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					No. COA11-86                              TWENTY-FIRST DISTRICT

               NORTH CAROLINA COURT OF APPEALS

       ****************************************************

STATE OF NORTH CAROLINA       )
                              )
         v.                   )    From Forsyth County
                              )
JEFFREY SCOTT SPEAKS          )

       ****************************************************

                DEFENDANT-APPELLANT’S BRIEF

       ****************************************************
                                           - ii -

                                         INDEX

TABLE OF AUTHORITIES..................................................... iv
ISSUES PRESENTED ............................................................... 1
STATEMENT OF THE CASE .................................................. 2
STATEMENT OF THE GROUNDS FOR APPELLATE
REVIEW ..................................................................................... 3
STATEMENT OF THE FACTS ................................................ 3
ARGUMENT.............................................................................. 7

I.   THE TRIAL COURT COMMITTED ERROR AND
ABUSED ITS DISCRETION AND DENIED MR. SPEAKS A
FAIR TRIAL BY DENYING THE MOTION FOR MISTRIAL
AFTER THE ALTERNATE JUROR WAS NOT
DISCHARGED UPON THE FINAL SUBMISSION OF THE
CASE TO THE JURY AND WAS IN THE JURY ROOM
DURING DELIBERATIONS IN VIOLATION OF MR.
SPEAKS‟ STATE AND FEDERAL RIGHTS. ......................... 7

      A. Statement of Standard of Review. ................................ 7

      B. Analysis. ....................................................................... 7

      C. Conclusion. ................................................................. 14

II. THE TRIAL COURT COMMITTED ERROR OR
PLAIN ERROR IN RELYING ON IMPROPER FACTORS IN
DETERMINING MR. SPEAKS‟ SENTENCE AND
SENTENCING MR. SPEAKS AS A HABITUAL FELON IN
VIOLATION OF HIS STATE AND FEDERAL RIGHTS. .... 15

      A. Statement of Standards of Review. ............................ 15

      B. Analysis. ..................................................................... 16

      C. Conclusion. ................................................................. 21

CONCLUSION ........................................................................ 22
CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P.
28(j)(2)(A)(2)............................................................................ 23
                            - iii -

CERTIFICATE OF FILING AND SERVICE ......................... 24

APPENDIX:
    Arguments and Ruling on Motion for
    Mistrial                                        App. 1
    Arguments and Ruling on Habitual Felon
    Indictment                                      App. 20
    Sentencing                                      App. 21
                                            - iv -

                        TABLE OF AUTHORITIES

                                          CASES

Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108 (2003) .. 20

Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011, 176 L. Ed.
 2d 825 (2010) ................................................................... 19-20

Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836
 (1991)..................................................................................... 20

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649,
  599 S.E.2d 888 (2004) .......................................................... 15

Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 554
  S.E.2d 331 (2001) ................................................................. 15

Stark v. Ford Motor Company, ___ N.C. App. ___, 693 S.E.2d
  253, 2010 N.C. App. LEXIS 798 (No. COA09-286) (filed 18
  May 2010) .....................................................................20 fn. 1

State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521
  (1975)..........................................................................11-12, 14

State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988) ................ 7

State v. Boyd, ___ N.C. App. ___, 701 S.E.2d 255 (2010) ..... 15

State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001) ....... 12

State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002) ..... 18

State v. Corriher, 184 N.C. App. 168, 645 S.E.2d 413
  (2007)..................................................................................... 21

State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564 (2004) .... 16

State v. Fraley, 182 N.C. App. 683, 643 S.E.2d 39 (2007) ...... 15
                                            -v-

State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435
  (2000)..................................................................................... 21

State v. Gray, 337 N.C. 772, 448 S.E.2d 794 (1994) ................. 7

State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).............. 7

State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d 163
  (1995)..................................................................................... 13

State v. Leach, 166 N.C. App. 711, 603 S.E.2d 831 (2004) .... 21

State v. Lloyd, 354 N.C. 76, 552 S.E.2d 586 (2001) ............... 16

State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997) ... 19

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) ............. 16

State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999)......... 8, 13

State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969)............ 19

State v. Rose, 335 N.C. 301, 439 S.E.2d 518 (1994) .......... 11-12

State v. Smith, 112 N.C. App. 512, 436 S.E.2d 160 (1993) .... 17

State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003) .... 21

State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985) ......... 12

State v. Starkey, 177 N.C. App. 264, 628 S.E.2d 424 (2006) .. 20

State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696 (1998).. 19

State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976) .......... 19

State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670
  (1996)..................................................................................... 17

State v. Wood, 174 N.C. App. 790, 622 S.E.2d 120 (2005) .... 21
                                           - vi -

United States v. Beasley, 464 F.2d 468 (10th Cir. 1972)......... 12

United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982)....... 16

Urquhart v. Durham and South Carolina R.R. Co., 156 N.C.
 468, 72 S.E. 630 (1911) ................................................... 11-12

Weems v. United States, 217 U.S. 349, 54 L. Ed. 793
 (1910)................................................................................ 19-20

