State v. Mackey, 241 N.C. App. 586 (Jun. 16, 2015)

(1) In this murder and discharging a barreled weapon case in which the jury heard some evidence that the defendant was affiliated with a gang, the trial court did not deprive the defendant of his constitutional right to a fair and impartial jury by failing to question jurors about a note they sent to the trial court. The note read as follows:

(1) 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[.]

(2) We need 12 letters—1 for each juror showing we have been here throughout this trial[.]

According to the defendant, the note required the trial court to conduct a voir dire of the jurors. The court disagreed, noting that the cases cited by the defendant dealt with the jurors being exposed to material not admitted at trial constituting “improper and prejudicial matter.” Here, the information about gang affiliation was received into evidence and the number of people in the courtroom cannot be deemed “improper and prejudicial matter.” (2) The trial court violated the defendant’s constitutional right to presence at every stage of the trial by failing to disclose the note to the defendant. However, the error was harmless beyond a reasonable doubt. (3) Although the court agreed that the trial court should disclose every jury note to the defendant and that failing to do so violates the defendant’s right to presence, it rejected the defendant’s argument that such disclosure is required by G.S. 15A-1234. That statute, the court explained, addresses when a trial judge may give additional instructions to the jury after it has retired for deliberations, including in response to an inquiry by the jury. It continued: “nothing in this statute requires a trial judge to respond to a jury note in a particular way.”