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State v. Davis12/21/2000
trial judge generally should disclose the communication to counsel for all parties." Rushen v. Spain, 464 U.S. 114, 119, 78 L. Ed. 2d 267, 273 (1983). Upon receiving a message from a juror, the trial court should give counsel an opportunity to be heard and then answer the message in open court. See Rogers v. United States, 422 U.S. 35, 39, 45 L. Ed. 2d 1, 6 (1975).
In the case at hand, defendant was present when the proceeding in question took place. Furthermore, while the trial court did not read the notes verbatim to counsel, the court promptly and adequately summarized the jury's question and the note from the juror. The trial court informed counsel that the jury had a question about "what happens if there's a division on the fourth issue" and later informed defendant and counsel that there was a numerical division indicated in the note. Similarly, the trial court informed counsel that it had received a communication from a juror "indicating they're having some difficulty following the law and has asked that I place an alternate in." The trial court heard from counsel and responded in open court to each of the communications. As such, we find no violation of defendant's right to presence.
Defendant also claims that his attorneys were deprived of their ability to make informed decisions about appropriate responses to the notes. Defendant contends that counsel, had they known the full and true content of the notes, would have taken greater and more effective steps to protect defendant's rights.
"A defendant's right to counsel includes the right to the effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). Defendant bears the burden of showing that his counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. Id. at 561-62, 324 S.E.2d at 248.
In the present case, it is clear from the record that counsel understood that the jury wanted to know what should happen if the jurors were unable to unanimously agree about Issue Four. Trial counsel immediately requested an instruction advising the jury of "the results of what happens if they're not able to agree." We do not agree that the failure to disclose the jury's precise numerical division precluded counsel from the full opportunity to defend defendant. The fair and accurate disclosure of the content of the note was sufficient to render counsel the full opportunity to effectively represent defendant. Likewise, the trial judge informed counsel of the substantive content of the juror's letter and stated, "I'm going to tell them that I can't replace a juror." As such, defense counsel had the opportunity to object to the proposed instruction. We conclude that the trial court's refusal to disclose the exact content of the communications did not deprive defendant of his constitutional right to effective assistance of counsel.
Defendant also contends that the trial court's conduct violated N.C.G.S. § 15A-1234(a)(1) and the Code of Judicial Conduct. We disagree.
N.C.G.S. § 15A-1234(a)(1) provides in pertinent part: "After the jury retires for deliberation, the judge may give appropriate additional instructions to . . . espond to an inquiry of the jury made in open court . . . ." N.C.G.S. § 15A-1234(a)(1) (1999). Defendant failed to object to the procedure by which the inquiry was communicated to the trial judge and has thus waived this argument. N.C. R. App. P. 10(b)(1). In any event, we are not convinced that the statute precludes the trial court from receiving a written communication from the jury and responding to such in open court.
Defendant further argues that the trial court's actions viol
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