{ "id": 4245304, "name": "STATE OF NORTH CAROLINA v. JEREMY ANTUAN MARSH, Defendant", "name_abbreviation": "State v. Marsh", "decision_date": "2013-09-17", "docket_number": "No. COA13-190", "first_page": "606", "last_page": "615", "citations": [ { "type": "official", "cite": "229 N.C. App. 606" } ], "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": "615 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633408, 12633396, 12633397, 12633398, 12633399, 12633400, 12633401, 12633402, 12633403, 12633404, 12633405, 12633406, 12633407 ], "opinion_index": 0, "case_paths": [ "/se2d/615/0739-13", "/se2d/615/0739-05", "/se2d/615/0739-01", "/se2d/615/0739-02", "/se2d/615/0739-03", "/se2d/615/0739-04", "/se2d/615/0739-06", "/se2d/615/0739-07", "/se2d/615/0739-08", "/se2d/615/0739-09", "/se2d/615/0739-10", "/se2d/615/0739-11", "/se2d/615/0739-12" ] }, { "cite": "735 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "108 L.Ed. 2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "381 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "688", "parenthetical": "\"Under North Carolina Rule 606(b" } ], "opinion_index": 0 }, { "cite": "325 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490179 ], "year": 1989, "pin_cites": [ { "page": "135-36", "parenthetical": "\"Under North Carolina Rule 606(b" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0125-01" ] }, { "cite": "370 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "363" }, { "page": "363" }, { "page": "362-63", "parenthetical": "\"Although the foreman of the jury should have obeyed the instructions of the court and not have watched the program on child abuse, the matters he reported to the jury did not deal with the defendant or with the evidence introduced in this case.\"" }, { "page": "363" } ], "opinion_index": 0 }, { "cite": "322 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518874 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "832" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0826-01" ] }, { "cite": "607 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "634", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793758 ], "year": 2005, "pin_cites": [ { "page": "240", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0228-01" ] }, { "cite": "2005 WL 1669335", "category": "reporters:specialty_west", "reporter": "WL", "pin_cites": [ { "page": "*3" } ], "opinion_index": 0 }, { "cite": "171 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 783, "char_count": 20493, "ocr_confidence": 0.725, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14113853742052143 }, "sha256": "89a7ba01480ed5e110ea4582af19df7e3dfde5c3b4bf4c97920e0afc78eaaf47", "simhash": "1:a62d1320764c6563", "word_count": 3308 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and DAVIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JEREMY ANTUAN MARSH, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nThe State appeals the order of the trial court vacating defendant\u2019s sentence for first degree murder. For the following reasons, we reverse and remand.\nI. Background\nOn or about 21 March 2003, defendant was convicted of, inter alia, first degree murder and sentenced to life imprisonment without parole; that same day defendant appealed to this Court. Within the week, defendant filed a motion for appropriate relief (\u201cMAR 1\u201d) with the trial court arguing that his \u201ccounsel was ineffective in his representation of the Defendant..., and that Defendant therefore did not receive a fair and impartial trial with due process of law and his conviction and sentencing is in violation of the\u201d United States and North Carolina Constitutions. Defendant\u2019s MAR 1 stated that he had \u201cdiscovered, after the return of the verdict, and after giving Notice of Appeal in open Court, that there were certain irregularities in the jury\u2019s deliberations that give reasonable grounds to question the validity of the verdict in this case.\u201d Defendant\u2019s MAR 1 included an affidavit from a juror, Kathleen Newsom, averring that\nvarious jurors claimed that a conviction of second degree murder would result in the release of the Defendant after serving a term of no more than eight years in prison .... [and that she] was overborne by the other eleven jurors, and she agreed to assent to the verdict of guilty of first degree murder in order to return a unanimous verdict....\nJuror Newsom also averred that\n[w]ere the jury to have been individually polled by the Court at the request of the Defendant, there is a possibility that the undersigned would have informed the Court that she did not assent to that verdict and that it was not a unanimous verdict of guilty of first degree murder.