Judge (21:57):
All right, we are back on the record. Defendant is here present. Just so everybody is aware for scheduling today, I do have a personal matter that I need to attend to, so we will be breaking at four o'clock this evening instead of five o'clock.
Juror #5 (22:16):
Yes.
Judge (22:19):
It was brought to my attention by the bailiff that Juror Number 2 spoke with the bailiff regarding conduct of Juror Number 3. Juror Number 2 communicated to the bailiff that the juror thinks Juror Number 3 knows more than they let on, that Juror Number 3 has communicated to Juror Number 2, at the very least, as far as we know at this point, that the defendant is not a member of the KKK, that the defendant was marginalized in his community, and the defendant was not a part of the KKK. Juror Number 2 indicated to the bailiff that Juror Number 2 did not communicate this particular information to anyone else on the jury.
(23:24)
So that raises two particular questions. First is whether these two jurors were engaging in communication about the trial outside of the jury room, contrary to my instructions to not communicate about the trial when not in the jury room deliberating. And the second is whether Juror Number 3 has either received extraneous information outside of this trial or was not forthright in Juror Number 3's knowledge of the defendant during voir dire. So after my research, the case law is pretty clear that we need to examine all jurors that were affected by this potential misconduct. So that would include at the very least Juror Number 3 and Juror Number 2. In the event that we need to inquire further regarding any other jurors, we can have that discussion after inquiring of Juror Number 3 and Juror Number 2.
(25:55)
So I think the best order is to bring in Juror Number 3, for me to inquire of Juror Number 3 regarding those two particular questions, and then inquire of Juror Number 2 regarding their communication as to whether it was... If we determine that it was in the jury room or outside the jury room, then we need to have a potential separate conversation with Juror Number 2 about communication about this trial outside of the jury room because that seems like communication that they seem to have engaged in. Whether that was in the jury room or outside the jury room is very important even for Juror Number 2, that they were the one communicating the information. So that could be potential misconduct by both jurors. Any input on the state up to this point? Mr. Smith?
Attorney Jason Smith (27:02):
Not at this point, Judge.
Judge (27:03):
Okay. Mr. Britt, any input?
Attorney Luther Britt (27:05):
No, sir. And I concur.
Judge (27:06):
Okay. Thank you. All right. Let's bring in Juror Number 3 and if they can sit in their appropriate seat.
Juror #5 (27:17):
Yes, Your Honor. Bring in Juror Number 3.
Judge (28:02):
All right. Let the record reflect that Juror Number 3 has entered the courtroom. Good morning.
Juror Number 3 (28:06):
[inaudible 00:28:07].
Judge (28:08):
Ma'am, it has been communicated to us a couple of things, so I'm going to ask some very specific questions. Okay? First, Juror Number 2 has communicated to us that you mentioned to Juror Number 2 that the defendant is not a member of the KKK, that the defendant was marginalized in his community, and that the defendant was not part of the KKK. Yes or no, did you communicate that information to Juror Number 2?
Juror Number 3 (28:50):
No.
Judge (28:51):
Okay. Next question. Have you communicated with Juror Number 2 regarding any aspect of this trial outside of the jury room during your deliberations?
Juror Number 3 (29:10):
No, sir.
Judge (29:14):
Okay. Have you communicated any of that particular information to any other juror member?
Juror Number 3 (29:21):
No, sir.
Judge (29:23):
Okay. Have you had any communications with any other juror member outside of the jury room outside of deliberations?
Juror Number 3 (29:32):
No, sir.
Judge (29:40):
Without getting into your deliberations, have you received any additional information regarding the defendant and any affiliation or non-affiliation with any of those types of groups?
Juror Number 3 (30:05):
Absolutely not.
Judge (30:05):
Have not communicated with anybody regarding the defendant since this trial started?
Juror Number 3 (30:10):
Correct. No.
Judge (30:11):
Have not communicated with anybody else about the defendant prior to this trial starting?
Juror Number 3 (30:16):
Absolutely not.
Judge (30:17):
Or prior to being questioned during jury selection?
Juror Number 3 (30:28):
No.
Judge (30:28):
Have not conducted any... Have you conducted any additional internet research regarding the defendant since this trial began?
Juror Number 3 (30:39):
No, sir.
Judge (30:40):
Did you conduct any internet research regarding the defendant prior to the trial beginning?
Juror Number 3 (30:48):
No, sir.
Judge (30:48):
Did you conduct any internet research prior to jury selection beginning?
Juror Number 3 (31:07):
No, sir.
(31:07)
Am I allowed to stay?
Judge (31:08):
Well, I'm trying to walk a very fine particular line here because I don't want to get into your jury deliberations and what you've all discussed, but this is obviously a particular point of concern to make sure that there isn't any extraneous information being brought into the jury room. So not quite yet, because if you're telling me truthfully that no, you haven't received any extraneous information and you haven't communicated any extraneous information and you haven't had any communications outside of the jury room, then I'm not sure if my questioning needs to go any further than that. Okay?
(31:59)
What I'm going to do is I'm going to excuse you from the courtroom right now at this time. If we need to bring you back in for additional questions, we will do that for any clarification. So you're excused to go back to the courtroom.
Attorney Luther Britt (32:10):
Before she leaves-
Judge (32:15):
Nope. She's going to leave and then-
Attorney Luther Britt (32:15):
... I'm going to ask a question.
Judge (32:16):
No, I know. She's going to leave and then we can discuss whether or not I'm going to allow you to ask any questions because I think that we got to a particular-
Attorney Luther Britt (32:25):
[inaudible 00:32:26].
Judge (32:28):
Right. Okay. Go ahead.
Attorney Luther Britt (32:32):
And it may have been during my coughing spell. Did you tell her not to say anything in the jury room?
Judge (32:41):
I did not. If you can bring her back, yes, please.
Juror #5 (32:43):
Bringing her back. She's in the restroom.
Judge (33:05):
Okay. She's in the restroom.
Juror #5 (33:06):
As soon as she comes out, [inaudible 00:33:08].
Judge (33:28):
Right there is fine. Just an admonition. Do not discuss any of the questions that I just asked you with the other juror members. Okay?
Juror Number 3 (33:35):
I understand.
Judge (33:35):
All right. Thank you.
(33:44)
All right. Mr. Britt, any comment regarding the answers and questions that I gave to Juror Number 3?
Attorney Luther Britt (33:54):
No, sir.
Judge (33:54):
Okay. Do you think that I need to inquire further of her regarding any potential misconduct?
Attorney Luther Britt (34:01):
No, sir.
Judge (34:01):
Okay. Thank you. Mr. Smith?
Attorney Jason Smith (34:04):
Judge, I don't have anything as to the questions that you asked her as to whether or not we inquire further. I think we need to inquire with Juror Number 2.
Judge (34:12):
Correct.
Attorney Jason Smith (34:13):
And that will decide what happens next and any further inquiring of her or anybody else.
Judge (34:19):
Okay. All right. I agree. But as far as at this point, nothing that we need-
Attorney Jason Smith (34:24):
I'm satisfied the way the questions that were asked and informed.
Judge (34:29):
Okay. Thank you. All right. Let's go ahead and bring Juror Number 2.
Juror #5 (34:33):
Yes, Your Honor.
(34:34)
Bring in Juror Number 2-
Bailiff (35:03):
Good morning, sir. Take a seat.
Judge (35:12):
All right. Let the record reflect that Juror Number Two has entered the courtroom. Good morning.
Juror Number Two (35:15):
Good morning.
Judge (35:17):
Juror Number Two, you communicated to the bailiff, and as best as the bailiff communicated to me, and we're not going to be using any names, just FYI, that Juror Number Three had communicated to you that Juror Number Three did not believe that the defendant was a member of the KKK, that the defendant was marginalized in his community, and the defendant was not part of the KKK. Okay? So I'm going to ask some very specific questions. I want to make sure that we're not getting into any of your jury deliberations. Okay? The information that was communicated to you by Juror Number Three, was that communicated to you outside of the jury room and outside of deliberations?
Juror Number Two (36:19):
No.
Judge (36:22):
Okay. And you specifically, have you engaged in any sort of research regarding the defendant outside of the trial?
Juror Number Two (36:38):
Not at all.
Judge (36:39):
Have you engaged in any sort of communication with anybody else outside of the trial regarding the defendant?
Juror Number Two (36:50):
No, I haven't.
Judge (36:52):
Did you engage in any research outside of the trial before the trial began about the defendant?
Juror Number Two (36:59):
I knew nothing about this case.
Judge (37:01):
Okay. And did you communicate with anybody else regarding the defendant prior to the trial beginning?
Juror Number Two (37:09):
No.
Judge (37:10):
And did you conduct any other research about the defendant before jury selection began?
Juror Number Two (37:17):
Absolutely not.
Judge (37:18):
Did you communicate with anybody else regarding the defendant before jury selection began?
Juror Number Two (37:23):
No.
Judge (37:24):
The information between you and Juror Number Three, was that information that was communicated during your jury deliberations, yes or no?
Juror Number Two (37:35):
Yes.
Judge (37:35):
Okay. And other than a potential feeling that Juror Number Three might have more information, yes or no, do you have any other additional reasons why you think that Juror Number Three might have additional information?
Juror Number Two (38:11):
I do have reasons to believe that, yes.
Judge (38:13):
Okay.
Juror Number Two (38:20):
May I say something?
Judge (38:23):
Give me a minute because I'm trying to walk a very fine line in not getting into your deliberations and discussions.
Juror Number Two (38:31):
I understand that.
Judge (38:31):
But I'm-
Juror Number Two (38:32):
I wouldn't say the deliberations here. I just-
Judge (38:37):
Correct. But I also want to make sure that we're avoiding any sort of misconduct. Other than just a general feeling, yes or no, is there anything else as to why you think that Juror Number Three might have received additional information?
Juror Number Two (39:04):
From comments that were made.
Judge (39:05):
Okay. Just-
Juror Number Two (39:05):
From day one.
Judge (39:05):
... comments that she's made?
Juror Number Two (39:07):
Day one of deliberations.
Judge (39:11):
Of deliberations?
Juror Number Two (39:12):
Yes.
Judge (39:12):
While you all were speaking?
Juror Number Two (39:14):
Yes.
Judge (39:14):
Okay. Comments, yes or no, in addition to what has been communicated to the bailiff that hasn't been communicated to him.
Juror Number Two (39:25):
I-
Judge (39:28):
Hold on. Or did all of the comments that you communicated to the bailiff encompass the reasons why you think that Juror Number Three might have more information?
Juror Number Two (39:39):
Out of her own mouth came, "I know things, but I can't say it." That was on day one. I don't want to get into the deliberations.
Judge (39:56):
Exactly. Yes.
Juror Number Two (39:56):
So that's-
Judge (39:57):
So she communicated to everybody, is that correct?
Juror Number Two (40:04):
There are other witnesses, yeah.
Judge (40:06):
Okay.
Juror Number Two (40:06):
I just, I got to be honest with you, I prayed about this all last night. I didn't want to do this. I'm not-
Judge (40:12):
I understand.
Juror Number Two (40:12):
[inaudible 00:40:13].
Judge (40:13):
No.
Juror Number Two (40:14):
I feel convicted about this.
Judge (40:17):
Okay. Hold on.
Juror Number Two (40:18):
Yeah.
Judge (40:18):
All right. Stop. Going back to what you said, Juror Number Three communicated, "I know things, but I'm not allowed to say."
Juror Number Two (40:41):
No, that wasn't her wording.
Judge (40:43):
All right. What were her words?
Juror Number Two (40:46):
"I know things about this." And it was after a comment I made, and if I-
Judge (40:53):
Okay, hold on.
Juror Number Two (40:54):
I don't want to say the clock.
Judge (40:55):
All right. Hold on.
Juror Number Two (40:56):
This is-
Judge (41:07):
"I know things about this," was what Juror Number Three said.
Juror Number Two (41:13):
Yes.
Judge (41:13):
Okay.
Juror Number Two (41:13):
And if I may say-
Judge (41:19):
Give me-
Juror Number Two (41:19):
... something just-
Judge (41:21):
All right. Hold on.
Juror Number Two (41:22):
... that-
Judge (41:24):
Like I said, I'm trying to walk a fine line. Now, if you keep going after I say, "Stop," then we're going to get past that line and it's going to be at a point where we can't return. Okay? So I just need a moment to think before we move on. Thank you. Which juror numbers were the other jurors that heard Juror Number Three say, "I know things about this"?
Juror Number Two (42:01):
Oh, about that? I don't know, but on the KKK thing, there were a few. I think the... I'm just trying to think here. Number Four, I believe heard. Number 10 heard it. And she heard other things too yesterday.
Judge (42:38):
You said Juror Number 10 heard other things.
Juror Number Two (42:42):
She heard... Well, the way you're describing the one-
Judge (42:46):
My question is very specific.
Juror Number Two (42:48):
Okay.
Judge (42:49):
Juror Number 10 heard other things.
Juror Number Two (42:50):
Heard other things that she has said. I'm sure she did.
Judge (42:54):
Okay. Thank you. Okay. All right. I think that that's as far as I'm going to go at this particular point. If we need to bring you back in, then we'll bring you back in for additional questions. Do not discuss what we've discussed here now with anybody else in the jury room. Okay?
Juror Number Two (43:27):
Yeah.
Judge (43:28):
All right. Thank you. You're excused.
Juror Number Two (43:45):
Thank you. Thank you.
