{ "id": 2570078, "name": "STATE OF NORTH CAROLINA v. NORVILLE BUSSEY", "name_abbreviation": "State v. Bussey", "decision_date": "1987-11-05", "docket_number": "No. 712A86", "first_page": "92", "last_page": "98", "citations": [ { "type": "official", "cite": "321 N.C. 92" } ], "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": "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": "380 U.S. 445", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525216 ], "year": 1965, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/us/380/0445-01" ] }, { "cite": "307 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "795" }, { "page": "795" }, { "page": "794-95" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527103 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "502" }, { "page": "502" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0500-01" ] }, { "cite": "272 U.S. 448", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1501274 ], "weight": 2, "year": 1926, "opinion_index": 0, "case_paths": [ "/us/272/0448-01" ] }, { "cite": "322 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "392" }, { "page": "392" } ], "opinion_index": 0 }, { "cite": "312 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757671 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "308" }, { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0304-01" ] }, { "cite": "181 S.E. 2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566302 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0185-01" ] }, { "cite": "346 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778292 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0661-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 638, "char_count": 12812, "ocr_confidence": 0.837, "pagerank": { "raw": 1.915391906394372e-07, "percentile": 0.7322519575465597 }, "sha256": "3b6444300bee73fc7103f72cb0a4f2d1471f3ff0ff1abfc8255c2b4a46d1593d", "simhash": "1:88309e2ab694c370", "word_count": 2196 }, "last_updated": "2023-07-14T17:04:28.747837+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. NORVILLE BUSSEY" ], "opinions": [ { "text": "MARTIN, Justice.\nFor the reasons stated below, we find the defendant\u2019s assignment of error to be without merit and hold that he received a fair trial, free of prejudicial error.\nThe record reveals that the jury began its deliberations on 9 July 1986 after the court\u2019s customary morning break. The jury recessed for lunch and resumed its deliberations. Later, the jury sent word that it wished to pose a question to the court. The forewoman told the trial judge that the jury was \u201cdeadlocked.\u201d The judge responded by asking whether the jurors had taken any polls and was told that two polls had been taken. He then asked for \u201cthe numerical division\u201d on each poll, cautioning the forewoman first that he wanted, \u201cJust numbers, now. How many one side or how many the other, but don\u2019t tell me which one is voting for what.\u201d The judge was told that the split was eight and four on the first poll and remained so when the second poll was taken following further deliberations after the lunch recess. The judge then sent the jurors back to continue their deliberations, having advised them as follows:\nFolks, I really would have some serious doubt at this time and this early in your position in your deliberations that you folks would be in a position of deadlock. It would appear to me that it would take considerable more time and discussion of the matters at issue before you before you would be able to determine such a thing as that.\nI realize that you do have before you a case that does offer some rather divergent testimony. As you folks have been earlier advised, it is your duty as jurors to consider that evidence and to resolve these differences if you can and to unanimously agree upon a verdict in the case.\nNow, you all have a duty during your deliberations to consult with one another and to deliberate with a view towards reaching an agreement, if it can be done without violence to your individual judgments.\nEach of you, of course, must decide the case for yourselves but only after an impartial consideration of the evidence with your fellow jurors.\nIn the course of deliberations each of you should not hesitate to reexamine your own views and to change your opinion if it is erroneous. But none of you should surrender your honest, conscientious convictions either as to the weight or the affect [sic] of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict in the case.\nNow, I want to emphasize to you the fact that it is your duty to do whatever you can to reach a verdict in this matter. You should reason the matter over together as reasonable men and women, and try to reconcile your differences if you can without the surrender of your conscientious convictions.\nNow, I\u2019m going to let you folks continue your deliberations in the matter and see if you will be able to resolve your differences and come to a unanimous verdict.