IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-1135

Filed: 31 December 2020

Rowan County, No. 16 CRS 56161

STATE OF NORTH CAROLINA

v.

JERMAIL BLAKE

Appeal by defendant from judgment entered 24 May 2019 by Judge Anna M.

Wagoner and order entered 30 August 2019 by Judge Richard S. Gottlieb in Superior

Court, Rowan County. Heard in the Court of Appeals 6 October 2020.

Attorney General Joshua H. Stein, by Special Deputy Attorney General 

Alexander G. Walton, for the State.

Sarah Holladay, for defendant.

STROUD, Judge.

Defendant appeals from his conviction for voluntary manslaughter. Defendant 

argues there was prejudicial error in three phases of his trial: (1) structural error 

based upon the jury’s disregard of the trial court’s instructions; (2) denial of his right 

to be present for all stages of his trial as he was not present for post-trial motions; 

and (3) error in the Order denying his Motion for Appropriate Relief, by imposing a 

bar on future post-conviction litigation. We conclude there was structural error 

where a number of jurors told the presiding judge immediately after indicating their 

verdict was unanimous, but before judgment was entered, that they were not “sure 
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that the defendant committed this crime but, . . . ‘Someone -- that man died, so 

someone needs to go to prison[.]’” Accordingly, Defendant is entitled to a new trial. 

We also vacate the Order denying Defendant’s Motion for Appropriate Relief. 

I. Factual and Procedural Background

The offense charged arose from a party on the night of 30 December 2016 at 

Anthony Angle’s house. Three witnesses testified for the State about the events of 30 

December 2016. Their accounts to the exact details were not entirely consistent and 

in some instances contrary to the physical evidence, but all indicated that Defendant 

and Altereck Shields got into a physical altercation that resulted in Mr. Shield’s 

death.

Mr. Angle testified that Mr. Shields arrived at the party around 11:30 AM. 

Approximately an hour later Defendant, who is Mr. Angle’s cousin, and one of 

Defendant’s friends arrived at the party. Mr. Angle sold Defendant a gram of cocaine, 

and Defendant consumed half that amount. Defendant and Mr. Shields got into an 

argument in the kitchen “about who the -- who were the best Bloods, East Coast or 

West Coast, at the time.” Mr. Angle stepped out of the kitchen for a minute, and 

when he returned, Defendant and Mr. Shields were in a scuffle and “barrel hooked 

up.” Mr. Angle and other people at the party tried to break Defendant and Mr. 

Shields up but they were unsuccessful and decided to “push ‘em out the door so they 

don’t bust holes in the wall.” After the two men were outside, Mr. Angle observed 
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Defendant and Mr. Shields fall over a small wall and continue fighting. Then Mr. 

Shields straddled Defendant while he was still on the ground and hit him several 

times with his fists. Mr. Angle saw Defendant produce a knife and stab Mr. Shields 

with one of his kitchen knives. Then one of the party guests said, “You done killed 

my cousin,” and started beating Defendant; others then joined in. Mr. Angle tried to 

stop the crowd but could not and called 911. Mr. Shields ultimately died because of 

his injuries.

Defendant was indicted on one count of second degree murder and tried at the 

20 May 2019 criminal session of Superior Court, Rowan County, with the Honorable 

Anna M. Wagoner presiding. The State presented testimony from eight witnesses; 

Defendant presented evidence consisting of photographs, documents, and recordings, 

but no witnesses testified for Defendant. The jury deliberations begin at 11:46 AM

on 21 May 2019. At 12:23 PM the trial judge indicated she had received a note from 

the jury:

THE COURT: All right. I just have a note from the jury 

with some questions which I will read out loud. The first 

one is: May we have pictures of the back of the house; 

Number 2: Pictures of kitchen and dining room; and, 

Number 3: Is there a record of 911 call by Mr. Andrade or 

Andrade or whatever the [sic] call him? And if yes, can we 

have?

After discussing with counsel, the trial court agreed to show the jury the requested 

pictures, but there was no record of the 911 call to present to the jury. The court went 
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on recess for lunch until 1:46 PM. When the jury returned to the courtroom, they 

were allowed to look at the pictures and asked an additional question about the ages

of the Defendant and the deceased.

