An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-924
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                       Sampson County
                                               Nos. 11 CRS 53251-52
BEN STRAYHORN, JR.



      Appeal by defendant from judgments entered 17 April 2013 by

Judge   W.    Douglas    Parsons     in    Sampson   County    Superior     Court.

Heard in the Court of Appeals 7 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Matthew Tulchin, for the State.

      Danielle E. Blass for defendant-appellant.


      ELMORE, Judge.


      Ben Strayhorn, Jr. (defendant) was convicted of two counts

of possession with intent to sell or deliver, and two counts of

sale and delivery of a Schedule I controlled substance.                    He pled

guilty to having attained habitual felon status.                        The trial

court      sentenced     defendant        to   two    consecutive       terms     of

imprisonment for a minimum of 60 months and a maximum of 81
                                        -2-
months.      Defendant appeals.         We hold that defendant received a

fair trial, free of prejudicial error.

       The   sole    issue    before    us        is   whether   the   trial    judge

committed prejudicial error by denying defendant’s motion for a

mistrial     after    some    jurors    may       have   seen    defendant   wearing

handcuffs and being placed into a sheriff’s vehicle during a

lunch recess.        The trial transcript shows that the jury retired

to deliberate at approximately 10:21 a.m. on 17 April 2013.                          At

approximately 1:00 p.m., the trial judge excused the jurors for

lunch.       As court reconvened after the lunch break, and with the

jurors out of the courtroom, defendant’s counsel stated that

during    the   lunch     break   she       saw    sheriff’s     deputies    putting

defendant, who was handcuffed, into the back seat of a deputy’s

car.     She noticed that at least five jurors, two of whom she

could recognize, stopped and watched this event occur and then

immediately began talking with each other.                       Counsel could not

hear what the jurors were talking about and did not speak to the

jurors.       Counsel   moved     for   a     mistrial,     alleging    “undue      and

extreme prejudice” to defendant.

       The   prosecutor      opposed    the    motion     and    suggested     to   the

trial court, “the appropriate thing to do is not mention it to

the jury, as that would call more attention to it already.”                         The
                                      -3-
trial judge then ruled that counsel’s observations “do not rise

to the level of necessitating a mistrial.               It does not rise to

the level of manifest injustice, nor extreme prejudice to the

fact that Mr. Strayhorn cannot, at this time, continue with a

fair deliberation.”         The trial judge noted         the incident       was

“unfortunate”       and   thanked    counsel   for    calling      it   to   his

attention.    In deciding in his discretion to deny the motion,

the trial judge stated he saw nothing to indicate that the trial

could not be continued or that the jury could not be fair and

impartial, basing a verdict solely upon the law and evidence in

the case.

    The     judge    brought   the    jurors   back   into   the    courtroom.

Before excusing the jurors to resume deliberations, the trial

judge questioned the jurors and confirmed that all of the jurors

followed his instructions not to talk with any of the other

jurors or anybody else about the case during the lunch recess.

The jury resumed deliberations at 2:13 p.m. and returned to the

courtroom at 2:20 p.m. with the verdicts.

    “The judge must declare a mistrial upon the defendant’s

motion if there occurs during the trial an error or legal defect

in the proceedings, or conduct inside or outside the courtroom,

resulting    in     substantial     and   irreparable    prejudice      to   the
                                    -4-
defendant’s case.”       N.C. Gen. Stat. § 15A-1061 (2013).                 The

decision whether to grant or deny the motion rests within the

sound discretion of the trial judge and will not be disturbed

absent a showing of abuse of discretion.         State v. Upchurch, 332

N.C. 439, 453, 421 S.E.2d 577, 585 (1992).

       We conclude that the trial court did not err by denying the

motion.     “A mistrial is not required based on the fact that a

juror observed defendant in custody of the court.”                  State v.

Riley, 154 N.C. App. 692, 696, 572 S.E.2d 857, 859-60 (2002).

            The handcuffing of defendants, as they are
            transferred between the courtroom and the
            jail, is a common practice well known by the
            general public.   Thus, a defendant’s right
            to a fair and impartial trial is not
            impaired when jurors observe him outside the
            courtroom in handcuffs.

State v. Elliott, 137 N.C. App. 282, 284-85, 528 S.E.2d 32, 34-

35, rev’d on other grounds, 352 N.C. 663, 535 S.E.2d 32 (2000)

(internal    citation   omitted).     Although   it   occurred      after    he

decided to deny the motion for mistrial, the trial judge did

determine before excusing the jury to resume deliberations that

the jurors had followed his instructions not to talk about the

case    among   themselves   or   others   during     the   lunch    recess.

Defendant did not request the trial judge to bring the jurors
                                      -5-
who   may   have   witnessed   the    incident   into   the    courtroom      for

further questioning outside of the presence of the other jurors.

      We    hold   that   defendant   received   a   fair     trial,   free    of

prejudicial error.

      No error.

      Judges McGEE and DAVIS concur.

      Report per Rule 30(e).
