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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. PAUL RASMUSSEN
Filed: 1 July 2003
1. Criminal Law--driving while impaired_right to communicate with counsel, family, and friends
A defendant charged with driving while impaired was not denied his statutory or constitutional rights
to communicate with counsel, family, and friends, because: (1) defendant was advised at least three times of
his right to an attorney but did not assert that right, and law enforcement officers were not required to assume
that defendant wanted to speak to his friend as an attorney simply based on the fact that she was an attorney
even though officers knew that fact; and (2) defendant's friend was provided with enough contact with
defendant to allow her to form an opinion as to his impairment or lack thereof, and even if defendant's friend
should have been allowed to witness the field sobriety tests, there was no prejudicial error since the trial
court on its own motion suppressed the introduction of the test results at trial. N.C.G.S. §§ 15A-501, 20-
16.2(a)(6); N.C. Const. art. I, § 23.
2. Criminal Law--driving while impaired--motion for mistrial--jury deliberations past 5:00
p.m._verdict not coerced
The trial court did not abuse its discretion in a driving while impaired case by denying defendant's
motion for a mistrial and did not commit plain error by failing to recess the trial proceedings until Monday
morning, because: (1) defendant waived appellate review of the assignment of error that the jury deliberated
past 5:00 p.m. when defendant failed to object; (2) the length of the deliberations did not have a coercive
effect upon the jury when the trial court left the decision of whether to continue deliberations to the jury
members; and (3) defendant's arguments concerning a particular juror's perceived distress that allegedly
coerced her into finding defendant guilty to speed up the deliberations was merely speculation.
3. Jury--numerical division regarding verdict--Allen instruction
The trial court did not commit plain error in a driving while impaired case by inquiring into the
numerical division of the jury regarding its verdict and in its Allen instruction based on N.C.G.S. § 15A-
1235, because: (1) the inquiry into the numerical division was not coercive and did not constitute an abuse of
discretion by the trial court; and (2) the trial court did not deviate from the statutory language of N.C.G.S. §
15A-1235 in giving the Allen charge.
4. Motor Vehicles--driving while impaired-_denial of motion to dismiss--written findings of fact
and conclusions of law not required
The trial court did not commit reversible or plain error by allegedly failing to make adequate findings
of fact and conclusions of law to support the order denying defendant's motion to dismiss the charge of
driving while impaired, because: (1) there is no unresolved material conflict in the evidence, and there is no
need to remand the case for written findings of fact and conclusions of law; and (2) defendant has waived any
claim that the trial court was required to make written findings of fact and conclusions of law by not making
a timely objection or requesting that the trial court reduce its findings and conclusions to writing.
Appeal by defendant from judgment entered 2 November 2001 by Judge
Orlando Hudson in Wake County Superior Court. Heard in the Court of
Appeals 27 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Isaac
T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for
George B. Currin for defendant appellant.
Defendant Paul Rasmussen was tried before a jury at the 29 October
2001 Term of Wake County Superior Court after being charged with driving
while impaired (DWI) and failing to drive at a speed that was reasonable
and prudent under the circumstances (a moving violation infraction). The
pertinent facts leading to this appeal are as follows: On 28 April 1999,
defendant attended a business dinner in Chapel Hill, North Carolina.
During the dinner, he consumed several glasses of wine. As he and his
business companions left the restaurant, it was raining heavily. Defendant
offered to follow Ms. Suzanne Markle (another attendee at the dinner) home
to ensure she arrived safely. After leaving Ms. Markle's home in Cary,
defendant traveled on Harrison Avenue to the Interstate 40 ramp toward
Raleigh. As he merged onto Interstate 40, defendant stated a large truck
passed him and splashed his windshield with water. Defendant testified
that he applied his brakes, but they locked up and the car spun to the
left. The right rear end of defendant's car struck the back of another
vehicle being driven by Mr. Sam Middleton. Defendant's car traveled across
the road and went headfirst into the guardrail and ditch. Defendant called
911 to report the accident and told the dispatcher he smelled gasoline.
Defendant also called Ms. Markle and asked her to come to the accident
scene. Defendant then turned off the ignition, got out of the car and took
an umbrella out of the trunk. He crossed Interstate 40 to check on Mr.
Middleton and told him that the police and fire department had been called.