Bailiff (43:45):
Juror Number Two has left the courtroom.
Juror Number Two (43:45):
Thank you, sir. Let the record reflect that Juror Number Two has exited the courtroom. Any input at this point, Mr. Smith?
Mr. Smith (43:57):
Judge, I think we have... Well, you've got two issues here as what she said about the KKK thing. It appears that she has more information just from what he said. She has more information than what she's told us, either on voir dire here, in this, not voir dire, your questioning of her. I have concern with that. I also have concern that she says, " I know things about this, but I can't say." Luckily she hasn't said, or she's tainting everybody, right? So I'm going to ask that we open voir dire and I'm going to ask to strike her for cause, Judge.
Judge (44:45):
All right. Mr. Britt?
Mr. Britt (44:46):
Gotcha. I am concerned about the information that's been shared. I'm also concerned about that Number Two believes that Four and 10 heard the comments, and that begs the question, how many others may have? And based on where we are right now, I think it's appropriate possibly to talk to Four and 10 just in very general terms about any comments that jurors have made about prior knowledge of the case.
Judge (45:27):
Okay.
Mr. Britt (45:35):
I think Four and 10 should... And then if they divulge that others may have heard, then we have a bigger issue.
Judge (45:39):
Yeah. Okay. Mr. Smith?
Mr. Smith (45:44):
You've kept it tight. I just want to make sure we keep it tight where they're not divulging a deliberations, but it doesn't sound like that the only specific thing she has said is the KKK thing. Maybe, maybe. We'll ask Four and 10 and we'll find out.
Judge (46:01):
I mean, Juror Number Three denied saying it.
Mr. Smith (46:06):
Right.
Judge (46:07):
Right? So I think that it's incumbent upon us to inquire jurors Four and 10 to see whether or not it was said.
Mr. Smith (46:15):
Are you going to mention the KKK thing to Four and 10?
Judge (46:20):
I think I need to.
Mr. Smith (46:20):
Or can we do it in more general terms so we don't taint them with the KKK thing?
Judge (46:27):
I think that we've got two people who are offering the court conflicting accounts and we may have two people who can either confirm one or the other accounts.
Mr. Smith (46:45):
Fair enough.
Judge (46:46):
So I think that we need to confirm whether or not Juror Number Three actually said that thing and whether Juror Number Three is being truthful at this point.
Mr. Smith (46:55):
Yes, sir.
Judge (46:57):
Okay. Let's bring in Juror Number four.
Bailiff (47:03):
Bring in Juror Number four, Juror Number four.
Judge (47:37):
All right. Good morning.
Juror Number Four (47:38):
Good morning.
Judge (47:40):
I'm going to ask you some very specific questions.
Juror Number Four (47:45):
Okay.
Judge (47:45):
Please answer as best you can, yes or no to those questions that I ask you. If I need you to elaborate, then I'll ask you to elaborate, okay? Have you engaged in any communication with any other jury member outside of the jury room, outside of jury deliberations?
Juror Number Four (48:08):
No.
Judge (48:08):
Okay. Have you heard Juror Number Three communicate during your deliberations anything to the effect of that the defendant is not a member of the KKK, that the defendant was marginalized in his community, and that the defendant was not a part of the KKK?
Juror Number Four (48:38):
Yes, sir.
Judge (48:39):
Okay. And you heard that from Juror Number Three? Sorry, you have to answer out loud.
Juror Number Four (48:44):
Yes, sir.
Judge (48:44):
Thank you. Have you heard Juror Number Three communicate that Juror Number Three knows things about this and perhaps could not communicate further about Juror Number Three's knowledge?
Juror Number Four (49:04):
Yes. Yes. Roughly, yes.
Judge (49:08):
Roughly, yes.
Juror Number Four (49:09):
Yes, sir.
Judge (49:12):
Okay. Do you know anybody else in the jury room during your deliberations that would've heard any or both of those comments?
Juror Number Four (49:25):
No.
Judge (49:30):
Okay. Yes or no, is it your belief that Juror Number Three, through her communications, might have outside knowledge of the case not presented during the trial?
Juror Number Four (49:52):
Yes, sir.
Judge (49:55):
Okay. Thank you. Do not communicate with any other jury member regarding what you've discussed here in court.
Juror Number Four (50:01):
Yes, sir.
Judge (50:02):
Thank you. You're excused. Let's bring in Juror Number 10.
Bailiff (50:15):
Bring in Juror Number 10. Number 10.
Mr. Britt (50:17):
Did she orally answer your question about outside knowledge?
Mr. Smith (50:22):
She did.
Judge (50:22):
She did. She said, "Yes."
Juror #5 (50:23):
Judge, did you instruct Four not to talk about-
Judge (50:47):
I did.
Juror #5 (50:47):
Okay. Just wanted to make sure.
Judge (50:50):
Let the record reflect that Juror Number 10 has entered the courtroom. Good morning.
Juror Number 10 (50:53):
Good morning.
Judge (50:53):
I'm going to ask you some very specific questions. They're going to be yes or no unless I want you to elaborate, okay?
Juror Number 10 (51:02):
Okay.
Judge (51:06):
Have you engaged in any communication with any other juror member outside of the jury room, outside of your jury deliberations?
Juror Number 10 (51:17):
No.
Judge (51:21):
Yes or no, have you heard Juror Number Three communicate anything to the effect of Juror Number Three thinking that the defendant is not a member of the KKK, the defendant was marginalized in his community, and the defendant is not a part of the KKK?
Juror Number 10 (51:51):
Sorry, which one is Jury Number Three?
Judge (51:54):
Juror Number Three would be the juror right behind you over your right shoulder.
Juror Number 10 (52:03):
I have heard some of that.
Judge (52:06):
You heard some of that?
Juror Number 10 (52:07):
In the jury room.
Judge (52:09):
During your deliberations?
Juror Number 10 (52:10):
Yes.
Judge (52:12):
Have you also heard Juror Number Three say something to the effect of, "I know things about this," and then indicate that she couldn't talk further about that?
Juror Number 10 (52:25):
Yes.
Judge (52:28):
Is it your belief that Juror Number Three may have additional knowledge about this case that was not presented at trial?
Juror Number 10 (52:39):
I've wondered, yes.
Judge (52:47):
Okay. Are there any other juror members that may have heard either or both of that information?
Juror Number 10 (52:56):
Yes.
Judge (52:58):
Do you know which juror numbers that may be?
Juror Number 10 (53:01):
I'm thinking everyone during the deliberations.
Judge (53:01):
Okay.
Juror Number 10 (53:11):
I'm not positive.
Judge (53:16):
Okay. All right. You are excused. Do not communicate with any other juror member regarding what you've discussed here in court just now, okay?
Juror Number 10 (53:22):
Okay. Yes, sir.
Judge (53:23):
Thank you.
Juror Number 10 (53:23):
Okay.
Mr. Smith (53:23):
Excuse me.
Bailiff (53:23):
Juror Number 10 has left the courtroom.
Judge (53:24):
Thank you. Let the record reflect that Juror Number 10 has exited the courtroom. Well, we've got a very big issue overarching, is that Juror Number Three has communicated information that she has potentially received outside of trial and that the entire panel has heard that information. And B, that Juror Number Three has not been forthright with this court either during this questioning or during voir dire. So Mr. Smith, any input at this particular point?
Mr. Smith (54:39):
As to Juror Number Three, I'm asking that she would be removed for cause. As to the comment made during the course of deliberation suggesting she has extraneous information about the case, that information isn't, I don't believe, prejudicial to the defendant. Actually, it's helping the defendant. I believe that we can ask them, the jurors, "Are you prejudiced by the information that you've heard and can you still do your duty as a juror, the function of the jury and only take into account the information you've heard from inside this courtroom?"
(55:22)
I think, I mean, declaring a whole mistrial, I don't believe for a non-material fact, and it is a non- material fact, not one that we've said. We've never alleged that he was in the KKK. The opposite of what Juror Number Three is saying. So what she has said doesn't prejudice the defendant. And I think we can ask the jury... We would ask him any other time, "If you have extra information, will this prevent you from being fair and impartial? Can you still take into account the evidence that you find in this courtroom and make your decision based on only the evidence heard in this courtroom?" Judge.
Judge (56:15):
Okay. Thank you.
Mr. Smith (56:16):
I mean, pretrial, that's what we would've done anyway.
Judge (56:22):
Mr. Britt?
Mr. Britt (56:28):
There are two problems. One, I believe the comments were made. The other problem is there is the potential that everyone heard it. And we don't know what, if any, impact that has on the jurors. I would hate to think that we have to inquire of all of them individually about any knowledge they have.
(56:55)
The overriding issue is she's in violation of the court's order. And I don't think there's any question about whether she should be removed. It becomes a question of, are there other jurors that may need to be removed because they've been influenced by what she said? And we have three alternates, and if we replace her with one alternate, we're down to two. And then suddenly we have an issue, may have an issue where more than two jurors will say, "Yes, it's influenced me." And then we don't have enough, but we'd have to declare a mistrial. I think as a matter of caution that all the members of the jury eventually need to be asked if they heard the extraneous comments.
Judge (58:08):
Hold on one second, Mr. Smith. As I'm also thinking, Juror Number Two insinuated that there might have been additional comments made by Juror Number Three and as to why Juror Number Two was forming the opinion that they believe Juror Number Three had additional information. Should we inquire further of Juror Number Two as to any additional comments?
Mr. Smith (58:39):
Well, he said the general comment was, "I have information. I can't talk about it." He didn't give us specifics.
Judge (58:48):
No, he didn't. And I don't recall whether there was anything else beyond those two particular statements.
Mr. Smith (59:02):
I think, Judge, the caution is if we want to bring each of the 12 back in, individually ask them, "Have you heard any information that is extraneous to these proceedings? And if so, can you still render a verdict based solely on the evidence?" And that's State v. Campbell, a 1995 Court of Appeals case.
(59:25)
And I think if we, again, based upon the information that we know and what the comment she made, it's not a material fact to the case. It actually helps the defendant. And I think if we can say, can you ask them the question, "Can you still be fair and impartial? Can you render your verdict based upon the information?"
(59:49)
If we want to do an individual voir dire on every one of them, that's fine. I have no issues with that, Judge. I think Mr. Britt's right. I think we need to inquire with them, but we need to be very, very careful not to expose them to more than...
Judge (01:00:05):
I mean, if I'm inquiring each one, I think asking have they heard any extraneous information is too vague because we're talking about very specific information that Juror Number Three is saying, and Juror Number 10 seems to indicate that everybody else has heard it. I think if we did an individual voir dire of everyone, I think I would need to ask them specifically about that particular information.
Mr. Smith (01:00:36):
That's the question.
Judge (01:00:37):
And then do we bring back in Juror Number Two to verify whether there wasn't any additional information? Because this is the only thing that we have right now as far as extraneous information.
Mr. Smith (01:00:56):
Right. I'm hoping he would've told the bailiff more specifics if there was more, Judge.
Judge (01:01:06):
Okay. I think that we should inquire of each one of them individually of whether they heard the comment, whether they can disregard the comment and continue to remain a fair and impartial juror. Mr. Britt?
Mr. Britt (01:01:32):
I agree with that.
Judge (01:01:32):
Okay. Mr. Smith?
Mr. Smith (01:01:33):
Yes, Judge. I'm looking at blurts out of the bench book and it talks about your discretion. You have a wide range of discretion how you handle this, Judge. And I think you're protected by the Court of Appeals if you're using your discretion on this. So I'm all right with that, Judge.
Judge (01:02:00):
Okay. So what I will do is we'll bring back in Juror Number Two to verify whether there were any additional comments made from Juror Number Three about outside information.
Mr. Smith (01:02:23):
Yes, sir.
Judge (01:02:24):
And then we'll go from there. And if there aren't any, I'll inquire of him first if he can disregard the comment and remain fair and impartial. And then go from there for everybody else. Okay.
Mr. Smith (01:02:37):
And Judge, can you render your verdict based solely on the evidence presented in this courtroom?
Judge (01:02:43):
Thank you. All right. Let's bring back in Juror Number Two again.
Bailiff (01:03:07):
Bring in Juror Number Two. Juror Number Two.
Judge (01:03:43):
All right. Let the record reflect that Juror Number Two is back in the courtroom. Juror Number Two, yes or no? Were there any additional comments made by Juror Number Three that appeared to be information outside of the evidence presented at trial?
Juror Number Two (01:04:00):
Yes.
Judge (01:04:01):
What were those comments?
Juror Number Two (01:04:10):
You want me to...
Judge (01:04:14):
I want you to say...
Juror Number Two (01:04:15):
You-
Judge (01:04:16):
Hold on.
Juror Number Two (01:04:16):
Okay.
Judge (01:04:17):
I want you to say specifically as you remember what Juror Number Three said that could be interpreted as a comment of information outside of this trial. Does that make sense?
Juror Number Two (01:04:31):
Yes, because it was never brought up in this trial.
Judge (01:04:33):
Okay. So what would that comment have been?
Juror Number Two (01:04:38):
There was one comment, the sentence. You don't want just one word. You want what the sentence was?
Judge (01:04:45):
Correct.
Juror Number Two (01:04:46):
"He can't be racist because his girlfriend's Black."
Judge (01:04:52):
Okay. One second.
Juror Number Two (01:04:53):
"And he has a child with her."
Judge (01:04:55):
Okay. One second.
Juror Number Two (01:04:55):
That's what she said.
