IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-75
Filed: 5 July 2017
Duplin County, Nos. 13 CRS 050960-61
STATE OF NORTH CAROLINA
v.
MARIE ANTOINETTE LYNCH
Appeal by defendant from judgments entered 17 December 2015 by Judge
Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals
7 June 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Barry Bloch,
for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for defendant.
DIETZ, Judge.
Defendant Marie Antoinette Lynch appeals her conviction and sentence on
multiple drug trafficking charges. She argues that the trial court should have
declared a mistrial after a prospective juror, in the presence of the rest of the jury
pool, stated that “I’ve seen her (Lynch) around” and “I believe she did it.” The trial
court immediately dismissed that prospective juror and gave a lengthy curative
instruction to the jury pool.
As explained below, in light of the trial court’s curative instruction, the trial
court’s decision not to declare a mistrial was within the court’s sound discretion.
STATE V. LYNCH
Opinion of the Court
Lynch also argues that the there is a clerical error in the judgment form
because the court indicated that it would arrest judgment on the trafficking by
delivery charge but failed to do so on the judgment form. We reject this argument
because, although the court indeed indicated that it was “going to arrest judgment”
on that charge at trial, at the sentencing hearing the court stated that it would
instead consolidate all the trafficking charges into a single sentence. Thus, to the
extent there is an error in the court’s judgment, it is not a clerical one. Because this
is the only ground on which Lynch challenges her sentence on appeal, we find no error
in the trial court’s judgment.
Facts and Procedural History
The State indicted Lynch for a number of drug trafficking offenses involving
the sale of opium. The jury acquitted Lynch of some charges but found her guilty of
trafficking in opium by sale; trafficking in opium by delivery; trafficking in opium by
possession; and a number of related charges. The jury also found Lynch guilty of
attaining habitual felon status.
Lynch was present for the first day of trial but failed to appear on later days.
After the jury returned the verdict, the court continued the proceeding in order to
sentence Lynch when she was present. Several weeks later, with Lynch present, the
court consolidated the three trafficking convictions and sentenced her to 70 to 93
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STATE V. LYNCH
Opinion of the Court
months in prison for those charges and a concurrent sentence of 67 to 93 months in
prison on other related charges. Lynch timely appealed.
Analysis
I. Motion for Mistrial
Lynch first argues that the trial court erred by denying her motion for a
mistrial after a prospective juror stated in the presence of the jury pool that he had
seen Lynch around and “I believe she did it.” Lynch contends that the prospective
juror’s statement prejudiced the jury and that the trial court failed to conduct an
adequate inquiry of all jurors to determine whether they heard the statement, the
effect of such statement, and whether they could disabuse their minds of the harmful
effects of the comments. We disagree.
It is well established that “[t]he judge must declare a mistrial upon the
defendant’s motion if there occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant’s case.” State v. McCollum, 157 N.C. App. 408,
415,
579 S.E.2d 467, 471 (2003), aff’d,
358 N.C. 132,
591 S.E.2d 519 (2004). But “[t]he
decision whether to grant a motion for mistrial rests within the sound discretion of
the trial judge and will not ordinarily be disturbed on appeal absent a showing of
abuse of that discretion.” State v. Boyd,
321 N.C. 574, 579,
364 S.E.2d 118, 120 (1988).
“An abuse of discretion occurs only upon a showing that the judge’s ruling was so
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STATE V. LYNCH
Opinion of the Court
arbitrary that it could not have been the result of a reasoned decision.” State v.
Salentine, 237 N.C. App. 76, 81,
763 S.E.2d 800, 804 (2014) (citation and quotation
marks omitted).
Here, a prospective juror made the unsolicited statement during jury selection
that “I’ve seen her around Beulaville, I believe she did it.” Lynch then moved for a
mistrial, arguing that the statement irreparably prejudiced the jury. The trial court
denied Lynch’s motion and indicated that it would instruct the jury to cure any
potential for prejudice. The court dismissed the juror who made the comment.
The trial court later instructed the jury pool as follows:
All right. Ladies and gentlemen of the jury pool, I’m
gonna give you an instruction. I’ve already instructed you
earlier, but I’m going to instruct you again that the
Defendant has entered a plea of not guilty. Under our
system of justice a Defendant who pleads not guilty is not
required to prove their innocence, but is presumed to be
innocent. This presumption remains with the Defendant
throughout the trial until the jury selected to hear the case
is convinced from the facts and the law beyond a reasonable
doubt of the guilt of the Defendant. The burden of proof is
on the State to prove to you that the Defendant is guilty
beyond a reasonable doubt.
There’s no burden or duty of any kind on the
Defendant. The mere fact that a Defendant has been
charged with a crime is no evidence of guilt. The charge is
merely the mechanical or administrative way by which any
person is brought to a trial.