Trooper Thomas Garner of the North Carolina State Highway Patrol
responded to the accident scene shortly after 11:00 p.m. and discovered a
two-car collision. Trooper Garner talked to both drivers, determined theywere uninjured, and asked them to sit in his patrol car so he could take
their statements and obtain their insurance information. While the men
were in the patrol car, Ms. Markle arrived and opened the vehicle's door to
speak to defendant. She sat on the edge of the door and attempted to help
defendant fill out his paperwork. Trooper Garner asked Ms. Markle if she
was involved in or saw the accident; when she indicated she was not
involved and did not witness the accident, he asked her to step away from
the car. She complied.
Trooper Garner testified that, while he spoke to defendant, he noticed
a strong odor of alcohol about him, saw that defendant's eyes were red and
glassy, and noted that defendant's speech was slurred. Trooper Garner
asked defendant if he had consumed any alcohol that evening, and defendant
stated he had a couple of glasses of wine at dinner earlier that evening.
Trooper Garner then administered an ALCO-SENSOR test to defendant. As a
result of the test, Trooper Garner placed defendant under arrest for DWI
and handcuffed him. Trooper Garner read defendant his Miranda rights, and
defendant indicated he understood them. At trial, Trooper Garner testified
he had formed the opinion that the defendant did consume a sufficient
amount of an impairing substance to cause an appreciable impairment of his
mental and physical faculties.
Thereafter, Trooper Garner drove defendant to the City County Bureau
of Investigation (CCBI) in Raleigh for processing. On the way, at
defendant's request, Trooper Garner called Ms. Markle on defendant's cell
phone and gave her directions to the CCBI. Sometime during the drive,
defendant told Trooper Garner that Ms. Markle was a corporate attorney.
Upon arriving at the CCBI, defendant was taken before Ms. Holly Murphy, the
chemical analyst. She read defendant his Intoxilyzer rights, then asked if
he understood them, to which defendant replied yes. Ms. Murphy also asked
defendant if he wanted to call a witness or attorney. Defendant stated hewanted to call Ms. Markle, who was a civil attorney. Ms. Murphy advised
defendant that he could call anyone he wanted to witness the test and
showed him where the telephone was located. After the observation period
ended, Ms. Markle was brought into the room and witnessed Ms. Murphy
administer the Intoxilyzer test to defendant. Defendant's alcohol
concentration was 0.10 at 12:52 a.m.
While she waited to witness defendant's Intoxilyzer test, Ms. Markle
had called an attorney who advised her to have defendant take an additional
test. After defendant completed the first Intoxilyzer test (which consisted
of two sequential readings), Ms. Markle told Ms. Murphy that defendant
wanted to take another test. Ms. Murphy stated that she was not
statutorily required to administer another test and refused to do so. She
also explained that defendant had the right to take another test, but it
would be on his own time and at his own expense. Ms. Markle was then
escorted out of the Intoxilyzer room and waited for defendant to be
released. Defendant was subsequently released by the magistrate at 1:30
a.m. and left the CCBI with Ms. Markle.
After a 3 March 2000 bench trial in district court, defendant was
found guilty of both charges. Defendant appealed and was granted a jury
trial de novo in superior court. On 12 March 2000, defendant filed a
motion to dismiss the DWI charge on the ground that he was denied his right
of access to friends and counsel under N.C. Gen. Stat. § 15A-501, U.S.
Const. Amend. VI, and Article I, §§ 19 and 23 of the North Carolina
Constitution. Defendant also filed a motion to suppress the results of the
Intoxilyzer test administered the night of his arrest on the ground that
the chemical analyst refused his request for a second test.
The trial court conducted a hearing at the 13 March 2001 Criminal
Session of Wake County Superior Court and denied both of defendant's
motions. However, on its own motion, the trial court did suppress theresults of defendant's field sobriety tests because his attorney was not
present during those tests. At the close of all the evidence, defendant
moved to dismiss the charges for insufficiency of the evidence. The trial
court granted the motion to dismiss the DWI charge in part by ruling that
the evidence was insufficient to submit the charge on the theory of
appreciable impairment. The DWI charge was thereafter submitted to the
jury solely on the theory that defendant had an alcohol concentration of
0.08 or higher. The jury determined defendant was not responsible for the
moving violation infraction but was unable to reach a unanimous verdict on
the DWI charge. The trial court declared a mistrial because the jury was
Defendant's second trial took place during the 29 October 2001
Criminal Session of Wake County Superior Court. After deliberating, the
jury found defendant guilty of the DWI charge and the trial court sentenced
him to a suspended sentence of sixty days, unsupervised probation for
twelve months, and required him to pay $292.00 in costs. Defendant
On appeal, defendant argues the trial court erred by (I) denying his
motion to dismiss based on constitutional grounds; (II) denying his motion
for a mistrial; (III) asking the jury about its numerical division on the
verdict; and (IV) failing to make findings of fact and conclusions of law
to support its order denying his motion to dismiss. For the reasons stated
herein, we disagree with defendant's arguments and conclude he received a
trial free from error.