                  CONSTITUTIONAL PROVISIONS

N.C. Const. art. I, § 19 ......................................................... 17-18

N.C. Const. art. I, § 27 .............................................................. 18

U.S. Const. amend. V ............................................................... 17

U.S. Const. amend. VIII ...................................................... 18-21

U.S. Const. amend. XIV ..................................................... 18, 20

           STATUTES & ADMINISTRATIVE CODES

N.C. Gen. Stat. § 7A-27(b) ......................................................... 3

N.C. Gen. Stat. § 14-7.6 ........................................................... 17

N.C. Gen. Stat. § 15A-1215(a) ................................................. 11

N.C. Gen. Stat. § 15A-1221(a)(10) .......................................... 11

N.C. Gen. Stat. § 15A-1340.14(b)(4) ....................................... 18

N.C. Gen. Stat. § 15A-1340.14(d) ............................................ 17

N.C. Gen. Stat. § 15A-1444(a) ................................................... 3

N.C. Gen. Stat. § 15A-1446(d)(18) .......................................... 15
                                        - vii -

N.C. Gen. Stat. § 15A-1446(d)(5) ............................................ 15

N.C.R. App. P. 10(a)(4) ............................................................ 16

N.C.R. App. P. 26(a)(2) ............................................................ 24

N.C.R. App. P. 26(c) ................................................................ 24

N.C.R. App. P. 28(b)(6) ...................................................... 17-19

N.C.R. App. P. 28(j)(2)(A)(2) .................................................. 23

                         OTHER AUTHORITIES

State v. Griffin, 09 CrS 53278, 53285, 8442 (Super. Ct. Forsyth
  County 7 June 2010) ............................................................. 20
      No. COA11-86                              TWENTY-FIRST DISTRICT

                     NORTH CAROLINA COURT OF APPEALS

             ****************************************************

  STATE OF NORTH CAROLINA           )
                                    )
               v.                   )    From Forsyth County
                                    )
  JEFFREY SCOTT SPEAKS              )

             ****************************************************

                      DEFENDANT-APPELLANT’S BRIEF

             ****************************************************

                             ISSUES PRESENTED

 I.     WHETHER THE TRIAL COURT COMMITTED ERROR AND ABUSED
        ITS DISCRETION AND DENIED MR. SPEAKS A FAIR TRIAL BY
        DENYING THE MOTION FOR MISTRIAL AFTER THE ALTERNATE
        JUROR WAS NOT DISCHARGED UPON THE FINAL SUBMISSION OF
        THE CASE TO THE JURY AND WAS IN THE JURY ROOM DURING
        DELIBERATIONS IN VIOLATION OF MR. SPEAKS‟ STATE AND
        FEDERAL RIGHTS?

II.     WHETHER THE TRIAL COURT COMMITTED ERROR OR PLAIN
        ERROR IN RELYING ON IMPROPER FACTORS IN DETERMINING MR.
        SPEAKS‟ SENTENCE AND SENTENCING MR. SPEAKS AS A
        HABITUAL FELON IN VIOLATION OF HIS STATE AND FEDERAL
        RIGHTS?
                                        -2-

                         STATEMENT OF THE CASE

      On 1 December 2008, the Forsyth County Grand Jury issued a two-count

indictment charging Defendant-Appellant Jeffrey Scott Speaks with felony

speeding to elude arrest and failure to stop at a steady red light. (R p. 8) On that

same date, the Forsyth County Grand Jury issued a separate indictment charging

Mr. Speaks with attaining the status of habitual felon. (R p. 9) On 26 July 2010, the

Forsyth County Grand Jury issued a superseding two-count indictment charging

Mr. Speaks with felony speeding to elude arrest and failure to stop at a steady red

light. (R p. 32) On 9 August 2010, this case came for trial before the Honorable

Richard W. Stone, Superior Court Judge presiding, during the 9 August 2010

Criminal Session of the Superior Court of Forsyth County. (R p. 1) The trial

transcript is referenced herein as TT. (R p. 29) On 10 August 2010, following jury

selection and presentation of evidence, the jury returned verdicts finding Mr.

Speaks guilty of the charged felony and responsible of the charged infraction. (R p.

50) On that same date, following additional presentation of evidence, the jury

returned a verdict finding Mr. Speaks guilty of attaining the status of habitual

felon. (R p. 95) On that same date, Judge Stone entered judgment. Mr. Speaks was

sentenced as an habitual felon to a term of 80 to 105 months imprisonment. (R pp.

99-102) On that same date, Mr. Speaks entered notice of appeal in open court. (R

p. 3; TT Vol. II, p. 179) The record on appeal was filed in the Court of Appeals on
                                        -3-

20 January 2011, docketed on 24 January 2011, and mailed to the parties on 26

January 2010.


      STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

      Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a)

from a final judgment of the Forsyth County Superior Court.


