An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1450


Filed: 15 July 2003


         v.                        New Hanover County
                                Nos.    99 CRS 25062-63

    Appeal by defendant from judgments entered 9 May 2002 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 7 July 2003.

    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).
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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