State v. Patterson

• Decision Date: 04 September 1992
• Docket Number: No. 325PA91,325PA91
• Citation: 420 S.E.2d 98,332 N.C. 409
• Court: North Carolina Supreme Court
• Parties: , 23 A.L.R.5th 917 STATE of North Carolina v. George Edward PATTERSON.

Page 98

420 S.E.2d 98

332 N.C. 409, 23 A.L.R.5th 917

STATE of North Carolina v. George Edward PATTERSON.

No. 325PA91.

Supreme Court of North Carolina.

Sept. 4, 1992.

On discretionary review of the decision of the Court of Appeals, 103 N.C.App. 195, 405 S.E.2d 200 (1991), finding no error in the defendant's trial or in the judgment entered on 28 August 1989 by Booker, J., in the Superior Court, Guilford County. Heard in the Supreme Court on 12 March 1992.

Lacy H. Thornburg, Atty. Gen. by Phillip A. Telfer, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Teresa A. McHugh and Mark D. Montgomery, Asst. Appellate Defenders, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was indicted for robbery with a firearm in violation of N.C.G.S. § 14-87. He was tried at the 21 August 1989 Criminal Session of Superior Court, Guilford County. The jury found the defendant guilty of robbery with a firearm, and the trial court entered judgment imposing a sentence of life imprisonment. The Court of Appeals found no error in the defendant's trial. On 7 November 1991, this Court entered its order allowing the defendant's petition for discretionary review.

The defendant brings forth several assignments of error for our review. First, he contends that the trial court erroneously inquired into the jury's division and then erroneously refused to grant a mistrial after it became clear that the jury was hopelessly deadlocked. Second, the defendant argues that the admission of composite drawings created by use of police "Identi-kit" procedures amounted to prejudicial error, since no proper foundation was laid and the drawings were inadmissible hearsay. Third, the defendant argues that he was prejudiced by testimony concerning police efforts to locate him, which were irrelevant to the issue of flight, and that the trial court's jury instruction on flight was not supported by the evidence. Finally, the defendant argues that the trial court's entry of judgment against him was void because he was not tried upon a proper indictment. We find the defendant's arguments without merit.

The State's evidence tended to show that two men robbed the Shoney's Restaurant on Randleman Road in Greensboro on 9 April 1977. Thomas Avant testified that he and the defendant agreed to rob the restaurant. They drove to the restaurant in Avant's girlfriend's car at about 1:00 or 2:00 a.m. on the morning in question. They entered the restaurant, where a supervisor asked what they were doing. Avant testified that either he or the defendant told the supervisor it was a "stick up" and ordered him to go into the restaurant office. The defendant was carrying a .22 caliber pistol. The manager was unable to open the safe in the office, and the defendant hit him on the head two or three times with the pistol. Avant went to the cash register and took out all the money. He and the defendant then put all the employees in a cold storage room and left.

Avant was arrested several days after the Shoney's robbery; he later pled guilty to several robbery charges. Avant testified that a week or two later he sent word to the defendant to get out of town. Thereafter, in hope of receiving help with regard to the charges and convictions against him, Avant told a detective with the Greensboro Police Department that the defendant had been his partner in the Shoney's Restaurant robbery.

Ralph Schultz testified that he was the manager present and in charge of the Shoney's Restaurant in question on the morning of 9 April 1977. Schultz unequivocally identified the defendant as one of the men who held him at length and then robbed him at gunpoint early that morning. He corroborated Avant's testimony as to what occurred during the robbery. Schultz testified that during the robbery the defendant hit him with a pistol and threatened to kill the employees.

Two or three weeks before trial, Schultz had been shown a photographic lineup that contained a picture of the defendant. He did not identify the photograph of the defendant as being the second robber with Avant. Schultz testified that the different angles and distances from which the pictures were taken confused him, but that he had recognized the defendant as the second robber as soon as the defendant walked into the courtroom.

Kenneth Baldwin and Earnest Hardy were also present in the restaurant when the robbery occurred. They both testified that although they could not positively identify the defendant as one of the robbers, there were some similarities in appearance, most notably a mark under the defendant's eye.

