NO. COA03-351
Appeal by defendant from judgment dated 19 September 2002 by
Judge W. Robert Bell in Mecklenburg County Superior Court. Heard
in the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Mary Exum Schaefer for defendant-appellant.
BRYANT, Judge.
Tarvish Levitius Dunham (defendant) appeals from a judgment
dated 19 September 2002 entered consistent with a jury verdict
finding him guilty of taking indecent liberties with a child, but
not guilty of first-degree rape.
The transcript indicates that after deliberations, the jury
stated to the trial court: “We are unable to reach a unanimous
verdict, in either charge; and, have confirmed that no juror will
be convinced to change their mind.” Immediately, d efendant moved
for a mistrial. The trial court denied the motion, noting the
jury had deliberated for only two hours. The trial court
subsequently declared a recess for lunch. After the recess, thetrial court requested the jury to continue deliberations and
instructed the jury as follows:
Ladies and Gentlemen of the jury, the
foreperson inform[s] me that you, so far, have
been unable to agree upon 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 the
matter over, together, as reasonable men and
women.
You have a duty to consult with one
another and to deliberate with a view toward
reaching an agreement, if it can be done,
without violence to 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 re-examine your
own views and change you're [sic] opinions, if
they are erroneous. But, none of you should
surrender your honest conviction as to the
weight or affect [sic] of the evidence, solely
because of the opinion of your follow [sic]
jurors; or, for the mere purpose of returning
a verdict.
I will now let you resume your
deliberations and see if you can reach a
verdict, in this matter.
Deliberations resumed. Approximately one hour later, the jury
asked the trial court: “Please again explain the definition of
first-degree rape and attempted rape. We need to understand the
distinction between the two.” The trial court re-instructed the
jury on the elements of first-degree rape and attempted
first-degree rape.
Two hours later, the trial court called the jury back into thecourtroom, informed the jury that the time was 4:48 p.m., and
inquired whether the jury would like to continue deliberations.
The jury foreman stated, “I really feel like we were making good
progress; and, just almost were on a verge and were called out. We
really would like to go ahead and continue.” The trial court
stated:
Okay. Do you have any idea--what I am
thinking; and, I don't want to rush you; is
because, people have other obligations is to
say maybe leave you out until 6 o'clock, if it
were to take that long. Is anybody on the
jury that that's going to inconvenience you?
The jury foreman indicated deliberations should not take
longer than 6:00 p.m. Afterwards, the jury returned to the jury
room. At 5:50 p.m., the jury returned with its verdict.
______________________
The sole issue on appeal is whether the trial court erred by
denying defendant's motion for a mistrial after the jury had
indicated that it was unable to reach a verdict as to either
charge. Defendant argues such denial resulted in a coerced or
compromise verdict. We disagree.
N.C. Gen. Stat. § 15A-1235(b) (2001) provides:
(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.
If the jury appears unable to reach a verdict, the trial court
may require the jury to continue deliberations and repeat the
instruction enumerated in subsection (b), as long as the trial
court does “not require or threaten to require the jury to
deliberate for an unreasonable length of time.” N.C.G.S. § 15A-
1235(c) (2001). The trial court may declare a mistrial “[i]f it
appears that there is no reasonable possibility of agreement.”
N.C.G.S. § 15A-1235(d) (2001). “The purpose behind the enactment
of N.C.G.S. § 15A-1235 [is] to avoid coerced verdicts from jurors
having a difficult time reaching a unanimous decision.”
State v.
Evans, 346 N.C. 221, 227, 485 S.E.2d 271, 274 (1997) (citation
omitted).
The decision to grant or deny a motion for mistrial lies
within the sound discretion of the trial court.
State v. Wall, 304
N.C. 609, 621, 286 S.E.2d 68, 76 (1982). The trial court's ruling
in this regard will not be disturbed absent abuse of discretion.
State v. Nobles, 350 N.C. 483, 511, 515 S.E.2d 885, 902 (1999). In
determining whether the jury's verdict is coerced, this Court must
consider the totality of the circumstances surrounding the verdict.
State v. Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988);
State v. Baldwin, 141 N.C. App. 596, 608, 540 S.E.2d 815, 823(2000)
.
State v. Baldwin provides a useful comparison to the instant
case. A
fter deliberations in
Baldwin, the jury stated that it
could not decide on the two charges against the defendant.
Baldwin, 141 N.C. App. at 608-09, 540 S.E.2d at 824. The trial
court requested the jury to continue deliberations, noting that
they had been deliberating for only two-and-one-half hours.
Id. at
609, 540 S.E.2d at 824. Following a dinner break and two more
hours of deliberations, the jury again stated that it was at an
impasse.
Id. The trial court then gave the jury a fifteen-minute
recess.
Id. On return of the jury, the trial court issued the
following instruction:
The [c]ourt wants 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
attempt to reconcile your differences, if you
can, without the surrender of conscientious
convictions, but you should not surrender your
honest convictions 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.
Id.
After another hour of deliberations, the jury stated that it
was at an impasse for the third time.
Id. After further inquiry,
the trial court concluded the jury had been making progress and
requested the jury to continue deliberations.
Id. One hour later,
the jury returned with a verdict of guilty as to both charges.
Id.
In holding the
trial court did not err in denying the
defendant's motion for a mistrial, this Court noted that the trialcourt “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.”
Id.
In comparison, the jury in the instant case faced fewer
impasses and reached a verdict in a shorter time. Here, the jury
indicated only once that it was unable to reach a unanimous
verdict, whereas in
Baldwin, the jury faced a deadlock three times.
As in
Baldwin, the trial court in the instant case re-instructed
the jury pursuant to N.C.G.S. § 15A-1235(c) following the jury's
deadlock. Accordingly, the totality of the circumstances in this
instance does not indicate the jury verdict was coerced, and the
trial court did not abuse its discretion in denying defendant's
motion for a mistrial.
Finally, defendant argues the denial of his motion for a
mistrial resulted in a compromise verdict. Citing
State v.
Rhinehart, 322 N.C. 53, 366 S.E.2d 429 (1988), defendant contends
“[s]ince the jury returned with a verdict finding defendant not
guilty of any of the rape charges, but only the lesser, indecent
liberties charge, it could be inferred that this jury believed
. . . that they needed to return finding defendant guilty of
something.” We disagree.
The Court in
Rhinehart dealt with the issue of when the trial
court should give an instruction on lesser-included offenses and
concluded that when the evidence does not support an instruction on
a lesser-included offense, providing such instruction would invite
a compromise verdict.
Id. at 59, 366 S.E.2d at 432. In otherwords, “defendant would be found guilty of an offense, which he did
not commit, for the sole reason that some of the jurors believe him
guilty of the greater offense.”
Id.
In the instant case, defendant was charged with first-degree
rape and taking indecent liberties with a child. Taking indecent
liberties with a child, however, is not a lesser-included offense
of first-degree rape.
State v. Weaver, 306 N.C. 629, 635, 295
S.E.2d 375, 378 (1982),
overruled on other grounds,
State v.
Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). Therefore,
defendant's assignment of error is overruled.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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