An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-114

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

STATE OF NORTH CAROLINA

v .                         Randolph County
                            Nos. 97 CRS 16050,
ROBERT ANTWAIN STANBACK            98 CRS 8319

    Appeal by defendant from judgments entered 11 July 2001 by Judge Melzer Morgan, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 27 January 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State.

    Belser & Parke, P.A., by David G. Belser, for defendant- appellant.

    EAGLES, Chief Judge.

    Robert Antwain Stanback (“defendant”) appeals from the trial court's judgments entered on a jury verdict finding him guilty of first-degree murder and attempted robbery with a dangerous weapon. Defendant was sentenced to life imprisonment without parole. On appeal, he asserts two assignments of error: (1) that the trial court coerced a verdict from the jury and (2) that the trial court erred by admitting out of court statements by defendant's alleged co-conspirators into evidence. After review of the briefs and record, we find no error.
    The evidence tends to show the following. Ignacio Garcias and Angela Smith lived together in a trailer located near Liberty. Smith woke Garcias between 3:30 and 4:00 a.m. on the morning of 15 October 1997 to tell him that someone was breaking into the trailer. Garcias heard glass breaking in the window of his back door. He picked up a pistol and moved closer to the door. Smith followed him towards the door. Garcias fired his gun through the trailer door towards the outside of the trailer. As Garcias shot from the inside, one of the intruders shot into the trailer from the outside. Smith, who was several months pregnant, was fatally wounded by a shot from outside. Her baby died during the emergency surgery on Smith.
    Shortly after the shooting at the Garcias/Smith home, a man suffering from a gunshot wound arrived at High Point Hospital. As part of their standard procedure, hospital officials notified local police. The wounded man was later identified as Jeffrey Tinnin. While Tinnin was being treated, Officer Kaplan spoke with the two men who brought Tinnin to the hospital. These two men were Percy “Peanut” Patterson and defendant.
    Officer Kaplan took statements from all three men at the hospital regarding the source of Tinnin's gunshot wound. Tinnin stated that he, Patterson, and defendant were driving to visit defendant's cousin on East Kearns Avenue. Tinnin said that several people approached the three men as they got out of the car and shots were fired. According to Tinnin, he was shot by one of the unidentified shooters before he could get in the car and flee. Tinnin stated that he told Patterson and defendant that he had been shot and defendant drove him to the hospital. Patterson'sstatement regarding Tinnin's wound was essentially similar to Tinnin's statement.
    Defendant's statement differed significantly from Tinnin and Patterson's account. Defendant stated that a man approached the car where he, Tinnin, and Patterson were sitting and shot Tinnin while Tinnin was still seated in the car. Forensic evidence did not support either defendant or Tinnin's statement. Since Tinnin was shot in the front of his leg, it appeared as though he had been facing the shooter rather than fleeing from him. In addition, the absence of damage or blood inside the car indicated that the shooting had not taken place there.
    Defendant traveled to the jail, surrendered and made an additional statement to Lieutenant Barry Bunting at the Randolph County Jail on 24 October 1997. He stated that he had lied to the police in his earlier statement taken at the hospital. In the 24 October statement, defendant told Lieutenant Bunting that Tinnin came to defendant's home after Tinnin had been shot and asked defendant to drive him to the hospital. Defendant stated that he did not know what Tinnin and Patterson had been doing earlier in the evening.
    Defendant gave another statement on 20 March 1998 to Lieutenant Bunting at the Randolph County Jail. Defendant indicated that he wanted to correct his earlier statements. Defendant stated that he drove Tinnin and Patterson to Garcias's home. According to defendant, Tinnin and Patterson planned to break into Garcias's trailer and take marijuana and money. Tinninand Patterson both had firearms, but defendant stated that he did not have a gun. Defendant said that Tinnin kicked the back door of Garcias's trailer and Patterson began shooting. Tinnin was shot by someone inside the trailer and defendant drove him to the hospital.
    The trial court allowed the statements given by Tinnin and Patterson at the hospital to be admitted into evidence against defendant along with defendant's statements. The jury found defendant guilty of first-degree murder and attempted robbery but the jury could not agree on the conspiracy charge. The trial court ordered a dismissal on the conspiracy charge but entered judgment on the murder and attempted robbery verdicts. Defendant appeals.
    On appeal, defendant argues that the trial court erred by failing to grant defendant's motion for mistrial as to all charges when the jury reported that it was at a stalemate. According to defendant, the trial court's repeated instructions to the jury created a coercive environment and forced the jury to produce a guilty verdict. We disagree.
    The decision to deny a motion for mistrial is within the trial court's discretion. See State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982); State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815 (2000). Therefore, the trial court's ruling on a motion for mistrial “will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996) (citing State v. Ward, 338 N.C. 64,449 S.E.2d 709 (1994)), cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995).
    Defendant argues that when the jury reported to the trial court that it had reached a stalemate after several hours of deliberation, the trial court abused its discretion by refusing to grant defendant's motion for mistrial. It is well-settled law that “[w]hen the jurors declare their inability to agree, it must be left to the trial judge, in the exercise of his judicial discretion, to decide whether he will then declare a mistrial or require them to deliberate further.” State v. Battle, 279 N.C. 484, 486, 183 S.E.2d 641, 643 (1971) (citing State v. Trippe, 222 N.C. 600, 24 S.E.2d 340 (1943)). In order to guide the trial court in situations of jury disagreement and to prevent the coercion of jury verdicts, our General Assembly enacted G.S. § 15A-1235:
        (a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.                                  (b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:                      (1)     Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;                              (3) In the course of deliberations, a juror should not hesitate to reexamine his own views and changehis opinion if convinced it is erroneous; and                         (4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.                 
        (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 unreasonable intervals. (d) If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.

