STATE OF NORTH CAROLINA
v
.
Anson County
No. 04 CRS 51381
KENNETH DARRYL PARRISH
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Grady M. Balentine, Jr., for the State.
John T. Hall, for defendant-appellant.
JACKSON, Judge.
On the evening of 27 July 2004, Pernell Harris (“Harris”) and
his brother were cleaning fish in a barn outside a friend's home.
Darryl Parrish (“defendant”), an acquaintance and neighbor of
Harris, came into the barn and showed Harris and his brother a
knife, stating that it was the type of knife they needed to clean
fish. Shortly thereafter, an argument ensued between Harris and
defendant, in which defendant accused Harris of stealing
defendant's gun. After a brief argument, defendant went outside,
and Harris went back to cleaning the fish. Harris then felt
something touch his left shoulder, and when he turned around he saw
defendant swinging a knife at him. Harris put his arm up and was
cut on his wrist by defendant's knife. When the police arrived,Harris' brother gave the responding officer a butcher knife with
Harris' blood on the tip that had been taken from defendant.
On 21 March 2005, defendant was indicted on the misdemeanor
offense of assault with a deadly weapon, in violation of North
Carolina General Statutes, section 14-33(c)(1). Defendant's case
came for trial on 9 May 2005, at which time he also was tried for
the offenses of unlawfully removing a serial number on a firearm
and possession of a firearm by a felon. At the close of the
State's evidence, the trial court granted defendant's motion to
dismiss the charge of unlawfully removing a serial number on a
firearm, but denied the motion to dismiss as to defendant's two
additional charges.
Following deliberations, the jury returned verdict sheets
showing “not guilty” for each of the offenses charged. When
attempting to confirm that these verdicts were the jury's unanimous
verdicts, there was some confusion as all of the jurors failed to
respond to the trial court's questions. The trial court, which did
not state that it had accepted the jury's verdict, thanked the jury
for their service and excused them. As the jury was leaving the
courtroom, one of the jurors immediately approached the bench and
spoke to the trial judge, at which point the trial judge called the
jury back into the court room, and stated that the juror had
“indicated there may be some problems with the verdict sheets.”
The trial judge then asked the jury to return to the jury room, and
review the verdict sheets to make sure that they were their
unanimous verdicts. The trial court instructed the jury that ifthe verdict sheets were correct, to do nothing, and if they need to
be changed, to do so as needed. After the jury was excused,
defendant made a motion for a mistrial. The trial court delayed
its ruling on the motion until after the jury returned. Within
minutes, the jury returned to the courtroom and returned a verdict
finding defendant guilty of misdemeanor assault with a deadly
weapon.
The trial court confirmed with the jury that the guilty
verdict was their unanimous verdict. The trial court sua sponte
asked the clerk to poll the jury. When the jury was polled, each
juror responded that the corrected verdict was his or her unanimous
verdict. Defendant renewed his motion for a mistrial, and asked
that the trial court enter the original verdict that was returned
by the jury prior to the jury's being called back. The trial court
denied defendant's motion, and found that after the jury had left,
they were called back before any of them had an opportunity to
discuss the verdict with each other or anyone else. The trial
court found that the foreperson simply made a mistake in marking
the verdict sheet. Defendant was sentenced on the charge of
misdemeanor assault with a deadly weapon to a term of 150 days
imprisonment with the North Carolina Department of Correction.
Defendant now appeals from his conviction and sentence.
On appeal, defendant contends the trial court erred in
allowing the jury to impeach their verdict, and in sentencing
defendant for the offense of misdemeanor assault with a deadlyweapon after the jury initially returned a verdict of “not guilty”
for the offense.
“Generally, once a verdict is rendered, jurors may not impeach
it.” State v. Heatwole, 344 N.C. 1, 12, 473 S.E.2d 310, 314 (1996)
(citing State v. Cherry, 298 N.C. 86, 100, 257 S.E.2d 551, 560
(1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980)), cert.
denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997). North Carolina
General Statutes, section 15A-1240 and Rule 606(b) of the Rules of
Evidence provide limited exceptions to the rule against impeachment
of a verdict. Section 15A-1240 provides that once a jury has been
“dispersed,” the verdict may be impeached by the testimony of a
juror 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.
N.C. Gen. Stat. § 15A-1240(c) (2005). Rule 606(b) of our Rules of
Evidence provides:
Upon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to
any matter or statement occurring during the
course of the jury's deliberations or to the
effect of anything upon his or any other
juror's mind or emotions as influencing him to
assent to or dissent from the verdict or
indictment or concerning his mental processes
in connection therewith, except that a juror
may testify on the question whether extraneous
prejudicial information was improperly brought
to the jury's attention or whether any outside
influence was improperly brought to bear upon
any juror.N.C. Gen. Stat. § 8C-1, Rule 606(b) (2005).
