2005 North Carolina Code - General Statutes Article 73 - Criminal Jury Trial in Superior Court.

Article 73.

Criminal Jury Trial in Superior Court.

§ 15A‑1221.  Order of proceedings in jury trial; reading of indictment prohibited.

(a)       The order of a jury trial, in general, is as follows:

(1)       Repealed by Session Laws 1995 (Regular Session 1996), c. 725, s. 10.

(1a)     Unless the defendant has filed a written request for an arraignment, the court must enter a not guilty plea on behalf of the defendant in accordance with G.S. 15A‑941. If a defendant does file a written request for an arraignment, then the defendant must be arraigned and must have his or her plea recorded out of the presence of the prospective jurors in accordance with G.S. 15A‑941.

(2)       The judge must inform the prospective jurors of the case in accordance with G.S. 15A‑1213.

(3)       The jury must be sworn, selected and impaneled in accordance with Article 72, Selecting and Impaneling the Jury.

(4)       Each party must be given the opportunity to make a brief opening statement, but the defendant may reserve his opening statement.

(5)       The State must offer evidence.

(6)       The defendant may offer evidence and, if he has reserved his opening statement, may precede his evidence with that statement.

(7)       The State and the defendant may then offer successive rebuttals as provided in G.S. 15A‑1226.

(8)       At the conclusion of the evidence, the parties may make arguments to the jury in accordance with the provisions of G.S. 15A‑1230.

(9)       The judge must deliver a charge to the jury in accordance with the provisions of G.S. 15A‑1231 and 15A‑1232.

(10)     The jury must retire to deliberate, and alternate jurors who have not been seated must be excused as provided in G.S. 15A‑1215.

(b)       At no time during the selection of the jury or during trial may any person read the indictment to the prospective jurors or to the jury. (1977, c. 711, s. 1; 1977, 2nd Sess., c. 1147, s. 2; 1995 (Reg. Sess., 1996), c. 725, s. 10.)

 

§ 15A‑1222.  Expression of opinion prohibited.

The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be  decided by the jury. (1977, c. 711, s. 1.)

 

§ 15A‑1223.  Disqualification of judge.

(a)       A judge on his own motion may disqualify himself from presiding over a criminal trial or other criminal proceeding.

(b)       A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:

(1)       Prejudiced against the moving party or in favor of the adverse  party; or

(2)       Repealed by Session Laws 1983 (Regular Session 1984), c. 1037, s. 6.

(3)       Closely related to the defendant by blood or marriage; or

(4)       For any other reason unable to perform the duties required of him in an impartial manner.

(c)       A motion to disqualify must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon  to show the grounds for disqualification.

(d)       A motion to disqualify a judge must be filed no less than five  days before the time the case is called for trial unless good cause is shown for failure to file within that time. Good cause includes the discovery of facts constituting grounds for disqualification less than five days before the case is called for trial.

(e)       A judge must disqualify himself from presiding over a criminal  trial or proceeding if he is a witness for or against one of the parties in the case. (1977, c. 711, s. 1; 1983 (Reg. Sess., 1984), c. 1037, s. 6.)

 

§ 15A‑1224.  Death or disability of trial judge.

(a)       If by reason of sickness or other disability a judge before whom the defendant is being tried is unable to continue presiding over the trial without the necessity of a continuance, he may in his discretion order a mistrial.

(b)       If by reason of absence, death, sickness, or other disability, the judge before whom the defendant is being or has been tried is unable to perform the duties required of him before entry of judgment, and has not ordered a mistrial, any other judge assigned to the court may perform those duties, but if the other judge is satisfied that he cannot perform those duties because he did not preside at an earlier stage of the proceedings or for any other reason, he must order a mistrial. (1977, c. 711, s. 1.)

 

§ 15A‑1225.  Exclusion of witnesses.

Upon motion of a party the judge may order all or some of the witnesses other than the defendant to remain outside of the courtroom until called to testify, except when a minor child is called as a witness the parent or guardian may be present while the child is testifying even though his parent or guardian is to be called subsequently. (1977, c. 711, s. 1.)

 

§ 15A‑1226.  Rebuttal evidence; additional evidence.

(a)       Each party has the right to introduce rebuttal evidence concerning matters elicited in the evidence in chief of another party. The judge may permit a party to offer new evidence during rebuttal which could have been offered in the party's case in chief or during a previous rebuttal, but if new evidence is allowed, the other party must be permitted further rebuttal.

(b)       The judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict. (1977, c. 711, s. 1.)

 

§ 15A‑1227.  Motion for dismissal.

(a)       A motion for dismissal for insufficiency of the evidence to sustain a conviction may be made at the following times:

(1)       Upon close of the State's evidence.

