STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 99 CRS 25062-63
BOBBY FRANKLIN GEORGE
Roy Cooper, Attorney General, by Sharon Patrick-Wilson,
Assistant Attorney General, for the State.
Lynne Rupp for defendant-appellant.
STEELMAN, Judge.
Defendant, Bobby Franklin George, appeals convictions of
assault with a deadly weapon with intent to kill inflicting serious
injury and attempted murder. For the reasons discussed herein, we
find no error.
The State's evidence tended to show the following: On the
morning of 8 November 1999, Rashawn Simon walked to the corner of
Tenth and Castle Streets in Wilmington to get his hair braided.
While waiting for his appointment, Simon took a walk down Castle
Street and saw defendant sitting on his porch at Seventh and
Castle. He saw defendant again on his way back to the hair
braider's house. Simon stopped to buy cigarettes at a store on the
corner of Ninth and Castle and noticed a black jeep with a Marylandlicense plate at the stoplight. When the light changed, the jeep
came toward Simon. Simon heard gunshots and saw the brick of the
store facade “starting to chalk up and smoke around” him. He
looked back to the street and saw the jeep stopped next to him.
Defendant was in the front passenger's seat firing a gun at him
through the open window. Simon tried to run but was shot five or
six times in the legs and arm as he reached the corner of Tenth and
Castle Streets.
New Hanover County Deputy Sheriff Greg Johnson responded to
the site of the shooting just before the EMS arrived. As Simon was
being loaded into the ambulance, he told Johnson that he had been
shot by defendant and Aaron Spicer. Deputy Sheriff Norman Gattison
arrived at the scene just after Deputy Johnson. Simon told Deputy
Gattison that defendant had shot him. Although Simon initially
implicated Spicer to police as the driver of the Jeep, he testified
that he had not seen the driver but had merely assumed it was
Spicer.
Wilmington Police Officer Alison Heflin was dispatched to an
alley in the area of 15th and Nun Streets on 9 November 1999. She
found an abandoned black Jeep Cherokee with a missing front bumper
which matched the description of the vehicle involved in the
shooting. Fourteen nine-millimeter shell casings were inside the
vehicle, most of which were lying on the vehicle's front
passenger's side floorboard.
Although also charged with the shooting, Spicer testified for
the prosecution, corroborating Simon's account of the shooting andadmitting to two previous incidents in December of 1998 when he and
defendant had fired guns at Simon. Spicer claimed that he went to
defendant's house on 8 November 1999, after defendant paged him
nine or ten times. Spicer drove defendant to his black Jeep which
was parked in an alley on Fifteenth Street. Defendant had
purchased the Jeep, which was missing its front bumper, a few
months earlier for $75 and some marijuana. When they arrived in
the alley, defendant drew a nine-millimeter Ruger from his
waistband. Spicer refused to go with defendant to look for Simon
but agreed to wait for him on Sixteenth Street. Defendant drove
away in the Jeep. Three or four minutes later, he “came flying up”
into the alley, parked the Jeep, and jumped into Spicer's car.
Still holding his gun, defendant told Spicer that Simon was dead
and that he had left Simon lying on the corner of Tenth and Castle.
As they drove out of Wilmington, defendant disassembled his gun and
threw it over a bridge. Spicer and defendant hid in a hotel for
three or four days before driving to Raleigh. Spicer later
returned to Wilmington and surrendered to police.
On cross-examination, Spicer admitted that he expected to
receive probation in exchange for his testimony.
Defendant offered no evidence to rebut the State's proffer.
He was found guilty of assault with a deadly weapon with intent to
kill inflicting serious injury and attempted first-degree murder.
He was sentenced to concurrent terms of 75 to 99 months and 180 to
225 months in prison. Defendant appeals.
In his first assignment of error, defendant argues that thetrial court erred by failing to exercise its discretion when the
jury asked to review a portion of Simon's trial testimony. We
disagree.
During its deliberations, the jury sent a note to the court
which read, “May we see Mr. Simon's testimony? May we be specific
re: what part we want to see?” The judge called the jury into the
courtroom and engaged the foreperson in the following exchange:
THE COURT: It's being recorded. [The court
reporter ]'s taking it down, but possibly if
you tell us what you're looking for and about
when you were talking about, we may be able to
read it back to you.
