State v. Peek
| Decision Date | 02 April 1985 |
| Docket Number | No. 117A84,117A84 |
| Citation | 328 S.E.2d 249,313 N.C. 266 |
| Parties | STATE of North Carolina v. James Walter PEEK. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by Roy A. Giles, Jr., Asst. Atty. Gen., for the State.
Adam Stein, Appellate Defender by David W. Dorey, Asst. Appellate Defender
and Louis D. Bilionis, Sp. Asst. to the Appellate Defender, for defendant-appellant.
By his first assignment of error, defendant contends the trial judge prejudicially erred in his instructions to the jury when the jury foreman told him the jury was having trouble reaching a unanimous verdict. We do not agree.
The jury began its deliberations at 11:55 a.m. and continued until 12:35 p.m. when the court recessed for lunch. After having resumed deliberations at 2:00 p.m., the jury returned to the courtroom at 3:13 p.m. at which time the following transpired:
If you feel like you're deadlocked, that's not--that's not something that's the end of the world if you're not hopelessly deadlocked; that's the key.
Defendant contends that the trial court erred in failing to instruct the jury in accordance with N.C.G.S. § 15A-1235, which provides in pertinent part:
§ 15A-1235. Length of deliberations; deadlocked jury.
(a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.
(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:
(1) Jurors have a 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;
(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(c) If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
N.C.Gen.Stat. § 15A-1235 (1983). (Emphasis added.)
It is defendant's contention that the trial judge's failure to instruct the jury in accordance with N.C.G.S. § 15A-1235 entitles him to a new trial because the instruction the trial judge gave had the effect of forcing the jury to reach a verdict. Citing State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980), defendant would have us adopt a rule requiring verbatim instructions from the statute in every instance of potential jury deadlock.
In Easterling, we interpreted N.C.G.S. § 15A-1235 as "the proper reference for standards applicable to charges which may be given a jury that is apparently unable to reach a verdict." Id. at 608, 268 S.E.2d at 809. In that case we held that in view of the legislative intent in establishing the guidelines in N.C.G.S. § 15A-1235, it was error for a trial court in its jury instructions to mention the time and expense required to retry a case after a jury deadlock. We recognized, however, that every variance from the procedures set forth in the statute does not require the granting of a new trial. We held that the erroneous instruction in Easterling was not prejudicial since the jury did not appear to be deadlocked and the charge was not unduly coercive. Id.
Nonetheless, this Court issued the following warning to the trial bench:
Clear violations of the procedural safeguards contained in G.S. § 15A-1235 cannot be lightly tolerated by the appellate division. Indeed, it should be the rule rather than the exception that a disregard of the guidelines established in the statute will require a finding on appeal of prejudicial error.
Id. at 609, 268 S.E.2d at 809-10.
We find no such clear violation of the procedural safeguards of N.C.G.S. § 15A-1235 in this case. We note that the language of the statute is permissive rather than mandatory--a judge "may" give or repeat the instructions in N.C.G.S. § 15A-1235(a) and (b) if it appears to the judge that a jury is unable to agree. N.C.Gen.Stat. § 15A-1235(c) (1983). See Felton v. Felton, 213 N.C. 194, 195 S.E. 533 (1938) (). Furthermore, it has long been the rule in this State that in deciding whether a court's instructions force a verdict or merely serve as a catalyst for further deliberations, an appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978).
In the case before us the jury had been deliberating less than two hours when it reentered the courtroom. The jury foreman and other members of the panel appeared to believe that the jury was not hopelessly deadlocked. See Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980) (). Furthermore, although the instructions do not precisely follow the guidelines set forth in N.C.G.S. § 15A-1235, the essence of the instructions was merely to ask the jury to continue to deliberate. The instructions in no way contained any element of coercion that would warrant a new trial in this matter. Indeed we note that the effect of the instructions was not so coercive as to impel defendant's trial counsel to object to the instructions. We hold that the trial judge did not prejudicially err in his instructions, and this assignment of error is overruled.
Defendant next assigns as error the trial court's instruction to the jury relating to his character. He contends that the trial judge's instruction was erroneous because it did not inform the jury that the character evidence could be considered both as substantive evidence and as evidence relating to defendant's credibility. Although defendant requested no instruction on the character evidence, the trial judge instructed as follows:
Evidence in this case was received in regard to the defendant's reputation and character that is. [sic] That he served honorably in the United States Marine Corps; that he fought for his country; that he is employed; in the area that he works and lives, that he has a good reputation.
Although good character and good reputation is not an excuse for a crime, the law recognizes that a person of good character may be less likely to commit a crime than one who lacks that character.
Therefore, if you believe from the evidence that the defendant has a good character, you may consider this fact in your determination of his guilt or his innocence. Give it such weight as he [sic] decide it should receive in connection with all other evidence.
Defendant argues that the prosecuting witness's credibility as compared with defendant's was the crucial issue in the case, and the judge's failure to inform the jury that it could consider defendant's evidence of good character for purposes of determining credibility entitled defendant to a new trial. We disagree.
It is true that when a defendant offers evidence of his good character and testifies in his own behalf, he is entitled to have the jury consider it as bearing on his credibility as a witness and as substantive evidence bearing directly on the issue of his guilt or innocence. State v. Wortham, 240 N.C. 132, 81 S.E.2d 254 (1954). When a defendant who has testified in his own behalf offers evidence as to his good general reputation, and the court undertakes to instruct the jury as to the legal significance of such character evidence and how it should be considered by the jury, incomplete instructions have been found to be sufficient grounds for a new trial. State v. Burell, 252 N.C. 115, 113 S.E.2d 16 (1960).
In this case, however, evidence pertaining to defendant's character did not rise to the level of competent character evidence. At the time of this trial, the rule in North Carolina was that a defendant's character could be proved by testimony concerning "his general reputation, held by an appreciable group of people who have had adequate basis upon which to form their opinion." 1 State v. McEachern, 283 N.C. 57, 67, 194 S.E.2d 787, 793-94 (1973).
It was well settled that such character evidence could not be a witness's personal opinion. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980); State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978). In Williams the witness stated that he "had not never seen anything that...
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