{ "id": 8548353, "name": "STATE OF NORTH CAROLINA v. JERRY LEE SELPH", "name_abbreviation": "State v. Selph", "decision_date": "1977-05-04", "docket_number": "No. 7611SC904", "first_page": "157", "last_page": "162", "citations": [ { "type": "official", "cite": "33 N.C. App. 157" } ], "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": "201 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "20 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553329 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/20/0448-01" ] }, { "cite": "164 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "183 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569495 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0442-01" ] }, { "cite": "229 S.E. 2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548355 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0187-01" ] }, { "cite": "125 S.E. 2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565769 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0103-01" ] }, { "cite": "380 F. 2d 915", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2073192 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/380/0915-01" ] }, { "cite": "492 F. 2d 232", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 474677 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/492/0232-01" ] }, { "cite": "360 F. 2d 366", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 825719 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/f2d/360/0366-01" ] }, { "cite": "440 F. 2d 1075", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 760479 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/440/1075-01" ] }, { "cite": "506 F. 2d 865", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 124145 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/506/0865-01" ] }, { "cite": "98 L.Ed. 654", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1954, "opinion_index": 0 }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "385 U.S. 363", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337414 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0363-01" ] }, { "cite": "5 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275373, 11275359 ], "year": 1805, "opinion_index": 0, "case_paths": [ "/nc/5/0094-02", "/nc/5/0094-01" ] } ], "analysis": { "cardinality": 631, "char_count": 10218, "ocr_confidence": 0.66, "pagerank": { "raw": 1.524678896820798e-07, "percentile": 0.6699114504359135 }, "sha256": "2b9ee7427ca08aea161a64728ed89a710fba776f0e24140c5268283b1e2ae8e5", "simhash": "1:a307035e46e6197e", "word_count": 1714 }, "last_updated": "2023-07-14T18:09:28.190456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY LEE SELPH" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe principal argument on this appeal concerns the possibility of misconduct by one of the jurors. Defendant contends that his attorney should have been allowed to question vigorously this juror as to whether she talked to Mrs. Aswald about the case. The trial judge, according to defendant, misapplied an axiom of common law announced by Lord Mansfield in Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K. B. 1785), which says that a juror will not be heard to impeach his own verdict. This rule apparently was first followed in North Carolina in Suttrell v. Dry, 5 N.C. 94 (1805).\nCounsel for defendant, in an excellent and lucid brief, argues that defendant has been denied his constitutional rights to an impartial jury and to confront witnesses against him. Parker v. Gladden, 385 U.S. 363, 17 L.Ed. 2d 420, 87 S.Ct. 468 (1966). He also contends that because he was refused permission to examine the juror (\u201c . . . the one person present who knew what actually happened . . . \u201d) there was a denial of due process. Defendant asserts that these rights were violated because he was not allowed to examine the juror, or because the trial judge failed to conduct a vigorous examination of her. He argues that the judge should have made findings of fact and conclusions of law regarding allegations and evidence of possible jury misconduct, and that Mrs. Irving\u2019s conduct was so suspicious that the judge abused his discretion by not conducting a more vigorous examination. We do not agree.\nDefendant relies on many federal cases to support his constitutional arguments. The leading case is Parker v. Gladden, supra, wherein substantial evidence showed that the bailiff told several jurors that the defendant was \u201cwicked\u201d and \u201cguilty.\u201d The United States Supreme Court held that these remarks violated the defendant\u2019s rights to an impartial jury and to confront the witnesses against him, i.e., the bailiff. The court further held that the bailiff\u2019s remarks were so prejudicial as to violate due process. In other words, their probable effect on a typical juror would reasonably appear to be harmful beyond any cure. Parker, of course, is distinguishable from the case at bar, because the bailiff\u2019s remarks were known and obviously prejudicial. In the present case, Mrs. Aswald\u2019s remarks are unknown, and thus, those parts of Parker which consider irreparable inherent violations of due process and the right to cross examine witnesses are inapposite.\nDefendant cites numerous cases in support of his contention that his rights have been violated. Most are distinguishable in that the trial court refused to hold any sort of hearing to determine the facts of the alleged jury misconduct. See U. S. v. Remmer, 347 U.S. 227, 98 L.Ed. 654, 74 S.Ct. 450 (1954); U. S. v. Howard, 506 F. 2d 865 (5th Cir. 1975); Oakes v. Howard, 440 F. 2d 1075 (6th Cir. 1971); Richardson v. U. S., 360 F. 2d 366 (5th Cir. 1966). These cases all involve specific allegations of misconduct supported by direct evidence, and the various trial courts erred in refusing to hold hearings.\nIn two other cases the trial court conducted an inadequate hearing in its attempt to discover and evaluate jury misconduct. These are: U. S. ex rel. Tobe v. Bensinger, 492 F. 2d 232 (7th Cir. 1974), and Morgan v. U. S., 380 F. 2d 915 (5th Cir., 1967) . In both cases the hearings were, under the circumstances, manifestly inadequate. In Bensinger, the hearing was abbreviated, and the findings ignored some of the uncontradicted evidence. In Morgan, the trial court\u2019s findings were ambiguous.