An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-151
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:       7 October 2014


STATE OF NORTH CAROLINA

      v.                                       Alamance County
                                               Nos. 12 CRS 9106, 50142-44
WESLEY DAVID CARDEN



      Appeal by defendant from judgment entered 13 May 2013 by

Judge James E. Hardin, Jr. in Alamance County Superior Court.

Heard in the Court of Appeals 25 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Douglas W. Corkhill, for the State.

      Wait Law,       P.L.L.C.,     by     John      L.     Wait,    for    defendant-
      appellant.


      CALABRIA, Judge.


      Wesley David Carden (“defendant”) appeals from a judgment,

entered    upon    jury    verdicts       finding         him    guilty    of   assault

inflicting     serious     injury    on    a   law    enforcement          officer   and

resisting a public officer, that includes his plea of guilty to

attaining the status of an habitual felon.                      We find no error.
                                            -2-
      On 7 January 2012, Officers Brad Mills (“Officer Mills”)

and   C.M.      Leight    (“Officer    Leight”)        of   the   Burlington      Police

Department responded to a report of an assault in progress at

defendant’s         apartment.       When    they      arrived,    they      could    hear

screaming from within the apartment. They knocked on the door

and loudly identified themselves as law enforcement officers.

When the officers received no response, Officer Leight opened

the apartment door and entered the apartment with her firearm

drawn.

      Officer Leight encountered defendant and ordered him to get

on the ground.            Defendant failed to comply and attempted to

leave.     Officer Mills then attempted to restrain defendant, and

defendant responded by punching Officer Mills twice in the eye.

Officer Leight deployed her taser, and with the assistance of

additional officers who had arrived on the scene, was able to

subdue defendant.

      Defendant was subsequently indicted for, inter alia, two

counts     of       assault    inflicting     physical       injury     on    a   police

officer,     two      counts    of   assault      on    a   female,     one   count       of

resisting       a    public    officer,     and   attaining       the   status       of   an

habitual felon.               Beginning 6 May 2013, defendant was tried by

a jury in Alamance County Superior Court.                     At the close of the
                                            -3-
State’s evidence, the trial court dismissed the two counts of

assault on a female.

       On 9 May 2013, the trial court instructed the jury on the

applicable law.         At the end of the trial court’s instructions,

the twelve jurors were sent to the jury room, and the alternate

juror remained in the courtroom.                    The trial court advised the

alternate      that    typically      she    would      be    released,         but   because

there would potentially be a second phase of the trial, she

would    be    retained.              On    13    May     2013,     prior       to    resuming

deliberations,         all     the    jurors,        including            the     alternate,

reconvened in the jury lounge.                    In the presence of the other

jurors, the alternate told a bailiff that she was informed that

she    had    to    return   because       there    may      be     a    second      phase   of

defendant’s trial.

       The    trial    court    was    informed         of    the       alternate     juror’s

comment and brought her back into the courtroom to conduct a

brief inquiry.         The alternate admitted that she had mentioned a

possible second phase of the trial to a bailiff in front of the

rest    of    the   jury.      The    trial       court      then       asked   for    defense

counsel’s position, and counsel requested that the court examine

the bailiff.          The bailiff informed the trial court that one of

the jurors had asked about a second phase to the trial and that
                                            -4-
he had told this juror to disregard the alternate’s statement.

The bailiff thought that some of the jurors seemed puzzled, but

he did not believe it was “an, oh, my gosh moment for them.”

       After the bailiff completed his statement, the trial court

asked defense counsel for his position.                         Counsel felt that the

best    course    of     action      was        to    allow     the    jury      to   resume

deliberations.         The trial court then specifically asked defense

counsel   if     he   wished   to        make    a    motion     for   a   mistrial,     and

counsel   replied       that   he    did        not    believe    that     the    alternate

juror’s statement was sufficiently serious to rise to the level

of a mistrial.          Accordingly, the trial court made no further

inquiry   or     instruction        to    the        jury    regarding     the    alternate

juror’s statement.

