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State v. Evans

Court of Appeals of North Carolina

December 3, 2019

STATE OF NORTH CAROLINA
v.
DEJAUN EVANS, Defendant.

          Heard in the Court of Appeals 16 October 2019.

          Appeal by Defendant from judgments entered 21 August 2018 by Judge Athena F. Brooks in Mecklenburg County Nos. 16 CRS 215686, 16 CRS 215688, 18 CRS 2802 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Derek L. Hunter, for the State.

          Law Office of Kellie Mannette, PLLC, by Kellie Mannette, for Defendant-Appellant.

          INMAN, Judge.

         Dejaun Evans ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a felon. On appeal, Defendant contends that the trial court erred by: (1) failing to extend the session of court in which his trial began, resulting in entry of judgment out of session and without jurisdiction; and (2) responding to a question from the jury with a written request for clarification read to the jury by the bailiff, in violation of criminal procedure statutes. After careful review, we hold that Defendant has failed to demonstrate reversible error.

         I. FACTUAL AND PROCEDURAL HISTORY

         Defendant was arrested on 29 April 2016 by the Charlotte-Mecklenburg Police Department in connection with a robbery after being identified in a photo lineup by the victim. Defendant was indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon on 9 May 2016. He was initially tried on these charges in September of 2017; that trial ended in a mistrial after the jury was unable to reach a unanimous verdict.

         Defendant's second trial began on 15 August 2018 in Mecklenburg County, and included an additional charge for possession of a firearm by a felon. Special Superior Court Judge Athena Brooks presided over the trial pursuant to a commission "begin[ning] August 15, 2018 and continu[ing] Three Days or until business is completed." Judge Brooks was also assigned by separate commission to hold court in Mecklenburg County for the following week beginning 20 August 2018.[1]

         On 17 Friday 2018, at the conclusion of the third day of trial, Judge Brooks called a weekend recess. Following the jury's departure from the courtroom, the prosecutor asked if "it would be appropriate at this time to make findings why we're holding this session to next week[.]" Judge Brooks replied, "I have the commission next week is-I have on the road commission." The prosecutor concluded the exchange by responding "Understood. I didn't know if that had to be on the record." The trial resumed the following Monday, 20 August 2018, in a different courtroom without any further comment on the weekend recess by the court or counsel.

         The State and Defendant rested their cases later that day and court recessed for the evening. The next morning, Judge Brooks instructed the jury on the pertinent law, which included the following instruction on photographic lineup evidence consistent with the Eyewitness Identification Reform Act, N.C. Gen. Stat. §§ 15A-284.50 et seq. (2019):

THE COURT: . . . A photo lineup conducted by a local law enforcement agency is required to meet all of the following requirements:
. . . .
The photograph of the suspect shall be contemporaneous and, to the extent practicable, shall resemble the suspect's appearance at the time of the offense.

         Once Judge Brooks completed the instructions, the jury left the courtroom to begin its deliberations in a jury room.

         Later the same day, the jury sent a written note to the trial court requesting: (1) an opportunity to review a tape recording that had been entered into evidence; (2) instruction on whether the jury was required to find Defendant guilty of all charges, or if it could find Defendant not guilty as to some; (3) instruction on "[h]ow . . . 'contemporary photo' [is] defined by the court[;]" and (4) a copy of the jury instructions. The trial court read each request aloud, and engaged in the following discussion with the parties:

THE COURT: All right. Number 3, I don't understand. It says how is contemporary photo defined by the Court. I don't know if that's my accent that came out as contemporary or if the words got confused by the jury. I simply will need more information to answer that. Any position for the state?
[THE PROSECUTOR]: The state would agree.
THE COURT: Anything for the defendant?
[DEFENDANT'S COUNSEL]: In the Eyewitness Identification Reform Act, it says contemporary photo.
. . . .
THE COURT: I just want to make sure it's not my accent or my using the jury instruction. I just don't know.
. . . .
[THE PROSECUTOR]: . . . I would say that based on the question, it could be what [Defendant's counsel] is saying, it could be some other things, I would simply tell the jury that we're unclear what their question is, if ...

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