{ "id": 8557461, "name": "STATE OF NORTH CAROLINA v. WILLIE JAMES ASBURY", "name_abbreviation": "State v. Asbury", "decision_date": "1976-11-04", "docket_number": "No. 31", "first_page": "164", "last_page": "171", "citations": [ { "type": "official", "cite": "291 N.C. 164" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "224 S.E. 2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "Clark, J. dissenting" } ], "opinion_index": -1 }, { "cite": "29 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555512 ], "year": 1976, "pin_cites": [ { "parenthetical": "Clark, J. dissenting" } ], "opinion_index": -1, "case_paths": [ "/nc-app/29/0291-01" ] }, { "cite": "199 S.E. 2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560013 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0103-01" ] }, { "cite": "163 S.E. 877", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1932, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "202 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628295 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/202/0702-01" ] }, { "cite": "31 S.E. 383", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1898, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "123 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658213 ], "year": 1898, "opinion_index": 0, "case_paths": [ "/nc/123/0183-01" ] }, { "cite": "160 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "703" } ], "opinion_index": 0 }, { "cite": "273 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575742 ], "year": 1968, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0533-01" ] }, { "cite": "77 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683131 ], "weight": 2, "year": 1877, "opinion_index": 0, "case_paths": [ "/nc/77/0498-01" ] } ], "analysis": { "cardinality": 574, "char_count": 13180, "ocr_confidence": 0.666, "pagerank": { "raw": 1.4439385284709977e-07, "percentile": 0.6537493112532815 }, "sha256": "5c17536612fcde2bc9ff36c12704809c1ca87f66405305decffd7db19f751a4e", "simhash": "1:62e18173f69da89d", "word_count": 2295 }, "last_updated": "2023-07-14T20:35:26.216351+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE JAMES ASBURY" ], "opinions": [ { "text": "COPELAND, Justice.\nThe defendant brings forward only one assignment of error, relating to the jury poll. In particular, the defendant cites as error the trial judge\u2019s interpretation of the three questions that were asked each juror by the clerk during the poll. \u201cWas this your verdict? Is this now your verdict? Do you still agree and assent thereto?\u201d\nDuring the poll of the jury for the defendant Conner, as to juror David M. Houck, the following appears of record:\n\u201cClerk: David M. Houck. (Stands.) Your foreman has reported to the Court a verdict of guilty of robbery with a firearm as to Edward Conner, Jr. Was this your verdict?\n\u201cDavid M. Houck: (No response.)\n\u201cClerk: Was this your verdict?\n\u201cDavid M. Houck: Can I ask \u2014 uh. I hate to be \u2014 can I ask what the difference in the three questions is?\n\u201cThe Court: I\u2019m sorry. Will you phrase your question again ?\n\u201cDavid M. Houck: What are the differences in the three questions that she asked?\n\u201cThe Court : I\u2019ll let her ask the questions again.\n\u201cClerk: The three questions are: \u2018Was this your verdict? Is this now your verdict? Do you still agree and assent thereto?\u2019\n\u201cDavid M. Houck: What I\u2019m asking is, why are there three questions?\n\u201cThe Court : They would really call for the same response, I would say. I just don\u2019t know how better to explain. Ask the first question.\n\u201cClerk: Was this your verdict?\n\u201cDavid M. Houck : Yes, it was.\n\u201cClerk: Is it now your verdict?\n\u201cDavid M. Houck: (Long pause.) Yes.\n\u201cClerk: Do you still agree and assent thereto?\n\u201cDavid M. Houck: What would happen if I said no?\n\u201cMr. Funderburk: (Counsel for Conner) Your Honor, I think that he should be instructed that he has a right to say no, and that he should do so, if he so feels.\n\u201cThe Court: Well, sir. You will just have to answer the questions, and the Court will take such steps as must be taken, but you must answer the question. Ask the question again.\n\u201cClerk: Do you still agree and assent thereto?\n\u201cDavid M. Houck: Yes, sir.\u201d\nWhen the jury was polled for defendant Asbury the following occurred when the Clerk reached David M. Houck:\n\u201cClerk: David M. Houck. Your foreman has reported to the Court a verdict of guilty of robbery with a firearm as to Willie James Asbury. Was that your verdict?\n\u201cDavid M. Houck: Yes, ma\u2019am.\n\u201cClerk: Is that now your verdict?\n\u201cDavid M. Houck: Yes, ma\u2019am.\n\u201cClerk: Do you still agree and assent thereto?\n\u201cDavid M. Houck: Yes, ma\u2019am.\u201d\nAt the conclusion of the polling of the jury for each defendant, the following occurred:\n\u201cClerk: Members of the jury, you have found the defendant, Willie James Asbury, guilty of robbery with a firearm. This is your verdict, so say you all?\n\u201cJurors: Yes.