\nThe State opposed defendant\u2019s MAR 1, and in January of 2004 at the hearing on the MAR, defendant\u2019s trial counsel testified that he did not have any strategic reason for his failure to request a poll of the jury. Juror Newsom also testified to essentially the same facts as were stated in her affidavit, but she emphasized that, had she been individually polled, she would have informed the judge that she did not assent to the verdict of guilty of first degree murder:\n[A]s I look back on it, you know, now, I absolutely wouldn\u2019t waiver [sic] because I\u2019ve had so much time to think about it....\n... I would be very certain that even at that point [if we had been polled] I would have said no, I don\u2019t agree.\nJuror Newsom also testified that\nwe took a vote as to who thought... [defendant was guilty Of] first-degree murder . . . and basically from the gate it was convincing us as to why w[e] needed to vote that way.\nI said I was very comfortable with voluntary manslaughter and perhaps second-degree murder, but definitely not first-degree murder..... I absolutely did not think it was planned out well ahead of time and . . . [that defendant] had come and just done cold-blooded murder.....\n[But the other jurors, w]ell, they were vehemently against [a verdict other than first-degree murder], especially there were probably two or three of the men especially. It was two women who were dissenting, in my opinion.... [But after -another vote] I was the only one left at that point. But one of the gentlemen began making comments like . . . would you want Jeremy Marsh to come shoot your son. Or how would you feel if you give him second-degree murder, he\u2019ll be out in eight years, and he will come after your son....\n... There was a good deal of discussion [about sentencing and] why second-degree murder would not be a good verdict.\n... I think the main thought in my head was the reason I changed my vote is I knew that it had to be a unanimous decision....\n... I voted against my conscience.\nJuror Newsom\u2019s testimony also addressed the impact that the other jurors\u2019 statements had on her deliberations:\n[I]t was very difficult for me to be in that jury room with the other jurors. Because my - Because my opinion was different than theirs.\n[The comments regarding the defendant coming after my son were] very emotionally difficult for me to deal with.\n. . . And you have to understand me to understand . . . I\u2019m a people pleaser by nature, and so it\u2019s really tough to sit in [that] environment and have especially some very, very adamant and vehement comments made to me .... [I had a lot of] thoughts swirling around, and so my judgment at that moment was not what I wish it would have been.\nOn 16 January 2004, the trial court denied defendant\u2019s MAR 1. Defendant appealed.\nOn 19 July 2005, in State v. Marsh, 171 N.C. App. 516, 615 S.E.2d 739, 2005 WL 1669335 at *3 (unpublished) (2005) (\u2018\u2018Marsh 1\u201d), this Court issued an opinion addressing the appeal of both defendant\u2019s judgment convicting him of first degree murder and his MAR 1. In Marsh I, this Court noted that defendant had \u201cabandoned\u201d any issues regarding MAR 1, and ultimately found no error as to defendant\u2019s conviction for first degree murder. Marsh at *3, *6.\nIn defendant\u2019s first appeal, the record included Juror Newsom\u2019s 2003 affidavit as well as the trial court\u2019s order denying MAR 1, but the issues presented in MAR 1, including those regarding extraneous information and failure to poll the jury, were not presented as one of the 36 assignments of error raised in the first appeal. This Court noted that \u201cIn his brief, defendant brings forward only six of the thirty-six assignments of error set forth in the record on appeal. His remaining assignments of error, including those related to his motion for appropriate relief, are deemed abandoned.\u201d See id. at *3 (emphasis added). Defendant filed a petition for discretionary review with the Supreme Court of North Carolina, which was subsequently denied on 21 October 2003. On 2 August 2006, defendant petitioned this Court for a writ of certiorari because he \u201cwas under the assumption that [his] MAR [1] would be appealed with [his] Direct Appeal.\u201d On 22 August 2006, this Court denied defendant\u2019s petition.