At this point, ladies and gentlemen, you are to
disregard any statement that juror number nine made
during this jury selection. You are not to consider any
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STATE V. LYNCH
Opinion of the Court
statement made by any juror during this jury selection if
you are chosen to sit as a juror and hear the evidence in
this case.
From the record, we see no indication that Lynch asked the trial court to
conduct an inquiry into whether the statement was heard by other potential jury
members, the effect of such statement, and whether the prospective jurors could
disabuse their minds of any prejudice resulting from the statement.
Lynch cites State v. Mobley, 86 N.C. App. 528,
358 S.E.2d 689 (1987), for the
proposition that the prejudicial effect of the prospective juror’s statement was obvious
and required a mistrial as a matter of law. In Mobley, a potential juror who identified
himself as a police officer stated that he had “dealings with the defendant on similar
charges.”
Id. at 532,
358 S.E.2d at 691. The trial court excused the juror and
instructed the jury that they “strike from their mind any reference the officer may
have made to the defendant because it is not evidence in the case. Completely strike
it out.”
Id. at 533,
358 S.E.2d at 691. The defendant moved to dismiss the jurors based
on the officer’s statements and the trial court denied the motion.
Id. at 533, 358
S.E.2d at 691–92. This Court held that the defendant was entitled to a new trial
because the potential prejudice was obvious and the trial court should have dismissed
the jury pool and started over:
A statement by a police officer-juror that he knows the
defendant from “similar charges” is likely to have a
substantial effect on other jurors. The potential prejudice
to the defendant is obvious. On the defendant’s motion to
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STATE V. LYNCH
Opinion of the Court
dismiss the other jurors, the trial court, at the least, should
have made inquiry of the other jurors as to the effect of the
statement. The more prudent option for the trial court
would have been to dismiss the jurors who heard the
statement and start over with jury selection. In any event,
the attempted curative instruction was simply not
sufficient.
Id. at 533–34,
358 S.E.2d at 692.
Lynch also cites State v. Howard, 133 N.C. App. 614,
515 S.E.2d 740 (1999), a
case that followed Mobley. In Howard, a prospective juror stated that she had worked
at the county jail and knew one of the defendants “from there.”
Id. at 615,
515 S.E.2d
at 741. The trial court dismissed some jurors who heard the response and had already
been seated but kept another juror who might have heard the statement. Citing
Mobley, this Court again ordered a new trial, explaining that “[w]e do not perceive
any sound reason to distinguish the situation in the case before us from that in
Mobley.”
Id. at 618–19,
515 S.E.2d at 743.
We find these two cases distinguishable for several reasons. First, the
prospective jurors who made the statements in Mobley and Howard were employed
in the criminal justice system and thus their familiarity with those defendants and
their criminal past likely carried more weight—and thus more potential for
prejudice—than an ordinary citizen who merely knew the defendant from the
community.
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STATE V. LYNCH
Opinion of the Court
Second, the comments from the prospective jurors in Mobley and Howard
indicated that the defendants in those cases had a criminal history. Because people
assume (often incorrectly) that those with a criminal history are more likely to
commit future crimes, knowledge that a defendant has a criminal past poses a
significant risk of prejudice. Indeed, it is precisely because of these concerns that the
Rules of Evidence restrict the State’s ability to inform jurors of a defendant’s criminal
history or prior bad acts. See N.C. R. Evid. 404; State v. Carpenter, 361 N.C. 382, 387–
88,
646 S.E.2d 105, 109–10 (2007).
Here, by contrast, the prospective juror stated only that he “believed” Lynch
was guilty based on his familiarity with her in the community, without stating any
specific reasons why. This is critical because it meant the jury had not learned any
facts about Lynch that were outside the record in this case. They heard only the
unsupported speculation of a fellow citizen.
Finally, the trial court in this case took extensive steps to remove any risk of
prejudice by giving a lengthy curative instruction to ensure that the jury understood
they must base their decision on the evidence presented, not on the unsupported
speculation of the dismissed juror.
We note that the remark by the dismissed juror was not recorded, but that the
parties agree it was made in the presence of the trial judge. Trial judges are uniquely
situated to assess the potential prejudice of this sort of unsolicited statement by a
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STATE V. LYNCH
Opinion of the Court
member of the jury pool. In light of the trial court’s curative instruction, we hold that
the trial court acted well within its sound discretion in denying Lynch’s motion for a
mistrial. Accordingly, we reject Lynch’s argument.
II. Alleged Clerical Error in the Judgment
Lynch next argues that there is a clerical error in the trial court’s judgments
and we must remand the judgment to correct that error. Again, we disagree.
