State v. Lynn, COA22-990, ___ N.C. App. ___ (Sept. 19, 2023)

In this Mecklenburg County case, defendant appealed his convictions for assault with a deadly weapon and discharging a weapon into a building and vehicle in operation, arguing error by (1) allowing the prosecutor to tell potential jurors that probation was within the potential sentencing range and (2) substituting an alternative juror after deliberations began, and (3) ineffective assistance of counsel. The Court of Appeals found no prejudicial error. 

In December of 2019, defendant was involved in an altercation at a Cook Out in Charlotte, eventually firing several shots that hit a car and the exterior wall of the Cook Out. The matter came for trial in March of 2022. On the second day of deliberations, one of the jurors was ill and did not report for jury duty. The trial court substituted an alternate juror and directed the jury to restart deliberations under G.S. 15A-1215(a). Defendant was subsequently convicted and appealed. 

Taking up (1), the Court of Appeals explained that it reviewed a trial court’s management of jury selection for abuse of discretion. Here, the State’s choice to mention probation during voir dire was “questionable” as “a probationary sentence under these facts requires the trial judge to find extraordinary mitigation,” but the statement was “technically accurate” as a statement of law. Slip Op. at 5. The court concluded there was no abuse of discretion in these circumstances as it was not a totally unsupported possibility. Turning to (2), the court explained that defendant argued that “more than twelve persons” were involved in the jury verdict, but defendant failed to preserve the issue for review and the court dismissed it.  

Reaching (3), the court explained that defendant’s ineffective assistance of counsel argument contained two points, (a) that defense counsel should have objected to the trial court’s jury instructions on self-defense, and (b) that counsel should have requested a jury poll. Looking at (3)(a), defendant argued that the instruction did not require the jury to consider whether other patrons at the Cook Out had guns. The court explained that the instruction closely tracked the applicable language of the statute and directed the jury to consider whether “defendant reasonably believed that deadly force was necessary,” which would encompass the consideration of whether other people at the scene had guns. Id. at 9. The court could not conclude that a different instruction specifically mentioning a gun would have led to a different result, meaning the argument could not support the ineffective assistance claim. The court likewise dispensed with (3)(b), explaining that the trial court was not required to poll the jury unless requested, but “both the jury foreman and the other jurors, as a group, affirmed—in open court—that their verdicts were unanimous.” Id. at 10. Because there was no evidence of coercion or inducements to the jury, there was no reasonable probability a jury poll would have created a different result for defendant.