{ "id": 4364910, "name": "STATE OF NORTH CAROLINA v. CHRISTOPHER BERNARD HAMMONDS", "name_abbreviation": "State v. Hammonds", "decision_date": "2012-01-17", "docket_number": "No. COA11-271", "first_page": "158", "last_page": "166", "citations": [ { "type": "official", "cite": "218 N.C. App. 158" } ], "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": "670 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642369 ], "year": 2008, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0282-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "628 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635592 ], "year": 2006, "pin_cites": [ { "page": "443", "parenthetical": "quoting Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990)" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0442-01" ] }, { "cite": "673 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642931 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "373" }, { "page": "373" }, { "page": "374", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0372-01" ] }, { "cite": "473 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "343 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798937 ], "year": 1996, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0667-01" ] }, { "cite": "681 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "194 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162626 ], "year": 2008, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0453-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "392 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "424" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521453 ], "year": 1990, "pin_cites": [ { "page": "156-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0153-01" ] }, { "cite": "177 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301144 ], "year": 2006, "pin_cites": [ { "page": "241", "parenthetical": "quoting Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0239-01" ] }, { "cite": "685 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "195 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164481 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0593-01" ] }, { "cite": "488 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1997, "pin_cites": [ { "page": "527" }, { "page": "526" }, { "page": "527" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "346 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139592 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "429" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0404-01" ] } ], "analysis": { "cardinality": 769, "char_count": 17845, "ocr_confidence": 0.731, "pagerank": { "raw": 1.972014863075398e-07, "percentile": 0.7394295960884206 }, "sha256": "c1b1baa0e18062202d29b512d4e1c806e735446e1f6f8fc6a633b7714eb3bf7c", "simhash": "1:ad68f1e2d0ee8573", "word_count": 3003 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRISTOPHER BERNARD HAMMONDS" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Christopher Bernard Hammonds appeals from his convictions of felonious larceny of a firearm, misdemeanor larceny, assault on a government officer, and resisting an officer. On appeal, defendant primarily challenges the trial court\u2019s refusal to allow defendant, after the jury was impanelled, to exercise a remaining peremptory challenge to excuse a juror who acknowledged having lunch with a friend who was a lawyer in the district attorney\u2019s office. State v. Holden, 346 N.C. 404, 488 S.E.2d 514 (1997), and State v. Thomas, 195 N.C. App. 593, 673 S.E.2d 372, disc. review denied, 363 N.C. 662, 685 S.E.2d 800 (2009), are controlling. Under those decisions, because the trial court reopened voir dire and because defendant had not exhausted all of his peremptory challenges, the trial court .was required to allow defendant to exercise a peremptory challenge to excuse the juror. Defendant is, under Holden and Thomas, entitled to a new trial.\nFacts\nThe State\u2019s evidence tended to show the following facts. On 26 November 2008, Michael Hansen\u2019s Cadillac Escalade automobile was parked outside a nightclub in Charlotte, North Carolina. When Mr. Hansen came out of the nightclub around 1:35 a.m., someone had broken into his vehicle and stolen a cell phone and a .45mm handgun left in the car.\nMr. Hansen activated the tracking service associated with his cell phone plan and discovered that his cell phone was at the third house on Lynn Lee Circle. Mr. Hansen then called the police, reported that his cell phone and gun had been stolen, and gave them the location of the cell phone as identified by the locator service.\nAt approximately 4:30 a.m., four officers of the CharlotteMecklenburg police department (Sergeants Jackson and Suarez and Officers Langford and Markley) went to the Lynn Lee Circle address to conduct a knock and talk investigation. When three of the officers knocked on the front door, defendant emerged from the back of the house where Officer Langford was waiting. All four officers then converged on defendant, and Sergeant Suarez asked defendant if he would agree to a pat down search.