\nThe jurors deliberated for the remainder of the afternoon. When the jury returned to the courtroom for the overnight recess, the trial judge inquired, \u201cHas there been any change in the position of your jury that you reported to us earlier?\u201d He was told the split was then nine to three. The judge responded:\nYou\u2019re making progress. All right. We will stop at this time and let you folks go home for today. We will resume the proceedings tomorrow morning at nine thirty a.m. and let you folks continue your deliberations at that time, and hopefully be able to resolve this matter.\nThe jury resumed its deliberations the next day and after \u201csome time\u201d returned the verdicts of guilty.\nDefendant\u2019s sole assignment of error concerns the trial judge\u2019s instructions and remarks to the jury following a report by it that it was deadlocked. Because defendant made no objection to the additional instructions or remarks by the trial judge, the plain error standard is applicable. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). It is defendant\u2019s contention that the judge coerced a guilty verdict, thereby violating defendant\u2019s right to a fair trial and an impartial jury under both the federal and state constitutions and N.C.G.S. \u00a7\u00a7 15A-1232 and -1235. Because defendant failed to raise the alleged constitutional issues before the trial court, he has waived these arguments, and they may not be raised for the first time in this Court. State v. Mitchell, 317 N.C. 661, 346 S.E. 2d 458 (1986); Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E. 2d 435 (1971). We turn then to the question of whether the trial judge\u2019s instructions and remarks constitute plain error under the applicable statute and decisions of this Court.\nDefendant\u2019s case is for all relevant intents and purposes on all fours with State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389 (1984), which we find controls its disposition. Defendant resurrects the argument made in Fowler that under Brasfield v. United States, 272 U.S. 448, 71 L.Ed. 345 (1926), inquiry by the trial judge into the numerical division is prohibited per se because it is coercive of jury minorities. In Fowler, we concluded that, \u201c[a]t most, Bras field sets out a rule of federal practice and is not binding on our courts.\u201d 312 N.C. at 308, 322 S.E. 2d at 392. In Fowler, we also rejected the proposition that a trial judge\u2019s questions about the numerical division of a jury constituted a per se violation of article I, \u00a7 24 of the North Carolina Constitution. We held, rather, that the proper analysis was whether in considering the totality of the circumstances the inquiry had been coercive, and explained why the judge\u2019s ability to inquire into numerical divisions was to be preserved.\nWe do not consider questions concerning the division of the jury to be a per se violation of Art. I, \u00a7 24 when the trial court makes it clear that it does not desire to know whether the majority is for conviction or acquittal. Such inquiries are not inherently coercive, and without more do not violate the right to trial by jury guaranteed by the North Carolina Constitution. State v. Yarborough, 64 N.C. App. 500, 502, 307 S.E. 2d 794, 795 (1983). The appropriate standard is whether in the totality of the circumstances the inquiry is coercive. Ellis, 596 F. 2d at 1200; Yarborough, 64 N.C. App. at 502, 307 S.E. 2d at 795. See Jenkins v. United States, 380 U.S. 445, 446 (1965).\nThe Court of Appeals has correctly pointed out that inquiries into the division of the jury are often \u201cuseful in timing recesses, in determining whether there has been progress toward a verdict, and in deciding whether to declare a mistrial because of a deadlocked jury.\u201d Yarborough, 64 N.C. App. at 502, 307 S.E. 2d at 794-95. The truth of that observation is borne out in this case by the circumstances attendant to the trial court\u2019s questioning of the jury. It was late on a Friday afternoon that was the last day of the court term, and the jury had not yet reached a verdict. The trial judge needed to know whether the jury was likely to reach a verdict or was deadlocked. This was necessary so that he would know whether he should plan to resume the trial on Monday and extend the term of court to continue the jurisdiction of the Superior Court. Under the circumstances, the inquiry into the division of the jury aided the trial court in the efficient administration of justice. We conclude that such inquiries into the division of the jury do not interfere with the proper administration of justice and so decline to exercise our supervisory power to make such inquiries reversible error.\n312 N.C. at 308-09, 322 S.E. 2d at 392. Nothing in this case prompts us to alter our view as to the proper standard to be applied in analyzing the propriety of a trial judge\u2019s inquiry into the numerical division. We continue to adhere to Fowler.