{ "id": 790144, "name": "STATE OF NORTH CAROLINA v. WILLIE ERIC PORTER", "name_abbreviation": "State v. Porter", "decision_date": "1995-06-02", "docket_number": "No. 22A94", "first_page": "320", "last_page": "337", "citations": [ { "type": "official", "cite": "340 N.C. 320" } ], "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": "14 ALR3d 723", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "338 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717875 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0310-01" ] }, { "cite": "368 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "322 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514230 ], "year": 1988, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0462-01" ] }, { "cite": "420 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507321 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0409-01" ] }, { "cite": "155 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569982 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0655-01" ] }, { "cite": "215 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562950 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0408-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "151 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "609" } ], "opinion_index": 0 }, { "cite": "268 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564954 ], "year": 1966, "pin_cites": [ { "page": "693-94" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0690-01" ] }, { "cite": "320 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "11", "parenthetical": "citing State v. Green, 268 N.C. 690, 693-94, 151 S.E.2d 606, 609 (1966)" } ], "opinion_index": 0 }, { "cite": "311 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685063 ], "year": 1984, "pin_cites": [ { "page": "618", "parenthetical": "citing State v. Green, 268 N.C. 690, 693-94, 151 S.E.2d 606, 609 (1966)" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0603-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "340 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "69 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "235 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622833 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0251-01" ] }, { "cite": "417 U.S. 211", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519759 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/417/0211-01" ] }, { "cite": "481 F.2d 685", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1318140 ], "year": 1973, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/f2d/481/0685-01" ] }, { "cite": "451 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "563", "parenthetical": "quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211, 41 L. Ed. 2d 20 (1974)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556750 ], "year": 1994, "pin_cites": [ { "page": "95-96", "parenthetical": "quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211, 41 L. Ed. 2d 20 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0059-01" ] }, { "cite": "321 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "869", "parenthetical": "emphasis added" }, { "page": "869-70" } ], "opinion_index": 0 }, { "cite": "312 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750769 ], "year": 1984, "pin_cites": [ { "page": "206", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0198-01" ] }, { "cite": "120 S.E. 85", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "186 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654110 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/186/0533-01" ] }, { "cite": "14 L. Ed. 2d 730", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "381 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6260112, 6259548, 6259837 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/381/0837-03", "/us/381/0837-01", "/us/381/0837-02" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] } ], "analysis": { "cardinality": 1286, "char_count": 39737, "ocr_confidence": 0.734, "pagerank": { "raw": 3.8720847508342693e-07, "percentile": 0.9005310734332388 }, "sha256": "1ef9ea73fb6e0e4aba6c6cfbef9b40f7468e8715a50a17485809528ab9799c64", "simhash": "1:4be74922750c99f6", "word_count": 6837 }, "last_updated": "2023-07-14T17:34:40.112900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE ERIC PORTER" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nDefendant, Willie Eric Porter, was tried capitally upon proper indictments for first-degree arson and for three counts of first-degree murder at the 21 June 1993 Criminal Session of Superior Court, Hertford County. The jury returned verdicts finding defendant guilty of first-degree arson and guilty of three counts of first-degree murder on the basis of premeditation and deliberation and under the felony-murder rule.