STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 99 CRS 036198
BRANDON NEIL THOMAS
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Maitri "Mike" Klinkosum, for defendant-appellant.
McGEE, Judge.
Brandon Neil Thomas (defendant) was indicted for second-degree
rape and second-degree sexual offense on 29 November 1999. The
evidence at trial tended to show the following.
The prosecuting witness testified that she met defendant on
29 April 1999 at Bi-Lo, where defendant worked as a stocker and she
worked as a cashier. The prosecuting witness testified defendant
came to her apartment on the afternoon of 30 April 1999 and helped
her set up bedroom furniture. Defendant and the prosecuting
witness kissed some, but defendant left when the prosecuting
witness told him she was not interested in a sexual relationship.
Defendant and Carlos Cordova, another Bi-Lo employee, later
returned to the prosecuting witness' apartment and brought somebeer. The three played a drinking game and the prosecuting witness
became drowsy and was carried into her bedroom by defendant.
The prosecuting witness testified that defendant came into her
bedroom and climbed on top of her. Defendant kissed her and
inserted his finger into her vagina. She tried to move away and
told him to stop. The prosecuting witness testified that she began
to feel weak and told defendant that she needed to go to the
bathroom. When she stood up, she fell over and defendant placed
her on the toilet and pulled her pants and underwear down.
Defendant turned on the water in the bathtub, removed his clothes,
removed the rest of the prosecuting witness' clothes, and placed
her in the bathtub.
The prosecuting witness testified that she fell to the floor
of the bathtub and defendant pinned her arms and legs with his body
and penetrated her vagina with his penis. The prosecuting witness
cried and screamed and told defendant to stop before she blacked
out. The prosecuting witness stated that defendant tried to pick
her up from the tub but dropped her and they both fell. Mr.
Cordova entered the bathroom, threw a towel on the prosecuting
witness, picked her up from the tub, and then threw her on the bed.
After becoming more alert, the prosecuting witness went back to the
bathroom and defendant and Mr. Cordova went to check on her several
times. After defendant and Mr. Cordova left, the prosecuting
witness called a friend who came to her house and called an
ambulance.
Mr. Cordova testified for the defendant and said that after heand defendant had returned from purchasing beer, the prosecuting
witness said she felt sick and went to the bedroom, with defendant
following her. Mr. Cordova stated that he sat on the couch
drinking and listening to the radio and began to hear "moaning
stuff." He turned down the radio and listened for a few minutes
and then turned the radio back up because he thought "everything
was all right." Mr. Cordova stated that after about twenty
minutes, he heard the shower come on. Defendant came out about
five minutes later and said he needed help. Mr. Cordova stated
that he never heard anyone say "no," "stop," or ask for help. He
believed defendant and the prosecuting witness were having sex on
the bed because he heard the bed squeaking.
Defendant testified that he and the prosecuting witness were
"all over each other" when they went into the bedroom. He did not
get the impression she did not want to be touched or kissed because
they had been doing it all day. Defendant stated that the
prosecuting witness helped him get her clothes off and then they
had sexual intercourse on the bed. He testified that the
prosecuting witness asked him to spend the night, but she became
drowsy, "real messed up," and angry after he refused. He stated
that he helped her to the shower to wake her up and then he and Mr.
Cordova helped her back to the bed. Defendant stated that the
prosecuting witness was "pretty mad" when he and Mr. Cordova left.
At the close of the evidence and before the jury instruction
conference, the trial court engaged in the following exchange with
the jury: COURT: Members of the Jury, can all of you
be back at 9:30 in the morning?
Anyone who can't?
JUROR: I have vacation planned.
COURT: Can you stay here tonight then as
long as it takes?
JUROR: Yeah.
COURT: You rather stay here tonight?
JUROR: I don't want to inconvenience anyone
else.
COURT: Is that agreeable with everybody
else?
(Jurors nodding heads).
Following closing arguments and motions, the trial court
instructed the jury on the charges and the jury began its
deliberations at 6:35 p.m. The jury sent a note to the trial court
requesting to see written testimony of a witness at 7:25 p.m. The
jury sent a second note requesting a legal definition of reasonable
doubt at 8:00 p.m. At 8:45 p.m., the jury sent the trial court a
note stating: "We are stuck on an 8 to 4 vote. We all stand firm
in our decision." The trial court suggested to counsel that the
jury be given the choice of continuing deliberations that evening
or returning the next morning, but both the prosecutor and defense
counsel stated that they preferred the trial court not give the
jury a choice. The trial court brought the jury back into the
courtroom and read Criminal Pattern Jury Instruction 101.4, known
as the Allen charge, stating:
Members of the Jury, I have received a note
from you that informs me that you have been _
you have so far been unable to agree upon averdict. The Court wants to emphasize the
fact that it's 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 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 his fellow jurors, or for the mere
purpose of returning a verdict.