The jury returned to the jury room at 1:53 PM. At 4:09 PM the jury returned 

a unanimous verdict finding Defendant guilty of voluntary manslaughter. The trial 

court polled the jury, and all jurors individually indicated this was still their verdict. 

But after polling the jury, the trial court held an unrecorded bench conference with 

counsel and after coming back on the record said, “I just want to be sure because a 

few of the jurors were a little hesitant, unsure, if that was truly your verdict.” The 

trial court questioned one juror individually, and she confirmed her agreement with 

the verdict. The trial court then thanked the jury for its service and asked the jury 

to step into the jury room. Between 4:19 PM and 4:28 PM, the trial court met with 

the jury and then met with counsel in an unrecorded conference in chambers. 

Immediately after the conference in chambers, Defendant’s counsel made a motion to 

set aside the verdict “based on what Your Honor’s heard.” (Emphasis added.) The 

motion was denied. The trial court had another unreported conference with counsel 

in chambers at 4:29 PM, and the proceedings resumed at 4:34 PM. The trial court 

then announced that the parties were discussing sentencing and decided to do the 

sentencing tomorrow morning “in order to give the defense an opportunity to decide 

what they may want to present in mitigation and anything else.”
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The next day, Defendant and the State appeared in court, and Defendant’s 

counsel explained his client consented to hearing a matter in chambers:

Your Honor, I do have one matter for Your Honor to 

consider on the record; however, we’re agreeable to do this 

-- my client is giving his consent to do this in chambers if 

Your Honor would prefer. That’s actually our request.

The parties then proceeded to sentencing, and Defendant’s counsel presented 

mitigating factors. Defendant was sentenced in the mitigated range, and he gave oral 

notice of appeal. Proceedings then continued on the record in the judge’s chambers 

with the trial judge, Defendant’s counsel, two assistant district attorneys, and the 

court reporter:

THE COURT: All right. We are having this hearing 

in chambers with the consent of the defendant because of 

the court’s concern about the incredibly bad blood between 

these parties and the court would prefer that no one else be 

injured. Okay. Yes, sir, I think you had a --

MR. SEASE: Would specifically ask -- the defense 

would specifically ask for permission from Your Honor to 

renew and further enumerate on a motion to set aside the 

verdict at the close of all the evidence and the verdict has 

already been announced.

THE COURT: All right. You may renew it.

MR. SEASE: Thank you.

THE COURT: You’re welcome.

MR. SEASE: At this juncture what we would 

consider is, although the deliberations of the jury are 

sacrosanct in nature, they can be delved into in a limited 
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fashion if certain things apply and they’re very, very 

limited. What I would propose to Your Honor in the way 

that this case played out is that during closing arguments, 

by no fault of the State whatsoever, a picture of the body of 

the victim was posted which led to the subsequent and 

understandable symp – strike that –

THE COURT: Upset.

MR. SEASE: -- sobbing and crying, and, again, 

understandable, why wouldn’t they feel that way, but from 

the victim’s family. It was what felt to the defense like 

eternity, it wasn’t actually that long, but it continued on. 

The State stopped to try to further escort these people out 

so that it wouldn’t distract anyone from the closing. We 

would contend that the jury, of course, heard it, and that 

based on the verdict and based on what the defense would 

feel – the defense would feel that that would be a realistic 

thing they would consider. It’s an extraneous, prejudicial 

thing to consider for the jury, one that cannot be met by 

cross-examination by the defendant. It wasn’t in evidence. 

It wasn’t law. It wasn’t anything but an extraneous 

consideration that’s outside the purview of what they’re 

allowed to consider. Further, it has come to our attention 

that juror No. 9 may be first cousin –

THE COURT: Who at one time was an alternate; 

correct?

MR. SEASE: Who at one time was an alternate and 

by the fact that the original juror No. 9 had a family 

emergency and did not come to court was placed into seat 

No. 9. And it has come to our attention that she may or 

may not but we believe that she may be first cousins with 

Denerio Robinson, Duck, one of the witnesses for the State. 

We have been able to corroborate that she lives beside of 

Robinsons, but to be fair it’s not Denerio Robinson; it’s 

Demeria, D-e-m-e-r-i-a, Robinson. We also have reason to 

believe that Denerio Robinson’s dad’s last name is Allen.
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. . . . 

