Opinion
No. COA08-1222.
Filed May 5, 2009.
Forsyth County Nos. 07 CRS 60857; 08 CRS 1585.
Appeal by defendant from judgment entered 8 May 2008 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 27 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Catherine F. Jordan, for the State. Geoffrey W. Hosford, for defendant-appellant.
Santos Ortego Smith ("defendant") appeals his convictions of taking indecent liberties with a child and first-degree sexual offense with a child under the age of thirteen. For the following reasons, we hold no error.
On the morning of 27 October 2007, defendant was at his girlfriend's house while she was at work. Defendant entered a bedroom where his girlfriend's eleven-year-old daughter was lying in bed and inserted his finger into her vagina. After the child took a shower and dressed, defendant followed her into her bedroom. He placed his hand inside her pants and inserted his finger into her vagina again. Defendant inserted his finger into the child's vagina a third time later that day. During one of these encounters defendant kissed the child on the neck. When the child's mother returned home later that day, the child told her that defendant had "touched [her] in a place [she] didn't want to be touched." The child's mother called the police.
The child underwent a sexual assault examination at the local hospital that evening. The examination revealed the child had some type of fluid on her neck and two areas of abrasions in her labia: one on the inner left upper labia minora, and the other on the right inner upper labia minora. The child had "quite a bit of redness through the labia minora." Her vagina was also tender to the touch. In the opinion of the family nurse practitioner who performed the examination, the injuries to the child's vagina were "consistent with some type of vaginal penetration."
A grand jury indicted defendant on 28 January 2008. He was tried May 5, to 8 May 2008. During jury deliberations, a juror handed the bailiff an envelope marked with the words "Anonymous concern" and asked the bailiff to give it to the judge. The judge opened the envelope in the presence of the parties. The note stated: "Anonymous concern. I believe a member of the jury is unable to remain impartial. She is basing her decision on a personal experience she shared with the jury." Defense counsel sought a mistrial, but the trial court denied the motion, opting to instruct the jury that one of its members had expressed concern that personal experiences might be playing a role in their deliberations. The court reminded the jurors that they were to base their verdict solely upon the evidence presented during the trial. The jury retired to resume deliberations.
After deliberating further, the jury sent a note signed by the foreman to the courtroom stating "11-1 deadlock." The judge indicated to the attorneys that he intended to give pattern instruction 101.40, "failure of the jury to reach a verdict." Neither the prosecutor nor defense attorney objected. The court then instructed the jurors that it was their "duty to do whatever you can to reach a verdict, and you should reason the matter over together as reasonable men and women, and reconcile your differences, if you can, without the surrender of conscientious convictions." The court additionally instructed the jurors that "no juror should surrender their honest convictions as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict." The jury took an early lunch and extended break.
Shortly after resuming deliberations, the jury reached a verdict, finding defendant guilty of taking indecent liberties with a child and first-degree sexual offense with a child under the age of thirteen. The offenses were consolidated for judgment. The trial court determined that defendant had a level IV prior record level and sentenced him in the presumptive range to a term of 307 to 378 months in the custody of the Department of Correction. Defendant appeals.
Defendant first argues that the trial court abused its discretion by denying his motion for a mistrial by failing to inquire of the jury as to their ability to remain fair and impartial. We disagree.
"The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2007). "Whether a motion for mistrial should be granted is a matter which rests within the sound discretion of the trial judge, and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (internal citations omitted).
Allegations of juror misconduct are determined by the facts present in each case; the trial judge is in a better position to investigate such allegations and make appropriate findings. Therefore, it is well settled that the trial court's determination on the question of juror misconduct will not be reversed on appeal unless it is clearly an abuse of discretion.
State v. Harris, 145 N.C. App. 570, 577, 551 S.E.2d 499, 504 (2001), disc. rev. denied and appeal dismissed, 355 N.C. 218, 560 S.E.2d 146 (2002) (citations omitted).