\nAfter defendant agreed to the pat down, Sergeant Suarez felt what seemed to be another cell phone in defendant\u2019s pocket even though defendant was also holding a cell phone in his hand. Defendant did not respond when Sergeant Suarez asked defendant if he would allow her to see the cell phone in his pocket. Sergeant Suarez then walked around the corner of the house, called the Hansens, and asked Mrs. Hansen to call her husband\u2019s cell phone.\nSergeant Suarez walked back around the house, and within a minute the cell phone in defendant\u2019 pocket began ringing. Sergeant Suarez then moved to handcuff defendant, asking him to put his hands behind his back. Defendant reacted by rushing Sergeant Suarez, swinging his arms. Defendant struggled with three of the officers until the fourth was able to wrestle one of defendant\u2019s arms behind his back. In the course of the struggle, Sergeant Suarez was injured when defendant struck her in the nose.\nAfter defendant had been subdued, Sergeant Suarez retrieved the ringing cell phone from defendant\u2019s pocket and answered the phone. Mr. Hansen was on the other end of the call and confirmed that Sergeant Suarez was talking on his cell phone. Sergeant Jackson then secured the residence, a search warrant was obtained, and Mr. Hansen\u2019s handgun was discovered in a vehicle parked at the residence.\nDefendant was indicted for breaking and entering a motor vehicle, two counts of felonious larceny and misdemeanor larceny, two counts of felonious possession of stolen goods and misdemeanor possession of stolen goods, two counts of assault on a government officer, and one count of resisting a public officer. On 1 July 2010, the prosecutor dismissed one of the counts of assault on a government officer.\nAt trial, the jury found defendant not guilty of breaking or entering a motor vehicle, but guilty of assault on a government official, resisting a public officer, larceny of a firearm, and larceny of a cell phone. The trial court concluded that no verdict should be taken on the charges of felonious and misdemeanor possession of stolen goods as those charges merged into the larceny convictions.\nThe trial court sentenced defendant to a presumptive-range term of 10 to 12 months imprisonment for larceny of a firearm to be followed by a consecutive sentence of 120 days for misdemeanor larceny that in turn was followed by a consecutive sentence of 150 days for assault on a government official and resisting a public officer. Defendant timely appealed to this Court.\nDiscussion\nWe must first address whether defendant\u2019s notice of appeal was adequate to appeal the judgments below. N.C. Gen. Stat. \u00a7 15A-1448(b) (2011) provides that \u201c[n]otice of appeal shall be given within the time, in the manner and with the effect provided in the rules of appellate procedure.\u201d\nRule 4(a) of the North Carolina Rules of Appellate Procedure provides that an appeal in a criminal case may be taken either by \u201cgiving oral notice of appeal at trial\u201d or by filing a written notice of appeal within 14 days after entry of judgment. Rule 4(b) provides that any written notice of appeal \u201cshall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken . . . .\u201d\nIn this case, defendant did not give oral notice of appeal at trial, but rather filed a written notice of appeal on 13 July 2010. The notice of appeal specified that it was being filed under the file numbers for the two assault on a government official charges (although one was dismissed), the resisting arrest charge, and the breaking and entering a motor vehicle charge (although the jury had found defendant not guilty of that charge), as well as a file number that does not appear to be related to any of the charges at issue. The notice of appeal did not include the file numbers for the felonious and misdemeanor larceny charges.\nThe text of the notice of appeal stated:\nNOW COMES the Defendant, Christopher Hammonds, by and through his undersigned attorney, Kenneth D. Snow, and hereby gives notice of appeal to the State of North Carolina Superior Court Division for judgment entered in this case on July 1, 2010. Christopher Hammonds has requested that his case be appointed to the Appellate Defender\u2019s Office.\nThe notice of appeal included a signature line for defendant, but defendant\u2019s name was apparently signed and initialed by his trial counsel.\nIn this case, defendant\u2019s counsel filed a written notice of appeal that fails to list all the convictions that defendant is attempting to appeal and fails to properly name the court to which he is appealing. While this Court has held that \u201c \u2018a mistake in designating the judgment . . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake[,]\u2019 \u201d Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (2006) (quoting Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990)), we do not think that an intent to appeal all of defendant\u2019s convictions in this instance can be fairly inferred from his written notice of appeal. Accordingly, defendant\u2019s written notice of appeal does not comply with Rule 4.