Appeal of right by defendant pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Ellis, J., at the 24 March 1986 Criminal Session of Superior Court, Scotland County, upon a jury verdict finding defendant guilty of first-degree murder.
Defendant was tried capitally on an indictment charging him with the first-degree murder of Karen Gibson Monroe. The jury returned a guilty verdict and recommended that defendant be sentenced to death. Defendant contends that the trial court committed reversible error by conducting unrecorded conferences with jurors in the absence of defendant and his attorneys. We agree and hold that defendant is entitled to a new trial. Although defendant brings forth numerous other assignments of error, their resolution is unnecessary to the Disposition of this appeal.
A complete presentation of the evidence also is unnecessary to an understanding of the legal issue involved in this case. In summary, the State presented evidence tending to show that on the day of the murder defendant was seen in his car following the victim, who was in her car. Later that day, police found the victim's car abandoned on the side of the road. Defendant's palm print was on the left doorpost of the car. Several days after finding the car, investigators discovered the victim's body in a wooded area just over a mile from the plant where defendant worked. Witnesses for the State testified that defendant carried a twenty-gauge shotgun in the trunk of his car. The victim's autopsy revealed that she died as a result of a gunshot wound to the back of the head. There were thirteen entrance and seven exit wounds in the victim's head and five buckshot-type projectiles were recovered during the autopsy.
On the day of the murder defendant, who later told investigators he did not know the victim, cashed a personal check drawn on the victim's account, made payable to his order, for $126.75. Once paid, this check left a balance of $2.89 in the victim's account. Police seized from defendant's residence a current bank statement showing a zero balance as of the date of the murder, yet witnesses testified that defendant made change for a fifty-dollar bill later that day.
Lottie Gamble, acting as a police informant, gained defendant's confidence and testified at trial regarding defendant's statements to her admitting responsibility for killing the victim. Glenn Locklear, who was incarcerated in the same cell as defendant, also testified regarding several incriminating statements by defendant.
Defendant contends the trial court violated his nonwaivable state constitutional right to be present at all stages of his capital trial by conducting unrecorded conferences with jurors at the bench. Our review of the record reveals, and the parties do not contest, that the trial court held at least seven such conferences--three with sitting jurors and four with alternate jurors. On these occasions, immediately following notification by the State and defense counsel that a particular person was acceptable for service on the jury, the court called the juror to the bench for a brief conference.
Article I, Section 23 of the North Carolina Constitution provides for capital defendants a nonwaivable right to be present at all stages of their trials. See State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987) (hereinafter Payne I). "The process of selecting and impaneling the jury is a stage of the trial at which the defendant has a right to be present." State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990). Thus, defendant's right to be present encompasses the situation here.
Defendant and defense counsel were present in the courtroom while the trial court conducted its off-the-record conferences with jurors, but as in other cases defendant's presence "essentially was negated by the court's cloistered conversations with [the] jurors." State v. Buchanan, 330 N.C. 202, 222, 410 S.E.2d 832, 844 (1991) (discussing State v. Smith, 326 N.C. 792, 392 S.E.2d 362, and State v. McCarver, 329 N.C. 394, 407 S.E.2d 821 (1991)). The trial court's actions, therefore, were in derogation of defendant's state constitutional rights. Even so, "'every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of the particular case, . . . where the appellate court can declare a belief that it was harmless beyond a reasonable doubt.'" Payne I, 320 N.C. at 140, 357 S.E.2d at 612-13 (quoting State v. Taylor, 280 N.C. 273, 280, 185 S.E.2d 677, 682 (1972)); see also State v. Huff, 325 N.C. 1, 33, 381 S.E.2d 635, 653 (1989), death penalty vacated, U.S. , 111 L. Ed. 2d 777 (1990).
Defendant does not contend that harmful error occurred with respect to the alternate jurors who did ...