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The post State v. Chambers and the Substitution and Discharging of Alternate Jurors Pursuant to G.S. 15A-1215(a) appeared first on North Carolina Criminal Law.

Jury instruction on various alternative acts that could establish a single sexual offense was sufficiently clear to provide adequate constitutional certainty as to the unanimity of the verdict and did not amount to plain error.

State v. Bowman, No. 49A24, ___ N.C. ___ (May 23, 2025). This Durham County case arose from a 2019 incident in which the victim alleged that the defendant penetrated her anally with his fingers and penis and forced her to perform oral sex. Those acts resulted in multiple charges, including two charges of first-degree forcible sexual offense. The indictments for those charges did not differentiate between the alleged acts, stating only that the defendant “feloniously engage[d] in a sex offense” with the victim. Without objection from the defendant, the trial court instructed the jurors once on first-degree forcible sexual offense, stating that a sexual act means fellatio, anal intercourse, and penetration of the anal opening by an object. The jury returned guilty verdicts on both first-degree forcible sexual offense charges and the judge imposed a 365–498 month consolidated sentence. On appeal, the defendant argued that the trial court erred in instructing the jury on only one count of first-degree forcible sexual offense. The Court of Appeals majority agreed, concluding that a new trial was required because it was not possible to match the jury’s verdict of guilty with the multiple acts committed against the victim, jeopardizing the defendant’s right to a unanimous verdict. State v. Bowman, 292 N.C. App. 290, 296 (2024). A dissenting judge would have found no error plain error, based on controlling precedent. The State appealed to the Supreme Court based on the dissent.

The Supreme Court reversed, concluding that the Court of Appeals erred in holding that the trial court instruction amounted to plain error. The state constitution and General Statutes require a unanimous verdict, but longstanding Supreme Court precedent (e.g., State v. Hartness, 326 N.C. 561 (1990)) has established that, when a criminal statute does not define “discrete criminal activities . . . that may each be charged as separate offenses,” a trial court instruction on various alternative acts that will establish an element of an offense satisfies the unanimity requirement. The court distinguished the sexual offense statute, which defines a single offense that may be committed in five different ways, from the drug trafficking statute, which sets out five discrete trafficking crimes, each of which can result in a separate conviction and punishment (trafficking by sale, manufacture, delivery, transportation, and possession). With that precedent in mind and in light of the evidence presented in the case, the Supreme Court concluded that the jury instruction here was sufficiently clear to provide “adequate constitutional certainty as to the unanimity of the verdict,” and therefore did not amount to plain error.

Although the Court reversed the grant of a new trial, it reiterated that the better practice in cases like this is to tie each sexual offense charge to a distinct sexual act, both in the indictment and on the verdict sheet, to avoid unanimity concerns. The Court remanded the case to the Court of Appeals for consideration of the defendant’s remaining arguments.

Provisions of G.S. 15A-1215(a) permitting a juror to be excused and replaced by an alternate after the jury has begun deliberations comport with state constitutional requirement for unanimous jury.

State v. Chambers, 56PA24,  __ N.C. __ (May 23, 2025). In this Wake County case, the defendant, who was convicted of first-degree murder and a related felony assault, contended that the trial court’s substitution of an alternate juror during deliberations pursuant to G.S. 15A-1215(a) violated his state constitutional right to a twelve-person jury. The North Carolina Supreme Court rejected the defendant’s argument, determining that the substitution of an alternate juror pursuant to G.S. 15A-1215(a) did not violate the defendant’s right under Article 1, Section 24 of the North Carolina Constitution to a unanimous verdict by a jury of twelve.

The charges arose from a shooting at a Raleigh motel in which a man was killed and a woman injured. The defendant represented himself at trial and chose to be absent from the courtroom after the trial court cut off his closing argument for failing to follow the trial court’s instructions. He remained absent during the proceedings involving the excusal of one juror and the substitution of another.

The jury began its deliberations near the end of a workday. After less than 30 minutes of deliberation and minutes before the jury was set to be released for the day, one of the jurors asked to be excused for a medical appointment the next morning. The trial court released the jury for the day and excused the juror with the medical appointment. The next morning, the trial court substituted the first alternate juror and instructed the jury to restart its deliberations. Later that day, the jury returned guilty verdicts against the defendant.

The defendant petitioned for certiorari review, contending that the substitution of the alternate juror violated his state constitutional right to a twelve-person jury. The Court of Appeals granted the defendant’s petition and agreed with his argument. The Court of Appeals held that notwithstanding statutory amendments to G.S. 15A-1215(a) enacted in 2021 to authorize the substitution of alternate jurors after deliberations begin, Article I, Section 24 of the North Carolina Constitution, as interpreted State v. Bunning, 346 N.C. 253 (1997), forbids the substitution of alternate jurors after deliberations begin because such substitution results in juries of more than twelve persons determining a defendant’s guilt or innocence. The North Carolina Supreme Court granted the State’s petition for discretionary review and reversed the Court of Appeals.