\nFollowing that inadequate notice of appeal, defendant\u2019s counsel attempted to give oral notice of appeal to the trial court on 2 August 2003. Since that notice was not given \u201cat trial\u201d as required by Rule 4, it also was inadequate. N.C.R. App. P 4(a)(1).\nOur Supreme Court has said that a jurisdictional default, such as a failure to comply with Rule 4, \u201cprecludes the appellate court from acting in any manner other than to dismiss the appeal.\u201d Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Defendant has, however, requested that we exercise our discretion under Rule 21 of the Rules of Appellate Procedure to review his arguments pursuant to a writ of certiorari. Rule 21(a)(1) provides that a writ of certiorari may issue to permit review of judgments and orders of trial tribunals \u201cwhen the right to prosecute an appeal has been lost by failure to take timely action .. . .\u201d The power to do so is discretionary and may only be done in \u201cappropriate circumstances.\u201d Id.\nBecause, in this case, it is readily apparent that defendant has lost his appeal through no fault of his own, but rather as a result of sloppy drafting of counsel and because a failure to issue a writ of certiorari would be manifestly unjust, we exercise our discretion to allow defendant\u2019s petition for writ of certiorari and address the merits of defendant\u2019s appeal. See In re I.T.P-L. 194 N.C. App. 453, 460, 670 S.E.2d 282, 285 (2008) (dismissing appeal based on jurisdictional default but allowing review pursuant to Rule 21 because \u201cthe timely, albeit incomplete, notices of appeal together with the amended notices of appeal provide record evidence that Respondents desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal\u201d and because allowing review would \u201cavoid penalizing Respondents for their attorneys\u2019 errors\u201d), disc, review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).\nTurning to the merits of the appeal, defendant first contends that the trial court erred in refusing to allow him to exercise an unused peremptory challenge after the trial court reopened voir dire following the impanelling of the jury. At trial, just after the lunch break, defendant\u2019s trial counsel reported to the trial court that he had seen juror number 8 having lunch with a lawyer from the district attorney\u2019s office. Defendant\u2019s counsel explained that if he had known of juror number 8\u2019s connection with an attorney with the district attorney\u2019s office, he \u201cprobably would have used one of [his] strikes against them.\u201d\nThe trial court had the bailiff return the jurors to the courtroom and asked them whether any of them had lunch with a member of the district attorney\u2019s office. Juror number 8 indicated that he had, but that they had not discussed defendant\u2019s case in any way. The trial court then asked the jury to leave and allowed both defendant and the State to ask any questions that they had of juror number 8. Both defendant and the State questioned juror number 8.\nAfter the juror was returned to the jury room, defendant made the following request to the trial court:\n[DEFENSE COUNSEL]: Judge, I certainly didn\u2019t want to cause any inconvenience, but I think I have a duty to ask that he be excluded because certainly that is a question, and given that he knew the attorney that intimately to have lunch with them, Judge, I think most of the attorneys would certainly have him removed, and that\u2019s a question he was aware of. I\u2019m not saying that he had any conversation, but certainly, Judge, I had two strikes left. I certainly would have removed him. There's no doubt about that had I known that. So I would ask that the Court consider excluding him, and I say that with all due respect, Judge. I certainly understand the inconvenience, but I would ask that he be removed.\nThe State, however, argued that defendant should have specifically questioned the jurors regarding any relationship with the district attorney\u2019s office during voir dire and that defendant had ample opportunity to question the'juror regarding his impartiality.\nAfter hearing arguments, the trial court made the following ruling:\nTHE COURT: I\u2019ll make these findings on the record. Juror No. 8 . . . has been inquired about out of the presence of the other jurors. It appears that [Juror No. 8] had lunch with a member of the district attorney\u2019s office, apparently a district attorney that is not associated with the supreme [sic] court division but is associated with the district court division who hasn\u2019t had any participation in this case. The juror also indicated he did not talk about this case. The juror also indicated after informing counsel that he did know two attorneys, he did not indicate either of those attorneys were with the district attorney\u2019s office. Jurors, by their very nature, generally respond to only what they are asked directly, and it does not appear any further inquiry was made about the practice of the attorneys that this juror knew in particular.