Just based on what -- the information that I’ve received 

about the case, we’d ask Your Honor to set that verdict 

aside[.]

The trial court denied Defendant’s motions and informed counsel for both parties: 

All right. Now, the court is going to put on the record as 

well that, after the jury announced its verdict and they 

were discharged, I spoke to them like I always speak to the 

jurors -- jury after the case was over. And several of them, 

say the majority, indicated to me that they did not believe 

any of the witnesses, that in their opinion the witnesses --

and I’m saying their because I don’t know which -- I would 

say at least seven -- the witnesses were not believable, that 

they weren’t sure that the defendant committed this crime 

but, quote, this is what I was told three or four times, 

“Someone -- that man died, so someone needs to go to 

prison,” which I disclosed to the attorneys yesterday and 

I’m disclosing to them again today outside of the presence 

of the public and outside the presence of the defendant with 

his consent. I think that’s it.

(Emphasis added.) After additional discussion with counsel on the record, the trial 

court stated, “And I think anything else that happened will be subject for motion for 

appropriate relief. We’ll cross that bridge when we come to it.” On 3 June 2019, 

Defendant filed a Motion for Appropriate Relief (“MAR”). The MAR was heard by the

Honorable Richard S. Gottlieb. On 28 August 2019, Judge Gottlieb entered an order 

denying Defendant’s MAR, and Defendant timely appealed. 

II. Structural Error
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Defendant argues, “structural error occurred where judgment was entered 

despite the jury informing the trial court that they were not convinced of 

[Defendant’s] guilt, but felt that someone had to be punished for the victim’s death.”

(Original in all caps.) “Structural error is a rare form of constitutional error resulting 

from ‘structural defects in the constitution of the trial mechanism’ which are so 

serious that ‘a criminal trial cannot reliably serve its function as a vehicle for 

determination of guilt or innocence.’” State v. Garcia, 358 N.C. 382, 409, 597 S.E.2d 

724, 744 (2004) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 

1246, 1264-65, 113 L.Ed.2d 302, 331 (1991)).

The United States Supreme Court has identified 

only six instances of structural error to date: (1) complete 

deprivation of right to counsel, Gideon v. Wainwright, 372 

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) a biased 

trial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 

L.Ed. 749 (1927); (3) the unlawful exclusion of grand jurors 

of the defendant’s race, Vasquez v. Hillery, 474 U.S. 254, 

106 S.Ct. 617, 88 L.Ed.2d 598 (1986); (4) denial of the right 

to self-representation at trial, McKaskle v. Wiggins, 465 

U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); (5) denial 

of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 

104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and (6) 

constitutionally deficient jury instructions on reasonable 

doubt, Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 

124 L.Ed.2d 182 (1993).

State v. Polke, 361 N.C. 65, 73, 638 S.E.2d 189, 194 (2006). “In each of the six United 

States Supreme Court cases rectifying structural error, the defendant made a 

preliminary showing of a violated constitutional right and the identified 
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constitutional violation necessarily rendered the criminal trial fundamentally unfair 

or unreliable as a vehicle for determining guilt or innocence.” State v. Garcia, 358 

N.C. at 410, 597 S.E.2d at 745.

A. Standard of Review

As a form of constitutional error, we review structural error de novo. State v. 

Veney, 259 N.C. App. 915, 917, 817 S.E.2d 114, 116 (2018). Structural error is 

reversible per se. State v. Garcia, 358 N.C. at 409, 597 S.E.2d at 744. The trial court 

instructed the jury on second degree murder, voluntary manslaughter, or not guilty, 

and the jury unanimously found Defendant guilty of voluntary manslaughter. After 

the verdict was announced, Defendant’s counsel moved to poll each individual juror. 

