State v. Hamer
| Decision Date | 16 June 2020 |
| Docket Number | No. COA19-473,COA19-473 |
| Citation | 845 S.E.2d 846 |
| Parties | STATE of North Carolina v. Demon HAMER |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Ann Stone, for the State.
W. Michael Spivey, for defendant-appellant.
Defendant Demon Hamer appeals from a judgment entered upon the trial court's verdict finding Defendant guilty of speeding 94 miles per hour in a 65-mile-per-hour zone. On appeal, Defendant argues that the trial court erred in conducting a bench trial because Defendant did not knowingly and voluntarily waive his right to a trial by jury. After careful review, we affirm.
On 12 January 2018, Trooper Michael Dodson of the North Carolina State Highway Patrol stopped Defendant on I-40 for speeding. Trooper Dodson issued a citation charging Defendant with (i) speeding 94 miles per hour in a 65-mile-per-hour zone, and (ii) reckless driving.
On 26 July 2018, Defendant's case came on for trial before the Honorable Beverly Scarlett in Orange County District Court. The State dismissed the reckless driving charge and proceeded solely on the speeding charge – a Class III misdemeanor. That day, the district court found Defendant guilty of the speeding charge, and entered judgment ordering Defendant to pay costs and a $50 fine.1 On 6 August 2018, Defendant filed a pro se written notice of appeal seeking a trial de novo in Orange County Superior Court. The superior court treated Defendant's filing as a petition for writ of certiorari, which the court allowed.
On 29 November 2018, Defendant's trial de novo commenced in Orange County Superior Court before the Honorable Michael J. O'Foghludha. At the outset, the superior court confirmed with defense counsel that Defendant was waiving his right to a jury trial.
The superior court accepted the waiver, and the trial proceeded. After the State rested, the superior court personally addressed Defendant regarding the waiver of his right to a jury trial. The defense then put on its case-in-chief. At the conclusion of trial, the superior court found Defendant guilty of speeding 94 miles per hour in a 65-mile-per-hour zone. Defendant timely filed written notice of appeal.
On appeal, Defendant argues that the trial court erred in conducting a bench trial because the record fails to establish that Defendant knowingly and voluntarily waived his constitutional right to a trial by jury. We disagree.
As Defendant correctly observes, it is not the United States Constitution, but rather the North Carolina Constitution, that guarantees the right at issue in this case. The United States Supreme Court has held that although "the Sixth Amendment, as applied to the States through the Fourteenth, requires that defendants accused of serious crimes be afforded the right to trial by jury[,] ... so-called ‘petty offenses’ may be tried without a jury." Baldwin v. New York , 399 U.S. 66, 68, 90 S.Ct. 1886, 1887, 26 L. Ed. 2d 437, 440 (1970). With regard to the Sixth Amendment, "no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized." Id. at 69, 90 S.Ct. at 1888, 26 L. Ed. 2d at 440.
In the instant case, Defendant was convicted of a Class 3 misdemeanor punishable by a maximum of 20 days’ imprisonment, to wit: speeding 94 miles per hour in a 65-mile-per-hour zone in violation of N.C. Gen. Stat. § 20-141(j1) (2019). See also id. § 15A-1340.23(c). Accordingly, as Defendant concedes, "the Sixth Amendment guarantee of a jury trial does not apply in this case."
North Carolina, however, "has historically mandated trial by jury in all criminal cases." State v. Boderick , 258 N.C. App. 516, 522, 812 S.E.2d 889, 893 (2018) (emphasis added) (citation omitted). Moreover, contrary to the right afforded by the Sixth Amendment, the right to a jury trial guaranteed by our state constitution historically could not be waived. Id. (citation and internal quotation marks omitted). That changed on 1 December 2014, when "the North Carolina Constitution was amended by the citizens of North Carolina to allow criminal defendants to waive their right to a trial by jury in non-capital cases." State v. Jones , 248 N.C. App. 418, 421, 789 S.E.2d 651, 654 (2016).
As amended, article I, § 24 of the North Carolina Constitution provides:
No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.
Our General Assembly codified the 2014 constitutional amendment in N.C. Gen. Stat. § 15A-1201(a) - (b). See 2013 N.C. Sess. Laws 300-399, § 4. The legislature subsequently amended § 15A-1201 to include subsections (c) through (f), thereby prescribing the procedures that apply when a defendant seeks to waive the right to a jury trial. See Boderick , 258 N.C. App. at 522-23, 812 S.E.2d at 894 (citing 2015 N.C. Sess. Laws 289-215, § 1; N.C. Gen. Stat. § 15A-1201 (c) - (f) (2015) ).
In order to prove that the trial court erred by accepting his waiver of the right to a jury trial, Defendant must show (1) that the trial court violated the waiver requirements set forth in N.C. Gen. Stat. § 15A-1201, and (2) that Defendant was prejudiced by the error. State v. Swink , 252 N.C. App. 218, 221, 797 S.E.2d 330, 332, appeal dismissed and disc. review denied , 369 N.C. 754, 799 S.E.2d 870 (2017).
We note that Defendant did not object to the trial court's action below, and generally, this Court will not address an issue that has not yet been considered and ruled upon by the trial court. See N.C.R. App. P. 10(a)(1). "Nonetheless, it is well established that when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding [the] defendant's failure to object at trial." In re E.D. , 372 N.C. 111, 116, 827 S.E.2d 450, 454 (2019) (citations and internal quotation marks omitted).2
Whether the trial court violated a statutory mandate is a question of law, which we review de novo on appeal. State v. Rutledge , ––– N.C. App. ––––, ––––, 832 S.E.2d 745, 747 (2019).
N.C. Gen. Stat. § 15A-1201(b) —the waiver provision—states, in pertinent part:
A defendant accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, knowingly and voluntarily, in writing or on the record in the court and with the consent of the trial judge, waive the right to trial by jury. When a defendant waives the right to trial by jury under this section, the jury is dispensed with as provided by law, and the whole matter of law and fact ... shall be heard and judgment given by the court.
N.C. Gen. Stat. § 15A-1201(b).
A defendant shall provide notice of his intent to waive the right to a jury trial by any of the following methods:
After the defendant gives notice of his intent to waive his right to a jury trial, "the State shall schedule the matter to be heard in open court to determine whether the judge agrees to hear the case without a jury." Id. § 15A-1201(d). "The decision to grant or deny the defendant's request for a bench trial shall be made by the judge who will actually preside over the trial." Id.
Here, it is unclear how Defendant first provided notice of his intent to waive his right to a jury trial pursuant to N.C. Gen. Stat. § 15A-1201(c).3 It is evident, however, that all parties were aware of Defendant's intent, as this was the initial matter raised before trial:
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State v. Hamer
...the initial error, thus satisfying N.C.G.S. § 15A-1201, and that defendant was not prejudiced by the error. State v. Hamer , 272 N.C. App. 116, 127, 845 S.E.2d 846, 853 (2020). The dissenting judge argued that the failure of the trial court to engage in a colloquy at the outset constituted ......
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State v. Rojas
...set out in N.C. Gen. Stat. § 15A-1201(c)(2). Rojas relies on the reasoning of the dissenting opinion in State v. Hamer , 272 N.C. App. 116, 127–28, 845 S.E.2d 846, 854 (2020). After this appeal commenced, our Supreme Court rejected that reasoning. State v. Hamer , 377 N.C. 502, 2021-NCSC-67......