputy Barnes, Juror Number 3 improperly gave extra weight to the testimony of Deputy Barnes.\nWe review a trial court\u2019s ruling on a challenge for cause for abuse of discretion. A trial court abuses its discretion if its determination is manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision. In our review, we consider not whether we might disagree with the trial court, but whether the trial court\u2019s actions are fairly supported by the record. Our review is deferential because the trial court holds a distinct advantage over appellate courts in determining whether to allow a challenge for cause.\nState v. Lasiter, 361 N.C. 299, 301-02, 643 S.E.2d 909, 911 (2007) (citations, ellipses, brackets and quotation marks omitted).\nIn reviewing whether a juror\u2019s personal relationship with a witness deprives the defendant of a fair trial, we consider: (1) the degree of relationship between the juror and the witness, (2) the statements of the witness as to whether or not he could be impartial, and (3) the importance of the witness to the case. Id. at 304, 643 S.E.2d at 912; State v. Lee, 292 N.C. 617, 625, 234 S.E.2d 574, 579 (1977).\nIn the case sub judice, Juror Number 3 had known Deputy Barnes about five years because Deputy Barnes was a tax preparation client of Juror Number 3, who was an accountant. For the first two years of their relationship, Juror Number 3 and Deputy Barnes had also been neighbors who chatted about once a month. Juror Number 3 and Deputy Barnes did not have regular social contact at the time of the trial and interacted about once a year for tax preparation purposes. Additionally, each time Juror Number 3 was asked if he could impartially weigh the evidence and render a verdict accordingly, he unequivocally answered yes.\nDeputy Barnes\u2019 testimony in the trial was not crucial to the State\u2019s case. He testified that he assisted the lead investigator by asking questions during a pre-arrest interview with defendant and producing a tape of the interview which was played during the State\u2019s case-in-chief. He also testified on cross examination about filling out the arrest report, serving a search warrant, and accompanying other officers when defendant was being transported during the investigation. He did not testify as to any of the elements in the crimes for which defendant was being tried, either directly or by corroboration.\nOn this record, we perceive no abuse of discretion by the trial court in denying defendant\u2019s challenge of Juror Number 3 for cause. This assignment of error is overruled.\nC. Sleeping Juror.\nFinally, defendant contends that the trial court committed reversible error per se when it did not conduct an investigation and remove Juror Number 12 ex mero motu. He contends that evidence that Juror Number 12 was asleep during part of the trial resulted in violation of his constitutional right to a unanimous verdict of twelve jurors.\nDefendant did not move for a mistrial or request an investigation of jury misconduct during the trial. In fact, after the jury was dismissed for lunch following closing arguments, the following colloquy ensued:\n[The Court:] We have a note from a juror. ... It says . . . \u201cJuror Number 12 has been asleep the whole trial almost. . . .\u201d I\u2019m assuming that the defendant would object to that through counsel, or do you want to talk to your client about that?\n[Defense Counsel:] May I [step outside and talk with my client] for a minute?\n[Defendant confers with counsel outside the courtroom.]\n[Defense Counsel:] We just want to keep her, Your Honor.\n\u201cUnder th\u00e9se circumstances, defendant has waived his right to assign error on appeal.\u201d State v. Najewicz, 112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993); disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994); but see State v. Hill, 179 N.C. App. 1, 25, 632 S.E.2d 777, 792 (2006) (holding that defendant waived appellate review by failing to object or move for a mistrial on the basis of jury misconduct, but noting that no prejudice appeared in the record); and State v. Hinton, 155 N.C. App. 561, 564, 573 S.E.2d 609, 612 (2002) (\u201cNotwithstanding defendant\u2019s failure to properly preserve this issue for review, in the interests of justice and pursuant to our authority under N.C.R. App. P. 2, we elect to review the merits of defendant\u2019s argument.\u201d). This assignment of error is therefore dismissed.\nIII. Conclusion\nWe conclude that defendant waived appellate review of allegations that Juror Number 12 was asleep during the trial. We further conclude that the trial court did not err when it denied defendant\u2019s motion to excuse Juror Number 3 for cause. Further, defendant failed to show prejudice resulting from the trial court\u2019s erroneous admission of evidence relating to his character for truthfulness. Accordingly, defendant received a fair trial, free of prejudicial error.\nNo prejudicial error.\nJudges TYSON and JACKSON concur.\n. The judgment for attempted robbery with a dangerous weapon contains an obvious typographical error. It states, \u201cdefendant] found not guilty by a jury.\u201d", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Jonathan Babb, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY JAMAR LEE, Defendant\nNo. COA07-539\n(Filed 1 April 2008)\n1. Evidence\u2014 extrinsic \u2014 unrelated matter showing defendant lied \u2014 attack on defendant\u2019s character for truthfulness\nThe trial court erred in a prosecution for first-degree murder and other crimes by admitting extrinsic evidence that defendant had lied to a witness about an unrelated matter because it attacked defendant\u2019s character for truthfulness in violation of N.C.G.S. \u00a7 8C-1, Rule 608(b). However, this error was not prejudicial because it could not be said as a matter of law that absent the error there was a reasonable possibility that the jury\u2019s verdict wouid have been different.\n2. Jury\u2014 voir dire \u2014 challenge for cause \u2014 personal relationship with witness\nThe trial court did not abuse its discretion in a prosecution for first-degree murder and other crimes by denying defendant\u2019s motion to dismiss a juror for cause based on the fact the juror was once the next-door neighbor of a deputy sheriff who was testifying and also the accountant who prepared that deputy\u2019s tax returns because: (1) for the first two years these two individuals were neighbors, they chatted about once a month; (2) the two did not have regular social contact at the time of the trial and interacted about once a year for tax preparation purposes; (3) each time the juror was asked if he could impartially weigh the evidence and render a verdict accordingly, he unequivocally answered yes; and (4) the deputy\u2019s testimony was not crucial to the case.\n3. Appeal and Error\u2014 appealability \u2014 denial of mistrial\u2014 sleeping juror \u2014 waiver\nAlthough defendant contends the trial court erred in a prosecution for first-degree murder and other crimes by failing to declare a mistrial ex mero motu based on the fact that one of the jurors had been sleeping during the trial, defendant waived his right to assign error on appeal because the trial court inquired (after the jury was dismissed for lunch following closing arguments) about whether defendant would object to that juror sleeping through almost the whole trial, and defendant stated he wanted to keep her.\nAppeal by defendant from judgment entered 17 May 2006 by Judge Ronald L. Stephens in Durham County Superior Court. Heard in the Court of Appeals 15 November 2007.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Jonathan Babb, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant." }, "file_name": "0474-01", "first_page_order": 506, "last_page_order": 514 }