After a jury trial defendant was convicted of indecent
liberties with a minor on 12 July 2006 in Superior Court, Wayne
County. Supplemental instructions were provided to the jury after
the jury indicated they were at a standstill. Judge Jerry
Braswell sentenced defendant to an active sentence within the
presumptive range of sentences, between 16 and 20 months.
On 4 April 2005 defendant was indicted by the Wayne County
Grand Jury for: (1) first degree statutory sex offense, (2)
indecent liberties with a minor, and (3) a lewd and lascivious act
with a minor. On 6 February 2006, a superseding indictment was
issued charging defendant with: (1) indecent liberties with a
minor on or about 1 January 2001 up to and including 30 June 2002,
(2) a lewd and lascivious act with a minor on or about 1 January
2001 up to and including 30 June 2002, (3) first degree statutory
sex offense, (4) indecent liberties with a minor on or about 1
August 2001 up to and including 30 June 2002, and (5) a lewd and
lascivious act with a minor on or about 1 August 2001 up to and
including 30 June 2002.
On 10, 11 and 12 July 2006 a jury trial was held before Judge
Jerry Braswell in Superior Court, Wayne County. On 12 July 2006
Judge Braswell dismissed both charges of a lewd and lascivious act
with a minor and instructed the jury as to the remaining three
charges. At 11:26 a.m. the jury retired to deliberate. At
approximately 1:03 p.m. the jury came back to the courtroom and
informed the court they had not reached a decision. Judge Braswell
gave the jury a lunch break until 2:30 p.m. Later in the day, the
jury sent a note to the trial judge. The note is not in the
record, but the parties agree the note read, Your Honor, We seem
to be at a standstill. [W]e can agree on two counts but are 10-2
on the third. What do you suggest we do. At 4:08 p.m. the jury
returned to the courtroom where the following dialogue took place:
THE COURT: Ms. Myers, I have seen your-- the
FOREMAN MYERS: Okay.
THE COURT: It appears to the Court that you
are making some progress. It would appear to
the Court that you've made substantial
progress. But that you seem to be at the
present time unable to resolve one remaining
FOREMAN MYERS: Yes.
THE COURT: Based on the numerical count that
you have, it would appear to the Court that I
need to send you back in to do some further
discussion. You've been at this for a couple
hours or so. Do you believe that if you go
back and continue discussing this matter and
sifting through the evidence and exchanging
idears [sic] that you will be able to come to
a unanimous decision?
FOREMAN MYERS: (Foreman looking at her fellow
jurors) We could try.
THE COURT: You'll try.
FOREMAN MYERS: I think they're pretty
THE COURT: Both the State and the Defendant
have put a great deal of time and effort into
this situation, into this case, and what
you're discovering that these-- arriving at
your decisions sometimes is not easy. But
that's the way our jury system works. You're
the social conscience of this community and
you have to make that decision.
If the remaining issue is not resolved,
your question, sort of what can we do or
should we do? What's the next step?
Then on that issue it would be what we
would characterize or classify as a hung jury.
FOREMAN MYERS: Right.
THE COURT: And then that issue may have to be
put-- could possibly be retried again and
heard by another jury for somebody else to try
to resolve it, if you're not able to, which is
why we're urging you to go back and continue
to work on it, and the Defendant and the State
have chosen you to make this decision. Ididn't say it was going to be easy, but it's
entrusted in you, that responsibility, as so
we've been here for a couple days now, and we
can stay a little bit longer, but, you know,
it would be best if we tried it and go ahead
and try to resolve that one remaining issue
that we have, because it's not going away.
And it's your duty to try, if you can, to
reach a unanimous verdict, and then if you
can't then let me know that as well, but I'm
going to give you another chance to try to see
if you can do it.
At no point during the preceding dialogue or thereafter did
defendant object to the trial court's statements to the jury.
