Opinion
No. 8520SC1294
Filed 20 May 1986
1. Criminal Law 101.4 — inquiry into numerical division of jury — no error The trial court's inquiry into the numerical division of the jury during deliberation was not coercive where the judge did not speak of leaning on the jury or urge the jury into further deliberation.
2. Criminal Law 101.4 — court's inquiry of jury — no error There was no merit to defendant's contention that the trial court erred by engaging in a colloquy with the jury foreman in the absence of other jury members, since the transcript showed that the entire jury was present, and the court inquired whether the jury was making progress in its deliberations and desired to take a break.
APPEAL by defendant from John, Judge. Judgment entered 22 February 1985 in Superior Court, ANSON County. Heard in the Court of Appeals 12 May 1986.
Attorney General Lacy H. Thornburg, by Assistant Attorney General Thomas H. Davis, Jr., for the State.
Assistant Appellate Defender Daniel R. Pollitt for defendant, appellant.
Judge COZORT concurring in the result.
Judge EAGLES joins in the concurring opinion.
Defendant was charged in proper bills of indictment with sale and delivery of marijuana and possession with the intent to sell and deliver marijuana. The State presented evidence at trial tending to show that at about 6:50 p.m. on 16 March 1983 an undercover agent and a confidential informer went to defendant's house and purchased two $25.00 bags of marijuana. Defendant was found guilty of sale and delivery of marijuana and possession with the intent to sell and deliver marijuana, and the charges were consolidated for sentencing. From a judgment imposing a two-year prison sentence, defendant appealed.
Defendant brings forward two arguments on appeal. First, defendant contends that the trial court's inquiry as to the numerical division of the jury during deliberation was coercive and violative of defendant's right to trial by jury.
In State v. Yarborough, 64 N.C. App. 500, 307 S.E.2d 794 (1983), this Court set out the standard of review in cases where the trial judge inquired into the numerical division of the jury. In Yarborough, we noted that an inquiry into the numerical division can be useful in certain circumstances and unconstitutionally coercive in others. We held that an appellate court reviewing an inquiry into the numerical division of a jury must determine in the context of the totality of the circumstances whether the trial judge's inquiry was coercive or whether the jury's decision was in any way affected by the inquiry.
In the case at hand, the trial judge merely inquired into the numerical division. Unlike in State v. McEntire, 71 N.C. App. 720 323 S.E.2d 439 (1984), the trial judge did not speak of leaning on the jury or urge the jury into further deliberation. From the totality of the circumstances, we find no coercion and no error in the trial judge's inquiry.
Citing State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985) defendant contends that the trial court erred by engaging in a colloquy with the jury foreman in the absence of the other jury members. Unfortunately, the State accepted without question defendant's assertion that the colloquy occurred with the foreman alone in the absence of the entire petit jury. The transcript discloses that the colloquy occurred in the presence of the jury not just the foreman:
(AT 6:10 P.M., THE COURT DIRECTED THE BAILIFF TO KNOCK ON THE DOOR TO THE JURY ROOM AND INSTRUCT THE JURY TO STOP THEIR DELIBERATIONS AND RETURN TO THE COURTROOM)
(THE JURY RETURNED TO THE COURTROOM)
COURT: I want to make an inquiry, Mr. Foreman, as to whether you feel you are making some progress in your deliberations?
FOREMAN: I think we are now.
COURT: Would it be your pleasure at this point to continue your deliberations for a while or to take a break?
FOREMAN: About 10 more minutes one way or the other.
COURT: All right. If you reach a point where you want a break and feel like you need a break, knock on the door and let us know.
FOREMAN: If the issue comes up again, is there some way we could get a clarification?
COURT: As to the Court's instructions? I can repeat a portion of it, if you request it. You will have to have a specific request.
FOREMAN: Let me talk to them about it.
(THE JURY RETURNED TO THE JURY ROOM)
This assignment of error is frivolous.
We hold that defendant received a fair trial free from prejudicial error.
NO error.
Judges EAGLES and COZORT concur in the result.