\nAt the end of the capital sentencing proceeding, the jury recommended a sentence of life imprisonment for each of the three first-degree murder convictions. The trial court imposed sentences of life imprisonment for the three murders and a fourth sentence of life imprisonment for first-degree arson. All of the sentences are to be served consecutively. Defendant appeals to this Court as a matter of right pursuant to N.C.G.S. \u00a7 7A-27(a) from the judgments in the murder cases. His motion to bypass the Court of Appeals on his appeal from the judgment in the first-degree arson case was allowed by this Court on 12 October 1994.\nThe evidence presented at defendant\u2019s trial tended to show the following: Mr. Clifton Lassiter lived in Wise\u2019s Mobile Home Park in Murfreesboro and dated Ms. Dorothy Porter, defendant\u2019s mother. Mr. Lassiter was blind and was aided by Ms. Porter. On 6 February 1992 Minnie Fleetwood, a neighbor, took Mr. Lassiter and Ms. Porter to the grocery store in Mr. Lassiter\u2019s car. Ms. Fleetwood then took them back to Mr. Lassiter\u2019s mobile home, where they put away the groceries. Defendant and Ms. Daphine Boone arrived, and defendant asked Ms. Porter for money. When his mother told him she did not have any money, defendant began cursing and insulting her. He then took off one of Ms. Porter\u2019s shoes and used it to beat her on the head. Ms. Porter pled with her son to stop. He stopped and threw the shoe out the door of the mobile home. When his mother asked him to return the shoe, defendant went outside, brought the shoe in, and threw it at her. At this point Ms. Fleetwood left the trailer because of \u201cthe way [defendant] was beating on . . . his mother and the way he cursed God.\u201d It was approximately 8:30 p.m.\nAlthough the testimony was unclear at trial as to the precise sequence of events, witnesses testified that defendant continued to quarrel with Ms. Porter and Ms. Boone. At one point defendant kicked open the front door. This action prompted Mr. Lassiter to pick up a knife and chase defendant out of the mobile home. Mr. Lassiter, being blind, was assisted in his efforts by Ms. Boone. After being chased out of the mobile home by the knife-wielding Mr. Lassiter, defendant apologized. However, when hostilities again arose, defendant left, saying, \u201c[T]hat\u2019s all right, I\u2019ll be back .... I\u2019ll get your ass.\u201d\nLater that evening Mr. Eugene Ely and Mr. Dale Hicks were driving home after a night of bowling with Mr. Hicks\u2019 sister and a friend. Mr. Ely saw defendant\u2019s car parked beside the road with the hood open as Mr. Hicks turned his car into the mobile home park. The defendant\u2019s car door was open, and he was standing by it with a white five-gallon plastic pail beside him. The pail was filled with a liquid, some of which had spilled on the ground.\nMr. Hicks drove through the mobile home park to take his sister to her mobile home. After they stopped, Mr. Ely saw defendant running out the door of Mr. Lassiter\u2019s mobile home. Defendant\u2019s back was on fire, and black smoke was coming from the mobile home. Defendant ran toward his car, but stopped, dropped, and rolled to extinguish the fire on his back. As defendant was rolling on the ground, Mr. Lassiter\u2019s mobile home burst into flames. The windows blew in as the fire consumed the front of the mobile home. The fire was reported to police at 11:30 p.m.\nAfter extinguishing the fire on his back, defendant jumped up and got in his car. Mr. Ely attempted to stop defendant by grabbing the handle of his car door, but defendant pulled away at a high rate of speed. Defendant drove further into the mobile home park and then turned his car around and drove past the fire for a second time. This time Mr. Hicks attempted to thwart defendant\u2019s escape by hurling a brick at his car; other witnesses shouted for defendant to stop. Undeterred, defendant drove out of the mobile home park.\nAfter the fire was extinguished, Mr. Ely and Mr. Hicks showed Officer Rodney Pennington, a sergeant of the Hertford County Sheriff\u2019s Department, where the plastic bucket had been placed and the location of the spill. All three agreed that the spilled liquid smelled like gasoline.\nDennis Honeycutt, special agent with the State Bureau of Investigation, entered the burned mobile home. Most of the fire damage had occurred in the center of the structure. The bodies of Ms. Dorothy Porter, Mr. Clifton Lassiter, and Ms. Daphine Boone were located in the living room of the mobile home. All three victims had died from fire inhalation, and their bodies were badly burned. Although kerosene heaters were used to heat the home, the tanks which held the fuel were intact and had not ruptured. None of the heaters were in the area of the point of origin of the fire.