NO. COA08-1484EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINAv.
AMEISHA RUTHIE LILLY MCQUEEN / )))))) / From Guilford
07 CRS 98092
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DEFENDANT-APPELLANT’S BRIEF
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1
SUBJECT INDEX
TABLE OF AUTHORITIES...... iii
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF GROUNDS FOR APPELLATE
REVIEW...... 2
STATEMENT OF THE FACTS...... 2
ARGUMENT...... 8
I. MS. McQUEEN WAS DENIED HER STATE
CONSTITUTIONAL RIGHT TO A TRIAL AND
VERDICT BY A JURY OF TWELVE WHEN ONE
OF THE JURORS SLEPT DURING HER TRIAL....8
II.THE TRIAL COURT ERRED BY FAILING TO
INVESTIGATE WHETHER A JUROR WHO WAS
SLEEPING DURING TRIAL HAD HEARD ALL
THE EVIDENCE SO AS TO PROPERLY
DELIBERATE AND RENDER A VERDICT...... 11
III.THE TRIAL COURT COMMITTED PLAIN ERROR
BY ADMITTING IRRELEVANT AND
INFLAMMATORY EVIDENCE ABOUT
MS. McQUEEN PERFORMING A LAP DANCE,
WHERE THE EFFECT OF ITS ADMISSION WAS
UNFAIRLY PREJUDICIAL...... 14
CONCLUSION...... 19
CERTIFICATION OF COMPLIANCE WITH
RULE 28(j)(2)(A)(2)...... 20
CERTIFICATE OF FILING AND SERVICE...... 21
TABLE OF AUTHORITIES
CASES
Ham v. South Carolina,
409 U.S. 524, 35 L.Ed.2d 46 (1973)...... 13
State v. Barnes,
345 N.C. 184, 481 S.E.2d 44(1997), cert. denied,
523 U.S. 1024, 140 L.Ed.2d 473 (1998)...... 13
State v. Bishop,
346 N.C. 365, 488 S.E.2d 769(1997)...... 14, 15, 19
State v. Cox,
661 S.E.2d 294 (2008)...... 12, 14
State v. Drake,
31 N.C. App. 187, 229 S.E.2d 51 (1976)...... 11, 13, 14
State v. Hudson,
280 N.C. 74, 185 S.E.2d 189 (1971)...... 8, 9, 10, 12
State v. Najewicz,
112 N.C. App. 280, 436 S.E.2d 132(1993), rev. denied,
335 N.C. 563, 441 S.E.2d 130 (1994)...... 13
State v. Poindexter,
353 N.C. 440, 545 S.E.2d 414 (2001)...... 10
State v. Rinaldi,
264 N.C. 701, 142 S.E.2d 604 (1965)...... 15, 16
State v. Rutherford,
70 N.C. App. 674, 320 S.E.2d 916(1984), rev. denied,
313 N.C. 335, 327 S.E.2d 897 (1985)...... 13
State v. Sidden,
347 N.C. 218, 491 S.E.2d 225 (1997), cert. denied,
523 U.S. 1097, 140 L.Ed.2d 797 (1998)...... 16
Williams v. Taylor,
529 U.S. 420, 146 L.Ed.2d 435(2000)...... 11
CONSTITUTIONS
N.C. CONST. art. I, § 24...... 9
U.S. CONST. amend. XIV...... 13
STATUTES
N.C. Gen. Stat. § 7A-27(b)...... 2
N.C. Gen. Stat. § 8C-1, Rule 401...... 17, 18
N.C. Gen. Stat. § 8C-1, Rule 402...... 17
N.C. Gen. Stat. § 8C-1, Rule 403...... 17, 18
N.C. Gen. Stat. § 8C-1, Rule 404(b)...... 16
N.C. Gen. Stat. § 9-14...... 9
N.C. Gen. Stat. § 15A-1201...... 9
N.C. Gen. Stat. § 15A-1446(d)(18)...... 9
-1-
NO. COA08-1484EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINAv.