The Court first determined that the defendant’s failure to object to the substitution of the juror did not waive his right to challenge the constitutionality of G.S. 15A-1215(a) on appeal given the fundamental nature of the right to a properly constituted jury. Then, taking up the defendant’s argument, the court rejected his claims that the substitution of the juror violated his rights under the state constitution.

The Court held that G.S. 15A-1215(a) provides two critical safeguards that secure a defendant’s right to a unanimous verdict by a jury of twelve. First, the statute expressly states that no more than twelve jurors may participate in the jury’s deliberations. Second, it requires trial courts to instruct a jury to begin deliberations anew upon the substitution of an alternate juror. Thus, the court reasoned, when a jury follows the trial court’s instruction and restarts deliberations, there is no risk that the verdict will be rendered by more than twelve people. Because the trial court in Chambers so instructed the jury, the Court determined that the defendant’s constitutional right to a jury of twelve was not violated.

The Court further explained that Bunning, which held that the substitution of an alternate juror in a capital sentencing proceeding after deliberations had begun resulted in a jury verdict reached by more than twelve persons, did not dictate a different result. The Chambers Court stated that though Bunning cited Article I, Section 24, its conclusion was founded not upon constitutional requirements but instead upon its analysis of the controlling statutes, which did not permit the substitution of jurors after deliberations had begun. In addition, Bunning involved the sentencing phase of defendant’s capital trial, which was a different circumstance from the noncapital trial in Chambers.

The Court reversed the decision of the Court of Appeals and remanded the case for consideration of the remaining issues raised by the defendant below.

Justice Riggs, joined by Justice Earls, concurred in part and dissented in part. She agreed with the majority’s holding that issues related to the structure of the jury are automatically preserved for appellate review, but would have held that allowing the substitution of an alternate juror during deliberations violates Article I, Section 24 of the North Carolina Constitution.

Court of Appeals opinion holding that trial court committed plain error by allowing a lay witness to give an expert opinion is remanded for reconsideration of plain error standard.

State v. Hunt, No. 280A24, ___ N.C. ___ (May 23, 2025) (per curiam). In this Robeson County case, the defendant was convicted of assault with a deadly weapon inflicting serious injury and injury to personal property. The court of appeals concluded over a dissent that the trial court committed plain error by allowing a lay witness—a law enforcement officer—to give an expert opinion about how the accident happened and defendant’s intent at the time of the accident, and thus ordered a new trial. State v. Hunt, ___ N.C. App. ___, 908 S.E.2d 92 (2024). The Supreme Court in a per curiam opinion vacated the decision below and remanded for reconsideration in light of its articulation of the plain error standard in State v. Reber, 386 N.C. 153 (2024).

Supreme Court affirms Court of Appeals opinion holding that the denial of defense counsel’s motion to withdraw was not Sixth Amendment structural error.

State v. Melton, 170A24,  __ N.C. __ (May 23, 2025) (per curiam). In this Forsyth County case, the Supreme Court affirmed per curiam the Court of Appeals decision in State v. Melton, 294 N.C. App. 91 (2024), where the majority found no structural error in the trial court’s denial of court-appointed counsel’s motion to withdraw.

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As a result, Article I, Section 24 of the North Carolina Constitution currently provides:

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

G.S. 15A-1201 prescribes the procedures for waiving jury trial in superior court in favor of a bench trial. G.S. 15A-1201(b) provides that when a defendant — with the consent of the trial judge — waives the right to trial by jury, the whole matter of law and fact “shall be heard and judgment given by the court.” Those determinations include aggravating factors in impaired driving cases under G.S. 20-179 and aggravating factors in structured sentencing cases under G.S. 15A-1340.16.

So how is it done?

A defendant must give timely notice. A defendant who seeks a bench trial may give notice in any one of three ways:

1. by written stipulation, signed by the defendant and the State;
2. by filing a written notice of intent within the earliest of (a) 10 working days after arraignment; (b) 10 working days after service of an administrative setting under G.S. 7A-49.4(b); or (c) 10 working days after the setting of a definite trial date under G.S. 7A-49.4(c); or
3. by giving notice of intent on the record in open court by the earlier of (a) the time of arraignment, or (b) the calling of the calendar for an administrative setting under G.S. 7A-49.4(b) or a hearing to set a definite trial date under G.S. 7A-49.4(c).

What if multiple defendants are joined for trial? If more than one defendant is joined for trial, all defendants must waive the right to trial by jury for there to be a bench trial. G.S. 15A-1201(b). Alternatively, the trial court may sever the cases to afford a single defendant a bench trial. Id. Counsel for co-defendants must be served with any stipulation to a bench trial or written notice of intent to waive a jury trial. G.S. 15A-1201(c).

Judicial consent. When a defendant provides notice of his or her intent to waive a jury trial in favor of a bench trial, the State must schedule a hearing to determine whether the judge agrees to hear the case without a jury. G.S. 15A-1201(d) provides that the decision to grant or deny the defendant’s request must be made “by the judge who will actually preside over the trial.”

