An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 
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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 
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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
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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).