State v. Gillikin, 217 N.C. App. 256 (Dec. 6, 2011)

The trial court’s instructions to a deadlocked jury unconstitutionally coerced guilty verdicts. The jury began their initial deliberations and continued deliberating for about three hours. Following a lunch break, the jury resumed deliberations. After an hour the jury sent the following note to the court: “We cannot reach a unanimous decision on 4 of the 5 verdicts.” Upon receiving the note, the trial judge brought the jury back into the courtroom and gave the following instruction:

It’s not unusual, quite frankly, in any case for jurors to have a hard time reaching a unanimous verdict on one charge, much less four or five or more.

So what the Court is prepared to do is remind you – and if you look at the jury instructions – that it is your duty to find the truth in this case and reach a verdict.

What I’m going to do is understand that you guys are having some difficulty back there but most respectfully, direct once again you go back into that jury room, deliberate until you reach a unanimous verdict on all charges. You’ve not been deliberating that long. I understand it’s difficult and I understand sometimes it can be frustrating, but what I ask you to do is continue to be civil, professional, cordial with each other, exchange ideas, continue to deliberate and when you’ve reached a unanimous verdict, let us know. 

Thank you so much.  Once again, I ask you [to] retire to your jury room to resume deliberations.

The jury then resumed deliberations, and after approximately 90 minutes, returned three guilty verdicts. Although the trial judge’s instructions contained the substance of G.S. 15A-1235(a) and (c), they did not contain the substance of G.S. 15A-1235(b) and as a result were coercive. Nowhere in the instructions was there a suggestion to the jurors that no juror is expected to “surrender his honest conviction” or reach an agreement that may do “violence to individual judgment.” The court went onto conclude that the error was not harmless and ordered a new trial.