State v. McPhail
| Decision Date | 19 August 2014 |
| Docket Number | No. COA13–1182.,COA13–1182. |
| Citation | 764 S.E.2d 699 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Robert McPHAIL. |
Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State.
Kathryn L. VandenBerg, for Defendant.
Defendant Robert McPhail appeals from judgments entered based upon his convictions for first degree murder and conspiracy to commit robbery with a dangerous weapon. On appeal, Defendant contends that the trial court erred by failing to conduct an investigation into whether jurors had been subjected to improper external influences, temporarily closing the courtroom during the questioning of the juror without making adequate findings of fact, and awarding $113,140.52 in restitution in the absence of sufficient evidentiary support. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that the trial court's judgment in the case in which Defendant was convicted of conspiracy to commit robbery with a dangerous weapon should remain undisturbed, that Defendant's conviction for first degree murder should remain undisturbed, but that the trial court's judgment in the first degree murder case should be vacated, and that case should be remanded to the Mecklenburg County Superior Court for the sole purpose of the entry of a new judgment in which the amount of restitution is calculated correctly.
On 15 April 2011, Defendant and N'Gai Yarree Sutton1 discussed a robbery that they intended to commit along with Damon Grimes. According to the plan that the men developed, Mr. Grimes would bring an individual to the Roseland Apartments for the purpose of purchasing marijuana. After this individual arrived, the group intended to rob him. Defendant told Mr. Sutton that the “big guy”2 would have the money. Defendant, who owned an AK–47, was supposed to bring his firearm to the site of the robbery.
On the following day, Defendant and Mr. Sutton were told that the robbery would occur at Mr. Grimes' apartment at Woodstone Apartments instead of at the Roseland Apartments. As a result, Yvette Funderburke, Defendant's girlfriend, drove Mr. Sutton and Defendant to the Woodstone Apartments. According to Mr. Sutton, Defendant put his AK–47 in the trunk of Ms. Funderburke's vehicle before leaving for Mr. Grimes' apartment. At the time that the group arrived at the Woodstone Apartments, Defendant retrieved his AK–47 and joined Mr. Sutton in entering Mr. Grimes' apartment.
At approximately 12:15 p.m. on 16 April 2011, Mr. Wallace and Usef Guy Isabell drove to Mr. Isabell's sister's apartment at the Woodstone Apartments, at which Mr. Wallace intended to purchase seven pounds of marijuana from Mr. Grimes. Mr. Wallace had purchased marijuana from Mr. Grimes at that location on multiple occasions. Upon arriving at the apartment, Mr. Isabell and Mr. Wallace were instructed to wait in the kitchen.
After entering the apartment, Mr. Sutton went to the kitchen, where he found two men sitting at a table. At that point, Mr. Sutton said, “you know what time it is;” walked up to the “big guy,” who was Mr. Wallace; and went through Mr. Wallace's pockets, from which he took money and marijuana. As Mr. Sutton took Mr. Wallace's money and marijuana, Defendant pointed his rifle at him. At the time that Mr. Sutton turned to leave, Defendant fired a shot at Mr. Wallace, who fell. After Mr. Sutton and Defendant returned to the car, Ms. Funderburke drove the group to her residence, where Defendant, Mr. Sutton and Mr. Grimes divided the money and marijuana that had been obtained in the robbery. Mr. Wallace died as the result of a gunshot wound to the chest.
On 19 April 2011, warrants for arrest charging Defendant with murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon were issued. On 2 May 2011, the Mecklenburg County grand jury returned bills of indictment charging Defendant with murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. On 4 August 2011, the State announced that it did not intend to proceed against Defendant capitally. The charges against Defendant came on for trial before the trial court and a jury at the 8 April 2013 criminal session of the Mecklenburg County Superior Court. On 17 April 2013, the jury returned a verdict convicting Defendant of first degree murder on the basis of the felony murder rule with robbery with a dangerous weapon as the predicate felony, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. At the conclusion of the ensuing sentencing hearing, the trial court arrested judgment in the case in which Defendant had been convicted of robbery with a dangerous weapon and entered judgments sentencing Defendant to a term of life imprisonment without the possibility of parole based upon Defendant's conviction for first degree murder and to a consecutive term of 38 to 55 months imprisonment based upon Defendant's conviction for conspiracy to commit robbery with a dangerous weapon. Defendant noted an appeal to this Court from the trial court's judgments.