In his first assignment of error, the defendant contends that the trial court improperly coerced a verdict by inquiring into the numerical division of the jury and by refusing to grant a mistrial when the jury appeared deadlocked. The record indicates that the jury began its deliberations at 3:57 p.m. on 24 August 1989 and deliberated until court was adjourned for the evening at 5:06 p.m. The jury resumed its deliberations at 9:37 a.m. on 25 August 1989. Approximately ten minutes later, the jury asked to be allowed to examine certain exhibits. The jury returned to the courtroom at 9:56 a.m. to view the exhibits. The jury resumed its deliberations at 10:27 a.m. At 11:15 a.m., the jury sent a note to the trial court stating: "We are unable to reach a unanimous decision at this time."

Before bringing the jury back into the courtroom, the trial court heard from the prosecutor and counsel for the defendant. The prosecutor asked that the trial court instruct the jury in accord with the version of the "Allen charge" set forth in N.C.G.S. § 15A-1235 and allow the jury to continue to deliberate. Counsel for the defendant requested that the trial court inquire as to the numerical division of the jury without asking whether the majority was leaning toward conviction or acquittal. The trial court made the inquiry specifically requested by counsel for the defendant, and the jury indicated that it was divided eleven to one. The trial court then instructed the jury in accord with N.C.G.S. § 15A-1235, emphasizing five separate times that each juror was to abide by his or her conscientious conviction as to the weight or effect of the evidence. The jury returned to the jury room to resume its deliberations at 11:24 a.m.

At 11:55 a.m., the jury sent a note to the trial court stating: "We are hopelessly deadlocked. It does not appear that any time or further deliberations would change the existing vote." The defendant moved for a mistrial at that point. The trial court denied the motion and brought the jury back into the courtroom. The trial court expressed its appreciation for the work of the jury to that point and stated: "I think it would be to everyone's advantage, however, if you would continue your deliberations for some time yet. And this is not to put pressure on anybody to make any change." The trial court then recessed court for lunch, saying: "Perhaps a little bit of time away from the problem might be of some assistance."

After the lunch break, the trial court repeated the Allen charge and told the jurors they should "continue [their] deliberations for a while." The jury retired to the jury room for further deliberations and returned a verdict of guilty fifty-five minutes later. The jury was polled at the request of the defendant, and each juror expressed his or her individual assent to and agreement with the verdict.

By his first assignment of error, the defendant contends that the trial court improperly coerced the jury into returning a guilty verdict. The defendant argues that the actions of the trial court in coercing a verdict violated his right to trial by jury guaranteed by the Sixth Amendment to the Constitution of the United States and Article I, Section 24 of the Constitution of North Carolina. As the defendant failed to raise the federal constitutional issue at trial, however, he has waived any error in that regard and may not address it on appeal. State v. Bussey, 321 N.C. 92, 95, 361 S.E.2d 564, 566 (1987). We turn, then, to consider the defendant's arguments relating to the alleged error of the trial court in coercing a verdict in violation of the Constitution of North Carolina.

The defendant first argues in this regard that the trial court coerced a verdict by inquiring into the numerical division of the jury. The defendant specifically requested that the trial court make this inquiry. Therefore, any error in this regard was invited error which does not entitle the defendant to any relief and of which he will not be heard to complain on appeal. N.C.G.S. § 15A-1443(c) (1988); State v. Rivers, 324 N.C. 573, 380 S.E.2d 359 (1989).

The defendant next argues that the trial court improperly coerced a verdict by "refusing to grant a mistrial when the jury was deadlocked." It is well settled that Article I, Section 24 of the Constitution of North Carolina prohibits a trial court from coercing a jury to return a verdict. State v. Fowler, 312 N.C. 304, 322 S.E.2d 389 (1984). In determining whether a trial court's actions are coercive under this section of our Constitution, we must analyze the trial court's actions in light of the totality of the circumstances facing the trial court at the time it acted. Bussey, 321 N.C. at 96, 361 S.E.2d at 566. The record reveals that the jury in the present case deliberated for a total of less than four hours before returning its verdict. This certainly was not an inordinately long period for deliberations in a trial which lasted three days and involved a felony which could lead to a sentence of imprisonment for life. Further, when the trial court sent the jury back to the jury room for further deliberations, it instructed the jury strictly in accordance with N.C.G.S. § 15A-1235(c). On each such occasion, the trial court reminded jurors not to forsake their honest convictions arising from the evidence. The trial...