State v. Jordan

227 S.E.2d 157, 30 N.C. App. 529, 1976 N.C. App. LEXIS 2299

• Court: Court of Appeals of North Carolina
• Decided: August 18, 1976
• Docket: No. 7621SC214
• Status: Published

Opinion

HEDRICK, Judge.

The following appears in the record and is the basis of defendant’s ninth assignment of error.

“Deputy Sheriff Rollinson: The foreman of the jury would like to speak to you.

The Court: You will have to bring all the other members of the jury in, if he wishes to speak to the court.

(The jury returned to the courtroom.)

Foreman Repetto: Your Honor, may I speak to you a second?

The Court: Just one moment. It will have*to be in open court and on the record. All right, do you have a question ?

Foreman Repetto: We have reached our verdict, so the question will not affect our verdict. But our question is, can we, the jury recommend any mercy? And at once— that is, two questions: Can we recommend mercy and then two, can we recommend any psychiatric treatment, or is that purely your decision?

The Court: Well, the matter of judgment is entirely a matter for the court, not for the jury. However, I will consider any recommendations that you may make, but I would prefer that we take the verdict before receiving those recommendations.”

Based on the foregoing, the defendant contends “the trial court committed prejudicial error in telling the jury that he would consider any recommendations that they made.” We find this assignment of error to be without merit.

The general rule in North Carolina is that it is error for the court to instruct the jury “either in the general charge or in response to an inquiry made by the jury, that they may return a verdict with recommendation of mercy, or with other words having reference, necessarily, to the judgment to be rendered by the court.” 3 Strong, N. C. Index 2d, Criminal Law, § 120, p. 32, citing State v. Rowell, 224 N.C. 768, 32 S.E. 2d 356 (1944).

The record discloses that before the verdict was taken the jury made it quite clear to the court that it had reached its verdict before it was permitted to ask the court if it could recommend mercy or psychiatric treatment. Furthermore, after the verdict was taken and the defendant’s counsel declined to have the jury polled, the foreman stated to the court that “we went to extremes to get the verdict first, before we discussed the question of mercy or psychiatric treatment.” While it would have been more appropriate for the judge to have explained to the jury before taking the verdict that the matter of judgment was not part of their responsibility and was entirely the province of the trial court, State v. Davis, 238 N.C. 252, 77 S.E. 2d 630 (1953), we do not perceive, under the circumstances of this record, any possible prejudice to the defendant in the court’s telling the jury, before he took the verdict, that he would consider any recommendation that it made, after the verdict was received.

The defendant has numerous other assignments of error which we have carefully examined and find to be without merit. The defendant had a fair trial free from prejudicial error.

No error.

Judges Britt and Martin concur.