NO. COA03-375
Appeal by defendant from judgment entered 12 December 2002 by
Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard
in the Court of Appeals 12 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General C.
Norman Young, Jr., for the State.
Margaret Creasy Ciardella for defendant-appellant.
TIMMONS-GOODSON, Judge.
Glenn Davis Bowen (“defendant”) appeals his conviction of
robbery with a dangerous weapon. For the reasons stated herein, we
hold that defendant received a trial free of prejudicial error.
The State's evidence presented at trial tends to show that
defendant robbed a Food Lion grocery store in Leland, North
Carolina, around midnight on 26 December 2000. Elizabeth Pierce
(“Pierce”), an employee of the Food Lion, testified that she was
working the three to midnight shift on 26 December 2000, when she
was approached by a masked man who pointed a rusty single-barrel
shotgun at her and demanded money. Pierce went over to the safe and
tried to activate the store's silent alarm, but was unable to doso. Pierce then opened the safe to show the robber that it was
empty.
At that point, another store employee, Barbara Ractor
(“Ractor”), approached the front of the store. When Ractor saw the
robbery in progress, she attempted to hide, but the robber saw her.
The robber put the gun to Pierce's side, and told Ractor, “Get up
here or I'm going to shoot her.” In response, Ractor came into the
store and began helping the robber put rolls of coins into a bag.
The robber knocked some change out of Pierce's hand and told her to
give him the money from her register. After obtaining this money,
the robber ordered the two women to the back of the store and he
left. The timer on the surveillance camera indicated that a minute
and a half elapsed between the robber's entry into and exit from
the store. Police were subsequently called to the scene.
Pierce described the robber to the responding officer as
wearing a “Chicago Bulls” Starter jacket that appeared to have
something underneath, and a child's ski mask with eye holes cut
out. Pierce noted that the mask kept creeping up during the
robbery, exposing portions of the robber's face. Though the robber
would pull it back down, Pierce explained that she was able to see
all of the robber's face with the exception of his forehead, nose,
and the tops of his ears. Ractor also described the ski mask worn
by the robber as appearing to belong to a child, with eyes cut out
by scissors. At trial, she testified that the mask would “rim up”
to the robber's nose, allowing her to get a good look at him.
Pierce and Ractor identified defendant as the robber in aphotographic lineup and in court.
Betty Suggs (“Suggs”), who was incarcerated for breaking and
entering and car theft at the time of trial, testified that she
knew defendant and that she had previously participated in criminal
activity with him. Suggs testified that she had seen the 26
December 2000 surveillance videotape from Food Lion and recognized
the robber on the tape as defendant. In fact, Suggs stated that
she recognized the gun, jacket and mask defendant wore during the
robbery.
Defendant presented the alibi testimony of his girlfriend,
Ella Mae Bowen (“Ella Mae”), and brother, Kenneth Bowen
(“Kenneth”). Ella Mae testified that defendant was at their home
in bed with her between 11:30 and midnight on 26 December 2000.
Kenneth testified that he was at defendant's house from
approximately 10:00 p.m. until 10:10 p.m. on the night of the
robbery. Kenneth further testified that defendant was not dressed
“to go out,” but instead wore a t-shirt and boxers when he answered
the door.
The jury found defendant guilty of robbery with a dangerous
weapon. The trial court entered judgment on the jury verdict, and
sentenced defendant to a presumptive term of 117 to 150 months
imprisonment. Defendant appeals.
Defendant first argues that the trial court erred in deviating
from the pattern jury instruction and failing to instruct the jury
on the identity of the defendant in violation of the Due ProcessClauses of the United States and North Carolina Constitutions.
Since defendant failed to object to the court's instruction or
request an alternative instruction, as required by N.C. R. App. P.
10(b)(2), he seeks review under the plain error rule.
As stated by our Supreme Court in
State v. Odom,
The 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'” or where the error is such as to
“seriously affect the fairness, integrity or
public reputation of judicial proceedings” or
where it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting
United States
v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982). The
Odom Court
went on to quote, “'it is the rare case in which an improper
instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.'”
Id.,
quoting
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). It is important to
note that even in cases where the defendant requests a particular
instruction or objects to that given, the trial court need not
give an instruction verbatim even though it is a correct statement
of the law, so long as the instruction is given in substance.
State
v. Dodd, 330 N.C. 747, 753, 412 S.E.2d 46, 49 (1992). In deciding
whether the trial court did commit “plain error” in instructing thejury, this Court must examine the entire record.
Id.
At the outset, the trial court instructed the jury with regard
to defendant's plea of not guilty, and cautioned the jury that the
fact that he had been charged should not be used by them as
evidence of defendant's guilt. In fact, the court stated, “The
State must prove to you that the Defendant is guilty beyond a
reasonable doubt.” The court then went on to define “reasonable
doubt.” More specifically, the court gave the following
instruction as to the crime charged:
I charge that for you to find the
Defendant guilty of robbery with a firearm,
the State must prove to you, the jury, beyond
a reasonable doubt seven things:
First, that the Defendant took property
from the person of another or in his or her
presence.