Judge (01:04:56):
Okay. One second.
Juror Number Two (01:04:57):
Okay.
Judge (01:04:58):
I'm going to repeat back to make sure that I have this accurately. "He can't be racist because his girlfriend is Black and he has a child that is Black."
Juror Number Two (01:05:31):
Not Black, just a child with her.
Judge (01:05:41):
"He can't be racist because his girlfriend is Black and he has a child with her."
Juror Number Two (01:05:47):
Exactly.
Judge (01:05:49):
Yes or no, were there any other comments?
Juror Number Two (01:05:56):
Yes, but being under the gun, I'm nervous. I'm just trying to think. Other than the first day, she did say that she knew things. And I asked her after she made that comment.
Judge (01:06:14):
Which comment?
Juror Number Two (01:06:16):
The one about having a Black girlfriend.
Judge (01:06:19):
Okay.
Juror Number Two (01:06:19):
I asked her how she knew it and she said she heard things. And then I did have the conversation. I said, " We're not supposed to know anything about him. It's not right." And then it quieted down.
Judge (01:06:37):
Okay. All right. One second. And that was after your jury deliberations had begun?
Juror Number Two (01:06:52):
Yes. And I remember another comment.
Judge (01:06:54):
All right. One moment. Okay. What's the other comment?
Juror Number Two (01:07:04):
She said this was the biggest case that hit Pender in a long time.
Judge (01:07:11):
Hold on. You said, "This was the biggest case that hit Pender in a long time?"
Juror Number Two (01:07:15):
That I know.
Judge (01:07:15):
Okay. One second. " This was the biggest case that hit Pender in a long time."
Juror Number Two (01:07:35):
Yeah. You want to hear the other one?
Judge (01:07:38):
Yes.
Juror Number Two (01:07:40):
No, she didn't say it, but I felt the way she addressed it. She was sympathetic to David because after this incident happened, he was blackballed by the whole town.
Judge (01:07:52):
So she said that everyone was... Sorry. She appeared sympathetic because she said the defendant was blackballed by everyone in town.
Juror Number Two (01:08:03):
After this incident happened. And that's probably why he had to move away.
Judge (01:08:10):
All right. Hold on. After the incident happened, defendant was blackballed in town and that's probably why he had to move away.
Juror Number Two (01:08:52):
Yes.
Judge (01:08:52):
Is that a yes?
Juror Number Two (01:08:54):
That's exactly.
Judge (01:08:56):
Okay. Any other comments?
Juror Number Two (01:08:59):
Just innuendos, but nothing I think that would really, really stand out. Can I make a comment please?
Judge (01:09:11):
No. We're being, again, very particular and very specific. I'm going to ask you some additional questions.
Juror Number Two (01:09:21):
Okay.
Judge (01:09:21):
Can you disregard those comments? Yes or no?
Juror Number Two (01:09:27):
No.
Judge (01:09:28):
Okay. All right. Thank you. I'm going to have you excused back to the jury room. And please, again, do not discuss with anybody else regarding anything we've discussed.
Mr. Smith (01:09:42):
Judge, may we approach before you send him out?
Judge (01:09:43):
All right. Approach.
Judge (01:10:19):
Can you continue to remain a fair and impartial juror despite those comments?
Juror 1 (01:10:27):
Yes, I could.
Judge (01:10:29):
Can you render your verdict based solely on the evidence that was presented in this courtroom during this trial?
Juror 1 (01:10:35):
That's exactly what I've been doing.
Judge (01:10:37):
So...
Juror 1 (01:10:38):
Yes.
Judge (01:10:38):
Then, to my other question, though the information has been presented to you, can you disregard those comments and only consider the evidence that has been presented at this trial?
Juror 1 (01:10:52):
Yes. I don't have any feelings against her. I don't dislike her.
Judge (01:10:58):
Not with regard to the juror, but with regard to whether you can be a fair and impartial juror to both of these parties.
Juror 1 (01:11:06):
Absolutely.
Judge (01:11:07):
Despite having heard evidence or information that may be outside of the trial evidence, can you set that information aside and only consider the evidence that was presented at trial?
Juror 1 (01:11:20):
Yes.
Judge (01:11:20):
Okay. All right. Thank you. Again, please do not discuss this with any other juror. I'll start with you, Mr. Britt. Does the additional information that juror number two provided change how you feel about any of the decisions we made prior to bringing juror number two back in?
Mr. Britt (01:12:09):
No, sir.
Judge (01:12:12):
So then would you still be satisfied if the other jurors then answered as juror number two answered?
Mr. Britt (01:12:22):
Yes, sir.
Judge (01:12:28):
Okay.
(01:12:28)
Mr. Smith?
Mr. Smith (01:12:30):
Judge, I think that's what we need to do with each juror. "Have you heard the information? Can you set it aside and still be a fair and impartial juror and only take into account the information that's heard in this courtroom when reaching verdict?"
Judge (01:12:46):
Okay. Thank you.
(01:12:47)
All right. Let's bring in juror number one.
Juror #5 (01:12:53):
Bring in juror number one, please. Juror number one.
Judge (01:12:55):
Good morning.
Juror #1 (01:13:33):
Good morning.
Judge (01:13:35):
Let the record reflect that juror number one has entered the courtroom.
(01:13:39)
Ma'am, I'm going to ask you some very specific questions, and I need you to answer yes or no to these questions, okay? Have you heard juror number three say something to the effect of juror number three does not believe that the defendant is a member of the KKK, that the defendant was marginalized in his community, and that the defendant was not a part of the KKK?
Juror #1 (01:14:12):
No.
Judge (01:14:17):
Have you heard juror number three say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #1 (01:14:28):
No.
Judge (01:14:30):
Have you heard juror number three say, this was the biggest case that hit Pender County in a long time?
Juror #1 (01:14:41):
No.
Judge (01:14:43):
Have you heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"? Sorry, is that no?
Juror #1 (01:14:56):
No. I'm sorry.
Judge (01:14:57):
Thank you. Just for our court reporter. Thank you. Ma'am, would you be able to disregard any potential extraneous comments and only consider the evidence that was presented here at this trial?
Juror #1 (01:15:14):
I can.
Judge (01:15:16):
Can you continue to remain a fair and impartial juror?
Juror #1 (01:15:20):
Yes.
Judge (01:15:21):
And can you render your verdict based solely on the evidence in this courtroom that was presented during this trial?
Juror #1 (01:15:28):
Yes.
Judge (01:15:29):
All right. Thank you. You are excused. Please do not discuss anything that I mentioned with the other jurors. Thank you.
(01:15:39)
Let's bring in juror number four.
Juror #5 (01:15:45):
Bring in juror number four.
Juror #4 (01:15:52):
[inaudible 01:15:52]
Judge (01:15:52):
Yes.
Mr. Smith (01:15:52):
We need to be very careful. If she hasn't heard it, then there may be other jurors that... I know, Judge. I don't know how we-
Judge (01:15:57):
I can't get around-
Mr. Smith (01:15:59):
Right.
Judge (01:16:00):
Extraneous is too vague.
Mr. Smith (01:16:02):
Yes, sir.
Judge (01:16:03):
And we've already had three individuals who've said, "Yes."
Mr. Smith (01:16:08):
Yes, Your Honor. I understand.
Judge (01:16:11):
So this is the best that we can do. And the exercise of my discretion, I think that we got to do it.
Mr. Smith (01:16:16):
Yes, sir.
Judge (01:16:24):
All right. Welcome back. You already indicated yes, that you've heard juror number three say those things regarding the KKK, is that correct?
Juror #4 (01:16:36):
Yes, sir.
Judge (01:16:37):
Okay. Have you also heard juror number three say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #4 (01:16:49):
Yes, sir.
Judge (01:16:52):
Have you also heard juror number three say that... You also already indicated that you heard juror number three say that she knows things about this, is that correct?
Juror #4 (01:17:07):
Yes, sir.
Judge (01:17:09):
Have you also heard juror number three say that this was the biggest case that hit Pender in a long time?
Juror #4 (01:17:15):
Yes, sir.
Judge (01:17:17):
Have you also heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #4 (01:17:26):
I did not hear that.
Judge (01:17:29):
Okay. Can you disregard any information that might have been received during your deliberations and only consider the information and evidence that was presented at trial?
Juror #4 (01:17:44):
I have. Yes, sir.
Judge (01:17:45):
Okay. And can you remain a fair and impartial juror with regard to both of these parties?
Juror #4 (01:17:52):
Yes, sir.
Judge (01:17:53):
Can you render your verdict based solely on the evidence that was presented at trial in this courtroom?
Juror #4 (01:18:02):
Yes, sir.
Judge (01:18:03):
Okay. Thank you. Please do not discuss again anything we've mentioned here in court.
Juror #4 (01:18:07):
Yes, sir.
Judge (01:18:07):
Thank you.
(01:18:11)
Let's bring in juror number five.
Juror #5 (01:18:44):
Juror number five.
Mr. Smith (01:18:45):
Judge, would you entertain just asking the jurors-
Judge (01:18:47):
Hold on.
Mr. Smith (01:18:47):
I'm sorry.
Judge (01:18:47):
May approach.
(01:18:47)
All right. Let the record reflect that juror number five has entered the courtroom.
(01:19:49)
Good morning.
Juror #5 (01:19:49):
Morning.
Judge (01:20:10):
I'm going to ask you some yes or no questions. First, juror number three, who is sitting in a couple of seats to your right-
Juror #5 (01:20:22):
Yes, sir.
Judge (01:20:23):
... have you heard juror number three say information that might be considered information that was not presented at this trial?
Juror #5 (01:20:33):
I think she said-
Judge (01:20:42):
Yes or no?
Juror #5 (01:20:43):
Yes, sir.
Judge (01:20:46):
Okay. Have you heard juror number three say something to the effect that the defendant was not a member of the KKK, the defendant was marginalized in his community, and the defendant was not a part of the KKK?
Juror #5 (01:21:03):
I didn't hear that, sir.
Judge (01:21:05):
Have you heard juror number three say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #5 (01:21:16):
I didn't hear that, sir.
Judge (01:21:19):
Have you heard juror number three say that she knows things about this?
Juror #5 (01:21:27):
Yes, sir.
Judge (01:21:29):
Have you heard juror number three say that this was the biggest case that hit Pender in a long time?
Juror #5 (01:21:36):
Yes, sir.
Judge (01:21:37):
Have you heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #5 (01:21:50):
Something to that effect. Yes, sir.
Judge (01:21:53):
Okay. Would you be able to disregard any of those comments and only consider the evidence that was presented at trial?
Juror #5 (01:22:02):
Yes, sir.
Judge (01:22:03):
Would you be able to remain a fair and impartial juror? Would you be able to remain a fair and impartial juror?
Juror #5 (01:22:12):
Yes, sir.
Judge (01:22:13):
Would you be able to set those comments aside and render your verdict based solely on the evidence that was presented in this courtroom?
Juror #5 (01:22:22):
Yes, sir.
Judge (01:22:22):
All right. Thank you. You're excused. Please do not discuss with anybody else what we have discussed here.
Juror #5 (01:22:27):
Yes, sir.
Judge (01:22:43):
All right. We had two bench conferences and I failed to annotate the first one. The second one was Mr. Smith asked if I could inquire, first, if they had heard anything. I indicated I don't think that I could. Mr. Britt requested that I inquire as to each of the things that juror number three said. The other bench conference, does anybody recall? I think it was already a couple jurors prior.
Speaker 1 (01:23:27):
Was it to make sure we told him not to discuss that in the back?
Judge (01:23:32):
Might have been. I don't recall. I think that I'm going to amend what I've said. I think that it might be easier to inquire whether they think anything that juror number three has said might be considered information outside of this trial, and then go from there. I think that you've got a valid point, Mr. Smith, with juror number one, or she didn't have any indication as to their conversations. It may have been a smaller group. We might be in a better situation as far as not tainting the rest of the jury with the information.
Mr. Smith (01:24:20):
Yes, sir.
Judge (01:24:21):
Mr. Smith, do you... Or, sorry, Mr. Britt, do you wish to say anything else?
Mr. Britt (01:24:27):
No, sir. I still think you need to ask the same questions, the specific questions, because juror number five, each time you asked, he thought very thoroughly about his answers.
Judge (01:24:48):
Okay.
Mr. Britt (01:24:49):
He appeared to think very thoroughly about his answers.
Judge (01:24:53):
He did. I'll start with that extra question, and then if I feel that I need to go further into the other questions, I'll do that.
Mr. Britt (01:25:06):
Yes, sir.
Judge (01:25:07):
Okay. Bring in juror number six.
Juror #5 (01:25:12):
Bring in juror number six, please. Juror number six.
Judge (01:26:06):
All right. Let the record reflect that juror number six is here in the courtroom.
(01:26:09)
Good morning.
Juror #6 (01:26:10):
Morning.
Judge (01:26:11):
I'm going to be asking you some very specific yes or no questions regarding juror number three, okay? We're not going to say anybody's names, but yes or no, you know the individual that I'm speaking of?
Juror #6 (01:26:25):
Yes.
Judge (01:26:28):
Okay. Yes or no, have you heard anything said by juror number three that might seem to be information that was not presented at this trial?
Juror #6 (01:26:39):
In what manner?
Judge (01:26:43):
Okay. I'll go into specifics. Have you heard juror number three say that the defendant is not a member of the KKK, was marginalized in his community, and the defendant is not a part of the KKK?
Juror #6 (01:26:59):
I haven't heard that specifically.