AMEISHA RUTHIE LILLY MCQUEEN / )))))) / From Guilford
07 CRS 98092
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DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I.WAS MS. McQUEEN DENIED HER STATE CONSTITUTIONAL RIGHT TO A TRIAL AND VERDICT BY A JURY OF TWELVE WHEN ONE OF THE JURORS SLEPT DURING HER TRIAL?
II.DID THE TRIAL COURT ERR BY FAILING TO INVESTIGATE WHETHER A JUROR WHO WAS SLEEPING DURING TRIAL HAD HEARD ALL THE EVIDENCE SO AS TO PROPERLY DELIBERATE AND RENDER A VERDICT?
III.DID THE TRIAL COURT COMMIT PLAIN ERROR BY ADMITTING IRRELEVANT AND INFLAMMATORY EVIDENCE ABOUT MS. McQUEEN PERFORMING A LAP DANCE, WHERE THE EFFECT OF ITS ADMISSION WAS UNDULY PREJUDICIAL?
STATEMENT OF THE CASE
This cause came on for trial at the 31 March 2008 Criminal Session of the Guilford County Superior Court, the Honorable R. Allen Baddour, Jr. presiding. Trial began on 2 April 2008. On 3 April 2008, a jury found Ms. McQueen guilty of one (1) count of assault with a deadly weapon inflicting serious injury. Judge Baddour sentenced Ms. McQueen to a presumptive term of thirty-one (31) to forty-seven (47) months in prison.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This Court has jurisdiction over this appeal by virtue of N.C. Gen. Stat. § 7A-27(b). Timely notice of appeal was given on 3 April 2008. This appeal is from a final order of the Guilford County Superior Court.
STATEMENT OF THE FACTS
On the evening of 17 August 2008, Ameisha McQueen and four companions arrived at the Remix Club in Greensborolate in the evening, around 10:00 or 11:00. Tpp. 177, 186, 194, 200. Ms. McQueen was with her sister, Keyonna Lilly; Tychina Jackson, a childhood friend; Darnesha Shubert, another childhood friend; and Ms. Jackson’s cousin Kia. Tp. 177, 187, 193. All of the women except Kia testified.
While they were at the Remix Club, Ms. McQueen and her companions were in a huddle. Tp. 178. Ms. McQueen, Ms. Lilly, and Kia were dancing. Tp. 178. Ms. Jackson recalls that all of a sudden, early in the morning, a whole group of people started reaching to the floor where the women were, and bottles and chairs were thrown. Tp. 178. Ms. Lilly recalls that a couple of fights started, then the crowd started moving, people were getting pushed everywhere, and bottles and stools were being thrown. Tp. 187.
Ms. Lilly recalls that she and Ms. McQueen, who were right beside one another, were trying to move out of the way of people who were pushing and throwing objects. Tp. 187. Ms. McQueen and Ms. Lilly were never separated while they were in the bar, and only became separated outside the bar when Ms. Lilly returned inside to look for her identification. Tp. 187, 192.
Ms. McQueen was never outside Ms. Jackson’s presence before the fighting began. Tp. 184. Ms. Jackson was picked up and thrown outside with the rest of the people thought to be involved in the fight. Tp. 178. Ms. Shubert lost track of Ms. McQueen for about a minute before the fighting broke out. Tp. 194. Ms. Shubert was dancing at that time, and she found Ms. McQueen on the dance floor. Tp. 194. Ms. Shubert did not lose track of Ms. McQueen after the fighting began until the security guard put them out. Tp. 197.
Ms. Jackson, Ms. Lilly and Ms. Shubert never saw Ms. McQueen hit anybody with a beer bottle. Tp. 179, 187, 195. Ms. Lilly and Ms. Shubert did not recall seeing Ms. McQueen hit anybody with her fist. Tp. 191, 195.
Ms. McQueen testified that she did not hit anyone with a beer bottle. Tp. 201. She recalls breaking out, with the crowd just moving and everything—including chairs and bottles—getting thrown. Tp. 201. Ms. McQueen remembers swinging while the crowd was moving, but is not sure who she swung at. Tp. 201-02. She recalls telling a security guard about this. Tp. 202.
