                              NO. COA13-1220

                    NORTH CAROLINA COURT OF APPEALS

                            Filed:    3 June 2014

STATE OF NORTH CAROLINA

    v.                                    Martin County
                                          No. 09 CRS 0413
ALBERT GREY GURKIN, SR.


    Appeal by defendant from judgment entered 7 February 2013

by Judge Wayland J. Sermons, Jr., in Martin County Superior

Court.    Heard in the Court of Appeals 19 March 2014.


    Attorney General Roy Cooper, by Special Deputy Attorney
    General Richard L. Harrison, for the State.

    Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
    for defendant-appellant.


    McCULLOUGH, Judge.


    Defendant     appeals   from     judgment   entered     7    February   2013

after a Martin County jury found him guilty of second-degree

murder.     For   the   following    reasons,   we   find       no   prejudicial

error.

                              I. Background

    Defendant, Albert Grey Gurkin, Sr., was indicted for first-

degree murder on 17 August 2009.          Defendant was tried at the 28

January 2013 Criminal Session of Martin County Superior Court,
                                            -2-
the Honorable Wayland J. Sermons, Jr., presiding.

      Prior    to    the   start      of    jury   selection,       the   trial   court

inquired   as       to   whether      counsel      had    any   objections      and   no

objections were raised.                Jury selection began with the trial

court selecting six prospective jurors for voir dire.                           All six

prospective jurors were passed to the defense.                       The trial court

excused one venire member and the defense accepted the remaining

five.    The trial court then directed the clerk to call seven

prospective     jurors.         This    modified     process       continued    without

objection until a full jury was accepted.

      During    the      voir    dire      of   prospective       juror   Ms.   McNeil,

McNeil stated she overheard some discussion in the jury room

about the case.          Specifically, she overheard a few prospective

jurors discussing whether they knew defendant or what the case

was   about.        During      the    State’s     voir    dire    questioning,       the

following exchange took place:

              MR. EDWARDS:      Have you -- since this
              happened,    do   you    recall   having a
              conversation with anyone about the case?

              JUROR NO. 7/MS. MCNEILL: Not really. Just,
              you know wondering what it was about when I
              was sitting in the jury room.

During defense counsel’s voir dire questioning, the following

exchange took place:
                      -3-
MR. DUPREE:    You mentioned something that
I’m going to ask you a couple of questions
about.   You said in the jury room where
you’ve all got so much free time over the
last few days there was some discussion
about what was going on or what the case was
about?

JUROR NO. 7/MS. MCNEILL:    Yes, a little bit.

MR. DUPREE:    What kind of discussion did you
hear?

JUROR NO. 7/MS. MCNEILL:    Did we –-       did
anybody know him, you know, Grey, know      him
personally and what happened, that sort      of
thing. I know you said not to do that,      but
they did.

THE COURT:    I sure did.

MR. DUPREE: Would you say that was quite a
few people asking each other about –-

JUROR NO. 7/MS. MCNEILL:       No, not a lot.
Just a few.

MR. DUPREE:   Just people in your circle?

JUROR NO. 7/MS. MCNEILL:     Just a little bit
around me.

MR. DUPREE:   Well, obviously, you knew, and
you’re an accomplished person who has had a
long career, what the Judge’s specific
instructions were.    Do you feel like that
that disobeyance, that discussion, had any
impact on you?

JUROR NO. 7/MS. MCNEILL:    No, because nobody
knew much about it.

MR. DUPREE:  . . . In its entire capacity,
do you think any of those discussions would
                                      -4-
            have caused any impact on the ability to sit
            on this jury?

            JUROR NO. 7/MS. MCNEILL:         No.

            MR. DUPREE:   Now, other than asking about
            what was –- if anybody knew him or knew them
            or whatever, what else was discussed that
            you heard?

            JUROR NO. 7/MS. MCNEILL:     That’s about it.
            It was the same thing.    It was what I read
            in the paper or on the news.

            MR. DUPREE:    They talked about that, the
            coverage that had been applied to the media?

            JUROR NO. 7/MS. MCNEILL:   A little bit. But
            –- (shaking her head back and forth.)

    Based on these exchanges, defense counsel made a motion for

mistrial.     After the court         asked defense counsel whether he

intended to offer any evidence in support of his motion, he

requested to examine the 57 remaining members of the jury pool

that may have been in the room at the time of the alleged

improper discussion.        That request, along with the motion for

mistrial, was denied.        The trial court declined to excuse Ms.

McNeill for cause and the defense used one of its peremptory

challenges to excuse her.

