State v. Smith

• Decision Date: 13 June 1990
• Docket Number: No. 627A86,627A86
• Parties: STATE of North Carolina v. Roland Douglas SMITH.
• Court: North Carolina Supreme Court

Page 362

392 S.E.2d 362

326 N.C. 792

STATE of North Carolina v. Roland Douglas SMITH.

No. 627A86.

Supreme Court of North Carolina.

June 13, 1990.

Malcolm Ray Hunter, Jr., Appellate Defender, and Staples Hughes, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was indicted on 7 September 1985, in separate indictments, for one count of first-degree murder, one count of felonious breaking or entering, and one count of being an habitual felon. The charges against the defendant were consolidated for trial, and he was convicted of all charges. The jury recommended and the trial court entered a sentence of death for the first-degree murder. Thereafter, the trial court sentenced the defendant to the presumptive three year term for felonious breaking or entering and to life in prison as an habitual felon.

On appeal the defendant contends, inter alia, that the trial court committed reversible error by holding unrecorded private bench discussions with prospective jurors, which resulted in the trial court excusing those jurors. We agree and hold that errors committed by the trial court during the selection of the jury for this capital trial require that the verdicts and judgments against the defendant be vacated and that this case be remanded to the Superior Court for a new trial.

A review of the jury selection process for this capital trial reveals that after some jurors had been selected, additional prospective jurors were called into the courtroom. Three of those prospective jurors responded to the trial court's question as to whether any problems had developed that would prevent them from serving on the jury. On each occasion, the trial court invited the prospective juror to the bench to discuss the problem privately, even though counsel and the defendant were in the courtroom. After each of these unrecorded private bench conferences, the trial court excused the prospective juror, indicating that it was within the discretion of the court to excuse that particular juror.

The fundamental question before us is whether the trial court's action in excusing prospective jurors as a result of its private unrecorded bench conferences with them violated the defendant's state constitutional right to be present at every stage of the trial. The confrontation clause of the Constitution of North Carolina guarantees the right of this defendant to be present at every stage of the trial. State v. Huff, 325 N.C. 1, 29, 381 S.E.2d 635, 651 (1989); N.C. Const. Art. I, § 23 (1984). This state constitutional protection afforded to the defendant imposes on the trial court the affirmative duty to insure the defendant's presence at every stage of a capital trial. The defendant's right to be present at every stage of the trial "ought to be kept forever sacred and inviolate." State v. Blackwelder, 61 N.C. 38, 40 (1866). In fact, the defendant's right to be present at every stage of his capital trial is not waiveable. State v. Artis, 325 N.C. 278, 297, 384 S.E.2d 470, 480 (1989); State v. Huff, 325 N.C. at 31, 381 S.E.2d at 652. But cf. State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978) (private communication between a judge...