STATE OF NORTH CAROLINA
v. Forsyth County
No. 01 CRS 59492
CORNELL SURLES
Roy Cooper, Attorney General, by Jane Rankin Thompson,
Assistant Attorney General, for the State.
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
STEELMAN, Judge.
Defendant, Cornell Surles, was charged with first-degree rape,
first-degree sexual offense and taking indecent liberties. He
appeals a conviction of taking indecent liberties with a child.
For the reasons discussed herein, we find no error.
A recitation of the evidence is not necessary to an
understanding of the sole issue presented: whether the court
committed plain error by failing to declare a mistrial when the
jury indicated some inability to reach a unanimous verdict. We
hold that the trial court did not err.
The record shows that the jury began deliberating at 3:55 p.m.
and the court excused them for an overnight recess at approximately
5:05 p.m. The jury resumed deliberations at 9:05 a.m. the nextmorning. Before breaking for lunch, the jury returned with a
request for the court to repeat its instructions regarding
reasonable doubt. The court complied with the jury's request, and
the jury resumed deliberations after lunch at 2:06 p.m. At
approximately 2:44 p.m., the jury returned to the courtroom with a
note from the foreman indicating the jury was divided as follows:
first-degree rape and first-degree sexual offense, guilty 2, not
guilty 10; and taking indecent liberties, guilty 4, not guilty 8.
The note also contained the following statement: “At this time it
does not appear that further discussion will result in any change.
How should we proceed?” At that point, both parties requested the
court to instruct the jury regarding their duty to reach a verdict.
The court instructed the jury in accordance with N.C. P.I. _ Crim.
101.40 (1980) as follows:
Well, ladies and gentlemen, your foreperson or
foreman informs me that you have so far been
unable to agree upon a verdict _ a verdict.
The Court wants to emphasize the fact that it
is your duty to do whatever you can to reach a
verdict. You should reason this matter over
together as reasonable men and women and to
reconcile your differences if you can without
the surrender of conscientious convictions.
Now, y'all have a duty to consult with one
another and to deliberate together with a view
to reaching an agreement if it can be done
without violence to _ to your individual
judgment. Each of you must decide the case
for yourself but only after an impartial
consideration of the evidence with your fellow
jurors. In the course of your deliberations,
each of you should not hesitate to reexamine
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 your fellow jurors or for the merepurpose of returning a verdict.
Again, no juror should surrender his or her
honest conviction as to the weight or effect
of the evidence solely because of the opinion
of your fellow jurors or for the mere purpose
of returning a verdict. I'll now let you
resume your deliberations and see if you can
reach a verdict. Thank you.
Defendant did not object to these instructions and did not move for
a mistrial. We therefore use a plain error analysis. N.C. R. App.
P. 10.
The jury exited the courtroom at 2:46 p.m. to resume
deliberations. The court offered the parties the opportunity to
request any additions, corrections or changes to the charge. Both
parties declined. At 5:00 p.m., the court expressed its intent to
return the jury to the courtroom for a progress update. The court
asked the parties for guidance. Both parties agreed that if the
vote had changed, then further deliberation either that day or the
next day may be appropriate. The bailiff reported that the jury
needed a couple of minutes to vote. The bailiff then reported that
the jury had a verdict and that the jury requested time to pray
before returning to the courtroom. At 5:05 p.m, the jury entered
the courtroom with its verdict.
Plain error is an error “'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.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118
(1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000)
(citations omitted). The decision whether to declare a mistrial when the jury may
be deadlocked is within the discretion of the trial judge, whose
ruling will not be disturbed absent a showing of manifest abuse of
discretion. State v. Baldwin, 141 N.C. App. 596, 607, 540 S.E.2d
815, 823 (2000). The decision whether to charge a jury pursuant to
N.C. Gen. Stat. § 15A-1235 is also within the discretion of the
trial judge. State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d
75, 85 (1986).
We find no plain error. Nothing in the record indicates that
the jury was hopelessly deadlocked at the time it returned to the
courtroom with the note. Defendant expressed agreement to
continued deliberations if the jury had made any progress. In
charging the jury pursuant to N.C. Gen. Stat. § 15A-1235(c), the
court made it clear to the jurors not to surrender a conscientious
belief for the purpose of reaching a unanimous verdict. We hold
defendant had a fair trial, free of prejudicial error.
NO ERROR.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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