The jury then left the courtroom and returned at 4:43 p.m.
with a unanimous verdict of: (1) guilty of taking indecent
liberties with a minor child on or about 1 August 2001 and up to
and including 30 June 2002, (2) not guilty of first degree sex
offense, and (3) not guilty of taking indecent liberties with a
minor child on or about 1 January 2001 and up to and including 30
June 2002. Judge Braswell sentenced defendant within the
presumptive range of sentences, 16 to 20 months. Defendant appeals
and assigns as error the trial court's supplemental jury
instructions and imposition of an active sentence of imprisonment.
II. Jury Instructions
 Defendant contends the trial court erred in its coercive
manner [of] informing the deadlocked jury that the parties had put
a great deal of time and effort into the case, and if they failed
to reach a unanimous verdict another jury could be brought in to
decide the issues.
Because defendant failed to object to the
jury instructions in this case, this
assignment of error must be analyzed under theplain error standard of review. Plain error
with respect to jury instructions requires the
error be so fundamental that (i) absent the
error, the jury probably would have reached a
different verdict; or (ii) the error would
constitute a miscarriage of justice if not
corrected. Further, in deciding whether a
defect in the jury instruction constitutes
plain error, the appellate court must examine
the entire record and determine if the
instructional error had a probable impact on
the jury's finding of guilt.
State v. Wood
, 185 N.C. App. 227, 232, 647 S.E.2d 679, 684 (2007)
(internal citations and internal quotations omitted).
The law governing the present case is N.C. Gen. Stat. § 15A-
N.C. Gen. Stat § 15A-1235 (2005). N.C. Gen. Stat. §
15A-1235 provides that
(a) Before the jury retires for deliberation,
the judge must give an instruction which
informs the jury that in order to return a
verdict, all 12 jurors must agree to a verdict
of guilty or not guilty.
(b) Before the jury retires for deliberation,
the judge may give an instruction which
informs the jury that:
(1) Jurors have a duty to consult with
one another and to deliberate with a view to
reaching an agreement, if it can be done
without violence to individual judgment;
(2) Each juror must decide the case for
himself, but only after an impartial
consideration of the evidence with his fellow
(3) In the course of deliberations, a
juror should not hesitate to reexamine his own
views and change his opinion if convinced it
is erroneous; and
(4) No juror should surrender his honest
conviction as to the weight or effect of the
evidence solely because of the opinion of hisfellow jurors, or for the mere purpose of
returning a verdict.
(c) If it appears to the judge that the jury
has been unable to agree, the judge may
require the jury to continue its deliberations
and may give or repeat the instructions
provided in subsections (a) and (b). The
judge may not require or threaten to require
the jury to deliberate for an unreasonable
length of time or for unreasonable intervals.
(d) If it appears that there is no reasonable
possibility of agreement, the judge may
declare a mistrial and discharge the jury.
N.C. Gen. Stat. § 15A-1235 (emphasis added).
In the present case the jury did not actually use the word
deadlock; however, they did inform the judge that they were at a
standstill and the jury foreperson indicated that they were
adamant about their positions. Though the legal term deadlock
was not used by the jury, we believe the note, dialogue, and
attendant circumstances indicate that the jury was deadlocked.
In State v. Easterling
, the trial court on its own motion
brought the jury in from deliberations and instructed them,
Members of the jury, I realize what a
disagreement means, and I presume you
understand and realize what a disagreement
means. It means that there will be another
week or more of the time of the Court that
will have to be consumed in the trial of these
I do not want to force you or
coerce you in any way to reach a verdict, but
it is your duty to try to reconcile your
differences and to reach a verdict, if it can
be done, without any surrender of anyone's
conscientious convictions. You have heard the
evidence in this case, and all of it; and a
mistrial will mean that another jury will have
to be selected to hear the case or these
cases, and the evidence again.
that there are reasons sometimes why jurors
cannot agree. The Court wants to emphasizethat it is your duty to do whatever you can to
reason the matter over together as reasonable
men, reasonable women, and to reconcile your
differences, if such is possible without the
surrender of your conscientious convictions,
and to reach a verdict. . . .
