{ "id": 4168213, "name": "STATE OF NORTH CAROLINA v. ISTIVAN CLEVONDON DOUGLAS", "name_abbreviation": "State v. Douglas", "decision_date": "2009-05-19", "docket_number": "No. COA08-1287", "first_page": "215", "last_page": "220", "citations": [ { "type": "official", "cite": "197 N.C. App. 215" } ], "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": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "456" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "356 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 36", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121556 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0036-01" ] }, { "cite": "508 U.S. 275", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12227 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "280" }, { "page": "190" }, { "page": "277" }, { "page": "188", "parenthetical": "\"The right [to a jury trial] includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of 'guilty.' \"" } ], "opinion_index": 0, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "515 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1564227 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "514" }, { "page": "452" }, { "page": "510" }, { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/us/515/0506-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "year": 2006, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "320 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "319" }, { "page": "319", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524181 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "620" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0619-01" ] }, { "cite": "148 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "267 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559707 ], "year": 1966, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0470-01" ] }, { "cite": "160 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "273 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575395 ], "year": 1968, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0388-01" ] } ], "analysis": { "cardinality": 613, "char_count": 12510, "ocr_confidence": 0.757, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33979973349797615 }, "sha256": "b292a857a43dddc129aa8c059d548f9956a3999094b9d377c4c004c7b39208bb", "simhash": "1:12f1f32ce78db5fc", "word_count": 2090 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ISTIVAN CLEVONDON DOUGLAS" ], "opinions": [ { "text": "BRYANT, Judge.\nIstivan Clevondon Douglas (defendant) appeals from a judgment entered upon a jury verdict finding him guilty of one count of possession with intent to sell and/or deliver cocaine, one count' of selling cocaine, and defendant\u2019s plea of guilty to attaining the status of an habitual felon. For the reasons stated herein, we must grant defendant a new trial.\nFacts\nDefendant was arrested pursuant to a warrant on 12 February 2007. On 19 February 2007, a Cabarrus County Grand Jury indicted defendant on one count of possession with intent to sell and/or deliver cocaine, one count of sale of crack cocaine, and one count of delivery of crack cocaine. On 12 March 2007 defendant was indicted for attaining the status of an habitual felon. On 31 December 2007, the same Grand Jury returned a superceding indictment in the habitual felon case.\nThese cases were tried together at the 14 January 2008 Criminal Session of Cabarrus County Superior Court before Superior Judge W. Erwin Spainhour. On 16 January 2008 the jury returned verdicts related to the charges. Defendant pled guilty to attaining the status of an habitual felon. The offenses were consolidated for judgment and on 16 January 2008, Judge Spainhour sentenced defendant to a term of imprisonment for a minimum of 120 months and a maximum of 153 months. The State voluntarily dismissed the delivery charge with leave to reinstate. Defendant appealed.\nAn Order of Appellate Entries was entered on 16 January 2008. The court found defendant indigent and noted that defendant waived appellate counsel. On 25 April 2008, Judge Spainhour entered an amended Order for the Appellate Defender to represent defendant on appeal. Defendant filed a pro se motion in Cabarrus County Superior Court which was denied on 11 June 2008 by Judge Spainhour. On 25 June 2008, the North Carolina Court of Appeals denied appellate counsel\u2019s motion to withdraw based on defendant\u2019s desire to proceed pro se. On 26 June 2008, the Court of Appeals granted the State\u2019s motion to strike defendant\u2019s pro se record on appeal and brief, and ordered defendant\u2019s appointed appellate counsel to file a proper settled record on appeal. On 28 September 2008, the North Carolina Supreme Court denied defendant\u2019s pro se petition for writ of certioari to review the Court of Appeals\u2019 June 25 and 26, 2008 Orders.