I'm going _ I'll let you resume your
deliberations and see if you can reach a
verdict.
Defendant did not object to the trial court's instruction to
the jury. The jury continued deliberations at 9:08 p.m. The jury
sent another note to the trial court at 9:15 p.m. asking to see
several of the written exhibits. After continuing deliberations,
the jury reached a verdict at 10:00 p.m.
The jury convicted defendant of second-degree rape and
acquitted defendant of second-degree sexual offense. The trial
court sentenced defendant to a minimum of 105 months and a maximum
of 135 months in prison on 18 August 2000. Defendant appeals.
Defendant argues that the trial court erred in giving the
Allen charge after the jury indicated it could not reach a
decision. We first note that defendant failed to object to the
trial court giving an Allen instruction to the jury when the jury
indicated that it was deadlocked. "A party may not assign as error
any portion of the jury charge or omission therefrom unless he
objects thereto before the jury retires to consider its
verdict . . . ." N.C.R. App. P. 10(b)(2). Our review of
defendant's argument is therefore limited to whether the trialcourt committed plain error. State v. Bussey, 321 N.C. 92, 95, 361
S.E.2d 564, 566 (1987); State v. Williams, 315 N.C. 310, 328, 338
S.E.2d 75, 86 (1986).
Plain error is an error which was "so
fundamental as to amount to a miscarriage of
justice or which probably resulted in the jury
reaching a different verdict than it otherwise
would have reached." To prevail under a plain
error analysis, a defendant must establish not
only that the trial court committed error, but
that absent the error, the jury probably would
have reached a different result.
State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704
(citations omitted), disc. review denied, 352 N.C. 153, 544 S.E.2d
235 (2000). Our Supreme Court has stated that
"[t]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has '"resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial."'"
State v. Steen, 352 N.C. 227, 255, 536 S.E.2d 1, 18 (2000)
(emphasis omitted) (quoting State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983)), cert. denied, Steen v. North Carolina, 531
U.S. 1167, 148 L. Ed. 2d 997 (2001).
N.C. Gen. Stat. § 15A-1235 (2001) provides guidelines for jury
deliberations and instructing deadlocked juries. The statute
states:
(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 change
his 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.
N.C.G.S. § 15A-1235(b)-(d).
Our Supreme Court has held that N.C.G.S. § 15A-1235(c) is the
"proper reference for standards applicable to charges which may be
given a jury that is apparently unable to agree upon a verdict."
State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980).
The language of the statute is permissive and the decision whether
to give the instruction is within the trial court's discretion. Williams, 315 N.C. at 326-27, 338 S.E.2d at 85. However, when the
trial court concludes that the jury may be deadlocked and gives the
instructions in N.C.G.S. § 15A-1235(b), the trial court must give
the substance of all its subsections. Id.; see State v. Lyons, 343
N.C. 1, 21, 468 S.E.2d 204, 213-14, cert. denied, Lyons v. North
Carolina, 519 U.S. 894, 136 L. Ed. 2d 167 (1996).
Defendant contends the trial court erred in giving the Allen
charge because it failed to give all of the instructions under
N.C.G.S. § 15A-1235(b). However, our Supreme Court has stated that
the trial court is not required to read the express language of the
statute verbatim as long as it gives the substance of the four
instructions. State v. Fernandez, 346 N.C. 1, 23, 484 S.E.2d 350,
364 (1997). Additionally, a failure to instruct on all the
subsections of the statute does not automatically entitle defendant
to a new trial because "'every variance from the procedures set
forth in the statute does not require the granting of a new
trial.'" Williams, 315 N.C. at 327-28, 338 S.E.2d at 86 (quoting
State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985)).
A review of the entire record shows that the trial court did
not commit plain error in charging the jury under N.C.G.S. § 15A-
1235. While the trial court did not give all four subsections set
out in N.C.G.S. § 15A-1235(b) verbatim, the trial court's charge
gave the substance of the four subsections in the statute. In the
instruction, the trial court reminded the jury of its duty to
attempt to reach a verdict. It encouraged them to be reasonable in
their deliberations, but admonished them not to surrender theirhonest convictions due to the opinions of their fellow jurors or
for the purpose of reaching a verdict. This instruction
encompassed the substance of the statutory requirements and
safeguarded defendant's rights as the jury reached its verdict.
