IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1323
Filed: 5 June 2018
Wake County, No. 15 CRS 210656
STATE OF NORTH CAROLINA
v.
RODNEY VENEY
Appeal by defendant from judgment entered 21 March 2017 by Judge Donald
W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 17 May
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew L.
Liles, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
TYSON, Judge.
Rodney Veney (“Defendant”) appeals from judgments entered upon his
convictions for three counts of assault with a deadly weapon inflicting serious injury.
Defendant argues the trial court committed a structural error by instructing
prospective jurors outside the presence of defense counsel, which deprived him of his
Sixth Amendment right to counsel. The State has proved the conceded error was
harmless beyond a reasonable doubt.
I. Background
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Opinion of the Court
Defendant was charged with assault with a deadly weapon with the intent to
kill inflicting serious injury (“AWDWIKISI”) for stabbing Valerie Wright on 12 May
2015. On 6 July 2015, a grand jury returned a true bill of indictment. On 17 August
2015, the grand jury returned a superseding indictment charging Defendant with
three counts of AWDWIKISI for stabbing Valerie Wright, Krystal Octetree and
Dahmon Scott. The three charges of AWDWIKISI were joined for trial with other
charges from a different indictment for first-degree burglary and conspiracy to
commit felonious assault.
Defendant was tried before a jury on the 5 December 2016. During the voir
dire portion of jury selection, the trial court called a recess. While waiting to resume
jury selection, and while Defendant’s trial counsel was outside of the courtroom, the
trial court gave the following instruction to the prospective juror pool, which
Defendant contests on appeal:
COURT: While [defense counsel’s] gone, let me give you
some instructions, all of you, if you happen to sit on this
jury, you’re picked for this jury.
As you’ve been told by the lawyers and by me, you have to
try this case based on what you hear in the courtroom
uninfluenced by any outside factor whatsoever. This case
must be tried based upon the evidence presented and the
law as I give it to you.
I was licensed to practice law in 1970. That’s 46 years. At
that time, the largest office in the law firm was the law
library. Now lawyers walk around with a law library on
their cell phone. Okay? Which means it gives them access
to the law, and it gives you access to the law or access to
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Opinion of the Court
anything you want to know. If something comes up in the
case, I mean, you could Google “burglary” and get some
kind of definition.
The reason I say that to you is just to remind you please
don’t do that. Please don’t do that. Okay? Please don’t do
any research on your own. Don’t go to any alleged crime
scene. Don’t read the law. If something comes up during
the testimony with reference to forensic evidence from the
City-County Bureau of Investigation, don’t Google the term
or whatever.
You’re not investigators. You’re jurists. Everything you
need to know you’ll hear in the presentation of the evidence
or in the legal principles that I will describe to you. So
please don’t resort to any matter of investigation on your
own. Don’t read any law. Don’t do any research. Don’t do
anything of that nature please. You’re instructed not to.
The Supreme Court has advised me to tell you that that
would be improper.
On 9 December 2016, the jury returned verdicts finding Defendant not guilty
of first-degree burglary, not guilty of conspiracy to commit felonious assault, but
guilty of three counts of assault with a deadly weapon inflicting serious injury
(“AWDWISI”). The trial court sentenced Defendant to three consecutive sentences of
twenty-six months to forty-four months imprisonment. Defendant’s trial counsel
gave oral notice of appeal in open court.
II. Jurisdiction
Jurisdiction lies in this Court from an appeal of a final judgment of the superior
court in a criminal case based upon the jury’s convictions of Defendant following pleas
of not guilty. N.C. Gen. Stat. §§ 7A-27(b), 15A-1444(a) (2017).
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III. Standard of Review
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214,
683 S.E.2d 437, 444 (2009) (citing
State v. Tate,
187 N.C. App. 593, 599,
653 S.E.2d 892, 897 (2007)).
Structural error is a rare form of constitutional error
resulting from structural defects in the constitution of the
trial mechanism which are so serious that a criminal trial
cannot reliably serve its function as a vehicle for
determination of guilt or innocence.
State v. Garcia, 358 N.C. 382, 409,
597 S.E.2d 724, 744 (2004) (internal citations and
quotation marks omitted). Structural “error[ ] is reversible per se.”
Id.
