An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-687


Filed: 6 April 2004


         v.                        Wayne County
                                No. 01 CRS 55982

    Appeal by defendant from judgment entered 12 February 2003 by Judge Jerry Braswell in Superior Court, Wayne County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant appellant.

    WYNN, Judge.

    By this appeal, Defendant, Gerald Collins, Jr., contends the trial court erred by informing the jury after two hours of deliberation that, “These cases don't get much simpler . . . You've got two choices . . . make a decision.” After careful review, we find no error by the trial court.
    At trial, the State's evidence tended to show that on 4 August 2001 at approximately 10:15 p.m., Defendant passed Goldsboro Police Officer David Cloutier at a driver's license checkpoint, drove over the street curb and came to a sudden stop near a large tree. As Officer Cloutier approached the rear of the vehicle, he“immediately smell[ed] a strong odor of alcohol coming from inside the car.” Defendant admitted that his driver's license had been revoked for a previous driving while impaired conviction. After observing Defendant's appearance, heavily slurred speech, bloodshot and glassy eyes, and inability to keep his balance, Officer Cloutier arrested Defendant and charged him with driving while impaired.
    Defendant thereafter refused to submit a breath sample for the Intoxilyzer, and the officers did not require Defendant to perform any field sobriety tests. During questioning, Defendant admitted consuming forty-eight ounces of beer between 9:00 and 9:45 p.m. Officer Jason Graham testified that, in his opinion, Defendant had consumed enough of an impairing substance to appreciably impair his mental or physical faculties. Officer Graham further noted that Defendant twice stated, “I know I'm guilty.” Defendant made a motion to dismiss at the close of the State's evidence, which the trial court denied.
    Defendant testified in his own defense. He stated he slowed down as he approached the checkpoint that night, and he pulled over as directed by Officer Cloutier. Defendant told Officer Cloutier that he did not have a driver's license. Officer Cloutier took Defendant's identification to his patrol vehicle. When Officer Cloutier returned, he referred to Defendant's three prior driving while impaired convictions and asked Defendant to “please step out of the car for DWI” in order to blow into an alcosensor. Defendant asserted that he refused the alcosensor and later refused theIntoxilyzer because he had not consumed any alcohol that evening. He stated the officers were assuming he was guilty because of his three prior convictions for driving while impaired. He renewed his motion to dismiss at the close of all the evidence, and the trial court again denied the motion.
    Following instructions from the trial court, the jury began deliberating at 4:57 p.m. At 7:20 p.m., the jury returned to the courtroom and the following exchange occurred:
        THE COURT: Mr. Cooper, it appears that you have the paperwork. Does that mean you're the foreman?

        THE FOREMAN: Yes, sir, it does.

        THE COURT: I wanted to make some general inquiries.

            The jury has been back deliberating now for about close to two and a half hours. Listen carefully to my questions because I'm not asking you to give me any kind of details.

            Do you think you're making any progress, yes or no?
        THE FOREMAN: I think we are but it's slow coming. It's very slow.

        THE COURT: You had earlier sent out a question about seeing some evidence.

        THE FOREMAN: Yes.

        THE COURT: Let me make these comments.

            I believe the verdict sheet sent back to you had two choices. Quite frankly, cases don't get much simpler. Sometimes there are five, six, seven different charges on a case but you have a case that's got two choices. And as I've indicated in the - - in my response to your inquiry, you've heard the evidence. You're not going to get any more evidence. Okay? And you've apparently beendiscussing the evidence. And now it's your task to make a decision.

            Quite candidly, this was not a very complicated case factually speaking. So you are expected to make a decision in this case and although your foreman has indicated that you were making progress but you were making it slowly, from examination of the clock on the wall you are making it very, very slowly. So, I'm going to send you back in there and as you notice and as I've told you, you've heard the evidence. It's not going to change. You're not going to get any more.

            So let's make a decision in this case, ladies and gentlemen.

        [DEFENSE COUNSEL]: Your Honor, may I approach with the prosecutor for just a second?

        THE COURT: No, sir.

            I will excuse the jury. If there is anything you want to tell me, tell me then.

            Go back to work. Make a decision in this case.

    The jury resumed deliberations at 7:24 p.m. Defense counsel then inquired if the trial court would instruct the jury to “make a decision either way” rather than to “make a decision.” After some discussion, the trial court noted that defense counsel's request would foreclose the jury's option “of not agreeing. They've got three choices. They have a choice of guilty, not guilty or hung jury.” The jury returned at 7:54 p.m. and found Defendant to be guilty of the charge. The trial court sentenced Defendant to a mitigated-range term of sixteen to twenty months' imprisonment. Defendant appealed.
    Defendant contends the trial court erred by instructing thejury to “make a decision” after two hours of deliberations. He asserts that the trial court failed to re-instruct the jury in accordance with N.C. Gen. Stat. § 15A-1235(c) and that “the trial judge's comments bordered on contempt for this jury.” Defendant complains the trial court's comments left the jurors with the impression that “they had better make a unanimous verdict very soon.” We are not persuaded by Defendant's argument.
    The decision of whether to give an instruction pursuant to N.C. Gen. Stat. § 15A-1235(c) is within the trial court's discretion. See State v. Fernandez, 346 N.C. 1, 22, 484 S.E.2d 350, 363 (1997).
        In State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980), our Supreme Court held that where the record provided no indication that the jury was deadlocked in its deliberations or in any other way open to pressure by the trial judge to force a verdict, even a charge that is in part impermissible under G.S. 15A- 1235 is not prejudicial error requiring a new trial.

State v. Adams, 85 N.C. App. 200, 210, 354 S.E.2d 338, 344 (1987).
    Nothing in the record indicates that this jury was deadlocked in its deliberations. When the trial court inquired if progress was being made, the foreman responded “it's slow coming. It's very slow.” “[I]t has long been the rule in this State that in deciding whether a court's instructions force a verdict or merely serve as a catalyst for further deliberations, an appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury.” State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985). Here, whenexamining the circumstances under which the instructions were given, we conclude there was no prejudice to Defendant. The evidence in the form of testimony presented by witnesses for the State and by Defendant presented a stark contrast as to whether Defendant was driving while impaired on the night in question. “The credibility of the witnesses, the weight of the testimony, and conflicts in the evidence are matters for the jury to consider and pass upon.” State v. Alford, 329 N.C. 755, 761, 407 S.E.2d 519, 524 (1991). In its supplemental instructions, the trial court reminded the jury that they were not going to receive any additional evidence and that it was their “task to make a decision.”
    Having considered the circumstances under which the trial court made the instructions and the probable impact of those instructions on the jury, we conclude that the trial court's supplemental instructions merely served as a catalyst for further deliberations and were not prejudicial. This assignment of error is overruled. Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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