In his initial challenge to the trial court's judgments, Defendant argues that the trial court erred by failing to investigate the extent to which members of the jury had been subjected to improper external influences. More specifically, Defendant contends that the trial court erroneously failed to conduct an inquiry into the extent to which the other members of the jury had been subject to improper external influences after one juror had expressed concern about having been stared at by members of the gallery and approached in the parking lot by a trial spectator and indicated that other members of the jury had discussed and expressed concern about the conduct of the members of the gallery. We do not believe that Defendant is entitled to relief from the trial court's judgments based upon this argument.
“Due process requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ “ State v. Williams,330 N .C. 579, 583, 411 S.E.2d 814, 817 (1992) (citing State v. Rutherford,70 N.C.App. 674, 677, 320 S.E.2d 916, 919,disc. review denied,313 N.C. 335, 327 S.E.2d 897 (1985) (quoting Irvin v. Dowd,366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961) ). “The trial court has the duty to insure that jurors for the case being tried remain impartial and uninfluenced by outside persons.” Williams,330 N.C. at 583, 411 S.E.2d at 817 (citing Rutherford,70 N.C.App. at 677, 320 S.E.2d at 919). However, “[a]n examination is ‘generally’ required only ‘where some prejudicial content is reported.’ “ State v. Harrington,335 N .C. 105, 115, 436 S.E.2d 235, 240–41 (1993) (quoting State v. Drake,31 N.C.App. 187, 192, 229 S.E.2d 51, 54 (1976) ). “Whether alleged misconduct has affected the impartiality of a particular juror is a discretionary determination for the trial court [,]” State v. Clark,138 N.C.App. 392, 398, 531 S.E.2d 482, 487 (2000), cert. denied,353 N.C. 730, 551 S.E.2d 108 (2001), with this determination to be made based upon an analysis of the facts and circumstances present in the case under consideration. Rutherford,70 N.C.App. at 677, 320 S.E.2d at 919. “ ‘The determination of the existence and effect of juror misconduct is primarily for the trial court whose decision will be given great weight on appeal.’ “ Williams,330 N.C. at 583, 411 S.E.2d at 817 (quoting State v. Bonney,329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991) ).
At the beginning of the sixth day of Defendant's trial, shortly before the jury instruction conference, the trial court received a letter from a member of the jury in which she stated that she was being stared at by certain gallery members, that this conduct made her fear for her safety, and that she would be unable to reach a fair and impartial verdict in light of her concerns. After receiving the juror's letter and consulting with counsel for both parties, the trial court cleared the courtroom of everyone with the exception of court personnel, Defendant, his trial counsel, the prosecutors, and a representative from the Charlotte–Mecklenburg Police Department and brought the juror into the courtroom.
In response to the trial court's inquiry, the juror in question stated that the letter that she had transmitted to the trial court stemmed from two separate incidents. In the first of these incidents, members of the gallery sitting on Defendant's side of the courtroom had been staring at her in what she believed to be an effort to intimidate her. In her letter, the juror specified that the conduct of two women, in particular, had made her uncomfortable and fearful, so that she was “scared to death” when she left the courtroom.
The second incident occurred as the juror walked to her car after leaving the courtroom at the end of the day's proceedings. As the juror passed a car parked on the same level of the parking deck as the one in which her car was parked, a man sitting in that vehicle said, “hey, how are you doing?” The juror believed that the man who had spoken to her had been sitting in the back of the courtroom on Defendant's side during part of the trial. Although the juror was already scared by the conduct of the women who had stared at her in the courtroom, this incident frightened her even more.
After describing these two incidents, the juror informed the trial court that she felt unsafe and feared that someone might attempt to harm her if she failed to return a verdict in Defendant's favor. For that reason, the juror stated that, even if the State proved Defendant's guilt beyond a reasonable doubt, she would still refrain from returning a guilty verdict.3 In response to the trial court's inquiry concerning...
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