“A clerical error is defined as an error resulting from a minor mistake or
inadvertence, especially in writing or copying something on the record, and not from
judicial reasoning or determination.” State v. Gillespie, 240 N.C. App. 238, 245,
771
S.E.2d 785, 790, rev. denied,
368 N.C. 353,
777 S.E.2d 62 (2015) (internal quotation
marks and brackets omitted). “Generally, clerical errors include mistakes such as
inadvertent checking of boxes on forms . . . or minor discrepancies between oral
rulings and written orders . . . .” In re D.D.J.,
177 N.C. App. 441, 444,
628 S.E.2d 808,
811 (2006).
Here, although the trial court stated after the jury returned the verdict that it
was “going to arrest judgment” on the trafficking by delivery charge, the court did not
pronounce the sentence at that time because Lynch failed to appear after the first
day of trial. At the sentencing hearing several weeks later, with Lynch present, the
trial court announced that the jury found Lynch “guilty of Counts I, II, and III of
trafficking in opium.” Those counts were the charges of trafficking by sale, trafficking
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STATE V. LYNCH
Opinion of the Court
by delivery, and trafficking by possession. The court then stated that it was “going to
consolidate the trafficking offenses into one judgment.” The judgment form reflects
that these three offenses were consolidated and that Lynch received a single,
consolidated sentence for the three offenses.
On these facts, the trial court’s failure to arrest judgment on the delivery
offense was not a mere clerical error. This is not a case in which the judgment failed
to conform to the court’s oral ruling in a manner that suggests a mistake in
recordation. Rather, despite having previously indicated that it would arrest
judgment on the delivery offense, when it announced its judgment at the sentencing
hearing, the court stated that it would consolidate “Counts I, II, and III”—meaning
all three trafficking offenses including Count II, the delivery offense. The judgment
accurately reflects that oral pronouncement. Thus, at most, the judgment reflects an
inconsistency between two separate judicial pronouncements by the trial court. To
the extent this is an error, it is not a clerical one. See State v. Jarman, 140 N.C. App.
198, 202,
535 S.E.2d 875, 878 (2000).
The dissent rightly observes that our Supreme Court has instructed us to “err
on the side of caution and resolve in the defendant’s favor the discrepancy between
the trial court’s statement in open court, as revealed by the transcript, and the
sentencing form.” State v. Morston, 336 N.C. 381, 410,
445 S.E.2d 1, 17 (1994). But
this case involves more than a mere discrepancy between the court’s oral
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STATE V. LYNCH
Opinion of the Court
pronouncement and the judgment form; it involves a discrepancy between two
separate oral pronouncements. If that type of inconsistency were treated as clerical
in nature, it would greatly expand the ability of this Court to vacate and remand
judgments without a showing of actual error and accompanying prejudice—
something this Court has long required before vacating a trial court’s judgment.
Accordingly, we reject Lynch’s argument that the court’s judgment contains a clerical
error.
Finally, we note that the reason the court initially stated that it would arrest
judgment on the delivery charge was Lynch’s argument (made at the conclusion of
the trial but not at the sentencing hearing) that sentencing a defendant for both sale
and delivery of the same controlled substance violates the Double Jeopardy Clause.
Lynch does not assert a Double Jeopardy argument on appeal, instead relying solely
on the clerical error argument. This Court is not permitted to address arguments not
raised on appeal. N.C. R. App. P. 28(b)(6). Thus, we cannot address any potential
constitutional concerns with the judgment. But because the trial court consolidated
the trafficking offenses into a single sentence, there does not appear to be any
prejudicial effect from the failure to arrest judgment on the delivery charge. In any
event, to the extent Lynch wishes to pursue this issue, the proper vehicle to do so is
a motion for appropriate relief in the trial court.
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STATE V. LYNCH
Opinion of the Court
Conclusion
We find no error in the trial court’s judgment.
NO ERROR.
Judge ELMORE concurs.
Judge ARROWOOD concurring in part and dissenting in part, with separate
opinion.
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No. COA17-75 – State v. Lynch
ARROWOOD, Judge, concurring in part and dissenting in part.
I concur in the portion of the majority’s opinion finding no error with respect
to the issue related to defendant’s motion for a mistrial. I dissent from the majority’s
holding that the matter should not be remanded for correction of a clerical error.
In the second issue on appeal, defendant argues that the judgment in case
number 13 CRS 050960 should be remanded for correction of a clerical error.
