State v. Gresham

• Decision Date: 05 October 1976
• Docket Number: No. 26,26
• Citation: 290 N.C. 761,228 S.E.2d 244
• Parties: STATE of North Carolina v. Bobby W. GRESHAM.
• Court: North Carolina Supreme Court

Page 244

228 S.E.2d 244

290 N.C. 761

STATE of North Carolina v. Bobby W. GRESHAM.

No. 26.

Supreme Court of North Carolina.

Oct. 5, 1976.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Bailey & Gaylor, by Edward G. Bailey, Jacksonville, for defendant appellant.

BRANCH, Justice.

The single question presented by this appeal is whether the trial judge's additional instructions coerced the verdict of the jury.

The jurors returned to the courtroom about one hour after the case had been submitted to them and through their foreman indicated that they had been unable to reach a unanimous verdict and that the numerical division among the juros was ten to two. At that time, the trial judge charged:

COURT: Be seated, please. Ladies and gentlemen of the jury, I presume that the twelve of you realize what a disagreement means. In the Court's opinion you have not been deliberating for an unreasonable length of time for this case, not over an hour and fifteen minutes at the most. Stating that you have been unable to arrive at a verdict means, of course, that if this case is not tried, it will be another week of court that will have to be consumed for the trial of this case again. I'm not making an effort to force you or to coerce you in any way to reach a verdict, but it is my duty to tell you that it is the duty of the jurors to try to reconcile their differences and reach a verdict if they can do so without surrender of their conscientious convictions. And, as I originally told you, it is not well for a juror to take an adamant position at the commencement of the deliberations for which they say they will not recede under any circumstances after consulting with the other members of the jury. A jury is a deliberative body.

You have heard the evidence in this case. You have had the benefit of all the evidence and you have heard the arguments and contentions of the attorneys. If this Court is required to declare a mistrial, it will mean that another jury will have to be selected to hear this case and this evidence again and to ultimately decide the very thing that it is your responsibility to decide at this time, if you can do so.

I recognize, of course, that there are times when individual jurors cannot agree. I want to emphasize the fact that it is the duty of the jurors to do whatever they can to resolve their differences as reasonable men and women and to reconcile them to the end that they arrive at the truth as a composite body and to reach a verdict, if you can possibly do so without violence to your individual judgment and conscience.

I remind you again, ladies and gentlemen of the jury, that your decision in this case is not to be based on sympathy, bias or prejudice, but is to be based upon the evidence that you have heard under oath which you believe and the Court's charge as to the law.

You may retire and continue your deliberations.

At 6:30 p.m., approximately one hour later, the court asked that the jury be returned to the courtroom. The jury returned and in response to the court's inquiry the jury foreman indicated that no progress had been made toward reaching a unanimous verdict. After stating to the jurors that so far as he knew they had the benefit of all available evidence and that failure to reach a verdict would require another trial at added expense to the County, Judge Martin stated:

I am asking you as a jury of twelve to consider the views of all the members of the jury. I might say to you, ladies and gentlemen of the jury, there is no reason to hurry in this case. Today is only Thursday. You can take as much time as you desire in this matter and deliberate and discuss the case as long as you desire. If you become hungry, we will sit down for food. If you become sleepy, we will rest. I want to emphasize the fact that it is the duty of the jurors to do whatever they can reason the matter all together as reasonable men and women and to reconcile their differences.

Ladies and gentlemen of the jury, I will let you retire and resume your deliberations.

The jury retired and on the same evening returned its verdicts. The record does not reveal the hour at which the verdicts were returned.

This Court has held that it is not error for the trial judge to additionally instruct a jury that the trial of a case involved heavy expense to the County and that it was the duty of the jury to continue its deliberations and to attempt to reach an agreement. State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552. Nor is it error for the trial judge to instruct the jury that so far as he knows all available evidence is before them for their consideration. State v. Brown, 280 N.C. 588, 187 S.E.2d 85, Cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121. Our Court has also ruled that a statement contained in an additional instruction that 'we have until Friday night for you to work on this case and no reason to hurry the matter' was not coercive but was merely an assurance that the jury had ample time to deliberate. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652. The essence of both of Judge Martin's additional instructions was that it was the duty of the jury to reach a verdict and their failure to do so would result in a retrial of the same cause at heavy expense to the County. In his charge, he assured the jury that they had ample time to deliberate. We see nothing in the additional instructions which intimates what verdict the judge thought was proper or deprived the jurors of 'that freedom of thought and of action so very essential to a calm, fair and...