\nOn 22 May 2008, defendant filed a second MAR (\u201cMAR 2\u201d) bringing forth two claims:\nThe defendant\u2019s rights securedby the Sixth Amendment to the United States Constitution and the North Carolina Constitution were violated when the jury based their decision in part on extraneous information regarding punishment which was inaccurate and not properly introduced into evidence and because a juror was intimidated into voting for first degree murder.\nThe defendant did not receive effective assistance of counsel during his MAR hearing and on direct appeal because his trial counsel failed to amend the MAR to conform to the testimony given during the hearing and his appellate counsel failed to raise the issues on direct appeal.\n(Original in all caps.)\nOn or about 7 August 2008, defendant filed an amendment to his MAR 2 (\u201cMAR 2.1\u201d) and added three more claims:\nThe failure of trial counsel to adequately preserve the issue of testimony related to self defense constituted ineffective assistance of counsel. Further, the failure of appellate counsel to raise an ineffective assistance of counsel claim due to the failure to preserve the testimony on direct appeal constituted ineffective assistance of appellate counsel.\nThe failure to provide the defendant with notice and opportunity to be heard when both a trial attorney and appellate attorney withdrew from representing the defendant violated the defendant\u2019s right to due process, and right to counsel.\nThe defendant did not receive effective assistance of counsel because his trial counsel failed to include in the defendant\u2019s MAR a claim that the jury was given extraneous information regarding the punishment for second degree murder.\n(Original in all caps.) On or about 5 November 2008, the State filed a response in opposition to defendant\u2019s MAR 2.\nOn or about 17 December 2008, defendant filed a second amendment to his MAR 2 (\u201cMAR 2.2\u201d) arguing:\nThe district attorney improperly delegated his prosecutorial function and discretion to the victim\u2019s family members when he proffered a plea to second degree murder to the defendant, contingent on defendant\u2019s trial counsel tendering that plea to the victim\u2019s family and the victim\u2019s family accepting the plea offer, in violation of the defendant\u2019s right to due process as secured by the Fourteenth Amendment of the United States Constitution and N.C. Const. Art IV, \u00a7 18.\n(Original in all caps.)\nOn 11 March 2009, defendant filed a third amendment to his MAR 2 (\u201cMAR 2.3\u201d) arguing that \u201cdefense counsel\u2019s dual representation of defendant and [a] key prosecution witness in an unrelated case established conflict of interest in violation of defendant\u2019s right to counsel as secured by the Sixth and Fourteenth Amendment.\u201d (Original in all caps.)\nOn 22 October 2012, the trial court vacated defendant\u2019s conviction for first degree murder based upon defendant\u2019s MAR 2. The State petitioned this Court for a writ of certiorari to review the trial court\u2019s order vacating defendant\u2019s sentence, and on 5 November 2012, this Court allowed the State\u2019s petition.\nII. Standard of Review\nWhen considering rulings on motions for appropriate relief, we review the trial court\u2019s order to determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.\nState v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (citation omitted) (citation and quotation marks omitted).\nIII. MAR 2\nThe State contends that the trial court erred in vacating defendant\u2019s conviction for first degree murder. Facially, the trial court appears to have granted claim one of defendant\u2019s MAR 2, which alleged that\n[t]he defendant\u2019s rights secured by the Sixth Amendment to the United States Constitution and the North Carolina Constitution were violated when the jury based their decision in part on extraneous information regarding punishment which was inaccurate and not properly introduced into evidence and because a juror was intimidated into voting for first degree murder.\n(Original in all caps.) In fact, the trial court\u2019s order is even entitled \u201cOrder Granting Claim One of Defendant\u2019s Motion for Appropriate Relief[.]\u201d (Original in all caps.) Yet it is clear from the trial court\u2019s order that defendant\u2019s conviction was actually vacated on the basis of his second claim in MAR 2 which alleged\n[t]he defendant did not receive effective assistance of counsel during his MAR hearing and on direct appeal because his trial counsel failed to amend the MAR to conform to the testimony given during the hearing and his appellate counsel failed to raise the issues on direct appeal.