An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
STATE OF NORTH CAROLINA
No. 02 CRS 2837
VERNON SEYMORE BULLOCK
Appeal by defendant from judgment entered 15 March 2004 by
Judge W. Osmond Smith in Wake County Superior Court. Heard in the
Court of Appeals 15 May 2006.
Roy Cooper, Attorney General, by Christopher W. Brooks,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Charlesena Elliott
Walker, Assistant Appellate Defender, for Defendant-Appellant.
MARTIN, Chief Judge.
Defendant, Vernon Seymore Bullock, appeals from judgments
entered on jury verdicts finding him guilty of twenty counts of
obtaining property by false pretenses and one count of attempting
to obtain property by false pretenses. Defendant was sentenced to
fifteen separate sentences of eleven to fourteen months
imprisonment, fourteen of which were ordered to run consecutively.
On appeal, defendant argues the trial court's rulings with respect
to the indictments, and the admission of evidence of a statement
made by him to law enforcement officers, violated certain of his
constitutional rights. He also contends the trial court erred by
admitting an exhibit into evidence without proper foundation
conducting an improper poll of the jury, and by denying his motionto set aside the jury's verdict. We have considered his arguments
and find no error.
Defendant contends Counts I through XIX of the superseding
indictment were deficient and failed to give him adequate notice of
the charges he faced, thereby violating his due process rights
under the Fifth Amendment to the United States Constitution, as
well as his right to notice under the Sixth Amendment to the United
States Constitution. However, defendant made no such
constitutional arguments to the trial court. Appellate courts
will not consider constitutional questions that were not raised and
decided at trial. State v. Youngs, 141 N.C. App. 220, 229, 540
S.E.2d 794, 800 (2000) (citing State v. Waddell, 130 N.C. App. 488,
503, 504 S.E.2d 84, 93 (1998)), disc. review denied, 353 N.C. 397,
547 S.E.2d 430 (2001).
Defendant also contends his Fifth Amendment rights,
articulated in Miranda v. Arizona, 384 U.S. 436, 16 L.E.2d 694
(1966), were violated when the police officer who took him into
custody asked him his name before he received the customary Miranda
warnings. No assignment of error pertains to this contention, even
after this Court allowed defendant's motion to amend the record to
include additional assignments of error. Thus, this argument is
not properly before this Court. N.C.R. App. P. 10(a); State v.
Gaither, 148 N.C. App. 534, 538, 559 S.E.2d 212, 215 (2002) ([T]he
record contains only four assignments of error while defendant's
brief sets forth five arguments, the fifth of which does notcorrespond in substance to any of defendant's assignments of error.
For this reason, we will not address defendant's fifth argument.).
At trial, defendant objected to the admission of State's
Exhibit 9, a photostatic copy of one of the counterfeit checks
allegedly passed by defendant. Defendant based his objection on
the grounds that the exhibit was a copy, and not the original
check, as he had previously understood, and that [y]ou can't even
see it. The State sought to establish the exhibit as a business
record, laying a foundation for the exhibit through the testimony
of an employee of Sam's Club, the company where defendant had
allegedly passed the check. The trial court overruled defendant's
On appeal, the defendant argues the exhibit was inadmissible
as a business record because the State failed to lay a proper
foundation for its admission. Defendant did not make this
objection at trial, and we therefore review for plain error.
N.C.R. App. R. 10(c)(4) (2006); State v. Cummings, 346 N.C. 291,
313, 488 S.E.2d 550, 563 (1997) (Defendant alleges this error for
the first time on appeal under the plain error rule, which holds
that errors or defects affecting substantial rights may be
addressed even though they were not brought to the attention of the
trial court.) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873
(1998). The business record exception is an exception to the general
rule of evidence prohibiting hearsay. The exception provides:
Records of Regularly Conducted Activity. _ A
memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2005). Our Supreme Court has
noted business records are admissible if they are authenticated by
a witness who is familiar with them and the system under which they
are made, and there is no requirement that the records be
authenticated by the person who made them. State v. Wilson, 313
N.C. 516, 533, 330 S.E.2d 450, 462 (1985).
