{ "id": 8549281, "name": "STATE OF NORTH CAROLINA v. BOBBY DARDEN", "name_abbreviation": "State v. Darden", "decision_date": "1980-08-05", "docket_number": "No. 808SC121", "first_page": "128", "last_page": "134", "citations": [ { "type": "official", "cite": "48 N.C. App. 128" } ], "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": "243 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574115 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0577-01" ] }, { "cite": "183 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569906 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0484-01" ] }, { "cite": "285 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566374, 8566409, 8566477, 8566447, 8566524 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0593-01", "/nc/285/0593-02", "/nc/285/0593-04", "/nc/285/0593-03", "/nc/285/0593-05" ] }, { "cite": "204 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555969 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0342-01" ] }, { "cite": "240 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572534 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0253-01" ] } ], "analysis": { "cardinality": 570, "char_count": 12070, "ocr_confidence": 0.724, "pagerank": { "raw": 1.8480283889195903e-07, "percentile": 0.7231043199815896 }, "sha256": "245023846a9d53b618f04113880a99cf30825ef2fa693cc9671e3e33e055db95", "simhash": "1:8a40e5154f121c46", "word_count": 2099 }, "last_updated": "2023-07-14T21:18:20.579461+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Wells concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY DARDEN" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nDefendant\u2019s first assignment of error is the trial court\u2019s sustaining objections by the state to certain evidence offered by defendant and allowing the state\u2019s motion to strike certain evidence. On direct examination of defendant, he testified as follows:\nWhen I saw him [John Smith] about ten o\u2019clock at Hollo-man\u2019s Store, we just looked at each other, me and John. We don\u2019t get along too good. He said something like, you know, well it won\u2019t much. I don\u2019t recall what it was he said; it won\u2019t nothing; see, we don\u2019t get along; so we don\u2019t speak; we got reasons for not getting along.\nDefendant was then asked whether Smith \u201cmade any threats to you?\u201d This question was objected to; the objection was sustained. Then, in response to the question \u201cWhy don\u2019t you and John Smith get along?\u201d defendant answered:\nA. We ain\u2019t got along about, since April. We had a difference over a money deal; we don\u2019t speak. It\u2019s like he\u2019s got it in for me.\nAn objection was sustained, and the court allowed the state\u2019s motion to strike. Defendant argues that it was error to exclude this testimony \u201cas to a possible basis for the bias of the State\u2019s witness, John Christian Smith.\u201d\nThe record fails to show what answer defendant would have given had the objection to the question concerning threats by Smith not been sustained. It cannot, therefore, be determined that the court\u2019s ruling, even if erroneous, was prejudicial. State v. Martin, 294 N.C. 253, 240 S.E. 2d 415 (1978). We note, parenthetically, that defendant had already testified that Smith \u201csaid something like, you know, well it won\u2019t much. I don\u2019t recall what it was he said; it won\u2019t nothing.\u201d\nDefendant cites State v. Honeycutt, 21 N.C. App. 342, 204 S.E. 2d 238, cert. denied, 285 N.C. 593 (1974), as clear authority for admitting the evidence of possible bias on the part of Smith, a witness for the state. In that case the Court held that defendant was prejudiced by the refusal of the trial court to allow him to testify about a previous altercation he had had with a witness for the state, stating that the evidence should have been admitted to show bias. The witness was the state\u2019s only witness to the murder for which the defendant was being tried. The Court found the credibility of the witness critical in the case, because when he testified at two earlier trials the jury was unable to reach a verdict. Defendant was convicted at his third trial when the witness was not present but the transcript of his earlier testimony was read to the jury. Not only was defendant deprived of the opportunity to further cross-examine the witness and to have the jury observe the witness\u2019s demeanor, but his burden was \u201cprejudicially compounded\u201d by the court\u2019s refusal to allow him to testify about the earlier altercation.