                        STATEMENT OF THE FACTS

      The evidence presented at the trial by the State and the Defendant tended to

show that on 21 August 2008 at approximately 4:00 p.m., Kernersville Police

Department officers Heath Griffith, A.B. Cox, and M.S. Hill were trying to find

Defendant-Appellant Jeffrey Scott Speaks to serve a warrant. (TT Vol. I, pp. 29-

31, 36, 51, 58) The officers used a Kohl‟s security cameras to watch the nearby

Wal-Mart parking lot for the car they believed Mr. Speaks‟ would be driving, a red

Chevy S-10 Blazer. (TT Vol. I, pp. 30-32, 34, 58-59) The Blazer was registered to

Mr. Speaks‟ mother. (TT Vol. I, p. 84) The officers saw the Blazer back into a

parking space, and the officers left the Kohl‟s for the Wal-Mart parking lot to serve

the warrant. (TT Vol. I, pp. 32-33, 59) The officers each got into their separate

marked police cars. (TT Vol. I, pp. 33, 36, 59, 62) Officers Cox and Hill pulled

their cars in front of the Blazer. (TT Vol. I, pp. 33-34, 59) Officer Griffith‟s car

was behind the Blazer, separated by a row of cars. (TT Vol. I, pp. 33-34)
                                        -4-

      Officer Cox could see two occupants inside of the Blazer. (TT Vol. I, pp. 59-

60) Officer Cox testified a white male with his hair in a pony tail was in the

driver‟s seat, and a white female was in the passenger‟s seat of the Blazer. (TT

Vol. I, pp. 60, 74) Officer Cox identified Mr. Speaks in court as the driver. (TT

Vol. I, pp. 60-61, 71, 91) Mr. Speaks testified that Amy Jo McBride was the driver.

(TT Vol. I, pp. 77-78, 85-86) At the time, Mr. Speaks and Ms. McBride were

dating and both living in Mr. Speaks‟ mother‟s house. (TT Vol. I, pp. 77, 84) Mr.

Speaks testified that he and Ms. McBride were close in height and weight, similar

in skin color, and had similar hair in color and length, and that both kept their hair

in ponytails. (TT Vol. I, pp. 79-80)

      Officer Cox got out of his car, and started walking towards the Blazer. (TT

Vol. I, p. 61) Officer Cox testified Mr. Speaks said, “Not today, big boy.” (TT Vol.

I, pp. 61, 91) Mr. Speaks denied that he said that or even had time to before Ms.

McBride drove away. (TT Vol. I, pp. 83-84) Officer Cox testified that Mr. Speaks

drove away about one second after Officer Cox got out of his car. (TT Vol. I, pp.

61, 73)

      Mr. Speaks testified that Ms. McBride drove off because she was on

probation and would face jail time if found driving. (TT Vol. I, pp. 77-79) Mr.

Speaks testified her gave Ms. McBride directions which way to go once she drove

off to help her get away. (TT Vol. I, pp. 79, 86)
                                         -5-

      Officer Griffith heard Officer Cox yell that the Blazer was leaving the

parking lot. (TT Vol. I, p. 34) Officer Griffith drove off after the Blazer, with his

lights and siren on, trying to stop the Blazer. (TT Vol. I, pp. 34-36, 61) Officer Hill

was behind Officer Griffith, and Officer Cox was behind Officer Hill. (TT Vol. I,

pp. 61-62, 72)

      Officer Griffith testified turned onto Harmon Creek Road, then made a right

onto Kernersville Road, also known as South Main Street. (TT Vol. I, pp. 35-37,

40, 46) South Main Street is a 45 mile per hour zone. (TT Vol. I, p. 37) Mr. Speaks

testified they were traveling very fast and passing a lot of cars. (TT Vol. I, p. 86-

87) Officer Griffith testified he started the chase himself driving at approximately

75 miles per hour on Kernersville Road. (TT Vol. I, pp. 37-38, 43) Officer Griffith

testified the Blazer traveled at a high rate of speed and ran a steady red stoplight at

the intersection of Kernersville and Hastings Hill Roads. (TT Vol. I, pp. 35-41, 46,

56-57) Mr. Speaks testified the light was yellow. (TT Vol. I, p. 86) Officer Griffith

testified the Blazer, once past the stoplight, crossed the double yellow line on the

two lane Kernersville Road at least three times to pass cars, and almost struck

another car coming head-on while in the wrong lane of travel. (TT Vol. I, pp. 39,

41-42, 46, 57) With Officer Griffith following, the Blazer turned left onto Oak

Grove Church Road. (TT Vol. I, pp. 43, 47) Officer Griffith estimated that he

himself got up close to an estimated 100 miles per hour after turning onto Oak
                                        -6-

Grove Church Road. (TT Vol. I, p. 43) At the end of Oak Grove Church Road, the

Blazer turned onto Glenn High Road, and Officer Griffith lost track of the Blazer.

(TT Vol. I, pp. 43, 47-48)

      Mr. Speaks testified he jumped out of the car and ran away at a dead-end

street because he knew there was a warrant for his arrest. (TT Vol. I, pp. 79, 83,

88) He told Ms. McBride to tell the officers that he was driving because he was

protecting her. (TT Vol. I, pp. 79, 88-89)

      Four to five minutes later, Officer Griffith came into contact with the Blazer

stopped at the dead end of Glenn Meadows. (TT Vol. I, pp. 48-49, 55) Only Ms.

