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State v. Gurkin

Court of Appeals of North Carolina

June 3, 2014

STATE OF NORTH CAROLINA
v.
ALBERT GREY GURKIN, SR

Heard in the Court of Appeals March 19, 2014.

Page 451

Martin County. No. 09 CRS 0413. Wayland J. Sermons, Jr., Judge.

Attorney General Roy Cooper, by Special Deputy Attorney General Richard L. Harrison, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

McCULLOUGH, Judge. Judges ELMORE and DAVIS concur.

OPINION

Page 452

Appeal by defendant from judgment entered 7 February 2013 by Judge Wayland J. Sermons, Jr., in Martin County Superior Court.

McCULLOUGH, Judge.

Defendant appeals from judgment entered 7 February 2013 after a Martin County jury found him guilty of second-degree murder. For the following reasons, we find no prejudicial error.

I. Background

Defendant, Albert Grey Gurkin, Sr., was indicted for first-degree murder on 17 August 2009. Defendant was tried at the 28 January 2013 Criminal Session of Martin County Superior Court, the Honorable Wayland J. Sermons, Jr., presiding.

Prior to the start of jury selection, the trial court inquired as to whether counsel had any objections and no objections were raised. Jury selection began with the trial court selecting six prospective jurors for voir dire. All six prospective jurors were passed to the defense. The trial court excused one venire member and the defense accepted the remaining five. The trial court then directed the clerk to call seven prospective jurors. This modified process continued without objection until a full jury was accepted.

During the voir dire of prospective juror Ms. McNeil, McNeil stated she overheard some discussion in the jury room about the case. Specifically, she overheard a few prospective jurors discussing whether they knew defendant or what the case was about. During the State's voir dire questioning, the following exchange took place:

MR. EDWARDS: Have you -- since this happened, do you recall having a conversation with anyone about the case?
JUROR NO. 7/MS. MCNEILL: Not really. Just, you know wondering what it was about when I was sitting in the jury room.

During defense counsel's voir dire questioning, the following exchange took place:

MR. DUPREE: You mentioned something that I'm going to ask you a couple of questions about. You said in the jury room where you've all got so much free time over the last few days there was some discussion about what was going on or what the case was about?
JUROR NO. 7/MS. MCNEILL: Yes, a little bit.
MR. DUPREE: What kind of discussion did you hear?
JUROR NO. 7/MS. MCNEILL: Did we -- did anybody know him, you know, Grey, know him personally and what happened, that sort of thing. I know you said not to do that, but they did.
THE COURT: I sure did.
MR. DUPREE: Would you say that was quite a few people asking each other about --
JUROR NO. 7/MS. MCNEILL: No, not a lot. Just a few.
MR. DUPREE: Just people in your circle?
JUROR NO. 7/MS. MCNEILL: Just a little ...

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