The clerk asked each individual juror if the verdict was still their verdict, and they 

all answered, “Yes.” The trial court told the jury “this will conclude your service as 

jurors.” The jury returned to the jury room at 4:19 PM, and the trial transcript states 

there was an “Unreported conference in chambers” and “Proceedings resume at 4:28 

PM.” Defendant’s counsel asked the trial court to set aside the verdict, “Your Honor, 

just the defense would make a motion to set aside the verdict at this time just based 

on what Your Honor’s heard. I don’t wish to belabor the point. Thank you.” (Emphasis 

added.) The next day, the trial court stated on the record what the jury told her 

between 4:19 and 4:28 PM:

All right. Now, the court is going to put on the record as 

well that, after the jury announced its verdict and they 
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were discharged, I spoke to them like I always speak to the 

jurors -- jury after the case was over. And several of them, 

say the majority, indicated to me that they did not believe 

any of the witnesses, that in their opinion the witnesses --

and I’m saying their because I don’t know which -- I would 

say at least seven -- the witnesses were not believable, that 

they weren’t sure that the defendant committed this crime 

but, quote, this is what I was told three or four times, 

“Someone -- that man died, so someone needs to go to 

prison,” which I disclosed to the attorneys yesterday and 

I'm disclosing to them again today outside of the presence 

of the public and outside the presence of the defendant with 

his consent. I think that’s it.

The State argues plain error is the proper standard of review because it 

contends the specific grounds for Defendant’s initial motion to set aside the verdict 

were “not apparent from the context” where this was discussed in chambers and off 

the record. But plain error review is applicable only to evidentiary errors and jury 

instructions, not the argument raised by Defendant. See State v. Lawrence, 365 N.C. 

506, 516, 723 S.E.2d 326, 333 (2012) (“[P]lain error review in North Carolina is 

normally limited to instructional and evidentiary error.” (citing State v. Wiley, 355 

N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002))). And as soon as Defendant’s counsel 

became aware of this issue, Defendant did preserve it for full review. As noted above, 

Defendant’s counsel identified the reasons for his motion to set aside the verdict more 

than once; the reasons included “what your Honor’s heard,” which in context refers 

to the judge’s discussion in the jury room with the jurors, as well as the reaction of 

the victim’s family to the photograph of the victim and the juror who may have been 
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related to one of the State’s witnesses. On appeal, Defendant’s argument as to 

structural error is based only upon the jurors’ comments, and we conclude this 

argument was fully preserved for appellate review as Defendant made a timely 

motion at trial and identified the grounds for this argument. N.C. R. App. P. 10(a)(1).

B. Jury’s Disregard of Instructions on Reasonable Doubt 

Defendant argues,

Given the jury’s determination that the State had not 

proven [Defendant’s] guilt beyond a reasonable doubt, the 

only proper course of action was to set aside the verdict. 

Polling the jury to determine whether they agreed with the 

verdict could not cure the fundamental defect that the 

verdict itself did not include a finding that [Defendant] was 

guilty beyond a reasonable doubt.

We agree. 

Here, the jury was instructed, 

The State must prove to you that the defendant is 

guilty beyond a reasonable doubt. 

A reasonable doubt is a doubt based on reason and 

common sense arising out of some or all of the evidence that 

has been presented or the lack or insufficiency of the 

evidence as the case may be. Proof beyond a reasonable 

doubt is proof that fully satisfies or entirely convinces you 

of the defendant’s guilt.

We conclude the jury was properly instructed on reasonable doubt. 

Yet the jurors—“the majority” of them—told the trial court they had 

disregarded the instruction regarding finding guilt “beyond a reasonable doubt:” 
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several of them, say the majority, indicated to me that they 

did not believe any of the witnesses, that in their opinion 

the witnesses -- and I’m saying their because I don’t know 

which -- I would say at least seven -- the witnesses were 

not believable, that they weren’t sure that the defendant 

committed this crime but, quote, this is what I was told 

three or four times, “Someone -- that man died, so someone 

needs to go to prison[.]”

(Emphasis added.) We conclude the jury disregarded its instruction by the trial court

and convicted Defendant on a standard less than beyond a reasonable doubt. The 

majority of the jurors told the trial court they did not believe “at least seven” of the 

State’s eight witnesses and convicted Defendant because “someone needs to go to 

prison.” The jurors’ comments to the trial court demonstrated that the trial did not 

accomplish its central purpose: “the central purpose of a criminal trial is to decide 

the factual question of the defendant’s guilt or innocence.” State v. Lawrence, 365 

N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (quoting Delaware v. Van Arsdall, 475 U.S. 