Judge (01:27:03):
Have you heard juror number three say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #6 (01:27:12):
I can't specifically say I heard that. I'm not in every conversation.
Judge (01:27:21):
Okay. Not something that you recall as being said by juror number three?
Juror #6 (01:27:25):
Not...
Judge (01:27:25):
I'm sorry. Is that a no? That's a no.
Juror #6 (01:27:29):
That's a no.
Judge (01:27:30):
Thank you. Have you heard juror number three say something to the effect of, "I know things about this"?
Juror #6 (01:27:40):
I will say I probably have heard that.
Judge (01:27:42):
Thank you. Have you heard juror number three say, this was the biggest case that hit Pender in a long time?
Juror #6 (01:27:50):
Yes.
Judge (01:27:50):
Have you heard juror number three say, "After the incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #6 (01:28:01):
I don't know about those exact words, but the same contents.
Judge (01:28:08):
Okay. Thank you. Would you be able to disregard any of those comments and only consider the evidence that was presented here at this trial?
Juror #6 (01:28:18):
I could do it.
Judge (01:28:20):
Would you be able to remain a fair and impartial juror?
Juror #6 (01:28:23):
Yes, I could.
Judge (01:28:26):
Would you be able to render your verdict based solely on the evidence that was presented in this courtroom?
Juror #6 (01:28:36):
Yes.
Judge (01:28:37):
Okay. Thank you. Please do not discuss this with anybody else in the jury room. All right, you're excused.
(01:28:50)
Let's bring in juror number seven.
Juror #5 (01:28:51):
Number seven, please. Watch your step.
Judge (01:29:31):
All right. Good morning.
Juror #7 (01:29:33):
Morning.
Judge (01:29:34):
Let the record reflect that juror number seven has reentered the courtroom.
(01:29:38)
Juror number seven, I'm going to ask you some very specific yes or no questions regarding juror number three. Do you know the individual that I'm talking about, yes or no?
Juror #7 (01:29:49):
I do. Yes, sir.
Judge (01:29:49):
All right. Thank you. Have you heard anything said by juror number three that might seem like information that was not presented at this trial?
Juror #7 (01:30:05):
No, sir.
Judge (01:30:11):
So just to make sure that I'm clear before I go any further, you have not heard from juror number three or do not believe that anything that you've heard from juror number three might be information that was not presented at this trial?
Juror #7 (01:30:27):
I have not heard anything that she has said that was not presented in the trial.
Judge (01:30:32):
Okay. Yes or no, Mr. Smith, do you wish me to inquire further regarding the other information?
Mr. Smith (01:30:42):
No, Your Honor.
Judge (01:30:43):
Yes or no, Mr. Britt, do you wish me to inquire further regarding the other information?
Mr. Britt (01:30:48):
No, sir.
Judge (01:30:51):
Okay.
(01:30:51)
All right, sir, please do not discuss anything that we've discussed here in this courtroom with the other jury members.
Juror #7 (01:30:57):
Yes, sir.
Judge (01:30:57):
You're excused.
Juror #7 (01:30:58):
Thank you.
Judge (01:31:00):
Wait. Actually, I'm going to ask you a couple more questions.
Juror #7 (01:31:07):
Okay.
Judge (01:31:07):
Can you remain a fair and impartial juror regarding this case?
Juror #7 (01:31:12):
Yes, sir.
Judge (01:31:15):
Can you render your verdict based solely on the evidence in this courtroom?
Juror #7 (01:31:20):
Yes, sir.
Judge (01:31:20):
All right. Thank you. You are excused.
Juror #7 (01:31:21):
Thank you.
Judge (01:31:37):
Let's bring in juror number eight.
Juror #5 (01:31:41):
Juror number eight, please.
Judge (01:32:12):
Good morning.
Juror Number Two (01:32:13):
Thank you.
Judge (01:32:13):
Let the record reflect that juror number eight is here in the courtroom.
(01:32:17)
Juror number eight, I'm going to ask you very specific things about juror number three, who's the juror that sits behind you, behind your left shoulder. Do you know of the individual that I'm speaking about, yes or no?
Juror Number Two (01:32:31):
I don't. Wait a minute.
Judge (01:32:34):
Juror number three, the one that you just pointed at?
Juror Number Two (01:32:39):
Yes.
Judge (01:32:40):
Okay. So you do know who I'm talking about?
Juror Number Two (01:32:42):
Yes.
Judge (01:32:43):
Thank you. Have you heard juror number three say anything that might appear to be information that was not presented at this trial, yes or no?
Juror Number Two (01:33:00):
I can't say for certainty.
Judge (01:33:02):
Okay.
Juror Number Two (01:33:02):
I have to put it that way because there are times where there's so much going on in discussions, I can't pick out everything-
Judge (01:33:13):
That's fine.
Juror Number Two (01:33:14):
Okay.
Judge (01:33:15):
I'm going to ask you some very specific follow-up questions, okay?
Juror Number Two (01:33:20):
Yes, sir.
Judge (01:33:22):
Have you heard juror number three say something to the effect that the defendant is not a member of the KKK, was marginalized in his community, and the defendant is not a part of the KKK?
Juror Number Two (01:33:39):
Yes.
Judge (01:33:40):
Have you heard juror number three say something to the effect of, "The defendant can't be racist because his girlfriend is Black and he has a child with her"?
Juror Number Two (01:33:50):
Yes.
Judge (01:33:50):
Have you heard juror number three say something to the effect that she knows things about this?
Juror Number Two (01:33:56):
I have not heard that.
Judge (01:33:58):
Have you heard juror number three say that this was the biggest case that hit Pender in a long time?
Juror Number Two (01:34:04):
Yes.
Judge (01:34:05):
Have you heard juror number three say that after the incident happened, defendant was blackballed in town and that's probably why he had to move away?
Juror Number Two (01:34:16):
I caught part of that.
Judge (01:34:17):
Okay.
Juror Number Two (01:34:17):
I did not catch all of that. And again, I was not 100% sure who it came from, initially.
Judge (01:34:24):
All right. Thank you. Sir, will you be able to disregard any of those comments and only consider the evidence that was presented here at this trial?
Juror Number Two (01:34:34):
Yes.
Judge (01:34:36):
Will you be able to continue to remain a fair and impartial juror?
Juror Number Two (01:34:40):
Yes.
Judge (01:34:41):
Can you render your verdict based solely on the evidence that was presented in this courtroom?
Juror Number Two (01:34:47):
Yes.
Judge (01:34:48):
All right. Thank you. Please do not discuss this with any other juror member in the jury room. You're excused.
Juror Number Two (01:34:54):
Yes, sir. Thank you.
Judge (01:34:58):
Let's bring in juror number nine.
Juror #5 (01:35:00):
Number nine.
Judge (01:36:02):
Let the record reflect that juror number nine is here in the courtroom.
(01:36:05)
Ma'am, I'm going to ask you some very specific yes or no questions regarding juror number three, who is the individual who sits right behind you. Do you know the individual of whom I'm speaking?
Juror #9 (01:36:19):
I think I do.
Judge (01:36:21):
Okay. Yes or no, have you heard juror number three say anything that might seem like information that was not presented at this trial?
Juror #9 (01:36:36):
Yes.
Judge (01:36:38):
Have you heard juror number three say anything to the effect of "the defendant is not a member of the KKK, the defendant was marginalized in his community, and the defendant was not a part of the KKK"?
Juror #9 (01:36:53):
No.
Judge (01:36:54):
Have you heard juror number three say something that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #9 (01:37:06):
No.
Judge (01:37:07):
Have you heard juror number three say something to the effect of, "I know things about this"?
Juror #9 (01:37:12):
Yes.
Judge (01:37:15):
Have you heard juror number three say, this was the biggest case that hit Pender in a long time?
Juror #9 (01:37:21):
Yes.
Judge (01:37:22):
Have you heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #9 (01:37:33):
No.
Judge (01:37:35):
Will you be able to disregard all of those comments and only consider the evidence that was presented at this trial?
Juror #9 (01:37:43):
Yes.
Judge (01:37:45):
Will you be able to continue to remain a fair and impartial juror?
Juror #9 (01:37:48):
Yes.
Judge (01:37:50):
Can you render your verdict based solely on the evidence in this courtroom?
Juror #9 (01:37:55):
Yes.
Judge (01:37:56):
All right. Thank you. Please do not discuss this with anybody else in the jury room. You're excused.
(01:38:11)
Let's bring in juror number 10 again.
Juror #5 (01:38:14):
Number 10, please.
Judge (01:38:22):
All right. Let the record reflect that juror number 10 has re-entered the courtroom and I'm going to ask you some additional follow-up questions. You had already indicated yes, that you'd heard the comments regarding the KKK, is that right?
Juror #10 (01:38:58):
The what? I'm sorry.
Judge (01:39:00):
That you had heard juror number three say comments to the effect of, "The defendant is not a member of the KKK, the defendant was marginalized in his community, and the defendant was not a part of the KKK."
Juror #10 (01:39:12):
Correct.
Judge (01:39:12):
Okay. Have you heard juror number three say, "The defendant can't be racist because his girlfriend is Black and he has a child with her"?
Juror #10 (01:39:26):
Yes.
Judge (01:39:27):
Have you heard juror number three say that she knows things about this?
Juror #10 (01:39:32):
Yes.
Judge (01:39:33):
Have you heard juror number three say, this was the biggest case that hit Pender in a long time?
Juror #10 (01:39:39):
Yes.
Judge (01:39:40):
Have you heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #10 (01:39:48):
Yes.
Judge (01:39:50):
Will you be able to disregard all those comments and only consider the evidence that was presented at this trial?
Juror #10 (01:39:57):
Yes.
Judge (01:39:58):
Will you be able to continue to remain a fair and impartial juror?
Juror #10 (01:40:02):
Yes.
Judge (01:40:03):
Can you render your verdict based solely on the evidence that was presented in this courtroom?
Juror #10 (01:40:08):
Yes.
Judge (01:40:10):
All right. Thank you. Again, do not discuss this with anybody else in the jury room. You're excused.
Juror #10 (01:40:15):
Okay. Yes, sir.
Judge (01:40:16):
Thank you.
(01:40:16)
Number 11.
Juror #5 (01:40:16):
Number 11, please. Number 11.
Judge (01:40:17):
All right. Let the record reflect that juror number 11 has entered the courtroom.
(01:41:01)
Good morning.
Juror #11 (01:41:02):
Good morning.
Judge (01:41:04):
I'm going to be asking you some very specific yes or no questions regarding juror number three, who is a juror who sits behind you and to the right. Do you know the individual that I'm talking about?
Juror #11 (01:41:14):
Yes.
Judge (01:41:15):
Okay. Yes or no, have you heard anything said by juror number three that might be considered information that was not presented here at this trial?
Juror #11 (01:41:29):
Not that I can recall.
Judge (01:41:31):
All right. I'm going to ask you some very specific follow-up questions. Have you heard juror number three say anything to the effect that the defendant is not a member of the KKK, the defendant was marginalized in his community, and the defendant was not a part of the KKK?
Juror #11 (01:41:50):
Yes.
Judge (01:41:52):
Have you heard juror number three say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Juror #11 (01:42:00):
Yes.
Judge (01:42:00):
Have you heard juror number three say something to the effect that she knows things about this?
Juror #11 (01:42:08):
No.
Judge (01:42:09):
Have you heard juror number three say, this was the biggest case that hit Pender in a long time?
Juror #11 (01:42:15):
Yes.
Judge (01:42:16):
Have you heard juror number three say, "After this incident happened, defendant was blackballed in town and that's probably why he had to move away"?
Juror #11 (01:42:27):
No.
Judge (01:42:27):
Would you be able to disregard any of those comments that you heard and only consider the evidence that was presented at this trial?
Juror #11 (01:42:34):
Yes.
Judge (01:42:36):
Will you be able to remain a fair and impartial juror?
Juror #11 (01:42:39):
Yes.
Judge (01:42:40):
Will you render your verdict based solely on the evidence that was presented in this courtroom?
Juror #11 (01:42:46):
Yes.
Judge (01:42:47):
All right. Thank you. Please do not discuss this with anybody else in the jury room. You're excused. Let's bring in juror number 12.
Juror #5 (01:43:02):
Number 12, please.
Judge (01:43:34):
Let the record reflect that juror number 12 has reentered the courtroom.
(01:43:37)
Good morning.
Juror #12 (01:43:37):
Good morning.
Judge (01:43:40):
Juror number 12, I'm going to ask you some very specific yes or no questions regarding juror number three, who sits behind you and to the right. Do you know the individual that I'm speaking about?
Juror #12 (01:43:52):
Greg?
Judge (01:43:54):
Please do not say any names out loud. Yes or no, do you know the individual that I'm talking about?
Juror #12 (01:44:02):
Yes, sir.
Judge (01:44:02):
Okay. The individual is not male, but is female and is sitting one, two, three in the back row.
Juror #12 (01:44:14):
No, I don't know her.
Judge (01:44:15):
You don't know who I'm talking about? Okay. Yes or no, have you heard any information from any other juror that might be considered information that was not presented here at this trial?
Juror #12 (01:44:34):
No.
Judge (01:44:59):
I think that I'm going to go through all the other follow-ups that I went with the other ones-
Judge (01:45:00):
I'm going to go through all the other follow-ups that I went with the other ones just to make sure that, given that you've indicated you're not entirely sure of which one juror number three is. Have you heard anybody say that the defendant was not a member of the KKK, the defendant was marginalized in his community, and the defendant was not a part of the KKK?
