{ "id": 4725856, "name": "STATE OF NORTH CAROLINA v. GRAYLING McLAUGHLIN", "name_abbreviation": "State v. McLaughlin", "decision_date": "1987-09-03", "docket_number": "No. 40A86", "first_page": "564", "last_page": "573", "citations": [ { "type": "official", "cite": "320 N.C. 564" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "276 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568084 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0607-01" ] }, { "cite": "340 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695749 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0013-01" ] }, { "cite": "331 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "655-56" }, { "page": "657" }, { "page": "659" }, { "page": "659" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "33" }, { "page": "36" }, { "page": "40" }, { "page": "39-40" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "331 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0028-01" ] } ], "analysis": { "cardinality": 892, "char_count": 20488, "ocr_confidence": 0.816, "sha256": "cb044a652045df6e9b3717eefe10b0ba03d918ec2f393e7b63afc70f90a1e2d9", "simhash": "1:5269a086e62b99f3", "word_count": 3447 }, "last_updated": "2023-07-14T20:33:25.134905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GRAYLING McLAUGHLIN" ], "opinions": [ { "text": "EXUM, Chief Justice.\nThe sole question presented by this appeal is whether the trial judge committed reversible error when he responded to the jury\u2019s request to review certain testimony by sending a message to the jury through the bailiff rather than by addressing the jury as a whole in open court. We hold that the trial court\u2019s actions, though erroneous, did not prejudice defendant. We therefore find no reversible error in defendant\u2019s convictions and the judgments entered against him.\nI.\nThe state\u2019s evidence tended to show that defendant lived in Caswell County with Angela Stone and their two-year-old daughter, Patrice Stone. On the afternoon of 18 June 1985, defendant, Angela, Patrice, and Grayling, Jr., defendant\u2019s son by another woman, went to the home of Angela\u2019s mother, Mary Stone, in Graham, North Carolina. Earlier in the day Angela had informed defendant that she and Patrice were going to move in with her mother because she was tired of defendant\u2019s constant arguing. While at Mary Stone\u2019s house, defendant and Angela argued about Angela\u2019s refusal to go to work. Defendant attempted to stick Angela with a sewing needle and later threw a knife at her, cutting her upper left thigh. Defendant left the house with Patrice and Grayling, Jr. at approximately 4 p.m. A few minutes later he called Angela and told her he was going to kill Patrice and then kill Angela. Defendant called back every five or ten minutes and repeated this message.\nOfficer Doug Nelson of the Graham Police Department testified that he went to a residence on Ray Street and spoke with Angela Stone just before 5 p.m. She told him about the assault on her by defendant. Nelson later spoke with Angela at police headquarters around 7:30 p.m. She told him she had taken out a warrant for assault with a deadly weapon and informed him of defendant\u2019s threats to kill her and Patrice. Nelson advised Angela to talk with the magistrate about charging defendant with communicating threats. Angela left. She returned to the police station about thirty minutes later and told Officer Nelson that defendant had called to say he was bringing Patrice home. Nelson drove to Mary Stone\u2019s house on Ray Street, where he was told by Mrs. Stone\u2019s sister that defendant had called and threatened to kill Patrice and Angela if he saw any police officers or vehicles. Other officers were alerted and they parked their patrol cars out of sight. At about 9 p.m. defendant turned his Toyota into Ray Street, made a U-turn, and began traveling away on Gilbert Street.\nOfficer Nelson, who had been parked on Gilbert Street, pursued defendant to a Texaco station, where defendant stopped next to a pay phone. Nelson pulled his vehicle to a stop directly in front of defendant\u2019s car, and Captain Perdue pulled in directly behind. As these officers began to approach defendant\u2019s vehicle, Sgt. Gordon Madden arrived and stopped his patrol car parallel to and just to the right of the Toyota. Defendant put his car in reverse and slammed into Captain Perdue\u2019s vehicle. Defendant then pointed a rifle at the police officers, who retreated to their vehicles and drew their weapons.