State v. Nelson

462 S.E.2d 225 (1995)

341 N.C. 695

STATE of North Carolina v. Gary Dean NELSON.

No. 199A94.

Supreme Court of North Carolina.

October 6, 1995.

*226 Michael F. Easley, Attorney General by William N. Farrell, Jr., Senior Deputy Attorney General, and Ellen B. Scouten, Assistant Attorney General, for the State-appellant.

Geoffrey C. Mangum, Greensboro, for defendant-appellee.

WEBB, Justice.

The defendant contends and the Court of Appeals held it was error not to submit to the jury the lesser included offense of attempted second-degree rape. The Court of Appeals, relying on State v. Williams, 314 N.C. 337, 333 S.E.2d 708 (1985), said the defendant's unequivocal denial that a penetration had occurred required the court to submit the lesser included offense to the jury.

We have held that a lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense. A denial by the defendant that he committed the crime is not sufficient to submit a lesser included offense. State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983).

Where there is conflicting evidence as to an essential element of the crime charged, the court should instruct the jury with regard to any lesser included offense supported by any version of the evidence. If the lesser included offense is not supported by the evidence, it should not be submitted, regardless of conflicting evidence.

State v. Jones, 304 N.C. 323, 331, 283 S.E.2d 483, 488 (1981).

When the rule is applied in this case, we believe it was error for the Court of Appeals to hold the lesser included offense should have been submitted. The State submitted positive evidence of every element of the crime. The defendant testified that the event was consensual. This is not evidence of attempted rape. If the jury had believed the defendant's evidence, he would have been found not guilty. The defendant did not present evidence of a lesser included offense. If the lesser included offense of attempted second-degree rape had been submitted to the jury, the defendant could have been convicted of a crime which neither party's evidence would support.

The rule that a jury can believe all, part, or none of a party's evidence, State v. Faircloth, 297 N.C. 388, 255 S.E.2d 366 (1979), does not help the defendant. It does not apply when to let it do so could result in the jury's finding of guilt of a crime which is not supported by the evidence of either party.

We can understand why the Court of Appeals reached the result which it did. In Williams, 314 N.C. at 353, 333 S.E.2d at 719, we noted that had "the defendant unequivocally denied the essential element of penetration," the court should have submitted to the jury the lesser included offense of attempted rape. That language was appropriate in the context of that case but it is not applicable here.

We reverse the Court of Appeals on this issue.

In its next argument, the State asserts that the Court of Appeals erred by determining that the court's meeting with the jury foreman out of the presence of the other eleven jurors constituted reversible error. During jury deliberations, the court made the following statement:

[B]efore we bring the jury in, Ms.the bailiff[,] brought me a note just a few moments ago, counsel, from the jury in which they've listed four things. It's kind of a cryptic note. It reads as follows: "One, photos. Two, underwear. Three, medical reports. Four, rose." And if counsel wishes to see the note

*227 After discussions with counsel for both parties, the court stated, "All right, in order to determine what underwear they're referring to, because they didn't tell me, I'm going to ask them to come outI'll ask the foreperson only to come out." The foreman came to the jury box and engaged in the following colloquy:

THE COURT:I want to just clarify one thing.... I have a note given me by the bailiff which lists four items that the jury wishes to see. One is photographs. JUROR NO. 9:Yes, sir. THE COURT:Two says underwear, three says medical reports, and four says rose. JUROR NO. 9:Yes. THE COURT:Do youdoes the jury wish to see all of the photographs? JUROR NO. 9:-I think they more meant the photographs that were laying [sic] out right in front of us just before we went in. THE COURT:Okay. Mr. Cahoon and Mr. Panosh, I'm going to send back all of the photographs. I don't know which ones were laying out there, but I'll let you have all of the photographs. When you say "underwear," are you referring to a particular item? JUROR NO. 9:Ms. Shavers' underwear. THE COURT:The red JUROR NO. 9:The red T-bar. THE COURT:You will be allowed to get that. Medical reports, you're referring to all of the medical reports, that is, both the defendant's exhibitsand I don't know if the State had any marked or not. MR. PANOSH:Yes, sir. THE COURT:All of the reports referring to medical reports, is that correct? JUROR NO. 9:Yes. I polled the room asking individuals THE COURT:Don't tell me that. Just tell me yes or no what you want. Just all the medical reports, too? JUROR NO. 9:Yes, sir. THE COURT:I'll give you that. And the rose was the only other item? JUROR NO. 9:Yes, sir.