Speaker 3 (01:45:29):
No.
Judge (01:45:29):
Have you heard anyone say that the defendant can't be racist because his girlfriend is Black and he has a child with her?
Speaker 3 (01:45:41):
No.
Judge (01:45:42):
Have you heard anyone say that they know things about this?
Speaker 3 (01:45:48):
No.
Judge (01:45:49):
Have you heard anyone say that this was the biggest case that hit Pender in a long time?
Speaker 3 (01:45:55):
Yes.
Judge (01:45:57):
Have you heard anyone say that after this incident happened, defendant was blackballed in town and that's probably why he had to move away?
Speaker 3 (01:46:07):
No.
Judge (01:46:07):
Okay. Would you be able to disregard that comment that you said yes to and only consider the evidence that was presented here at this trial?
Speaker 3 (01:46:17):
Yes.
Judge (01:46:18):
Would you be able to continue to remain a fair and impartial juror?
Speaker 3 (01:46:22):
Yes.
Judge (01:46:23):
Would you be able to render your verdict based solely on the evidence that was presented in this courtroom?
Speaker 3 (01:46:29):
Yes.
Judge (01:46:30):
All right. Thank you. Please do not discuss this with any other jurors in the jury room.
Speaker X (01:46:33):
[inaudible 01:46:42].
Judge (01:46:54):
Any input with regard to juror number three on behalf of the state?
Mr. Smith (01:46:59):
Judge, I'm going to ask that we reopen voir dire and she be stricken for cause. And specifically, I believe she was not forthright with her questionnaire. I don't believe she was forthright with, or if she was forthright with her questionnaire, she was disobeying your order about looking beyond the evidence presented in the case because she has information, Judge, that we don't even, or I don't even have information on. I didn't know the defendant's race of his girlfriend. So the only way I think that she could have known that is she gained it from outside sources, Judge. It was definitely not presented inside this courtroom. So I'm going to ask that you reopen, strike her for cause, move the first alternate over into her position, Judge.
Speaker 4 (01:47:55):
[inaudible 01:47:59].
Judge (01:48:01):
Mr. Britt?
Mr. Britt (01:48:02):
Your Honor, I don't believe you need to reopen voir dire. I believe you have the actual authority to remove her for a violation of your direct order.
Mr. Smith (01:48:15):
Yeah, I guess, you can do it under misconduct or you can do it a number of ways, Judge.
Judge (01:48:22):
Anything else, Mr. Britt?
Mr. Britt (01:48:23):
No, sir.
Judge (01:48:24):
And as far as the suggestion to remove juror number three?
Mr. Britt (01:48:29):
I think she's violating the order of the court.
Judge (01:48:47):
Okay. All right. Thank you, Mr. Britt. Did you have anything to add? 5
Mr. Smith (01:48:50):
Just now after that, Judge, I believe in accordance with State v. Jones 50 N.C. App. 263, it's a 1981 case, Judge, that after an appropriate inquiry, the trial judge must weigh all the circumstances and determine in his or her discretion whether defendant's right to a fair trial has been violated. I think you need to make that finding and findings of fact on the record. And then you've got to... Well, we've got to decide what happens with juror number three, whether she's held in contempt or not, Judge.
Speaker 4 (01:49:26):
[inaudible 01:49:41].
Mr. Smith (01:49:43):
And also there's a statute 15A-1215, talking about alternate jurors. If you decide and do not declare a mistrial, which we would argue against declaring a mistrial, when you move the alternate juror over in accordance with 15A-1215, we must instruct them that they have to begin their deliberations amend.
Judge (01:50:04):
Correct. There is a jury instruction, pattern instruction 100.40, alternate juror substituted with instructions to begin deliberations anew following the court cases from the Court of Appeals and the Supreme Court that allow for substitution of a juror even after the deliberations have begun in accordance with 15A-1215.
Speaker X (01:50:32):
[inaudible 01:50:45].
Speaker 4 (01:50:32):
[inaudible 01:50:58].
Judge (01:50:59):
All right.
Speaker 4 (01:50:59):
[inaudible 01:51:18].
Mr. Smith (01:51:19):
Judge, what pattern jury instruction did you refer to just now?
Judge (01:51:21):
100.40.
Speaker 4 (01:51:21):
[inaudible 01:51:29].
Mr. Smith (01:51:21):
Okay.
Speaker 4 (01:51:21):
[inaudible 01:52:55].
Judge (01:54:44):
Okay. Court makes the following findings of fact. This morning it was brought to the court's attention that juror number three had made some statements that would indicate that she had information or had received information outside of the evidence that was presented at this trial. After further inquiry of juror number two, those statements included, as have been repeated many times to all the jurors, that the defendant is not a member of the KKK. The defendant was marginalized in his community. The defendant was not a part of the KKK. The defendant cannot be racist because his girlfriend is Black and he has a child with her. That juror number three knew things about this, that this was the biggest case that hit Pender in a long time. And after the incident happened, defendant was blackballed in town and that's probably why he had to move away.
(01:55:57)
The court, after inquiry and input by the parties, decided to inquire of every other member of the entire jury panel. Juror number one indicated that she did not hear any of the statements made by juror number three. Juror number two, again, indicated that he heard all of those statements. Juror number four indicated that they had heard all of the statements. Juror number five indicated that they had heard most of those statements. Juror number six indicated that they had heard most of the statements. Juror number seven indicated very quickly and at the outset that he did not believe that he had heard any statements that might be considered as information not presented at this trial and no further inquiry was made of juror number seven. Juror number eight indicated that they had heard most of those statements. Juror number nine indicated that they had heard at least some of those statements.
(01:57:08)
Juror number 10 indicated that they had heard most of those statements. Juror number 11 indicated that they had heard most of those statements. Juror number 12 had indicated that they had heard at least one of those statements. Given that information and that the information that juror number two provided was not information provided during this trial, then the court will remove juror number three from the panel, as juror number three has not been honest and forthright during my questioning and during questioning during voir dire. Also, in addition to inquiring, the other 11 jury members indicated that they all could disregard any comments that were heard, that they would only consider the evidence presented at this trial, that they would remain fair and impartial jurors, and that they could render a verdict based solely on the evidence that was presented in this courtroom.
(01:58:35)
Therefore, based on those findings, I find that the defendant can still have a fair and impartial trial based on the indications of all the other jurors that they would be able to disregard that information, remain fair and impartial jurors and render a verdict based only on the information presented at this trial. That statute allows the court to substitute an alternate juror, even though the jury has already begun their deliberations pursuant to general statute section 15A-1215 subparagraph A. Therefore, in the exercise of my discretion, I do believe that this trial can continue and that the jury members can continue with their jury deliberations after we substitute in the first alternate.
(01:59:44)
With regard to any punishment of juror number three, because that will need to reveal her identifying information for any criminal contempt, any broadcast of any further questioning of juror number three, whether that's audio or visual will not be allowed. All right, so what we will do is we'll bring in all of the jury members. We will have them take a break. We will have juror number three remain. I will inquire further as to the additional information that were received from juror number two, and she can either confirm or deny that information. Regardless, she will be removed from the jury panel and depending on her further answers, whether she will be considered for contempt. Anything you wish to say, Mr. Britt?
Mr. Britt (02:01:08):
Yes, Your Honor. After conferring with David, he has asked me to move for a mistrial. He does not believe he can receive a fair and impartial trial as a result of this.
Judge (02:01:21):
All right, thank you. Anything else you wish to say regarding argument?
Mr. Britt (02:01:26):
No, sir.
Judge (02:01:26):
Okay. Mr. Smith?
Mr. Smith (02:01:28):
Judge, I've made the argument throughout this morning, but my final argument would be this. The information that was relayed or said in front of the other jurors was beneficial to the defendant. I don't believe he's prejudiced by that. You've used your discretion to inquire with each juror what they've heard and can they still be fair and impartial and each one emphatically, and you can see with their body language, yes, they could. Yes, they could. And they would only consider the evidence presented in this courtroom when they're determining their verdict. So I'm going to ask that you not declare a mistrial, Judge.
Judge (02:02:06):
Thank you. Anything else you wish to say regarding argument, Mr. Britt?
Mr. Britt (02:02:09):
Yeah, I would just simply say the overwhelming majority of the jurors, all but two acknowledged hearing, some or all of the comments that have been made. And as a result, I believe that this panel has been poisoned, for lack of a better description. We're all human. We all like to think that we can do certain things in making decisions without utilizing information that we shouldn't have, and that's a real possibility in this case.
Judge (02:02:50):
Okay, thank you. Before I rule on that, what I will do is bring all the jury members in so that they can have a break, keep juror number three, go through my questioning regarding juror number three. Once juror number three is excused, then we will all take a break and I'll have my decision after our break. Okay? Anything else we need to discuss, Mr. Britt?
Mr. Britt (02:03:27):
[inaudible 02:03:28].
Judge (02:03:28):
Mr. Smith?
Mr. Smith (02:03:29):
No, not at this time, Judge.
Judge (02:03:31):
Okay. Then let's bring in all of our jury members, including our alternates.
Speaker 2 (02:03:35):
Bring in the jury and the alternates. Jury and the alternates.
Speaker 4 (02:03:36):
[inaudible 02:04:13].
Speaker 2 (02:03:36):
Jury seated, Your Honor.
Judge (02:05:10):
Thank you, sir. Let the record reflect that the jury is into the courtroom. Members of the jury, go ahead and click those red badges on. Realize this is the first time that you all have been in the courtroom since we all began this morning. Go ahead and do that. What we're going to do, you all have been cramped in there in the jury room for quite a while, so we're going to allow you a 15-minute break. Remember, as you are out of the courtroom, do not discuss this case amongst yourselves. Do not have any discussions with anybody else, including friends, family members, or coworkers. Do not conduct any independent investigation or inquiry. Do not have any contact with any of the parties, attorneys, or witnesses. Do not post online on any social media sites regarding your experience as a juror.
(02:06:01)
So I'm going to go ahead and excuse you for about 15 minutes. I will indicate to you when I want them to line up, Mr. Bailiff.
Baliff (02:06:10):
Yes, Your Honor.
Judge (02:06:10):
Everybody except juror number three, if you can go ahead and remain, okay? All right. Everybody, you are all excused.
Baliff (02:06:14):
You'll leave your closed notebooks in the chairs, please. When ready, front row and back [inaudible 02:06:21] the back row, you're going this way. [Inaudible 02:06:28]. Yes, it's this way. Yeah. Come on. [inaudible 02:06:33]. After you, after you. After you. Thank you.
Mr. Britt (02:23:19):
... with respect to the question about researching, I will say to the court that all of the questions that have been asked specifically are matters that only could be found by someone who had done research upon David. I am greatly concerned, as I understood the comment was made to her along the lines about David raping her children. As I said earlier, I think the entire panel has been poisoned and would renew the motion to declare a mistrial.
Judge (02:24:18):
Thank you. All right, let's all take a break. Be at ease for 15 minutes.
Speaker 5 (02:24:51):
Court will be at ease for 15 minutes.
Judge (02:45:49):
All right, back on the record. I think that we definitely need to inquire of juror number 2 regarding his statement claimed by juror number 3. That is certainly information that the jury should not be considering in the deliberations as it was not information that was presented at this trial nor put on in evidence. That is also pretty egregious in whether or not he received any information outside of this trial. So what we will do, is I have also decided based on Ms. Gary's comments that I will not hold her in contempt and that I will just excuse her and she'll be excused. Yes, Mr. Smith?
Speaker 5 (02:47:02):
Are you going to make a finding as to her truthfulness with you?
Judge (02:47:08):
I mean, I can make a finding, but whether to hold her in contempt is-
Mr. Smith (02:47:13):
Has nothing to do with in contempt, just because we're getting ready to question number 2 on something she said, that is she credible or is she not credible? I think that's important in the next witnesses judgment.
Judge (02:47:27):
All right, I mean, we're going to have to go through the whole litany with all the other jurors again. Yeah, because whether or not they're considering information based on bad relationship with law enforcement, whether he's been in and out of jail, seems to be very egregious. If they're all considering that particular information, considering the information of whether or not juror number 2 is going to admit or deny, I think we go back through them and we have to ask each one of them whether or not that's information that they're considering. Whether or not juror number 3 is or is not a credible witness, we're going to go through the whole thing again with them all, because this is a very serious allegation-
Mr. Smith (02:48:24):
Yes, sir.
Judge (02:48:24):
... and they should not and cannot be deliberating about whether the defendant has had a relationship with law enforcement or that he's been out of jail, discussion as to any potential wrongdoing that he may or may not have done.
Mr. Smith (02:48:41):
I agree with that Judge. I just don't want to taint the jury, because she said 2 and 3 were next to each other, and it seemed when she was in here said that any conversation was between the two. I just want to make sure we don't taint everybody else.
Judge (02:48:57):
I agree.
Mr. Smith (02:48:57):
All right.
Judge (02:48:58):
Yeah. We will try and walk that line again-
Mr. Smith (02:49:01):
Yes, sir.
Judge (02:49:01):
... but I think we need to. But as far as juror number 3, the decision has already been made to excuse her.
Mr. Smith (02:49:09):
Yes, sir.
Judge (02:49:09):
And so we're just going to excuse her and I will not find anything regarding contempt.
Mr. Smith (02:49:14):
Yes, Your Honor.