\nSgt. Madden called to defendant, who was screaming at the officers, in an attempt to calm him down. Defendant fired his rifle at Sgt. Madden, hitting him in the right hand. None of the officers was able to return fire for fear of hitting Patrice. Defendant maneuvered his car out of the Texaco station and drove away.\nOfficers from the Graham Police Department and the North Carolina Highway Patrol chased defendant east toward Chapel Hill. On several occasions Trooper Tim Collins of the Highway Patrol attempted to pass defendant\u2019s vehicle in an effort to slow him down. Defendant twice pointed his rifle out the car window at Collins, who was forced to take evasive action. Finally, Trooper Collins managed to pass defendant on the right, pull out in front, and slow the Toyota to a stop. Defendant, finding himself surrounded, then backed his car into a Graham police vehicle driven by Officer James Cooley.\nOfficer Cooley could see the inside of defendant\u2019s vehicle very clearly because of the headlights shining into it. Cooley and his partner, auxiliary officer Steve Foust, got out of their car and yelled to defendant to exit his vehicle with his hands up. Defendant looked over his right shoulder and smiled at Cooley. He then raised what appeared to be a rifle and Cooley heard several popping noises. Moments later defendant got out of his car with his hands raised, saying \u201cshoot me, kill me.\u201d Several officers immediately took him into custody.\nOfficer Foust, who was an emergency medical technician, removed Patrice Stone from defendant\u2019s vehicle and discovered six bullet wounds in her chest. The child was still conscious at this point; she turned to look at the officers assisting her but said nothing. Shortly thereafter, as officers were driving her to meet an ambulance, Patrice stopped breathing. Efforts to revive her were unsuccessful. Dr. John Butts, the state\u2019s assistant chief medical examiner, testified that Patrice died of bullet wounds that passed through both lungs, her right ventricle, her liver, her aorta, her stomach and her spinal column.\nDefendant put on no evidence during the guilt phase. The jury found defendant guilty of first degree murder and assault on a law enforcement officer with a firearm. Following a sentencing hearing the jury recommended life imprisonment on the first degree murder conviction, and judgment was entered accordingly. Judgment on the assault conviction was consolidated with the murder conviction for sentencing purposes.\nII.\nClosing arguments in the guilt phase of this trial were made on Monday morning, 18 November 1985. The trial court delivered its charge after lunch, and the jury retired to deliberate at 2:20 p.m. At 4:33 p.m., the jury sent the trial judge a note requesting that the testimony of Angela Stone and Sgt. Madden be reread. Both the state and defendant agreed that the testimony should not be reread. The trial judge sent a message to the jury, through the bailiff, denying the jury\u2019s request. The record does not indicate whether the judge\u2019s message was in written form or transmitted orally by the bailiff. At 4:45 p.m. the jury returned to the courtroom and asked to be reinstructed on the definitions of malice, premeditation and deliberation. These definitions were reread, the jury again retired, and at 5:16 p.m. the verdicts against defendant were returned.\nN.C.G.S. \u00a7 15A-1233(a) (1983) states that \u201cjurors must be conducted to the courtroom\u201d if, after retiring for deliberation, they request a review of testimony or other evidence. Article I, section 24 of the North Carolina Constitution states that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d Defendant, relying on this Court\u2019s decision in State v. Ashe, 314 N.C. 28, 331 S.E. 2d 652 (1985), contends that he is entitled to a new trial because the trial judge\u2019s failure to address the entire jury in open court in responding to the jury\u2019s request violated the provisions of both N.C.G.S. \u00a7 15A-1233(a) and Article I, section 24 of the state constitution. We agree that the trial judge erred as defendant contends by not adhering to the requirements of the statute, but we find no error of constitutional dimension and hold that a new trial is unnecessary because there is no showing that the error prejudiced defendant. N.C.G.S. \u00a7 15A-1443(a) (1983); State v. Freeland, 316 N.C. 13, 340 S.E. 2d 35 (1986).