Motion to Dismiss
 By his first assignment of error, defendant contends the trial
court erred in denying his motion to dismiss because he was denied his
constitutional right to obtain witnesses in his behalf and his statutory
right to communicate with counsel, family and friends. Specifically,defendant argues he should have been permitted to confer with Ms. Markle
prior to the administration of the Intoxilyzer test, and that Ms. Markle
should have been allowed to be present when he performed the field sobriety
tests for Trooper Garner, after the Intoxilyzer test had been administered.
Upon review, we disagree.
(1) Right of Access to Counsel Before Intoxilyzer Test
Defendant readily concedes that criminal defendants have no
right to confer with counsel before deciding to submit to a
breathalyzer test. Seders v. Powell, Comr. of Motor Vehicles
, 298 N.C.
453, 461-62, 259 S.E.2d 544, 550 (1979); State v. Howren
, 312 N.C. 454,
455-56, 323 S.E.2d 335, 336-37 (1984) (explaining that administration of a
breathalyzer test is not a critical stage of the prosecution entitling a
defendant to a constitutional right to an attorney). However, defendant
contends that he maintained the statutory
right to communicate with an
attorney before submitting to a breathalyzer test pursuant to N.C. Gen.
Stat. § 15A-501(5) (2001) and N.C. Gen. Stat. § 20-16.2 (2001). N.C. Gen.
Stat. § 15A-501 states:
Upon the arrest of a person, with or without a
warrant, but not necessarily in the order hereinafter
listed, a law-enforcement officer:
* * * *
(5) Must without unnecessary delay advise the
person arrested of his right to communicate
with counsel and friends and must allow him
reasonable time and reasonable opportunity
to do so.
N.C. Gen. Stat. § 20-16.2(a)(6) provides:
(6) The person has the right to call an attorney
and select a witness to view for him or her
the testing procedures, but the testing may
not be delayed for these purposes longer
than 30 minutes from the time when the
person is notified of his or her rights.
The only limitation on the statutory right to communicate with counsel,
argues defendant, is that a criminal defendant may not delay theadministration of the breathalyzer test for more than 30 minutes for the
purpose of obtaining and communicating with an attorney. Seders
, 298 N.C.
at 460, 259 S.E.2d at 549. Defendant contends the evidence shows that he
was denied his statutory right under N.C. Gen. Stat. § 15A-501(5) to
communicate with Ms. Markle prior to deciding whether to submit to the
The burden of proving prejudice from a statutory violation is on
defendant. N.C. Gen. Stat. § 15A-1443(a) (2001). The defendant is not
entitled to a new trial based on trial errors unless such errors were
material and prejudicial. State v. Alston
, 307 N.C. 321, 339, 298 S.E.2d
631, 644 (1983). Our standard of review is as follows:
While charges pending against an accused may be
dismissed for violations of his statutory rights,
dismissal is a drastic remedy which should be granted
sparingly. See State v. Curmon
, 295 N.C. 453, 245
S.E.2d 503 (1978). Before a motion to dismiss should be
granted, this court has held that it must appear that
the statutory violation caused irreparable prejudice to
the preparation of defendant's case. State v. Knoll
84 N.C. App. 228, 352 S.E.2d 463 (1987).
State v. Gilbert
, 85 N.C. App. 594, 596, 355 S.E.2d 261, 263 (1987).
The State argues, and we agree, that N.C. Gen. Stat. § 20-16.2
controls over N.C. Gen. Stat. § 15A-501(5) in this context. This is so
anyone who accepts the privilege of driving upon our
highways has already consented to the use of a
breathalyzer test and has no constitutional right to
consult a lawyer to void that consent. . . .
* * * *
In view of this prior consent, we see no reasons why
[the defendant] has any claim to consult counsel other
than that provided for in G.S. 20-16.2(a)[(6)].
