Opinion
NO. COA10-1538 Gaston County No. 09 CRS 13835 Gaston County No. 09 CRS 59367 Gaston County No. 09 CRS 59368
08-02-2011
STATE OF NORTH CAROLINA v. ALFONSO LEWIS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from judgments entered 15 July 2010 by Judge A. Robinson Hassell in Gaston County Superior Court. Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
HUNTER, Robert C, Judge.
Alfonso Lewis appeals his convictions for first-degree murder, attempted first-degree murder, and first-degree kidnapping. After careful review, we find no error.
Facts
The State presented evidence at trial tending to establish the following facts: In the early morning hours of 4 July 2009,
William Cable was at a friend's house in Gastonia drinking beer. The two men decided that they wanted some crack cocaine, so Cable's friend gave him a $20.00 bill, and Cable drove to a neighborhood in Lowell looking for a drug dealer. As Cable drove slowly down Boyce Street, he saw two men — later identified as defendant and Adrian Perkins — and a woman sitting on the porch of a house. The two men got up and approached his car, asking him what he was "looking for." Cable responded that he wanted a "$20 rock" and the two men sold him what appeared to be crack cocaine. When, however, Cable and his friend tried to smoke the crack, they discovered that it was "bad stuff."
Around 1:30 a.m., Cable drove back to Boyce Street, this time with his own $20.00 bill, to try to buy some "real" crack. Finding defendant and Perkins at the same house, Cable told them that they had sold him fake crack but that he would buy more crack if they "made up" for the drugs that they had sold him earlier. Defendant and Perkins agreed, but told Cable that they needed to drive a couple of blocks to a house where they kept the "real stuff." Before getting into the car, Perkins walked over to his girlfriend, Decuria Duff, and told her that he and defendant were going to "go rob" Cable and then come back. Perkins then got into the passenger's seat of Cable's car and defendant got into the backseat, and the two men directed Cable to a vacant house on Allison Street and told him to park in the driveway. After defendant and Perkins told Cable that they needed to go inside the house to get the drugs, they got out of the car and walked around the side of the house, where they discussed "doing the robbery." As the two men returned to the car, Perkins walked over to the driver's side, pulled out a black handgun, and told Cable to get out of the car or he would "blow [his] fucking head off." Cable got out of the driver's seat and was ordered to get into the backseat. Perkins handed defendant the gun and got into the driver's seat; defendant got into the back of the car with Cable. Pointing the gun at him, defendant took Cable's wallet and pulled out his ATM card. Defendant told Cable that they were going to go to the bank and that if Cable did not tell defendant his PIN, he would "kill [him]."
When the men arrived at the bank, the car hit the curb, and the gun "dipped." At that moment, Cable grabbed the barrel of the pistol and began wrestling with defendant; as Cable tried to point the barrel away from himself, the gun discharged, hitting Perkins in the back through the back of the seat. Perkins jumped out of the car while it was still moving and defendant tried to "jerk" the gun away from Cable and get out of the car. Cable, however, refused to let go of the gun. When the car crashed in the bank parking lot, Cable fell out of the car, landing on top of defendant. Cable hit and kicked defendant, trying to get the gun away from him. Unable to do so, Cable got up and "took off running." Defendant shot twice at Cable as he was running away. Cable hid behind a bank sign for a moment and when he looked up, defendant was gone.
Sergeant Steve Colvard, with the Gastonia Police Department ("GPD"), was driving near the bank when he was flagged down by two women. As a result of talking with the women, Sergeant Colvard pulled into the bank parking lot, where he saw a car parked up on the sidewalk and Cable standing in the parking lot. Sergeant Colvard called for backup and began interviewing Cable. As they were talking, Cable indicated that he saw Perkins coming back towards the bank. One of the GPD officers who had responded to Sergeant Colvard's call went over to Perkins, who had collapsed on the sidewalk. Perkins told the officer that he had been shot and the officer called for an ambulance. Perkins was rushed to the hospital, where he died from the gunshot wound to his right upper back.
Defendant was charged with first-degree murder of Perkins under the felony murder rule, attempted first-degree murder of Cable, first-degree kidnapping, and attempted robbery with a dangerous weapon. Defendant pled not guilty and the case proceeded to trial. Defendant moved to dismiss all the charges against him and the motion was denied. The jury found defendant guilty on all counts. The trial court, arresting judgment on the predicate felony of attempted armed robbery, sentenced defendant to life imprisonment without parole on the felony murder conviction. The court further sentenced defendant to a presumptive-range term of 240 to 297 months imprisonment on the attempted murder charge and a mitigated-range term of 58 to 79 months imprisonment on the kidnapping conviction, with the sentences to run consecutively. Defendant gave notice of appeal in open court.