The Supreme Court of the United States has made “a distinction between
structural errors, which require automatic reversal, and all other errors, which are
subject to harmless-error analysis.” Arnold v. Evatt, 113 F.3d 1352, 1360 (4th Cir.
1997). “The United States Supreme Court emphasizes a strong presumption against
structural error.” State v. Polke,
361 N.C. 65, 74,
638 S.E.2d 189, 195 (citing Neder v.
United States,
527 U.S. 1, 9,
144 L. Ed. 2d 35, 47 (1999)), cert. denied,
552 U.S. 836,
169 L. Ed. 2d 55 (2006).
IV. Analysis
A. Preservation
Defendant’s sole argument is that the trial court committed structural error
by denying him his Sixth Amendment right to counsel by delivering instructions to
potential juror pool during voir dire, while his counsel was absent from the courtroom.
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Opinion of the Court
Defendant does not assert any arguments against the specific content of the disputed
instructions. Defendant conceded at oral arguments before this Court that if the trial
court’s recitation of instructions to the potential jurors was not structural error, then
it was harmless.
Generally, “structural error, no less than other constitutional error, should be
preserved at trial.” Garcia, 358 N.C. at 410,
597 S.E.2d at 745. “Constitutional
questions not raised and passed on by the trial court will not ordinarily be considered
on appeal.” State v. Rawlings,
236 N.C. App. 437, 443-4,
762 S.E.2d 909, 914 (2014)
(citing State v. Tirado,
358 N.C. 551, 571,
599 S.E.2d 515, 529 (2004)). Defendant did
not object at trial to the trial court’s giving of instructions to potential jurors in his
counsel’s absence. “Unpreserved error in criminal cases . . . is reviewed only for plain
error.” State v. Lawrence,
365 N.C. 506, 512,
723 S.E.2d 326, 330 (2012). Defendant
does not assert plain error on appeal. The State conceded at oral arguments on this
matter that it does not contest whether Defendant preserved his argument.
In State v. Colbert, the Supreme Court of North Carolina reviewed a
defendant’s assertion of structural error, based upon the trial court starting jury
selection approximately twenty minutes before the defendant’s counsel had arrived
in the courtroom. State v. Colbert, 311 N.C. 283, 285,
316 S.E.2d 79, 80 (1984). The
Court noted “that defendant did not object to the foregoing procedure; however, he
does bring the alleged error forward by assignment of error and argument in briefs
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Opinion of the Court
before the Court of Appeals and this Court.” The Court proceeded to address the
defendant’s arguments on the merits. Id.
Following our Supreme Court in Colbert and the concession by the State, we
address Defendant’s structural error argument on the merits. See id.
B. Structural Error
The State conceded at oral argument that the trial court erred by giving
instructions to prospective jurors in defense counsel’s absence, but argues that this
error did not amount to structural error and was harmless beyond a reasonable doubt.
The Sixth Amendment to the Constitution of the United States grants
defendants the right to assistance of counsel. U.S. Const. amend. VI. An individual
is entitled to the assistance of counsel in all criminal prosecutions where his liberty
is at stake regardless of whether the offense is “classified as petty, misdemeanor, or
felony[.]” Argersinger v. Hamlin, 407 U.S. 25, 37,
32 L. Ed. 2d 530, 538 (1972). Denial
of counsel during a critical stage is “so likely to prejudice the accused at trial that
their costs of litigating their effect in a particular case is unjustified.” United States
v. Cronic,
466 U.S. 648, 658,
80 L. Ed. 2d 657, 667 (1984).
Structural errors are rare constitutional errors that prevent a criminal trial
from “’reliably serv[ing] its function as a vehicle for determination of guilt or
innocence.’” Garcia, 358 N.C. at 409,
597 S.E.2d at 744 (citation omitted); see Arnold
v. Evatt,
113 F.3d 1352, 1360 (4th Cir. 1997) (stating that “judges should be wary of
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Opinion of the Court
prescribing new structural errors unless they are certain that the error’s presence
would render every trial in which it occurred unfair.”). Our Supreme Court stated:
The United States Supreme Court has identified only six
instances of structural error to date: (1) complete
deprivation of right to counsel, Gideon v. Wainwright, 372
U.S. 335, 9, L. Ed. 2d 799 (1963); (2) a biased trial judge,
Tumey v. Ohio, 273 U.S. 510,
71 L. Ed. 749 (1927); (3) the
unlawful exclusion of grand jurors of the defendant’s race,
Vasquez v. Hillery,474 U.S. 254,
88 L. Ed. 2d 598 (1986);
(4) denial of the right to self-representation at trial,
McKaskle v. Wiggins, 465 U.S. 168,
79 L. Ed. 2d 122 (1984);
(5) denial of the right to a public trial, Waller v. Georgia,
467 U.S. 39,
81 L. Ed. 2d 31 (1984); and (6) constitutionally
deficient jury instructions on reasonable doubt, Sullivan v.
