State v. Dexter

566 S.E.2d 493, 151 N.C. App. 430, 2002 N.C. App. LEXIS 750

• Court: Court of Appeals of North Carolina
• Decided: July 16, 2002
• Docket: COA01-564
• Status: Published

Opinions

GREENE, Judge.

Aaron Dexter, Ronald Edward Evans, and Bryon Keith Howard¹ (collectively, Defendants) appeal judgments dated 18 September 2000 entered consistent with jury verdicts finding them guilty of attempted robbery with a firearm, robbery with a firearm, first-degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious injury, and felonious larceny.

Defendants were indicted for offenses committed during the attempted robbery of a Home Depot store and jointly tried before a jury. At 4:15 p.m. on 11 September 2000, the jury began its deliberations. At 3:45 p.m. on 12 September 2000, the trial court received a note from the jury stating: “There are jurors who have consistent, unwavering reasonable doubt. The jury requests guidance at this point.” In response to this note, the trial court reinstructed the jury on the State’s burden of proof beyond a reasonable doubt. The jury resumed deliberations thereafter. At 11:20 a.m. on 13 September 2000, the jury again submitted a note to the trial court explaining that “[a]t this time [it did] not have a unanimous verdict.” The trial court brought the jury back into the courtroom and inquired as to the numerical division of the jurors’ votes. The foreperson responded that there was a 10:2 split. The trial court then excused the jury for morning recess. After the recess, the trial court gave the following Allen instruction, see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528 (1896), and advised the jury of its duties pursuant to N.C. Gen. Stat. § 15A-1235(b):

Members of the jury, I am going to allow you to resume your deliberations in an attempt to reach and return a verdict. I have already instructed you that your verdict must be unanimous; that is, that each of you must agree on the verdict. I am going to give you some additional instructions.

First, it is your duty to consult with one another and to deliberate with a view to [ward] reaching an agreement if it can be done without violence to individual judgment. Second, each of you must decide the case for yourself[,] but only after an impartial consideration of the evidence with your fellow jurors. Third, in the course of your deliberations, you should not hesitate to reexamine your own views and to change your opinion if you become convinced it is erroneous. On the other hand, you should not hesitate to hold to your own views and opinions if you remain convinced they are correct. Fourth, none of you should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

Now ladies and gentlemen, please be mindful that I am in no way trying to force or coerce you to return or reach a verdict. I recognize the fact that there are sometimes reasons why jurors cannot agree. Through these additional instructions that I have just given to you, I merely want to emphasize that it is your duty to do whatever you can to reason this matter over together as reasonable people and to reconcile your differences if that can be done and it is possible without the surrender of conscientious convictions and to reach a verdict.

The jury resumed its deliberations but was still unable to reach a unanimous verdict when, at 3:45 p.m., it submitted two more notes to the trial court. One note stated that there were “still . . . jurors with consistent and unwavering reasonable doubt” who felt “their minds [were] made up.” The other note constituted a request by Juror Gock to be excused from jury duty on 14 September 2000 to attend his wife’s surgery. Juror Gock anticipated being able to return to court before noon that day.

When the jury was brought back into the courtroom, the trial court questioned the foreperson regarding the jury’s progress. Upon being told that while the jurors had continued to have “thoughtful discussion^],” the jurors felt that “their minds [were] set,” the trial court asked the jury to retire in order to continue deliberations. At this time, the trial court did not repeat its previous Allen instruction on the duty of jurors to follow their individual consciences nor did it comment on Juror Gock’s request in the presence of the jury. Only after the jury had retired did the trial court state its intent to grant Juror Gock’s request if the jury had not reached a verdict by the end of the day. Thereafter, Defendants moved for a mistrial.

At approximately 4:45 p.m., the trial court instructed the bailiff to knock on the jury room door and bring the jury back. Upon his return, the bailiff was accompanied by only two jurors. The bailiff explained to the trial court that “[the jurors] indicated they wanted to stay in [the jury room], but [he] told them they had to come out.” The trial court asked if they wanted to stay in the jury room, and the two jurors said “yes.” At that point, the trial court responded: “Go back. You want to stay, they can stay.” The two jurors then returned to the jury room. Defendants renewed their motion for a mistrial, which the trial court denied. By 5:06 p.m., the jury had reached a unanimous verdict finding Defendants guilty of all charges.

The dispositive issue is whether the circumstances surrounding the jury deliberations in this case might reasonably be construed as coercive to the jury to reach a unanimous verdict.

Every person charged with a crime has an absolute right to a fair trial and an impartial jury. See State v. Jones, 292 N.C. 513, 521, 234 S.E.2d 555, 559 (1977). Article I, section 24 of the North Carolina Constitution prohibits a trial court from coercing a jury to return a verdict. State v. Patterson, 332 N.C. 409, 415, 420 S.E.2d 98, 101 (1992). According to N.C. Gen. Stat. § 15A-1235(c), the trial court “may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.” N.C.G.S. § 15A-1235(c) (2001). In determining whether a trial court’s actions are coercive, an appellate court must look to the totality of the circumstances. Patterson, 332 N.C. at 415-16, 420 S.E.2d at 101. Thus, the defendant is entitled to a new trial if the circumstances surrounding jury deliberations

might reasonably be construed by [a] member of the jury unwilling to find the defendant guilty as charged as coercive, suggesting to him that he should surrender his well-founded convictions conscientiously held or his own free will and judgment in deference to the views of the majority and concur in what is really a majority verdict rather than a unanimous verdict.

State v. Roberts, 270 N.C. 449, 451, 154 S.E.2d 536, 538 (1967).

In this case, the trial court, on the third day of deliberations and upon receipt of the jury’s two notes regarding its inability to reach a verdict and Juror Gock’s request to attend his wife’s surgery, simply asked the jury to continue deliberations. Having notified the trial court on three separate occasions that it was unable to reach a unanimous verdict and not having been given an Allen instruction after its final note to the trial court, the jury could reasonably have concluded that it was required to deliberate until it did in fact reach a verdict. Moreover, by not addressing Juror Gock’s concerns in the presence of the jury, Juror Gock, not knowing if he would receive permission to attend his wife’s surgery the next day, may have felt pressured to reach a verdict by the end of the day. Accordingly, the circumstances surrounding the jury deliberations were such that the jury might reasonably have construed them as coercive, requiring a new trial for Defendants. Furthermore, the trial court erred in addressing only two members of the jury when it told them to “[g]o back” and said “[y]ou want to stay, they can stay.” See State v. King, 342 N.C. 357, 365, 464 S.E.2d 288, 293 (1995) (after jury deliberations have begun, “all communications between the [trial] court and the jury [must] be conducted in open court with all members of the jury present”); see also N.C.G.S. § 15A-1234 (2001). In addition, depending on how these words were understood and relayed by the two jurors, the trial court’s statement could have further conveyed the impression to the jury that it was to stay in the jury room until it had reached a verdict. State v. Ashe, 314 N.C. 28, 36, 331 S.E.2d 652, 657 (1985) (“[t]he danger . . . is that [a juror], even the jury foreman, having alone . . . heard the [trial] court’s response firsthand, may through misunderstanding, inadvertent editorialization, or an intentional misrepresentation, inaccurately relay . . . the [trial] court’s response ... to the defendant’s detriment”). As these errors were prejudicial, Defendants are entitled to a new trial.

New trial.

Judge TIMMONS-GOODSON concurs. Judge HUNTER dissents.

1 . We note that the judgments and commitments and the arrest warrant relating to this defendant identify him as Bryon Keith Howard whereas the briefs to this Court refer to him as Byron Keith Howard.