\n(Original in all caps.) Indeed, the trial court concluded that\n3. The Defendant was entitled to the effective assistance of counsel at the trial level and the appellate level....\n4. The failure of trial counsel... to raise and vigorously argue in . . . [MAR 1] the question of whether prejudicial extraneous information had been injected into the jury deliberations, constituted ineffective assistance of counsel, in violation of the Defendant\u2019s rights secured by the Sixth and Fourteenth Amendments to the United States Constitution.\n5. The failure of appellate counsel to present the issue to the Court of Appeals of whether prejudicial extraneous information had been injected into the jury deliberation and whether trial counsel had provided effective assistance of counsel in preparing and presenting the ten day MAR, constituted ineffective assistance of counsel, in violation of the Defendant\u2019s rights secured by the Sixth and Fourteenth Amendments to the United States Constitution.\nIn summary, the trial court actually determined that the second claim in MAR 2 regarding ineffective assistance of counsel was a proper ground upon which to vacate defendant\u2019s conviction for first degree murder as the appellate counsel failed to raise the ineffectiveness of defendant\u2019s trial counsel in failing to raise the issue presented in defendant\u2019s MAR claim two regarding extraneous information being presented to the jury.\nRule 606(b) of the North Carolina Rules of Evidence provides that\n[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury\u2019s deliberations or to the effect of anything upon his or any other juror\u2019s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 606(b) (2007) (emphasis added). Regarding a juror\u2019s testimony about extraneous information, the North Carolina Supreme Court has stated that under Rule 606(b)\nextraneous information is information dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence. It does not include information which a juror has gained in his experience which does not deal with the defendant or the case being tried.\nState v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988); see State v. Quesinberry, 325 N.C. 125, 135-36, 381 S.E.2d 681, 688 (1989) (\u201cUnder North Carolina Rule 606(b), as interpreted in Rosier, allegations that jurors considered defendant\u2019s possibility of parole during their deliberations are allegations of \u2018internal\u2019 influences on the jury. First, the \u2018information\u2019 that defendant would be eligible for parole in about ten years was not information dealing with this particular defendant, but general information concerning the possibility of parole for a person sentenced to life imprisonment for first degree murder. Second, there is no allegation that the jurors received information about parole eligibility from an outside source. The juror affidavits state that it was the jurors\u2019 \u2018idea,\u2019 \u2018belief,\u2019 or \u2018impression\u2019 that defendant would be released in ten years. We have said that it would be naive to believe jurors during jury deliberations do not relate the experiences they have had, and that the possibility of parole or executive clemency is a matter of common knowledge among most adult persons. Most jurors, through their own experience and common knowledge, know that a life sentence does not necessarily mean that the defendant will remain in prison for the rest of his life. Therefore, the jurors\u2019 \u2018belief\u2019 about' defendant\u2019s possibility of parole was an \u2018internal\u2019 influence on the jury. Allowing jurors to impeach their verdict by revealing their \u2018ideas\u2019 and \u2018beliefs\u2019 influencing their verdict is not supported by case law, nor is it sound public policy.\u201d (citations, quotation marks, and brackets omitted)), pet. for writ of cert. granted and judgment vacated on other grounds, 494 U.S. 1022, 108 L.Ed. 2d 603 (1990). Accordingly, extraneous information \u201cdea![s] with the defendant or\u201d defendant\u2019s case. Rosier, 322 N.C. at 832, 370 S.E.2d at 363. Even prohibited information that simply relates to the defendant\u2019s case is not necessarily extraneous. Id. at 832, 370 S.E.2d at 362-63 (\u201cAlthough the foreman of the jury should have obeyed the instructions of the court and not have watched the program on child abuse, the matters he reported to the jury did not deal with the defendant or with the evidence introduced in this case.\u201d).\nThe jurors\u2019 comments about defendant\u2019s possible sentence or a fear of possible future retribution are not specific information regarding \u201cthe defendant or the case being tried.