Seders, 298 N.C. at 462-63, 259 S.E.2d at 550-51. The trial court found
that there was no statutory violation in this case. Ms. Markle testified
that she did not tell anyone that she was an attorney; she described
herself as defendant's witness. Ms. Markle did, in fact, witness theadministration of the Intoxilyzer test and had an opportunity to consult
with defendant before the test was administered, but defendant did not
request to see her prior to the administration of the test. Defendant's
only argument is that he was prevented from conferring with Ms. Markle
prior to administration of the test. During the hearing on defendant's
pretrial motions, the following inquiry took place:
THE COURT: Just wait just one second. Let me make
sure I have the information I need. I need a little
more information about how you described Ms. Markle to
trooper -- first to trooper Garner. I mean, do you
know when it was and by what words you used to let him
know that this was an attorney here on your behalf?
THE WITNESS: I don't recall if I said my friend
or attorney, lawyer; whether she was there to be of
support to me and to help me out. I don't recall if I
distinctly said friend, lawyer, attorney. I just don't.
THE COURT: All right. How about after you got to
the Public Safety Center and you're in the breathalyzer
room and breathalyzer operator's advising you of your
rights. Do you know when you made her aware that Ms.
Markle, who was outside, not only was there as a
friend, potential witness and support, but also she was
there as an attorney?
THE WITNESS: I don't recall if that ever came up,
that she was an attorney, I don't know if she declared
that she was an attorney or that I said it, I really
don't. If I may say, when you're in that breathalyzer
processing area, you don't get to talk much, you're
just standing there. It's, boom, they don't want to
hear from anybody.
THE COURT: I understand. I understand that,
they're going through protocol.
THE WITNESS: Yes, sir.
THE COURT: Okay. But you have stated you never
said, hey, guys, you know this right down here about
conferring with a lawyer, my lawyer's outside, her name
is Ms. Markle. I would like to talk to her. Did you
ever clearly say that to anybody in authority who would
have then had to make a decision about whether or not
they were going to let you confer with her?
THE WITNESS: I believe that Officer Garner was
THE COURT: I'm not talking about what you believe
Officer Garner was aware of, I'm asking you whetheryou, yourself, ever clearly said to either him or the
breathalyzer operator, I want to confer with a lawyer,
my lawyer is outside. I want to talk to her before I
take the test. I want to talk to her before I answer
any questions, anything like that. So that they were
on notice that you were exercising your right to
counsel, and that they had a legal obligation to make
her available to you immediately. Any words that would
suggest that to them?
THE WITNESS: Again, if I may say, Your Honor,
you're not given any chance to talk about anything.
They don't want to talk to you, they don't want to hear
you, anything else.
THE COURT: Sir, no matter what they want, whether
they advise you of your rights, if you exercise one of
those rights in a clear unequivocal way, by law they
THE WITNESS: Well --
THE COURT: They must. They must comply.
THE WITNESS: I believe they knew she was my
attorney. I wanted her there. They would not -- did
not have the opportunity to speak to her because she
was ushered out immediately after the test.
THE COURT: I understand that. And I don't quarrel
with the fact that you believe they knew that. I want
to know how you communicated that to them so that they
THE WITNESS: Well, when I volunteered for the
first tests, I said that I wanted Ms. Markle there, I
was told that she was not going to be there, I said
she's my attorney. Officer Garner knew that at that
instant, I was not allowed to have her there.
THE COURT: That was after you [had] taken the
breathalyzer test, after you had also requested another
test that had been done.
THE WITNESS: Yes, and I don't recall if I -- the
answer to that question, just because of what goes on.
THE COURT: I mean, I understand this was a --
this was a very unusual situation for you, and just
some time later, I'm asking you a lot of specific
questions, but that's what I need.
THE WITNESS: Yes, sir.
THE COURT: Just trying to get your best recall.
All right. Any other questions based on that?
Shortly thereafter, the following exchange took place: Q. [DEFENSE ATTORNEY MR. PETTY]: Do you specifically
recall requesting your attorney, Mr. Rasmussen?
MR. PETTY [DEFENSE ATTORNEY]: No further
questions, Your Honor.
THE COURT: Okay. Any other questions?
MR. MANGUM [PROSECUTOR]: No, not at this point.
THE COURT: Okay. Well, I mean, you recall that a
moment ago, do you now recall when it was that you
requested to confer with Ms. Markle as your attorney?
THE WITNESS: In the presence of Ms. Murphy. She
took the notes.
THE COURT: Do you know whether -- do you know
before -- whether it was before the test, after the
test when you requested the second test immediately
before the physical test, or do you recall?
THE WITNESS: The exact instance?
THE COURT: Just trying to get some idea during
this whole time frame when that happened.