McBride was in the Blazer. (TT Vol. I, p. 49) Ms. McBride was in the driver‟s

seat. (TT Vol. I, pp. 49, 55)

      Ms. McBride was not arrested. (TT Vol. I, pp. 50, 88) Mr. Speaks was

arrested about a month later for the 21 August 2008 events. (R pp. 5-6; TT Vol. I,

pp. 50, 88-89)

      During the habitual felon phase, the State put on evidence of Mr. Speaks‟

prior convictions through exhibits without testimony or authentication. (R pp. 38-

39, 51-88; TT Vol. II, pp. 155-57)

      Additional facts are presented as they are relevant to the arguments below.
                                        -7-

                                  ARGUMENT

I.    THE TRIAL COURT COMMITTED ERROR AND ABUSED ITS
      DISCRETION AND DENIED MR. SPEAKS A FAIR TRIAL BY
      DENYING THE MOTION FOR MISTRIAL AFTER THE
      ALTERNATE JUROR WAS NOT DISCHARGED UPON THE FINAL
      SUBMISSION OF THE CASE TO THE JURY AND WAS IN THE
      JURY ROOM DURING DELIBERATIONS IN VIOLATION OF MR.
      SPEAKS’ STATE AND FEDERAL RIGHTS.

             PROPOSED ISSUES ON APPEAL Nos. 8-14
             R pp. 107-08

      A.     Statement of Standard of Review.

      The standard of review of a decision to grant or deny a motion for a mistrial

is abuse of discretion. State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120

(1988). “Abuse of discretion occurs only where the trial court‟s ruling is

„manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.‟” State v. Gray, 337 N.C. 772, 776, 448 S.E.2d 794,

798 (1994) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 526

(1988)).

      B.     Analysis.

      At 10:32 a.m., the trial court finished charging the jury. (TT Vol. II, p. 129;

see Appendix) The jury, including the alternate, was sent to the jury room with

instructions to select a foreperson, but not to start deliberations until the verdict

sheet was handed in to the room. (TT Vol. II, p. 129; see Appendix) At 10:37 a.m.,

the verdict sheet and a written copy of the jury instructions were delivered to the
                                        -8-

jury room. (TT Vol. II, p. 130; see Appendix) At 10:39 a.m., the clerk of court

asked the trial court whether the alternate juror had been dismissed. (TT Vol. II, p.

131; see Appendix) The trial court recognized the error, and the defense moved for

a mistrial. (TT Vol. II, pp. 131-32; see Appendix)

      At 10:41 a.m., the jury was brought into the court room for the first inquiry

into whether or not deliberations had begun. (TT Vol. II, p. 132; see Appendix)

The jury indicated that they had selected a foreperson but had not yet begun

deliberations. (TT Vol. II, p. 132; see Appendix) After a recess, the trial court

heard arguments from the attorneys. (TT Vol. II, p. 133; see Appendix) The State

argued against a mistrial, citing State v. Parker, 350 N.C. 411, 516 S.E.2d 106

(1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000), and a consultation

with the University of North Carolina at Chapel Hill School of Government

(“SOG”). (TT Vol. II, pp. 133-34, 137; see Appendix) The trial court denied the

motion for a mistrial, but did conduct a second inquiry of the jury, including the

alternate, as to whether deliberations had begun. (TT Vol. II, pp. 137-38; see

Appendix) Upon receiving a negative response, the trial court sent the jury,

without the alternate, back to the jury room with instructions not to deliberate. (TT

Vol. II, pp. 138-39; see Appendix)

      The alternate juror was sworn in, and an inquiry was made about the

proceedings in the jury room while she had been there. (TT Vol. II, p. 139; see
                                         -9-

Appendix) The alternate indicated that the foreperson had been selected by the

whole jury, including the alternate. (TT Vol. II, p. 139-42; see Appendix) After the

verdict sheet and the instructions were sent in to the jury, the foreperson began to

read out the instructions to the jurors when the jury was called back into the court

room. (TT Vol. II, pp. 139-43; see Appendix)

      The defense renewed the motion for a mistrial, specifically arguing that the

foreperson‟s “reading [the] instructions to the jury is a form of deliberations.” (TT

Vol. II, p. 144; see Appendix) The trial court made the following finding of fact

and conclusions of law:

             THE COURT: Okay. Your objection is certainly noted. What
      I‟ll do is, find as a fact that I instructed the jury as to the law in this
      case. I sent the jury out to choose their foreperson. Inadvertently I
      allowed the alternate to go with the jury into the jury room.

            The alternate participated in the choosing of the foreperson. I
      had told the jury not to begin their deliberations until the verdict sheet
      was delivered to them. They did not deliberate. And then the verdict
      sheet was delivered to the jury, along with a copy of the instructions, a
      pad and a pencil, a pad and a pen.

            After approximately two minutes the very able clerk noted that
      I had allowed the alternate to go into the jury room. I had the bailiff
      bring the jury back into the courtroom, and we took a recess. Gave
      the jury warnings to not communicate about the case during the
      recess.