[FOREPERSON]: We wanted information in
reference . . . his recollection of the day of
the shooting, specifically of the events
around Castle Street.
THE COURT: Madame Court Reporter, do you
think you may be able to locate that?
. . .
[FOREPERSON]: We would like Simon's testimony
regarding the vehicle, his recollection of the
vehicle and the shooters, specifically, and
his actual account of the vehicle and the
shooters.
THE COURT: Well, you asked for something
which is fairly difficult, I mean --
[FOREPERSON]: We apologize.
THE COURT: The material is taken down
stenographically, and it's just not readily
available.
. . .
Well, I will say to you, in all candor, his
testimony was . . . at least two days ago and,
during that time, volumes of stenographic
material is taken, and it's not indexed. It's
probably in order, but you're talking aboutgoing through a lot of material. It may take
us just until tomorrow to find it.
[FOREPERSON]: Okay. Perhaps we can go back
to the room and reference our notes again and
discuss.
THE COURT: Okay.
[FOREPERSON]: Thank you very much.
THE COURT: Okay. You may resume your
deliberations.
(Emphasis added). Upon inquiry from the trial court, defendant
offered no objection to the court's actions.
A trial court enjoys discretion in responding to a jury's
request to review witness testimony. N.C. Gen. Stat. § 15A-1233(a)
(2001). The court fails to exercise its discretion if it denies a
jury's request solely on the ground that a written transcript of
the testimony is not available. State v. Barrow, 350 N.C. 640,
647, 517 S.E.2d 374, 378-79 (1999). However, the court may
consider the lack of a written transcript in reaching its decision,
as long as the court's ruling is one of choice rather than
compulsion. See State v. Fullwood, 343 N.C. 725, 743, 472 S.E.2d
883, 892 (1996), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339
(1997).
The trial court did not fail to exercise or otherwise abuse
its discretion here. Contrary to defendant's claim, the court did
not refuse the jury's request to review Simon's testimony. It
merely advised the jury that the requested transcript would not be
available until the following day. The jury elected to resume its
deliberations in the meantime. This assignment of error is withoutmerit.
In his second assignment of error, defendant argues the trial
court coerced or rushed the jury into reaching a verdict. We
disagree.
The transcript reflects that the jury began deliberations at
2:55 p.m. on 6 May 2002. The court took a fifteen-minute recess at
2:59, and the jury resumed deliberations at 3:16 p.m. After
returning to the courtroom at 4:30 p.m. to ask for a portion of
Simon's testimony, the jury continued deliberations at 4:34 p.m.
At 5:24 p.m., they submitted another request to the trial judge and
were brought back into court for the following exchange:
THE COURT: Okay. The record should reflect
that the jurors are now back in the presence
of the court. Madam Foreperson, I received a
note that says, “We are at a deadlock at this
time. May we have individual time to think on
our own?”
. . .
What does that mean?
JUROR NUMBER ELEVEN: Go home and think about
it.
THE COURT: No. I'll give you a 15-minute
break. We're going to be here until we finish
this. So you can go out, refresh yourself if
you need to, and reflect on your own thoughts,
but we're going to come back. If we don't
reach a decision at a reasonable time, we'll
send out and get you something to eat, okay?
We're going to be in recess for 15 minutes. .
. .
The court again recessed from 5:26 p.m. until 5:45 p.m., at
which time the jury resumed its deliberations. The court brought
the jury back into court at 6:17 p.m. After learning that the juryhad not reached a verdict, the court distributed menus to the
jurors from which to order dinner. The court also offered the
jurors an opportunity to make telephone calls. The foreperson
submitted a written question to the court. The jury resumed its
deliberations at 6:22 p.m., at which time the court read the
foreperson's note, which asked, “May we have 15 minutes first,
prior to ordering? We are closer.” The jury returned its verdict
at 6:35 p.m.
Defendant concedes that he offered no objection to the court's
instructions as required by N.C.R. App. P. 10(b)(2). Therefore,
this Court reviews only for plain error. See N.C.R. App. P.
10(c)(4). Under the plain error standard, defendant must show a
reasonable probability that “absent the erroneous instruction, a
jury would not have found him guilty of the offense charged.”
