in the Court of Appeals 17 May 2018.
by defendant from judgment entered 21 March 2017 by Judge
Donald W. Stephens in Wake County No. 15 CRS 210656 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Matthew L. Liles, for the State.
& Petersen, P.A., by James R. Glover, for
Veney ("Defendant") appeals from judgments entered
upon his convictions for three counts of assault with a
deadly weapon inflicting serious injury. Defendant argues the
trial court committed a structural error by instructing
prospective jurors outside the presence of defense counsel,
which deprived him of his Sixth Amendment right to counsel.
The State has proved the conceded error was harmless beyond a
was charged with assault with a deadly weapon with the intent
to kill inflicting serious injury ("AWDWIKISI") for
stabbing Valerie Wright on 12 May 2015. On 6 July 2015, a
grand jury returned a true bill of indictment. On 17 August
2015, the grand jury returned a superseding indictment
charging Defendant with three counts of AWDWIKISI for
stabbing Valerie Wright, Krystal Octetree and Dahmon Scott.
The three charges of AWDWIKISI were joined for trial with
other charges from a different indictment for first-degree
burglary and conspiracy to commit felonious assault.
was tried before a jury on the 5 December 2016. During the
voir dire portion of jury selection, the
trial court called a recess. While waiting to resume jury
selection, and while Defendant's trial counsel was
outside of the courtroom, the trial court gave the following
instruction to the prospective juror pool, which Defendant
contests on appeal:
COURT: While [defense counsel's] gone, let me give you
some instructions, all of you, if you happen to sit on this
jury, you're picked for this jury.
As you've been told by the lawyers and by me, you have to
try this case based on what you hear in the courtroom
uninfluenced by any outside factor whatsoever. This case must
be tried based upon the evidence presented and the law as I
give it to you.
I was licensed to practice law in 1970. That's 46 years.
At that time, the largest office in the law firm was the law
library. Now lawyers walk around with a law library on their
cell phone. Okay? Which means it gives them access to the
law, and it gives you access to the law or access to anything
you want to know. If something comes up in the case, I mean,
you could Google "burglary" and get some kind of
The reason I say that to you is just to remind you please
don't do that. Please don't do that. Okay? Please
don't do any research on your own. Don't go to any
alleged crime scene. Don't read the law. If something
comes up during the testimony with reference to forensic
evidence from the City-County Bureau of Investigation,
don't Google the term or whatever.
You're not investigators. You're jurists. Everything
you need to know you'll hear in the presentation of the
evidence or in the legal principles that I will describe to
you. So please don't resort to any matter of
investigation on your own. Don't read any law. Don't
do any research. Don't do anything of that nature please.
You're instructed not to. The Supreme Court has advised
me to tell you that that would be improper.
December 2016, the jury returned verdicts finding Defendant
not guilty of first-degree burglary, not guilty of conspiracy
to commit felonious assault, but guilty of three counts of
assault with a deadly weapon inflicting serious injury
("AWDWISI"). The trial court sentenced Defendant to
three consecutive sentences of twenty-six months to
forty-four months imprisonment. Defendant's trial counsel
gave oral notice of appeal in open court.
lies in this Court from an appeal of a final judgment of the
superior court in a criminal case based upon the jury's
convictions of Defendant following pleas of not guilty. N.C.
Gen. Stat. §§ 7A-27(b), 15A-1444(a) (2017).
Standard of Review
standard of review for alleged violations of constitutional
rights is denovo." State v.
Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444
(2009) (citing State v. Tate, 187 ...