\nThe circumstances are quite different in this case. The victim of the alleged rape, Pamela Bryan, had already testified against the defendant; the credibility of John Smith was not \u201ccritical.\u201d Although the court allowed the state\u2019s motion to strike defendant\u2019s testimony that he and Smith had a \u201cdifference over a money deal\u201d and \u201c[i]t\u2019s like he\u2019s got it in for me,\u201d there is in the record defendant\u2019s evidence that he and Smith \u201cdon\u2019t get along too good\u201d and \u201cgot reasons for not getting along.\u201d It was not error for the court to disallow repetitive evidence when evidence of the possible bias had already been entered into the record. This assignment of error is overruled.\nDefendant next argues that the court\u2019s failure to declare a mistrial, either at the end of the first day of the trial or after receiving the note from the jury foreman the next morning, constitutes reversible error. We do not agree. Defendant relies upon N.C.G.S. 15A-1235(d) for his position: \u201cIf it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.\u201d Contrary to defendant\u2019s contention that it was \u201cclearly incumbent\u201d upon the judge to declare a mistrial, this statute does not mandate the declaration of a mistrial; it merely permits it. Even assuming that the response of the jury foreman after one hour and thirty-four minutes of deliberation the first day and twenty-five additional minutes the second day made it apparent to the judge that there was no \u201creasonable possibility of agreement,\u201d the action of the judge in declaring or failing to declare a mistrial is reviewable only in case of gross abuse of discretion. State v. Battle, 279 N.C. 484, 183 S.E. 2d 641 (1971). Defendant has failed to carry the burden of showing such abuse here.\nDefendant\u2019s final assignment of error is that the court prejudiced the defendant by its second charge to the jury, after receipt of the note. Again, his argument is that N.C.G.S. 15A-1235 was not complied with. Subsection (c) of this statute reads:\nIf it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.\nThis statute, as indicated by its title, Length of deliberations; deadlocked jury, is applicable in the event the jury is deadlocked. The record in our case fails to show that the jury was deadlocked or unable to agree. In its response to the jury\u2019s request for further information, the court stated that \u201cit is apparent to the court that the jury apparently is having some difficulty in reaching a verdict.\u201d It went on to caution the jury that a disagreement meant that more time of the court would be spent in a retrial of the action. The legislature by this statute did not undertake to set out what the trial judge must instruct the jury or to limit the instructions the trial judge could give. The test remains whether the charge as a whole is coercive. Isolated mention of the necessity to retry the case does not warrant a new trial unless the charge as a whole is coercive. State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978). We do not find that the charge as a whole coerced a verdict in this case. The assignment of error is therefore overruled.\nIn defendant\u2019s trial we find\nNo error.\nJudges Webb and Wells concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.", "J. Faison Thomson Jr. for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY DARDEN\nNo. 808SC121\n(Filed 5 August 1980)\n1. Criminal Law \u00a7 89.6- bias of witness - exclusion of evidence - failure of record to show excluded answer \u2014 repetitious testimony\nThe trial court in a rape case did not err in excluding testimony by defendant as to whether a State\u2019s witness had threatened him and that he and the State\u2019s witness had a \u201cdifference over a money deal\u201d and \u201cit\u2019s like he\u2019s got it in for me\u201d where the record failed to show what defendant\u2019s testimony would have been to the question about threats, and where the rape victim testified against defendant and the credibility of the State\u2019s witness was not critical, and evidence of the possible bias of the State\u2019s witness against defendant had already been entered into the record when defendant testified that he and the witness \u201cdon\u2019t get along too good\u201d and that they had \u201creasons for not getting along.\u201d\n2. Criminal Law \u00a7 128.2- failure to declare mistrial after jury deliberated for some time\nThe trial court did not abuse its discretion in failing to declare a mistrial when the jury foreman stated after the jury had deliberated for one hour and thirty-five minutes that it was doubtful that the jury could reach a verdict if it deliberated further the first day or when the jury requested additional evidence after deliberating for twenty-five minutes the next day. G.S. 15A-1235(d).