State v. Gettys, 219 N.C. App. 93 (Feb. 21, 2012)

(1) The trial court did not abuse its discretion by giving an Allen charge. During the jury’s second day of deliberations in a murder case, it sent a note to the trial judge stating that the jurors could not agree on a verdict. The trial judge inquired as to the numerical division, instructing the foreperson not to tell him whether the division was in favor of guilty or not guilty. The foreperson informed the judge that the jury was divided eleven to one. The trial court then gave additional instructions based on G.S. 15A-1235(b) and the jury found the defendant guilty almost two hours later. (2) Although the trial court’s Allen instruction (which was almost identical to N.C.P.I.—Crim. 101.40) varied slightly from the statutory language, no error occurred.