G.S. § 15A-1235 (2001). As the statute demonstrates, even if the jury is deadlocked, the declaration of a mistrial remains discretionary. See State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980). G.S. § 15A-1235 “does not mandate the declaration of a mistrial; it merely permits it.” Darden, 48 N.C. App. at 133, 268 S.E.2d at 228. Even when “no reasonable possibility of agreement” among jury members exists, the trial judge may declare a mistrial, but is not required to declare a mistrial. The permissive language of the statute emphasizes that the trial judge has the ultimate discretion to declare a mistrial except in the most extreme situations.
    Defendant argues that the judge's continued instruction of the jury despite his knowledge that the jury was deadlocked constituted an abuse of this discretion. Defendant contends that the multipleinstructions created a coercive environment encouraging the jury to return a verdict of guilty. We disagree.
    “In deciding whether the court's instructions forced a verdict or merely served as a catalyst for further deliberation, an appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury.” State v. Alston, 294 N.C. 577, 593, 243 S.E.2d 354, 364-65 (1978). Further, the jury 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.” Alston, 294 N.C. at 594, 243 S.E.2d at 365. Accordingly, it is necessary to review the precise circumstances occasioning the additional jury instructions.
    As the trial transcript indicates, the jury began deliberating at approximately 2:00 p.m. on 18 April 2001. The jury was excused at 5:00 p.m. on 18 April and reconvened at 9:30 a.m. on 19 April. The trial court was first informed that the jury did not have a unanimous verdict at 10:14 a.m. on 19 April 2001. At that time, the jury passed a note to the trial court that stated they were divided in their voting, 10 to 2. In response to this note, the trial court gave an additional instruction as follows, in pertinent part:
        [W]hat your foreman is telling me is that you have so far been unable to agree upon a verdict. I want to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women and to reconcile your differences, if you can, without the surrender of conscientiousconviction. 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. You may remember that I told you that you all have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. Each of you must decide these matters for yourselves but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations each of you should not hesitate to re-examine your own views and change your opinion if it is erroneous, but none of you should surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of the [sic] your fellow jurors or for the mere purpose of returning a verdict.

After this additional charge, the jury deliberated for approximately fifteen more minutes until it sent a note to the trial court stating “[w]e are at a stalemate on all charges.” The trial court allowed the jury to take a morning break while the court conferred with the defense attorney and the prosecutor. After the jury returned, the trial court instructed the jury as follows:
        The Court is not sure how familiar you all are with court proceedings. I once had a dear lady, a Sunday school teacher who told me that she agreed to a verdict because she thought the judge was going to keep them there till midnight. And I'm not going to keep you here till midnight. And I'm not sure whether I'm going to keep you here much past lunch time. But by my calculation, you were out fourteen minutes between the time that I gave you the last charge and the time that your foreperson reported that you were at a stalemate on all the charges.                          Now, again, I want to emphasize the fact that it is your duty to do whatever you can toreach a verdict, that you should reason the matter over together as reasonable men and women. You should attempt to reconcile your differences if you can without the surrender of conscientious convictions. Understand that 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 jury continued to deliberate from 10:56 a.m. until the lunch break at 12:29 p.m. on 19 April 2001. The jurors returned and began deliberating again at approximately 1:30 p.m. At 1:44 p.m., the court had the jurors returned to the courtroom and the following exchange took place between the trial court and the jury foreman:
        THE COURT: Mr. Brown, I would like to ask you, sir, if you believe that additional time this afternoon will enable the jury to make further progress toward one or more unanimous verdicts.                      MR. BROWN: Yes, I do, Your Honor.          THE COURT: All right. I don't know for sure what signal I sent to you about whether I would keep you here past 12:30 or whether you understood you were going to lunch or just what. Again, the Court does not want to coerce a verdict. I want the verdict to be a voluntary act of the jurors.              MR. BROWN: That's understood, Your Honor.