    The     evidence   at    trial     tended      to   show    the   following:

defendant   and   Jewel     Gurkin,    the   victim,      had    a    contentious

marriage.     They would often go days without speaking to one
                                           -5-
another.         A    main    point   of   contention     was   the    contents     of

defendant’s will.            Defendant wanted to leave all of his money to

Jewel and all of his land to his son, Grey Gurkin, Jr.                         Jewel

was unhappy about defendant leaving the land to his son.                       Jewel

told    others       about    her   troubles     with   defendant     and   that   she

feared “something was going to happen.”

       The night before Jewel’s death, she and defendant engaged

in a heated argument about defendant’s will.                    The next morning,

defendant went into the bathroom to shave and brush his teeth.

While defendant was washing his eyes with a hot washcloth, Jewel

touched defendant in his lower back with a stun gun.                        Defendant

turned around and pushed Jewel up against the cabinets in an

attempt to keep her from using the stun gun again.                          Defendant

was able to use his left hand to push the stun gun into Jewel’s

side.     Defendant had no memory of what he did with his right

hand.    Jewel “snatched back” and the stun gun burned defendant’s

fingers. According to defendant, the next thing he knew, they

were on the floor.

       Defendant noticed blood in the corner of Jewel’s mouth and

discovered she was not breathing.                When defendant realized Jewel

was dead, he wrapped her in a blanket, tied her hands and feet

together, and carried her down to a pond on his property.                           He
                                      -6-
moved some sticks and limbs around and laid her on the ground.

Police were alerted when Jewel failed to show up for work.                    They

were unable to find her.        That night, defendant stayed with his

son and told him what he had done.                 Sometime between midnight

and 5:00 a.m., defendant moved and unwrapped the body so it

could be found. After moving the body, defendant was immediately

apprehended by the police, who had been searching for the body

all day.

    An autopsy revealed the cause of death to be strangulation.

The state’s expert testified that it can take approximately ten

seconds    of    compression   on   the     neck    for   a    person   to    lose

consciousness and approximately five minutes to cause death.

    At the close of the evidence, the trial court instructed

the jury on first-degree murder, second-degree murder, voluntary

manslaughter,       and   acquittal.          Defense     counsel       requested

instructions on self-defense and imperfect self-defense, which

the trial court denied.         The jury returned a verdict finding

defendant guilty of second-degree murder and the trial court

entered a judgment sentencing defendant to a term of 189 to 236

months    in    prison.   Defendant    gave    notice     of   appeal    in   open

court.

                               II. Discussion
                                      -7-
     Defendant     raises   the    following    issues    on   appeal:     (1)

whether the trial court abused its discretion by declining to

inquire into alleged improper discussions by prospective jurors;

(2) whether the trial court plainly erred in deviating from the

statutory procedure for passing jurors to defendant during jury

selection; (3) whether the trial court plainly erred in omitting

an instruction on involuntary manslaughter; and (4) whether the

trial court properly denied defendant’s requested instructions

on self-defense and imperfect self-defense.

                            A. Jury Misconduct

     Defendant first asserts that the trial court abused its

discretion by declining to make an inquiry into alleged improper

discussions   by    prospective      jurors.        Specifically,   defendant

argues that when such jury misconduct is alleged, the trial

court must conduct an investigation into the alleged misconduct

and does not have the discretion to decline to do so.

     In reviewing a trial court’s decision to grant or deny a

motion for mistrial on the basis of juror misconduct, we review

for abuse of discretion.          State v. Bonney, 329 N.C. 61, 73, 405

S.E.2d 145, 152 (1991).       The trial court’s decision should only

be   overturned     where    the     error     is    so   serious   that   it

substantially and irreparably prejudiced the defendant, making a
                                           -8-
fair and impartial verdict impossible.                   Id.

         “The    determination     of    the   existence          and    effect    of    jury

misconduct is primarily for the trial court whose decision will

be given great weight on appeal.”                 Id. at 83, 405 S.E.2d at 158.

When jury misconduct is alleged, the trial court is vested with

the “discretion to determine the procedure and scope of the

inquiry.”         State v. Burke, 343 N.C. 129, 149, 469 S.E.2d 901,

910 (1996).

         Defendant relies on State v. Harris, 145 N.C. App. 570, 551

S.E.2d 499 (2001), disc. review denied, 355 N.C. 218, 560 S.E.2d

146      (2002),    for    the    contention          that   an      absolute     duty     to

investigate juror misconduct is imposed upon the trial court

when such misconduct is alleged.                  Specifically, defendant cites

to the following sentence:               “Where juror misconduct is alleged .