\nIn Ashe, defendant was accused of being one of several persons who had murdered a Cherokee County man. The principal witness against defendant was an admitted participant in the crime who testified pursuant to a plea bargain with the state. Defendant\u2019s defense was alibi, and he produced two witnesses who testified that he was with them and could not have been present at the time and place of the murder. After the jury retired to deliberate, the foreman returned alone to the courtroom, where the following exchange took place:\nTHE COURT: Mr. Foreman, the bailiff indicates that you request access to the transcript?\nFOREMAN: We want to review portions of the testimony.\nThe COURT: I\u2019ll have to give you this instruction. There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree on that recollection in your deliberations.\nState v. Ashe, 314 N.C. at 33, 331 S.E. 2d at 655-56. The foreman then returned to the jury room and defendant was convicted of first degree murder. We held in Ashe that the trial court\u2019s addressing only the foreman in explanation of its denial of the jury\u2019s request violated N.C.G.S. \u00a7 15A-1233(a) and Article I, section 24 of the state constitution. We explained this decision as follows:\nOur jury system is designed to insure that a jury\u2019s decision is the result of evidence and argument offered by the contesting parties under the control and guidance of an impartial judge and in accord with the judge\u2019s instructions on the law. All these elements of the trial should be viewed and heard simultaneously by all twelve jurors. To allow a jury foreman, another individual juror, or anyone else to communicate privately with the trial court regarding matters material to the case and then to relay the court\u2019s response to the full jury is inconsistent with this policy. The danger presented is that the person . . . may through misunderstanding, inadvertent editorialization, or an intentional misrepresentation, inaccurately relay the jury\u2019s request or the court\u2019s response, or both, to the defendant\u2019s detriment.\n314 N.C. at 36, 331 S.E. 2d at 657. We said, further:\nBoth Art. I, \u00a7 24 of the North Carolina Constitution and N.C.G.S. \u00a7 15A-1233(a) require the trial court to summon all jurors into the courtroom before hearing and addressing a jury request to review testimony and to exercise its discretion in denying or granting the request.\n314 N.C. at 40, 331 S.E. 2d at 659.\nOur reference to the state constitution in Ashe must be understood in light of the facts with which we were then faced. The reference was intended to convey no more than the seemingly obvious proposition that for a trial judge to give explanatory instructions to fewer than all jurors violated only the unanimity requirement imposed on jury verdicts by Article I, section 24. The Court gave no consideration to the \u201copen court\u201d provision of this section because the actions of the trial court in Ashe occurred in open court. This constitutional provision also has nothing to do with the requirement that the trial court exercise its discretion in determining a jury\u2019s request for a review of testimony. Only the statute speaks to this requirement. Thus the sense of the sentence is that when both the constitutional section referred to and the statute are considered together, the dual requirements of addressing the entire jury and exercising discretion in determining the request arise.\nIn the case at bar no instructions were given by the trial court to fewer than all jurors. Whatever instructions the bailiff conveyed were conveyed to the entire jury assembled. There was, therefore, no violation of the unanimity provision of Article I, section 24.\nNeither do we find a violation of the \u201copen court\u201d provision. This provision clearly has reference only to the manner in which the verdict itself is received. The trial court\u2019s sending a message to the jury via the bailiff did not run afoul of this aspect of Article I, section 24.\nThe trial court did err by failing to comply with N.C.G.S. \u00a7 15A-1233(a) when it did not conduct the jury into the courtroom to hear and determine its request to review some of the testimony. Defendant\u2019s failure to object at trial to this procedure, moreover, does not preclude him from raising this issue on appeal. State v. Ashe, 314 N.C. at 39-40, 331 S.E. 2d at 659.