STATE OF NORTH CAROLINA
v. Durham County
No. 00 CRS 051891
JYMELL RASHAAD SCOTT
Attorney General Roy Cooper, by Assistant Attorney General
Barbara A. Shaw, for the State.
Hall & Hall, by Susan P. Hall, for defendant-appellant.
CAMPBELL, Judge.
Defendant was found guilty of possession of a firearm by a
felon and was sentenced to an active term of imprisonment of a
minimum of fifteen months and a maximum of eighteen months.
The evidence of the State tends to show that on the night of
14 February 2000, Officer John Tyler (“Officer Tyler”) of the
Durham Police Department conducted a traffic stop of a vehicle
defendant was operating. As he talked to defendant, Officer Tyler
smelled the odor of marijuana emanating from the interior of the
vehicle. Officer Tyler called for assistance from other officers.
While awaiting the arrival of backup assistance, Officer Tyler
instructed defendant to keep his hands visible and on the steering
wheel. However, defendant kept dropping his hands below the seat. Defendant slid across the seat of the vehicle and exited out of the
passenger side. Defendant grabbed a light-colored bag from under
the seat of the vehicle and ran.
As Officer Tyler chased defendant, he saw a bag on the ground
that was similar to the one he had seen defendant retrieve from
under the seat of the vehicle. He also saw defendant drop a dark-
colored small object at the corner of a church located at 102
Enterprise Street. Officer Tyler then lost sight of defendant as
defendant rounded the corner of the front of the church. Officer
Tyler apprehended defendant, who had stopped and raised his hands
in the air, between the church and a house located at 104
Enterprise Street.
After placing defendant in the custody of other officers,
Officer Tyler walked to the spot where he saw defendant drop a dark
object and found a fully loaded magazine containing eight .45
caliber rounds. Another officer, following the same path, saw a
.45 caliber handgun on the roof of the house at 104 Enterprise
Street. Officer Tyler climbed a ladder and retrieved the gun from
the roof.
One bullet, of the same color, make and grain as the bullets
found in the magazine, was found in the gun's chamber. Although
the roof was wet with rainfall, the gun only had some mist on it.
Similarly, the magazine was dry although the surrounding pavement
and ground was wet.
The parties stipulated that defendant was convicted of a
felony on 11 July 1997. Defendant brings forward four assignments of error. For the
following reasons, they are overruled.
First, he contends the court erred by denying his motion to
dismiss the charge. In ruling upon a motion to dismiss, the court
must determine whether the State has presented substantial evidence
of each element of the offense. State v. Small, 328 N.C. 175, 180,
400 S.E.2d 413, 415 (1991). A person is guilty of the offense of
possession of a firearm by a felon if he possesses any handgun
after he has been convicted of a felony. N.C. Gen. Stat. § 14-
415.1(a) (2001). Defendant argues the State failed to present
sufficient evidence that he possessed the .45 caliber pistol found
on the roof of the house.
Possession of an item may be actual, as when a party has
actual physical custody of the item, or constructive, as when a
party does not have actual physical custody but retains the power
and intent to control the disposition or use of the item. State v.
Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). When
the item is not in the person's actual custody at the time of its
seizure, “manifestations of actual possession must be inferred from
the circumstances.” State v. Thorpe, 326 N.C. 451, 454, 390 S.E.2d
311, 313 (1990). Similarly, because constructive possession
involves questions of intent, proof is ordinarily by circumstantial
evidence. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480
(1986).
Where there is no direct evidence as to the
essential fact involved in the issue to be
passed upon by the jury, such fact may
nevertheless be inferred by the jury fromfacts and circumstances which they may find
from the evidence. Where such inference may
be reasonably drawn by the jury, and is
altogether consistent with the facts and
circumstances which the jury may find from the
evidence, the evidence should be submitted to
them; where the inference cannot be thus
reasonably drawn, it should be withdrawn from
the jury.
State v. Weston, 197 N.C. 25, 28-29, 147 S.E.2d 618, 620 (1929).