THE WITNESS: Well, it was --
THE COURT: If you can remember. If you can't,
obviously, you can't.
THE WITNESS: It was obviously before the request
for second test was denied.
THE COURT: Okay.
THE WITNESS: That's obvious.
THE COURT: Okay. All right.
On cross-examination, Ms. Markle testified as follows:
Q. At any point did you -- do you recall Mr.
Rasmussen asking for the opportunity to speak with you
before he took those tests?
A. I did not hear him ask that, no, I don't recall
Q. At any time did you have particular -- a request
to have a chance to talk with Mr. Rasmussen?
Defendant did not identify Ms. Markle as his attorney and did notaffirmatively ask to speak to her before the Intoxilyzer test was
administered. To invoke the right to counsel, the suspect must
unambiguously request counsel. . . . Although a suspect need not 'speak
with the discrimination of an Oxford don,' he must articulate his desire to
have counsel present sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be a request for an
attorney. Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362,
371 (1994) (citations omitted). As defendant did not make an unambiguous
request to confer with Ms. Markle, the trial court correctly determined
there was no violation of defendant's statutory right of access to counsel
prior to administration of the Intoxilyzer test.
(2) Statutory Right to Communicate with Family and Friends and
Constitutional Right to Obtain Witness Testimony
Defendant also argues he was prevented from communicating with family
and friends and obtaining witnesses and exculpatory evidence after the
Intoxilyzer test, in violation of both N.C. Gen. Stat. § 15A-501(5) and
Article I, § 23 of the North Carolina Constitution. Defendant notes that,
in the case of a DWI charge, intoxication is an essential element and
time is of the essence in allowing him access to his friends and family, so
that they can make observations about his condition and possibly provide
him with exculpatory evidence for use in his defense. See State v. Hill,
277 N.C. 547, 178 S.E.2d 462 (1971); and State v. Knoll, 322 N.C. 535, 369
S.E.2d 558 (1988). Defendant contends he asked for Ms. Markle to be
present for the field sobriety tests and argues that, because he was
arrested and charged with DWI at the accident scene, his statutory and
constitutional right to communicate with family and friends attached at
that time, such that Ms. Markle was fully entitled to observe the field
sobriety tests. Again, we disagree.
Upon review, we note that defendant was not denied his right to
communicate with family and friends because Ms. Markle was in contact withhim from the time she arrived at the accident scene around 11:35 p.m. until
he was released around 1:30 a.m. She saw defendant at the dinner before
the accident, at the accident scene, in the Intoxilyzer room, and at the
time of his release. These instances provided Ms. Markle with enough
contact with defendant to allow her to form an opinion as to his impairment
or lack thereof. She also testified as to her observations at his trial,
and stated that he looked fine, had no odor of alcohol about his person,
and did not appear flushed, glassy-eyed, or light-headed.
We further note that, even if Ms. Markle should have been allowed to
witness the field sobriety tests, there is no prejudicial error because the
trial court, on its own motion, suppressed the introduction of the field
sobriety test results at trial. The trial court also dismissed the
appreciable impairment theory of DWI and submitted the issue to the jury
solely on the theory that defendant had an alcohol concentration of 0.08 or
higher. As defendant has demonstrated no prejudicial error, see Gilbert,
85 N.C. App. at 597, 355 S.E.2d at 263, he is not entitled to a new trial.
In sum, we believe the trial court properly determined that defendant
was not entitled to have the charges against him dismissed. Defendant did
not indicate that Ms. Markle was his attorney; instead, she was a witness.
Ms. Markle was permitted to witness the Intoxilyzer test and could have
spoken to defendant before the test was administered had defendant clearly
made such a request. Defendant was advised at least three times of his
right to an attorney, but did not assert that right. Furthermore, we do
not believe that the law enforcement officers were supposed to assume that
defendant wanted to speak to Ms. Markle as his attorney simply because she
was an attorney and they knew that fact. In the absence of a clear request
by defendant that he wished to speak to his attorney, we discern no error
by the trial court. Accordingly, defendant's first assignment of error isoverruled.
Motion for Mistrial
 Defendant next argues that the trial court abused its discretion
by denying his motion for a mistrial and committed plain error by failing
to recess the trial proceedings until Monday morning. According to
defendant, the totality of the circumstances showed that the jury verdict
was the result of coercion placed upon the jury by the trial court, which
resulted in a denial of his constitutional rights to a fair trial and due
process. Specifically, defendant points to (1) the length and lateness of
the jury's deliberations, and (2) the situation involving Juror No. 9.