\nDefendant is not, however, entitled to a new trial. A new trial may be granted only if the trial court\u2019s error was such that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached.\u201d N.C.G.S. \u00a7 15A-1443(a); see State v. Loren, 302 N.C. 607, 276 S.E. 2d 365 (1981). The burden of showing such prejudice is on the defendant. Id.\nDefendant has not met this burden. There is, of course, some chance that the note from the jury to the trial judge inaccurately conveyed the jury\u2019s request. The possibility of this kind of mistake was minimal, however, given that the jury\u2019s request was in writing. Indeed, defendant acknowledges in his brief that\nthe real danger in private communication outside the courtroom is in the message received by the jury from the trial judge in response to the request. ... By interposing a third party [i.e., the bailiff] between the trial judge and the jurors, the risk that the response might carry unwanted meaning is increased.\nDefendant suggests, for example, that the jury in this case might have been given the impression that the testimony of Ms. Stone and Sgt. Madden was \u201cunimportant or not worthy of further consideration.\u201d State v. Ashe, 314 N.C. at 39, 331 S.E. 2d at 659.\nAssuming for the sake of argument that this was the impression conveyed to the jury, defendant still was not prejudiced. The testimony of both Ms. Stone and Sgt. Madden was overwhelmingly favorable to the state, not defendant, and there was little or no challenge to its credibility. In Ashe we concluded the testimony sought to be reviewed by the jury must have been related to defendant\u2019s alibi defense, much of which was, on its face, favorable to defendant and some of which was, while on its face unfavorable to defendant, subject to doubts regarding its credibility.\nDefendant here, unlike the defendant in Ashe, proffered no defense in the guilt phase of his trial. Indeed he has not denied that he shot Patrice Stone and Sgt. Madden. The evidence that he did is overwhelming and uncontradicted. The issue at trial, he contends, was his state of mind when these acts were committed. Defendant claims that part of Sgt. Madden\u2019s testimony \u2014 that defendant was shouting incoherently and making sudden, jerky movements at the Texaco station \u2014 could have led the jury to believe that defendant shot Sgt. Madden unintentionally, or without the specific intent to harm him. Similarly, defendant points to Angela Stone\u2019s statement that he was a good father who had a caring and loving relationship with Patrice. He argues that this testimony might have led the jury to find that he acted without malice when he shot his daughter. Defendant concludes that he would be prejudiced by any suggestion that the testimony of Sgt. Madden and Ms. Stone was unimportant or not worthy of consideration.\nWe disagree. Sgt. Madden testified that as he approached defendant\u2019s Toyota from the passenger side, defendant pointed a rifle at him, pinning Patrice Stone to the back of the front seat in the process. Madden attempted to calm defendant down. \u201cHe began lowering the rifle barrel,\u201d Madden testified, \u201cand as it went down behind the door frame, he hollered something, jerked it up and fired.\u201d There is no suggestion in this testimony that defendant had no intent to shoot and harm Sgt. Madden. Rather it is entirely supportive of defendant\u2019s conviction of assault on a law enforcement officer with a deadly weapon. Any suggestion that Sgt. Madden\u2019s testimony was unimportant or not worthy of consideration would tend to benefit defendant, not prejudice him.\nAngela Stone testified on cross-examination that defendant was a good father to Patrice. She and other witnesses also testified that on the day of the alleged murder defendant argued with Angela, assaulted her with a knife, and repeatedly threatened to kill both her and Patrice. Additional testimony indicated that defendant used Patrice as a shield when confronting police at the Texaco station in Graham, and turned to smile at officers before shooting his daughter six times in the chest. In light of this testimony concerning defendant\u2019s actions on the day he killed Patrice, much of which was provided by Angela Stone, her testimony that defendant might have previously been a good father to his victim hardly amounts to evidence showing a lack of malice at the time of the killing. If the trial judge\u2019s error somehow had the effect of denigrating Ms. Stone\u2019s testimony, it could only have benefited defendant and could not have harmed him.