\nAt approximately 5:00 a.m. on 7 February 1992, Officer Pennington was dispatched from the scene of the fire to investigate a report that defendant\u2019s car had been seen in a ditch along the side of a dirt road not far from the mobile home park. When Officer Pennington found the car, defendant was sitting in the front seat. The car\u2019s front right tire was flat, and a bumper jack had been applied to the car. The officer did not testify as to the time when he found defendant.\nSubsequent laboratory tests of carpet and debris samples taken from the living area of the mobile home revealed the presence of gasoline. The tests showed that the defendant\u2019s sweatshirt and shoes also bore trace amounts of gasoline.\nDefendant presented no evidence during the guilt-innocence phase of the trial.\nIn an assignment of error, defendant argues that the trial court committed reversible error by overruling his objection to the prosecutor\u2019s reference to his decision not to testify. During closing arguments, the prosecutor argued:\nUsing your own reason and your own common sense, ladies and gentlemen of the jury, I submit to you, when you go back to the jury room that you will find the defendant guilty of first degree murder on the basis of malice .... No accident, ladies and gentlemen of the jury, that he came up and did what he did in the way that he did, cold, calculated murder.\nAnd then when he comes, ladies and gentlemen of the jury, when he comes and tries to hide, that\u2019s no accident. And you haven\u2019t heard anything about any accident.\nLadies and gentlemen of the jury, the evidence in this case is there are only three folks that can tell what happened, you know what, those three folks are dead and the person who did it.\nYou know what happened before and you know what he did afterwards, and ladies and gentlemen of the jury, that\u2019s what the evidence is in this case.\n(Emphasis added.) At this point, defendant objected and moved to strike. The trial court overruled the objection. The prosecutor then resumed his argument that \u201cthe evidence is uncontradicted.\u201d\nOn appeal the defendant contends that the prosecutor\u2019s argument deprived him of rights guaranteed by the Constitution of North Carolina. Article I, Section 23 of the Constitution of North Carolina states that a defendant in a criminal case cannot \u201cbe compelled to give self-incriminating evidence.\u201d N.C. Const, art. I, \u00a7 23. This proscription is mirrored in N.C.G.S. \u00a7 8-54, which provides that a defendant in a criminal trial cannot be compelled to testify or \u201canswer any question tending to incriminate himself.\u201d N.C.G.S. \u00a7 8-54 (1986). Even before the Supreme Court of the United States held in Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, reh\u2019g denied, 381 U.S. 957, 14 L. Ed. 2d 730 (1965), that a reference to a defendant\u2019s failure to testify violates the accused\u2019s constitutional right to remain silent, this Court held that N.C.G.S. \u00a7 8-54 prohibited comment on a defendant\u2019s failure to testify. See, e.g., State v. Humphrey, 186 N.C. 533, 120 S.E. 85 (1923).\nWe have stated that \u201cthe purpose behind the rule prohibiting comment on the failure to testify is that extended reference by the court or counsel concerning this would nullify the policy that the failure to testify should not create a presumption against the defendant.\u201d State v. Randolph, 312 N.C. 198, 206, 321 S.E.2d 864, 869 (1984) (emphasis added). In Randolph, we emphasized the fact that \u201c[a]ny reference to the failure to testify was so brief and indirect as to make improbable any contention that the jury inferred guilt from the failure of defendants to testify.\u201d Id. at 206, 321 S.E.2d at 869-70. We have emphasized that \u201c[a] prosecutor violates [this rule] if \u2018the language used [was] manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be[,] a comment on the failure of the accused to testify.\u2019 \u201d State v. Rouse, 339 N.C. 59, 95-96, 451 S.E.2d 543, 563 (1994) (quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff\u2019d, 417 U.S. 211, 41 L. Ed. 2d 20 (1974)).\nIn the present case, the prosecutor\u2019s argument did not exhibit a manifest intent to comment on defendant\u2019s failure to testify. The prosecutor\u2019s meaning when using the words \u201ctries to hide\u201d is not absolutely clear, but it seems to have been a reference to defendant\u2019s ill-planned and ill-fated escape from the scene of the fire. In no way can we conclude that \u201ctries to hide\u201d must be construed as an extended reference to defendant\u2019s failure to testify rather than a reference to his attempt to escape and avoid police.\nThe defendant contends that the instant case is on all fours with State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952). In McLamb, defendant also did not testify, but his wife and three other women did. During his closing argument, the prosecutor said that defendant was \u201chiding behind his wife\u2019s coat tail.