The court then asked counsel for both parties to go through the exhibits and collect those items requested by the jury, which they did. While counsel were selecting the exhibits, the court addressed the foreman, saying:

I would ask you, of course, when these items are in the jury's possession back in the jury room, do not alter or change them in anyway. Don't make any marks on them. Don't do anything in that regard. You may examine them, but don't alter or change them in anyway, please.

After a brief discussion about how those items not enclosed in containers would be handled, the trial court made the following statement for the record:

All right, let the record reflect that the items requested by the jury were given to the jury in open court by tendering them to the foreperson; that the defendant and his attorney and the State's attorney was [sic] present, and that this was done in accordance with the procedure suggested by Mr. Cahoon.

The defendant did not object to the action of the court. Although the State concedes that the failure to object does not prevent the defendant from appealing, State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), it contends the defendant consented to this procedure and cannot now complain of it. It bases this argument on the fact that the defendant did not object when the court said it would ask only the foreman to return to the courtroom and the court's statement after it had sent the items to the jury room that it "was done in accordance with the procedure suggested by" defense counsel. This is not sufficient to show the defendant consented to the procedure. The matter is appealable.

It was error not to require all the jurors to return to the courtroom for the questions in regard to the exhibits. N.C.G.S. § 15A-1233(a) (1988); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652. The question is whether this was harmless error.

In Ashe, we held that the failure to require all jurors to return to the courtroom to ask a *228 question of the court violates not only N.C.G.S. § 15A-1233 but also the unanimous verdict requirement of Article I, Section 24 of the North Carolina Constitution. In State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), we held that in order to hold harmless an error based on a violation of the North Carolina Constitution, the State must show that the error was harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if it did not contribute to the defendant's conviction.

The State argues that State v. McLaughlin, 320 N.C. 564, 359 S.E.2d 768 (1987), governs and under that case the harmless error test is found in N.C.G.S. § 15A-1443(a), which is whether "there is a reasonable possibility that had the error in question not been committed, a different result would have been reached." In McLaughlin, we explained that there was only a statutory and not a constitutional violation. For that reason, we applied the test of N.C.G.S. § 15A-1443(a). In this case, there is constitutional error and we must apply the test delineated in Huff.

We believe the State has carried its burden of showing the error was harmless beyond a reasonable doubt. All the exhibits which were given to the jury had been introduced into evidence. The court did not give any instructions to the foreman except not to alter or change the exhibits. The court did not give any instructions on the law which could have been misinterpreted by the foreman to the jury. The court questioned the foreman as to what exhibits the jury wanted. The jury was given what the foreman said they wanted. We do not see how this could have been misinterpreted by the jury.

The exhibits sent to the jury room were innocuous. The photographs were of the club and the scene where the alleged crimes occurred. They added nothing to the credibility of any of the witnesses. The underwear requested by the jury was the victim's "red T-bar." This was the victim's costume, which she wore while dancing. She was not wearing it when the incident in question occurred. It should not have influenced the jury. All the medical reports sent to the jury, except one page, were introduced at trial by the defendant. We do not see how the defendant was prejudiced by allowing the jury to see evidence he had introduced. The rose was a flower the victim carried from the club and dropped when the incident occurred. It should not have affected the reasoning of the jury.

We do not see how the error in not requiring all the jurors to be in the courtroom to ask for the exhibits contributed to the conviction of the defendant. The error was harmless beyond a reasonable doubt.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand to that court for further remand to the Superior Court, Guilford County, for the reinstatement of its judgments.

REVERSED AND REMANDED.