.    .    the    trial    court   must    investigate          the      matter    and    make

appropriate inquiry.”             Harris, 145 N.C. App. at 576, 551 S.E.2d

at       503.    Defendant’s      reliance       on     this      quote     ignores      the

immediately following sentence from Harris:                          “However, there is

no absolute rule that a court must hold a hearing to investigate

juror misconduct upon an allegation.”                    Id. at 576-77, 551 S.E.2d

at 503.         Indeed, this Court has held that only “[w]hen there is

substantial reason to fear that the jury has become aware of
                                             -9-
improper and prejudicial matters, the trial court must question

the jury as to whether such exposure has occurred and, if so,

whether the exposure was prejudicial.”                     State v. Black, 328 N.C.

191, 196, 400 S.E.2d 398, 401 (1991) (emphasis added).                           Further,

“[a]n examination of the juror involved in alleged misconduct is

not   always      required,       especially         where        the     allegation    is

nebulous.”       Harris, 145 N.C. App. at 577, 551 S.E.2d at 503.

      Our Supreme Court has held that “‘[i]n the event of some

contact with a juror it is the duty of the trial judge to

determine       whether    such       contact      resulted       in    substantial    and

irreparable       prejudice      to    the    defendant.           It    is   within   the

discretion of the trial judge as to what inquiry to make.’”

Burke,    343    N.C.     at   149,    469    S.E.2d       at   911     (emphasis   added)

(quoting State v Willis, 332 N.C. 151, 173, 420 S.E.2d 158, 168

(1992)).

      The trial court acted within its discretion in declining to

conduct     any     further       inquiry          into     the        alleged   improper

discussions of prospective jurors and limiting the scope of its

inquiry to the lines of questioning quoted above.                          When asked by

the   court,     defense       counsel    could      not    say    how    defendant    was

prejudiced.       Ms. McNeill stated that from what she overheard, no

prospective juror indicated that he or she either knew defendant
                                             -10-
or anything about the case.                 Based upon Ms. McNeill’s responses

and    the     trial     court’s       observations,           the    trial       court    was

satisfied that the alleged statements of prospective jurors did

not give rise to a substantial reason to fear that the jury was

prejudiced.        It was well within the trial court’s discretion

when it limited its inquiry to a consideration of Ms. McNeill’s

voir    dire      and    determined         that    there      was    no    prejudice          to

defendant.        Accordingly, we hold that the trial court did not

err in refusing to conduct any further inquiry.

                           B. Jury Selection Procedure

       Defendant        next   asserts       that       the   trial       court    erred       in

deviating from the statutory procedure for passing jurors to

defendant      during       jury   selection.                 Defendant       argues       that

deviation from the requirements of N.C. Gen. Stat. § 15A-1214

entitles him to a new trial.                We disagree.

       Although     defendant      failed          to    object      to    the     procedure

utilized     at    trial,      “when    a    trial      court     acts     contrary       to    a

statutory mandate . . . the right to appeal the court’s action

is preserved.”           State v. Love, 177 N.C. App. 614, 623, 630

S.E.2d 234, 240, disc. review denied, 360 N.C. 580, 636 S.E.2d

192 (2006) (internal quotation marks omitted).                             In reviewing a

trial court’s deviation from the statutory procedure for the
                                        -11-
passing of jurors to the defendant where defendant failed to

object to the procedure, we review for plain error.                       State v.

Stroud, 147 N.C. App. 549, 564, 557 S.E.2d 544, 553 (2001).                    Our

Supreme Court recently clarified how the plain error rule is to

be applied in North Carolina:

              For error to constitute plain error, a
              defendant    must    demonstrate    that  a
              fundamental error occurred at trial.     To
              show that an error was fundamental, a
              defendant must establish prejudice that,
              after examination of the entire record, the
              error had a probable impact on the jury’s
              finding that the defendant was guilty.

State    v.   Lawrence,   365    N.C.   506,   518,   723   S.E.2d    326,    334,

(2012)    (citations      and    internal      quotation    marks     omitted).

Further, the plain error rule is to be applied cautiously and

only in exceptional cases, and the error will often be one that

“seriously      affect[s]       the     fairness,     integrity      or     public

reputation of judicial proceedings[.]”              Id. (quotation marks and

citations omitted).

    The procedure for passing prospective jurors to a defendant

during jury selection is governed by N.C. Gen. Stat. § 15A-1214,

which provides in pertinent part:

              (d) The    prosecutor   must   conduct   his
              examination of the first 12 jurors seated
              and make his challenges for cause and
              exercise his peremptory challenges.   If the
              judge allows a challenge for cause, or if a
                                     -12-
            peremptory challenge is exercised, the clerk
            must immediately call a replacement into the
            box.   When the prosecutor is satisfied with
            the 12 in the box, they must then be
            tendered to the defendant. . . .