Judge (02:49:27):
I'll bring in juror number 3, let her know that she's excused, she may go. We'll bring in the remaining jury members. We'll excuse everybody else for lunch. We'll have juror number 2 remain. We'll inquire of juror number 2, and then we will all break for lunch and we'll have an hour lunch. Okay, so that's where we're going. Let's bring juror number 3.
Speaker 5 (02:50:03):
Bring in juror number 3 from the front please.
Judge (02:51:10):
Ma'am, now that you have been excused from this jury panel, the restrictions that are previously placed upon you are now removed. However, obviously do not discuss with any other jury members that are still on this jury. All right, thank you. All right, let the record reflect that juror number 3 has exited the courtroom and let's bring in all of the other jury members.
Speaker 5 (02:52:10):
Bring in all the jury.
Judge (02:52:12):
Including the alternates.
Speaker 5 (02:52:12):
And the alternates.
Mr. Britt (02:52:12):
[inaudible 02:52:37]. Thank you.
Speaker 5 (02:52:12):
Jurors, you can go.
Judge (02:53:38):
Thank you, sir. Let the record reflect that the jury has reentered the courtroom. Members of the jury, we're going to have you break for lunch. Remember while you are out at lunch, do not discuss this case amongst yourselves. The only place to discuss this case is in the jury room and only after you've received the verdict forms and are instructed to begin your deliberations. You may not have any contact with anybody else, including friends, family members, or coworkers. You're not to conduct any independent investigation or inquiry about this case. You are not to have any contact with any of the parties, attorneys, or witnesses. You are not to post online on any social media sites. And please make sure that you do not have anybody else discuss this case in your presence while you are out at lunch. Juror number 2, I'm going to have you remain, okay? Everybody else, you are excused for lunch. Please return back here. We will reconvene at 1:30.
Speaker 5 (02:54:30):
Okay. Make sure you leave your closed notebooks in your chair. When you're ready front row [inaudible 02:54:35], please. Please remain in there [inaudible 02:54:43].
Judge (02:55:15):
Jury has exited the courtroom and juror number two is here. Juror number two, yes or no, during your deliberations, have you mentioned or discussed or brought up defendant for all we know has a bad relationship with law enforcement, has been in and out of jail?
Juror Number Two (02:55:38):
No, I did not bring that up.
Judge (02:55:39):
Did you say anything to that effect?
Juror Number Two (02:55:41):
No, I didn't. I didn't.
Judge (02:55:43):
Did you mention or discuss anything regarding a larceny?
Juror Number Two (02:55:49):
No, I did not.
(02:55:53)
Would you want to hear what I did say?
Judge (02:55:57):
Does it have to do with whether the defendant has had a bad relationship with law enforcement?
Juror Number Two (02:56:03):
What I did say to the jury, I can say it?
Judge (02:56:07):
Yes, please.
Juror Number Two (02:56:08):
Okay. I just said whether we find this defendant guilty or innocent, we'll find out about him when the trial's done because I know nothing about him.
Judge (02:56:22):
And did you ever mention the word larceny?
Juror Number Two (02:56:24):
No, I did not. It's not in my vocabulary, not larceny.
Judge (02:56:36):
Have you at any point mentioned anything else that might have been considered as information not presented during this trial?
Juror Number Two (02:56:51):
Not that I can recall. If you phrase that differently, I mean, I don't understand what you're ... I did say that we could find out about him afterwards. And that was in reference to her saying things about him, but I didn't emphasize it. That wouldn't change my mind one way or the other. 'Cause I got to be honest, I came in this blind. I know nothing about the defendant other than what I've learned in court.
Judge (02:57:19):
And you didn't conduct any other independent research to find out more information?
Juror Number Two (02:57:25):
Absolutely not. I haven't even discussed this with my wife who's watching it.
Judge (02:57:32):
Okay. Thank you. You're excused for lunch.
(02:57:40)
Please do not discuss what we just discussed with anybody else.
Juror Number Two (02:57:55):
I won't.
Speaker 6 (02:57:55):
Juror number two is excused for lunch.
(02:57:55)
Juror number two is out the courtroom.
Judge (02:57:56):
Thank you, sir. Let the record reflect that juror number two has exited the courtroom. Anything else before we break for lunch on behalf of the state?
Speaker 7 (02:58:05):
Not at this time, Judge.
Judge (02:58:06):
On behalf of the defense?
Speaker 8 (02:58:07):
No, sir.
Judge (02:58:08):
Okay. We'll be in recess until 1:30.
Speaker 9 (02:58:10):
Court will be in recess till 1:30. 1:30.
Speaker 10 (03:30:00):
(silence)
Judge (04:10:44):
All right, we are back on the record.
(04:10:53)
Bailiff informed me of an additional issue from one of the jurors, Juror Number 7. Bailiff indicated that he appeared agitated and perhaps coming to Juror Number 3's defense. Juror Number 7 stated that at some point during this trial that Juror Number 3 had stopped other people or other jurors from discussing the case outside of the jury room.
(04:11:45)
I think that we should bring out Number 7 first and get an idea as to when that had occurred, if it was prior to deliberations or after deliberations, and then we can discuss that at a different point.
(04:12:15)
But regarding Juror Number 2's proposed misconduct, our discussion in chambers led to the inquiry that we will conduct of all the other jurors. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has been testified to or argued at this trial? And if in the informative, in the affirmative, inquire what they heard.
(04:12:55)
Okay. Anything else you wish to put on the record, Mr. Britt?
Mr. Britt (04:13:02):
No, sir.
Judge (04:13:03):
Mr. Smith?
Mr. Smith (04:13:04):
Judge, when talking with Number 7, I mean, does he have firsthand knowledge? How is he getting the information for his note to us?
Judge (04:13:13):
Okay.
Mr. Smith (04:13:17):
Did he witness it? Did he not witness it?
Judge (04:13:35):
Okay. All right, let's bring in Juror Number 7.
Juror #5 (04:13:49):
Bring in Juror Number 7. Number 7.
Speaker 11 (04:13:57):
I think it's [inaudible 04:13:58].
Juror #5 (04:13:58):
Watch your step.
Judge (04:14:32):
All right. Let the record reflect that Juror Number 7 has reentered the courtroom. Good afternoon.
Juror Number 7 (04:14:35):
Good afternoon.
Judge (04:14:38):
You had indicated to the bailiff that you had information regarding Juror Number 3, that at some point during the course of this trial, Juror Number 3 had stopped other jurors from discussing this case outside of the jury room. Is that accurate?
Juror Number 7 (04:15:00):
No, it was in the jury room, but it was...
Judge (04:15:04):
Okay, hold on. So Juror Number 3 had stopped other jurors from a particular discussion while in the jury room. Is that accurate so far?
Juror Number 7 (04:15:18):
Yes.
Judge (04:15:19):
And was that before I had instructed you all to begin your deliberations?
Juror Number 7 (04:15:28):
No.
Judge (04:15:31):
Okay. And I'm going to try and be very specific as to what I'm talking about.
(04:15:35)
There's a point in this trial where I read you all my instructions and then told you to go deliberate.
Juror Number 7 (04:15:44):
Right.
Judge (04:15:45):
And so, you're saying that it was after I had read you my instructions and told you all to deliberate?
Juror Number 7 (04:15:53):
It was.
Judge (04:15:54):
Okay. And it was in the jury room, was it during a break?
Juror Number 7 (04:15:59):
No.
Judge (04:15:59):
Was it during the time... Sorry, I'm trying to be very specific.
Juror Number 7 (04:16:03):
[inaudible 04:16:04]
Judge (04:16:04):
So was it during a particular period where you all were supposed to be deliberating?
Juror Number 7 (04:16:11):
It was.
Judge (04:16:14):
Okay. And so Juror Number 3 then stopped other jurors from discussing particular information? Is that accurate so far?
Juror Number 7 (04:16:26):
Yes.
Judge (04:16:27):
Okay. Was that information that the other jurors were discussing, would that have been information that would've been considered not evidence received at this trial?
Juror Number 7 (04:16:41):
Yes.
Judge (04:16:43):
Okay. Were you a part of that conversation, or did you hear exactly what was being said?
Juror Number 7 (04:16:59):
I heard one of the things that was said, and then she stopped them as the other person started to talk. So they didn't finish saying what they were saying.
Judge (04:17:08):
Okay. So we have Juror Number 3. Do you know the numbers of the other jurors?
Juror Number 7 (04:17:18):
I do.
Judge (04:17:18):
Okay. The other jurors?
Juror Number 7 (04:17:20):
Juror Number 2.
Judge (04:17:22):
All right.
Juror Number 7 (04:17:23):
And Juror Number 9.
Judge (04:17:28):
Okay. So which Juror Number did Juror Number 3 stop from providing additional outside information?
Juror Number 7 (04:17:38):
Juror Number 9.
Judge (04:17:41):
Okay. What was the information that Juror Number 9 was trying to discuss?
Juror Number 7 (04:17:49):
That is the one that she stopped when she started to talk. So I didn't catch what she said, but Juror 3 stopped her as she started to say what she was saying.
Judge (04:18:08):
Okay. So you heard Juror Number 3 tell Juror Number, or stop Juror Number 9?
Juror Number 7 (04:18:15):
Yes.
Judge (04:18:16):
But you did not hear what Juror Number 9 had said?
Juror Number 7 (04:18:20):
No, no. I missed what she had said. It was a point where a bunch of people started talking at once, and all I heard was Juror 3 be like, "Whoa, whoa, whoa." And then that's when she stopped.
Judge (04:18:33):
Okay. Another question, yes or no.
Juror Number 7 (04:19:05):
Okay.
Judge (04:19:07):
Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has already been testified to or argued at this trial?
Juror Number 7 (04:19:25):
Yes, sir.
Judge (04:19:28):
All right. And who was it that had said this?
Juror Number 7 (04:19:37):
Juror Number 2.
Judge (04:19:38):
Okay. Did you hear what Juror Number 2 said?
Juror Number 7 (04:19:47):
I did.
Judge (04:19:48):
What did Juror Number 2 say?
Juror Number 7 (04:19:51):
He mentioned that the defendant has a rap sheet longer than the table.
Judge (04:20:13):
Anything else that Juror Number 2 had said?
Juror Number 7 (04:20:16):
That is about the time that Juror 3 had mentioned for him to stop talking.
Judge (04:20:40):
Any other time that Juror Number 2 said something to this effect?
Juror Number 7 (04:20:45):
Not that I remember, no.
Judge (04:20:53):
So I have written down Juror Number 2 had said that defendant has a rap sheet longer than the table.
Juror Number 7 (04:21:01):
Yep.
Judge (04:21:02):
Okay. Any other juror mention anything regarding this question?
Juror Number 7 (04:21:12):
Not that I recall.
Judge (04:21:15):
Were there continued discussions regarding any supposed rap sheet?
Juror Number 7 (04:21:22):
Well, that's when Juror 9 had started talking.
Judge (04:21:26):
Okay.
Juror Number 7 (04:21:26):
And then 3 was like, "Whoa, whoa, whoa." Because she was saying something to him already, and then 9 continued.
Judge (04:21:51):
Okay. So as far as any sort of discussions outside the jury room, there's no allegation by you that anybody was trying to discuss anything outside the jury room?
Juror Number 7 (04:22:01):
No.
Judge (04:22:01):
Okay.
Juror Number 7 (04:22:01):
No.
Judge (04:22:05):
All right. You're excused to go back to the jury room. Please make sure you don't discuss this with anybody else.
Juror Number 7 (04:22:11):
Yes, sir.
Judge (04:22:12):
Thank you.
Juror Number 7 (04:22:12):
Thank you.
Juror #5 (04:22:13):
[inaudible 04:22:20]
Judge (04:22:26):
Oh, hey, bring him back in.
Juror #5 (04:22:27):
Oh. Juror Number 7. Stand by. Look at him.
Juror Number 7 (04:22:28):
Yes.
Juror #5 (04:22:39):
Juror numbers that might have been around you when this was said.
Juror Number 7 (04:22:45):
Juror 6 was to my left. Juror 3 was beside me. Juror 2, and then I want to say 5 was beside him.
Judge (04:22:59):
All right. Thank you.
Juror Number 7 (04:23:00):
Thank you.
Mr. Britt (04:23:07):
What were the last two numbers you said?
Judge (04:23:09):
Juror 6, 3, and possibly 5.
(04:23:21)
Okay. So I think that we will bring in, at the very least, 6 and 5, and then go from there.
Juror #5 (04:23:33):
Yes, sir.
Judge (04:23:34):
Let's bring in Juror Number 6.
Juror #5 (04:23:37):
Sending Juror Number 6.
Judge (04:23:38):
Let the record reflect that Juror Number 6 has re-entered the courtroom. Good afternoon.
(04:24:29)
I'm going to ask you an additional question, yes or no. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has been testified to or argued at this trial? Would you like me to repeat it?
Juror Number 6 (04:25:01):
Yeah.
Judge (04:25:02):
Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has been testified to or argued at this trial?
Juror Number 6 (04:25:23):
[inaudible 04:25:23] specific, no, I can't.
Judge (04:25:25):
All right. Are you unsure? I'm going to ask you a follow-up question then.
(04:25:37)
Have you heard any other juror mention that the defendant might have what might be considered, quote unquote, a rap sheet?
Juror Number 6 (04:25:54):
If they did, I didn't absorb it or take it into consideration anything.
Judge (04:25:58):
All right. Thank you. Please do not discuss anything that we've discussed here in this courtroom. Thank you.