I. Motion to Dismiss
Defendant first argues that the trial court erred in denying his motion to dismiss the attempted first-degree murder and first-degree kidnapping charges for insufficient evidence. In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence of (1) each essential element of the offense and (2) the defendant's being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence" is that amount of relevant evidence that a "reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When considering the sufficiency of the evidence, the trial court must view all of the evidence presented "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert, denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). The sufficiency of the evidence is a question of law, reviewed de novo on appeal. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).
A. Attempted First-Degree Murder
Defendant first challenges the sufficiency of the evidence to support his conviction for attempted first-degree murder. "The elements of this offense are: (1) a specific intent to kill another person unlawfully; (2) an overt act calculated to carry out that intent, going beyond mere preparation; (3) the existence of malice, premeditation, and deliberation accompanying the act; and (4) a failure to complete the intended killing." State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000); N.C. Gen. Stat. § 14-17 (2009). In the context of attempted first-degree murder, an intent to kill and the existence of malice, premeditation, and deliberation may be inferred from circumstances including: (1) lack of provocation by the intended victim; (2) conduct and statements of the defendant both before and after the attempted killing; (3) threats made against the intended victim by the defendant; (4) animosity or previous difficulty between the defendant and the intended victim; and (5) the nature and manner of the attempted killing. Peoples, 141 N.C. App. at 118, 539 S.E.2d at 28; State v. Cozart, 131 N.C. App. 199, 202, 505 S.E.2d 906, 909 (1998).
Here, the State presented evidence tending to show that defendant and Perkins, who was brandishing a black handgun, approached Cable while he was in his car and told him to get out or Perkins would "blow [his] fucking head off." Defendant took the gun from Perkins and got into the backseat with Cable, while Perkins got into the driver's seat. Pointing the pistol at Cable, defendant took Cable's wallet, looked through it, and pulled out his ATM card. Defendant told Cable that they were going to go to the bank and that if Cable did not tell defendant his PIN, he would "kill [him]."
As they were driving up to the bank, the car hit the curb and the gun "dipped" away from Cable, so he grabbed the barrel and tried to wrestle the gun away from defendant. During the struggle, the gun discharged, and the bullet hit Perkins in the back. Defendant then tried to "jerk" the gun away from Cable and get out of the car. Cable, however, held onto the gun and fell out of the car with defendant. The two men struggled momentarily on the ground, but when Cable was unable to get the gun away from defendant, he got up and ran away. While running away from defendant, Cable heard "two shots" being fired behind him. In his statement to the police, which was admitted at trial without objection, defendant stated that as Cable was running away, defendant "shot at him."
This evidence, considered in the light most favorable to the State, is sufficient to support a reasonable inference that defendant intended to kill Cable and that he acted with malice, premeditation, and deliberation. See State v. Larry, 345 N.C. 497, 514, 481 S.E.2d 907, 916-17 (finding sufficient evidence of premeditation and deliberation where defendant carried gun during robbery, showing that he "anticipated the need to use deadly force in a possible confrontation"; defendant was heard threatening to kill victim; and, "defendant fired two or more shots [at victim], with a pause in between"), cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234 (1997); State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601, 604 (2003) (intent to kill could reasonably be inferred from "defendant['s] sho[oting] at [victim] five times with a Tech-9 nine-millimeter handgun as [victim] attempted to flee"); Peoples, 141 N.C. App. at 118, 539 S.E.2d at 28 (finding sufficient evidence of intent to kill, malice, premeditation, and deliberation to support attempted first-degree murder where defendant and victim were involved in an altercation only an hour or two before defendant shot him, defendant paused and fired again after he initially missed victim, and defendant shot victim from close range).
Moreover, malice and the intent to kill may be inferred from a defendant's act of intentionally assaulting another person with a deadly weapon, such as a pistol or revolver. See Bagley, 183 N.C. App. at 526, 644 S.E.2d at 623 ("A pistol or a revolver is a deadly weapon per se."); State v. Andrews, 154 N.C. App. 553, 562, 572 S.E.2d 798, 804 (2002) (explaining that "[m]alice can be inferred where a defendant intentionally assaults another person with a deadly weapon"); State v. Cain, 79 N.C. App. 35, 47, 338 S.E.2d 898, 905 (1986) ("The requisite 'intent to kill' can be reasonably inferred by the defendant's use of a .357 magnum revolver, fired numerous times."). The trial court properly denied defendant's motion to dismiss the attempted first-degree murder charge for insufficient evidence.