State v. Easterling
, 300 N.C. 594, 606, 268 S.E.2d 800, 808 (1980)
The North Carolina Supreme Court held that the instructions
above were in error but did not grant a new trial because the
instructions were not prejudicial to the defendant, as [t]he
record provide[d] not the slightest indication that the jury was in
fact deadlocked in its deliberations, or in any other way open to
pressure by the trial judge to 'force' a verdict, at the time the
charge was given. See id.
at 608-09, 268 S.E.2d at 809. The
Court went on to carefully distinguish Easterling
from the facts in
State v. Lamb
where there had been an initial jury disagreement
preced[ing] the offending instruction. See id.
at 609, 268 S.E.2d
In State v. Lipfird
, the jury returned to the courtroom after
indicating that they were unable to reach a verdict. 302 N.C. 391,
391, 276 S.E.2d 161, 161 (1981). The judge then gave the following
All right, now, Members of the Jury,
anything further? I presume that you members
of the jury realize what a disagreement means.
It means, of course, that it will be more time
of the Court that will have to be consumed in
the trial of this action again.
I don't want
to force you or coerce you in any way to reach
a verdict, but it is your duty to try to
reconcile your differences and reach a verdict
if it can be done without the surrender of
one's conscientious convictions. You've heard the evidence in the case. A
mistrial, of course, will mean that more time
and another jury will have to be selected to
hear the cases and this evidence again.
. . . .
Id. (emphasis in original). The North Carolina Supreme Court
granted a new trial based upon the erroneous jury instructions
because it was error, in violation of G.S. § 15A-1235 . . . to
instruct a deadlocked jury that its inability to agree will result
in the inconvenience of having to retry the case. Id. at 392, 276
S.E.2d at 162 (discussing the holding in Easterling, 300 N.C. 594,
268 S.E.2d 800) (emphasis added).
In State v. Lamb, upon being informed that the jury could not
reach a decision the trial court gave instructions substantially
similar to the instructions in the present case. See State v. Lamb
44 N.C. App. 251, 252, 261 S.E.2d 130, 130-31 (1979), disc. rev.
denied, 299 N.C. 739, 267 S.E.2d 667 (1980). The trial court
Both the State and the defendants have a
tremendous amount of time and money invested
in this case.
If you don't reach a verdict, it means
that it will have to be tried again by another
jury in this county and that involves a
duplication of all the expense and all the
. . . .
Id. This Court reversed and remanded the case stating that
[i]t was error under the . . . existing law
for the court to charge the jurors that if
they did not agree upon a verdict another jury
might be called upon to try the case; that the
State and defendants had a tremendous amount
of time and money invested, and retrial
involved a duplication of all the time and
Id. at 260, 261 S.E.2d at 135.
Here, just as in Lipfird, the trial court instruct[ed] a
deadlocked jury that its inability to agree will result in the
inconvenience of having to retry the case and that if they did not
reach a unanimous decision another jury may have to hear the case.
See Lipfird at 391, 276 S.E.2d at 161. Similarly to Lamb the trial
court here erroneously informed the jury that if they did not
agree upon a verdict another jury might be called upon to try the
case and that the State and defendants had a tremendous amount of
time and money invested. See Lamb at 260, 261 S.E.2d 135.
Although the instruction herein did not mention the expense of
retrying the case, it clearly mentioned the potential inconvenience
and use of the court's time. In our view . . . this instruction
constitute[s] prejudicial error. State v. Johnson, 80 N.C. App.
311, 314, 341 S.E.2d 770, 772 (1986). Just as in Easterling we
find error in the trial court's instructions. See Easterling at
608, 268 S.E.2d at 809.
However, the present case is distinguishable from Easterling
in that the jury was deadlocked at the time supplemental
instructions were provided. See Easterling at 609, 268 S.E.2d at
809. Though both Lipfird and Lamb had deadlocked juries neither
indicate what standard of review the courts were using or simply
refer to prejudicial error. See Lipfird, 302 N.C. 391, 276
S.E.2d 161; Lamb, 44 N.C. App. 251, 261 S.E.2d 130. Prejudicial
error is when there is a reasonable possibility that, had the
error in question not been committed, a different result would havebeen reached at the trial out of which the appeal arises. N.C.