Juror #5 (04:26:05):
Number 6 [inaudible 04:26:11]
Judge (04:27:21):
All right, let's bring him. Juror Number 7 has indicated to the bailiff a correction to what he told us here, that it was not Number 9 that Juror Number 3 stopped, but instead it was Juror Number 5.
(04:27:40)
Okay. Let's bring out Juror Number 5.
Juror #5 (04:27:57):
Sending Number 5. Please watch your steps.
Judge (04:28:39):
All right. Let the record reflect that Juror Number 5 has reentered the courtroom.
(04:28:45)
Juror Number 5, I'm going to ask you an additional question, yes or no. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has already been testified or argued at this trial?
Juror Number 5 (04:29:09):
Not that I can recollect.
Judge (04:29:11):
Okay. I'm going to ask you a follow-up question. Have you heard any other juror mention anything regarding, quote unquote, a rap sheet?
Juror Number 5 (04:29:29):
Other than the first one, yes, sir. I take it back, no. Yes, I have.
Judge (04:29:30):
You have?
Juror Number 5 (04:29:30):
Yes.
Judge (04:29:37):
So the answer is yes?
Juror Number 5 (04:29:38):
Yes.
Judge (04:29:40):
Okay. And which juror did you hear that from? Would it have been Juror Number 2 is... It would be here in the back row.
Juror Number 5 (04:29:52):
I think so right here.
Judge (04:29:52):
Correct.
Juror Number 5 (04:29:52):
Yes, sir.
Judge (04:30:02):
Okay. All right. We're going to go ahead and excuse you. Please do not discuss anything that you've discussed here in court just now. Okay. Thank you.
Juror #5 (04:30:12):
[inaudible 04:30:13]
Judge (04:30:13):
While he's still here?
Juror #5 (04:30:13):
Yes, sir.
Judge (04:30:14):
Okay. Hold on one second. Can you describe exactly what you heard?
Juror Number 5 (04:30:43):
I just heard about rap sheet. I don't pay attention to what everybody says all the time, Your Honor.
Judge (04:30:50):
Okay.
Juror Number 5 (04:30:51):
Because a lot of times we have a lot of different conversations going on.
Judge (04:30:57):
All right. So you just heard, at some point, Juror Number 2 say something about a rap sheet, but you weren't really paying attention?
Juror Number 5 (04:31:06):
No, sir.
Judge (04:31:09):
Okay. All right. Thank you, sir. You are excused.
Juror #5 (04:31:09):
[inaudible 04:31:14]
Judge (04:31:09):
All right.
Juror #5 (04:31:09):
[inaudible 04:31:26]
Judge (04:31:27):
Thank you. All right. I think given that, that's credible enough for me to start going down the line through everybody else.
Juror #5 (04:31:36):
Yes, sir.
Judge (04:31:36):
Okay.
Mr. Britt (04:31:38):
[inaudible 04:31:38] are we marking these written statements or notes from the jurors as court exhibits?
Judge (04:31:46):
Nothing has been written down, so nothing is an exhibit.
Mr. Britt (04:31:50):
Oh, in terms of what the bailiffs have [inaudible 04:31:53] handwriting on top.
Judge (04:31:54):
These are my notes.
Mr. Britt (04:31:56):
Yes, sir.
Mr. Smith (04:31:58):
Judge, when we ask the questions, maybe specifically what the... We know how discussions can go. Maybe he does have one.
(04:32:07)
Or, I mean, guessing whether or not somebody has one is not, that's within the purview of the jury to discuss, you know.
Mr. Britt (04:32:15):
[inaudible 04:32:16]
Mr. Smith (04:32:16):
Well, when they ask the question, maybe he does, maybe he doesn't, but they're not looking it up. You see what I'm saying? They go back there, and they talk about all sorts of things.
(04:32:26)
The question is, is there misconduct by... Your instructions say this. You're only to take into account what you hear in the courtroom. You can't go out and do any outside research, right? So what's been presented to us now is we've had one juror, we believe, go outside and do research. The other is maybe he didn't.
(04:32:48)
That's the question. We need to figure out, did he go out and do research or is he going, "Well, maybe he does have a rap sheet," or something like that. I don't know. I mean, at some point we're invading deliberations unless... You know what I'm saying?
Judge (04:33:02):
Yeah, absolutely. But then now we've got a credible allegation that this particular juror is injecting that. And now the next question is, do we inquire further about the larceny issue? Because then that is a bigger issue.
Mr. Smith (04:33:16):
Well, then that would tell you, that would answer the question whether or not it was just conjecture, maybe he does, versus we're going outside and looking for stuff.
Judge (04:33:24):
Right. And so, I guess that's the discussion we need to have right now is now that we believe that it is credible as to what has been said regarding the rap sheet, do I now go down that hole into larceny? And that's a point of no return.
Mr. Smith (04:33:42):
Right.
Mr. Britt (04:33:42):
Well, but rap sheet includes more than just one charge, potentially. But if they're talking about does the defendant have a rap sheet, that's extraneous. If they're talking about does the defendant have a conviction for larceny or charge of larceny, that's not a proper jury deliberation.
Judge (04:34:06):
Definitely.
Mr. Britt (04:34:06):
And it sounds like they're going off the end of the pier into all kinds of different directions.
Mr. Smith (04:34:13):
Judge, do you agree?
Judge (04:34:15):
Yep, I agree. But let's reserve that once we inquire further.
Mr. Britt (04:34:25):
I think we have to, Your Honor.
Judge (04:34:27):
Yeah.
Mr. Smith (04:34:28):
I just think we just need to be very careful.
Judge (04:34:31):
I'm trying to be as careful as I can be.
Mr. Smith (04:34:33):
I understand.
Judge (04:34:34):
Juror Number 1.
Juror #5 (04:34:36):
Sending Juror Number 1. Okay. Please watch your step.
Judge (04:35:15):
All right. Let the record reflect that Juror Number 1 has reentered the courtroom. Good afternoon.
Juror Number 1 (04:35:19):
Good afternoon.
Judge (04:35:21):
Can I ask you an additional question?
Juror Number 1 (04:35:23):
Okay.
Judge (04:35:25):
Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial outside of what has already been testified to or argued at this trial?
Juror Number 1 (04:35:44):
No, sir.
Judge (04:35:44):
Okay. Nothing at all regarding any other kind of law enforcement interaction during your deliberations?
Juror Number 1 (04:35:54):
No, sir.
Judge (04:35:55):
Okay. All right. Thank you, ma'am. Please do not discuss with anybody else regarding what you've discussed with me now. Okay? Thank you.
(04:36:11)
Bring in Juror Number 2. Oh, no, not Juror Number 2.
Juror #5 (04:36:14):
Okay.
Mr. Britt (04:36:14):
Four.
Judge (04:36:16):
Yes, Number 4.
Juror #5 (04:36:19):
Sending Number 4. Please watch your step.
Judge (04:36:50):
Hi. Good afternoon.
Juror Number 4 (04:36:50):
Good afternoon.
Judge (04:36:52):
Let the record reflect that Juror Number 4 has reentered the courtroom. I'm going to ask you an additional question.
Juror Number 4 (04:36:59):
Absolutely.
Judge (04:37:00):
Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial outside of what has been testified to or argued about at this trial?
Juror Number 4 (04:37:19):
No, sir.
Judge (04:37:19):
Okay. Nobody has discussed any other law enforcement interaction that the defendant might or might not have had?
Juror Number 4 (04:37:26):
None.
Judge (04:37:28):
Okay. All right. Thank you, ma'am. Please do not discuss with anybody else.
Juror #5 (04:37:31):
[inaudible 04:37:35]
Judge (04:37:42):
Bring Juror Number 8.
Juror #5 (04:37:44):
Sending Juror 8.
Judge (04:37:45):
Let the record reflect that Juror Number 8 has reentered the courtroom. Good afternoon.
Juror Number 8 (04:38:14):
Good afternoon.
Judge (04:38:16):
I'm going to ask you an additional question. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has been testified to or argued about at this trial?
Juror Number 8 (04:38:37):
I have not.
Judge (04:38:38):
Okay. You have not heard any discussion from any other juror about any other potential or non-potential interactions with law enforcement by the defendant?
Juror Number 8 (04:38:48):
I have not heard anything from anybody else about anything like that.
Judge (04:38:52):
Okay. Thank you. Please do not discuss with anybody else what we discussed here. You're excused. Let's bring in Juror Number 9.
Juror #5 (04:39:07):
Sending Number 9.
Judge (04:39:35):
Let the record reflect that Juror Number 9 is back in the courtroom. Good afternoon.
(04:39:41)
I'm going to ask you an additional question. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial, outside of what has been testified to or argued about at this trial?
Juror Number 9 (04:40:03):
Yes.
Judge (04:40:00):
... Or argued about at this trial?
Speaker 12 (04:40:03):
Yes.
Judge (04:40:04):
Okay. Can you tell me which juror number that would have been?
Speaker 12 (04:40:22):
I believe it's juror number four.
Judge (04:40:24):
Okay. And juror number four would be the individual sitting-
Speaker 12 (04:40:29):
Here.
Judge (04:40:30):
To back your left, correct?
Speaker 12 (04:40:33):
Right.
Judge (04:40:34):
Is that the individual? Is that yes? Sorry.
Speaker 12 (04:40:36):
Yes.
Judge (04:40:37):
Sorry, got to make sure it's on the record for a court reporter. Okay. Did you hear yourself what juror number four had said?
Speaker 12 (04:40:51):
Yes.
Judge (04:40:51):
Okay. What did juror number four say?
Speaker 12 (04:40:53):
I heard her saying something along the lines of, " The authorities know him. He's been around."
Judge (04:41:08):
Okay. The authorities know him, meaning the authorities know the defendant?
Speaker 12 (04:41:13):
Yes.
Judge (04:41:18):
And then you said something else. What was the second thing you said?
Speaker 12 (04:41:21):
That he's been around, I'm guessing, incarcerated or I don't know.
Judge (04:41:30):
And so when juror number four said he's been around, you took that to mean that possible incarceration otherwise?
Speaker 12 (04:41:39):
Yes.
Judge (04:41:40):
Other than what has been presented here at this trial?
Speaker 12 (04:41:42):
Yes.
Judge (04:41:43):
Were there any other jurors that might have said anything else?
Speaker 12 (04:41:48):
No.
Judge (04:41:49):
Did you hear any other juror mention anything about "a rap sheet"?
Speaker 12 (04:42:01):
No.
Judge (04:42:09):
Did you hear any other juror mention the word larceny?
Speaker 12 (04:42:14):
No.
Judge (04:42:14):
Okay. All right, ma'am. Please do not discuss anything that you've discussed here. You are excused. Thank you.
Speaker 12 (04:42:21):
Thank you.
Judge (04:43:13):
Let's bring in juror number 10.
Juror #5 (04:43:17):
Number 10.
Judge (04:43:51):
All right. Let the record reflect that juror number 10 has reentered the courtroom. Good afternoon.
Juror 10 (04:43:57):
Good afternoon.
Judge (04:43:59):
I'm going to read you an additional question, okay? Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial outside of what has been testified to or argued at this trial?
Juror 10 (04:45:43):
No.
Judge (04:45:44):
So you've not heard any other juror discuss any supposed law enforcement interactions before this trial?
Juror 10 (04:45:52):
No.
Judge (04:47:08):
Okay. Thank you, ma'am. Please do not discuss with anybody else, okay?
Juror 10 (04:47:09):
Yes, sir.
Judge (04:47:10):
Thank you. Let's bring in juror number 11.
Juror #5 (04:47:21):
Number 11.
Judge (04:47:52):
All right. Let the record reflect that juror number 11 has reentered the courtroom. Good afternoon.
Juror 11 (04:47:56):
Good afternoon.
Judge (04:47:57):
I'm going to read you an additional question. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial outside of what has been testified to or argued at this trial?
Juror 11 (04:48:17):
No.
Judge (04:48:17):
You have not heard any other juror discuss any other potential interactions of the defendant with any law enforcement?
Juror 11 (04:48:17):
Not that I remember.
Judge (04:48:17):
Okay. I'm going to ask you a couple of follow-ups. Have you heard any other juror mention anything that might be "a supposed rap sheet"?
Juror 11 (04:48:18):
No.
Judge (04:48:18):
Have you heard any other juror mention something to the effect of, "The authorities know the defendant, he's been around"?
Juror 11 (04:48:18):
They believe, I feel like I heard that.
Judge (04:48:18):
You might have heard that?
Juror 11 (04:48:18):
Yes.
Judge (04:48:18):
Okay. And on a scale of one to 10, as far as your certainty that you would've heard that, what would be your answer, one to 10?
Juror 11 (04:48:18):
Like three.
Judge (04:48:18):
Okay. A maybe.
Juror 11 (04:48:18):
[inaudible 04:46:47].
Judge (04:48:18):
And would you be able to know which juror said that?
Juror 11 (04:48:18):
No.
Judge (04:48:18):
Okay. Have you heard anyone mention the word larceny?
Juror 11 (04:48:18):
No.
Judge (04:48:18):
Okay. All right. Thank you, ma'am. Please do not discuss with anybody else.
Juror 11 (04:48:18):
Okay.
Judge (04:48:18):
Thank you. Let's bring juror number 12.
Juror #5 (04:48:18):
Number 12.
Judge (04:48:18):
All right. Let the record reflect that juror number 12 has reentered the courtroom. Good afternoon.