Whether direct, circumstantial or both, the evidence must be
considered by the court as a whole in the light most favorable to
the State. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980).
When these principles are applied to the case at bar, the
evidence shows that before running from the vehicle, defendant
retrieved a bag from the seat. As he chased defendant, Officer
Tyler saw a similar bag on the ground. He also observed defendant
drop a small black object to the ground. Defendant disappeared
temporarily from Officer Tyler's view after defendant rounded the
corner of the church. When Officer Tyler next saw him, defendant
had stopped and turned to face Officer Tyler with his arms and
hands up. Officer Tyler found a black magazine in the area where
he saw defendant drop the dark object. The magazine was dry
although the surrounding pavement was wet. Likewise, the light-
colored bag and the gun found on top of the house neighboring the
church were less wet than their surroundings, thereby indicating
they had been recently deposited. The single bullet in the gun was
of the same caliber, make, color and type as the bullets found in
the magazine. A reasonable deduction may be reached from theforegoing facts and circumstances that defendant had the bag,
magazine and handgun in his possession and that he discarded each
item as he fled from Officer Tyler. The court therefore properly
submitted the issue to the jury.
Defendant next contends that the court erred by allowing
Officer Tyler to testify that the bullets in the magazine and gun
were .45 caliber bullets and that the bullet jackets were unusual
because they were solid gold instead of copper or silver in color.
He argues Officer Tyler was not qualified as an expert to give this
testimony.
Lay testimony may be given in the form of an opinion if the
testimony is rationally based upon the perception of the witness
and is helpful to an understanding of the matter. N.C. Gen. Stat.
§ 8C-1, Rule 701 (2001). For instance, the conclusion drawn by a
lay witness based upon a mere visual comparison may be the
appropriate subject of lay opinion testimony. State v. Mewborn,
131 N.C. App. 495, 499, 507 S.E.2d 906, 910 (1998). Here, whether
the bullets were the same caliber and color is a determination that
could be made by mere visual observation. In addition, Officer
Tyler could testify, based upon his training and experience as a
police officer, that gold bullets are unusual.
Defendant next contends that the court erred by admitting the
gun, magazine and bullets into evidence because a complete chain of
custody was not established. A detailed chain of custody is
required only when the item of evidence is not readily identifiable
or is susceptible to alteration. State v. Campbell, 311 N.C. 386,389, 317 S.E.2d 391, 392 (1984). If the item has fairly unique or
identifiable characteristics and is impervious to change, the court
has broad discretion to admit the evidence. State v. Hill, 139
N.C. App. 471, 480, 534 S.E.2d 606, 613 (2000). We find no abuse
of discretion. Officer Tyler identified the items as those he
seized. Nothing in the record indicates that the evidence was not
readily identifiable or that it was altered.
Finally, defendant contends the court committed plain error by
not declaring a mistrial and requiring the jury to deliberate
further after the foreman indicated that the jury was having
difficulty in reaching an unanimous verdict and that additional
deliberations might not be helpful.
The record shows that the jury began deliberations at 3:13
p.m. and at 5:08 p.m. returned to the courtroom to ask, inter alia,
for procedural guidance in the event the jury was unable to reach
an unanimous verdict as to a charge. The court instructed the jury
to attempt to reach an unanimous verdict and that if it could not,
then the jury was to report its inability to reach an unanimous
verdict to the court, at which time the court would deal with it.
The court then granted the jury an overnight recess. The jury
resumed deliberations at 10:17 a.m. the next morning and returned
to the courtroom at 12:07 p.m. with a verdict as to one charge.
The court inquired of the foreman whether the jury desired to break
for lunch at that time or to continue to deliberate. The foreman
replied, “I'm not certain if further deliberations would help us.”
Nonetheless, the court allowed the jury to recess for lunch and toresume deliberations after lunch. After the jurors returned from
lunch, the court instructed the jury in accordance with N.C. Gen.