B. First-Degree Kidnapping
Defendant also contends that the trial court erred in denying his motion to dismiss the first-degree kidnapping charge. The elements of kidnapping are: (1) confinement, restraint, or removal from one place to another; (2) of a person; (3) without the person's consent; (4) for the purpose of facilitating the commission of a felony. State v. Mann, 355 N.C. 294, 302, 560 S.E.2d 776, 782, cert, denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002); N.C. Gen. Stat. § 14-39(a) (2009). Where, as here, the defendant is charged with kidnapping in addition to the underlying felony, the double jeopardy clause of the Fifth Amendment prohibits a conviction for kidnapping if the confinement, restraint, or removal is merely an "inherent, inevitable feature" of the underlying felony, rather than a "separate, complete act, independent of and apart from the other felony." State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338, 351-52 (1978); accord State v. Burrell, 165 N.C. App. 134, 139, 598 S.E.2d 246, 249 (2004) ("[W]here a defendant is charged with armed robbery and kidnapping, our Supreme Court has noted that the restraint, confinement, or removal required to commit kidnapping must be something more than the inherent restraint necessary to commit armed robbery."). On a motion to dismiss, the "key question" is whether the kidnapping charge is supported by substantial evidence that the confinement, restraint, or removal necessary for kidnapping "'exposed [the victim] to greater danger than that inherent in the armed robbery itself" or "'subjected [the victim] to the kind of danger and abuse the kidnapping statute was designed to prevent.'" State v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)) (second alteration added). "Evidence that a defendant increased the victim's helplessness and vulnerability beyond what was necessary to enable the robbery . . . is sufficient to support a kidnapping charge." State v. Muhammad, 146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001) (citing State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369 (1998)).
Relying exclusively on Irwin, 304 N.C. at 103, 282 S.E.2d at 446, defendant contends that Cable's being driven to the bank for the purpose of accessing his bank account through his debit card is a "mere technical asportation" insufficient to support the kidnapping conviction. Contrary to defendant's contention, the evidence at trial, when viewed in the light most favorable to the State, tends to show restraint and removal beyond that which was necessary to commit the attempted armed robbery. Defendant and Perkins forced their way into Cable's car and gained control of the vehicle at gunpoint, completing the restraint necessary to commit the attempted armed robbery. See Pigott, 331 N.C. at 210, 415 S.E.2d at 561 ("We hold that all the restraint necessary and inherent to the armed robbery was exercised by threatening the victim with the gun."); State v. Hill, 139 N.C. App. 471, 483, 534 S.E.2d 606, 614 (2000) ("[I]n the present case, defendant forced his way into, and took control of, T.H.A.'s car by threatening her with a pistol, completing the force necessary to commit the robbery."). As demonstrated by Perkin's death, driving Cable to the bank at gunpoint exposed him to greater danger than that inherent in the attempted armed robbery and subjected him to the kind of danger the kidnapping statute was designed to prevent. See Hill, 139 N.C. App. at 483, 534 S.E.2d at 614 ("By further restraining [the victim] in the car and driving her to an isolated park, [defendant] exposed her to greater danger than that inherent in the [armed] robbery. Such additional restraint and removal is sufficient to support the element of restraint necessary for [defendant's] conviction of the separate crime of kidnapping."). The trial court properly denied defendant's motion to dismiss the kidnapping charge.
II. Felony Murder Instruction
Defendant next challenges the trial court's instructions to the jury regarding first-degree murder in the perpetration of a felony:
Now, in this case, ladies and gentlemen, the defendant has also been charged with the first-degree murder of Adrian Perkins, and the state has proceeded under the theory of seeking a conviction for first-degree murder in perpetration of a felony, also called felony murder in the State of North Carolina. First-degree murder in the perpetration of a felony is the killing of a human being by a personThe trial court's instruction substantially tracks the language of the pattern jury instruction for felony murder: N.C.P.I. — Crim. 206.15.
committing or attempting to commit, in this case, robbery with a dangerous weapon.
Now, I charge for you to find the defendant guilty of first-degree murder in perpetration of a felony, the state must prove three things beyond a reasonable doubt: First, that the defendant attempted to commit the crime of robbery with a dangerous weapon or committed the felony of attempted robbery with a dangerous weapon. . . .