Upon review of these arguments, we discern no errors by the trial court.
It is well established that where matters are left
to the discretion of the trial court, appellate review
is limited to a determination of whether there was a
clear abuse of discretion. A trial court may be
reversed for abuse of discretion only upon a showing
that its actions are manifestly unsupported by reason.
A ruling committed to a trial court's discretion is to
be accorded great deference and will be upset only upon
a showing that it was so arbitrary that it could not
have been the result of a reasoned decision.
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citations
omitted). In order to preserve a question for appellate review, a party
must have presented the trial court with a timely request, objection or
motion, stating the specific grounds for the ruling sought if the specific
grounds are not apparent. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d
809, 814 (1991). Here, defendant did not object to the jury deliberating
past 5:00 p.m., and has therefore waived appellate review of this
assignment of error.
Plain error review has only been applied to jury instructions and to
evidentiary matters. State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375,
378-79 (1983); State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07
(1983). To show prejudicial error warranting a new trial, defendant must
show that 'there is a reasonable possibility that, had the error inquestion not been committed, a different result would have been reached at
the trial. . . . The burden of showing such prejudice . . . is upon the
defendant.' State v. Ratliff, 341 N.C. 610, 617, 461 S.E.2d 325, 329
(1995) (quoting N.C. Gen. Stat. § 15A-1443(a) (1988)).
In the present case, defendant's motion for a mistrial was based on
the fact that the jury was allowed to deliberate past 5:00 p.m. and the
trial court did not recess the proceedings. N.C. Gen. Stat. § 15A-1235
(c) If it appears to the judge that the jury has
been unable to agree, the judge may require the jury to
continue its deliberations and may give or repeat the
instructions provided in subsections (a) and (b). The
judge may not require or threaten to require the jury
to deliberate for an unreasonable length of time or for
(d) If it appears that there is no reasonable
possibility of agreement, the judge may declare a
mistrial and discharge the jury.
[T]he action of the judge in declaring or failing to declare a mistrial
[under N.C. Gen. Stat. § 15A-1235] is reviewable only in case of gross
abuse of discretion. State v. Darden, 48 N.C. App. 128, 133, 268 S.E.2d
225, 228 (1980). Our review must take into account the totality of the
circumstances. State v. Patterson, 103 N.C. App. 195, 201, 405 S.E.2d 200,
204, aff'd, 332 N.C. 409, 420 S.E.2d 98 (1992).
At 3:09 p.m. on a Friday afternoon, the jury began deliberating the
single issue of whether defendant was guilty of DWI. Over the course of
the afternoon, the jury sent questions to the trial court, which were duly
answered. Around 5:00 p.m., after answering a question posed by the jury,
the trial court asked if a preliminary vote had been taken, but did not ask
how the votes were actually being cast. After the jury foreman indicated
a vote had been taken, the trial court tried to determine whether the
jurors wanted to leave or stay:
THE COURT: We talked a little bit about this on
yesterday. We just want to get a feel about what y'allthinking, Mr. Foreman. Why don't we do it this way.
Why don't you talk to the jurors and see what it is
they want to do. Five o'clock is normally the time
that we would close court, but you know, we want to get
the case done if we can do it today. And I'm not
asking you to do it today, but I am asking you how long
you want to be here today. Kind of the same question.
A JUROR: What time does the parking lot close
across the street?
THE COURT: I think the parking lot will be open,
the parking lot will be open. I believe that they will
THE FOREPERSON: I think I saw a sign that the
gate closed at six forty-five.
THE COURT: I think you can get out. I'm not
aware that they won't let you out.
THE FOREPERSON: Well, I think we're kind of
undecided on that. Also I think there's a couple of
folks that are ready to go and a lot of folks that
don't want to come back Monday. So is that a fair
THE COURT: Well, y'all need to work it out. Y'all
need to tell us what you want to do.
THE FOREPERSON: Why don't we try a few more
THE COURT: Why don't we do this, if that's what
you want to do you want to try a few, just go back
there for a couple minutes, tell us that you want to
try for a few minutes okay.
In response to some inquiries, the trial court told the jurors that if they
decided to continue deliberating, they would be given access to phones to
notify their families that they were staying late. The jury resumed
deliberations at 5:00 p.m. and returned to the courtroom at 5:05 p.m. At
that time, the foreperson stated:
THE FOREPERSON: We have agreed that we all would
like to finish this today if possible. We would like
another half hour or two to discuss this to see if we
could come to a conclusion.