Second, that the Defendant carried away
the property;
Third, that the person did not
voluntarily consent to the taking and carrying
away of the property;
Fourth, that the Defendant knew he was
not entitled to take the property;
Fifth, that at the time of the taking,
the Defendant intended to deprive that person
of the use of that property permanently. . . .
Sixth, the State must prove to you, the
jury, beyond a reasonable doubt that the
Defendant had a firearm in his possession at
the time he obtained the property; and
Seventh, that the Defendant obtained the
property by endangering or threatening the
life of that person or another person with the
firearm.
So, ladies and gentlemen, I charge that
if you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the Defendant had in his possession a
firearm; and took and carried away property
from a person or presence of a person, without
that person's voluntary consent, by
endangering or threatening her life or another
person's life with the use or threatened useof a firearm; the Defendant knowing that he
was not entitled to take the property; and
intending to deprive that person of its use
permanently, then it would be your duty to
return a verdict of guilty of a robbery with a
firearm.
However, if you do not so find or if you
have a reasonable doubt as to one or more of
these things, then it would be your duty to
return a verdict of not guilty in this matter.
Although defendant did not object to the court's instruction as
given, nor request further instruction on the issue of identity, he
now takes issue with the fact that the trial court failed to give
the following portion of the pattern jury instruction pertaining to
identity:
I instruct you that the State has the burden
of proving the identity of the defendant as
the perpetrator of the crime charged beyond a
reasonable doubt. This means that you, the
jury, must be satisfied beyond a reasonable
doubt that the defendant was the perpetrator
of the crime charged before you may return a
verdict of guilty.
N.C.P.I. Crim. 104.90.
From the trial court's instruction, the jury was adequately
apprised of the State's burden to prove that defendant was the
perpetrator of the crime charged before it could return a guilty
verdict.
See State v. Penland, 343 N.C. 634, 656, 472 S.E.2d 734,
746 (1996)
reh'g denied Penland v. North Carolina, 519 U.S. 1098
(1997). Defendant's arguments to the contrary are unpersuasive,
and therefore, we conclude that the trial court did not commit
plain error in failing to include N.C.P.I. Crim. 104.90 in its
instruction.
Id.
Defendant next argues that the trial court committed plainerror to warrant reversal when it failed to further instruct the
jury when the jury informed the court that it was “hung” after
deliberating approximately 50 minutes. Again, defendant seeks
plain error review of this issue since he failed to request any
further instruction be given to the jury.
See N.C. R. App. P.
10(b)(2) (2004).
N.C. Gen. Stat. . 15A-1235 provides in pertinent part:
(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.
(2003). It is within the sound discretion of the trial court to
give further instruction as detailed in . 15A-1235(c).
State v.
Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986).
In the instant case, the trial court properly instructed the
jury regarding their duty to deliberate and return a unanimous
verdict prior to the jury retiring, pursuant to subsections (a) and
(b). Just fifty minutes after being so instructed and retiring to
deliberate, the jury sent out a note asking whether they could have
a hung jury. Out of the presence of the jury, the court told
counsel that the jury could indeed be hung, but “not this early in
the day.” When the jury returned to the court room, the following
exchange occurred between the court and jury foreman:
COURT: . . . At this point, what I am goingto do is allow you to resume your
deliberations to see if you can arrive at a
unanimous verdict in this matter. You've been
out about 50 minutes. It's been a two day
trial. I don't know-- I'm certainly not
trying to coerce anything, and I'm not going
to. However, I do want to make sure that
everybody gets the chance to fully discuss all
of the evidence, all of the law, and to
participate in deliberations, and I think a
little further deliberations may be
worthwhile. In my discretion, that's what
we're going to do.
Now, the question I have for you is
simply this: Do you want to try and
deliberate a little further and resolve this
matter this afternoon, or do you wish to
resume it at 9:30 tomorrow morning?
FOREPERSON: Are you directing this
question to me or to all of us?
COURT: All.
FOREPERSON: I don't think it's going to
make a difference, your Honor. We have a
couple of people whose minds can't be --
. . . .
COURT: All right, sir. I understand,
but bear with me if I'm hardheaded, and we'll
try. Now, would you like to try this
afternoon for another 30 to 45 minutes, or
would you like to try tomorrow morning?
(FOREPERSON AND REMAINING JURORS CONFER)
FOREPERSON: Come back tomorrow, your
Honor.
The jurors returned the next morning and, without further
instruction, resumed deliberations at approximately 9:50 a.m.
Defendant did not request any further instruction to be given. The
jury reached its verdict of guilty in approximately one hour.
After a thorough review of the record, we conclude that the
trial court did not abuse its discretion in failing to repeat itsinstruction on the jury's duty to deliberate and return a unanimous
verdict as fully set out in G.S. 15A-1235(a) and (b). Moreover,
contrary to defendant's contention, the court's “partial
instruction” to the jury upon the members of the jury's return to
the courtroom did not amount to coercion. The jury had only been
in the jury room 50 minutes before inquiring about a “hung jury.”
After having a brief discussion and finding out the nature of the
problem, we believe that the court acted reasonably in excusing the
jury for the remainder of that day, and asking the jury members to
return on the next morning to resume deliberations. Accordingly,
we also reject defendant's argument of plain error in this regard.
Having so concluded, we hold that defendant received a fair
trial free from prejudicial error.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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