             I heard from counsel with regard to the apparent error. When I
      first brought the jury back in, I asked them as a group whether they
      had begun their deliberations or discussed the case in any way, and
      they readily appeared to unanimously nod their heads that they had
      not begun any deliberations or discussion of the case.
                                       - 10 -


            Then we took a recess and I heard from counsel. Brought the
      jury back in, and again asked them whether anybody had discussed
      the case or deliberated in any manner, and asked the jury to raise their
      hand if any of them thought that they had begun deliberations or
      discussed the case. And no one raised their hand.

             At that point I allowed the alternate to step down. I explained to
      the jury that I should not have allowed the alternate to go in the jury
      room. I sent the 12 jurors back to the jury room and told them not to
      begin their deliberations.

             At that point we heard from the alternate. And the Court finds
      that the jury foreperson had begun reading the first page of the copy
      of the instructions that were sent back. And the alternate stated and
      the Court finds that she said nothing during -- at any time after the
      verdict sheet had been sent in to the jury.

            The Court finds that the jury based on these facts had not begun
      their deliberations. The alternate had not participated in any way
      within the deliberations, although had participated in the selection of a
      foreperson.

            The Court concludes as a matter of law where the alternate goes
      into the jury room through inadvertence and is only present
      momentarily, and there are no deliberations, and the only action taken
      was the foreperson beginning to read through the first page of the
      written copy of the instructions, that there is not Constitutional error.

            The Defendant has not been deprived of due process. It‟s
      therefore ordered that the motion for a mistrial is denied.

(TT Vol. II, pp. 144-46; see Appendix)

      At 11:16 a.m., the jury was brought into the jury room, and sent out again at

11:17 a.m. with instructions to again select a foreperson and then immediately

begin deliberations. (TT Vol. II, pp. 146-47; see Appendix) At 11: 19 a.m., the
                                        - 11 -

verdict sheet and written instructions were sent into the jury room “without

comment.” (TT Vol. II, p. 147; see Appendix) At 11:42 a.m., the jury sent word

they had reached a verdict. (TT Vol. II, p. 147; see Appendix)

      Alternate jurors “unless they become jurors, must be discharged upon the

final submission of the case to the jury.” N.C. Gen. Stat. § 15A-1215(a); see also

N.C. Gen. Stat. § 15A-1221(a)(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.”). “[A]t any time an alternate is in the jury room during deliberations he

participates by his presence and, whether he says little or nothing, his presence will

void the trial.” State v. Bindyke, 288 N.C. 608, 627-28, 220 S.E.2d 521, 533

(1975). The alternate was in the jury room during deliberations. This was

prejudicial error, and the trial court committed error and abuse of discretion in

denying the motion for a mistrial.

      In Bindyke, the Supreme Court specifically declined to “adopt a rule which

would allow the trial judge to attempt to determine whether the alternate was

present in the jury room a „substantial‟ length of time during deliberations or had

participated in the deliberations to defendant's prejudice.” Id. at 627, 220 S.E.2d at

533. This comports with the Supreme Court‟s declaration that there is “no rule by

which this Court can estimate the time, or lay down a rule, as to how long a jury

shall remain in consultation before bringing in their verdict.” Urquhart v. Durham
                                        - 12 -

and South Carolina R.R. Co., 156 N.C. 468, 472, 72 S.E. 630, 632 (1911); see also

State v. Rose, 335 N.C. 301, 331-32, 439 S.E.2d 518, 534-35 (jury returning

verdict finding defendant guilty of first-degree murder in 10 minutes does not

indicate the jury did not deliberate), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 883

(1994), and overruled on other grounds by State v. Buchanan, 353 N.C. 332, 543

S.E.2d 823 (2001); State v. Spangler, 314 N.C. 374, 387-88, 333 S.E.2d 722, 730-

31 (1985) (jury returning verdict finding defendant guilty of first-degree murder in

15 minutes does not indicate the jury did not deliberate).

      The trial court‟s conclusion of law that the jury had not begun to deliberate

and the denial of the motion for a mistrial were based in part on the finding that

“the alternate stated and the Court finds that she said nothing during -- at any time

after the verdict sheet had been sent in to the jury.” (TT Vol. II, pp. 145-46; see

Appendix) Whether the jury has begun to deliberate does not hinge on each and

every individual in the jury room giving voice to a thought.

      The issue is not how long the alternate was in the jury room. The issue is not

whether the alternate said anything. The issue is whether the jury had “„begun its

function as a separate entity.‟” Bindyke, supra, 288 N.C. at 626, 220 S.E.2d at 532

(quoting United States v. Beasley, 464 F.2d 468, 471 (10th Cir. 1972)). The jury

here had begun its function as a separate entity.
                                        - 13 -

       With all due respect to whatever advice the prosecutor may have received

from the SOG about proper procedure when the alternate is sent back to the jury

room upon the final submission of the case to the jury, there is no record of exactly

how the question was phrased to the SOG. What is known is that the advice of the

SOG was sought and received before it was placed on the record that the

foreperson had begun to read the trial court‟s instructions to the jury. The SOG

may or may not have been told that the jury had already been instructed to begin

deliberations. The SOG would not have known the fact that the jury had begun its

function as a separate entity.