(2)       Upon close of all the evidence.

(3)       After return of a verdict of guilty and before entry of judgment.

(4)       After discharge of the jury without a verdict and before the  end of the session.

(b)       Failure to make the motion at the close of the State's evidence or after all the evidence is not a bar to making the motion at a later time as provided in subsection (a).

(c)       The judge must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed.

(d)       The sufficiency of all evidence introduced in a criminal case is reviewable on appeal without regard to whether a motion has been made during trial, as provided in G.S. 15A‑1446(d)(5). (1977, c. 711,  s. 1.)

 

§ 15A‑1228.  Notes by the jury.

Except where the judge, on the judge's own motion or the motion of any party, directs otherwise, jurors may make notes and take them into the jury room during their deliberations. (1977, c. 711, s. 1; 1993, c. 498.)

 

§ 15A‑1229.  View by jury.

(a)       The trial judge in his discretion may permit a jury view. If a view is ordered, the judge must order the jury to be conducted to the place in question in the custody of an officer. The officer must be instructed to permit no person to communicate with the jury on any subject connected with the trial, except as provided in subsection (b), nor to do so himself, and to return the jurors to the courtroom without unnecessary delay or at a specified time. The judge, prosecutor, and counsel for the defendant must be present at the view by the jury. The defendant is entitled to be present at the view by the jury.

(b)       A judge in his discretion may permit a witness under oath to testify at the site of the jury view and point out objects and physical characteristics material to his testimony. The testimony must be recorded. (1977, c. 711, s. 1.)

 

§ 15A‑1230.  Limitations on argument to the jury.

(a)       During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.

(b)       Length, number, and order of arguments allotted to the parties are governed by G.S. 84‑14. (1977, c. 711, s. 1.)

 

§ 15A‑1231.  Jury instructions.

(a)       At the close of the evidence or at an earlier time directed by the judge, any party may tender written instructions. A party tendering instructions must furnish copies to the other parties at the time he tenders them to the judge.

(b)       Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the  judge to comply fully with the provisions of this subsection does not  constitute grounds for appeal unless his failure, not corrected prior  to the end of the trial, materially prejudiced the case of the defendant.

(c)       After the arguments are completed, the judge must instruct the jury in accordance with G.S. 15A‑1232.

(d)       All instructions given and tendered instructions which have been refused become a part of the record. Failure to object to an erroneous instruction or to the erroneous failure to give an instruction does not constitute a waiver of the right to appeal on that error in accordance with G.S. 15A‑1446(d)(13). (1977, c. 711, s. 1; 1983, c. 635.)

 

§ 15A‑1232.  Jury instructions; explanation of law; opinion prohibited.

In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence. (1977, c. 711, s. 1; 1985, c. 537, s. 1.)

 

§ 15A‑1233.  Review of testimony; use of evidence by the jury.

(a)       If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence  to the evidence requested.

(b)       Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, he must, upon request, instruct the jury not to conduct any experiments with the exhibit. (1977, c. 711, s. 1.)

 

§ 15A‑1234.  Additional instructions.

(a)       After the jury retires for deliberation, the judge may give appropriate additional instructions to:

(1)       Respond to an inquiry of the jury made in open court; or

(2)       Correct or withdraw an erroneous instruction; or

(3)       Clarify an ambiguous instruction; or

(4)       Instruct the jury on a point of law which should have been covered in the original instructions.

(b)       At any time the judge gives additional instructions, he may also give or repeat other instructions to avoid giving undue prominence to the additional instructions.

(c)       Before the judge gives additional instructions, he must inform  the parties generally of the instructions he intends to give and afford them an opportunity to be heard. The parties upon request must be permitted additional argument to the jury if the additional instructions change, by restriction or enlargement, the permissible verdicts of the jury. Otherwise, the allowance of additional argument is within the discretion of the judge.

(d)       All additional instructions must be given in open court and must be made a part of the record. (1977, c. 711, s. 1.)

 

§ 15A‑1235.  Length of deliberations; deadlocked jury.

(a)       Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.

(b)       Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:

(1)       Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(2)       Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(3)       In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(4)       No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

(c)       If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

(d)       If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury. (1977, c. 711, s. 1.)

 

§ 15A‑1236.  Admonitions to jurors; regulation and separation of jurors.

(a)       The judge at appropriate times must admonish the jurors that it is their duty:

(1)       Not to talk among themselves about the case except in the jury room after their deliberations have begun;

(2)       Not to talk to anyone else, or to allow anyone else to talk with them or in their presence about the case and that they must report to the judge immediately the attempt of anyone to communicate with them about the case;

(3)       Not to form an opinion about the guilt or innocence of the defendant, or express any opinion about the case until they begin their deliberations;

(4)       To avoid reading, watching, or listening to accounts of the trial; and

(5)       Not to talk during trial to parties, witnesses, or counsel.