To establish a foundation for admission of State's Exhibit 9,
the State presented testimony of an employee of Sam's Club. Among
the employee's primary duties were to process checks which had been
returned by the bank, and he explained the check processing system
used by Sam's Club. His testimony explained that the check in
question, State's Exhibit 9, came into his possession at Sam's Club
as a copy of a check returned from the company's bank, and that the
copy of the check was handled similarly to other returned checks.
From his past experience, the employee testified that it was notunusual for banks to sometimes destroy a check in their processing
and return a copy of the check to Sam's Club.
Testimony by the Sam's Club employee sufficed to lay the
foundation for admission of State's Exhibit 9. The photostatic
copy of the check was a record of a transaction that occurred at
Sam's Club, and that record was kept in the course of a regularly
conducted business activity by Sam's Club.
The employee was
familiar with the record and with the system employed by Sam's Club
to handle returned checks, and he testified that the record in
question here was handled similarly to other returned checks. His
testimony established the photostatic copy as a business record of
Sam's Club, and therefore State's Exhibit 9 was admissible as an
exception to the hearsay rule. We find no error, plain or
otherwise, in the admission of the exhibit.
Defendant also contends his rights under the Confrontation
Clause of the United States Constitution were violated. Since
defendant did not raise this constitutional argument to the trial
court, we do not consider it. Youngs, 141 N.C. App. at 229, 540
S.E.2d at 800.
After the jury returned its verdict, finding defendant guilty
of twenty counts of obtaining property by false pretenses and one
count of attempting to obtain property by false pretenses,
courtroom clerk announced the verdict on each count and asked the
jury, Is this your verdict so say you all? The jury responded,Yes. The trial judge, on his own initiative, then asked the
Members of the jury, if the verdict just
announced by the clerk as recorded by your
foreperson, then each of the respective counts
that the Defendant is guilty, that is, in
counts 1 through 13, and count[s] 15 through
21, that the Defendant is guilty of obtaining
property by false pretenses, and as to count
14, that the Defendant is guilty of attempting
to obtain property by false pretenses, if
those verdicts are your individual verdict,
please indicate so by raising your hand.
Thank you. Let the record reflect all 12
jurors raised their hands in response to the
The judge then inquired whether either the State or defendant had
anything further to add while the jury was present:
THE COURT: Anything else before the jury at
this time from the State with regard to those
[STATE ATTORNEY]: Nothing.
THE COURT: Mr. Bullock?
MR. BULLOCK: No.
THE COURT: The Court concludes that the verdict of
the jury just announced by the clerk recorded by the
foreperson as confirmed by each juror in this case, the
Defendant is guilty . . . .
The jury was then dismissed from the courtroom.
Defendant argues the trial judge's question of the jury
constituted an improper poll of the jury which violated Article I,
Section 24 of the North Carolina Constitution, granting a criminal
defendant a right to a unanimous verdict, and N.C.G.S. § 15A-1238,
concerning the polling of the jury in criminal trials. We will notconsider the constitutional question because it was not raised at
trial. Youngs, 141 N.C. App. at 229, 540 S.E.2d at 800.
Defendant did not object at trial to
the trial judge's
question of the jury, as violative of N.C.G.S § 15A-1238, but
relies on State v. Hucks, 323 N.C. 574, 579, 374 S.E.2d 240, 244
(1988) in contending no objection was required because a
defendant's failure to object at trial does not waive an error when
a trial court acts contrary to a statutory mandate.
however, that the trial judge's question did not constitute a poll
of the jury, and consequently the trial court did not act contrary
to the statutory mandate of N.C.G.S. § 15A-1238.
In a criminal trial, the jury must be polled if any party
makes a motion to do so, or the trial judge may, on his own motion,
require the polling of the jury. N.C. Gen. Stat. § 15A-1238
(2004). If the jury is to be polled, each juror is asked
individually whether the verdict announced is his or her verdict.