Gen. Stat. § 15A-1443 (2005). A reasonable possibility of a
different result at trial is a much lower standard than that a
different result probably would have been reached at trial, which
is what this Court must find for there to be plain error. See id;
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80 (1986); Wood at
232, 647 S.E.2d at 684.
The plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where the
error is grave error which amounts to a denial
of a fundamental right of the accused, or the
error has resulted in a miscarriage of justice
or in the denial to appellant of a fair trial
or where the error is such as to seriously
affect the fairness, integrity or public
reputation of judicial proceedings or where it
can be fairly said the instructional mistake
had a probable impact on the jury's finding
that the defendant was guilty.
. . . .
[I]n deciding whether a defect in the
jury instruction constitutes plain error, the
appellate court must examine the entire record
and determine if the instructional error had a
probable impact on the jury's finding of
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting U.S. v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982),
cert. denied, McCaskill v. U.S., 459 U.S. 1018, 74 L.Ed. 2d 513
(1982) (footnotes omitted) (emphasis in original) (internal
quotations omitted)). In State v. Williams this Court stated the trial court erred
in its jury instructions, but concluded it did not rise to a level
of plain error because an error does not . . . automatically
entitle the defendant to a new trial. We have recognized that
every variance from the procedures set forth in the statute does
not require the granting of a new trial. State v. Williams, 315
N.C. 310, 327-28, 338 S.E.2d 75, 86 (1986) (internal citation and
internal quotations omitted).
The trial court did erroneously instruct the jury, but we
cannot now conclude that the error was so fundamental that absent
the error, the jury probably would have reached a different verdict
. . . or . . . the error . . . constitute[d] a miscarriage of
justice. Wood at 232, 647 S.E.2d at 684 (emphasis added). The
State presented evidence which included, inter alia, eyewitness
testimony and the signed confession of defendant, with changes to
the confession initialed by defendant. We have examined the entire
record and do not conclude the trial court's error in instructions
had a probable impact on the jury's finding of guilt. Odom at
660, 300 S.E.2d at 378. This assignment of error is overruled.
 Defendant next assigns error to the trial court's
imposition of an active sentence based on defendant exercising his
right to a jury trial. Defendant attempts to characterize the
alleged sentencing error as a constitutional question which this
court reviews de novo
. Row v. Row
, 185 N.C. App. ___, ___, 650
S.E.2d 1, 4 (2007). A sentence within the statutory limit
will be presumed regular and valid. However,
such a presumption is not conclusive. If the
record discloses that the court considered
irrelevant and improper matter in determining
the severity of the sentence, the presumption
of regularity is overcome, and the sentence is
in violation of defendant's rights.
State v. Boone
, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977).
Pursuant to the United State's Constitution a criminal
defendant has a right to a jury trial. U.S. Const. amend. VI.
Defendant relies on State v. Peterson
, where this Court remanded a
case for a new sentencing hearing after the judge repeatedly
commented about defendant's choice to exercise his constitutionally
protected right to a jury trial. State v. Peterson
, 154 N.C. App.
515, 571 S.E.2d 883 (2002).
However, in the present case, the record does not indicate
that the trial court improperly considered defendant's exercise of
his right to a jury trial in imposing an active sentence. The only
words of the trial court that defendant uses to support this
proposition is the trial judge saying, [H]ow is it that you could
come into court and try to convince this court . . . . After a
thorough review of the transcript and record we do not consider
this language nor any other statement by the trial court as
evidence that the court improperly considered defendant's exercise
of his right to a jury trial during the sentencing phase. This
assignment of error is without merit.
For the foregoing reasons we conclude that the trial court did
not commit plain error in instructing the jury and that the trialcourt did not improperly consider defendant's exercise of his right
to a jury trial when it imposed an active sentence.
Judges ELMORE and STEELMAN concur.
*** Converted from WordPerfect ***