The trial court called the jury back into the courtroom at 5:55 p.m. and
THE COURT: All right. Mr. Foreman, has the juryreached a unanimous verdict on the issue?
THE FOREPERSON: No, we have not.
THE COURT: Mr. Foreman, do you recall your last
THE FOREPERSON: Yes, I do.
THE COURT: I just want you to give me the
numbers, not the way it's going for instance.
THE FOREPERSON: Ten two.
THE COURT: All right. Mr. Foreman, do you
believe that with further deliberations the jury would
reach a unanimous verdict?
THE FOREPERSON: I am not sure; is that fair? I'm
THE COURT: I'm going to read you some language
and ask the jury to consider it and then we'll make a
decision about what we're going to do.
The trial court then read the Allen charge contained in N.C. Gen. Stat. §
15A-1235 and the jury resumed deliberations at 5:57 p.m. Some time later,
the trial court again brought the jury into the courtroom to gauge their
progress, and the foreperson indicated they were very close to reaching
a verdict and could reach a verdict with further deliberations. At 6:25
p.m., the jury returned a guilty verdict.
We note that the jury deliberated only one and one-half hours after
5:00 p.m. The aforementioned colloquies indicate that the trial court
properly left the decision of whether or not to continue deliberations to
the jury members. See State v. Bussey, 321 N.C. 92, 97, 361 S.E.2d 564,
567 (1987). We therefore conclude the length of the deliberations did not
have a coercive effect upon the jury.
Defendant also argues that the trial court's failure to declare a
mistrial was error because Juror No. 9 had emotional and unresolved
concern over the well-being of her daughter, who was waiting outside in the
dark with no knowledge of the whereabouts of her mother. Again, we
disagree. After the jury foreman told the trial court the jury was very close
to a verdict (shortly after 6:00 p.m.), and after the jury resumed
deliberations, the trial court asked the deputy to relate what Juror No. 9
had said to him:
THE COURT: All right Mr. Deputy, what did juror
number nine say?
* * * *
THE DEPUTY: Apparently her daughter is waiting
outside. Wants her to be contacted to let her know
she's still here in deliberation.
THE COURT: Did she tell you where she was?
THE DEPUTY: Yeah, in front of the sheriff's
THE COURT: Can you let somebody know that?
THE DEPUTY: I think I'm the only one here. I
know I am. If I can go down there, I'm the only one
THE COURT: Right. She tell you what her name is?
THE DEPUTY: Yeah, she told me what she was
THE COURT: Okay, why don't you go ahead.
Defendant moved for a mistrial due to Juror No. 9's perceived
distress, which he believed coerced her into finding him guilty to speed
up the deliberations. The trial court considered defendant's argument and
denied the motion. Upon review, we believe Juror No. 9 simply asked the
deputy to relay a message to her daughter that she was still involved in
deliberations with the jury. If she was concerned for her daughter's
safety, the deputy was an armed officer who could help keep her daughter
safe. Moreover, the record does not reveal which way Juror No. 9 voted,
and defendant's arguments are therefore merely speculative. After
carefully reviewing the transcript and considering the circumstances, we
believe defendant's arguments are meritless, and this assignment of error
Trial Court's Inquiry of Jury's Numerical Division
 In a related assignment of error, defendant contends the trial
court committed plain error by inquiring into the numerical division of the
jury regarding its verdict and in its subsequent Allen instruction based on
N.C. Gen. Stat. § 15A-1235. Specifically, defendant contends these actions
were coercive under the totality of the circumstances and violated his
state and federal constitutional rights to a trial by jury and due process
of law by causing the jury to enter a unanimous guilty verdict. Upon
review, we disagree.
[T]he 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. Dexter, 151 N.C. App. 430, 433, 566 S.E.2d 493, 496, aff'd, 356
N.C. 604, 572 S.E.2d 782 (2002) (quoting State v. Roberts, 270 N.C. 449,
451, 154 S.E.2d 536, 538 (1967)).
It is true that our constitution has been interpreted
to require a jury of twelve and a unanimous verdict.
This Court has also recognized the importance of
protecting jury deliberations from influences which
deprive jurors of their freedom of thought and action.
We do not consider questions concerning the division of
the jury to be a per se violation of Art. I, § 24 [of
the North Carolina Constitution] when the trial court
makes it clear that it does not desire to know whether
the majority is for conviction or acquittal. Such
inquiries are not inherently coercive, and without more
do not violate the right to trial by jury guaranteed by
the North Carolina Constitution. The appropriate
standard is whether in the totality of the
circumstances the inquiry is coercive.