Juror 12 (04:48:18):
Good afternoon.
Judge (04:48:18):
I'm going to read you an additional question. Have you heard any other juror discuss during your deliberations whether the defendant has had interactions with law enforcement before this trial outside of what has been testified to or argued at this trial?
Juror 12 (04:48:18):
No.
Judge (04:48:19):
So you've not heard any other juror mention any other supposed interactions of the defendant with law enforcement?
Juror 12 (04:48:27):
No.
Judge (04:48:27):
Okay. All right. Thank you. Please do not discuss with anybody else. Remind me, juror number five confirm that it came from juror number two?
Speaker 13 (04:49:41):
Yes, sir.
Speaker 14 (04:49:41):
Yes, sir.
Judge (04:49:58):
All right. So to reiterate, juror number three, before juror number three was excused, mentioned that juror number two had discussed a relationship with law enforcement. Juror number five indicated yes as to hearing about rap sheet from juror number two. Juror number seven also indicated heard from juror number two about a rap sheet. Juror number nine indicated that she had heard from juror number four about, "The authorities know the defendant, he's been around." And juror number 11 had heard... I didn't write down which particular part she heard.
Speaker 15 (04:51:13):
Judge, I noted that she just heard he had been around.
Judge (04:51:21):
Okay. That was the potential statement from juror number four.
Speaker 15 (04:51:25):
Yes, I wrote down heard, been around.
Judge (04:51:30):
Do you have anything different, Mr. Britt?
Mr. Britt (04:51:33):
I wrote down that the authorities knew him.
Judge (04:51:39):
Okay. I think that's the statement of juror number four.
Mr. Britt (04:51:45):
Not instead of four. Yes, sir.
Judge (04:51:48):
11 was what I was talking about. Okay. State wish to be heard at this point?
Mr. Smith (04:52:25):
I mean, I think two probably needs to be removed.
Judge (04:52:40):
I think at the very least.
Mr. Smith (04:52:40):
At the very least.
Judge (04:52:42):
I think also four.
Mr. Smith (04:52:44):
We have not questioned four on what she said or did not say.
Judge (04:52:51):
I think that given that we have one juror and a possible second, we can inquire of her, but I...
Mr. Smith (04:53:05):
We've inquired with every other one.
Judge (04:53:07):
That's true that we have.
Mr. Smith (04:53:09):
So at least we inquire with her, then we go from there. But two, definitely. We'll see about four. The others, when you ask the same question, can you put what you've heard or decide and can you still be fair and impartial and determine or come up with a verdict based upon what you've heard in court?
Judge (04:53:34):
Okay. Mr. Britt?
Mr. Britt (04:53:41):
I would agree that number two needs to be removed. We have not inquired as to number four about the alleged threat or perceived threat that number three told us about. But it seems that the more we go into this, we keep giving it. We have one layer, another layer, another layer, and so we're going to end up like we're trying to peel an onion and it may end up that we don't have enough jurors to even continue. Then the question becomes the prejudice that it creates for him. Can they really be true, fair and impartial and consider it only on what's been presented in this courtroom after we have heard multiple allegations that they're talking about things other than the evidence and what you instructed them on the law?
Judge (04:54:44):
Okay. Thank you. As far as the threat, just for everybody's information, the court does not consider what was said by juror number four to be a threat. I think that we don't need to go down any particular line of questioning regarding that, but we should bring in juror number four and confront her on her statement of the authorities know the defendant, he's been around. Okay. Let's bring in juror number four.
Juror #5 (04:55:41):
Defendant, juror number four.
Judge (04:55:52):
Let the record reflect that juror number four has reentered the courtroom. I'm going to ask you some follow-ups. Have you ever mentioned during your deliberations that the authorities know the defendant?
Juror 4 (04:56:07):
No, I don't know that.
Judge (04:56:09):
Have you ever mentioned during your deliberations that the defendant has been around?
Juror 4 (04:56:14):
Been around where?
Judge (04:56:17):
Yes or no?
Juror 4 (04:56:17):
Nope. I don't understand what you mean.
Judge (04:56:23):
I'm asking you directly, did you say has the defendant been around? Yes or no?
Juror 4 (04:56:28):
No.
Judge (04:56:30):
And so you were also saying yes or no, the authorities know the defendant. You never said that?
Juror 4 (04:56:37):
No. I wouldn't know that.
Judge (04:56:41):
Okay. All right. Thank you.
Juror 4 (04:56:43):
Yes, sir.
Judge (04:56:43):
You can go back. Please do not discuss with anybody else. Let the record reflect that juror number four, has exit the courtroom, it appears to the court clearly that juror number four was not telling the truth. All right. We're going to go ahead and take a 15 minute break. We'll be at ease for the next 15 minutes.
Mr. Britt (04:57:18):
Yes, sir.
Juror #5 (04:57:18):
Court will be at ease for 15 minutes.
Judge (05:26:28):
With regard to defendant's motion for mistrial, Court makes following findings of fact. At the outset of today, we had a report from one of the jurors that seems to have opened Pandora's box into what has been occurring during this jury deliberation. Juror Number 2 indicated that Juror Number 3 had made statements regarding defendant not being a member of the KKK, defendant's relationship with a girlfriend, saying that she knows things, the biggest case that has hit Pender County in a long time, defendant was blackballed in town, that those statements were heard by all the jury members excepting Jurors Number 1 and Number 7.
(05:27:50)
At that particular time, the Court did inquire as to those jurors that did hear the information, whether they could disregard the comments, remain fair and impartial, render a verdict based solely on the evidence presented in the Courtroom. At that point, the Court was satisfied that the defendant could receive a fair and impartial trial. Then Juror Number 7, after Juror Number 3 had been dismissed, indicated that there was some additional information for the Court to consider regarding these jury deliberations. And Juror Number 7 indicated that Juror Number 3 had attempted to stop Juror Number 5 from discussing outside information and that Juror Number 2 had mentioned defendant has a rap sheet longer than the table, and Juror Number 3 told Juror Number 2 to stop talking. After inquiry, Juror Number 5 indicated that they had heard something of what Juror Number 2 had stated regarding the rap sheet. Juror Number 7, obviously, and then Juror Number 3 also reported, before being excused, potential information regarding Juror Number 2. Juror Number 9 then provided additional information about Juror Number 4 stating that Juror Number 4 had said, "The authorities know the defendant, and he's been around." Juror Number 11 indicated that she might have heard that but wasn't sure, maybe a 3 on a scale of 1 to 10. So inquired of Juror Number 4, whether she did, in fact, say those things, and it was very apparent to the Court that she was lying when she said, "No." If the Court removes additionally Jurors Number 2 and Number 4, along with Juror Number 3 are already being stricken, there were five jurors, Juror Number 1, 6, 8, 10, and 12, who indicated that they did not hear anything from any juror, whether that was 2 or 4 or anybody else about any law enforcement interactions. So that leaves 5, 7, 9, and, 11 that did. Juror Number 5 indicated yes to the rap sheet and also indicated that they had heard most of what Juror Number 3 had discussed. Juror Number 7 indicated no as to anything that Juror Number 3 had discussed. And Juror Number 9 said, "Yes," as to some of what Juror Number 3 had discussed, and Juror Number 11, yes, as to most of what Juror Number 3 had discussed. The additional information of what Jurors Numbers 2 and 4 discussed compounded the issue. After review of the case law and statute, General Statute 15A-1061 Mistrial for Prejudice to the Defendant, states the judge must declare a mistrial upon the defendant's motion if there occurs, during the trial, an error or legal effect in the proceedings, or conduct inside or outside the Courtroom resulting in substantial and irreparable prejudice to the defendant's case. State v. Galbreath, G-A-L-B-R-E-A-T-H, Court of Appeals case 295 NCAP 523. Whether to grant a mistrial is within the sound discretion of the judge. When investigating possible juror misconduct, the trial court is vested with the discretion to determine the procedure and scope of the inquiry. We've gone through a very lengthy inquiry of all the jurors multiple times during the course of this day.
(05:33:29)
Because the trial court is in the best position to examine the facts and circumstances, we give great weight to its determination of whether juror misconduct occurred and whether to declare a mistrial. A mistrial is a drastic remedy warranted only for such serious improprieties as would make it impossible to attain a fair and impartial verdict. I think that if we were to set aside what Juror Number 3 had said, I had already indicated that we would be able to proceed prior to the floodgates of all the other information. That would leave Jurors 5, 9, and 11 having heard at least some information of the secondary portion during our inquiry this afternoon.
(05:34:38)
There aren't enough alternates to substitute in those jurors. It may be tainted. I don't believe any further inquiry would remedy the issue. The Court concludes, in the exercise of my discretion, that there has been serious improprieties by this jury such that it would be impossible to obtain a fair and impartial verdict. I declare that this case is a mistrial. This is not conduct on behalf of the state such that jeopardy attaches. Jeopardy does not attach to the defendant. This is conduct by the jury members themselves. Nothing that the state has done or the defense suggests that either party is at fault with regard to this issue. I feel like both parties have done a fair job in conducting this trial. We all have avoided any instances of improprieties, and I think that the issue lies with the jury. Therefore, the Court finds that jeopardy does not attach, and the matter may be retried at a later date. Anything you wish to say, Mr. Smith?
Mr. Smith (05:36:04):
Not from the state, Judge. Thank you.
Judge (05:36:06):
Thank you. Mr. Britt?
Mr. Britt (05:36:09):
No, sir. Not along those ones.
Judge (05:36:15):
I think that, given my decision with Juror Number 3, not to find Juror Number 3 in contempt. I will likewise not find Jurors Number or Number 4 in contempt. I will indicate to both of them outside the presence of the others that it is based on their conduct as well as conduct of Juror Number 3 as to why we have a mistrial, but not allow them to debate the issue. So what we'll do is we'll bring in all the jury members. I'll indicate that the Court has declared a mistrial based on jury misconduct and that they are all relieved from their jury duties. I'll excuse all the jury members excepting 2 and 4. As soon as the remaining jury members have cleared, then I'll address 2 and 4 with regard to their conduct. Anything else we need to discuss on behalf of the state?
Mr. Smith (05:37:38):
Not from the state, Judge.
Judge (05:37:39):
Behalf of defense?
Mr. Britt (05:37:42):
When is the next administrative session?
Speaker 16 (05:37:44):
Tomorrow.
Mr. Smith (05:37:46):
Tomorrow.
Speaker 17 (05:37:48):
Judge, that has to be put on November admin session because Judge Harrell will be setting our priority trial calendar for next year, that very afternoon.
Judge (05:37:56):
Okay. Matter is set over to November 13th. Is that accurate?
Speaker 17 (05:38:01):
Yes.
Judge (05:38:03):
Okay. November 13th.
Mr. Smith (05:38:04):
Judge, I'd ask that the bond remain the same.
Judge (05:38:07):
All right. Mr. Britt, regarding bond?
Mr. Britt (05:38:08):
That's why I was inquiring about the admin session so I can file a bond motion.
Judge (05:38:13):
Okay. Bond will remain the same until such point as you file a motion for bond. All right, let's bring the jury in.
Speaker 19 (05:38:21):
Bring in the jury and the alternate. [inaudible 05:38:32]
Juror #5 (05:38:32):
I did end at 3:05. Mistrial [inaudible 05:38:50]
(05:38:32)
All this evidence goes back [inaudible 05:39:15]
Speaker 18 (05:40:00):
Jury seated, Your Honor.
Judge (05:40:01):
Thank you. Let the record reflect that the jury has re-entered the Courtroom. Members of the jury, because of jury misconduct, I have declared a mistrial. This time you may take off your badges, clip them to your notebooks. You're free to go. If you need a note for work, please raise your hand. All right. For those who need a note for work, if you can-
Juror #5 (05:40:24):
They can [inaudible 05:40:25]
Mr. Britt (05:40:26):
They can go back to the jury room [inaudible 05:40:27]
Judge (05:40:26):
Back in the jury room. Okay. For those who need a note for work, you may go back to the jury room. Jurors Number 2 and 4, please remain. You're excused. Thank you very much for your time and attention. The-
Speaker 20 (05:40:36):
Juror Number 2 and 4. Anyone else?
Judge (05:40:36):
Hold on. The restrictions that I placed upon you are now removed. You're not required to speak with anybody else about this case. You may now discuss and discuss with anybody else who you wish about this case. You're excused. Thank you.
Speaker 20 (05:40:52):
Thank you, Your Honor. Make sure that you notebooks, you leave those in your chairs along with the juror badge. Everyone, this way, please, [inaudible 05:41:01] stated to remain. This way, please. [inaudible 05:41:13]
Judge (05:41:31):
The reason for the mistrial is based on misconduct by you, Juror Number 3, and you, 2. All right? This is not a discussion but an admonition. Your juror members reported things that you had said during your deliberations regarding prior interactions with law enforcement. That is the reason why I've declared a mistrial. You're excused. Thank you. All right. Anything else, Mr. Britt?
Mr. Britt (05:42:17):
No, sir. I need to have a discussion with the major about Mr. Prevatte's place of confinement.
Judge (05:42:27):
Okay. Mr. Smith?
Mr. Smith (05:42:27):
[inaudible 05:42:28] Thank you.
Judge (05:42:30):
All right. Thank you. We are in recess. If there is any other matter that needs to be brought before me or my attention, I'll keep [inaudible 05:42:43] remainder of the week [inaudible 05:42:41]
