State v. Cox, ___ N.C. App. ___, 808 S.E.2d 339 (Nov. 21, 2017)

The court rejected the defendant’s argument that the trial court erred by giving a coercive instruction after the jury indicated that it was deadlocked. Concluding that the trial court’s instructions to continue deliberations were in accord with G.S. 15A-1235(b), the court disagreed. The jury informed the trial court three times that it was unable to reach a unanimous verdict. Each time the trial court gave an instruction consistent with the statute. After the jury had deliberated less than five hours in a single day, and after its third note to the trial court stating that it was deadlocked, the trial court informed the jury that it was sending them back to further deliberate with the same instructions previously given. However, in this instance, the trial court added: “after five days of testimony and less than 5 hours of deliberations, these folks deserve better.” The defendant argued that this comment was impermissibly coercive and left the jurors with the impression that the judge was irritated with them for not reaching a verdict. The court found otherwise, noting that the judge was polite, patient, and accommodating. The trial court properly gave an Allen charge each time the jury stated that it was deadlocked. Prior to its final comment, the jury received a lunch break, recess and a meal. After the third impasse, the trial court gave the jury a choice to continue to deliberate that day or to go home and continue deliberations the next day. Considering the totality of the circumstances, the trial court’s comment was not coercive.