{ "id": 8521405, "name": "STATE OF NORTH CAROLINA v. GARY DEVON BUCKOM", "name_abbreviation": "State v. Buckom", "decision_date": "1993-07-20", "docket_number": "No. 928SC1318", "first_page": "240", "last_page": "244", "citations": [ { "type": "official", "cite": "111 N.C. App. 240" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "341 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523460 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0311-01" ] }, { "cite": "268 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "276 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565891 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0391-01" ] }, { "cite": "268 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "47 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550857 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "562-563" } ], "opinion_index": 1, "case_paths": [ "/nc-app/47/0554-01" ] }, { "cite": "268 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "48 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549281 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "134" } ], "opinion_index": 1, "case_paths": [ "/nc-app/48/0128-01" ] }, { "cite": "243 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "365" } ], "opinion_index": 1 }, { "cite": "294 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574115 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/294/0577-01" ] } ], "analysis": { "cardinality": 477, "char_count": 7475, "ocr_confidence": 0.741, "pagerank": { "raw": 3.8253409583110206e-07, "percentile": 0.8985255511035586 }, "sha256": "ba7566dc66eab8e65b23d45fe2c4c8d195554741d5e368f76351458351ef49e8", "simhash": "1:09bac4adf6144c76", "word_count": 1293 }, "last_updated": "2023-07-14T15:07:55.768244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs.", "Judge LEWIS dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY DEVON BUCKOM" ], "opinions": [ { "text": "EAGLES, Judge.\nIn his first assignment of error defendant argues that the trial court erred by \u201cinstructing the jury, as part of an anti-deadlock instruction, that \u2018the main purpose\u2019 of trying to reconcile differences in further deliberations was to avoid an expensive retrial.\u201d We agree.\nThe trial judge\u2019s instruction that the jury should try to reconcile its differences because of the expense of a retrial, given after the foreperson announced they were unable to agree, constituted prejudicial error under opinions of both our Supreme Court and this Court. E.g. State v. Lipford, 302 N.C. 391, 276 S.E.2d 161 (1981); State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); and State v. Johnson, 80 N.C. App. 311, 341 S.E.2d 770 (1986). Accordingly, defendant must receive a new trial.\nWe do not address the defendant\u2019s remaining arguments as they may not arise at retrial.\nNew trial.\nJudge GREENE concurs.\nJudge LEWIS dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge Lewis\ndissenting.\nI respectfully dissent from the majority opinion that the trial judge\u2019s instruction established prejudicial error. Our Supreme Court stated in State v. Alston:\nOne of the cardinal rules governing appellate review of trial court instructions is that the charge will be read contextually and an excerpt will not be held prejudicial if a reading of the whole charge leaves no reasonable grounds to believe the jury was misled.\n294 N.C. 577, 243 S.E.2d 354, 365 (1978). A new trial is not warranted by a mere acknowledgement of the expense and inconvenience of retrial in the jury instructions unless the charge as a whole is coercive. State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980), State v. Jones, 47 N.C. App. 554, 268 S.E.2d 6 (1980).\nIn the case at hand, the sole basis for the majority opinion granting retrial is the isolated sentence, \u201c[t]he main purpose of that is that it will be expensive again to have to get another jury to try this case over.\u201d It is conceded that this sentence standing alone could seem undesirable. However, when viewed as a whole the overall effect of the instruction was to inform, not to coerce. Faced with a deadlocked jury, the judge gave the additional instruction to outline the present situation of the trial. The trial judge properly adhered to N.C.G.S. \u00a7 15A-1235(c) (1992) by clearly stating that jurors should not surrender their honest convictions. The trial judge properly stated in cautionary language that he did not intend to coerce a verdict. Emphasis was placed on the importance of working towards agreement, but not necessarily reaching one.\nIn Jones, the Court found no error in the following instruction when the jury failed to agree:\nthat if this case is not brought to a verdict as I previously instructed you that another judge and another jury in another week will try this case again.