Second, that while committing the felony of attempted robbery with a dangerous weapon, the defendant killed the victim;
And, third, that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred.
So if you find from the facts beyond a reasonable doubt that the defendant had the intent to commit the felony of attempted robbery with a dangerous weapon, and that while committing the crime the defendant killed the victim, and that the defendant's act was a proximate cause of the victim's death, it would be your duty to return a verdict of guilty of first-degree murder.
Defendant contends that these instructions merged the second and third elements, creating a "redundancy" that "unconstitutionally reduced the State's burden of proof." As defendant failed to object to the instruction at trial, review of this contention is limited to plain error analysis. In determining whether a purportedly erroneous instruction constitutes plain error, "the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).
In State v. Robinson, 342 N.C. 74, 82, 463 S.E.2d 218, 223 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996), the trial court instructed the jury on felony murder in accordance with pattern jury instruction N.C.P.I. — Crim. 206.14, which contains the same language as N.C.P.I. — Crim. 206.15 outlining the elements of felony murder. Id. at 82, 463 S.E.2d at 223. On appeal from his conviction for felony murder, the defendant argued in Robinson — as defendant does here — that
the trial court's instructions were erroneous because they "essentially merged the second and third instructions so that they were almost a redundancy. In the second element the jury was asked to find that while committing or attempting to commit the crime of robbery the defendant killed the victim with a deadly weapon. The third element instructed the jury to find that the killing of the victim was the proximate cause of his death. This merger of the essential elements created a redundancy that actually lessened the State's burden of proof."Id. Reviewing the defendant's contention for plain error, the Supreme Court held:
We do not find defendant's reasoning persuasive in this regard. Instead, we conclude that to the extent the instructions may have erroneously required redundant findings by the jury before it rendered a guilty verdict, they amounted to error favorable to defendant or, at worst, harmless error. Certainly, requiring the jury to find the same fact twice before convicting defendant did not amount to plain error. This assignment of error is without merit.Id. As the Supreme Court considered and explicitly rejected an identical argument in Robinson, we conclude that the trial court's instruction in this case does not amount to plain error.
III. Reinstruction After Deliberation
Defendant's final argument on appeal is that the trial court violated the statutory procedures provided in N.C. Gen. Stat. § 15A-1234 (2009) for reinstructing the jury after beginning deliberations. Pursuant to N.C. Gen. Stat. § 15A-1234(a)(1)-(4), after the trial court initially instructs the jury, the court "may provide additional instructions in order to respond to jury questions, to correct or clarify erroneous or ambiguous instructions, or to instruct the jury on an erroneously omitted issue." State v. Smith, 194 N.C. App. 120, 126, 669 S.E.2d 8, 12 (2008). All additional instructions, however, "must be given in open court and must be made a part of the record." N.C. Gen. Stat. § 15A-1234(d).
At trial in this case, the jury retired to begin deliberating at approximately 11:10 a.m. on the final day of trial. Roughly 30 minutes later, the jury sent a note to the trial judge, requesting copies of all witness statements as well as "a copy of all the requirements to find for first degree murder and other charges." When asked by the trial judge, neither the prosecutor nor defense counsel requested that the jury be reinstructed. The trial court declined to reinstruct the jury, explaining:
THE COURT: All right. I will just say in my discretion the Court is going to decline both requests. We just instructed them within the half hour. And as to the witness statements, they had personal access and review of them yesterday morning when they were published to them. And among other things, given the recency [sic] of the instructions, while not uncomplicated, we have a jury of 12 who will need to do their best and that's the Court's discretionary determination with respect to these requests. And if you, Mr. Sheriff, will communicate that and convey our encouragement to them that they'll just need to do their best with their collective and individual recollections. Thank you.The transcript indicates that, at this point, the deputy sheriff left the courtroom to instruct the jury as requested by the trial judge.
Roughly 30 minutes later, at 12:06 p.m., the jury sent the trial judge another note, stating: "What are the elements of the first degree murder charges[?]" The prosecutor, in response, requested that the trial judge reinstruct the jury on the first-degree murder charge and defense counsel stated that she did not wish to be heard on the issue. The trial judge ruled:
THE COURT: All right. Once again, the Court in its discretion, the jury having received the instructions on first-degree murder less than an hour ago, is going to decline their request for reinstruction so soon after, and just again convey to them our appreciation for their service, Mr. Sheriff, and for them to do the best they can with their collective and individual recollections. Thank you.Again, the deputy sheriff left the courtroom to instruct the jury.