       In cases where the North Carolina Courts have found no prejudicial error

when the alternate is sent back to the jury room upon the final submission of the

case to the jury, those juries had not yet been instructed to begin deliberations or

had specifically been instructed not to begin deliberations. E.g., State v. Parker,

supra, 350 N.C. at 426, 516 S.E.2d at 117 (alternate excused after foreperson

selected but prior to instructions to begin deliberations); State v. Jernigan, 118

N.C. App. 240, 245-47, 455 S.E.2d 163, 167-68 (1995) (alternate present when

foreperson selected but jury instructed not to talk about the case). No prejudicial

error was found because the appellate court “presume[d] that the jurors followed

the instructions of the court and did not discuss the case.” Id. at 247, 455 S.E.2d at

168.
                                        - 14 -

      So too here, this Court must presume the jurors followed the instructions of

the trial court. The jury was instructed to begin deliberating. At the very least, the

jury had begun to review the trial court‟s instructions. The jury had begun its

function as a separate entity. As set out in Bindyke, there is no hard rule for

whether an alternate is in the jury room a substantial length of time. It is not the

place of this Court to decide if there was only the teeniest bit of deliberations. To

hold otherwise would be an improper intrusion on the jury‟s deliberative process.

      The trial court‟s immediate judgment was that sending the alternate back to

the jury room upon the final submission of the case to the jury was fundamental

error. (TT Vol. II, pp. 131-32; see Appendix) That was a reasoned decision.

Changing his mind and denying the motion for a mistrial was not a reasoned

decision. The denial of the motion for a mistrial was based on the trial court

finding and concluding that there had been no deliberations despite the jury having

been instructed to begin deliberations and having indeed begun its function as a

separate entity.

      C.     Conclusion.

      The jury had moved beyond selecting a foreperson. The jury had begun

deliberations. The error of the alternate juror‟s presence in the jury room during

deliberations should void Mr. Speaks‟ convictions for felony speeding to elude
                                         - 15 -

arrest and failure to stop at a steady red light. The trial court‟s denial of the motion

for a mistrial was not a reasoned decision. Mr. Speaks is entitled to a new trial.


II.   THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR IN
      RELYING ON IMPROPER FACTORS IN DETERMINING MR.
      SPEAKS’ SENTENCE AND SENTENCING MR. SPEAKS AS A
      HABITUAL FELON IN VIOLATION OF HIS STATE AND
      FEDERAL RIGHTS.

             PROPOSED ISSUES ON APPEAL No. 20-21
             R p. 109

      A.     Statement of Standards of Review.

      The trial court‟s assignment of a prior record level is an issue of law that is

determined by an appellate court de novo. State v. Fraley, 182 N.C. App. 683, 691,

643 S.E.2d 39, 44 (2007). This Court considers the matter anew and freely

substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t &

Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004). Even if

there was no objection to Mr. Speaks‟ record level calculation and sentence at trial,

this Court may review this assignment of error pursuant to N.C. Gen. Stat. § 15A-

1446(d)(5) and (18). State v. Boyd, ___ N.C. App. ___, ___, 701 S.E.2d 255, 261

(2010)

      A de novo standard of review is appropriate when constitutional rights are

implicated. Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554

S.E.2d 331, 332 (2001). Constitutional arguments will not be considered for the
                                        - 16 -

first time on appeal. State v. Lloyd, 354 N.C. 76, 86-7, 552 S.E.2d 586, 607 (2001).

Whether it was error to sentence Mr. Speaks as an habitual felon can be reviewed

for plain error. See State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564 (2004)

(sentencing reviewed under plain error). Plain error is:

      a “fundamental error, something so basic, so prejudicial, so lacking in
      its elements that justice cannot have been done,” or “where [the error]
      is grave error which amounts to a denial of a fundamental right of the
      accused,” or the error has “„resulted in a miscarriage of justice or in
      the denial to appellant of a fair trial‟” or where the error is such as to
      “seriously affect the fairness, integrity or public reputation of judicial
      proceedings” or where it can be fairly said “the instructional mistake
      had a probable impact on the jury‟s finding that the defendant was
      guilty.”

State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983) (quoting

United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Mr. Speaks

specifically and distinctly contended the judicial actions questioned in these

proposed issues on appeal amounted to plain error. N.C.R. App. P. 10(a)(4).

      B.     Analysis.

      Mr. Speaks raised several arguments in the lower court about his prior

record level calculation and sentence as a habitual felon. Mr. Speaks did not

specifically cite any constitutional provisions or case law to support his arguments.

      First, Mr. Speaks challenged the use of two of the identical convictions to

establish his status as a habitual felon that had been used in a prior prosecution for

the same purpose. (R p. 9; TT Vol. II, p. 158; see Appendix) Mr. Speaks is mindful
                                        - 17 -

that this Court has previously held this not to violate the protections against double

jeopardy afforded by the Fifth Amendment to the United States Constitution and

Article I, § 19 of the Constitution of North Carolina. See State v. Smith, 112 N.C.