“A jury pronouncement is not a verdict until accepted by the
court.” State v. Ware, 31 N.C. App. 292, 296, 229 S.E.2d 249, 252
(1976) (citing State v. Rhinehart, 267 N.C. 470, 481, 148 S.E.2d
651, 659 (1966)). In the instant case, the trial court did not
state that it had accepted the jury's verdict, and there was no
statement by the court ordering the verdict to be entered and
recorded. Although there is no indication that the jury's initial
verdict was based on bribery, intimidation, or extraneous matters,
there is evidence that the verdict sheet did not accurately reflect
the jury's verdict. The record and transcripts presented to this
Court indicate that when the trial court inquired as to whether the
jury's initial verdict was their actual and agreed upon verdict, no
juror responded. The transcript states that some of the jurors
said “yes,” but that the trial court did nothing to acknowledge the
verdict as the final, accepted verdict of the jury. When the trial
court called the jurors back to review their verdict sheet, the
trial court specifically instructed the jury that if the verdict
sheet accurately reflected their unanimous verdict, then they were
to do nothing to it, but that if it was incorrect, they were
instructed to correct it. The jury in the instant case was not
attempting to impeach their initial verdict, but was instead
attempting to correct a clerical error by informing the court of
the inaccurately reflected verdict.
Following the trial court's acceptance of the jury's corrected
verdict, the trial court made the following findings of fact. The Court noted upon the Clerk taking the
verdict, the Clerk asked the jury if that was
their [original] verdict and was that still
their verdict, or words to that effect.
And the Court observed a number of jurors,
perhaps two or three, nodding affirmatively.
There was no verbal response from any juror.
At which time the Court thanked the jury and
released the jury from any further obligation
on this case.
The Court noted as the jury stood up that
juror number three summonsed the bailiff and
was speaking to the bailiff as the jurors
began filing out of the jury box.
The bailiff immediately got the Court's
attention and indicated that juror number
three wanted to approach the bench, which he
did immediately as the rest of the jurors were
filing out of the jury box.
Juror number three said that the reported not
guilty verdict for the assault with a deadly
weapon charge was an error; that they found
him guilty. The Court immediately summonsed
all the jurors back to the jury box.
The majority of the jurors were in the aisle
on the way out of the courtroom. That two,
maybe three jurors had made it to the
vestibule just outside the courtroom.
That it was the Court's observation, based on
the time that had elapsed, that there was no
time for the jurors to collaborate or further
deliberate on their verdict.
That within approximately 60 seconds the
jurors were re-assembled in the jury box. And
the foreperson, I believe, and the record will
indicate, said she had made a mistake. And
the Court sent the jurors back into the jury
room for them to decide among themselves
whether or not a mistake had been made.
They returned to the courtroom approximately
one to two minutes later, and returned in open
court a verdict of guilty to assault with a
deadly weapon, contrary to their initial
verdict.
The Court finds that it was obvious that the
foreperson simply made an error and checked
the wrong blank. And that it would be
contrary to the interests of justice for the
defendant to benefit from what was an obvious
clerical error by the foreperson.
Defendant's case is somewhat similar to State v. Farmer, 158
N.C. App. 699, 582 S.E.2d 352 (2003), in which the trial court
presented the jury with a second verdict sheet after their initial
verdict of “not guilty” was read aloud in open court. In Farmer,
this Court upheld the trial court's actions, holding that the
jury's initial verdict had not been accepted by the trial court
prior to the trial judge's decision to submit a second verdict
sheet to the jury. Id. at 705, 582 S.E.2d at 356. In Farmer, when
the trial court questioned the jury, they, in unison, informed the
trial court that the “not guilty” verdict which was read aloud was
not their unanimous and correct verdict. Id. at 704, 582 S.E.2d at
355. In defendant's case, the jury did not, in unison, reply that
the initial verdict was their unanimous and correct verdict.
Instead, the jury failed to respond to the Clerk when asked “Is
this your verdict so say you all?” None of the jurors responded to
the Clerk's question, and only some of them replied “yes” when
ordered by the trial court to answer the Clerk's question out loud.
This interaction with the trial court, coupled with the juror's
immediate report to the trial court regarding an error in the
verdict sheet clearly evidences that the verdict initially
announced was a mere clerical error, and was not in fact the jury's
unanimous and correct verdict. The trial court in the instant case
expressed no opinion on the verdict in its instructions to the jurythat they “go back in the jury room, review the verdict sheets, and
make sure that these were your unanimous verdicts.” In fact, the
trial court instructed the jury that if the verdict sheets were
correct, to “leave [them] alone. If they need to be changed, do
what you need to do.” The trial court simply instructed the jury
to correct the clerical error, if there was one, as had been
reported to the court by the juror.
Our statutes provide the defendant, and the trial court, with
avenues to ensure that a verdict returned by a jury is indeed the
jury's unanimous verdict. North Carolina General Statutes, section
15A-1238 allows for the individual polling of the jury following
the announcement of the jury's verdict.
