{
  "id": 4164481,
  "name": "STATE OF NORTH CAROLINA v. MARK STEPHEN THOMAS",
  "name_abbreviation": "State v. Thomas",
  "decision_date": "2009-03-03",
  "docket_number": "No. COA08-599",
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  "last_updated": "2023-07-14T21:32:21.117771+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge MARTIN and Judge BRYANT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MARK STEPHEN THOMAS"
    ],
    "opinions": [
      {
        "text": "BEASLEY, Judge.\nMark. Stephen Thomas (Defendant) appeals from judgment entered on his conviction of second-degree murder. Because the trial court erroneously deprived Defendant of his right to use his remaining peremptory challenge, we hold Defendant is entitled to a new trial.\nThe evidence tended to show the following: on'11 October 2006, Defendant shot and killed Christopher Brynarsky (Brynarsky) at Brynarsky\u2019s car repair shop. Brynarsky was the owner of Union County Customs (UCC), a car bodywork and paint business. Thirteen months prior to 11 October 2006, Defendant brought his Toyota MR2 to Brynarsky\u2019s shop to have work done. Defendant testified that he had paid Brynarsky approximately $6,500.00 in advance to complete the work and provided all the necessary car parts. He was told that it would take about three to four weeks to complete. After approximately one month, Defendant frequently visited the car shop to check on the status of his car repairs. Brynarsky and Defendant\u2019s relationship became strained five months prior to the shooting. After numerous heated conversations, Brynarsky refused to work on the car any longer and communicated that to Defendant on the morning of 11 October 2008.\n, Defendant received a call from Brynasky to pick up his car. Adam Frye, an employee at UCC, aware of the escalating conflict between Defendant and Brynasky, advised Defendant to retrieve his vehicle and parts at lunchtime, a time when Frye presumed that Brynasky would be away from the repair shop. Defendant went to Derek Parker\u2019s (Parker) house to pick him up to accompany him to the repair shop. Along the route to UCC, Defendant saw two sheriff deputies in separate locations and requested assistance from each in retrieving his car and parts. Each deputy refused to escort him to UCC.\nUpon entering UCC, Defendant started collecting his car parts and dragging them to the door. Brynarsky approached Defendant and asked whether or not he had been \u201ctalking sh\u2014\u201d about him. Defendant admitted that he had been and Brynarsky then stated, \u201cf\u2014 you and f\u2014 your little faggott buddy. I\u2019ll kill both of you.\u201d Brynarsky then walked toward his tool box and brandished a shotgun. Defendant retrieved his gun from his person and fired two shots into the roof and Brynarsky aimed his shotgun at Defendant. Defendant fired a single shot at Brynarsky. Defendant called the police, notified them of the shooting, and asked them to meet him at a nearby restaurant parking lot.\nRight to Peremptory Challenge\nDefendant argues that the trial court committed reversible error by failing to grant Defendant\u2019s request to remove a juror with his remaining peremptory challenge after the trial court reopened jury voir dire. Defendant contends that parties have an absolute right to exercise any remaining peremptory challenges to excuse a juror once the trial court reopens the examination of a juror and requests a new trial. We agree.\nAfter the jury was impaneled and the trial was underway, the trial court learned that one of the seated jurors attempted to contact an employee in the District Attorney\u2019s Office prior to impanelment. The juror visited the District Attorney\u2019s Office with the intention of greeting a friend, but was unsuccessful in his attempts to speak with her. Voir dire was reopened, the trial court questioned the juror, and allowed the parties to do so as well. After questioning, defense counsel requested that the juror be removed. The trial court denied this request and found that there would be no prejudice to either party to keep the juror seated. Defendant argues that his counsel informed the trial court that he had a peremptory challenge left and wished to use it to remove the juror.\nThe following was the exchange between the trial court and defense counsel:\nThe Court: [Defense Counsel], do you wish to be heard at all?\n[Defense Counsel]: Well, obviously a relationship with someone in the D.A.