App. 512, 517, 436 S.E.2d 160, 162 (1993) (“being an habitual felon is a status,

that once attained is never lost. If the legislature had wanted to require the State to

show proof of three new underlying felonies before a new habitual felon

indictment could issue, then the legislature could have easily stated such.”). Mr.

Speaks raises this issue in brief to urge the Court to re-examine its prior holdings

and so as not to be considered to have abandoned this claim under N.C. R. App.

Proc. 28(b)(6).

      Mr. Speaks next challenged the use of convictions obtained in the same

week to both establish his status as a habitual felon and to determine his prior

record level. (R pp. 9, 51-88, 97-98; TT Vol. II, pp. 173-74; see Appendix) Mr.

Speaks is mindful that this Court has previously held this to be consistent with

N.C. Gen. Stat. §§ 14-7.6 and 15A-1340.14(d). See State v. Truesdale, 123 N.C.

App. 639, 642, 473 S.E.2d 670, 672 (1996) (permissible to use separate

convictions within the same week to establish defendant‟s habitual felon status and

prior record level). Mr. Speaks raises this issue in brief to urge the Court to re-

examine its prior holdings and so as not to be considered to have abandoned this

claim under N.C. R. App. Proc. 28(b)(6).
                                        - 18 -

      Mr. Speaks also challenged the State manipulating his prior record to

increase the points used for structured sentencing purposes by using selecting prior

felony convictions that carried fewer sentencing points to establish his status as a

habitual felon and leaving prior felony convictions with a greater point total to

determine his prior record level. (R pp. 9, 51-88, 97-98; TT Vol. II, pp. 174-75; see

Appendix) Mr. Speaks is mindful that this Court has previously held this not to

violate the due process protections afforded by the Fourteenth Amendment to the

United States Constitution or the relevant statutory provisions. See State v. Cates,

154 N.C. App. 737, 739-40, 573 S.E.2d 208, 210 (2002) (it was within

prosecutor‟s discretion to select among defendant‟s prior convictions for purposes

of proving his habitual felon status and calculating his prior record level), disc.

review denied, 356 N.C. 682, 577 S.E.2d 897 (2003). Mr. Speaks is also mindful

that his prior felony convictions are all either Class H or I, which are assigned the

same points at sentencing. N.C. Gen. Stat. § 15A-1340.14(b)(4). Mr. Speaks raises

this issue in brief to urge the Court to re-examine its prior holdings and so as not to

be considered to have abandoned this claim under N.C. R. App. Proc. 28(b)(6).

      On appeal, Mr. Speaks further contends that the Habitual Felon Act violates

his constitutional rights to be free of cruel and unusual punishment. U.S. Const

amends. VIII, XIV; N.C. Const. art. I, §§ 19, 27. He is mindful that this Court has

previously upheld the statutory scheme against an identical challenge and raises
                                        - 19 -

this issue in brief to urge the Court to re-examine its prior holdings and so as not to

be considered to have abandoned these claims under N.C. R. App. Proc. 28(b)(6).

See, e.g., State v. Mason, 126 N.C. App. 318, 321, 484 S.E.2d 818, 820 (1997),

cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

      It is true that “North Carolina courts have consistently held that when a

punishment does not exceed the limits fixed by statute, the punishment cannot be

classified as cruel and unusual in a constitutional sense.” State v. Stinnett, 129 N.C.

App. 192, 200, 497 S.E.2d 696, 701, disc. rev. denied, 348 N.C. 508, 510 S.E.2d

669, cert. denied, 525 U.S. 1008, 142 L. Ed. 2d 436 (1998). Stinnet, however,

relies on State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), and State v.

Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976). Rogers, Sweezy and most of the

rulings relied on by this Court to uphold the Habitual Felon Act against

constitutional challenges predate higher authority decisions of the United States

Supreme Court reaffirming the importance of the concept of proportionality in the

right to be free of cruel and unusual punishment.

      “The concept of proportionality is central to the Eighth Amendment.

Embodied in the Constitution‟s ban on cruel and unusual punishments is the

„precept of justice that punishment for crime should be graduated and proportioned

to [the] offense.‟” Graham v. Florida, 560 U.S. ___, ___, 130 S. Ct. 2011, 2021,

176 L. Ed. 2d 825, 835 (2010) (quoting Weems v. United States, 217 U.S. 349,
                                             - 20 -

367, 54 L. Ed. 793 (1910)) . “A court must begin by comparing the gravity of the

offense and the severity of the sentence” to determine whether a sentence is grossly

disproportionate. Graham, supra, 130 S. Ct. at 2022 (citing Harmelin v. Michigan,

501 U.S. 957, 115 L. Ed. 2d 836 (1991)). Lower courts are already engaged in

using the analyses approved in Graham, Harmelin, and Ewing v. California, 538

U.S. 11, 155 L. Ed. 2d 108 (2003), to determine whether a sentence is grossly

disproportionate to the offense. E.g., State v. Starkey, 177 N.C. App. 264, 628

S.E.2d 424 (2006), cert. denied, ___ N.C. ___, 636 S.E.2d 196 (2007) (superior

court‟s decision sua sponte granting its own motion for appropriate relief and

vacating, pursuant to the Eighth Amendment, a defendant's sentence as a habitual

felon for possession of .004 ounces of cocaine); see also State v. Griffin, 09 CrS

