In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

No plain error occurred with respect to a supplemental jury instruction given by the trial court in response to the jury’s note that it was “stuck” during deliberations. The noted indicated that the jury was split 11 to 1. Neither party objected to the trial court’s suggestion to give the jury an instruction urging them to do what they could to arrive at a unanimous verdict. The defendant argued that the trial court’s instruction violated G.S. 15A-1235. Although the court found that the trial court’s failure to give the full instructions as directed by the statute did not rise to the level of plain error, it stated: “[W]e must clarify that at the time the instruction was given, the trial court should reasonably have believed that the jury was deadlocked. Because the trial court gave some of the instructions, but not all of them, it did commit error.” 

Where the trial court’s Allen charge was in substantial compliance with G.S. 15A-1235, no coercion of the verdict occurred. The defendant argued that because the Allen charge failed to instruct the jury in accordance with section G.S. 15A-1235(b)(3) that “a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous,” he was entitled to a new trial. Acknowledging that the charge failed to repeat G.S. 15A-1235(b)(3) verbatim, the court concluded that the trial court's instructions contained the substance of the statute and fairly apprised the jurors of their duty to reach a consensus after open-minded debate and examination without sacrificing their individually held convictions merely for the sake of returning a verdict.

The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury indicates that it is deadlocked.

The court rejected the defendant’s argument that the trial court’s instructions to the jury coerced a verdict. The jury retired to begin deliberations at 3:38 p.m.  At 5:51 p.m., the trial judge brought the jury into the courtroom to inquire about its progress. The jury indicated that it had reached unanimous verdicts on two of the four charges. The trial judge then allowed a twenty-minute recess, giving the following challenged instruction:

What I am going to do at this point is allow you to take a recess for about 20 minutes[.] If anyone needs during this 15 or 20 minute recess to call someone, a family member, to let them know that you are going to be delayed  – but we are going to stay here this evening with a view towards reaching a unanimous verdict on the other two.  That’s where we are.  I want everyone to know that.  If you need to call someone to let them know you will be delayed, that’s fine.

After the recess, the jury resumed its deliberations. Eleven minutes later the jury returned unanimous verdicts in all four cases. Considering the totality of the circumstances, the instructions were not coercive. 

The court modified and affirmed a decision of the court of appeals in State v. Starr, 209 N.C. App. 106 (Jan. 4, 2011) ((1) although the trial judge did not explicitly state that he was denying, in his discretion, the jury's request to review testimony, the judge instructed the jurors to rely on their recollection of the evidence that they heard and therefore properly exercised discretion in denying the request and (2) when defense counsel consents to the trial court's communication with the jury in a manner other than in the courtroom, the defendant waives his right to appeal the issue; here, although the trial judge failed to bring the jurors to the courtroom in response to their request to review testimony and instead instructed them from the jury room door, prior to doing so he asked for and received counsel’s permission to instruct at the jury room door). The supreme court determined that the trial court violated G.S. 15A-1233(a) by failing to exercise its discretion in deciding whether to allow the jury to review testimony. The court noted that as a general rule, when the trial court gives no reason for a ruling that must be discretionary, it is presumed that the court exercised its discretion. However, when the trial court’s statements show that it did not exercise discretion, the presumption is overcome. Here, the trial court’s statement that “we don’t have the capability . . . so we cannot provide you with that” overcomes the presumption the court exercised its discretion. However, the court found that the error was not prejudicial. The court provided the following guidance to trial court judges to ensure compliance with G.S. 15A-1233(a): The trial court must exercise its discretion to determine whether the transcript should be made available to the jury but it is not required to state a reason for denying access to the transcript. The trial judge may simply say, “In the exercise of my discretion, I deny the request,” and instruct the jury to rely on its recollection of the trial testimony. 

In this indecent liberties with a child case, although the trial court erred by failing to conduct the jury to the courtroom as required by G.S. 15A-1233 in response to its request to review certain evidence, the error was not prejudicial and the defendant failed to show an error of constitutional magnitude. The statute requires that if the jury, after retiring for deliberations, requests to review evidence, the jurors must be conducted to the courtroom. Here, the jury sent two notes to the trial court, one requesting police reports, and another requesting transcripts of certain trial testimony. On both occasions, the bailiff brought the notes into the courtroom to the judge and delivered the judge’s written responses to the jury. The judge’s notes informed the jury that they could not review the police reports because they were not in evidence and that the trial court had decided, in its discretion, not to delay deliberations to have a transcript produced of the testimony in question. This was error because the trial court failed to comply with the statute. However this did not constitute a violation of the defendant’s right to a unanimous verdict under the state constitution, where the trial court did not interact with or provide instructions to less than a full jury panel. Additionally a new trial is not warranted as there is no showing that the error prejudiced the defendant.

Although the trial court erred by failing to exercise discretion in connection with the jury’s request to review certain testimony, the defendant failed to show prejudice. In this armed robbery case, during deliberations the jury sent a note to the trial court requesting several items, including a deputy’s trial testimony. The trial court refused the request on grounds that the transcript was not currently available. This explanation was “indistinguishable from similar responses to jury requests that have been found by our Supreme Court to demonstrate a failure to exercise discretion.” However, the court went on to find that no prejudice occurred.

The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this statement “demonstrated a belief that [the trial court] was not capable of complying with the jury’s transcript request” and that as a result the trial court failed to exercise discretion in responding to the jury’s request. [Author’s note: For the proper procedure for responding to such a request by the jury, see my Bench Book section here.]

Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court directed that certain items be sent back to the jury. Defense counsel objected. Under G.S. 15A-1233, it was error for the court to send the material to the jury room over the defendant’s objection.

The trial court properly exercised its discretion when denying the jury’s request to review testimony. Although the trial court’s statements to the jury indicate it thought that a review of that testimony was not possible (statements that normally suggest a failure to exercise discretion), the trial court had previously discussed with counsel the possibility of having the testimony read to the jury. The trial court was aware it had the ability to grant the request, but exercised its discretion in declining to do so.

The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.

The bailiff’s delivery of an exhibit to the jury, with an instruction from the trial judge that it would need to be returned to the trial court did not prejudice the defendant, even though the trial court violated G.S. 15A-1233(a) by failing to bring the jury into the courtroom when the jury’s asked to review the exhibit. As to the instruction delivered by the bailiff, the court distinguished prior case law, in part, because the communication did not pertain to matters material to the case. 

In this felony murder case, the trial court acted within its discretion by declining to answer a question from the deliberating jury. Robbery was the underlying felony for the felony murder charge. During deliberations, the jury sent a note with the following question: “Can this defendant be found guilty of the robbery charge and then found not guilty of the murder charge?” After hearing from the parties, the trial court declined to answer the question yes or no, instead telling the jury to read the written jury instructions that it had previously provided. The court noted that whether to give additional instructions to the jury is within the trial court’s discretion. Here, it was undisputed that the trial court correctly instructed the jury on all offenses and heard from the parties when the question was raised.

In this felony breaking and entering and larceny case the trial court did not violate G.S. 15A-1234 when responding to a question by the deliberating jury. The defendant argued that the trial failed to afford counsel an opportunity to be heard before responding the jury’s question about the difference between “taking” and “carrying away.” After receiving the question from the jury, the trial court told the parties that it was “going to tell [the jury] the definition of taking is to lay hold of something with one’s hands;” neither party objected to the proposed instructions. The trial court then instructed the jury on this definition, demonstrated the difference between the two terms with a coffee cup, and repeated the elements of felony larceny. Although the trial court did not inform the parties of its visual demonstration, the statute only requires that the trial court inform the parties “generally” of the instruction that it intends to give, as was done here.