\u2019s office and actually going up there while we\u2019re selecting the jury, and I think that I know Your Honor, having been in front of you just a short period of time, know that you had admonished them and told them, and I think even had talked to them even at that point about the problem you had with a juror. Or maybe you told us about somebody talking to somebody. But, you know, he had those admonitions I think when\u2014even though he hadn\u2019t been in the box, he was sitting out here with other jurors and expected to listen and follow the Court\u2019s orders. You know, obviously if he\u2019d come back and said I did this, then I could have questioned him about it and maybe removed him from the jury. I think I still had one challenge left or could have even challenged him for cause. And now here we sit. So I\u2019m asking that you remove him.\nThe Court: Well, the Court will find that the admonitions were not to have any contact with any of the attorneys or participants in the case. The Court will find that prior to being called up to the jury box that juror number eight, . . . , while in the jury pool of prospective jurors apparently went by the District Attorney\u2019s Office to say hello to a friend of his, did not speak with that person, did not talk about the case, and nothing else took place. The Court will find that even though it makes common sense that you not go visit the District Attorney\u2019s Office, the Court would find after a voir dire of the witness that there was nothing spoken of about this case, that he apparently did not realize until later that this was an 'error, which he does realize now. The Court will find there would be no prejudice to either party and the Court will deny the motion to strike at this point. . . .\n\u201cThe right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. . . .\u201d State v. Freeman, 314 N.C. 432, 438, 333 S.E.2d 743, 747 (1985) (internal quotation marks omitted). N.C. Gen. Stat. \u00a7 15A-1217(b)(l) (2007) governs the number of peremptory challenges that a defendant in a non-capital case is allotted. Each defendant is allowed six challenges. The record indicates that Defendant only utilized five of the six peremptory challenges, making it clear that he had one remaining.\nIt is established that after a jury has been impaneled, further challenge of a juror is a matter within the trial court\u2019s discretion. State v. McLamb, 313 N.C. 572, 576, 330 S.E.2d 476, 479 (1985). However, \u201c \u2018[o]nce the trial court reopens the examination of a juror, each party has the absolute right to exercise any remaining peremptory challenges to excuse such a juror.\u2019 \u201d State v. Holden, 346 N.C. 404, 429, 488 S.E.2d 514, 527 (1997) (quoting State v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291, 297 (1996)) (emphasis added). It is undisputed in this case that the trial court, did in fact, reopen voir dire.\nStating Defendant\u2019s concerns about the juror\u2019s conduct, he sufficiently communicated the grounds upon which he was requesting to exercise his remaining peremptory challenge. Defense counsel stated, \u201cI think I still had one challenge left or could have even challenged him for cause. And now here we sit. So I\u2019m asking that you remove him.\u201d Subsequently, Defendant\u2019s motion was improperly denied. As a matter of law, Defendant was entitled to exercise his remaining peremptory challenge.\nFor the foregoing reasons, we conclude that the trial court committed reversible error by failing to permit Defendant to use his remaining peremptory challenge. Defendant is entitled to a new trial. \u2022\nNew Trial.\nChief Judge MARTIN and Judge BRYANT concur.",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, by Special Deputy Attorney General Ronald, M. Marquette, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARK STEPHEN THOMAS\nNo. COA08-599\n(Filed 3 March 2009)\nJury\u2014 voir dire reopened\u2014use of remaining peremptory challenge\nThe trial court erred by not permitting defendant to use his remaining peremptory challenge after voir dire was reopened. After the jury is empaneled, further challenge is within the judge\u2019s discretion, but once voir dire is reopened, each party has the absolute right to exercise remaining peremptory challenges.\nAppeal by Defendant from judgment entered 2 October 2007 by Judge Ronald E. Spivey in Union County Superior Court. Heard in the Court of Appeals 12 January 2009.\nAttorney General Roy A. Cooper, by Special Deputy Attorney General Ronald, M. Marquette, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for Defendant."
  },
  "file_name": "0593-01",
  "first_page_order": 625,
  "last_page_order": 628
}