Defendant has failed to demonstrate that the jury would have
probably reached a different verdict had the trial court not given
the N.C.G.S. § 15A-1235 instruction or alternatively given the
instruction verbatim. Williams, 315 N.C. at 328, 338 S.E.2d at 86.
We hold that the trial court did not commit plain error in
instructing the jury under N.C.G.S. § 15A-1235 or in the form of
the instruction given. This assignment of error is overruled.
Defendant also contends that the statements of the trial
court, the circumstances of the jury's deliberations, and
instructions to the jury under N.C.G.S. § 15A-1235 demonstrate
coercion, requiring a new trial. We note that defendant did not
object to the trial court's inquiry of the jury regarding whether
they would rather deliberate into the night or return the next
morning. Accordingly, we review this assignment of error under a
plain error standard. Bussey, 321 N.C. at 95, 361 S.E.2d at 566.
This Court must consider the trial court's actions in light of the
totality of the circumstances when determining whether a jury's
verdict was coerced. State v. Patterson, 332 N.C. 409, 415-16, 420
S.E.2d 98, 101 (1992); State v. Beaver, 322 N.C. 462, 464, 368
S.E.2d 607, 608 (1988). Article I, Section 24 of the North
Carolina Constitution prohibits a trial court from forcing a jury
to return a verdict. See Patterson, 332 N.C. at 415, 420 S.E.2d at101. N.C.G.S. § 15A-1235(c) prohibits a trial court from requiring
or threatening to require a jury to deliberate for an unreasonable
length of time or unreasonable intervals.
[A] 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 (2002)
(quoting State v. Roberts, 270 N.C. 449, 451, 154 S.E.2d 536, 538
(1967)).
The trial transcript shows that the trial court asked a juror
if he was prepared "to stay here tonight as long as it takes" and
asked the entire jury if they were agreeable to deliberating into
the night. The trial transcript shows the jury began its
deliberations at 6:35 p.m. The jury sent two notes to the trial
court requesting written testimony and additional information
before informing the trial court that they could not move beyond an
eight to four vote. The jury's note did not indicate whether the
majority was in favor of acquittal or conviction. In response to
the deadlock, the trial court instructed the jury pursuant to
N.C.G.S. § 15A-1235 without objection from defendant or the State.
The trial transcript shows that the trial court offered to give
jurors the choice of continuing deliberations that evening or
resuming the following morning, but counsel requested the jurorsnot be given the choice. Following the N.C.G.S. § 15A-1235 charge,
the jury deliberated for fifty minutes and requested to see
additional written evidence before reaching a verdict.
Defendant cites State v. McEntire, 71 N.C. App. 720, 323
S.E.2d 439 (1984) and State v. Dexter, 151 N.C. App. 430, 566
S.E.2d 493 (2002) in support of his argument. In McEntire, the
trial court asked the jury foreman to give him the division of the
jury after five hours of deliberations. McEntire, 71 N.C. App. at
724, 323 S.E.2d at 442. The foreman stated the ranges of votes on
each charge and indicated that the jury would probably be unable to
reach a unanimous verdict. Id. The trial court instructed the
jury to continue deliberating without any further instructions and
did not remind jurors that they must decide the case for themselves
and not surrender their convictions for the purpose of returning a
verdict. Id. at 724-25, 323 S.E.2d at 442. The jury subsequently
returned verdicts twenty-four minutes into their resumed
deliberations. Id. In holding that the trial court's comments
improperly influenced the jury, we noted that the trial court
should have given the N.C.G.S. § 15A-1235(b) instruction since it
chose not to declare a mistrial. Id. at 725, 323 S.E.2d at 442.
We also noted that the jury returned inconsistent verdicts based on
the facts and took only an additional twenty-four minutes to reach
the verdicts after over five previous hours of deliberations. Id.
The facts in McEntire are distinguishable from the facts in
the present case. The jury in this case had only deliberated
approximately two hours before indicating they were deadlocked. The trial court gave an appropriate instruction pursuant to
N.C.G.S. § 15A-1235 in ordering the jury to continue deliberations
and the jury continued deliberations for fifty minutes. The jury
asked to see additional exhibits, which evidenced continued
consideration of the facts of the case, rather than a resumption of
deliberations for the sake of rendering a verdict. Additionally,
the verdicts were not mutually exclusive and the jury's decision to
convict defendant of second-degree rape and acquit on second-degree
sexual assault was within the province of the jury and not
inconsistent under the facts of this case.