\n3. Criminal Law \u00a7 122.2- instructions urging jury to reach agreement - no coercion\nThe trial court in a rape case did not coerce a verdict when the jury requested additional evidence after deliberating for some two hours and the court instructed the jury that a failure to agree would mean that more time of the court would be spent in a retrial of the action and that it was the duty of the jurors to do whatever they could to reconcile their differences and reach a verdict if such was possible without the surrender of any juror\u2019s conscientious convictions.\nAppeal by defendant from Brown, Judge. Judgment entered 29 November 1979 in Superior Court, Wayne County. Heard in the Court of Appeals 6 June 1980.\nDefendant was found guilty of the offense of second degree rape and was sentenced to a term of imprisonment.\nThe state presented evidence tending to show that on 28 September 1979, as Pamela Bryan was driving defendant to his house, he forced her to stop the car and to have sexual intercourse with him without her consent. Both defendant and John Smith, whom Pamela had been visiting, had requested that she drive defendant home from Smith\u2019s house. Defendant\u2019s evidence tended to show that he did not see Pamela Bryan on 28 September 1979, that he did not go to Smith\u2019s house that night, and that he was in Goldsboro at the time of the alleged rape.\nAfter the court\u2019s charge, the jury retired at 4:38 p.m. for deliberations. It returned to the courtroom at 6:12 p.m., and the following colloquy occurred:\nCourt: Mr. Foreman, I take it the jury has not arrived at a verdict?\nMr. Robitalle: Yes, sir.\nCourt: Do you feel like if you were permitted to deliberate some more today that you might be able to reach a verdict?\nMr. Robitalle: In my mind it\u2019s doubtful.\nThe judge then asked the jury to return at 9:30 the next morning. After deliberating from 9:30 a.m. until 9:55 a.m., the jury returned to the courtroom and heard the judge read the following handwritten note, sent by the foreman to request additional evidence before returning a verdict:\n11/29/79\nJudge Brown:\nWe the jury respectfully request further information to help us render a fair and equitable decision.\nThe results of the complete physical examination of Pam made at Wayne Memorial Hospital was not provided by the State.\nSince the results of this exam may have a direct influence on the results of this trial, we respectfully request the state provide the jury with these results:\nSincerely,\nGeorge C. Robitalle Jury Foreman\nThe court then further charged the jury as follows:\nThe jury has heard all the evidence in the case. There will be no further evidence presented. You are asked to make your decision on the evidence as you heard it in this courtroom during the trial of this case. Let me say ladies and gentlemen to you before you retire to resume your deliberations: it is apparent to the court that the jury apparently is having some difficulty in reaching a verdict in the case, and I 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. I do not wish to force or coerce you in any way to reach a verdict but it is your duty to try to reconcile your differences and reach a verdict if it can be done without the surrender of one\u2019s conscientious convictions. You have heard all the evidence in the case. A mistrial, of course, will mean that another jury will have to be selected to hear the case and the evidence again. A jury will have to ultimately answer the issue in this case and I feel that you are as qualified as any jury to answer the issue. The court recognizes the fact that there are sometimes reasons why jurors cannot agree. The court wants to emphasize the fact that it is your duty to do whatever you can to reason the matter over together as reasonable men and women and to reconcile your differences if such is possible without the surrender of conscientious convictions and to reach a verdict in the case.\nThe jury deliberated from 10:00 a.m. until 11:12 a.m., when a verdict of guilty was returned. Each juror, upon being polled, stated that the announced verdict was his verdict. Defendant appeals from the judgment of the court.\nAttorney General Edmisten, by Assistant Attorney General Daniel C. Oakley, for the State.\nJ. Faison Thomson Jr. for defendant." }, "file_name": "0128-01", "first_page_order": 156, "last_page_order": 162 }