673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). We conclude this defect in 

Defendant’s trial resulted in the trial no longer “serv[ing] its function as a vehicle for 

determination of guilt or innocence.” State v. Garcia, 358 at 409, 597 S.E.2d at 744. 

The State argues that “there is a strong presumption against finding structural 

error and the doctrine only applies to a limited number of cases. Defendant’s claim 

does not fit into any of specific types of cases outlined by the Courts.” See State v. 

Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (“Additionally, the Supreme 

Court has found structural error to exist in very few cases.”). The State is correct
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that the types of cases where structural error has been found are limited, but the 

circumstances here present the same type of constitutional error present in some of 

those cases. In Sullivan v. Louisiana, the United States Supreme Court addressed 

the right to a verdict based upon the jury’s determination of guilt beyond a reasonable 

doubt:

What the factfinder must determine to return a 

verdict of guilty is prescribed by the Due Process Clause. 

The prosecution bears the burden of proving all elements 

of the offense charged, and must persuade the factfinder 

“beyond a reasonable doubt” of the facts necessary to 

establish each of those elements[.] This beyond-areasonable-doubt requirement, which was adhered to by 

virtually all common-law jurisdictions, applies in state as 

well as federal proceedings. 

It is self-evident, we think, that the Fifth 

Amendment requirement of proof beyond a reasonable 

doubt and the Sixth Amendment requirement of a jury 

verdict are interrelated. It would not satisfy the Sixth 

Amendment to have a jury determine that the defendant is 

probably guilty, and then leave it up to the judge to 

determine (as Winship requires) whether he is guilty 

beyond a reasonable doubt. In other words, the jury verdict 

required by the Sixth Amendment is a jury verdict of guilty 

beyond a reasonable doubt.

508 U.S. 275, 277-78, 113 S. Ct. 2078, 2080-81, 124 L. Ed. 2d 182, 188 (1993).

Defendant both preserved this error at trial and has demonstrated prejudice, 

although in this instance, the burden to demonstrate prejudice was not on Defendant.

The burden is on the State to demonstrate that a constitutional error is harmless 

beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2019) (“A violation of 
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the defendant’s rights under the Constitution of the United States is prejudicial 

unless the appellate court finds that it was harmless beyond a reasonable doubt. The 

burden is upon the State to demonstrate, beyond a reasonable doubt, that the error 

was harmless.”). 

When violations of a defendant’s rights under the United 

States Constitution are alleged, harmless error review 

functions the same way in both federal and state courts: 

“[B]efore a federal constitutional error can be held 

harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt.” In other words, 

an error under the United States Constitution will be held 

harmless if “the jury verdict would have been the same 

absent the error.” Under both the federal and state 

harmless error standards, the government bears the 

burden of showing that no prejudice resulted from the 

challenged federal constitutional error. But if the error 

relates to a right not arising under the United States 

Constitution, North Carolina harmless error review 

requires the defendant to bear the burden of showing 

prejudice. In such cases the defendant must show “a 

reasonable possibility that, had the error in question not 

been committed, a different result would have been 

reached at the trial out of which the appeal arises.”

State v. Lawrence, 365 N.C. at 513, 723 S.E.2d at 331 (alteration in original) (citations 

omitted).

The State has not demonstrated this error was harmless beyond a reasonable 

doubt. Instead, the State argues this error is not one of the errors previously 

identified as structural error and asserts that the “[r]ecord clearly reflects, there was 

no juror misconduct” based upon the polling of the jurors. 
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C. Rule 606 of the North Carolina Rules of Evidence

The State argues, “the ‘evidence’ Defendant points to in an attempt to impeach 

the verdict came in the form of the trial court’s resuscitation of events following 

Defendant’s conviction.” Rule 606 of the North Carolina Rules of Evidence states:

(b) Inquiry into validity of verdict or indictment.--Upon an 

inquiry into the validity of a verdict or indictment, a juror 

may not testify as to any matter or statement occurring 

during the course of the jury’s deliberations or to the effect 

of anything upon his or any other juror’s mind or emotions 

as influencing him to assent to or dissent from the verdict 

or indictment or concerning his mental processes in 

connection therewith, except that a juror may testify on the 

question whether extraneous prejudicial information was 

improperly brought to the jury’s attention or whether any 

outside influence was improperly brought to bear upon any 

juror. Nor may his affidavit or evidence of any statement 

by him concerning a matter about which he would be 

precluded from testifying be received for these purposes.