The jury deliberated further until approximately 2:16 p.m., when one of the jurors began to have chest pains. While the ill juror was receiving medical attention, the other jurors were excused for the weekend and asked to report on 23 April 2001 at 9:30 a.m. The trial court sent a letter to the juror who suffered from chestpains and informed him that court would reconvene on Monday, 23 April 2001 and that the juror's presence was necessary.
    On 23 April 2001 the jury reassembled at approximately 9:30 a.m. The trial court instructed the jury as follows, in part:
        Please understand that I have no opinion about what your verdict should be. The Court System recognizes that there are circumstances and cases in which a jury is not able to reach a verdict. I want to remind you that any verdict that you return must be unanimous . . . .

At 10:58 a.m., the jury returned a verdict of guilty for the offenses of first-degree murder and attempted robbery.
    After careful evaluation of precedent concerning jury deadlock and motions for mistrial, we conclude that there was no abuse of the trial court's discretion. In Wall, the trial court allowed the jury to deliberate for approximately six hours. State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982). After four hours of deliberation, the trial court asked about the numerical split of the jurors. The court repeated its inquiry several times as deliberations continued and found that the jury reported a different numerical division each time. At no time did the jury foreman indicate that a deadlock had occurred. Instead, the jury foreman told the trial court that further deliberation would be conducive to a verdict. The Supreme Court found no abuse of discretion.
    In Darden, the jury deliberated for two hours before being asked to reconvene the following morning. State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980). After a few minutes of deliberation the next morning, the jury requested more information. The judge informed the jury that despite its difficulty in finding a verdict, no further evidence would be presented. The trial court encouraged the jury to reach a verdict if possible, emphasizing that the court's time would be consumed by a mistrial and retrial of the defendant's case. This Court found that the further instruction regarding the necessity of a new retrial based upon a mistrial, standing alone, was not coercive.
    In Baldwin, this Court found no abuse of discretion in the trial court's refusal of a mistrial motion. State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815 (2000). In that case, the jury deliberated for approximately two and one-half hours before informing the trial court that the jury was at an impasse. The judge encouraged further deliberations, which continued after a dinner break until 8:40 p.m. The trial court was then informed a second time that the jury could not reach a unanimous verdict. The trial court asked for additional deliberation. At 9:55 p.m. the jurors again stated that they could not reach a unanimous verdict. Upon the request of the trial court, the jury foreman indicated that the numerical division of the jurors on each charge differed with each vote. The jury continued to deliberate until 11:04 p.m., when it returned unanimous guilty verdicts. This Court found no coercion by the trial court, stating:
        The fact that the jury was required to deliberate late on a Friday night was not dispositive on the issue of coercion. The trial court never expressed irritation at the jury for failing to reach a unanimous verdict, or intimated that the jury would be held for an unreasonable period of time to reach such a verdict. We find the circumstances here nomore indicative of coercion than those present in other cases wherein the trial court's denial of a motion for mistrial has been upheld. Based upon the totality of the circumstances, we conclude that the trial court's refusal to grant the defendant's motion for a mistrial was not erroneous.