The judge may also admonish them with respect to other matters which he considers appropriate.

(b)       The judge in his discretion may direct that the jurors be sequestered.

(c)       If the jurors are committed to the charge of an officer, he must be sworn by the clerk to keep the jurors together and not to permit any person to speak or otherwise communicate with them on any subject connected with the trial nor to do so himself, and to return the jurors to the courtroom as directed by the judge. (1977, c. 711, s. 1; 1977, 2nd Sess., c. 1147, s. 3.)

 

§ 15A‑1237.  Verdict.

(a)       The verdict must be in writing, signed by the foreman, and made a part of the record of the case.

(b)       The verdict must be unanimous, and must be returned by the jury in open court.

(c)       If the jurors find the defendant not guilty on the ground that  he was insane at the time of the commission of the offense charged, their verdict must so state.

(d)       If there are two or more defendants, the jury must return a separate verdict with respect to each defendant. If the jury agrees upon a verdict for one defendant but not another, it must return that  verdict upon which it agrees.

(e)       If there are two or more offenses for which the jury could return a verdict, it may return a verdict with respect to any offense, including a lesser included offense on which the judge charged, as to  which it agrees. (1977, c. 711, s. 1.)

 

§ 15A‑1238.  Polling the jury.

Upon the motion of any party made after a verdict has been  returned and before the jury has dispersed, the jury must be polled. The judge may also upon his own motion require the polling of the jury. The poll may be conducted by the judge or by the clerk by asking each juror individually whether the verdict announced is his verdict. If upon the poll there is not unanimous concurrence, the jury must be directed to retire for further deliberations. (1977, c. 711, s. 1.)

 

§ 15A‑1239.  Judicial comment on verdict.

The trial judge may not comment upon the verdict of a jury in open court in the presence or hearing of any member of the jury panel. If he does so, any defendant whose case is calendared for that session of court is entitled, upon motion, to a continuance of his case to a time when all members of the entire jury panel are no longer serving. (1977, c. 711, s. 1.)

 

§ 15A‑1240.  Impeachment of the verdict.

(a)       Upon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental  processes by which the verdict was determined.

(b)       The limitations in subsection (a) do not bar evidence concerning whether the verdict was reached by lot.

(c)       After the jury has dispersed, the testimony of a juror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a), only when it concerns:

(1)       Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him; or

(2)       Bribery, intimidation, or attempted bribery or intimidation of a juror. (1977, c. 711, s. 1.)

 

§ 15A‑1241.  Record of proceedings.

(a)       The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:

(1)       Selection of the jury in noncapital cases;

(2)       Opening statements and final arguments of counsel to the jury; and

(3)       Arguments of counsel on questions of law.

(b)       Upon motion of any party or on the judge's own motion, proceedings excepted under subdivisions (1) and (2) of subsection (a)  must be recorded. The motion for recordation of jury arguments must be made before the commencement of any argument and if one argument is recorded all must be. Upon suggestion of improper argument, when no recordation has been requested or ordered, the judge in his discretion may require the remainder to be recorded.

(c)       When a party makes an objection to unrecorded statements or other conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible,  the matter to which objection was made.

(d)       The trial judge may review the accuracy of the reporter's record of the proceedings, but may not make substantive changes in the transcript concerning his charge, rulings, and comments without notice to the State, the defense, and the reporter. When any correction of a transcript is ordered made by a judge, each party is entitled to receive, upon request, a copy of the transcript indicating the text as submitted by the reporter and as changed by the judge. Upon motion of any party, the judge must afford the parties a hearing upon any change ordered by the judge. (1977, c. 711, s. 1.)

 

§ 15A‑1242.  Defendant's election to represent himself at trial.

A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:

(1)       Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

(2)       Understands and appreciates the consequences of this decision; and

(3)       Comprehends the nature of the charges and proceedings and the range of permissible punishments. (1977, c. 711, s. 1.)

 

§ 15A‑1243.  Standby counsel for defendant representing himself.

When a defendant has elected to proceed without the assistance of counsel, the trial judge in his discretion may determine that standby counsel should be appointed to assist the defendant when called upon and to bring to the judge's attention matters favorable to the defendant upon which the judge should rule upon his own motion. Appointment and compensation of standby counsel shall be in accordance with rules adopted by the Office of Indigent Defense Services. (1977, c. 711, s. 1; 2000‑144, s. 30.)

 

§§ 15A‑1244 through 15A‑1250.  Reserved for future codification purposes.