\u201d\nAfter the clerk had polled the last juror, both defendants moved for a mistrial based on Juror Houck\u2019s request for instructions and the court\u2019s failure to instruct. After the court heard arguments from counsel in the presence of the jury, the following exchange took place:\n\u201cThe Court: Mr. Houck, stand up. (Mr. Houck stands.) Poll Mr. Houck again. Mr. Houck, listen to the questions. As I indicated to you, I think the questions are self-explanatory. Ask the juror the first question\u2014\n\u201cMr. Funderburk: Your Honor, if I might, I think the problem is Mr. Houck doesn\u2019t understand\u2014\n\u201cThe Court : All I want is Mr. Houck\u2019s verdict. That\u2019s all. With reference to what happens, that\u2019s of no concern to him. All I want to know is what his verdict is. So ask the questions again.\n\u201cClerk: Mr. Houck, your foreman has reported to the Court a verdict of robbery with a firearm as to Edward Conner, Jr. Was this your verdict?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cClerk: Is this now your verdict?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cClerk: Do you still agree and assent thereto?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cThe Court: Now, as to Mr. Asbury.\n\u201cClerk: Your foreman has reported to the Court a verdict of guilty of robbery with a firearm as to Willie James Asbury. Was this your verdict?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cClerk: Is this now your verdict?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cClerk: Do you still agree and assent thereto?\n\u201cMr. Houck: Yes, ma\u2019am.\n\u201cThe Court: Now, Mr. Houck, is there any misunderstanding on your part about the time frame and the essence of those questions?\n\u201cMr. Houck: No, sir.\n\u201cThe Court: Motions For a Mistrial is [sic] Denied.\nThe North Carolina Constitution insures to each criminal defendant the right to a unanimous jury verdict:\n\u201cNo person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N. C. Const. Art. I, \u00a7 24.\nAt least since 1877 our Court has held that a defendant has a constitutional right, upon timely request, to have the jury polled as a corollary to his right to a unanimous verdict. State v. Young, 77 N.C. 498 (1877). The function of the jury poll is:\n\u201c ... to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has been in fact reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.\u201d Davis v. State, 273 N.C. 533, 541, 160 S.E. 2d 697, 703 (1968).\nInterestingly, at the time of the first reported case by our Court on this subject, State v. Young, supra, our Court required only that the clerk read the verdict, as reported by the foreman, to the jury and ask \u201cSo say you all?\u201d At that point a juror could retract his assent for any reason. Later, in Owens v. R. R. Co., 123 N.C. 183, 31 S.E. 383 (1898), this Court recognized that the abbreviated form of jury poll was insufficient to protect the defendant\u2019s right to a unanimous verdict at least where the juror appeared to be uncertain of his verdict. In Owens v. R. R. Co., supra, Justice Clark, (later Chief Justice) speaking for our Court held that \u201c[a]ny juror may dissent from a verdict, to which he has agreed in the jury room, at any time before it is received and entered up ... \u201d Owens v. R. R. Co., supra at 184, 31 S.E. at 383. In that case the jury had answered the issue of contributory negligence \u201cno\u201d and during the jury poll one of the jurors answered \u201cI think she was to blame in part.\u201d The trial judge then asked the juror had he not consented to the jury\u2019s verdict in the jury room. Upon the juror\u2019s replying that he had so consented, the trial court accepted his verdict. Our Court held that it was error to receive the juror\u2019s verdict without ascertaining- whether, notwithstanding his remark, he still adhered to the assent given in the jury room.\nMore recently, in State v. Boger, 202 N.C. 702, 163 S.E. 877 (1932), this Court decided that a criminal defendant\u2019s right to have the jury polled is the right to have questions propounded to the jurors, individually, concerning \u201c . . . whether each juror assented and still assents to the verdict tendered to the court.\u201d State v. Boger, supra at 704, 163 S.E. at 878. In State v. Norris, 284 N.C. 103, 199 S.E. 2d 445 (1973), this Court implicitly approved the three question formula used by the clerk of court in the instant case.\nFrom the above authority, it is apparent th\u00e1t this Court, in assuring the unanimity of verdicts, is concerned with each juror\u2019s assent to the verdict at two different time periods. Because of the possibility of improper influence and coercion in the jury room, the questions must be designed to find out if the juror assented in the jury room and still assents in open court to the jury verdict.\nObviously, only two questions are necessary to elicit this information. The second question \u201cIs this now your verdict?\u201d relates to the same time period addressed in the third question \u201cDo you still agree and assent thereto?\u201d The second and third questions refer to the present in-court state of mind of the juror and serve only to emphasize by repetition that the crucial assent is the juror\u2019s assent to the verdict when he returns to the courtroom.\nGiven the foregoing, it is clear that the trial court\u2019s initial response to Juror Houck\u2019s inquiry was error. The questions do not all relate to the same time period and do not necessarily call for the same response. It remains to be determined whether this error was prejudicial. Upon examination of all the circumstances, we find the error was not prejudicial to this defendant.