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State v. Golphin8/25/2000
1999), the defendant argued the clerk's ex parte contact with jurors violated his right to presence because there was no record of the clerk's contact with the jurors, and there was no showing the clerk's contact was limited to the jury questionnaire inquiry. This Court held there was no violation of the defendant's constitutional rights because " n distributing and gathering the questionnaires, the clerk merely sought to carry out the administrative duties which the trial court had requested," and the defendant failed to show "`how his presence would have been useful to his defense.'" Id. at 348, 501 S.E.2d at 317 (quoting Bacon, 337 N.C. at 86, 446 S.E.2d at 551-52); see also State v. Gay, 334 N.C. 467, 482-83, 434 S.E.2d 840, 848 (1993) (holding the trial court's order to the bailiff to remind jurors to follow the court's instructions is not an instruction as to the law, and such communications do not relate to the defendant's guilt or innocence because the defendant's right to presence would not have been useful to his defense as demonstrated by the fact that defendant's attorney had no objection; thus, while the trial court's order to the bailiff "may run the risk of violating defendant's right to be present," there was no reversible error in the case).
In another case, the defendant argued his right to be present was violated when the bailiff, pursuant to the trial court's instructions, told the jurors to take a fifteen minute break. See State v. May, 334 N.C. 609, 614, 434 S.E.2d 180, 183 (1993), cert. denied, 510 U.S. 1198, 127 L. Ed. 2d 661 (1994). The defendant contended that because there was no record of the bailiff's conversation with the jury, this Court could not know the nature of the conversation, and it would be impossible to reconstruct. See id. at 614-15, 434 S.E.2d at 183. This Court held:
Without anything in the record to show something else happened, we will assume the bailiff followed the court's instructions. . . . It would impose a heavy burden on our courts if a court reporter were required to accompany a bailiff every time he is with a jury in order to make a record of what was said. Id. at 615, 434 S.E.2d at 183.
In the instant case, after the first three jurors were selected, the trial court instructed the jurors on several matters, including:
Now, in all candor, I anticipate that that is going to take between another three and four weeks to complete it. And I think from your standpoint, having participated in the jury selection process this week, in projecting it out over the selection of basically an additional thirteen jurors, you can believe that that's probably a fair estimate. Now, I'm not going to ask you to wait, as I promised you in the beginning, in the jury deliberation room while we do this. You will be placed on telephone standby.
When court is recessed, please go to the jury room. The courtroom clerk and the trial court administrator from Cumberland County who are coordinating aspects relating to the jury will come into the jury deliberation room to talk with you and to get some information from you. The information that they will want will include telephone numbers where you can be reached during the day or in the evening. We need them. And they may ask questions about the best times to reach you and the best numbers to do that. So they will want some fairly complete information about places that we can reach you.
And it may be that if you know between now and then there will be, you know, a couple days where you may be out of town and be at a different number, that will be fine if we can know where to reach you. So they will be trying -- they will be getting more information about how to get up wi
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