Stat. § 15A-1235 to attempt to reach a verdict but not to surrender
an honest conviction for the purpose of reaching a verdict. The
jury resumed deliberations at 1:35 p.m. and returned with the final
verdict at 2:17 p.m. The jury found defendant guilty of possession
of a firearm by a convicted felon and not guilty of possession with
intent to sell or deliver cocaine.
In determining whether a trial judge has coerced a verdict by
requiring the jury to deliberate further, the appellate court must
examine the totality of the circumstances before the trial court at
the time it acted. State v. Patterson, 332 N.C. 409, 415-16, 420
S.E.2d 98, 101 (1992). Factors this Court may consider include
whether the trial court conveyed any irritation with the jury for
its failure to reach a verdict, whether the trial court indicated
it would hold the jury until it reached a verdict, or whether the
trial court made statements regarding the burdens or costs of
another trial if the jury could not reach a verdict. State v.
Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988). The
decision whether or not to declare a mistrial when a jury may be
deadlocked is within the discretion of the trial judge, whose
decision will not be disturbed unless it is so clearly erroneous as
to amount to a manifest abuse of discretion. State v. Nobles, 350
N.C. 483, 511, 515 S.E.2d 885, 902 (1999).
In State v. Baldwin, 141 N.C. App. 596, 608-09, 540 S.E.2d
815, 824 (2000), the jury had been deliberating approximately twoand one half hours when it returned to the courtroom and asked for
guidance because it was at an impasse. The court noted the jury
had not been deliberating very long and the court directed the jury
to resume deliberations. The jury deliberated two and one half
more hours, took a dinner recess, and deliberated approximately
ninety more minutes before returning to the courtroom with the
message that it could not come to an unanimous decision as to
either charge before it. The court allowed the jury to take a
fifteen-minute recess. After the jury returned from the recess,
the court instructed the jury in accordance with N.C. Gen. Stat. §
15A-1235. The jury resumed deliberations and returned to the
courtroom one hour later with the message that the jury had been at
an impasse, having stayed at a 10-2 vote for two hours on one
charge. After ascertaining that the jury had progressed from a 9-3
vote to an 11-1 vote on the other charge, the court caused the jury
to deliberate further. Approximately one hour later, the jury
returned with verdicts as to both charges. This Court held that
the totality of the circumstances did not reveal coercion by the
trial court and that the court did not abuse its discretion by not
declaring a mistrial.
In Patterson, 332 N.C. 409, 420 S.E.2d 98, the jury had
deliberated approximately one hour and fifteen minutes during an
afternoon and one and a half hours during the next morning when it
delivered a message to the court that it was deadlocked. The court
instructed the jury in accordance with N.C. Gen. Stat. § 15A-1235
and directed the jury to resume deliberations. Approximatelythirty minutes later the jury returned and stated it was unable to
reach an unanimous verdict. The trial judge expressed his
appreciation to the jury. Articulating the thought that some time
to themselves may help the jurors, the court declared a lunch
recess. After the lunch recess, the court charged the jury again
pursuant to N.C. Gen. Stat. § 15A-1235. Less than one hour later,
the jury returned with a verdict. In holding the trial court did
not coerce a verdict, our Supreme Court noted that the jury had
deliberated less than four hours, the trial court instructed the
jury in strict accordance with N.C. Gen. Stat. § 15A-1235, the
court reminded the jurors not to forsake their convictions, and the
court never impugned the jury or intimated that the jury might be
held until it reached a verdict.
The circumstances in the case at bar are very similar. The
jury had been deliberating less than two hours when it sought
guidance as to what would happen if it did not reach a verdict.
After the overnight recess, the jury had been deliberating less
than two additional hours when the foreman expressed his opinion
that further deliberations may not be fruitful. The court
instructed the jury in accordance with the statute, and reminded
the jurors not to forsake their convictions for the sake of
reaching a verdict. The jury returned its verdicts less than one
hour later, thereby validating the court's intuition that further
deliberations might produce unanimity. At no time did the court
express or intimate any irritation or impatience with the jury. Under these circumstances, the court did not coerce a verdict and
did not abuse its discretion by not declaring a mistrial.
In defendant's trial, we find no error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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