\nWe hold that in the totality of the circumstances the challenged inquiry was not coercive of the jury\u2019s verdict. The record shows that the presiding judge made it perfectly clear from the outset that he did not wish to be told whether the majority favored guilt or innocence. He was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict. The judge was confronted with a report of deadlock after rather scant deliberation on either side of the lunch recess on the day the jury first retired. He properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. The judge\u2019s additional instructions in response to the first inquiry of the jury hew closely to the language of N.C.G.S. \u00a7 15A-1235. They are notable for the balance he achieved between recalling the jurors to their duty to deliberate fully and reminding them that their duty also required them to stand fast for their convictions after full reflection. Nor is there the slightest reference in his remarks to burdens on the administration of justice, to wasted court resources, or to the necessity of empanelling another jury in the event of a mistrial. The trial judge\u2019s instructions and remarks were well within the rules established in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389, and State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978).\nThe trial judge held a second, very brief colloquy with the jury on the second day of its deliberations. Upon asking if there had been any change in its position, he was told that the division was then nine to three. The judge responded, \u201cYou\u2019re making progress.\u201d This remark, if taken out of context, might be considered of questionable propriety. In the context of the court\u2019s previous lengthy additional instructions, however, the remark could only be taken to mean that the jury was making progress towards determining whether it could conscientiously agree on a verdict. The judge\u2019s final remark to the jurors as he sent them home for their overnight recess was that he hoped that when they returned they would \u201cbe able to resolve the matter.\u201d He thus again, made it clear that what he sought was resolution after full reflection, not one outcome or another. Although we find the trial judge\u2019s remark about \u201cmaking progress\u201d does not constitute error, much less plain error, the better practice would be for trial judges to refrain from using such expressions.\nNo error.", "type": "majority", "author": "MARTIN, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the state.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Geoffrey C. Mangum, Assistant Appellate Defender, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NORVILLE BUSSEY\nNo. 712A86\n(Filed 5 November 1987)\n1. Criminal Law \u00a7 163\u2014 additional instructions \u2014 failure to object \u2014 plain error rule\nThe plain error standard was applicable to additional instructions and remarks by the trial judge following a report that the jury was deadlocked where defendant made no objection to the additional instructions or remarks.\n2. Criminal Law \u00a7 122.2\u2014 inquiry into numerical division of jury \u2014 additional instructions \u2014 verdict not coerced\nThe trial court\u2019s inquiry into the numerical division of the jury after the jury reported that it was deadlocked was not coercive in the totality of the circumstances, and the court\u2019s additional instructions were proper, where the court was confronted with a report of deadlock after the jury had deliberated only a short time on the day the jury first retired; the court made it clear that it did not wish to be told whether the majority favored guilt or innocence; the court was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict; and the court\u2019s additional instructions followed the language of N.C.G.S. \u00a7 15A-1235.\n3. Criminal Law \u00a7 122.2\u2014 numerical division of jury \u2014 court\u2019s remark about \u201cmaking progress\u201d\nWhere the trial court was informed on the first day of deliberations that the numerical division of the jury was eight to four and, upon asking the second day if there had been any change in the jury\u2019s position, the court was told that it was then nine to three, the court\u2019s response, \u201cYou\u2019re making progress,\u201d when considered in the context of the court\u2019s previous lengthy additional instructions, could only be taken to mean that the jury was making progress toward determining whether it could conscientiously agree on a verdict and was thus not error.\nAppeal by defendant from three concurrent judgments imposing two terms of life imprisonment for convictions of rape in the first degree and sexual offense in the first degree and three years\u2019 imprisonment for conviction of common law robbery, entered by Clark, J., at the 7 July 1986 session of Superior Court, Cumberland County. Heard in the Supreme Court 12 October 1987.\nLacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the state.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Geoffrey C. Mangum, Assistant Appellate Defender, for defendant." }, "file_name": "0092-01", "first_page_order": 120, "last_page_order": 126 }