Baldwin, 141 N.C. App. at 609, 540 S.E.2d at 824.
    Defendant relies upon the Dexter case to support his contention that the trial court here abused its discretion. State v. Dexter, 151 N.C. App. 430, 566 S.E.2d 493, aff'd per curiam, 356 N.C. 604, 572 S.E.2d 782 (2002). In Dexter, the trial court began jury deliberations at 4:15 p.m. on 11 September 2000. The following afternoon, 12 September 2000 at 3:45 p.m., the trial court was informed that several of the jurors had unwavering reasonable doubt. After further instructions on reasonable doubt, the jury continued to deliberate. On 13 September at 11:20 a.m., the jury told the court it did not have a unanimous vote. The trial court inquired about the numerical split between the jurors and was told that the jury was voting 10 to 2. After a recess, the trial court gave an instruction encouraging the jury to reach a verdict. At 3:45 p.m., the jurors reported that “their minds [were] made up” but there was no unanimous verdict. The foreperson told the court that the jury continued to discuss the case but several jurors felt “their minds [were] set.” The court did not repeat any instructions but ordered further deliberation. The court asked for the jury to return to the courtroom at 4:45 p.m. The bailiff informed the court that the jurors wanted to remain in the jury room. The jury returned a unanimous guiltyverdict at 5:06 p.m. on 13 September 2000. This Court found that the trial court abused its discretion in failing to grant defendant's motion for mistrial.
    The Dexter case is readily distinguishable. Defendant's charge of coercion here as a result of the repeated jury charges is not supported by the facts. Here, the jury foreman in the presence of the full jury stated that he felt further deliberations would be helpful after he reported the jury's stalemate. This statement shows that the foreman's original announcement of stalemate may have been premature. It stands in sharp relief to the Dexter jury's repeated assertions that several jurors had reasonable doubt and “their minds [were] set.”
    Here, the jury was not asked to continue extensive deliberations after initially being unable to reach a unanimous verdict. In Dexter, almost a full day of deliberation continued after the stalemate was reported. Here, only one and one-half hours passed between the supposed stalemate and the lunch break. Immediately after the lunch break, the jury foreman indicated that progress was being made. Unfortunately the illness of one of the jurors prevented more than one half-hour session of deliberation on that afternoon. The jury did not deliberate for an inordinate amount of time, but only for a total of approximately six hours. The trial court encouraged the jury to reach a unanimous verdict, but made it clear that the jurors should not feel pressured to produce a verdict just to get rid of the case. The trial court followed the letter and spirit of G.S. § 15A-1235. The court didnot threaten to keep the jury for an inordinate amount of time to force a verdict. In fact, the court's homily about his Sunday school teacher indicates the exact opposite. In sum, we find that the trial court did not abuse its discretion by giving a further jury instruction rather than granting defendant's motion for mistrial based upon the jury's initial inability to agree on a verdict after several hours of deliberation.
    Defendant further assigns error to the admission of his co- defendants' statements to the police. Defendant argues that the statements were made after the alleged conspiracy between the men had ended and therefore cannot be admitted under the conspiracy hearsay exception. As a result, defendant contends that the statements are hearsay and cannot be admitted into evidence against him without violating his right to confront the witnesses against him. We disagree.
    Defendant states that admission of the co-defendants' statements violates his right to confrontation as outlined in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968). A defendant's right to confrontation of the witnesses against him is protected by the Sixth Amendment of the Constitution of the United States. U.S. Const. amend. VI. The right to confrontation is violated if a statement implicating defendant in a crime made by a non-testifying co-defendant is admitted into evidence. See Bruton, 391 U.S. at 126, 20 L. Ed. 2d at 479.
    The Bruton right to cross-examine or confront witnesses who implicate the defendant in a crime has been analyzed by the NorthCarolina Supreme Court in great detail. Our Supreme Court has noted that:
        The holding of Bruton is based on the right of a litigant to confront the witnesses against him. Consequently, if testimony is admitted under the hearsay rule, or as an exception to it, there is no right of confrontation and Bruton does not prohibit the use of such testimony.

State v. Willis, 332 N.C. 151, 167, 420 S.E.2d 158, 165 (1992).
    Defendant contends that his co-defendants' statements were hearsay not within the exception delineated in G.S. § 8C-1, Rule 801(d)(E)(2001): “A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.” Defendant argues that the statements in question were made after the alleged conspiracy had ended. However, our Supreme Court has held that when defendants take action to conceal their involvement in a crime or series of crimes, those evasive actions are actions during the course and in furtherance of the conspiracy. See State v. Barnes, 345 N.C. 184, 216-17, 481 S.E.2d 44, 61-62, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997) and cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). Here, the statements made by Tinnin and Patterson were made in order to conceal their involvement in the shooting at the Garcias/Smith home. As a result, the statements of the co- defendants could have been admitted into evidence under the conspiracy exception to the hearsay rule.     Even if the statements made by Tinnin and Patterson at the hospital were not part of the alleged conspiracy, the statements were still admissible as non-hearsay statements. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” G.S. § 8C-1, Rule 801(c) (2001). A statement that is not offered to prove the truth of the matter asserted is not hearsay. Here, the prosecution did not offer the statements by Patterson and Tinnin to prove that Patterson and Tinnin's statements were true. Instead, the prosecution offered these statements to prove that the three co-defendants were not truthful about their whereabouts and their level of involvement in the crime charged.
    Since the co-defendants' statements were not hearsay statements or alternatively, fell within an exception to the hearsay rule, the admission of those statements in evidence did not violate defendant's confrontation rights. Accordingly, this assignment of error is overruled.
    In conclusion, we find that defendant received a fair trial free from prejudicial error.
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).
    

*** Converted from WordPerfect ***