State v. Cousin
| Decision Date | 14 April 1977 |
| Docket Number | No. 39,39 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Michael COUSIN. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Barry T. Winston, Chapel Hill, for defendant.
Defendant contends that the trial judge violated the provisions of G.S. 1-180 by expressing an opinion in that he incorrectly charged the jury as to the reason the State did not seek a verdict of murder in the first degree.
Defendant relies on the well-recognized rule that every person charged with a crime has a right to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Canipe, 240 N.C. 60, 81 S.E.2d 173. G.S. 1-180 forbids any intimation of the trial judge's opinion in any form whatsoever. State v. Simpson, 233 N.C. 438, 64 S.E.2d 568.
Before the introduction of evidence in instant case Mr. Wannamaker, the Assistant District Attorney, read the bill of indictment charging defendant with murder in the first degree and stated:
Let me announce at the outset, Your Honor, that the State is pursuing this offense in the form of second degree murder. . . .
Defense counsel, without any objection or request for clarification as to the reason the State so proceeded, entered a plea of not guilty to the charge of second-degree murder.
Judge Preston commenced his charge to the jury by stating:
Ladies and Gentlemen of the Jury:
The defendant, Michael Cousin, is being tried by the State of North Carolina upon a bill of indictment returned by the Grand Jury of Orange County charging said defendant with the offense of first degree murder, this offense alleged to have occurred in this county on the 2nd day of March, 1975.
At the outset of this trial, the District Attorney announced that the State would not seek a verdict of guilty of first degree murder but that the State would place the defendant on trial and seek a verdict of guilty of the crime of second degree murder.
Defense counsel at this point did not object or request any clarification of the introductory instruction.
It is true that defendant's prior conviction of second-degree murder upon a bill of indictment charging murder in the first degree was an implicit acquittal of the charge of murder in the first degree precluding a second trial on that charge. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; State v. Pearce, 266 N.C. 234, 145 S.E.2d 918; State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838. This record does not disclose that Judge Preston expressed an opinion as to the reason the State proceeded on the charge of murder in the second degree. To the contrary, the judge's initial instruction was merely an introductory repetition of the District Attorney's unchallenged statement concerning the charge upon which the State would proceed.
The purposes of the trial judge's charge to the jury are to clarify the issues, eliminate extraneous matters and declare and explain the law arising on the evidence. 7 N.C. Index 2d, Trial, § 32. Obviously, the instruction was given for the purpose of clarifying and arraying the matters which the jury should consider so that the law could be concisely declared and applied to the facts of the case.
We hold that the trial judge did not express an opinion in the challenged instruction.
Defendant next argues that Judge Preston coerced a verdict against him by charging the jury as to the amount of time they had to deliberate. We disagree.
The trial judge has no right to coerce a verdict or in any way to intimidate a jury. A charge which might be reasonably construed by a juror as requiring him to surrender his well-founded convictions or his own will or judgment to the views of the majority is erroneous. State v. Roberts,270 N.C. 449, 154 S.E.2d 536; State v. McKissick, 268 N.C. 411, 150 S.E.2d 767. On the other hand, we have held that an instruction that "we have until Friday night for you to work on this case and no reason to hurry the matter" was not coercive. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652. See also State v. Gresham, 290 N.C. 761, 228 S.E.2d 244; State v. Green, 246 N.C. 717, 100 S.E.2d 52.
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Williams v. Branker
...as we must the circumstances under which the erroneous instruction was given and its probable impact upon the jury, seeState v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977), we do not think defendant in the instant case has met his burden of showing prejudice. The record provides not the sli......
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State v. Hill
...the rule that the jury charge should clarify the issues, explain the law, and eliminate confusion of the jury. State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977). The trial court properly instructed the jury on the use of the evidence of the defendant's flight from the crime scene. Nothin......
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State v. Sturdivant, 1
...not be held prejudicial if the charge as a whole is correct. State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980); State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977). Here, the judge twice quoted the precise language of the applicable statute, G.S. 14-27.2(a)(1)(a), when he should have ......
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State v. Arnold
...Amendments to the Federal Constitution. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); see also State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977); see generally 21 Am.Jur.2d Criminal Law §§ 270, 319 (1981). Furthermore, the defendant may not be retried for second d......