\nThe underlying facts of this case are as follows: On 23 January 2007 Officer Eugene Ramos was working as an undercover narcotics officer with the Concord Police Department; Officer Ramos was a new member of the department and was assigned to the narcotics unit because he was not from the area and was unknown to members of the community. At approximately 3:00 pm, Officer Ramos departed to the Sizetown area in an unmarked tan Honda Accord with twenty dollars in special funds to attempt to make an undercover drug buy. Officer Ramos noticed two men standing on a porch at 27 Flow Street. Officer Ramos showed the men the twenty dollar bill and was directed to circle the block by one of the two men. Once he drove around the block the other man, later identified as defendant, approached the car and gave Officer Ramos a small white rock substance in exchange for the twenty dollar bill. Officer Ramos then left the area.\nOfficer Ramos brought the substance to Officer Brian Kelly. Officer Ramos was not familiar with defendant nor did he recognize him from photo books he reviewed prior to the undercover operation. Officer Ramos did recall that defendant had a disabled hand. Defendant was arrested on 12 February 2007. In the courtroom, Officer Ramos identified defendant as the man who sold him the crack cocaine.\nDuring jury instructions, the trial court charged the jury on the elements of possession with intent to sell or distribute cocaine and sale of cocaine pursuant to pattern jury instructions 260.15 and 260.21. The verdict form submitted to the jury read in relevant part:\nWe, the jury, return as our unanimous verdict that the defendant is:\nISSUE 1:\nDid the defendant possess cocaine, a controlled substance, with the intent to sell or deliver it?\nANSWER: _\nISSUE 3:\nDid he defendant sell cocaine, a controlled substance, to Officer Eugene Ramos?\nANSWER: _\nThe jury wrote the word \u201cyes\u201d in the blank beside the word \u201cANSWER\u201d for both Issues 1 and 3 on the verdict form and signed and dated the form. The form did not contain a designation for entering a verdict of guilty or not guilty. At no time did the jury submit a verdict of guilty or not guilty to the charges of possession with intent to sell or deliver cocaine and sale of cocaine. After the jury returned their answers on the verdict form, the trial court polled the jury as follows:\nTHE COURT: Members of the jury, your foreperson has returned as your unanimous written verdict... as follows:\nWe the jury return as our unanimous verdict that the defendant is, as to Issue Number 1, did the defendant possess cocaine, a controlled substance with the intent [to] sell or deliver it.\nYour answer was yes.\nAs to Issue 3, did the defendant sell cocaine, a controlled substance, to Officer Eugene Ramos?\nYour answer was yes.\nTHE COURT: Is this your verdict, so say all of you?\n(Unanimous indication given.)\nTHE COURT: Ladies and gentlemen of the jury, if this was your individual verdict, each you [sic] of your individual verdict while you were voting in the jury room, please indicate by raising your hand.\nTHE COURT: Let the record show I counted all 12 hands.\nTHE COURT: If it remains your verdict at this very moment, if each of you would individually raise your hand.\nTHE COURT: I counted all 12 hands.\nDefendant appeals.\nOn appeal, defendant contends: (I) defendant is entitled to a new trial because the trial court submitted, the jury returned, and the trial court accepted unconstitutional true special verdicts that do not support the judgment; (II) defendant is entitled to a new trial because the trial court erroneously admitted the State\u2019s inadmissible evidence about reputation of defendant\u2019s neighborhood as being drug-infested in violation of State v. Williams; and (III) defendant\u2019s convictions must be vacated because there is insufficient evidence he possessed and sold a controlled substance.\nI\nDefendant argues he is entitled to a new trial because true special verdicts were erroneously submitted, returned, and accepted. We agree.\n\u201cA verdict is the unanimous decision made by the jury and reported to the court. It is a substantial right. . . .\u201d State v. Hemphill, 273 N.C. 388, 389, 160 S.E.2d 53, 55 (1968). \u201cVerdicts and judgments in criminal actions should be clear and free from ambiguity or uncertainty. The enforcement of the criminal law and the liberty of the citizen demand exactitude.\u201d State v. Rhinehart, 267 N.C. 470, 481, 148 S.E.2d 651, 659 (1966). \u201cA jury verdict must unambiguously state that the defendant has been found guilty of a crime.\u201d State v. Hobson, 70 N.C. App. 619, 620, 320 S.E.2d 319, 319 (1984).\n\u201cA special verdict is a common law procedural device by which the jury may answer specific questions posed by the trial judge that are separate and distinct from the general verdict.\u201d State v. Blackwell, 361 N.C. 41, 47, 638 S.E.2d 452, 456 (2006). In North Carolina, special verdicts are a widely accepted method of submitting aggravating factors to a jury. Id. A \u201ctrue\u201d special verdict is where \u201cthe jury only makes findings on the factual components of the essential elements alone.