N.C. Gen. Stat. § 8C-1, Rule 606.

The proscription against impeachment of a jury 

verdict “is well settled in North Carolina.” “[A]fter a 

verdict has been rendered and received by the court, and 

jurors have been discharged, jurors will not be allowed to 

attack or overthrow their verdict, nor will evidence from 

them be received for such purpose.”

The purpose of the “no-impeachment rule” is “to 

promote freedom of deliberation, stability and finality of 

verdicts, and protection of jurors against annoyance and 

embarrassment.” This rule has been codified under N.C. 

Gen. Stat. § 8C-1, Rule 606(b), and N.C. Gen. Stat. § 15A1240(a). As our Supreme Court has observed, “Rule 606(b) 

reflects the common law rule that affidavits of jurors are 

inadmissible for the purposes of impeaching the verdict 
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except as they pertain to extraneous influences that may 

have affected the jury’s decision.”

State v. Corbett, ___ N.C. App. ___, ___, 839 S.E.2d 361, 377, writ allowed, 373 N.C. 

580, 838 S.E.2d 461 (2020); State v. Lyles, 94 N.C. App. 240, 246, 380 S.E.2d 390, 394 

(1989) (“Finally, although Rule 606(b) is broader in some respects than Section 15A–

1240, we do not agree with any suggestion that the two statutes conflict. In our view, 

the exceptions to the anti-impeachment rule listed in Section 15A–1240 are designed 

to protect the same interests as, and are entirely consistent with, the exceptions in 

Rule 606(b).”).

In State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003), this Court 

addressed an instance of a claim that a juror had disregarded instructions during the

trial. In Coleman, during the second day of jury deliberation, the trial court received 

“a note from the jury alleging that one juror was ‘not following the law.’” Id. at 228, 

587 S.E.2d at 892-93 (2003). “In response to the note, the trial court informed the 

jury that a juror could not be replaced and instructed the jury as to its duty to follow 

the law.” Id. at 228, 587 S.E.2d at 893. The defendant did not request any additional 

instructions or make any motions in response to the note. Id. at 229, 587 S.E.2d at 

893. The jury ultimately delivered a unanimous verdict. Id. at 228, 587 S.E.2d at 

892. Reviewing the defendant’s argument on appeal under Rule 2, this Court noted, 

“To warrant an investigation, ‘the circumstances must be such as not merely to put 

suspicion on the verdict, because there was an opportunity and a chance for 
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misconduct, but that there was in fact misconduct. When there is merely matter of 

suspicion’ it is a decision left to the trial court’s discretion.” State v. Coleman, 161 

N.C. App. 224, 229, 587 S.E.2d 889, 893 (2003) (quoting State v. Aldridge, 139 N.C.

App. 706, 713, 534 S.E.2d 629, 634 (2000)). This Court concluded, 

In the case before us, it was within the discretion of the 

trial court to determine whether an inquiry was 

necessitated by the note from the jury. Based on the 

ambiguity of the note’s allegation and the corrective 

measure taken by the trial court in its subsequent 

instruction, there was no obligation to investigate further.

Id. at 229, 587 S.E.2d at 893.

Here, the jury’s misconduct did not involve just one juror but a “majority.” The 

misconduct was not “merely a matter of suspicion;” the misconduct was confirmed by 

the trial court. In addition, the misconduct goes to the very heart of the defendant’s 

right to a presumption of innocence and the requirement that he be convicted only 

upon proof “beyond a reasonable doubt.” Sullivan v. Louisiana, 508 U.S. at 277-78, 

113 S. Ct. at 2080-81, 124 L. Ed. 2d at 188. In addition, the circumstances of this 

case do not involve an “inquiry into the validity of the verdict” raised after the trial 

by the Defendant. See N.C. Gen. Stat. § 8C-1, Rule 606(b) (“Upon an inquiry into the 

validity of a verdict or indictment . . . .”). The transcript reflected the trial judge’s 

immediate concern regarding the verdict, both by the additional inquiry in open court

and her discussion with the jurors after the verdict. The trial court included the 
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details of the jurors’ comments in the record. There were no affidavits from jurors or

attempts by the defendant to obtain any information from jurors after the trial. 