Id. Polling the jury serves to ensure that the jurors unanimously
agree with and consent to the verdict at the time it is rendered.
State v. Black, 328 N.C. 191, 198, 400 S.E.2d 398, 402 (1991).
In State v. Flowers, 347 N.C. 1, 489 S.E.2d 391 (1997), a case
with similar relevant facts to the case here, our Supreme Court
considered whether a trial court's question of the jury constituted
a poll of the jury pursuant to N.C.G.S. § 15A-1238. In Flowers,
the courtroom clerk read each of the two
verdicts in open court, and the jurors
responded collectively to each that their
verdict was guilty. After each verdict was
read, the trial court asked the jurors to
raise their hands if that was their verdict. The trial court accepted the verdicts after
all twelve jurors raised their hands, and the
trial court directed the record to so reflect.
347 N.C. at 21, 489 S.E.2d at 403. The defendant in Flowers
contended the trial court undertook on its own motion to poll the
jury, and that the trial court's directive to the jury as a
whole, and the jury's collective response, was insufficient to
protect defendant's rights. Id. Our Supreme Court disagreed with
There is nothing in the record suggesting that
the trial court undertook on its own motion to
poll the jurors individually. The trial
court's questions were directed to the jury as
a group and not individually. The procedure
followed by the trial court merely served to
insure that before the verdicts were accepted,
the record reflected the fact that the written
verdicts were returned in open court and were
unanimous as required by N.C.G.S.
§ 15A-1237(b). Accordingly, we find no
undertaking by the trial court to poll the
jurors individually on its own motion.
Id. at 22, 489 S.E.2d at 403.
The trial court here, like the trial court in Flowers, did not
undertake on its own motion to poll the jurors individually. As in
Flowers, the trial court directed his question to the jurors as a
group, seeking to insure that the written verdicts were unanimous
on all twenty-one counts. We hold the trial court did not conduct
an improper poll of the jury and did not violate N.C.G.S.
The jury deliberated for approximately thirty-six minutes
before returning with its verdict on all counts. Defendant moved,post trial, for a new trial based, in part, on the grounds that the
jury could not have properly deliberated each of the twenty-one
counts with which he was charged in thirty-six minutes.
When there is merely matter of suspicion [of juror
misconduct], it is purely a matter in the discretion of the
presiding judge. State v. Aldridge
, 139 N.C. App. 706, 713, 534
S.E.2d 629, 634 (2000) (quoting State v. Johnson
, 295 N.C. 227,
234_35, 244 S.E.2d 391, 396 (1978)). The trial court's ruling on
the question of juror misconduct will not be disturbed on appeal
unless it is clearly an abuse of discretion. Id.
Our Supreme Court has addressed whether a short deliberation
by a jury constitutes grounds for setting aside a verdict:
We conclude that shortness of time in
deliberating a verdict in a criminal case, in
and of itself, simply does not constitute
grounds for setting aside a verdict. The
brevity of deliberation should only be
questioned if there is evidence of some
misconduct on the part of the jury or the
trial judge believes that the jury acted with
a contemptuous or flagrant disregard of its
duties in considering the matters submitted to
it for decision.
State v. Spangler
, 314 N.C. 374, 388, 333 S.E.2d 722, 731 (1985)
(noting the general rule applied in state and federal courts in
criminal cases is that a jury is not required to deliberate for any
particular period of time, and the mere fact that a jury
deliberates for a short period of time is generally insufficient to
indicate that the verdict was the result of passion, prejudice, or
bias); see also Urquhart v. Durham and South Carolina R.R. Co.
156 N.C. 468, 472, 72 S.E. 630, 632 (1911) (a civil case stating[w]e know of no rule by which this Court can estimate the time, or
lay down a rule, as to how long a jury shall remain in consultation
before bringing in their verdict).
Defendant points to no evidence of misconduct by any juror,
and we find no abuse of discretion in the trial court's ruling.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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