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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1657


Filed: 2 October 2007


     v.                            Guilford County
                                Nos. 04 CRS 96609-10,
JULIAN GABRIEL SMITH,                    05 CRS 24018

    Appeal by defendant from judgment entered 16 June 2005 by Judge Edwin Wilson in Guilford County Superior Court. Heard in the Court of Appeals 24 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Gregory P. Roney, for the State.

    Walter L. Jones for defendant-appellant.

    BRYANT, Judge.

    Julian Gabriel Smith (defendant) appeals from a 16 June 2005 judgment entered consistent with jury verdicts finding him guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and attempted discharge of a weapon into occupied property. For the reasons stated herein, we find defendant received a trial free from error.
    The record shows that the jury returned to the courtroom after retiring to deliberate. The following transpired:
        THE COURT: Would the person selected as your foreperson please stand. ... Madam Foreperson, please answer this question yes or no. Has the Jury reached a unanimous verdict as to each charge?

        JURY FOREPERSON: Yes, we have.
        THE COURT: Have you signed and dated the verdict sheet?

        JURY FOREPERSON: Yes, I have.

        THE COURT: Please hand the verdict form to the bailiff who will bring it to me.


        THE COURT: You may be seated. Thank you.

        All right. Defendant will rise.

        Madam Clerk, you may take the verdict of the jury.

        THE CLERK: Members of the jury, you have agreed upon     your verdict. You say you find the defendant, Julian Gabriel Smith, in case No. 04 CrS 96609, not guilty of robbery with a dangerous weapon, in case No. 04 CrS 96610 ___

        JUROR #12: That is wrong.

        JURY FOREPERSON: We put “guilty.”

        THE CLERK: Excuse me?

        JURY FOREPERSON: That is wrong.

        THE COURT: We'll _ read through them all, and then we'll come back.

        THE CLERK: In case No. 04 CrS 96610, you say you find the defendant guilty of attempted discharge weapon into occupied property. In case No. 05 CrS 24018, you say you find the defendant guilty of conspiracy, robbery with dangerous weapon.

        Are these your verdicts?

        JUROR #12: No.

        JUROR #4: The latter two are.

        JURY FOREPERSON: May I speak?

        THE COURT: All right. What I'll do _ there's some indication you've returned _ can I see those, please?
        THE CLERK: Yes, sir.

        THE COURT: I'm going to reread these. 04 CrS 96609, there's an indication that you found the defendant _ that's the charge of robbery with a dangerous weapon _ that you found the defendant not guilty. On the charge 04 CrS 96610, there's an indication that you found the defendant guilty of attempted discharge of [a] weapon into occupied property. And on 05 CrS 24018, there's an indication that you found the defendant guilty of conspiracy to commit robbery with a dangerous weapon.

        Counsel approach.

        (Sidebar conference)

        THE COURT: Is that not you-all's verdict? Raise your hand, if those three verdicts taken as a whole are not your verdict.

        (All 12 jurors raised their hands)

        THE COURT: All right. I'll ask you-all to return to the jury room.

    After the jury left the courtroom, the court proposed to the parties that it would give the jurors three clean new verdict sheets and ask them to resume their deliberations. Defendant moved for a mistrial. The court denied the motion and supplied new verdict sheets to the members of the jury. The jury ultimately returned verdicts of guilty on all three charges against defendant.

    By his sole assignment of error defendant contends the trial court committed reversible error by denying defendant's motion for mistrial. “[A] judge may declare a mistrial if: (1) [i]t is impossible for the trial to proceed in conformity with law; or (2) [i]t appears there is no reasonable probability of the jury's agreement upon a verdict.” N.C. Gen. Stat. § 15A-1063 (2005). Appellate review of a judge's decision whether or not to grant a mistrial is for abuse of discretion. State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992). “A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985), rev'd on other grounds, 323 N.C. 306, 372 S.E.2d 704 (1988).
    The rationale for requiring a written jury verdict is “to cure defects that would occur in the verdict if the jury foreman inadvertently omitted some essential element of a verdict in stating it orally.” State v. Smith, 299 N.C. 533, 536, 263 S.E.2d 563, 565 (1980). The requirement of a written verdict, however, “does not bar inquiry from the court or a polling of the jury to insure that the written verdict is sufficiently clear and free from doubt.” Id. Indeed, the jury may be polled upon motion of a party or the court pursuant to N.C. Gen. Stat. § 15A-1238. Id. The purpose of polling of the jury is to determine whether the announced verdict of the jury is actually the jury's unanimous verdict. N.C. Gen. Stat. § 15A-1238 (2005). “If upon the poll there is not unanimous concurrence, the jury must be directed to retire for further deliberations.” Id.
    In the case at bar, the court received and read the verdicts, polled the jurors to determine whether those verdicts were in fact their verdicts, and upon determining that those verdicts were not their verdicts, the court directed the jurors to deliberatefurther. We conclude the court acted in accordance with N.C. Gen. Stat. § 15A-1238 and we find no abuse of discretion. We overrule defendant's assignment of error.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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