\nThe juror has indicated that he can remain fair and impartial and that his acquaintance would not affect his decision in this case. Only the juror can know whether or not something like that\u2019s going to affect their ability to decide this case. Therefore, this court will conclude that the juror is yet fair and impartial and the Court, in its discretion, will deny the motion to remove this juror and replace the same with the alternate.\nThis Court addressed almost identical facts in Thomas. In that case, after the jury was impanelled,\nthe 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.\n195 N.C. App. at 594, 673 S.E.2d at 373. At the end of the voir dire, defense counsel reminded the trial court that he had an unused peremptory challenge remaining that he wished to use to excuse the juror. Id. at 595, 673 S.E.2d at 373. The trial court refused the defendant\u2019s request on the grounds that because the juror did not speak to his friend in the district attorney\u2019s office and did not talk about the case, \u201c \u2018there would be no prejudice to either party\u2019 \u201d by allowing the juror to sit. Id.\nOn appeal, this Court explained that although \u201c[i]t is established that after a jury has been impaneled, further challenge of a juror is a matter within the trial court\u2019s discretion,\u201d a different rule applies when the trial court reopens voir dire: \u201cHowever, \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 Id. at 596, 673 S.E.2d at 374 (emphasis added) (quoting Holden, 346 N.C. at 429, 488 S.E.2d at 527). Because it was undisputed that the trial court did in fact reopen voir dire, this Court held: \u201cAs a matter of law, Defendant was entitled to exercise his remaining peremptory challenge,\u201d and \u201cthe trial court committed reversible error by failing to permit Defendant to use his remaining peremptory challenge.\u201d Id. The Court, therefore, granted the defendant a new trial. Id.\nIn Holden, the authority relied upon by the Thomas panel, our Supreme Court concluded that the trial court did not err in allowing the State to exercise a peremptory challenge after the jury had already been impanelled \u2014 indeed, the Stat\u00e9 did not seek excusal of the juror until after the close of the evidence. 346 N.C. at 428, 488 S.E.2d at 526. The Court first pointed out that \u201cthe trial court may reopen the examination of a juror after the jury is impaneled and that this decision is within the sound discretion of the trial court.\u201d Id. at 429, 488 S.E.2d at 527. If, however, the trial court decides to exercise its discretion to reopen voir dire of a juror, then, at that point, \u201c \u2018each party has the absolute right to exercise any remaining peremptory challenges to excuse such a juror.\u201d Id. (emphasis added) (quoting State v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291, 297 (1996)). The Court concluded that the trial court had not abused its discretion in allowing further examination of the juror and, therefore, the State was entitled to exercise its peremptory challenge. Id.\nHere, as in Holden and Thomas, it is undisputed that the trial court exercised its discretion to reopen voir dire and allow further questioning of juror number 8 after the jury had been impanelled. Defendant had peremptory challenges remaining, and he sought to exercise one of those challenges to remove juror number 8. Under Holden and Thomas, because the trial court chose to reopen voir dire, defendant had an absolute right to do so. Consequently, the trial court committed reversible error in refusing to excuse juror number 8, and Holden and Thomas mandate that defendant is entitled to a new trial.\nNew trial.\nJudges STROUD and THIGPEN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State.", "Kevin P. Bradley for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER BERNARD HAMMONDS\nNo. COA11-271\n(Filed 17 January 2012)\n1. Appeal and Error \u2014 notice of appeal \u2014 poorly drafted\u2014 certiorari\nA petition for certiorari was granted in the discretion of the Court of Appeals where defendant lost his right of appeal through sloppy drafting by counsel and through no fault of his own (the written notice of appeal did not list all the convictions he was attempting to appeal and did not properly name the court to which he was appealing). Failure to issue a writ of certiorari would have been manifestly unjust.\n2. Jury \u2014 selection\u2014voir dire reopened \u2014 peremptory challenge\nThe trial court erred by refusing to remove a juror in a larceny trial where the judge reopened voir dire and allowed further questioning of a juror after learning that the juror had lunch with a member of the district attorney\u2019s office. Because the judge reopened voir dire, defendant had an absolute right to exercise a remaining challenge.\nAppeal by defendant from judgments entered 1 July 2010 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 September 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State.\nKevin P. Bradley for defendant-appellant." }, "file_name": "0158-01", "first_page_order": 168, "last_page_order": 176 }