\u201d Id. at 832, 370 S.E.2d at 363. Comments about potential sentencing or even about a fear of retribution from a defendant who has, after all, allegedly killed another person, are general and nonspecific. These comments were about defendant or defendant\u2019s case only in the general sense that all of the jurors\u2019 substantive discussions are necessarily regarding \u201cthe defendant or the case being tried.\u201d Id. Defendant and his alleged actions are the subject of their deliberations. The difference is that the jurors\u2019 discussion as expressed by Juror Newsom is not specific extraneous factual information about this defendant. For example, if a juror told the other jurors that he got an anonymous phone call the prior evening from a caller who said that defendant told him he would kill the juror\u2019s son if he ever got out of prison, this would be specific information regarding defendant, and thus extraneous information. See id. Certainly jurors often discuss their personal ideas and beliefs about many issues, and these comments may at times be incorrect in the legal sense or without any basis in fact, but Rule 606(b) still forbids inquiry into these matters unless the information presented is specific information about \u201cthe defendant or the case being tried.\u201d Id.; see N.C. Gen. Stat. \u00a7 8C01, Rule 606(b).\nEven assuming arguendo that had Juror Newsom been polled she would have dissented and revealed the jury\u2019s discussion regarding defendant\u2019s possible sentence, this information would still not be considered extraneous pursuant to North Carolina General Statute \u00a7 8C-1, Rule 606(b). See N.C. Gen. Stat. \u00a7 8C-1, Rule 606(b). As the information revealed by Juror Newsom was not extraneous, defendant\u2019s trial counsel did not render ineffective assistance by his failure to raise this issue in defendant\u2019s MAR 1, and since defendant\u2019s trial counsel was not ineffective in this regard, defendant\u2019s appellate counsel also was not ineffective in failing to raise the issue on appeal. See generally, State v. Mitchell,_N.C. App._,_, 735 S.E.2d 438, 442 (2012) (\u201cThe United States Supreme Court has set forth the test for determining whether a defendant received constitutionally ineffective assistance of counsel .... Pursuant to the two part test, the defendant must first show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d (citation and quotation marks omitted)).\nIV. Conclusion\nAs the information presented by Juror Newsom was not \u201cextraneous prejudicial information [which] was improperly brought to the jury\u2019s attention or . . . any outside influencef,]\u201d N.C Gen. Stat. \u00a7 8C-1, Rule 606(b), upon the jury deliberations, defendant\u2019s trial counsel did not provide ineffective assistance of counsel in failing to raise this issue before the trial court and defendant\u2019s appellate counsel was not ineffective in failing to raise the issue of defendant\u2019s trial counsel\u2019s ineffectiveness. Accordingly, we reverse and remand for the trial court to consider defendant\u2019s remaining issues presented in his various MARs to the extent that they have not previously been addressed by the trial court or this Court.\nREVERSED AND REMANDED.\nJudges CALABRIA and DAVIS concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Teresa M. Postell, for the State.", "The Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEREMY ANTUAN MARSH, Defendant\nNo. COA13-190\nFiled 17 September 2013\nConstitutional Law \u2014 effective assistance of counsel \u2014 failure to raise issue \u2014 vacated first-degree murder sentence improper\nThe trial court erred by vacating defendant\u2019s conviction for first-degree murder. The pertinent juror did not provide improper extraneous prejudicial information to the jury, and thus, defendant\u2019s trial counsel did not provide ineffective assistance of counsel by failing to raise this issue before the trial court. The case was reversed and remanded to the trial court for consideration of defendant\u2019s remaining issues presented in his various motions for appropriate relief.\nAppeal by the State from order entered 22 October 2012 by Judge John O. Craig, III, in Superior Court, Randolph County. Heard in the Court of Appeals 6 June 2013.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Teresa M. Postell, for the State.\nThe Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer, for defendant-appellee." }, "file_name": "0606-01", "first_page_order": 616, "last_page_order": 625 }