The opinion of the court was delivered by: Orr, Justice.
On defendant's petition for writ of certiorari to review an order entered on 16 October 1995 by Lamm, J., in Superior Court, Transylvania County, declaring a mistrial, and an order entered on 8 March 1996 by Warren, J., in Superior Court, Transylvania County, denying defendant's plea in bar and motion for imposition of a life sentence. Heard in the Supreme Court 16 October 1997.
Defendant was convicted of first-degree murder, first-degree rape, felonious breaking and entering, and felonious larceny on 1 July 1982. Based on the jury's recommendation, defendant was sentenced to death for the first-degree murder conviction and appealed to this Court. In a per curiam opinion, this Court vacated the judgments and remanded for a new trial because of "the entirely inaccurate and inadequate transcription of the trial proceedings." State v. Sanders, 312 N.C. 318, 319, 321 S.E.2d 836, 837 (1984) (per curiam) (Sanders I). Following the new trial and capital sentencing proceeding, defendant was again sentenced to death.
On 7 April 1987, this Court entered an order remanding to the trial court "for the sole purpose of hearing defendant's motion to suppress the evidence taken from his residence." State v. Sanders, 319 N.C. 399, 400, 354 S.E.2d 724, 725 (1987). After further briefing and argument by the parties, this Court found no error in the hearing on defendant's motion to suppress or in the guilt phase of defendant's trial. However, because of McKoy error, the case was remanded for a new capital sentencing proceeding. State v. Sanders, 327 N.C. 319, 395 S.E.2d 412 (1990) (Sanders II), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991).
On 9 October 1991, based upon defendant's motion for a change of venue, the trial court entered an order transferring venue from Transylvania County to McDowell County. Defendant's third capital sentencing proceeding was held at the 11 September 1995 Criminal Session of Superior Court, McDowell County. On the second day of deliberations, the State moved for a mistrial, and judge Charles C. Lamm, Jr., orally granted the motion. Judge Lamm subsequently entered a written order on 6 October 1995, declaring a mistrial based on juror misconduct. This order was filed on 16 October 1995. On 16 February 1996, defense counsel filed a "Plea in Bar and Motion for Entry of Life Sentence or Motion for Continuance of Trial Date." Judge Raymond A. Warren denied defendant's "plea in bar for the entry of an order canceling the penalty phase trial and imposing a life sentence" and allowed defendant's motion for a continuance. Defendant then filed a petition for writ of certiorari with this Court and requested that we review the orders entered by Judge Lamm and judge Warren. This Court allowed defendant's petition on 10 October 1996.
A detailed review of the evidence introduced during the guilt phase of defendant's trial is set forth in the prior opinion of this Court, finding no error in that phase of the trial. Sanders II, 327 N.C. 319, 395 S.E.2d 412. Further Discussion of the evidence introduced during that trial is unnecessary here.
In the present case, defendant contends that the trial court erred by granting the State's motion for a mistrial over defendant's objection, thereby violating his constitutional right to be free from double jeopardy. Defendant argues that (1) nothing occurred during jury deliberations which constitutes "manifest necessity" for granting a mistrial, (2) the trial court failed to adequately identify the alleged juror misconduct in its findings of fact, and (3) the trial court erred by failing to explore alternative remedies which could have permitted the sentencing proceeding to continue to final Conclusion. We disagree with defendant's contentions and affirm the orders of the trial court.
In the present case, the jury began sentencing deliberations on 4 October 1995 at 10:45 a.m. That same day at 4:00 p.m., the jury sent the trial court a written question which stated, "How do we as a jury, when one or more of us have questions regarding facts of the case (feel we have not been given enough information)[,] deal with finding the facts or coming to an undecisive Conclusion[?]" After conferring with counsel, Judge Lamm brought the jury out and questioned the foreman as follows:
Sir, without telling me -- if the jury has answered one or more issues already, without telling me what the answer to that issue is; if you could tell me, is this question relating to a specific issue or issues?
FOREMAN: It's on the Issue Three.
Okay, sir. Do you wish to be instructed again on Issue Three and Issue Four?
Before instructing on Issues Three and Four, the trial court first reminded the jury that "the state must prove three things beyond a reasonable doubt" before the jury can recommend a sentence of death. The trial court also defined "reasonable doubt" for the jury and gave the pattern jury instructions as to the three things the State was required to prove beyond a reasonable doubt. It then gave the pattern jury instructions pertaining to Issue Three, which provides, "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumstances found?" and Issue Four, which provides, "Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?" After receiving these instructions, the jury resumed deliberations at 4:20 p.m.
At 5:05 p.m., Judge Lamm excused the jurors for the day and stated that they would begin deliberations again the next morning at 9:30. Prior to sealing the jury's Issues and Recommendation as to Punishment form and notepad, Judge Lamm noted that there was a folded piece of paper on top. Several jurors indicated to Judge Lamm that the paper contained another question for him but that they were not through framing the question. Accordingly, Judge Lamm agreed to address the question in the morning once the jurors were ready.
The next morning, prior to returning to deliberate, Judge Lamm asked the foreman to tell him how long the jury had been deliberating on the issue that it was currently deciding. The foreman told Judge Lamm that the jury had been deliberating on the issue since sometime after the lunchtime meal, that three votes had been taken, and that the split for the last vote was "a little bit different." The foreman then indicated that the jury would continue deliberations, and the jury in fact resumed deliberations at 9:49 a.m.
At approximately 10:15 a.m., Judge Lamm was handed another piece of paper by the jury. This note stated, "We have a vote of 11-1. Hung jury on the final issue." Judge Lamm then called the jury into the courtroom and asked the foreman to tell him whether the jury was referring to Issue Four when it referenced the "final issue." The foreman informed Judge Lamm that the jurors had begun deliberations on Issue Four that morning. Judge Lamm requested that the jury deliberate further on that issue to see if it could reach a unanimous decision. Jury deliberations resumed at 10:25 a.m.
At 10:55 a.m., Judge Lamm was handed another note by the jury, which included the following statements:
We can not come to a unanimously decision on Issue Four.
We had a error at one point and went ahead and signed it but we reread recommendation as to punishment.
We need to know if life means life in prison.
We one juror who . . . investigat on her own and talked to a Judge and police officers.
After a brief recess, Judge Lamm met with counsel for both parties, in defendant's presence. Both counsel were informed of the contents of the note set out above. Judge Lamm also informed counsel that the note which was received at approximately 10:15 a.m. stated, "We have a vote of eleven to one," and that under that it read, "Hung jury on the final issue." Finally, he also stated that the folded-up piece of ...