STATE OF NORTH CAROLINA
v. Buncombe County
No. 99 CRS 58365
RONALD ALLEN LEE, JR.,
Defendant-Appellant
Attorney General Roy Cooper, by Assistant Attorney General
Jason T. Campbell, for the State.
Public Defender J. Robert Hufstader, by Assistant Public
Defender John T. Barrett, for defendant-appellant.
BRYANT, Judge.
Defendant was charged with assault with a deadly weapon with
intent to kill inflicting serious injury on Allen Biggs and assault
with a deadly weapon on Curtis Morgan. Beginning on 13 June 2000,
the State and defendant presented evidence at trial as to
altercations which defendant had with Biggs and Morgan on 3 July
1999. At the close of all the evidence, the trial court instructed
the jury as to both offenses.
During the jury's deliberations, they sent a note to the trial
court in which they inquired, What do we need to do if we cannot
come to an agreement on one of two cases? After reading the notein the jury's presence, the trial court instructed them as follows:
Based on that, it appears to me that so far
you've been unable to agree upon the verdict
in one of the two cases. The Court wants to
emphasize the fact that it's your duty to do
whatever you can to reach a verdict in these
cases. You should reason the matters over
together as reasonable men and women and to
reconcile your differences, if you can,
without the surrender of conscientious
convictions, but no juror should surrender his
or her honest conviction as to the weight or
effect of the evidence solely because of the
opinion of his or her fellow jurors, or for
the mere purpose of returning a verdict.
The trial court then permitted the jurors to go to lunch, and
reminded them to suspend all deliberations while at lunch.
Out of the jury's presence, the following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, I would note an
objection to the first sentence the Court
read, It is your duty to do whatever you can
to reach a verdict, and I realize the Court
continued on and gave further instructions.
THE COURT: Well, that's straight from the
Pattern Jury Instruction, and I think you're
well aware of that.
[DEFENSE COUNSEL]: Yes, sir, I do. We do
object.
Upon further deliberation, the jury found defendant guilty of
the lesser included offense of assault with a deadly weapon
inflicting serious injury on Biggs. As for the charge of assault
with a deadly weapon on Morgan, the jury found defendant not
guilty. The trial court then sentenced defendant to a term of
forty-five to sixty-three months imprisonment. From the trial
court's judgment, defendant appeals.
Defendant contends the trial court's instruction to the juryregarding their duty to reach a verdict was coercive and
constitutes reversible error. While acknowledging two cases which
are contrary to his position, defendant argues that neither case
specifically addresses the challenged language of the trial court's
instruction. We are not persuaded by defendant's argument.
One of the cardinal rules governing appellate review of trial
court instructions is that the charge will be read contextually and
an excerpt will not be held prejudicial if a reading of the whole
charge leaves no reasonable grounds to believe that the jury was
misled. State v. Alston, 294 N.C. 577, 594, 243 S.E.2d 354, 365
(1978). Our Supreme Court has on a prior occasion, approved an
instruction with virtually identical language to that used by the
trial court in the case at bar. In State v. Forrest, 321 N.C. 186,
197-98, 362 S.E.2d 252, 259 (1987), the court's instruction was as
follows:
Members of the jury, your Foreperson has
indicated that you've been unable to reach a
verdict at this particular point. The Court
wants to emphasize the fact that it is your
duty to do whatever you can to reach a verdict
in this matter. You should reason the matter
over together as reasonable men and women and
to reconcile your differences if you can
without the surrendering of your conscientious
convictions. But no juror should surrender
his honest conviction as to the weight or
effect of the evidence solely because of the
opinion of a fellow juror, or for the mere
purpose of returning a verdict. The Court
will now let you return to the jury room to
continue your deliberations, and when you've
reached a unanimous verdict _ please see if
you can reach a unanimous verdict. If you can
please knock on the door.
(emphasis added). As in Forrest, we decline to examine the onesentence found objectionable by defendant and " find that, in the
context of the court's total instruction and, in particular, of its
admonishment to the jury that no juror should surrender any
conscientious convictions, this passage is not coercive and does
not constitute error in the court's instructions." Id. at 199, 362
S.E.2d at 260. The trial court here properly exercised its
discretion to hold the jurors to their duty to deliberate
thoroughly together before concluding that they were indeed unable
to agree. State v. Bussey, 321 N.C. 92, 97, 361 S.E.2d 564, 567
(1987). Accordingly, we find no error.
No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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