Appeal by defendant from judgments entered 11 August 2006 by
Judge W. Douglas Albright in Guilford County Superior Court. Heard
in the Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
Terry W. Alford for defendant-appellant.
On 19 September 2005, George Alexander Matthews, Sr.
(defendant) was indicted for driving while impaired, driving while
license revoked, and habitual impaired driving. Prior to trial,
defendant pled guilty to driving while license revoked. At trial
defendant admitted his three prior convictions for purposes of the
habitual impaired driving offense, and was convicted by the jury of
driving while impaired. The trial court consolidated the driving
while impaired and habitual impaired driving offenses and sentenced
defendant to an active term of twenty to twenty-four months
imprisonment. Defendant was further sentenced to 120 days
imprisonment for the offense of driving while license revoked.
Defendant appeals. The State's evidence tends to show: on 30 April 2005 State
Highway Patrol Officer H.S. Martin (Martin) stopped defendant for
speeding. As Martin approached defendant's motorcycle, he detected
a strong odor of alcohol emanating from defendant, and observed
defendant had red, glassy eyes and slurred speech. Martin arrested
defendant for impaired driving, and a breathalyzer test revealed
defendant had a blood alcohol content of 0.22.
presents the issues of whether the trial court erred
(I) failing to hold a competency hearing sua sponte
start of the trial; and (II) denying defendant's motion for a
mistrial after the jury deadlocked at eleven jurors to one. We
first note that defendant has also assigned error to the denial of
his motion to dismiss the charge at the close of the State's
evidence. Defendant stipulates in his brief, however, that he is
abandoning this assignment of error and we consider it so
abandoned. N.C. R. App. P. 28(b)(6).
Defendant's first argument that the trial court should have
held a competency hearing stems from his contention he was under
the influence of heavy pain medication and was confused in the
courtroom. N.C. Gen. Stat. § 15A-1001(a) states:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
reasonable manner. This condition ishereinafter referred to as incapacity to
N.C. Gen. Stat. § 15A-1001(a) (2005). The trial court has a
constitutional duty to institute, sua sponte
, a competency hearing
if there is substantial evidence before the court
the accused may be mentally incompetent. State v. McRae
, 139 N.C.
App. 387, 390, 533 S.E.2d 557, 559 (2000) (citations and quotations
omitted) (emphasis in original). [I]t is well established that
significant weight is afforded to a defense counsel's
representation that his client is competent. State v. McRae
N.C. App. 359, 369, 594 S.E.2d 71, 78 (citations omitted), appeal
dismissed and disc. review denied
, 358 N.C. 548, 599 S.E.2d 910
(2004). A trial court's conclusion that a defendant is competent
to stand trial will be upheld as long as it is supported by
competent evidence. State v. Staten
, 172 N.C. App. 673, 678, 616
S.E.2d 650, 654, appeal dismissed and disc. review denied
, 360 N.C.
180, 626 S.E.2d 838 (2005), cert. denied
, 547 U.S. 1081, 164 L. Ed.
2d 537 (2006).
The matter came on for hearing on 8 August 2006. Defense
counsel informed the trial court that she understood defendant was
on some pretty heavy medications and that defendant was almost
asleep. The trial court ordered defendant into custody and asked
for a doctor or a nurse to evaluate defendant and report back to
the court. The following day the case resumed and the trial court
adjudicated defendant's guilty plea to the charge of driving while
license revoked. Defense counsel related to the court thatdefendant had been on oxycodone, a pain killer, the previous day.
The following exchange then took place just after 11:30 a.m.:
THE COURT: . . . Does he make any contention
that he is presently impaired either as to his
mental or physical faculties by ingesting this
[DEFENSE COUNSEL]: Your Honor, I don't think
he's had the oxycodone today. I think this
morning they gave him a strong dosage of
THE COURT: All right.
[DEFENSE COUNSEL]: He said he took that at
about five a.m. He certainly -
THE COURT: Tylenol is another pain killer.
[DEFENSE COUNSEL]: Right, Your Honor.
Apparently that's what they gave him at the
THE COURT: Mr. Matthews, yesterday you didn't
look in such good shape. I had the nurse look
at you; she's filed a report. Today you look
just fine. I mean, I see you've got a bandage
on your leg and you've got - you've got some
right bad skinned-up place on your arm, but
you - you look to be - you know, to my view,
you look to be in full possession of your
mental and physical faculties. Are you making
any contention that you are in any way
impaired by drugs?
THE DEFENDANT: No, sir.
THE COURT: All right. Does - does counsel
notice anything that would suggest impairment
[DEFENSE COUNSEL]: No, Your Honor, he seems to
be as -
THE COURT: All right. The Court will find that
he is in full possession of his mental and
physical faculties at this time and is not
impaired in any degree by any - any medication
or pills or medicines or any other impairingsubstances, and is capable of proceeding in
Although defendant claims he exhibited confusion and that his
need for medical attention demonstrates substantial evidence
requiring a competency hearing, the above exchange shows the trial
court had sufficient basis for declaring defendant competent to
stand trial. The trial court was able to observe defendant's
demeanor both on 8 August when defendant was on oxycodone, and 9
August when he was on Tylenol. The trial court questioned
defendant and defense counsel as to defendant's competency and
neither one expressed any concern about defendant's competency at
that point. In light of the evidence supporting the trial court's
decision, we are unable to say the trial court erred in determining
defendant was fit to stand trial. Accordingly, this assignment of
error is overruled.
