No. 928SC1318 | N.C. Ct. App. | Jul 20, 1993
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion that the trial judge’s instruction established prejudicial error. Our Supreme Court stated in State v. Alston:
One of the cardinal rules governing appellate review of trial court instructions is that the charge will be read contextually and an excerpt will not be held prejudicial if a reading of the whole charge leaves no reasonable grounds to believe the jury was misled.
294 N.C. 577" court="N.C." date_filed="1978-04-17" href="https://app.midpage.ai/document/state-v-alston-1416881?utm_source=webapp" opinion_id="1416881">294 N.C. 577, 243 S.E.2d 354, 365 (1978). A new trial is not warranted by a mere acknowledgement of the expense and inconvenience of retrial in the jury instructions unless the charge as a whole is coercive. State v. Darden, 48 N.C. App. 128" court="N.C. Ct. App." date_filed="1980-08-05" href="https://app.midpage.ai/document/state-v-darden-1261396?utm_source=webapp" opinion_id="1261396">48 N.C. App. 128, 268 S.E.2d 225 (1980), State v. Jones, 47 N.C. App. 554" court="N.C. Ct. App." date_filed="1980-07-15" href="https://app.midpage.ai/document/state-v-jones-1261380?utm_source=webapp" opinion_id="1261380">47 N.C. App. 554, 268 S.E.2d 6 (1980).
In the case at hand, the sole basis for the majority opinion granting retrial is the isolated sentence, “[t]he main purpose of that is that it will be expensive again to have to get another jury to try this case over.” It is conceded that this sentence standing alone could seem undesirable. However, when viewed as a whole the overall effect of the instruction was to inform, not to coerce. Faced with a deadlocked jury, the judge gave the additional instruction to outline the present situation of the trial. The trial judge properly adhered to N.C.G.S. § 15A-1235(c) (1992) by clearly stating that jurors should not surrender their honest convictions. The trial judge properly stated in cautionary language that he did not intend to coerce a verdict. Emphasis was placed on the importance of working towards agreement, but not necessarily reaching one.
In Jones, the Court found no error in the following instruction when the jury failed to agree:
that if this case is not brought to a verdict as I previously instructed you that another judge and another jury in another week will try this case again.
47 N.C. App. 554" court="N.C. Ct. App." date_filed="1980-07-15" href="https://app.midpage.ai/document/state-v-jones-1261380?utm_source=webapp" opinion_id="1261380">47 N.C. App. at 562-563, 268 S.E.2d at 11. Neither was error found in Darden where a similar instruction was at issue. 48 N.C. App. 128" court="N.C. Ct. App." date_filed="1980-08-05" href="https://app.midpage.ai/document/state-v-darden-1261396?utm_source=webapp" opinion_id="1261396">48 N.C. App. at 134, 268 S.E.2d at 227. The trial judge stated to a deadlocked jury:
I presume that you realize what a disagreement means: it means that more time of the court will have to be consumed in the trial of this action again.
The sentence stressed by the majority is not coercive when the instructions are reviewed in their entirety. Upon careful review of the record, I would affirm the decision of the trial court and find no prejudicial error. Therefore I respectfully dissent.
Lead Opinion
In his first assignment of error defendant argues that the trial court erred by “instructing the jury, as part of an anti-deadlock instruction, that ‘the main purpose’ of trying to reconcile differences in further deliberations was to avoid an expensive retrial.” We agree.
The trial judge’s instruction that the jury should try to reconcile its differences because of the expense of a retrial, given after the foreperson announced they were unable to agree, constituted prejudicial error under opinions of both our Supreme Court and this Court. E.g. State v. Lipford, 302 N.C. 391" court="N.C." date_filed="1981-03-11" href="https://app.midpage.ai/document/state-v-lipfird-1252124?utm_source=webapp" opinion_id="1252124">302 N.C. 391, 276 S.E.2d 161 (1981); State v. Easterling, 300 N.C. 594" court="N.C." date_filed="1980-07-15" href="https://app.midpage.ai/document/state-v-easterling-1261679?utm_source=webapp" opinion_id="1261679">300 N.C. 594, 268 S.E.2d 800 (1980); and State v. Johnson, 80 N.C. App. 311, 341 S.E.2d 770 (1986). Accordingly, defendant must receive a new trial.
We do not address the defendant’s remaining arguments as they may not arise at retrial.
New trial.