\nIt is noted first that the error occurred when Juror Houck was being questioned about his verdict as to defendant Conner. There was no hesitation whatsoever by the juror when questioned about his verdict as to defendant Asbury. Juror Houck was questioned twice individually and finally jointly with the other jurors as to his assent to the verdict against defendant Asbury and never wavered.\nMore importantly, a number of factors lead us to conclude that Juror Houck as well as the other jurors understood that they had a right to dissent from the verdict arrived at in the jury room. The questions addressed to the jurors were essentially self-explanatory. Counsel for each defendant on the motion for mistrial argued in the jury\u2019s presence concerning the nature of the questions and the right to dissent. Following these arguments by counsel and while the judge was still considering the motion for mistrial, the judge asked Juror Houck if there was any misunderstanding on his part \u201cabout the time frame and the essence of those questions.\u201d The juror replied \u201cNo, sir.\u201d\nWe have no way of knowing what prompted the original questions of Juror Houck during the jury poll for defendant Conner. A jury verdict is not defective if it appears that the juror eventually freely assented to the verdict. See Owens v. R. R. Co., supra. We are satisfied that Juror Houck understood his right to dissent and freely chose to affirm the verdict as to this defendant. We base this belief on the juror\u2019s unequivocal, multiple assents to the verdict, the simplicity of the questions propounded, the discussions of the attorneys in the jury\u2019s presence concerning the right to dissent, and the substantial evidence adduced at trial pointing to defendant\u2019s guilt. The defendant has failed to show prejudicial error, thus the decision of the Court of Appeals is\nAffirmed.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Attorney General Rufus L. EdmAsten by Special Deputy Attorney General Robert P. Gruber for the State.", "Goeffrey A. Planer for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE JAMES ASBURY\nNo. 31\n(Filed 4 November 1976)\nCriminal Law \u00a7 126\u2014 polling the jury \u2014 question of juror \u2014 response of judge not prejudicial\nWhere one juror, during the polling of the jury, asked why three questions were put to each juror and asked what the differences in the questions were, the trial court\u2019s response to the juror\u2019s inquiry that all three questions would call for the same response, though erroneous, was not prejudicial to defendant, since the juror in question unequivocally assented to the verdict at least twice, the questions propounded were simple and self-explanatory, the attorneys argued on defendant\u2019s motion for mistrial in the jury\u2019s presence concerning the nature of the questions and a juror\u2019s right to dissent from the verdict, and there was substantial evidence adduced at trial pointing to defendant\u2019s guilt.\nAppeal by defendant as a matter of right under G.S. 7A-30(2) from the decision of the Court of Appeals, reported in 29 N.C. App. 291, 224 S.E. 2d 200 (1976) (Clark, J. dissenting), finding no error in judgment of Kirby, J. entered 14 May 1975, Gaston County Superior Court.\nDefendant was tried under an indictment proper in form charging him with the crime of robbery with a firearm. Upon call of the case and upon motion of the State, defendant\u2019s case was consolidated for trial with that of Edward Conner, Jr., another defendant allegedly involved in the same robbery.\nThe evidence for the State tended to show that on 14 January 1975 at about 4:15 p.m., the defendant and Edward Conner, Jr. drove to the Fairview Grocery and Service Station in Gastonia. Upon entering the store, the defendant went to the candy counter and Conner went to the ice cream box. The defendant asked Raymond H. Robinson, the proprietor, for a candy bar located underneath the counter. When Robinson stood up from getting the candy, he saw the defendant pointing a small pistol at him. The defendant demanded money and instructed him to open the cash register. Conner searched Robinson and took his wallet along with $25.00 from the cash register. As they drove off, Robinson wrote down the license plate number of the vehicle.\nAt the trial Robinson identifed the defendant and Conner as the two people that robbed him on 14 January 1975. Other evidence for the State tended to show that defendant Conner had possession, at the time of the robbery, of a license plate identical to the one on the getaway car. The license tag in question had been in the trunk of a vehicle delivered to Conner for repair purposes.\nThe defendant relied upon alibi testimony from several witnesses but did not testify himself. Upon a verdict of guilty, both defendants moved for a poll of the jury and the manner in which this poll was conducted is the subject of this appeal. The facts incident thereto will be related in the opinion.\nAttorney General Rufus L. EdmAsten by Special Deputy Attorney General Robert P. Gruber for the State.\nGoeffrey A. Planer for the defendant." }, "file_name": "0164-01", "first_page_order": 188, "last_page_order": 195 }