Louisiana, 508 U.S. 275,
124 L. Ed. 2d 182 (1993). See
Johnson v. United States, 520 U.S. 461, 468-69,
137
L.Ed.2d 718, 728 (identifying the six cases in which the
United States Supreme Court has found structural error).
State v. Polke, 361 N.C. 65, 73,
638 S.E.2d 189, 194 (2006).
A critical stage is “a step of a criminal proceeding that . . . [holds] significant
consequences for the accused.” Bell v. Cone, 535 U.S. 685, 696,
152 L. Ed. 2d 914, 927-
28 (2002) (citing Hamilton v. Alabama,
368 U.S. 52, 54,
7 L. Ed. 2d 114 (1961), and
White v. Maryland,
373 U.S. 59, 60,
10 L. Ed. 2d 193, 194 (1963)). Denial of counsel
during a critical stage of trial has been established where there is “complete denial of
counsel . . . if counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Cronic,
466 U.S. at 659,
80 L. Ed. 2d at 668 (1984). The
appropriate remedy is automatic reversal, when counsel is “totally absent . . . during
a critical stage of the proceeding.”
Id. at 659 n. 25,
80 L. Ed. 2d at 668 n. 25. Jury
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Opinion of the Court
selection is a critical stage of the trial. Colbert, 311 N.C. at 285,
316 S.E.2d at 80.
(citing State v. Hayes,
291 N.C. 293,
230 S.E. 2d 146 (1976)).
Defendant asserts that he is entitled to “automatic reversal without any
showing of prejudice” since the trial court violated his Sixth Amendment right to
counsel when the court, in the absence of his counsel, instructed the potential jury
members to abstain from doing independent research regarding the case. In support
of his argument, Defendant relies upon State v. Colbert, in which the Supreme Court
of North Carolina held that the defendant’s Sixth Amendment right to counsel was
violated during a critical stage when the trial court instructed the state to begin jury
voir dire when defense counsel was absent, and thus could never be treated as
harmless error. Id. at 286, 316 S.E.2d at 79, 80-81.
In Colbert, our Supreme Court found structural error where the trial court
allowed the prosecution to question and strike prospective jurors in the defense
counsel’s absence. Id. at 286,
316 S.E.2d at 80-81. Unlike in Colbert where the
defendant was denied his right to counsel during the critical stage of jury selection,
here the challenged instructions were not given during jury selection, but during a
recess.
Id. at 283,
316 S.E.2d at 79. .
The Supreme Court of the United States has recognized that a defendant does
not have an absolute right to consult with counsel during a brief recess. In Perry v.
Leake, the Supreme Court held that a state trial court’s order directing the defendant
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Opinion of the Court
not to consult with his counsel during a fifteen-minute recess following direct
examination of the defendant was not a deprivation of the defendant’s constitutional
right to counsel. Perry v. Leake, 488 U.S. 272, 283-84,
102 L. Ed. 2d 624, 635-36
(1989).
Defendant also asserts the case of State v. Luker supports his structural error
argument. In State v. Luker, our Supreme Court held that where the defendant had
been denied counsel “for the presentation of his evidence and closing arguments at
his trial,” the defendant was denied his Sixth Amendment right to counsel. State v.
Luker, 311 N.C. 301, 301,
316 S.E.2d 309, 309 (1984). This denial of counsel was held
to be reversible error.
Id.
Defendant argues the trial court’s giving of instructions to potential jurors
during voir dire while his counsel was absent, deprived him of his right to counsel at
a critical stage of trial, which like in Luker, requires automatic reversal. Id. At bar,
unlike in Luker, Defendant’s counsel had not withdrawn from the case, but simply
failed to timely return from the morning break at the specified time of 11:37 a.m.