“A clerical error is [a]n error resulting from a minor mistake or inadvertence,
[especially] in writing or copying something on the record, and not from judicial
reasoning or determination.” State v. Lark, 198 N.C. App. 82, 95,
678 S.E.2d 693, 702
(2009) (citation and internal quotation marks omitted), disc. rev. denied,
363 N.C.
808,
692 S.E.2d 111 (2010). “It is universally recognized that a court of record has
the inherent power and duty to make its records speak the truth. It has the power to
amend its records, correct the mistakes of its clerk . . . , and no lapse of time will debar
the court of the power to discharge this duty.” State v. Cannon,
244 N.C. 399, 403,
94 S.E.2d 339, 342 (1956). Our Courts have stated that “[w]hen, on appeal, a clerical
error is discovered in the trial court’s judgment or order, it is appropriate to remand
the case to the trial court for correction because of the importance that the record
‘speak the truth.’ ” State v. Smith,
188 N.C. App. 842, 845,
656 S.E.2d 695, 696-97
(2008) (quoting State v. Linemann,
135 N.C. App. 734, 738,
522 S.E.2d 781, 784
(1999)). In State v. Jarman,
140 N.C. App. 198,
535 S.E.2d 875 (2000), this Court
stated: “[w]here there has been uncertainty in whether an error was ‘clerical,’ the
STATE V. LYNCH
ARROWOOD, J., concurring in part and dissenting in part.
appellate courts have opted to ‘err on the side of caution and resolve [the discrepancy]
in the defendant’s favor.’ ” Id. at 203,
535 S.E.2d at 879 (quoting State v. Morston,
336 N.C. 381, 410,
445 S.E.2d 1, 17 (1994)).
Defendant’s judgment in case number 13 CRS 050960 lists three trafficking
convictions: trafficking opium by sale, trafficking opium by delivery, and trafficking
opium by possession. However, the trial court stated on 4 December 2015,
immediately after the jury returned its verdict, that it intended to arrest judgment
on the trafficking in opium by delivery conviction.
[DEFENSE COUNSEL]: Your Honor, as to 12 CRS 50960,
the December 17, 2012 offense, we would move to arrest
judgment on the count two of the trafficking by delivery. I
think there’s some case law that says you can’t be convicted
or at least can’t be sentenced for delivery and sale.
THE COURT: And a sale. All right. Wish to be heard?
[THE STATE]: No, Your Honor.
THE COURT: All right. Court is going to arrest judgment
on 12 CRS 50960, count two, trafficking in opium by
delivery. All right.
Due to defendant’s absence during trial, the court entered a prayer for
judgment continued and an order for defendant’s arrest with no bond. Defendant was
subsequently arrested, and on 17 December 2015, the trial court commenced the
sentencing hearing. The State, without mentioning the trial court’s earlier ruling
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STATE V. LYNCH
ARROWOOD, J., concurring in part and dissenting in part.
that it would arrest judgment as to count two of the trafficking charges, informed the
trial court as follows:
[THE STATE:] . . . . As you recall, Your Honor, the
defendant was tried and convicted the week of
November 30, 2015 in this courtroom in front of Your
Honor, for three counts of tra[ffi]cking in opium or heroin
or felony maintaining a place for keeping a controlled
substance, possession of drug paraphernalia, and
possession with intent to manufacture, sell, or deliver a
Schedule II controlled substance. And a jury also found
there were aggravating factors as related to this case. And
the jury also found that she had reached the status of an
habitual felon.
Thereafter, the trial court consolidated the trafficking convictions and sentenced
defendant to a term of 70 to 93 months.
The State argues on appeal that the trial court “appears to have corrected its
earlier ruling that it would be arresting judgment on one of the trafficking
convictions.” However, there is no indication in the record to support this contention.
In addition, this argument fails because the trial court’s oral ruling appears to be
consistent with the North Carolina Supreme Court’s ruling in State v. Moore, 327
N.C. 378,
395 S.E.2d 124 (1990). In Moore, the Supreme Court held that while a
defendant may be indicted and tried under
N.C. Gen. Stat. § 90-95(a)(1) for the
transfer of a controlled substance, whether it be by selling, delivering, or both, a
defendant could not be convicted of both the sale and delivery of a controlled
substance arising from a single transfer. Id. at 382,
395 S.E.2d at 127.
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STATE V. LYNCH
ARROWOOD, J., concurring in part and dissenting in part.
In Morston, supra, the signed judgment did not comport with the trial court’s
statements in the transcript and our Supreme Court stated, “we believe that the
better course is to err on the side of caution and resolve in the defendant’s favor the
discrepancy between the trial court’s statement in open court, as revealed by the
transcript, and the sentencing form.” Morston, 336 N.C. at 410, 445 S.E.2d at 17.
In light of the principle set forth by our Supreme Court that the better course
is to resolve a discrepancy in defendant’s favor, combined with the fact that the trial
court made no statement suggesting that it had changed its previous ruling arresting
judgment on count two which appears to be consistent with the interpretation of the
law as discussed in Moore, I would find that the judgment in case 13 CRS 050960
fails to correctly reflect the trial court’s ruling in open court. Accordingly, I would
find that the trial court’s written judgment contains a clerical error and remand the
case to the trial court for correction of this error.
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