Upon the motion of any party made after a
verdict has been returned and before the jury
has dispersed, the jury must be polled. The
judge may also upon his own motion require the
polling of the jury. The poll may be
conducted by the judge or by the clerk by
asking each juror individually whether the
verdict announced is his verdict. If upon the
poll there is not unanimous concurrence, the
jury must be directed to retire for further
deliberations.
N.C. Gen. Stat. § 15A-1238 (2005). “The purpose of polling the
jury is 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 the
instant case, the trial court sua sponte requested the jury be
polled following the announcement of their corrected verdict. Each
juror replied in the affirmative that the “guilty” verdict was in
fact their true and unanimous verdict. The jury in defendant'scase was unanimous in their corrected verdict and conveyed this to
the trial court.
Based on the transcript, it is apparent that the initial
verdict consisted of a clerical error made by the jury foreman, and
was not the jury's unanimous and agreed upon verdict. We hold the
trial court's actions of calling the jury back to the court room to
review their initial verdict did not constitute an impermissible
impeachment of the jury of their verdict, as a clerical error had
been made, and the trial court had not yet accepted and entered the
jury's initial verdict. Defendant's assignment of error is
therefore overruled.
Defendant next contends the trial court erred in denying
defendant's motions for a directed verdict and to set aside the
second verdict returned by the jury.
Following the return of the jury's corrected verdict,
defendant made motions for a mistrial and to set aside the second
verdict. Defendant also made a motion for a directed verdict,
asking the trial court to accept and enter the verdict initially
returned by the jury. The trial court denied all of defendant's
motions. On appeal, defendant presents argument only as to the
denial of his motion for a directed verdict, thus this is the sole
issue we will address with respect to this portion of defendant's
appeal. See N.C. R. App. P. 28(b)(6) (2005) (“Assignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated . . ., will be taken as abandoned.”). The standard of review for a motion for a directed verdict is
the same as that for a motion to dismiss. See State v. Burrus, 344
N.C. 79, 93, 472 S.E.2d 867, 876 (1996); State v. Ingle, 336 N.C.
617, 630, 445 S.E.2d 880, 886 (1994) (“it is well settled that a
motion to dismiss and a motion for a directed verdict have the same
effect”), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995).
“In reviewing a motion to dismiss, 'the trial court is to determine
whether there is substantial evidence (a) of each essential element
of the offense charged, or of a lesser offense included therein,
and (b) of defendant's being the perpetrator of the offense.'”
State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218
(2001) (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d
649, 651 (1982)), aff'd as modified, 355 N.C. 266, 559 S.E.2d 788
(2002). In reviewing a challenge to the sufficiency of the
evidence presented at trial, all evidence must be viewed in the
light most favorable to the State, with the State receiving the
benefit of all reasonable inferences which may be drawn from that
evidence. State v. Compton, 90 N.C. App. 101, 103-04, 367 S.E.2d
353, 355 (1988).
To sustain a conviction for the misdemeanor offense of assault
with a deadly weapon, a defendant must be found to have committed
an assault, an assault and a battery, or an affray, and in doing
so, “[i]nflict[ed] serious injury upon another person or use[d] a
deadly weapon.” N.C. Gen. § 14-33(c)(1) (2005). In the instant
case, the evidence presented at defendant's trial tended to show
that defendant got into an argument with Harris, and that at somepoint defendant approached Harris with a knife, and touched the
knife to Harris' shoulder. Harris turned towards defendant, whom
Harris testified was swinging the knife at him, and Harris was cut
on his wrist. Evidence was presented that a butcher knife with
Harris' blood on the tip was taken from defendant and given to the
responding police officer. The trial court instructed the jury
that a deadly weapon is one “which is likely to cause death or
serious bodily injury,” thus leaving the issue of whether the knife
was in fact a deadly weapon for the jury to decide. Based on the
evidence presented at defendant's trial, we hold there was
sufficient evidence of each element of the misdemeanor offense and
that defendant was indeed the perpetrator. Thus, the trial court
acted properly in denying defendant's motion for a directed
verdict.
Finally, defendant contends the trial court erred in denying
his motion to dismiss the charge of misdemeanor assault with a
deadly weapon. At the close of the State's evidence, defendant
made a motion to dismiss all charges, and the trial court denied
the motion to dismiss the charge of assault with a deadly weapon,
but granted the motion to dismiss the charge of unlawfully removing
a serial number on a firearm.
As stated previously, the standard of review for a motion to
dismiss is the same as that for a motion for directed verdict.
Thus, as there was sufficient evidence as to each element of the
charged offense of misdemeanor assault with a deadly weapon, such
that a motion for directed verdict should be denied, we thereforehold there also was sufficient evidence which supports the trial
court's denial of defendant's motion to dismiss. As there was
sufficient evidence of each element of the offense charged, the
trial court acted properly in denying defendant's motion to
dismiss, and in submitting the case to the jury.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30 (e).
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