During the two minutes Defendant’s counsel was out of the courtroom, voir
dire did not continue. Instead, the trial court made use of this time to generally
instruct the potential jury members to abstain from site visits or independent
research regarding the case. During these two minutes, neither the court nor the
State questioned prospective jurors. Here, the absence of defense counsel is not
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Opinion of the Court
comparable to the absence of defense counsel in Luker. Examination of a criminal
defendant and closing arguments are both critical stages of a trial that hold
significant consequences for the accused.
During those stages defense counsel has the opportunity to build his client’s
credibility, present his version of the facts and evidence, and argue critical points and
evidence in the case. Here, Defendant’s counsel was absent for two minutes after a
morning recess and the voir dire was resumed when Defendant’s counsel returned to
the courtroom. This short recess was not a critical stage of the trial and did not result
in significant consequences for Defendant. See id.
Presuming, arguendo, and as the State concedes, the trial court erred in
making general comments to the jury pool in a brief recess during a critical stage of
jury selection, while Defendant’s counsel was absent for two minutes, no activity
relating to selecting the jury, such as questioning or striking, occurred during this
period of time. We cannot agree that Defendant was completely deprived of his Sixth
Amendment right to counsel during the critical stage of jury selection to be per se
awarded a new trial, because of the trial court’s recitation of general instructions
regarding administrative matters during the two minutes his counsel was absent. See
State v. Rouse, 234 N.C. App. 92, 95,
757 S.E.2d 690, 692 (2014) (“The complete denial
of counsel is one of the six forms of structural error identified by the United States
Supreme Court.” (citations omitted) (emphasis supplied)). None of the instructions
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Opinion of the Court
touched upon jury selection or prejudiced Defendant, and Defendant’s counsel was
otherwise present for all other portions of jury selection and voir dire, except for the
two minutes at issue.
We hold that because Defendant’s counsel was not absent during a critical
stage of the trial proceedings, per se structural error did not occur.
C. Harmless Beyond a Reasonable Doubt
While the State concedes, the trial court erred by giving instructions to the
jury while defense counsel was absent, the State has also proved such error was
harmless beyond a reasonable doubt.
“A violation of the defendant’s rights under the Constitution of the United
States is prejudicial unless the appellate court finds that it was harmless beyond a
reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable
doubt, that the error was harmless.” State v. Hammonds, 370 N.C. 158, 167,
804
S.E.2d 438, 444 (2017) (citations omitted).
Harmless-error analysis is appropriate in cases where a defendant has been
denied the Sixth Amendment’s right to counsel. State v. Thomas, 134 N.C. App. 560,
571,
518 S.E.2d 222, 230 (1999).
The State argues that the trial court’s instructions to prospective jurors were
harmless beyond a reasonable doubt. We note that the trial court gave the jury
similar instructions at different times during trial while counsel was present without
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Opinion of the Court
objection. The instructions were given to the pool of potential jury members, some of
which may have been struck by counsel or excused by the court, and never had any
impact on Defendant’s conviction.
In Satterwhite v. Texas, the trial court conducted a hearing on the psychological
evaluation of defendant. Satterwhite v. Texas, 486 U.S. 249, 252,
100 L. Ed. 2d 284,
291 (1988). The defendant was denied counsel while his competency was determined
during the examination.
Id. The defendant claimed that his Sixth Amendment right
to counsel had been violated.
Id. at 253,
100 L. Ed. 2d at 292. The Supreme Court of
United States refused to apply per se or automatic reversal, and instead conducted a
harmless-error analysis to determine whether the defendant’s right to counsel was
violated.
Id. at 258,
100 L. Ed. 2d at 295. The Supreme Court determined that the
error that occurred in that case was not harmless, since the psychiatrist was the only
expert to testify on the issue of the defendant’s competency.
Id. at 260,
100 L. Ed. 2d
at 296. The Court noted that it was “impossible to say beyond a reasonable doubt”
that the jury did not rely on the psychiatrist’s testimony in rendering a verdict.
Id.
Unlike in Satterwhite, where the jury heavily relied on the psychiatrist’s
testimony during deliberations, here the same or substantially similar instructions
were given to the jury on numerous occasions throughout the trial proceedings
without objection, thus making the jury’s reliance on the instructions given by the
trial court during the voir dire recess less impactful. The trial court rendered
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Opinion of the Court
standard instructions to the potential jurors about not doing outside research, talking
about the case while trial is pending, reading the law, and visiting the crime scene.