\n47 N.C. App. at 562-563, 268 S.E.2d at 11. Neither was error found in Darden where a similar instruction was at issue. 48 N.C. App. at 134, 268 S.E.2d at 227. The trial judge stated to a deadlocked jury:\nI presume that you realize what a disagreement means: it means that more time of the court will have to be consumed in the trial of this action again.\nId. We find the instruction at issue in the case at bar no more coercive than either of these.\nThe sentence stressed by the majority is not coercive when the instructions are reviewed in their entirety. Upon careful review of the record, I would affirm the decision of the trial court and find no prejudicial error. Therefore I respectfully dissent.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Karen E. Long, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Benjamin Sendor, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY DEVON BUCKOM\nNo. 928SC1318\n(Filed 20 July 1993)\nCriminal Law \u00a7 880 (NCI4th)\u2014 inability of jury to agree \u2014instruction on expense of retrial \u2014 prejudicial error\nThe trial court\u2019s instruction that the jury should try to reconcile its differences because of the expense of a retrial, given after the foreperson announced that the jurors were unable to agree, constituted prejudicial error.\nAm Jur 2d, Trial \u00a7\u00a7 1593, 1603.\nJudge LEWIS dissenting.\nAppeal by defendant from judgment entered 24 January 1992 by Judge Knox V. Jenkins, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 9 July 1993.\nDefendant was indicted and convicted on two counts of armed robbery. Defendant was sentenced to consecutive twenty-five year terms with the North Carolina Department of Correction.\nThe jury in this case began deliberations at 11:55 a.m. on 24 January 1992, a Friday. During the day, the jury requested and received exhibits, took a lunch break, and a short recess. At approximately 4:32 p.m. the following transpired:\n(Jury Returns 4:32 P.M.)\nTHE COURT: Mr. Foreman, is the jury making progress?\nFOREMAN: I don\u2019t know, sir.\nTHE COURT: Pardon?\nFOREMAN: No, sir, we\u2019re hung up now.\nTHE COURT: Do you feel that some additional time would\u2014 is this as to both charges?\nFOREMAN: Both charges.\nTHE COURT: Let me ask you this. I don\u2019t want to know which way, for guilt or innocence. I don\u2019t want to know that so be careful when you answer my question and I\u2019ll try to phrase it very carefully.\nWould you give me the numerical division without which way it is. For instance, if it\u2019s eight-four, ten-two, whatever.\nFOREMAN: Do you want me to give it in figures the way it is but not what way it\u2019s going?\nThe COURT: Yes.\nFOREMAN: Nine-three.\nTHE COURT: On both counts?\nFOREMAN: Both counts.\nThe COURT: Do you feel that further deliberations would be of some value?\nFOREMAN: I don\u2019t think so.\nThe COURT: Well, let me give you some further instructions, please. I would ask that you listen very carefully.\nNo juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. In the course of deliberation, each of you should not hesitate to re-examine your own views and change your opinion if it is erroneous. Each of you must decide the case for yourself but only after impartial consideration of the evidence with your fellow jurors.\nY\u2019all have a duty to consult with one another and to deliberate with a view on reaching an agreement if it can be done without violence to individual judgment. Members of the jury, it is your duty to try to reconcile any differences that you have in order to reach a verdict. The main purpose of that is that it will be expensive again to have to get another jury to try this case over. I\u2019m not saying this to try to coerce you in any way to reach an agreement or cause someone to change any conviction they might have. It is your duty to try to reconcile any differences that you have and I\u2019ll let you go back for a little while and see if you can follow this charge.\nIt\u2019s now 25 minutes till five. Would anyone need to make a telephone call prior to going back in the jury room?\nFOREMAN: How long are you talking about?\nTHE COURT: Did everyone hear the charge I just gave you?\nJury Panel: Yes, sir.\nTHE COURT: Well, the Bailiff will notify you. If you would, go back to the jury room and continue your deliberations.\n(Jury Retires 4:37 p.m.)\nAfter retiring the jury returned at 4:48 p.m. for further instruction on the crime of armed robbery. At 5:31 p.m. the jury returned with a unanimous verdict finding the defendant guilty of the crimes charged.\nAttorney General Michael F. Easley, by Assistant Attorney General Karen E. Long, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Benjamin Sendor, for the defendant-appellant." }, "file_name": "0240-01", "first_page_order": 270, "last_page_order": 274 }