in the Court of Appeals 16 October 2019.
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.
Office of Kellie Mannette, PLLC, by Kellie Mannette, for
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
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.
THE COURT: . . . A photo lineup conducted by a local law
enforcement agency is required to meet all of the following
. . . .
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.
Judge Brooks completed the instructions, the jury left the
courtroom to begin its deliberations in a jury room.
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
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