None of the contested instructions were specific to the witnesses and evidence or the
facts or law related to the offenses of which Defendant was charged. The trial court’s
error in giving these instructions without Defendant’s counsel present is harmless
beyond a reasonable doubt.
V. Conclusion
The trial court’s rendering of instructions to potential jurors during a recess at
the voir dire stage of jury selection while Defendant’s counsel was absent was not
structural error because this specific time was not a critical stage of trial. The State
has met its burden to show that the conceded error in the trial court’s giving of the
challenged instructions without Defendant’s counsel being present was harmless
beyond a reasonable doubt. It is so ordered.
HARMLESS ERROR.
Judge DIETZ concurs with separate opinion.
Judge BERGER concurs with separate opinion.
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No. COA17-1323 – State v. Veney
DIETZ, Judge, concurring.
The trial court violated Veney’s Sixth Amendment rights by speaking to the
jury pool about the ground rules for serving as a juror outside the presence of Veney’s
counsel. The court should not have done so, and no trial court should do this again.
Nevertheless, I am persuaded by the Fourth Circuit’s analysis in United States
v. Owen, 407 F.3d 222, 226 (4th Cir. 2005). As Judge Luttig explained in Owen, even
if the error occurred at a point of the criminal proceeding that could be called a
“critical phase” in the abstract, structural error analysis turns not on labels but on
whether the error affects and contaminates the entire criminal proceeding to such a
degree that it casts doubt on the fairness of the trial process.
Id.
Here, the trial court’s brief discussion with the jury pool—a discussion that
was essentially about housekeeping rules governing their conduct if selected to
serve—did not affect and contaminate the entire subsequent proceeding. The court
did not discuss the charges against Veney or the law to be applied to those charges.
Moreover, Veney could have asked for the jury to be instructed not to conduct outside
research once seated and informed of the subject matter of the case, if this were a
concern. And the court did, in fact, instruct the jury on this issue later in the
proceeding, while Veney’s counsel was present.
Veney conceded at oral argument that, unless we apply the structural error
rule, he cannot prevail because this Sixth Amendment violation was harmless beyond
STATE V. VENEY
Dietz, J., concurring
a reasonable doubt. Because the trial court’s error was not a structural one, I concur
in the Court’s judgment finding no prejudicial error.
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No. COA17-1323 – State v. Veney
BERGER, Judge, concurring in separate opinion.
I fully concur with the majority’s opinion, but write separately to address the
apparent conflict between State v. Colbert, 311 N.C. 283,
316 S.E.2d 79 (1984) and
State v. Garcia,
358 N.C. 382,
597 S.E.2d 724 (2004), cert. denied,
543 U.S. 1156,
161
L. Ed. 2d 122 (2005).
As noted in the majority’s opinion, the defendant in State v. Colbert did not
preserve his argument on appeal. Colbert, 311 N.C. at 285,
316 S.E.2d at 80. Even
so, our Supreme Court reviewed the merits of that defendant’s arguments for
harmless error.
Id. at 286, 316 S.E.2d at 81. However, our Supreme Court more
recently declined to review a purported structural error that was not preserved. In
State v. Garcia, our Supreme Court stated, “It is well settled that constitutional
matters that are not raised and passed upon at trial will not be reviewed for the first
time on appeal.” Garcia,
358 N.C. at 410,
597 S.E.2d at 745 (citation and quotation
marks omitted). Further, “[s]tructural error, no less than other constitutional error,
should be preserved at trial.”
Id.
Here, Defendant waived review of his argument by failing to preserve the issue
at trial. But for the State’s concession at oral argument concerning preservation, it
would appear this Court should follow Garcia, and harmless error review should not
be utilized. Also, Defendant failed to argue for plain error review on appeal. This
case, however, presents the unusual circumstance in which Defendant’s trial counsel
STATE V. VENEY
BERGER, J., concurring in separate opinion
was potentially unaware of the error committed by the trial court in her absence.
Defendant never had the knowledge to object, or otherwise preserve the argument for
review. As such, Rule 2 would be the appropriate vehicle for this Court to reach the
merits of Defendant’s argument.
2
