Individual jurors or juries through their chosen foreperson sometimes send notes to the trial court in criminal trials. The content of this kind of communication varies. Sometimes a note reveals an individual juror’s concern about his or her ability to serve impartially in the case. Sometimes the note contains a request from the jury to review evidence. Sometimes the jury asks about the governing law. And sometimes the jury writes to the court because jurors have not been able to reach a unanimous verdict. What procedures should a trial court follow when the jury communicates with the court in this manner?
First, the trial court must disclose the fact of the communication to the defendant, defense counsel, and the prosecutor. A trial court’s failure to do so violates a defendant’s right under the North Carolina Constitution to be present at every stage of his or her trial. See N.C. Const. Art. 1, Sec. 23 (“In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony . . . .”); State v. Buchanan, 330 N.C. 202, 217 & n.1 (1991) (noting that the confrontation clause of the state constitution, which guarantees the right of a defendant to be present at every stage of trial, is broader than the federal constitutional right to presence at all critical stages of trial); see also State v. Jones, 346 N.C. 704, 708-09 (1997) (stating that the right to be present “extends to all times during the trial when anything is said or done which materially affects defendant as to the charge against him”).
Thus, the court of appeals in State v. Mackey, 241 N.C. App. 586 (2015), determined that the trial court violated the defendant’s state constitutional right to presence when it failed to disclose a note from the jury asking:
Do we have any concern for our safety following the verdict? Based on previous witness gang [information] and large [number] of people in court during the trial[.]
Please do not bring this up in court.
Nevertheless, the appellate court ultimately determined that the error was harmless beyond a reasonable doubt.
Second, the trial court must disclose the content of the communication, though the court is not required to read the note verbatim. In State v. Jones, 346 N.C. 704 (1997), the trial court passed a note to an alternate juror without revealing its contents to the defendant or his counsel. The North Carolina Supreme Court held that “this action negated defendant’s presence in the courtroom and constituted a violation of his right to be present at all stages of his capital trial.” Id. at 710. Yet given the “benign substance” of the communication, which was revealed by the trial court’s recorded remarks accompanying the note, and the trial court’s instruction to the alternate juror that he was free to discuss the note with fellow jurors, the state supreme court concluded that the error was harmless beyond a reasonable doubt. Id.
The North Carolina Supreme Court in State v. Davis, 353 N.C. 1 (2000), found that the trial court did not err in a capital sentencing proceeding when it advised the parties on the record about notes it received from the jury, summarized the content of those notes, heard from counsel, and responded in open court to the communications.
The first note at issue in Davis inquired:
On Issue (4) four[,] if we are 11 to one for death what happens[?]
Id. at 14. The trial court informed counsel that the jury had asked what happens if there is a division on the fourth issue. The trial court responded by again instructing the jury on Issue Four: “Do you unanimously find, beyond a reasonable doubt, the aggravating circumstance or circumstances you’ve 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?” Id. at 14 & n.1. The court also instructed the jury in accordance with G.S. 15A-1235 of its duty to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.
The next morning, the trial court in Davis received a note from a juror asking to be replaced. The note stated in relevant part:
[W]hile the mitigating factors do not offset the aggravating factors in one of the murders, I cannot with any peace of mind vote for the death penalty. . . . I feel unqualified to continue as a juror.
Id. at 15. The trial court discussed with counsel the content of the note, stating, “the juror is indicating they’re [sic] having some difficulty following the law and has asked that I place an alternate in.” Id. The court further advised counsel of how it planned to respond.
The court subsequently instructed the jury as follows:
Folks, I’ve had a communication from one of your members indicating that they’re [sic] having some difficulty in the matter, and it’s asked that they [sic] be replaced. The law doesn’t allow me to do that. Once the jury deliberations begin in the sentencing phase in this type of case, I’m not allowed to remove someone. . . . I must let the twelve jurors that begin the deliberations conclude the matter.
Now, yesterday[,] one of the questions that I received was an inquiry as to what would happen in a certain numerical division. I will tell you that your inability to reach a unanimous verdict should not be your concern, but should simply be reported to the Court.
Id. at 15-16.
The jury returned a verdict of death less than one hour later.
The defendant argued on appeal that the trial court violated his constitutional rights to presence and to the assistance of counsel by refusing to disclose the full contents of the notes and by omitting the jury’s numerical division from its summary. The state supreme court deemed the trial court’s descriptions of the notes in open court to be “fair and accurate,” and sufficient to afford the defendant’s right to presence and to “render counsel the full opportunity to effectively represent defendant.” Id. at 16-17.
Third, the trial court should give counsel an opportunity to be heard before responding and must deliver any response in open court. In Davis, the trial court’s actions in providing counsel an opportunity to be heard about how the court should respond to the jury’s notes and its provision of that response in open court were central to the supreme court’s determination that the defendant’s constitutional rights were not violated. Id. at 16 (citing Rushen v. Spain, 464 U.S. 114, 119 (1983) (“When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.”) and Rogers v. United States, 422 U.S. 35, 39 (1975) (explaining that upon receiving a message from a juror, the trial court should give counsel an opportunity to be heard and then answer the message in open court)). In State v. Payne, 320 N.C. 138 (1987), in contrast, the supreme court granted the defendant a new trial based on the trial court giving admonitions to the jury in the jury room outside the presence of the defendant. The Payne Court concluded that those admonitions, which came at the conclusion of jury selection, were at a critical stage in the defendant’s case as his presence “could have had a reasonably substantial relation to his ability to present a full defense.” Id. at 139.
Fourth, even if the trial court examines a juror individually, the trial court must ensure that it delivers any instructions to the jury as a whole. A judge may appropriately examine a juror or jurors individually when the concerns raised are particular to one or more jurors. See e.g., State v. Bates, 172 N.C. App. 27, 33–34 (2005) (juror examined after she disclosed that she knew witness for State during high school and college), remanded for reconsideration on other grounds, 360 N.C. 537 (2006); State v. Best, 2021-NCCOA-329, ¶ 8, 278 N.C. App. 374 (2021) (unpublished) (jurors examined individually after alternate juror reported that a juror made an inappropriate comment). Such an examination should occur, at a minimum, in the presence of counsel. The North Carolina Supreme Court has expressly disapproved of private conversations between the trial court and jurors. See State v. Tate, 294 N.C. 189, 198 (1978) (opining that the trial court’s unrecorded private bench conversations with two jurors during the trial were “ill-advised[;]” further stating that the “practice is disapproved” and “[a]t least, the questions and the court’s response should be made in the presence of counsel”).
The trial court must ensure that any additional instructions provided to the jury following such an inquiry are provided to the body as a whole. Providing instructions to less than the full complement of jurors violates the unanimity provision of Article I, Section 24 of the North Carolina Constitution, which states that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” See State v. Wilson, 363 N.C. 478 (2009) (holding that the trial court violated the defendant’s constitutional right to a unanimous verdict when it provided the foreperson with instructions that it did not provide to the jury as a whole).