Jacqueline Colson and several companions were also at the Remix Club early in the morning on 18 August 2008. Tp. 78. Among the friends were her cousin, Kristy Bess; Jeretha Massey, the cousin of Ms. Colson’s baby’s father; and Marquita Massey, a cousin of both Ms. Colson and Jeretha Massey. Tp. 79, 119, 129, 130. Before Ms. Colson was struck with a beer bottle, Ms. Colson and her cousins were dancing and enjoying themselves. Tp. 79.
Ms. Colson says she first noticed Ms. McQueen on a stool dancing with some guy and giving him a lap dance. Tp. 80. Ms. Bess got into an argument with a girl who came up to her and wanted her bar stool back. Tp. 106, 121. Jeretha Massey recalls that after that, the girl started “dancing on a dude” and was in her cousin’s face waving her arms. Tp. 121. Ms. McQueen testified that she did not ask Ms. Bess for a bar stool and that she was not near a bar stool. Tp. 205.
Ms. Colson recalls that girl, whom she later identified as Ms. McQueen, was so close to Ms. Bess that the girl was bumping Ms. Bess. Tp. 80, 87. Ms. Colson recalls that Ms. Bess kept trying to turn around and was backing herseat up a little bit. Tp. 80. According to Ms. Bess, “the lady was in my face, like she was behind me talking.” Tp. 108. Ms. Bess had no physical contact with Ms. McQueen except when she was dancing. Tp. 111.
Jeretha Massey recalls Ms. Colson approaching Ms. Bess and asking whether she was okay. Tp. 121. Ms. Colson testified that she decided they needed to leave, grabbed Ms. Bess’ hand and tried to turn around. Tp. 81. Ms. Bess guessed that the woman was talking behind her or doing something when Ms. Colson approached and asked Ms. Bess what was going on. Tp. 106. At that time, the girl hit Ms. Colson with a beer bottle in her face and chest. Tp. 82-83, 121-22. Ms. Bess saw Ms. Colson get struck with the beer bottle by a girl she identified as Ms. McQueen. Tp. 97, 107, 108, 158.
After Ms. Colson was hit, numerous fights broke out in the club. Tp. 117. Ms. Bess did not see any bottles or chairs being thrown; she ran straight to the bathroom. Tp. 117. Marquita Massey saw another female hit Jeretha Massey on the way to the bathroom, but testified that it was not Ms. McQueen. Tp. 137-38. Ms. McQueen testified that she was dancing with her sister and their companions when the crowd started to move. Tp. 205.
Officer K.B. Johnson testified Kristy Bess told him that a drunk girl walked up while she was sitting at a stool and told her to move because she wanted to give a guy a lap dance. Tp. 157. Ms. Bess declined and turned away. Tp. 157. One of the girl’s friends got her a stool, at which point she began giving a guy a lap dance, “grinding” on him, and intentionally bumping girls. Tp. 157-58. The girl was sitting close to Ms. Bess on the stool and harassing her. Tp. 158. Ms. Colson approached, and the drunk girl hit her with a beer bottle. Tp. 158. After that, lots of people began fighting in the club. Tp. 158.
Officer Johnson later interviewed Ms. Colson by telephone. Tp. 162. She said that a girl with another group of people got a stool, which she put beside Ms. Bess, and had some guy sit down on the stool. Tp. 162. The girl climbed on the guy's lap and began grinding on him and pushing on Ms. Bess while she was performing.Tp. 162.
Officer D.W. Brendle, who was at the scene, testified that Officer Johnson told him that Ms. McQueen had been identified as the suspect in an assault. Tp. 150. Ms. McQueen told him that she was dancing with several different girls and guys, and one of those girls got mad and jumped her, at which Ms. McQueen hit that girl with her fist. Tp. 151. Ms. McQueen also told Officer Johnson that she had hit the girl but that everyone was fighting. Tp. 160. Officer Brendle never asked Ms. McQueen whom she hit with her first. Tp. 152. Ms. McQueen said she did not hit anyone with a bottle. Tp. 151.
During trial, the trial court called both counsel to the bench in order to attempt to wake up Juror Number Six. Tp. 169. Nothing else was discussed at the bench during that conference. Tp. 169. The bailiff also advised the prosecutor of the concern. Tp. 169. The prosecutor informed the court that he and defense counsel briefly discussed the matter during the previous recess. Tp. 169. The prosecutor wanted to make sure that the sole alternate was not used at that point. Tp. 169. He suggested that if it became an issue again, they could address it again. Tp. 169.