We have been unable to find a comparable situation in our caselaw, but State 

v. Coleman, 161 N.C. App. 224, 228, 587 S.E.2d 889, is instructive. We conclude this 

misconduct by the jurors did more than “merely . . . put suspicion on the verdict,” and 

therefore it was not left to the trial court’s discretion to remedy the injustice. See id.

at 229, 587 S.E.2d at 893. Further, we conclude based on the facts of this case that 

it is not the type of situation Rule 606 was designed to protect against, and Rule 606 

does not preclude the juror’s misconduct from being structural error. See State v. 

Corbett, ___ N.C. App. ___, ___, 839 S.E.2d 361, 377 (2020). (“The purpose of the ‘noimpeachment rule’ is ‘to promote freedom of deliberation, stability and finality of 

verdicts, and protection of jurors against annoyance and embarrassment.’” (quoting 

Cummings v. Ortega, 365 N.C. 262, 267, 716 S.E.2d 235, 239 (2011))). 

Based upon this structural error, where the jurors failed to follow the trial 

court’s instructions to find Defendant guilty beyond a reasonable doubt, the 

appropriate remedy for Defendant is a new trial. State v. Garcia, 358 at 409, 597 

S.E.2d at 744 (“‘Such errors “infect the entire trial process,” and “necessarily render 

a trial fundamentally unfair[.]”’ For this reason, a defendant’s remedy for structural 

error is not depend[e]nt upon harmless error analysis; rather, such errors are 
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reversible per se.” (citations omitted)). The trial court erred by not granting 

Defendant’s motion to set aside the verdict, and Defendant is entitled to a new trial. 

III. Motion for Appropriate Relief

Because we are granting Defendant a new trial, we will not address 

Defendant’s argument regarding not being present for all stages of the trial. 

However, Defendant has also appealed from the trial court’s Order denying his MAR. 

As the trial judge noted after the final denial of Defendant’s motions, “anything else 

that happened will be subject for motion for appropriate relief. We’ll cross that bridge 

when we come to it.” 

 On 3 June 2019, Defendant filed an MAR. Defendant filed the MAR within 

10 days of the judgment in accord with North Carolina General Statute §15A-1414 

(2019). In the MAR, Defendant raised essentially the same arguments as in he did 

on appeal as well as additional arguments not addressed on appeal regarding the 

issues noted in his arguments to the trial court as quoted above. Judge Gottlieb 

denied the MAR without an evidentiary hearing on 28 August 2019. The Order 

includes a decree that “[p]ursuant to N.C.G.S. § 15A-1419, Defendant’s failure to 

asset any other grounds in [the MAR] shall be subject to being treated in the future 

as a BAR to any other claims, assertions, petitions or motions that he might hereafter 

file in this case.” 

A. Standard of Review
STATE V. BLAKE

Opinion of the Court

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“When considering rulings on motions for appropriate relief, we review the 

trial court’s order to determine ‘whether the findings of fact are supported by 

evidence, whether the findings of fact support the conclusions of law, and whether 

the conclusions of law support the order entered by the trial court.’” State v. Frogge, 

359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712, 

720, 291 S.E.2d 585, 591 (1982)). “However, the trial court’s conclusions are fully 

reviewable on appeal.” State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 

(1998) (citing State v. Stevens, 305 N.C. at 720, 291 S.E.2d at 591).

Although we must vacate the Order denying Defendant’s MAR based upon our 

determination that he is entitled to a new trial, we will address briefly his argument 

regarding the Order because it is based not just on the substantive issues already 

addressed but also upon the decree purporting to bar defendant from filing future 

MARs. North Carolina General Statute § 15A-1414 provides “After the verdict but 

not more than 10 days after entry of judgment, the defendant by motion may seek 

appropriate relief for any error committed during or prior to the trial.” N.C. Gen. 

Stat. § 15A-1414(a) (2019). The statute further provides,

(b) Unless included in G.S. 15A-1415, all errors, including 

but not limited to the following, must be asserted within 10 

days after entry of judgment: 

. . . .

