STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 02 CRS 88230, 88233
LEVONIA WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General
Michelle B. McPherson, for the State.
Daniel F. Read for defendant-appellant.
CALABRIA, Judge.
Levonia Yuvette Williams (“defendant”) appeals from a judgment
entered upon jury verdicts finding her guilty of communicating
threats, resisting a public officer, and disorderly conduct.
Defendant received a suspended sentence of forty-five days in the
custody of the Wake County Sheriff and was placed on unsupervised
probation. We find no error.
The State presented evidence that defendant became upset and
engaged in a physical altercation with an off-duty Raleigh police
officer employed with Kroger after she threatened a Central
Carolina Bank (“CCB”) employee and was told to leave the premises.
The altercation resulted from defendant's attempt to withdraw money
from a newly opened CCB account from a branch located inside aKroger store. Defendant explained to the employee she needed the
funds to purchase pharmaceutical drugs for her six-year-old
daughter, who had recently been released from the hospital. The
CCB branch employees refused to release defendant's money because
a “freeze” had been placed on her account due to an error in
paperwork.
Defendant was charged with and tried on counts of
communicating threats, resisting a public officer, disorderly
conduct, assault on a government officer, and second-degree
trespass. At the close of the State's evidence and again at the
close of all the evidence, defendant moved to dismiss only the
charges of assault on a government officer and second-degree
trespass on the grounds of insufficiency of the evidence, but
failed to move to dismiss the remaining three charges. The jury
returned verdicts of not guilty on the charges of assault on a
government officer and second-degree trespass but guilty on the
charges of communicating threats, resisting a public officer, and
disorderly conduct. The trial court sentenced defendant to forty-
five days in the custody of the Wake County Sheriff, the sentence
was suspended and defendant was placed on unsupervised probation
for twelve months. Defendant appeals.
In her first assignment of error, defendant asserts the trial
court committed plain error in failing to dismiss the charges of
communicating threats, resisting a public officer, and disorderly
conduct. As noted previously, defendant did not move to dismiss
these charges during trial due to insufficiency of the evidence. Consequently, when a defendant fails to properly preserve a
question for appellate review by making a timely request, objection
or motion at trial, the only avenue for appellate review is plain
error analysis. N.C. R. App. 10(c)(4) (2005). However, in State
v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995),
our Supreme Court considered a defendant's assertion of plain error
as to the trial court's submission of charges to a jury when
defendant had failed to move to dismiss the charges at the close of
all the evidence. Our Supreme Court stated that, “under Rule
10(b)(3) of the North Carolina Rules of Appellate Procedure, the
issue of insufficiency was not preserved for appellate review[,]”
and overruled the assignment of error without undertaking a plain
error analysis. Id.; see also State v. Freeman, 164 N.C. App. 673,
676-77, 596 S.E.2d 319, 322 (2004) (holding that plain error review
was unavailable to a defendant who failed to move to dismiss
charges based upon insufficiency of the evidence at the close of
all evidence as required by Rule 10 (b)(3)). We hold accordingly.
Defendant's remaining assignment of error is whether the jury
verdict must be set aside on the grounds that the jury reached the
verdict by “lot.” An affidavit by one of the jurors indicates,
inter alia, the jury was “sharply divided” and reached a compromise
finding defendant guilty of some charges and not guilty of others.
Defendant asserts that “such a verdict by lot is susceptible to
impeachment” by the affidavit of record pursuant to N.C. Gen. Stat.
§ 15A-1240 (2003). We disagree. N.C. Gen. Stat. § 15A-1240 (2003), entitled “Impeachment of
the verdict,” provides as follows:
(a) Upon an inquiry into the validity of a
verdict, no evidence may be received to show
the effect of any statement, conduct, event,
or condition upon the mind of a juror or
concerning the mental processes by which the
verdict was determined.
(b) The limitations in subsection (a) do not
bar evidence concerning whether the verdict
was reached by lot.
(c) After the jury has dispersed, the
testimony of a juror may be received to
impeach the verdict of the jury on which he
served, subject to the limitations in
subsection (a), only when it concerns:
(1) Matters not in evidence which came to the
attention of one or more jurors under
circumstances which would violate the
defendant's constitutional right to confront
the witnesses against him; or
(2) Bribery, intimidation, or attempted
bribery or intimidation of a juror.
This statute represents a codification of the general rule that,
“after the jury renders a verdict and has been discharged, the
court will not receive the testimony of jurors to impeach their
verdict.” State v. Carter, 55 N.C. App. 192, 197, 284 S.E.2d 733,
737 (1981). The official commentary of N.C. Gen. Stat. § 15A-1240
adds that the “traditional rule has been to disallow almost all
attempts by a juror to impeach his verdict because to do otherwise
would place the finality of verdicts in great jeopardy and subject
jurors after the close of the case to intense pressure to come
forward and impeach their verdicts.” Official Commentary, N.C.
Gen. Stat. § 15A-1240. Black's Law Dictionary equates a verdict of
lot, to which defendant likens the instant verdict, with a chance
verdict, which it defines as a “now-illegal verdict, arrived at byhazard or lot.” Black's Law Dictionary 1592 (8th ed. 2004). A
“lot” is defined as “an object (as a piece of wood, pebble, die,
straw) used as one of the counters in determining a question by the
chance fall or choice of one or more of them[.]” Webster's Third
New International Dictionary 1338 (1976). There is no evidence
that the verdict in the instant case was reached by such means of
mere chance; therefore, this argument is unavailing.
Defendant also contends the verdict is a compromise verdict.
It is unclear whether defendant equates a compromise verdict with
a verdict by lot or merely argues, as an alternative to his
argument that the verdict in the instant case was a verdict by lot,
that compromise verdicts are impermissible on separate grounds. As
an initial matter, for reasons given above, a compromise verdict is
separate and distinct from a verdict by lot. Accordingly, to the
extent defendant argues that a compromise verdict is a subset of a
verdict by lot, we reject this contention.
In the alternative and relying on Bartholomew v. Parrish, 186
N.C. 81, 83-84, 118 S.E.2d 899, 901 (1923) (citation omitted),
defendant contends that the verdict in the instant case is an
impermissible compromise verdict. In Bartholomew, our Supreme
Court stated the following:
A verdict which is reached only by the
surrender of conscientious convictions on one
material issue by some jurors in return for a
relinquishment by others of their like settled
opinion on another issue, and the result is
one which does not command the approval of the
whole panel, is a compromise verdict. Such a
verdict is improper and should be set aside as
being founded on conduct subversive of the
soundness of trial by jury. Thus in aprosecution of joint defendants, where certain
of the jurors believe that all of the
defendants should be convicted and others that
all should be acquitted, a verdict reached by
an agreement by which the acquittal of some is
exchanged for the conviction of others is a
compromise verdict and as such cannot stand.
Bartholomew predates the statutory codification concerning
impeachment of a verdict; however, presupposing without determining
that Bartholomew was not superceded by N.C. Gen. Stat. § 15A-1620,
it cannot avail defendant in the instant case. Our Supreme Court
later distinguished Bartholomew in State v. High, 215 N.C. 244,
246, 1 S.E.2d 563, 564-65 (1939) on the grounds that the jury in
Bartholomew “returned a verdict which in no aspect of the case was
supported by evidence, and it expressly stated in its verdict that
it was a compromise.” By contrast, in High, “the verdict [wa]s
supported by evidence and the defendant was adjudged guilty...” of
a lesser-included offense. Id. Similarly, in the instant case,
the verdict was supported by the evidence and defendant was found
guilty of the crime charged. This assignment of error is
overruled.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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