STATE OF NORTH CAROLINA
v. Wayne County
No. 01 CRS 55982
GERALD COLLINS, JR.
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 Defendant admitted that his driver's license had been
revoked for a previous driving while impaired conviction.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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