       Later that same day, the jury returned verdicts finding

defendant guilty of one count of assault inflicting physical

injury on a law enforcement officer and resisting an officer and

not guilty of the remaining count of assault inflicting physical

injury on a law enforcement officer.                        Thereafter, defendant pled

guilty to attaining the status of an habitual felon.                              The trial

court sentenced defendant to a minimum of thirty-five months to

a maximum of fifty-four months in the North Carolina Division of

Adult Correction.        Defendant appeals.
                                        -5-
       Defendant’s sole argument on appeal is that the trial court

erred    by   failing   to    make     its    own   inquiry   of   the    jury   to

determine whether the alternate juror’s statement regarding a

potential second phase of defendant’s trial affected the jury’s

ability to fairly deliberate.           We disagree.

              The law is well-settled in North Carolina
              regarding the discretion afforded to trial
              courts on questions of juror misconduct.
              When juror misconduct is alleged, the trial
              court must investigate the matter and make
              appropriate inquiry. Since no one is in a
              better position than the trial judge, who
              contemporaneously observes and participates
              in the trial, to investigate allegations of
              misconduct,   the    trial   court's    broad
              discretion is appropriate and will not be
              reversed on appeal unless it is clearly an
              abuse of discretion. A trial court is held
              to have abused its discretion only when its
              ruling was so arbitrary that it could not
              have been the result of a reasoned decision.

State v. Hill, 179 N.C. App. 1, 24, 632 S.E.2d 777, 791 (2006)

(citations and quotation marks omitted).

       In the instant case, after being informed of the alternate

juror’s statement regarding a second phase of defendant’s trial,

the trial court conducted a brief inquiry of the alternate juror

on the record.       Then, at defendant’s request, the trial court

also    briefly   questioned     the    bailiff     with   whom    the   alternate

juror    had spoken.         After the bailiff gave his statement, the
                                   -6-
following exchange occurred between the trial court and defense

counsel:

           THE COURT:   So what is the position of the
           defendant at this point?

           [DEFENSE COUNSEL]:    Your Honor, just call
           them as if they were just getting ready to
           deliberate and treat it like it was nothing.
           I think that would probably be the best cure
           all.

           THE COURT: So do I understand the defendant
           is not making a motion for a mistrial at
           this time?

           [DEFENSE COUNSEL]:     We are not.

           THE COURT:       And you believe that the
           comments of    the alternate juror in the
           presence of    the other jurors was of no
           effect?

           [DEFENSE COUNSEL]:  I wouldn’t say it would
           be   no effect but I do not think it’s such
           effect that would rise to the level of a
           mistrial. Mistrial is a very high burden or
           very high standard and I don’t think we are
           there.

           I do believe the Court treating it as a non-
           event to the remaining jurors -- provided
           she was just segregated again --

           THE COURT:    And that’s correct, Mr. Bailiff?

           BAILIFF []:   Yes, sir.

           [DEFENSE   COUNSEL]:      I   think   that   will   be
           fine.
                                        -7-
Thus,   defense    counsel      specifically        requested    that   the    trial

court take no further action regarding the alternate juror’s

statement.

       Pursuant to N.C. Gen. Stat. § 15A-1443, “[a] defendant is

not prejudiced by . . . error resulting from his own conduct.”

N.C. Gen. Stat. § 15A-1443(c) (2013).                As our Supreme Court has

explained,

              [o]rdinarily one who causes (or we think
              joins in causing) the court to commit error
              is not in a position to repudiate his action
              and assign it as ground for a new trial. The
              foregoing is not intended as any intimation
              the court committed error in this instance;
              but to point out the legal bar to the
              defendant's right to raise the question.
              Invited error is not ground for a new trial.

State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971).

In the instant case, defendant’s counsel specifically requested

that    the     trial     court    allow      the    jury   to     continue     its

deliberations         without     any   instruction         from    the       court.

Furthermore, defense counsel conceded that the alternate juror’s

statements     were     not   grounds   for    a    mistrial.      As   a   result,

defendant cannot now argue on appeal that the trial court’s

inquiry was insufficient or that a mistrial should have been

granted.      This argument is overruled.

       Defendant received a fair trial, free from error.
                          -8-
No error.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).
