Criminal Practice — Juror’s Comment – Curative Instruction – No Mistrial – Sentencing – ‘Clerical’ Error

State v. Lynch (Lawyers Weekly No. 011-202-17, 15 pp.) (Richard Dietz, J.) (John Arrowood, J., concurring in part & dissenting in part) Appealed from Duplin County Superior Court (Phyllis Gorham, J.) N.C. App.

Holding: During jury selection, a potential juror said, “I’ve seen her around Beulaville, I believe she did it.” The jury heard only the unsupported speculation of a fellow citizen – not a statement that defendant had a criminal past made by a juror who was employed in the criminal justice system, as in the cases cited by defendant. Where the trial court gave a lengthy curative instruction about the presumption of innocence and the need to disregard the statement, the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial.

We find no error in defendant’s conviction and sentencing for multiple drug trafficking charges.

At the end of defendant’s trial, the trial court announced that it would arrest judgment on defendant’s trafficking by delivery charge; however, at the subsequent sentencing hearing, the court announced that it would consolidate all the trafficking charges – including trafficking by delivery – for sentencing. The judgment accurately reflects the latter pronouncement. This case thus involves a discrepancy between two separate oral pronouncements and not a clerical error as defendant argues.

Dissent

(Arrowood, J.) In light of the principle set forth in State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994), 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, 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 for correction of this error.