\u201d Id. \u201cTrue\u201d special verdicts are not allowed in criminal cases because such verdicts do not allow the jury to fulfill its constitutional responsibilities to determine whether defendant is guilty or not guilty. \u201c[T]his practice violates a criminal defendant\u2019s Sixth Amendment right to a jury trial.\u201d Id. at 47, 638 S.E.2d at 457.\nThe jury\u2019s constitutional responsibility requires the jury to \u201capply the law to th[e] facts and draw the ultimate conclusion of guilt or innocence.\u201d United States v. Gaudin, 515 U.S. 506, 514, 132 L. Ed. 2d 444, 452 (1995). \u201cThe Sixth Amendment requires more than appellate speculation about a hypothetical jury\u2019s action...; it requires an actual jury finding of guilty.\u201d Sullivan v. Louisiana, 508 U.S. 275, 280, 124 L. Ed. 2d 182, 190 (1993). Thus, a criminal conviction must \u201crest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.\u201d Gaudin, 515 U.S. at 510, 132 L. Ed. 2d at 449.\nIn the instant case, the jury did not fulfill its constitutional responsibility to make an actual finding of defendant\u2019s guilt. The verdict form in the instant case only required the jury to make factual findings on the essential elements of the charged crimes and nothing more. Thus, defendant\u2019s Sixth Amendment right to a jury trial was violated because the jury did not make an actual finding of defendant\u2019s guilt. Here, the jury verdict was a true special verdict in violation of Gaudin and Blackwell and could not be the basis for the judgment entered against defendant.\nThe State argues the verdict form submitted to the jury merely omits the words \u201cnot guilty\u201d and, based on the reasoning in State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595 (1987), omission of the words \u201cnot guilty,\u201d is not error when the jury instructions are correct and the jury is polled. However, Hicks is inapplicable to the present case because even though it involved the use of a verdict form that was \u201cnot preferred,\u201d the form nevertheless required the jury to make an actual finding of guilt.\nIn Hicks, the verdict form required the jury to determine whether the defendant was \u201cGuilty of felonious conspiracy to commit felonious Breaking and Entering\u201d and \u201cGuilty of felonious Conspiracy to commit felonious Larceny.\u201d Id. at 43, 356 S.E.2d at 599. The verdict form included the word \u201cguilty\u201d but failed to include the words \u201cnot guilty.\u201d Id. However, the verdict form used and the trial court\u2019s instruction to the jury required the jury to make an actual and ultimate determination of the defendant\u2019s guilt. Id. After considering the trial court\u2019s instructions to the jury with respect to the permissible verdicts the jury could return, as well as each juror\u2019s affirmation when polled that the verdict of guilty was his or her verdict, this Court affirmed the conviction in Hicks despite the trial court\u2019s failure to include the words \u201cnot guilty\u201d on the verdict form. Id.\nUnlike the jury in Hicks, the jury in the instant case was not required to reach an ultimate determination regarding defendant\u2019s guilt or innocence. Here, the verdict form failed to include the words \u201cguilty\u201d or \u201cnot guilty.\u201d The trial court\u2019s charge to the jury could not cure the defective verdict form because the verdict form did not require the jury to fulfill its constitutional responsibility to determine defendant\u2019s guilt or innocence. Neither could the polling of the jury cure the defective verdict where the trial court asked the jury members if the verdict was their individual verdict and the verdict to which the trial court referred did not \u201cunambiguously state that defendant ha[d] been found guilty of a crime.\u201d Hobson, 70 N.C. App. at 620, 320 S.E.2d at 319 (emphasis added); see also Sullivan, 508 U.S. at 277, 124 L. Ed. 2d at 188 (\u201cThe right [to a jury trial] includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of \u2018guilty.\u2019 \u201d). Therefore, defendant is entitled to a new trial on each charge.\nBecause of our holding, we need not address defendant\u2019s remaining arguments.\nNEW TRIAL.\nJudges ELMORE and STEELMAN concur.\n. Verdict form used by the trial court that only used the word \u201cguilty\u201d not preferred; use of \u201cnot guilty\u201d on verdict form is preferred.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten-, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ISTIVAN CLEVONDON DOUGLAS\nNo. COA08-1287\n(Filed 19 May 2009)\nJury\u2014 verdict form \u2014 questions\u2014elements of crime \u2014 finding of guilt not included\nThe jury did not fulfill its constitutional responsibility to make an actual finding of defendant\u2019s guilt where the verdict form required only findings on the essential elements of the charges and nothing more.\nAppeal by defendant from judgment dated 16 January 2008 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 25 March 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten-, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant." }, "file_name": "0215-01", "first_page_order": 245, "last_page_order": 250 }