\u201d This Court held that the statement was \u201ctantamount to comment on his failure to testify\u201d and awarded a new trial. Id. at 257, 69 S.E.2d at 541. In McLamb, the contested statement could have had no other meaning than that defendant was relying on his wife\u2019s testimony to present his case rather than testify himself. However, in the case sub judice, \u201ctries to hide\u201d has a literal meaning in the context of the evidence presented; defendant fled and tried to hide after the fire to avoid apprehension by the police. Consequently, except for the similarity of the contested phrase itself, the two cases are distinguishable.\nWe also conclude from the evidence presented in this case that the prosecutor\u2019s statement that only the three victims and the perpetrator knew exactly what happened inside the mobile home simply was the statement of a truism, i.e., when only four people are present at an event, only those four people can know exactly what happened. This comment did not prejudice the defendant. To the contrary, the prosecutor\u2019s comment underscored the fact that if the defendant was not the perpetrator, he would not know what had happened, and his failure to testify would be entirely consistent with his innocence. Finally, with regard to this assignment, we note that the prosecutor\u2019s statement that \u201cyou haven\u2019t heard anything about any accident\u201d was merely a permissible comment on the defendant\u2019s failure to produce evidence. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). For the foregoing reasons, we conclude that this assignment of error is without merit.\nDefendant also assigns error to the trial court\u2019s failure to exercise its discretion in determining the proper response to a question asked by the jury during its deliberations. Following the trial court\u2019s jury instructions, and after an hour and fifteen minutes of jury deliberations, the trial court informed counsel that the jury had a question. Addressing the parties, the trial court said:\nI have brought y\u2019all back in because Mr. Twine [the bailiff] came into chambers and said that the jury had handed him a note. And I have just unfolded it and looked at it, and it asks a question about what some of the evidence showed.\nAnd I quote, I\u2019m going to make this Court\u2019s Exhibit Number 1 and put it in the record. \u201cWhat time of day was the defendant\u2019s car spotted by police?\u201d\nI don\u2019t guess there\u2019s any way of answering that question, I\u2019ll just have to tell them to rely on their recollection of the evidence.\nMr. Twine, bring the jury in.\nBefore you do that, I don\u2019t think \u2014 I don\u2019t think it\u2019s any practical way to go back and fish this \u2014 let them hear some transcript of the \u2014 I believe there is no practical way to do it with this particular question.\nAnyway, bring the jury back.\n(Jury Returns To Courtroom.)\nMembers of the jury, I have received your question and have brought you back in to tell you I\u2019m not able to answer it. I will just have to instruct you to be guided by your own recollection of the evidence, y\u2019all have heard it and we don\u2019t have any practical way to do that and it would be inappropriate obviously for me to undertake to tell the jury anything about what the evidence is since y\u2019all are the sole judges of the weight and the credibility of the evidence.\nSo I\u2019ll just have to ask you to be guided by your own recollection of the evidence with regard to this matter. You may retire and continue your deliberations.\nAt this point, the jurors returned to their deliberations.\nDefendant contends that the trial court in the instant case erred by failing to exercise its discretion. We disagree.\nThe decision to grant or deny a jury request for a review of evidence is committed to the discretion of the trial court. N.C.G.S. \u00a7 15A-1233(a) (1988); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). We have held that the trial court errs where it does not exercise its discretion in determining whether the jury should be allowed to review the evidence introduced at trial. Ashe, 314 N.C. 28, 331 S.E.2d 652. However, we conclude that this principle has no applicability here.\nIn the present case, the trial court read the jury\u2019s question into the record. Then the trial court stated, \u201cI don\u2019t guess there\u2019s any way of answering that question.\u201d Before summoning the jury, the trial court concluded that \u201cthere is no practical way\u201d to answer the jury\u2019s inquiry. When the jurors were brought back into the courtroom, the trial court instructed them that it could not answer their question and that they must rely on their own recollection.