(2) The verdict is contrary to the weight of the 

evidence. 

(3) For any other cause the defendant did not 

receive a fair and impartial trial.
STATE V. BLAKE

Opinion of the Court

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N.C. Gen. S. § 15A-1414(b)(2)-(3) (2019). North Carolina General Statute § 15A-1415 

limits noncapital defendants to ten grounds on “which the defendant may assert by a 

motion for appropriate relief made more than 10 days after entry of judgment[.]” N.C.

Gen. Stat. § 15A-1415 (2019). North Carolina General Statute § 15A-1419 provides 

grounds for denying a MAR, including,

(a) The following are grounds for the denial of a 

motion for appropriate relief, including motions filed in 

capital cases:

(1) Upon a previous motion made pursuant to this Article, 

the defendant was in a position to adequately raise the 

ground or issue underlying the present motion but did not 

do so. This subdivision does not apply when the previous 

motion was made within 10 days after entry of judgment 

or the previous motion was made during the pendency of 

the direct appeal.

(2) The ground or issue underlying the motion was 

previously determined on the merits upon an appeal from 

the judgment or upon a previous motion or proceeding in 

the courts of this State or a federal court, unless since the 

time of such previous determination there has been a 

retroactively effective change in the law controlling such 

issue.

(3) Upon a previous appeal the defendant was in a position 

to adequately raise the ground or issue underlying the 

present motion but did not do so.

N.C. Gen. Stat. § 15A-1419(a)(1) (2019) (emphases added). In addition, denial is not 

proper if a defendant can show: “(1) Good cause for excusing the grounds for denial 

listed in subsection (a) of this section and can demonstrate actual prejudice resulting 

from the defendant’s claim; or (2) That failure to consider the defendant’s claim will 
STATE V. BLAKE

Opinion of the Court

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result in a fundamental miscarriage of justice.” N.C. Gen. Stat § 15A-1419(b)(1)-(2) 

(2019).

The State does not identify any legal basis for the trial court’s order barring 

Defendant from filing future MARs but argues, “Defendant’s challenge to the Order 

denying is Motion for Appropriate Relief is premature and not ripe for review because 

there have not been any post-conviction claims, assertions, petitions, or motions and 

the Order has no effect on this appeal.” However, the State cites to no authority in 

support of its position, and we conclude the trial court did not have authority under 

North Carolina General Statutes §§ 15A-1414-15,19 to direct that Defendant would 

be barred from filing “any other claims, assertions, petitions or motions that he might 

hereafter file in this case.” 

It is a correct statement of law that a defendant’s future MAR may be denied 

if he attempts to raise an issue in a MAR which has previously been determined if he 

was in the position to raise it in a prior motion or appeal. See N.C. Gen. Stat. § 15A1419(a). But North Carolina General Statutes. § 15A-1419(a) does not give a trial 

court authority to enter a gatekeeper order declaring in advance that a defendant 

may not, in the future, file an MAR; the determination regarding the merits of any 

future MAR must be decided based upon that motion. See N.C. Gen. Stat. § 15A1420(c) (2019). Gatekeeper orders are normally entered only where a defendant has 

previously asserted numerous frivolous claims. See generally Fatta v. M & M 
STATE V. BLAKE

Opinion of the Court

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Properties Mgmt., Inc., 224 N.C. App. 18, 31, 735 S.E.2d 836, 845 (2012) (“The 

gatekeeper provision limited plaintiff from filing or submitting to the Iredell County 

Superior Court any further motion, pleading, or other document unless the document 

was signed by a North Carolina licensed attorney.”). Defendant had filed only one 

MAR and this motion was filed within ten days after the trial. This is not a case 

where a defendant has filed many frivolous MARs asserting the same claims. Based 

upon our determination that Defendant must receive a new trial, the Order denying 

Defendant’s MAR is vacated. 

IV. Conclusion

Based on the particular circumstances of this case, there was structural error 

where multiple jurors indicated to the trial court before judgment was entered that 

“they weren’t sure that the defendant committed this crime.” The judgment and the 

Order denying Defendant’s MAR are vacated, and this matter is remanded for a new 

trial. 

NEW TRIAL.

Chief Judge McGEE and Judge ARROWOOD concur.