\nIn the case at bar, the trial judge\u2019s inquiry was sufficient to guarantee an impartial jury and to satisfy due process. The trial judge in North Carolina traditionally has conducted these inquiries according to his sound judicial discretion. Stone v. Baking Co., 257 N.C. 103, 125 S.E. 2d 363 (1962); State v. Drake, 31 N.C. App. 187, 229 S.E. 2d 51 (1976). The hearing which the judge held was an exercise in sound discretion. His inquiry, though not in a vigorous and adversary manner, was unmistakably clear and broad enough. It was addressed to the entire jury so as to elicit from Mrs: Irving, or any member of the jury, whether there had been improper conversation with anyone concerning this case. Mrs. Irving\u2019s silence, and the silence of her fellow jurors, supports the conclusion that no improper conversation occurred. Denial of defendant\u2019s motions for mistrial and new trial on grounds of jury misconduct amounts to a finding by the trial court that no misconduct occurred. State v. Waddell, 279 N.C. 442, 183 S.E. 2d 644 (1971); State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968).\nDefendant\u2019s remaining assignments of error have been reviewed, and we find no prejudicial error. The State delayed too long before taking defendant before a district court judge for his initial appearance. G.S. 15A-601(c). However, this delay is not prejudicial error. State v. Burgess, (No. 7620SC744, filed 20 April 1977). Nor did the judge commit prejudicial error by admitting allegedly irrelevant testimony that defendant was armed while breaking into the drugstore. Other evidence against defendant completely overwhelmed the effect of this small bit of evidence. The decision against defendant could not have been different had this testimony been excluded. Finally, though certain testimony concerning defendant\u2019s cache of drugs may have been inadmissible, the defendant did not make a timely objection to this, and so his objection is waived. State v. Blount, 20 N.C. App. 448, 201 S.E. 2d 566 (1974).\nIn defendant\u2019s trial we find no prejudicial error.\nNo error.\nJudges Morris and Hedrick concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Ralf F. Haskell and Associate Attorney Elisha H. Bunting, Jr., for the State.", "James W. Narron for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY LEE SELPH\nNo. 7611SC904\n(Filed 4 May 1977)\nCriminal Law \u00a7 101\u2014 conversation between juror and accomplice\u2019s mother \u2014 sufficiency of trial court\u2019s inquiry\nDefendant was not prejudiced by the alleged misconduct of one of the jurors where the evidence showed that officers observed a juror talking to the mother of defendant\u2019s alleged accomplice, who was not on trial with defendant but whose name was mentioned often; the officers could not hear the conversation but reported the fact that it took place to the attorneys for the State and defendant just before the jury returned its verdict; the verdict was guilty; counsel for defendant moved to question the juror involved on voir dire; the court then questioned the jury generally as to whether any of them had talked to anyone during the noon recess about the case; and the jury, including the juror involved in the suspicious conversation, remained silent in the face of the judge\u2019s questioning.\nAppeal by defendant from Rousseau, Judge. Judgment entered 21 July 1976 in Superior Court, Johnston County. Heard in the Court of Appeals 7 April 1977.\nDefendant was indicted for felonious breaking and entering with intent to commit larceny. At the trial, the State\u2019s evidence tended to show that defendant and an accomplice, Steve Aswald, broke into Jack P. Austin\u2019s drugstore in Four Oaks, North Carolina with the intention of stealing drugs. Defendant offered no evidence.\nFacts pertinent to this appeal show that on the day of defendant\u2019s trial, during the lunch recess, two police officers saw juror number seven, Mrs. Annie Pearl Small Irving, in private conversation with the mother of Steve Aswald, defendant\u2019s alleged accomplice. Though Steve Aswald was not on trial with the defendant his name was mentioned often, and his mother was frequently in the courtroom. The police officers who observed this conversation between Mrs. Irving and Mrs. Aswald did not overhear what was said. Nor did the officers witness the beginning or end of the conversation; they only saw the two women, returning from lunch, climb a flight of stairs and walk down a hall together toward the courtroom. Because this conversation seemed improper, the police officers told the attorneys for the State and the defendant about it; however, the officers were unable to do so until just before the jury returned with its verdict.\nThe verdict was guilty. Counsel for the defendant then moved to question Mrs. Irvin on voir dire. The jury was asked to retire, and the court allowed counsel for the parties to question the police officers, who testified to the facts stated above. Thereafter, the following occurred:\n\u201cThe Court: . . . All right, any further evidence from the Defendant?\n\u201c [Defense Counsel] : No further evidence, Your Honor.\n\u201cThe Court : Do you want to be heard ?\n\u201c[Defense Counsel] : Yes, sir, to be sure. Your Honor._\n\u201cThe Court: Before you start, let me tell you what I\u2019m going to do. I am going to call the jury in and ask them if anyone has talked to them about this case, and then I\u2019ll see from there, but I do not intend to bring a juror out here on this information and cross examine a juror as to what goes on, until I have more information.\u201d\nDefendant\u2019s Exception No. 14\n\u201c [Defense Counsel] : Well, Your Honor, if you will tell us what further evidence you want, we will try to get it to you.\n\u201cThe Court: Mr. Dobson, you\u2019ve got to bring the evidence before me, and I\u2019ve got to rule on it. I can\u2019t put my own evidence up and rule on that both. All right, let the jury come in and have a seat.\n(Jury returned to box at 4:40 P. M.)\n\u201cNow Ladies and Gentlemen, it has been brought to my attention that possibly some member of the jury panel talked with somebody during the Noon recess, and I am sure all of you talked to somebody during the Noon recess, but my inquiry is to whether someone mentioned this case to any member of the jury during the Noon recess or at any other time since you\u2019ve been impaneled and started the trial of this case this morning?\n(No response from any juror.)\n\u201cI take it that no one has mentioned this to you outside of what you\u2019ve talked about in your jury deliberations?\n(No response from any juror.)\n\u201cAll right, sir. All right, anything else of this jury?\u201d\nFrom judgment imposing a sentence of not less than eight nor more than ten years defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Ralf F. Haskell and Associate Attorney Elisha H. Bunting, Jr., for the State.\nJames W. Narron for defendant appellant." }, "file_name": "0157-01", "first_page_order": 185, "last_page_order": 190 }