            . . . .

            (f) Upon the calling of replacement jurors,
            the prosecutor must examine the replacement
            jurors and indicate satisfaction with a
            completed panel of 12 before the replacement
            jurors are tendered to a defendant. . . .
            This procedure is repeated until all parties
            have accepted 12 jurors.

N.C. Gen. Stat. § 15A-1214(d) and (f) (2013).              It is undisputed

that the trial court violated the statutorily mandated procedure

for jury selection.         Despite this violation, “a new trial does

not automatically follow a finding of statutory error.”                State

v. Garcia, 358 N.C. 382, 406, 597 S.E.2d 724, 742-43 (2004),

cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).                   Our

Supreme     Court    has    “consistently      required    that   defendants

claiming error in jury selection procedures show prejudice in

addition to a statutory violation before they can receive a new

trial.”     Id. at 406, 597 S.E.2d at 743.

       The procedure for jury selection is designed to “ensure the

empanelment of an impartial and unbiased jury.”              Love, 177 N.C.

App.   at   623,    630    S.E.2d   at   241   (internal   quotation   marks

omitted). Defendant, both in his brief and reply brief, asserts
                                            -13-
a claim of prejudice on the basis that the trial court deviated

from the statutory procedure.                However, defendant fails to show,

nor    does    he    argue,       “jury    bias,     the    inability     to     question

prospective jurors, inability to assert peremptory challenges,

nor any other defect which had the likelihood to affect the

outcome of the trial.”             Id.

       Defendant’s        basis     for    prejudice       on   appeal    is     that   he

exhausted his peremptory challenges.                       We are not persuaded by

this argument. Defendant’s bare assertion that he was prejudiced

in this manner fails to meet his “heavier burden of showing that

the error rises to the level of plain error.”                            Lawrence, 365

N.C. at 516, 723 S.E.2d 333.

       Defendant also contends that deviation from the statutory

procedure constitutes reversible error per se.                         To support this

contention, defendant relies on Gray v. Mississippi, 481 U.S.

648,   95     L.    Ed.    2d     622    (1987).      However,       whatever     support

defendant      draws       from     Gray     is     limited     to     capital    cases.

Accordingly, because defendant has failed to show prejudice, we

hold    that       the    trial    court’s        deviation     from    the    statutory

procedure does not warrant a new trial.

               C. Instruction on Involuntary Manslaughter

       Defendant’s third contention is that the trial court erred
                                      -14-
by failing to instruct the jury on the lesser-included offense

of involuntary manslaughter.           Defendant argues that because the

evidence suggests he acted with at most culpable negligence, the

trial   court   should    have   instructed       the   jury    on   involuntary

manslaughter.    We disagree.

      Because   defendant       did   not    request     an     instruction   on

involuntary manslaughter and did not object to the instructions

given at trial, we review for plain error.                State v. McCollum,

157 N.C. App. 408, 412, 579 S.E.2d 467, 469 (2003), aff’d, 358

N.C. 132, 591 S.E.2d 519 (2004).              As noted above, the plain

error rule is to be applied cautiously, and only in exceptional

cases where a fundamental error occurred such that the error had

a probable impact on the jury’s finding that the defendant was

guilty.   Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

      The distinguishing difference between second-degree murder

and   manslaughter   is   the    presence    of    malice      in   second-degree

murder and its absence in manslaughter.             McCollum, 157 N.C. App.

at 412, 579 S.E.2d at 470.            Defendant argues that the evidence

showed he acted recklessly and with a disregard for human life

and did not intend to kill Jewel.             Thus, defendant argues, an

instruction on involuntary manslaughter was necessary.                  However,

malice can be implied where a defendant acted so recklessly or
                                             -15-
wantonly “as to manifest depravity of mind and disregard for

human life.         In such a case, the homicide cannot be involuntary

manslaughter, even if the assailant did not intend to kill the

victim.”       Id. at 412-13, 579 S.E.2d at 570 (internal quotation

marks and citation omitted).

