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State v. Davis12/21/2000
the request, and defendant objected. Without ruling on the objection, the trial court called the jurors back into the courtroom and instructed them on Issue Four a second time. Furthermore, the court instructed the jury as follows:
Now, members of the jury, I would also instruct you that as to the other question that you have submitted to me, I would remind you that as jurors you've taken an oath, that you all have a duty to consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to re-examine your own views and change your opinion if it is erroneous, but none of you should surrender your honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors for the mere purpose of returning a verdict.
The jury returned to deliberations, and the court called the jury back into the courtroom forty-five minutes later to release it for the evening.
The next morning, the court informed counsel that it had received a note from a juror asking to be replaced. In the note, the juror expressed that "while the mitigating factors do not offset the aggravating factors in one of the murders, I cannot with any peace of mind vote for the death penalty . . . . I feel unqualified to continue as a juror . . . ." The trial judge discussed with counsel the content of the note and his planned instructions in general terms, stating in part, "I received a written communication from one of the members of the jury through the sheriff this morning. . . . he juror is indicating they're having some difficulty following the law and has asked that I place an alternate in."
Defense counsel requested that the court charge the jury pursuant to State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987), regarding the jury's question on the previous day. The trial court refused to give defendant's requested jury instruction, denied defendant's motion for a mistrial, and instructed the jury regarding the juror's letter as follows:
Folks, I've had a communication from one of your members indicating that they're having some difficulty in the matter, and it's asked that they be replaced. The law doesn't allow me to do that. Once the jury deliberations begin in the sentencing phase in this type of case, I'm not allowed to remove someone . . . . I must let the twelve jurors that begin the deliberations conclude the matter.
Now, yesterday[,] one of the questions that I received was an inquiry as to what would happen in a certain numerical division. I will tell you that your inability to reach a unanimous verdict should not be your concern, but should simply be reported to the Court.
The jury returned a verdict of death less than one hour later.
Defendant contends that the trial court violated defendant's federal and state constitutional rights to presence and the effective assistance of counsel by refusing to disclose the full content of the notes, failing to let counsel see or read the notes, misrepresenting the content, and responding without eliciting and considering the informed positions of defendant and his counsel. We disagree.
In a capital case, a defendant must be present at every stage of the trial. N.C. Const. art. I, § 23; State v. Locklear, 349 N.C. 118, 135, 505 S.E.2d 277, 286 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). "When an ex parte communication relates to some aspect of the trial, the
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