Defendant next assigns error to the trial court's failure to
declare a mistrial after the jury informed the court of a potential
deadlock. A criminal defendant has an absolute right to a fair
trial. State v. Jones
, 292 N.C. 513, 521, 234 S.E.2d 555, 559
(1977). A trial court may not coerce a jury into reaching a
verdict and any instruction that might reasonably be construed by
a juror as requiring him to surrender his well-founded convictions
or judgment to the views of the majority is erroneous. State v.
295 N.C. 608, 614, 247 S.E.2d 888, 892 (1978) (citations
omitted). In determining whether a trial court has impermissibly
coerced a jury into a verdict, we must look to the totality of thecircumstances. State v. Dexter
, 151 N.C. App. 430, 433, 566 S.E.2d
493, 496, aff'd per curiam
, 356 N.C. 604, 572 S.E.2d 782 (2002).
The jury deliberated for approximately two hours before
sending a note out to the trial judge stating that the jury was at
an impasse. The trial court brought the jury into the courtroom
and questioned the foreman as follows:
THE COURT: . . . Based on the - based on the -
your statement, then, is it your opinion that
the jury is presently deadlocked?
FOREMAN: Yes, sir.
THE COURT: In your opinion as foreman of the
jury, is the jury hopelessly deadlocked?
FOREMAN: No, sir.
THE COURT: Is it your opinion that further
deliberations may be helpful?
The trial court asked the foreman for the division and was
informed the jury was divided eleven to one. The court then gave
the following instructions to the jury:
Okay. Members of the jury, members of the
jury, your foreman informs me that so far you
have been unable to agree upon a verdict and
that you are presently deadlocked.
The Court wants to emphasize the fact that it
is your duty to do whatever you can to reach a
verdict. You, the jury, should reason the
matter over together as reasonable men and
women and reconcile your differences, if you
can, without the surrender of conscientious
Now, I'm going to give you some additional
instructions, and then I'm going to ask you to
resume your deliberations in an attempt to
return a verdict. We have plenty of time.
I've already instructed you, of course, that
your verdict must be unanimous; that is, each
of you must agree on the verdict. Let me give
you these additional instructions.
First, it is your 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.
Second, of course each of you must decide the
case for yourself, but only after an impartial
consideration of the evidence with your fellow
Thirdly, in the course of your deliberations
you should not hesitate to reexamine your own
views and change your opinion if you become
convinced it is erroneous. On the other hand,
you should not hesitate to hold your own views
and opinions if you remain convinced that they
And fourthly and finally, I'll simply point
out that none of you should surrender an
honest conviction as to the weight or effect
of the evidence solely because of the opinion
of your fellow jurors or for the mere purpose
of returning a verdict.
Now, please be mindful that I'm in no way
trying to force you or coerce you to reach a
verdict. I've been doing this a long time and
I recognize the fact that there are simply
sometimes reasons why jurors cannot agree. But
through these additional instructions that
I've given to you, I merely want to emphasize
that is your duty to do whatever you can to
reason the matter over together as reasonable
people and reconcile your differences if such
is possible without the surrender of
conscientious convictions and to reach a
Defendant did not object to these instructions. The jury
spent another half hour deliberating before reaching a verdict of
guilty on the charge of impaired driving. The trial court accepted
the verdict. Defendant argues the trial court's comments emphasizing the
jury's duty to reach a verdict and that the jury had plenty of
time were coercive, particularly where only one juror dissented
from the rest of the jury. We disagree. The above charge to the
jury is consistent with the instructions in N.C. Gen. Stat. § 15A-
1235, which provides guidance on instructions to a potentially
deadlocked jury and has been upheld numerous times. E.g., State v.
, 315 N.C. 310, 325-27, 338 S.E.2d 75, 84-85 (1986). These
instructions need not be delivered verbatim from the language of
the statute. State v. Jeffries
, 57 N.C. App. 416, 421, 291 S.E.2d
859, 862, appeal dismissed and disc. review denied
, 306 N.C. 561,
294 S.E.2d 374 (1982).
We find the jury charge taken as a whole is
not impermissibly coercive where the trial judge properly used the
statutory guidelines and stated more than once that a juror should
not surrender a conscientious conviction for the purpose of
returning a verdict or merely to follow the opinions of the other
jurors. In addition, the court's statement that [w]e have plenty
of time does not constitute error. See State v. Porter
, 340 N.C.
320, 335-37, 457 S.E.2d 716, 724-25 (1995) (no error where trial
court told jury, we've got all the time in the world).
Accordingly, the trial court did not commit error by not declaring
For the foregoing reasons, we hold defendant's trial was held
free from error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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