The court stated with regard to the juror in question:
I don’t think that he’s been—if he’s fallen asleep I think it has been for very, very brief moments and not in a manner that I have noticed would affect his ability to participate. If you all believe so, then now is the time to bring that up.
Tp. 169. Neither the prosecutor nor defense counsel had noticed the juror. Tp. 170. The prosecutor elaborated that he was focused on his witness. Tp. 170. Defense counsel also stated, “I haven’t noticed. If itcontinues to occur, we’ll readdress that if that’s an issue.” Tp. 170. The court concluded, “I’m not asking you prospectively to have an opinion about whether he could serve or not.” Tp. 170.
ARGUMENT
I.MS. McQUEEN WAS DENIED HER STATE CONSTITUTIONAL RIGHT TO A TRIAL AND VERDICT BY A JURY OF TWELVE WHEN ONE OF THE JURORS SLEPT DURING HER TRIAL.
Assignment of Error No. 5. Rp. 33-34.
Standard of Review: Whether a defendant has been denied his unwaivable right to a jury of twelve is question of law, subject to de novo review on appeal. See, e.g., State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971).
The trial court in this case remarked a sleeping juror significantly enough that the court interrupted trial with a faux bench conference to attempt to awaken that juror. ANorth Carolina defendant has an unwaivable right to have her fate determined by a jury of twelve persons, but one of those persons did not attend to Ms. McQueen’s whole trial. As a result, Ms. McQueen’s sentence was imposed illegally. A new trial must be had.
A defendant in North Carolina who pleads not guilty is entitled to be tried by a jury composed of twelve persons, and the defendant may not waive that requirement. State v. Hudson, 280 N.C. 74, 79, 185 S.E.2d 189, 192 (1971) (awarding new trial, ex meru motu, when defendant waived right to twelfth juror). “It is a fundamental principle of the common law, declared in Magna Charta and incorporated in our Declaration of Rights, that ‘[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.’” Hudson at 79, 185 S.E.2d at 192, quotingN.C. CONST. art. I, § 24. See also N.C. Gen. Stat. § 15A-1201. In addition, a juror in North Carolina must “swear or affirm that he will truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before him and render true verdicts according to the evidence.” N.C. Gen. Stat. § 9-14 (emphasis added).
Although Ms. McQueen’s trial counsel did not move for a mistrial, this Court may review this error, as did the Hudson court, because depriving Ms. McQueen of her right to a jury composed of twelve competent jurors resulted in a sentence that was imposed illegally. N.C. Gen. Stat. § 15A-1446(d)(18). By the time the trial court noticed the sleeping juror, irreparable damage had already occurred. Once it became clear that one of the jurors had missed some amount of evidence, the court’s only appropriate recourse, regardless of whether either counsel had noticed anything amiss, was to replace the juror with an alternate before beginning deliberations.
A violation of Ms. McQueen’s constitutional right to a jury of 12 is not subject to analysis as either harmless error or abuse of discretion, but is prejudicial per se. State v. Poindexter, 353 N.C. 440, 444, 545 S.E.2d 414, 416 (2001). In fact, our Supreme Court has declared the right to be tried by a jury of 12 so fundamental to our system of jurisprudence that it cannot be waived even by consent of the defendant. E.g. Hudson, 280 N.C. at 79, 185 S.E.2d at 192. In Hudson, the defendant affirmatively consented to be tried by 11 jurors, but the appellate court, ex meru motu, found his conviction a nullity. Likewise, in this case, even though Ms. McQueen acquiesced in the continued participation of the offending juror, Hudson says that consent was not a valid waiver of defendant’s right to assert this claim on appeal. Id.
By allowing the trial to proceed even thought the court was aware of that a juror had not completely participated in the proceedings, the court committed reversible, structural error resulting in an invalid verdict. As a result, Ms. McQueen must have a new trial.