Here, upon receiving a juror's "anonymous concern," the trial court admonished the jury to base its verdict solely upon the evidence presented at trial. Defendant expressly assented to the instruction if the court denied to declare a mistrial. "Jurors are presumed to follow a trial court's instructions." State v. McCarver, 341 N.C. 364, 384, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996) (citation omitted). "When the trial court instructs the jury not to consider incompetent evidence, any prejudice is ordinarily cured." State v. Adams, 347 N.C. 48, 68, 490 S.E.2d 220, 230 (1997), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998) (citing State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991)).
Given the court's corrective action and the failure of the note to show that some conduct prejudicial to defendant in fact had taken place, the court had no obligation to conduct further inquiry. See State v. Coleman, 161 N.C. App. 224, 229, 587 S.E.2d 889, 893 (2003) (holding court's corrective instruction and ambiguity of note indicating a juror "was not following the law" did not mandate further inquiry). We conclude the court did not abuse its discretion by denying defendant's motion for a mistrial. See State v. Womble, 343 N.C. 667, 694, 473 S.E.2d 291, 307 (1996), cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719 (1997) (holding court did not abuse discretion by denying motion for mistrial when the court conducted appropriate inquiry into alleged juror misconduct and took corrective action). Accordingly, we overrule this assignment of error.
Defendant next argues that the trial court abused its discretion or committed plain error (1) by failing to declare a mistrial after receiving a note from the jury indicating it was deadlocked and (2) by instructing the jury pursuant to North Carolina General Statutes, section 15A-1235 regarding the duties of a deadlocked jury. The first issue has not been preserved for our review; we disagree with defendant's arguments as to the second issue.
By failing to move for a mistrial at trial, defendant waived his right to challenge on appeal the failure of the court to declare one. State v. Patterson, 149 N.C. App. 354, 361, 561 S.E.2d 321, 325 (2002) (citing N.C. R. App. P. 10(b)(1)). Our Supreme Court has refused to apply the plain error standard of review "to issues which fall within the realm of the trial court's discretion[.]" State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). Accordingly, plain error review of a court's failure to declare a mistrial is unavailable. State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004). Having failed to preserve this issue for our review, this assignment of error is dismissed.
However, plain error review is available for the court's action in giving the charge. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (adopting plain error standard of review with regard to instructional error to which no objection was taken at trial). "In order to prevail under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different verdict." State v. Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991) (citing State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d 288, 300 (1991)). The purpose of North Carolina General Statutes, section 15A-1235, from which the court's instruction was taken, is "to avoid coerced verdicts from jurors having a difficult time reaching a unanimous decision." State v. Evans, 346 N.C. 221, 227, 485 S.E.2d 271, 274 (1997), cert. denied, Gillis v. North Carolina, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998) (citation omitted). The decision whether to instruct the jury in accordance with section 15A-1235 is addressed to the discretion of the trial judge. State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986).
[I]t 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. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985) (citing State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978)). Circumstances to indicate that the court's instructions served as a catalyst for further deliberations as compared to a coerced verdict include the absence of any prior indication the jurors were hopelessly deadlocked, the lack of any language to suggest that jurors should surrender their beliefs in order to reach a verdict, the lack of any references to the expense and inconvenience of another trial, and the jury's ability to reach a verdict "without undue delay and also without unreasonable haste." State v. Fernandez, 346 N.C. 1, 22, 484 S.E.2d 350, 363 (1997).
Here, nothing suggests the jury was hopelessly deadlocked. The court's instructions advised the jurors of their duty to reach a consensus without sacrificing firmly-held beliefs merely for the sake of returning a verdict. The jury reached its verdict within thirty minutes after hearing the court's instructions. Therefore, we overrule this assignment of error.
All of defendant's other assignments of error not set forth in his brief or argued on appeal are deemed abandoned. N.C. R. App. P. 28(b)(6) (2009); State v. McDonald, ___ N.C. App. ___, ___, 663 S.E.2d 462, 467, disc. rev. denied, 362 N.C. 686, 671 S.E.2d 328 (2008).
No error.
Judges Robert C. HUNTER and STEELMAN concur.
Report per Rule 30(e).