State v. Blackwell

747 S.E.2d 137, 228 N.C. App. 439, 2013 WL 3990677, 2013 N.C. App. LEXIS 817
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2013
DocketNo. COA12-1472
StatusPublished
Cited by3 cases

This text of 747 S.E.2d 137 (State v. Blackwell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Blackwell, 747 S.E.2d 137, 228 N.C. App. 439, 2013 WL 3990677, 2013 N.C. App. LEXIS 817 (N.C. Ct. App. 2013).

Opinion

DAVIS, Judge.

Dennis O’Keith Blackwell (“defendant”) appeals from the trial court’s judgment entered on his convictions for two counts of possession with [440]*440intent to sell or deliver cocaine, two counts of selling cocaine, and his guilty plea to having attained habitual felon status. After careful review, we find no error.

Factual Background

The State presented evidence at trial tending to establish the following facts: On 22 July 2008, Detective Cathy Owens (“Detective Owens”), a detective with the Reidsville Police Department, was working undercover with a narcotics unit. She and a confidential informant drove to defendant’s residence in Roxboro, North Carolina. Detective Owens met defendant inside a bam beside his house and asked to purchase $20 worth of cocaine. When Detective Owens handed over the money, defendant gave her a small plastic baggie containing a substance that appeared to be powder cocaine. After two or three minutes inside the barn, Detective Owens and the informant left the property.

Later that same day, Detective Owens spoke with defendant on the telephone about buying more cocaine. Defendant told her that instead of meeting again at his house, they should meet at Runt’s Bar. Later that night, defendant sold Detective Owens $40 worth of cocaine in the parking lot of the bar.

Defendant was subsequently charged with two counts of possession with intent to sell or deliver cocaine, two counts of selling cocaine, and one count of having attained habitual felon status. At his first trial, defendant was found guilty of all the drug-related charges, and he pled guilty to being a habitual felon. On appeal, however, this Court granted defendant a new trial due to the State’s failure to provide defendant with proper notice of its intent to introduce the laboratory reports documenting the results of the tests performed on the substances “sold” by defendant to Detective Owens during the controlled purchases. See State v. Blackwell, 207 N.C. App. 255, 699 S.E.2d 474 (2010).

On remand, the prosecutor filed and served on 7 May 2012 notice of the State’s intent to use the laboratory reports. The following day, defendant’s newly appointed attorney filed a motion for a continuance, requesting additional time to prepare for trial. The trial court denied defendant’s motion, and the case proceeded to trial. The jury found defendant guilty of all the drug-related charges, and defendant subsequently pled guilty to having attained habitual felon status. The trial court sentenced defendant as a Class C felon to a presumptive-range term of 107 to 138 months imprisonment with credit for 603 days of prejudgment confinement. Defendant gave notice of appeal in open court.

[441]*441Analysis

I. Jury Instruction Pursuant to N.C. Gen. Stat. § 15A-1235

Defendant first contends that the trial judge coerced the jury into reaching a verdict in violation of his right to a unanimous jury verdict under Article I, Section 24 of the North Carolina Constitution. As an initial matter, we note that although defendant failed to raise this issue at trial, this argument is nonetheless preserved for appellate review. See State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009) (“While the failure to raise a constitutional issue at trial generally waives that issue for appeal, where the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel.”) (internal citation omitted).

The jury began its deliberations in this case at 2:48 p.m. on Tuesday, 22 May 2012. Approximately 30 minutes later, the trial judge brought the jury back into the courtroom in order to discuss a note received from the jury.1 Because the note apparently did not contain any specific request for guidance or assistance, the judge explained to the jurors that he wanted to make sure that they “understood the process” and that if they had any questions or specific requests, he “could work with [them] on th[e] matter----” The jury then returned to the jury room and continued its deliberations until 3:30 p.m., at which time it sent a note requesting to review certain evidence from the trial. The jury returned to the courtroom and, after being advised that some of the evidence could be viewed in the jury room and that other evidence was not available for review, the jury went back to the jury room at 3:43 p.m.

At 3:59 p.m., approximately 70 minutes after they had begun deliberations, the jury sent a third note to the judge, stating: “What can we do if we have a verdict of 11 saying guilty but 1 that says not guilty and will not change their mind? And does not want to convince the other 11 to vote otherwise . . . .” The trial judge brought the jury back into the courtroom and provided the following instruction:

THE COURT: Ladies and gentlemen, I received a note from you, and I’m going to read it. It does reflect that, and I’m not going to say which way that vote is going. So, I’m going to paraphrase that part. This is what you indicated to me. It says, “What can we do if we have a verdict of 11 [442]*442to 1, and the one will not change their mind and does not want to convince the other 11 to vote otherwise?” Um, sol understand that you do have a division among yourselves that is preventing you from reaching a unanimous verdict, and I know what we ask of you is very difficult, asking twelve people who have never met to reach a unanimous consensus on a matter such as this is a difficult task and is not common to the experience of most people.
I do want to remind you, though, that through the process of selecting you as jurors for this case, the lawyers and the court have carefully considered your qualifications to be on this jury, and while we recognize we have put great responsibility on you by selecting you to serve, we have also signified a great faith in you that you twelve citizens are well suited to hear this evidence, to listen to the arguments of counsel, to follow the law, and to render a verdict reflecting the truth.
Were this matter to be tried again, it’s unlikely that we would find another group of twelve citizens to serve as jurors who would be any more capable than yourselves to reason together in this matter in an effort to reach a unanimous verdict. I want to remind you that it is your duty to do whatever you can to reach a unanimous verdict. You should reason this matter over together as reasonable men and women in an effort to reconcile your differences, if you can, without the surrender of your conscientious convictions. No juror should surrender an honest conviction as to the weight or effect of the evidence solely upon the opinion of other fellow jurors or for the mere purposes of returning a verdict, but I will ask you to return to your deliberations and continue in your efforts to reach a verdict. I’ll let you know that we’re going to continue. Right now you’ve been deliberating for a little bit over an hour, about an hour and 15 minutes. That’s certainly not an unusually long time for a jury to deliberate.
I will continue until five o’clock today, and then if you’re unable to reach a unanimous verdict, we’ll resume tomorrow morning at 9:30. So, you have plenty of time to deliberate. Don’t feel that you need to rush yourselves in this process.

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Cite This Page — Counsel Stack

Bluebook (online)
747 S.E.2d 137, 228 N.C. App. 439, 2013 WL 3990677, 2013 N.C. App. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blackwell-ncctapp-2013.