\nAlthough one witness, Officer Pennington, testified that he was dispatched at approximately 5:00 a.m. to go to Rural Paved Road 1300, where defendant and his car were located, the officer did not testify at what time he actually first encountered defendant\u2019s car or who first saw the car. The transcript is devoid of any testimony as to exactly when the police first saw the car. Therefore, the jury\u2019s question related to a point for which no direct evidence had been introduced. The trial court could not exercise its discretion as to whether to allow the jury to review evidence on a point, when no such evidence had been introduced. The trial court did not err in its ruling, and this assignment of error is without merit.\nIn another assignment of error, defendant contends that the trial court committed reversible error by instructing an alternate juror, in the presence of the twelve jurors who decided his case and just before they retired to deliberate, that the alternate must remain available because he might be needed further. Specifically, the trial court said:\nI\u2019m not going to discharge you because we may need you further in this case. So you might have to sit around and twiddle your thumbs, if you\u2019ll step out into that jury room, I\u2019ll let the original twelve go to the jury room.\nThe defendant did not object at trial to this statement to the alternate juror.\nOn appeal defendant asserts that the .trial court\u2019s comments patently intimated to the jurors that the trial court believed the evidence to justify verdicts of guilty of first-degree murder, which might necessitate the alternate juror\u2019s presence at a capital sentencing proceeding. We disagree.\nJudicial expression of opinion regarding the evidence is statutorily prohibited under N.C.G.S. \u00a7\u00a7 15A-1222 and -1232. \u201cA remark by the court is not grounds for a new trial if, when considered in the light of the circumstances under which it was made, it could not have prejudiced defendant\u2019s case.\u201d State v. King, 311 N.C. 603, 618, 320 S.E.2d 1, 11 (1984) (citing State v. Green, 268 N.C. 690, 693-94, 151 S.E.2d 606, 609 (1966)). The burden rests upon defendant to show that the trial court\u2019s remarks were prejudicial. State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985). With these principles in mind, we do not find that the trial court\u2019s statement expressed any opinion regarding the evidence or its sufficiency. Further, the trial court made it clear that it had no such opinion by informing the jury that:\nThe law as it should requires a presiding judge to be impartial. Do not draw any inference from any ruling that I\u2019ve made, or any inflection in my voice or expression on my face or any question that I might have asked a witness or anything else that I might have said or done during this trial, that I have an opinion or that I have tried to intimate to the jury an opinion as to whether part of the evidence ought to be believe [sic] or disbelieved or as to whether any facts have been proved or not proved or as to what your findings ought to be.\nWe conclude that the trial court\u2019s comment did not constitute prejudicial error. This assignment of error is without merit.\nDefendant next assigns error to the trial court\u2019s instruction to the jury that it could consider \u201cthe nature of the assault\u201d on the issue of intent to kill. Defendant contends that the trial court erred in this regard by giving the following jury instruction regarding the first-degree murder charges:\nIntent is a mental attitude which is seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.\nAn intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties and other such relevant circumstances.\nWhere jury instructions are given without supporting evidence, a new trial is required. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). Defendant contends that there was no evidence introduced at trial tending to show an assault in the present case. We disagree.\nIn the present case, evidence tended to show that defendant was seen immediately before the fire with a five-gallon bucket of gasoline. Having previously threatened the occupants of the mobile home with the words, \u201cI\u2019ll get your ass,\u201d defendant deposited the gasoline in the mobile home, which immediately ignited. Witnesses then saw defendant exit the smoking mobile home with his clothes on fire. The mobile home then exploded into flames.\nThe word \u201cassault\u201d has been defined as an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967). The intentional pouring of a large amount of highly volatile and flammable liquid such as gasoline into living quarters heated by kerosene space heaters certainly would put a person of reasonable firmness in fear of immediate personal injury. Therefore, the evidence in the present case does tend to show an assault upon the victims. Consequently, the jury instruction on intent in this case was proper. This assignment of error is without merit.