At the hearing, the judge must address the defendant personally and determine whether the defendant fully understands and appreciates the consequences of the decision to waive the right to trial by jury. Id. This inquiry probably should include the following questions:

• Do you understand that you are appearing in superior court because you are charged with committing a crime/crimes?
• Do you understand the nature of the charges and every element of the charge/charges?
• Do you understand that the maximum punishment for this charge/these charges is [state total maximum punishment and any applicable mandatory minimum punishment]?
• Do you understand you have a right to be tried by a jury of 12 of your peers?
• Do you understand that you have the right to participate in selecting members of the jury?
• Do you understand that jury verdicts must be unanimous?
• Do you understand that if you waive a jury trial, I alone will decide your guilt or innocence?
• Do you understand that if you waive a jury trial, I alone will determine whether any aggravating factors apply to sentencing in your case?
• Have you discussed the waiver of your right to jury trial with your attorney?
• Do you now wish to waive your right to trial by jury and have the issues of law and fact in your case determined by me?

See id.; AOC-CR-405 (Waiver of Jury Trial); cf. State v. Rollinson, 383 N.C. 528, 534-35 (2022) (holding that the trial court did not abuse its discretion in the manner in which it personally addressed the defendant or in how it determined that the defendant understood the consequences of the waiver of jury trial in the habitual felon phase of the trial; trial judge addressed the defendant by stating “you can waive your right to a jury trial” and defendant’s counsel responded after speaking with the defendant; the previous day the trial court had conducted a longer colloquy to confirm the defendant’s waiver of a jury trial on the substantive charges).

The judge also must determine whether the State objects to the waiver and, if so, why. G.S. 15A-1201(d)(2). The judge then must consider the arguments presented by the State and the defendant regarding the defendant’s waiver of a jury trial. Id.

The form. AOC-CR-405 sets forth a form waiver, providing an acknowledgement of rights and waiver to be signed by the defendant as well as a certification by the attorney for the defendant stating that the attorney has explained the charges, the potential punishment, the nature of the proceedings, the right to trial by jury, and the consequences of waiving that right.

Side two of AOC-CR-405 contains findings of fact and conclusions of law that a judge may select as appropriate in consenting to or in denying the defendant’s waiver.

A defendant may change his or her mind. Once. After a trial judge has consented to a bench trial, a defendant may revoke the waiver one time as of right within 10 business days of the defendant’s initial notice. G.S. 15A-1201(e). The defendant must do so in open court with the State present or in writing to both the State and the judge. Id. Otherwise, the defendant may only revoke the waiver upon the trial judge finding the revocation would not cause unreasonable hardship or delay to the State. Id.

Once a revocation is granted, the decision is final and binding. Id. The defendant no longer has the option for a bench trial.

What if there is a motion to suppress? If a defendant has elected and the trial court has consented to a bench trial and the defendant also has made a motion to suppress, the trial court must make written findings of fact and conclusions of law in ruling on that motion. G.S. 15A-1201(f).

Does the trial court give jury instructions? In a bench trial, the trial court is not required to set forth the law it will follow in the form of jury instructions. See State v. Cheek, 267 N.C. App. 579, 591-92 (2019), aff’d, 377 N.C. 528 (2021); State v. Jones, 260 N.C. App. 104, 108 (2018) (“Bench trials differ from jury trials since there are no jury instructions . . . to show exactly what the trial court considered . . .”). Nevertheless, the trial court may exercise its discretion to provide jury instructions, which may inform the parties of the issues the judge will deliberate. Cheek, 267 N.C. App. at 595 (stating that in this “unusual case” the additional procedural steps the trial court used, including providing jury instructions, were “fully within its discretion” though not required); see also Cheek, 377 N.C. at 540 n.2 (“Although we are inclined to agree with the Court of Appeals that there was no necessity for the trial court to have instructed itself concerning the applicable law . . . we do not believe that the trial court erred by proceeding as it did and will evaluate defendant’s challenges to the trial court’s judgment utilizing the approach that the trial court elected to adopt in deciding the relatively novel issues that were before it in this case.”)

Must the trial court make findings of fact and conclusions of law? Findings of fact and conclusions of law are not required in a criminal bench trial. Cheek, 267 N.C. App. at 591-92. Instead, the trial court may enter a general verdict, just as a jury would in a jury trial. Id. at 592; see also Cheek, 377 N.C. at 540 n.2  (“Although we are inclined to agree with the Court of Appeals that there was no necessity for the trial court . . . to enter an order containing findings of fact and conclusions of law . . . we do not believe that the trial court erred by proceeding as it did and will evaluate defendant’s challenges to the trial court’s judgment utilizing the approach that the trial court elected to adopt in deciding the relatively novel issues that were before it in this case.”). While the trial court generally is required to determine only whether the defendant is guilty or not guilty, some offenses (like second degree murder) require special findings to ensure the defendant may properly be sentenced. Special findings also are required for aggravating factors under structured sentencing, see G.S. 15A-1340.1(a1), (a3), and impaired driving offenses sentenced under G.S. 20-179.

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