       We find McCollum to be squarely on point with our case. In

that   case,        as   here,   the    trial       court   submitted     first-degree

murder,       second-degree          murder,        voluntary   manslaughter,        and

acquittal to the jury, who returned a verdict of second-degree

murder.        The       defendant     did    not     request   an   instruction     on

involuntary manslaughter, nor did he object to the lack of such

an instruction.           This Court held that when the jury returned a

verdict       of    second-degree       murder,       it    necessarily    negated     a

finding of the absence of malice:

              When the jury convicted defendant of second-
              degree    murder   and    rejected   voluntary
              manslaughter, it necessarily found that
              defendant acted with malice.     A finding of
              malice   precludes   a   finding   of   either
              voluntary    manslaughter     or   involuntary
              manslaughter. Any asserted error in failing
              to instruct on involuntary manslaughter was
              harmless and does not rise to the level of
              plain error.

McCollum, 157 N.C. App. at 414, 579 S.E.2d at 471 (citation

omitted).          In finding defendant guilty of second-degree murder,

the    jury    necessarily       found       beyond     a   reasonable    doubt   that
                                     -16-
defendant acted with malice, rejecting the absence of malice

necessary    for     involuntary   manslaughter.         The     jury    had    an

opportunity to find an absence of malice and did not.                   Thus, it

cannot be said that had the jury been instructed on involuntary

manslaughter, the jury would have reached a different verdict.

Accordingly, we hold that the trial court did not plainly err in

failing to instruct the jury on involuntary manslaughter.

     D. Self-Defense and Imperfect Self-Defense Instruction

    Defendant’s final argument is that the trial court erred in

denying his request to instruct the jury on self-defense and

imperfect    self-defense.         Because     defendant       requested       jury

instructions    on    self-defense    and    imperfect     self-defense,         we

review de novo.        State v. Cruz, 203 N.C. App. 230, 235, 691

S.E.2d 47, 50 (2010).

    Perfect self-defense excuses a killing completely when it

is shown at the time of the killing that:

            (1) it appeared to defendant and he believed
                it to be necessary to kill the deceased
                in order to save himself from death or
                great bodily harm; and

            (2) defendant’s belief was reasonable in that
                the circumstances as they appeared to him
                at the time were sufficient to create
                such a belief in the mind of a person of
                ordinary firmness; and

            (3) defendant    was     not     the   aggressor      in
                                       -17-
                bringing on the affray, i.e., he did not
                aggressively and willingly enter into the
                fight    without    legal    excuse    or
                provocation; and

            (4) defendant did not use excessive force,
                i.e., did not use more force than was
                necessary or reasonably appeared to him
                to be necessary under the circumstances
                to protect himself from death or great
                bodily harm.

State v. Bush, 307 N.C. 152, 158, 297 S.E.2d 563, 568 (1982).

An instruction on imperfect self-defense arises when only the

first two of the above elements are shown.                Id. at 159, 297

S.E.2d at 568.

      A defendant is entitled to an instruction on self-defense

only where there is “any evidence in the record from which it

can be determined that it was necessary or reasonably appeared

to   be   necessary   for   him   to   kill   his   adversary   in   order   to

protect himself from death or great bodily harm.”               Id. at 160,

297 S.E.2d at 569. It is for the trial court to determine as a

matter of law “whether there is any evidence that the defendant

reasonably believed it to be necessary to kill his adversary in

order to protect himself from death or great bodily harm.”                   Id.

In determining whether a self-defense instruction should have

been given, we examine the facts in the light most favorable to

the defendant.        State v. Moore, 111 N.C. App. 649, 654, 432
                                    -18-
S.E.2d 887, 889 (1993).

       At no point during the trial did defendant testify that he

thought it was necessary or reasonably necessary to kill Jewel

in order to protect himself from death or great bodily harm.

Defendant only testified that his wife was holding a stun gun

and that he pushed her up against the bathroom cabinets to keep

her from using the stun gun.            Defendant was able to push the

stun gun into Jewel’s side and ultimately subdued her.               He did

not state that he feared for his life or that he feared he might

suffer great bodily harm at any time during the altercation.

Defendant’s testimony does not suggest, neither explicitly nor

implicitly, that it was necessary or reasonably necessary to

kill his wife in order to avoid death or great bodily harm.

       We find that the evidence taken in the light most favorable

to defendant fails to show any circumstances that would suggest

that    defendant    reasonably     believed    it    was     necessary    or

reasonably necessary for him to kill Jewel in order to avoid

death or great bodily harm.        Because defendant failed to satisfy

the    required   elements   for   an   instruction   on    self-defense   or

imperfect self-defense, we hold that the trial court did not err

in refusing to submit those issues to the jury.

                             III. Conclusion
                              -19-
    For the reasons stated above, we conclude that the trial

court did not commit prejudicial error.

    No prejudicial error.

    Judges ELMORE and DAVIS concur.