State v. Raynor, 128 N.C. App. 244, 247, 495 S.E.2d 176, 178
(1998).
The trial court may not coerce the jury into rendering a
verdict or “require or threaten to require the jury to deliberate
for an unreasonable length of time or for unreasonable intervals.”
State v. Dexter, 151 N.C. App. 430, 433, 566 S.E.2d 493, 495-96,
aff'd per curiam, 356 N.C. 604, 572 S.E.2d 782 (2002) (quoting N.C.
Gen. Stat. § 15A-1235(c) (2001)). In reviewing defendant's claim
of a coerced verdict, this Court must examine the totality of the
circumstances as they existed at trial, including the following
factors:
whether the court conveyed an impression to
the jury that it was irritated with them fornot reaching a verdict, whether the court
intimated to the jury that it would hold them
until they reached a verdict, and whether the
court told the jury a retrial would burden the
court system if the jury did not reach a
verdict.
State v. Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988).
The dispositive issue is whether the court's instructions “merely
serve[d] as a catalyst for further deliberations,” State v. Peek,
313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985), or instead
encouraged the jurors to surrender their convictions, defer to the
will of the majority “and concur in what is really a majority
verdict rather than a unanimous verdict.” Dexter, 151 N.C. App. at
433, 566 S.E.2d at 496.
In response to the jury's request to go home, the trial
court's statement, “We're going to be here until we finish this[,]”
could have been construed as reflecting its intention to keep the
jury until it returned a verdict. Under the totality of the
circumstances, however, we do not believe that the court's
statement was so coercive as to have a probable impact upon the
outcome of defendant's trial. The jurors had been deliberating for
less than two and one-half hours, see State v. Stanback, 2003 N.C.
App. LEXIS 516 (N.C. Ct. App. Mar. 18, 2003), and did not express
fatigue, a hopeless impasse, or other circumstances that might
indicate a rushed conclusion. Cf. Dexter, 151 N.C. App. at 433,
566 S.E.2d at 496 (juror not told whether he would be allowed to
leave to attend his wife's surgery). Instead, the jurors simply
sought “individual time to think on [their] own[.]” While refusing
to adjourn for this purpose, the court did allow the jury a secondfifteen-minute recess. The court further advised the jurors that
they would be provided with dinner “if [they did not] reach a
decision at a reasonable time[.]” Although defendant now casts
this remark as an admonishment to decide the case quickly, the
context reveals that the court was assuring the jurors that they
would be allowed to eat dinner at a reasonable hour. Further,
jurors were offered the opportunity to make telephone calls. The
jury foreman reported significant progress in the deliberations
approximately thirty minutes after the 5:45 p.m. recess. At no
time did the trial court express dissatisfaction with the course of
deliberations, allude to the time and expense of a retrial, or
inquire into the numerical split between the jurors. Moreover, the
court had previously indicated a willingness to continue
deliberations on the following day, in response to the jury's
request to review Simon's testimony. In addition, the State
adduced compelling evidence of defendant's guilt. Simon identified
defendant as the gunman at trial and named defendant as his
assailant to the two sheriff's deputies who responded to the scene
of the shooting. Simon described a history of ill will between
himself and defendant, which included defendant's two prior
attempts to shoot him in December of 1998. Simon's testimony was
corroborated in detail by the testimony of defendant's accomplice,
Spicer, who incriminated himself in all three incidents. The nine-
millimeter shell casings found by police in the abandoned black
Jeep further corroborated Simon's and Spicer's accounts of the
shooting. Although not separately assigned as error, defendant notes the
trial court's failure to instruct the jury pursuant to N.C. Gen.
Stat. § 15A-1235(b)(4), that no juror should surrender his honest
conviction as to the weight or effect of the evidence. Defendant
did not request the instruction at trial. Inasmuch as the decision
to give this instruction is discretionary, its omission did not
constitute plain error. See State v. Ward, 301 N.C. 469, 272
S.E.2d 84 (1980); State v. Beasley, 118 N.C. App. 508, 455 S.E.2d
880 (1995).
The record on appeal contains an additional assignment of
error not addressed by defendant in his brief to this Court. It is
therefore abandoned. See N.C.R. App. P. 28(b)(6).
NO ERROR.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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