In Dexter, the jury deliberated for three days and the trial
court ignored two notes regarding a juror's request to attend his
wife's surgery the following day and only instructed the jury to
continue deliberating. Dexter, 151 N.C. App. at 433-34, 566 S.E.2d
at 496. The jury also sent three notes to the trial court stating
that it was unable to reach a unanimous verdict and was not given
an N.C.G.S. § 15A-1235 instruction after the final note. Id. In
granting a new trial for defendant, we stated that "the jury could
reasonably have concluded that it was required to deliberate until
it did in fact reach a verdict." Id. at 434, 566 S.E.2d at 496.
Additionally, we stated that the juror may have felt pressure to
reach a verdict by the end of the day due to the trial court's
failure to address the individual juror's concerns in the presence
of the entire jury. Id.
The facts in Dexter are also distinguishable from the present
case. In the present case, the trial court addressed the juror'sconcern about his pending vacation in the presence of the entire
jury before deliberations began. The entire jury was given choices
of when to begin deliberations and voluntarily chose to deliberate
into the evening. Upon learning that the jury was deadlocked, the
trial court instructed the jury to continue deliberating in an
attempt to reach a verdict and gave an N.C.G.S. § 15A-1235 charge
without objection from either side. The trial court did not
express displeasure with the jury's initial inability to reach a
unanimous verdict and did nothing to indicate that the jury would
be forced to deliberate for an unreasonable time period to reach a
verdict. The jurors indicated only once that they were deadlocked
and the trial court gave the appropriate N.C.G.S. § 15A-1235
instruction as a response, safeguarding defendant by admonishing
the jurors not to surrender their individual convictions while
encouraging them to reach a verdict.
In considering the totality of the circumstances, we hold that
the jury's verdict was not coerced or the result of compromise. No
jury member could have reasonably construed from the circumstances
surrounding the deliberations that the trial court suggested that
jurors should surrender their convictions in favor of a compromise
verdict. The trial court never intimated that the jury was
required to reach a verdict or that it would be forced to
deliberate until it had reached a verdict. While defendant argues
the trial court's use of the words "as long as it takes" indicated
the jurors would be forced to stay into the night until a verdict
was reached, no reasonable juror, in light of the context, couldinterpret this as requiring them to reach a unanimous verdict
before they could go home. The trial court's inquiry simply
ascertained their willingness to stay into the evening to
deliberate.
Additionally, this exchange between the trial court and the
jury occurred prior to closing arguments, the charge conference,
and the instruction of the jury and was not made in conjunction
with the N.C.G.S. § 15A-1235 charge. The trial court did not order
the jury to reach a verdict, but simply instructed them to attempt
to reach a verdict. The trial transcript shows that several hours
elapsed between this original inquiry and the giving of the
N.C.G.S. § 15A-1235 charge; and the jury continued to deliberate
for an additional fifty minutes after the N.C.G.S. § 15A-1235
charge was given. Considering the time between the trial court's
inquiry and the N.C.G.S. § 15A-1235 charge, the totality of the
circumstances does not show that the trial court coerced the jury
into reaching a verdict.
In light of the total circumstances at trial, we hold that the
jury's verdict was not the result of coercion from the trial court.
Defendant has failed to demonstrate that the jury would have
probably reached a different verdict had the trial court not made
the initial inquiry of the jury, had it refrained from giving an
instruction under N.C.G.S. § 15A-1235, or had it not instructed the
jury to continue deliberating. We find no plain error. This
assignment of error is overruled.
Defendant finally argues that he was denied effectiveassistance of counsel in violation of the United States and North
Carolina Constitutions. "When a defendant attacks his conviction
on the basis that counsel was ineffective, he must show that his
counsel's conduct fell below an objective standard of
reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324
S.E.2d 241, 248 (1985).
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,
reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984).
Defendant argues that he was denied effective assistance of
counsel because his trial attorney failed to object to the N.C.G.S.
§ 15A-1235 charge to the jury and failed to move for a mistrial
after the jury said it was deadlocked. However, defendant has
failed to specifically demonstrate how defense counsel's
performance fell below a standard of reasonableness and deprived
him of a fair trial. As we previously stated, the N.C.G.S. § 15A-
1235 charge was properly given once the jury was deadlocked and it
operated to safeguard defendant's rights by admonishing jurors to
not surrender their conscientious convictions. Defendant's mere
speculation of alternative outcomes had defendant objected to the
N.C.G.S. § 15A-1235 charge and moved for a mistrial is insufficientto demonstrate that he was prejudiced by defense counsel's
performance. This assignment of error is without merit.
We have reviewed defendant's remaining arguments and find them
to be without merit.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***