Half an hour later, at approximately 12:39 p.m., the jury sent a third note, asking: "Will the judge bring us back in open court and read again the conditions to find for first degree murder." The prosecutor, again, requested that the jury be reinstructed, and, again, defense counsel indicated that she did not wish to be heard. The trial judge brought the jurors back into the courtroom and advised them that he would repeat the requested instruction on felony murder when they returned from their lunch recess. Court reconvened at about 2:05 p.m. and the trial judge, based on the court reporter's notes, reinstructed the jury regarding first-degree murder in perpetration of a felony. The jury returned its verdict almost two hours later, at 3:50 p.m.
Defendant first contends that "[t]he trial court abused its discretion in . . . declining to reinstruct the jury on the elements of first-degree murder on three occasions after the jury began deliberations and each time requesting in writing to be reinstructed upon the elements of first-degree murder . . . ." It is well established that the trial judge "'is not required to repeat instructions which were previously given to the jury in the absence of some error in the charge but may do so in [his or her] discretion.'" Smith, 194 N.C. App. at 126, 669 S.E.2d at 13 (quoting State v. Bartow, 77 N.C. App. 103, 110, 334 S.E.2d 480, 484 (1985)). As an initial matter, we note that the trial judge did not refuse to reinstruct the jury on three separate occasions — only twice. More importantly, we fail to see how the trial judge abused his discretion in this case when he refused to reinstruct the jury on first-degree murder after the first and second requests but ultimately did reinstruct the jury when it requested reinstruction the third time. Indeed, defendant fails to explain how, when the requested instruction was ultimately repeated, the trial judge's delay in repeating the instruction was an abuse of discretion or resulted in prejudice. See State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) ("The defendant will not be heard to complain on appeal when the trial court has instructed adequately on the law and in a manner requested by the defendant."); State v. Holland, 161 N.C. App. 326, 330, 588 S.E.2d 32, 36 (2003) ("[T]he fact that the judge re-read the instructions for the two charges that the jury specifically requested represents compliance with the essence of the jury's request, and therefore we overrule this assignment of error."). As the trial court ultimately gave the requested instruction in open court, defendant's reliance on State v. Ashe, 314 N.C. 28, 35, 331 S.E.2d 652, 657 (1985) (concluding that trial judge violated § 15A-1233(a) "in not summoning all the jurors into the courtroom to hear both the [foreman's] request [that the jury be permitted to review testimony] and [the judge's] response to it"), and State v. Tucker, 91 N.C. App. 511, 515, 372 S.E.2d 328, 331 (1988) (holding, based on Ashe, that trial court erred under § 15A-1234(a) by "fail[ing] to bring the entire jury to the courtroom to respond to the jury's question"), is misplaced. This argument is overruled.
Defendant also challenges the trial judge's sending the bailiff back to the jury room to direct the jurors to rely on their "collective and individual recollections." Defendant argues that the bailiff's ex parte communication of the judge's instructions to the jury violated N.C. Gen. Stat. § 15A-1234(d)'s mandate that "[a]ll additional instructions must be given in open court and must be made a part of the record." We conclude, based on State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993), and State v. Corum, 176 N.C. App. 150, 625 S.E.2d 889 (2006), that the trial judge did not commit reversible error in this case.
In Gay, 334 N.C. at 482, 434 S.E.2d at 848, the defendant argued that the trial judge violated her right to be present at all stages of trial when the judge directed the bailiff to "inform the jurors they were on break and they were to continue to abide by his earlier instructions." Defendant's trial counsel approved the judge's use of the "shorthand procedure" and declined the judge's offer to be heard on the issue. Id.
Although the Gay Court opined that "shorthand procedures, such as the one instituted by the trial court in this case, may run the risk of violating defendant's right to be present," the Court did not "find reversible error on these facts," observing that
it would be unreasonable to hold that bailiffs may have no contact with the jury. In carrying out their custodial duties bailiffs must necessarily engage in some contact with the jury or prospective jurors. While a bailiff certainly may not attempt to instruct jurors as to the law, a simple reminder by the bailiff to the jurors thatId. at 482-83, 434 S.E.2d at 848 (internal citation and quotation marks omitted).
they are to abide by the court's earlier instructions should not be considered an instruction as to the law. Communications such as these do not relate to defendant's guilt or innocence. The subject matter of these communications in no way implicates defendant's confrontation rights, nor would defendant's presence have been useful to [her] defense. This is demonstrated by the fact that defendant's attorney had no objection to the shorthand procedure.