State v. Fowler, 312 N.C. 304, 308-09, 322 S.E.2d 389, 392 (1984)
(citations omitted). The making of such inquiry lies within the sound
discretion of the trial judge. State v. Mann, 317 N.C. 164, 176, 345S.E.2d 365, 372 (1986).
Defendant concedes that the trial court's instructions and inquiry
into the numerical division of the jury may have been insufficient to
coerce a unanimous verdict in this case. Defendant therefore seeks to
bolster the perceived coerciveness by pointing to several coercive
circumstances he believes existed at the time: (1) the trial court's
statement to the jury that it wanted to get the case done if we can do it
today; (2) the fact that the jury was asked to deliberate after normal
hours on a Friday evening; (3) the fact that the trial court indicated its
preference that the case be concluded on Friday when it gave the Allen
charge; (4) the possible problems regarding closure of the parking lot; and
(5) the situation involving Juror No. 9. Defendant contends these
circumstances pitted the jury against the clock and created a coercive
environment which prejudiced him and entitled him to a new trial.
After consideration of the transcript, we believe the circumstances
were not coercive. As previously noted, the inquiry into the jury's
numerical division was not coercive and did not constitute an abuse of
discretion by the trial court. Additionally, the trial court did not
deviate from the statutory language of N.C. Gen. Stat. § 15A-1235 in giving
the Allen charge. The purpose behind the enactment of N.C.G.S. § 15A-1235
was to avoid coerced verdicts from jurors having a difficult time reaching
a unanimous decision. State v. Evans, 346 N.C. 221, 227, 485 S.E.2d 271,
274 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998). The
trial court accomplished that goal through its instruction. As we discern
no error in the trial court's actions, this assignment of error is
Trial Court's Order
 In his final assignment of error, defendant contends the trial
court committed reversible and plain error by failing to make adequatefindings of fact and conclusions of law to support the order denying his
motion to dismiss. We do not agree.
When a defendant alleges he has been denied his right to communicate
with counsel, family, and friends, the trial court must conduct a hearing
on defendant's motion to dismiss and make findings and conclusions. State
, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351 (2001). Generally,
when a trial court fails to make required findings of fact, the case must
be remanded to the trial court for entry of findings. However, when the
evidence in the record as to a finding is not controverted, remand is not
required. Pitts v. American Sec. Ins. Co.
, 144 N.C. App. 1, 18, 550
S.E.2d 179, 192 (2001), aff'd
, 356 N.C. 292, 569 S.E.2d 647 (2002)
(citation omitted). Stated another way, [i]f there is not a material
conflict in the evidence, it is not reversible error to fail to make such
findings because [the appellate court] can determine the propriety of the
ruling on the undisputed facts which the evidence shows. State v. Lovin
339 N.C. 695, 706, 454 S.E.2d 229, 235 (1995). There is no statutory
authority which requires the trial court to make written findings of fact
and conclusions of law in this instance. The transcript reveals the
following relevant statement by the trial court, after it heard the
testimony on defendant's motion to dismiss:
The standard the Court needs to find the facts in
support of the ruling, the court finds the facts to be
true as testified to by all witnesses who testified on
behalf of the State, and also the testimony of Suzanne
Markle, Court finds also to be true for purposes of
making this decision. I do not find based on the
Defendant's blood alcohol reading, on his recall,
limited recall of the event, I do not find his
testimony to be entirely credible to the extent that I
can rely upon it in making this decision, to the extent
there's some conflict with the testimony of the other
witnesses, then I accept their testimony as more
accurate and more truthful than his.
In short, the trial court stated it considered the evidence and found the
testimony of other witnesses more credible than defendant's. Afterreviewing this case, we hold there is no unresolved material conflict in
the evidence, and we see no need to remand the case for written findings of
fact and conclusions of law. See State v. Major
, 84 N.C. App. 421, 352
S.E.2d 862 (1987).
We also agree with the State that defendant has waived any claim that
the trial court was required to make written findings of fact and
conclusions of law by not making a timely objection or requesting that the
trial court reduce its findings and conclusions to writing. See
App. P. 10(b)(2) (2002). Accordingly, defendant's final assignment of
error is overruled.
Upon careful review of the record, transcript, and the arguments
presented by the parties, we conclude defendant received a fair trial, free
Judges McGEE and LEVINSON concur.
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