II.THE TRIAL COURT ERRED BY FAILING TO INVESTIGATE WHETHER A JUROR WHO WAS SLEEPING DURING TRIAL HAD HEARD ALL THE EVIDENCE SO AS TO PROPERLY DELIBERATE AND RENDER A VERDICT.
Assignment of Error No. 9, amended record[1]
Whether a trial court has failed to properly investigate possible juror misconduct or whether a defendant was denied a fair and impartial jury are questionsof law, subject to de novo review by this Court. SeeState v. Drake, 31 N.C. App. 187, 229 S.E.2d 51 (1976).
The trial court was required to make an inquiry sufficient to ascertain whether, in fact, Juror Number Sixdid have the ability to participate fully in deciding Ms. McQueen’s fate and whether she was prejudiced. See, e.g., Williams v. Taylor, 529 U.S. 420, 444, 146 L.Ed.2d 435, 456 (2000). The trial court’s failure to make any inquiry prevented both that court, and this one, from resolving that question. Consequently, Ms. McQueen is entitled to a new trial.
The transcript does not reflect how long the sleeping juror remained so, nor does it capture the testimony that juror missed. The court was clearly concerned more with the embarrassment of the sleeping juror than with Ms. McQueen’s unwaivable rights. Rather than mention the issue of sleeping at all to the court room at large, the trial court interrupted trial by calling a pretextual bench conference. Tp. 169. To compound matters, the court made no inquiry of the sleeping juror as to the extent of the trial the juror had missed. Instead, he asked counsel, neither of whom had noticed that Juror Number Six was sleeping, what they wanted to do. Tp. 169. Given that neither counsel noticed it, although the bailiff appears to have done so, neither counsel was inclined to pursue the matter. Tp. 170. The court stated that he thought the juror had fallen asleep only for brief moments that would not affect the juror’s ability to participate. Tp. 169. Yet he never asked the juror, and therefore could not be sure whether he had not seen all of the sleeping that the juror had done or, indeed, whether the juror felt his ability to participate was impaired for some reason.
An example of the inquiry the trial court should have undertaken is set forth in State v. Cox, 661 S.E.2d 294 (2008). In that case, the trial court specifically asked a juror who had slept, “Did you hear enough of the trial to be able to perform your duty as a juror? Because…if you did doze off and miss something…it may be unfair to one side or the other.” Cox, 661 S.E.2d at 297. In Hudson, the twelfth juror was excused because she became ill. Hudson, 280 N.C. at 78, 185 S.E.2d at 192. Juror Number Six may, too, have been ill and not able to participate consistently with the oath he swore at the start of his service. However, the general recognition that he was sleeping was never brought to his attention, much less explored, so it remains unclear whether the juror was in a position to, or did, fulfill his duty as a juror.
Every defendant in a criminal action has a due process right, protected by the "essential demands of fairness" of the Fourteenth Amendment, to a trial before a fair and impartial jury. Ham v. South Carolina, 409 U.S. 524, 35 L.Ed.2d 46 (1973). Moreover, “[i]t is the duty and responsibility of the trial judge to insure that the jurors remain impartial….” State v. Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919 (1984), rev. denied, 313 N.C. 335, 327 S.E.2d 897 (1985) (witness contact with juror; no error where trial judge determined after hearing that no prejudice had occurred). Thus, in cases where misconduct of a juror is alleged or the partiality of a juror is suspect, the trial court must make an inquiry sufficient to determine whether the defendant has been prejudiced. See, e.g., State v. Drake, 31 N.C. App. 187, 229 S.E.2d 51 (1976) (court erred by failing to investigate allegations of jury misconduct). The trial court must “conduct investigations…including examination of jurors when warranted, to determine whether any misconduct has occurred and has prejudiced the defendant.” State v. Barnes, 345 N.C. 184, 226, 481 S.E.2d 44, 67 (1997), cert. denied, 523 U.S. 1024, 140 L.Ed.2d 473 (1998). AccordState v. Najewicz, 112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993), rev. denied, 335 N.C. 563, 441 S.E.2d 130 (1994) (“Where juror misconduct is alleged…the trial court must investigate the matter and make appropriate inquiry.” (emphasis in original omitted)).