53278, 53285, 8442 (Super. Ct. Forsyth County 7 June 2010) (superior court‟s

decision sua sponte granting its own motion for appropriate relief and vacating,

pursuant to the Eighth and Fourteenth Amendments, a defendant's sentence as a

habitual felon).1

       Sentences under the Habitual Felon Act are excessive and grossly

disproportionate to those under Structured Sentencing alone. A sentence of 80 to


1
  The State has appealed the order entered by the Honorable James W. Webb to this Court. State
v. Griffin, No. COA10-1357. North Carolina appellate courts may take judicial notice of their
own records. See, e.g., Stark v. Ford Motor Company, ___ N.C. App. ___, ___, 693 S.E.2d 253,
___, 2010 N.C. App. LEXIS 798, *19 (No. COA09-286) (filed 18 May 2010) (judicial notice
taken of briefing in separate case). Defendant respectfully requests that this Court take judicial
notice of the filings by the parties in State v. Griffin, No. COA10-1357.
                                       - 21 -

105 months imprisonment for speeding to elude arrest is grossly disproportionate.

Cf. State v. Corriher, 184 N.C. App. 168, 645 S.E.2d 413 (2007) (defendant

sentenced to seven to nine months imprisonment for felony speeding to elude

arrest); State v. Wood, 174 N.C. App. 790, 622 S.E.2d 120 (2005) (defendant

sentenced to suspended term of eight to 10 months imprisonment for felony

speeding to elude arrest); State v. Leach, 166 N.C. App. 711, 603 S.E.2d 831

(2004) (defendant sentenced to 12 to 15 months imprisonment for felony speeding

to elude arrest), appeal dismissed, 359 N.C. 640, 614 S.E.2d 538 (2005); State v.

Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003) (defendant sentenced to 11 to 14

months imprisonment for felony speeding to elude arrest); State v. Funchess, 141

N.C. App. 302, 540 S.E.2d 435 (2000) (defendant sentenced to 10 to 12 months

imprisonment for felony speeding to elude arrest). The proportionality protections

afforded by the Eighth Amendment demand that this case be reviewed on its own

merits without regard for whether the sentence was objected to on these grounds in

the court below.

      C.    Conclusion.

      The sentence received by Mr. Speaks as an habitual felon was prejudicial,

violates his rights, and must be vacated. Mr. Speaks is entitled to a new sentencing

hearing.
                                       - 22 -

                                 CONCLUSION

      For all the foregoing reasons, Mr. Speaks respectfully contends he is entitled

to a new trial or a remand for a new sentencing hearing.

      Respectfully submitted this the 25th day of February 2011.

                         By electronic submission
                         Anne Bleyman
                         Attorney for Defendant-Appellant
                         1818 Martin Luther King, Jr. Blvd.,
                         Suite 146
                         Chapel Hill, North Carolina 27514-7415
                         (919) 593-0782
                         N.C. State Bar No. 20860
                         ABTigerLaw@earthlink.net
                                       - 23 -


  CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(A)(2)

      The undersigned hereby certifies that this Defendant-Appellant‟s Brief is in
compliance with Rule 28(j)(2)(A)(2) of the North Carolina Rules of Appellate
Procedure in that it is printed in 14 point Times New Roman font and contains no
more than 8,750 words in the body of the Brief, footnotes and citations included, as
indicated by the word-processing program used to prepare the Brief.

      This the 25th day of February 2011.

                         By electronic submission
                         Anne Bleyman
                         Attorney for Defendant-Appellant
                                      - 24 -


                CERTIFICATE OF FILING AND SERVICE

      The undersigned hereby certifies that the original Defendant-Appellant‟s
Brief has been filed pursuant to Rule 26(a)(2) of the North Carolina Rules of
Appellate Procedure by electronic means with the Clerk of the North Carolina
Court of Appeals.

      The undersigned further certifies that the foregoing Defendant-Appellant‟s
Brief has been served pursuant to Rule 26(c) of the North Carolina Rules of
Appellate Procedure by electronic means upon the following parties:

            Ms. Melissa H. Taylor
            Assistant Attorney General
            North Carolina Department of Justice
            Post Office Box 629
            Raleigh, North Carolina 27602-0629
            919-716-6610
            mtaylor@ncdoj.gov

      This the 25th day of February 2011.

                         By electronic submission
                         Anne Bleyman
                         Attorney for Defendant-Appellant
            Table of Contents for Appendix

Appendix Pages                          Appearing in
                                             brief at

1-19      Arguments and Ruling on
          Motion for Mistrial
          (T Vol. II, pp. 129-47)            7-12, 14

20        Arguments on Habitual Felon
          Indictment
          (T Vol. II, p. 158)                16

21-24     Sentencing
          (T Vol. II, pp. 172-75)            17-18
1

				
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