Similarly, in Corum, 176 N.C. App. at 158, 625 S.E.2d at 894 (second alteration added), after jury deliberations had begun on the defendant's armed robbery charge, the jury sent a note to the trial court asking: "'Was photo of [defendant] included in lineup for [eye witness]?'" When the court explained that "it would prefer to send a written response to the jurors rather than having the jurors return to the courtroom," both the prosecutor and defense counsel "agreed to the shorthand procedure." Id. "The trial court then wrote its response on the same piece of paper on which the jury's question was written, as follows: 'You must rely on your own recollection as to what the evidence showed.'" Id. The court then directed "the bailiff to deliver the note to the jury." Id.
On appeal from his conviction, the defendant argued in Corum — as defendant does here — that he was entitled to a new trial because the trial court violated N.C. Gen. Stat. § 15A-1234(d) "when it 'directed the bailiff to conduct ex parte communication of instructions to the jury.'" Corum, 176 N.C. App. at 157, 625 S.E.2d at 894. Relying on the Supreme Court's rationale in Gay, the Corum Court "f[ound] no reversible error" under N.C. Gen. Stat. § 15A-1234(d), noting that the "substance of the communication" did not "implicate the defendant's right of confrontation" and that the defendant had approved of the court's use of the shorthand procedure as well as the substance of the instruction. Corum, 176 N.C. App. at 158, 625 S.E.2d at 894.
In this case, the instruction that the trial judge directed the bailiff to communicate to the jury is substantively identical to the instruction given in Corum: that the jurors rely on their recollection in deliberating. As in Gay, the judge's instruction does not constitute an instruction on the law as it does not relate to defendant's guilt or innocence. Defense counsel, moreover, did not object to the judge's use of the shorthand procedure. See also State v. Badgett, 361 N.C. 234, 252-54, 644 S.E.2d 206, 217-18 (holding that while trial court's procedure of directing bailiff to inform jurors not to discuss case or to read media accounts was error, it did not "constitute reversible error" due, in part, to the fact that there was no "objection from defendant to the trial court's shorthand procedures"), cert, denied, 552 U.S. 997, 169 L. Ed. 2d 351 (2007). In light of Gay and Corum, we conclude that the trial judge did not commit reversible error in this case.
Defendant nonetheless points to the fact that "what was told to the jury is not known because it was not on the record and it was not done in open court." The transcript, however, "reflects the specific instruction[] the trial judge sought to have administered to the jury because the trial judge explicitly told the bailiff the substance of the instruction[] and asked him to pass [it] along to the jury." Badgett, 361 N.C. at 253, 644 S.E.2d at 217. As nothing in the record on appeal indicates that the bailiff did not comply with the trial judge's instruction, we assume that the bailiff followed the judge's directions. See id. at 253-54, 644 S.E.2d at 217 (assuming for purposes of right to be present argument that bailiff complied with judge's direction where "there [wa]s nothing in the instant record to suggest that the bailiff did not follow these instructions as ordered"); Gay, 334 N.C. at 482, 434 S.E.2d at 848 (holding defendant was not entitled to new trial where "the record affirmatively reveal[ed] exactly what the trial court intended to say to the prospective jurors" through the bailiff's communication and "[t]here [wa]s no indication that anything to the contrary occurred"); State v. May, 334 N.C. 609, 615, 434 S.E.2d 180, 183 (1993) ("Without anything in the record to show something else happened, we will assume the bailiff followed the court's instructions."), cert, denied, 510 U.S. 1198, 127 L. Ed. 2d 661 (1994).
Although defendant has not demonstrated prejudice warranting a new trial, we emphasize that any instruction concerning "the duty of the jury," such as the instruction at issue in this case, should be "given in open court by the judge," on the record, and in the presence of the defendant. State v. Harrell, 20 N.C. App. 352, 358, 201 S.E.2d 716, 719 ("disapprov[ing] of the action of the trial judge in permitting the bailiff to relay the judge's instruction to the jury to continue to deliberate to see if they could reach a verdict," but finding no prejudice as "the evidence disclose[d] that the bailiff did not exceed the instructions given to him by the judge, and it did] not appear that the jury was improperly influenced by the conduct of which defendant complain[ed]"), cert. denied, 284 N.C. 619, 202 S.E.2d 275 (1974).
No Error.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).