\nThe possibility of prejudice to defendant in this case is far less than it was to the defendant in Ashe, the decision upon which defendant relies. First of all, the evidence in Ashe was considerably more equivocal than the evidence in this case. In Ashe, the principal witness against defendant was an admitted murderer whose testimony was refuted by two alibi witnesses. Here the state presented strong evidence of defendant\u2019s guilt, defendant presented no evidence at all during the guilt phase of his trial, and defendant\u2019s cross-examination of the state\u2019s witnesses did little, if anything, to impeach their credibility.\nIn Ashe, moreover, the trial judge communicated with the jury through the jury foreman, from whom he received an oral request and to whom he gave oral, explanatory instructions. In this case, the request to have the testimony of Sgt. Madden and Ms. Stone reread came in a written note, both parties agreed that the testimony should not be reread, and the judge conveyed his denial of the jury\u2019s request through the bailiff without explanation. While this sequence of events does not completely eliminate the concerns that led this Court to its decision in Ashe, we are considerably more confident than we were in Ashe that they had no effect on the outcome of this trial.\nIn summary, we hold that the trial court erred when it failed to hear and respond to the jury\u2019s request for a review of the testimony of Sgt. Madden and Ms. Stone in open court with the jury fully assembled as required by N.C.G.S. \u00a7 15A-1233(a). Defendant has not, however, met his burden of showing prejudice under N.C.G.S. \u00a7 15A-1443(a) and is not entitled to a new trial.\nNo error.\n. The statute also requires the trial judge to exercise his or her discretion in determining how to treat the jury\u2019s request. N.C.G.S. \u00a7 15A-1233(a). Defendant does not contend that the trial judge failed to exercise discretion in denying the jury\u2019s request to have the testimony of Ms. Stone and Sgt. Madden reread. Both defendant and the state agreed that the jury\u2019s request should be denied.\n. Sgt. Madden, recounting what happened after he had been shot by defendant, testified as follows: \u201cI tried to position myself where I could take a shot at him, [but] was unable to do so in fear of hitting Patrice. As I aimed at him, he looked at me and leaned back behind Patrice where I could not fire at him.\u201d", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice MARTIN\nconcurring in the result.\nBelieving as I do that the principles of my dissenting opinion in State v. Ashe, 314 N.C. 28, 331 S.E. 2d 652 (1985), apply equally to this case, I concur in the result.", "type": "concurrence", "author": "Justice MARTIN" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Jane P. Gray, Special Deputy Attorney General, for the state.", "James R. Glover for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GRAYLING McLAUGHLIN\nNo. 40A86\n(Filed 3 September 1987)\n1. Constitutional Law \u00a7 32; Criminal \u00a7 101.4\u2014 sending message to jury via bailiff \u2014no constitutional violation\nThe trial court\u2019s sending of a message to the jury via the bailiff did not violate either the unanimity provision or the open court provision of Art. I, \u00a7 24 of the N.C. Constitution.\n2. Criminal Law \u00a7\u00a7 101.4, 122.1\u2014 denial of jury\u2019s request via bailiff \u2014 violation of statute \u2014 failure to show prejudice\nThe trial judge erred when he denied the jury\u2019s request to review certain testimony by sending a message to the jury through the bailiff rather than addressing the jury as a whole in open court as required by N.C.G.S. \u00a7 15A-1233 (a). However, defendant failed to meet his burden of showing prejudice under N.C.G.S. \u00a7 15A-1443(a) and is not entitled to a new trial.\nJustice Martin concurring in the result.\nAPPEAL by defendant from judgments of Preston, J., entered at the 19 November 1985 Criminal Session of Orange County Superior Court upon defendant\u2019s conviction of first degree murder and assault on a law enforcement officer with a deadly weapon. Heard in the Supreme Court on 15 April 1987.\nLacy H. Thornburg, Attorney General, by Jane P. Gray, Special Deputy Attorney General, for the state.\nJames R. Glover for defendant-appellant." }, "file_name": "0564-01", "first_page_order": 596, "last_page_order": 605 }