\nIn another assignment of error, defendant contends that the trial court committed reversible error requiring a new trial when it denied defendant\u2019s motions for mistrial based on the jurors\u2019 repeated reports that they were deadlocked and based on the length of the deliberations. The jury deliberated for more than fourteen hours over a period of four days, including a weekend recess.\nThe jury began deliberating Thursday at approximately 3:00 p.m. Defendant moved for a mistrial during the jury\u2019s lunch recess on Friday, but the motion was denied by the trial court. The trial court allowed the jury to recess from Friday afternoon until Monday. After the jury had begun its deliberations on Monday morning, the trial court called the jury into the courtroom to inquire of the foreman, Mr. Spears, as follows:\nThe Court: You\u2019ve been out for about an hour and forty minutes, I thought I\u2019d give you a recess so that you can refresh yourself.\nLet me inquire, Mr. Spear [sic], is the jury making any progress?\nMr. Spears: We\u2019re at a standstill right now, sir.\nThe Court: You want to continue to deliberate, you think further deliberations will bear fruit? Y\u2019all were out all day Friday.\nMr. Spears: According to the ones who\u2014\nThe Court: (Interposing) I don\u2019t want to know what your situation is at all. I just want to \u2014 .\nMr. Spears: At thie [sic] time, no, I don\u2019t think \u2014 .\nThe Court: Let me do this. Let me give you a recess, let y\u2019all refresh yourselves, come back in fifteen minutes and have your seats. I\u2019ll let you go out and I\u2019ll let y\u2019all discuss it a little bit further and then you come back in and let me know what \u2014 y\u2019all make some decision about, whether or not you think you can make further progress. There is no rush.\nI don\u2019t want to pursue anybody to do anything. I\u2019ll be guided by y\u2019all\u2019s assessment of what you think the situation is. I don\u2019t want to interfere in it. So take fifteen minutes, cease your deliberations and remember my instructions about your conduct.\nCome back and have your seats and we\u2019ll do that.\nAfter fifteen minutes, the jury was returned to the courtroom. During its absence, defendant renewed his motion for a mistrial. It was denied.\nWhen the jury was reconvened, the trial court again addressed the jurors:\nThe Court: All right, Mr. Spears, I\u2019m going to let you all again retire, and I want you to understand, all the jurors to understand, that we\u2019re here, we\u2019ve got plenty of time, there\u2019s no rush, y\u2019all take whatever time you feel is necessary in this matter.\nIf you feel that you\u2019re reached an impossible impasse, if you\u2019ll let me know about that, we\u2019ll discuss it further.\nSo I\u2019m going to return the verdict sheets to you and let you continue and let me know what your situation is.\nAgain, the jury retired to deliberate. After an hour and twenty minutes, the trial court returned the jury to the courtroom and asked if the jury had arrived at a unanimous verdict. The foreman responded that it had not but that the jury would \u201ccontinue one more time.\u201d The trial court then called a lunch recess.\nAfter lunch and before sending the jury to the jury room, the trial court gave the following instruction:\nMembers of the jury, before you continue your deliberations, let me say this to you. First, jurors have a duty to consult with one another, and to deliberate with a view of reaching an agreement, if it can be done without violence to individual judgment.\nOf course, each juror must decide the case for himself, but only after impartial consideration of the evidence with his fellow jurors. During the course of deliberations, the juror should not hesitate to reexamine his own views and change his opinion if he\u2019s convinced it is erroneous.\nNo juror should, of course, surrender his honest conviction as to weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.\nAfter another hour and twenty minutes, the trial court had the jury returned to the courtroom, and the following dialogue took place:\nThe Court: Mr. Spears, let me make an inquiry again, without asking you how you\u2019re divided or anything of that kind, I\u2019d just like to know if you feel the jury is making any progress towards reaching a verdict.\nMr. Spears: No, sir.\nThe Court: Again, we\u2019ve got all the time in the world, and I\u2019m not rushing you, don\u2019t want you to feel rushed or anything of that kind.\nMy question is, do you feel that if we stay longer that the jury will make any progress, if you will give me a straight-up assessment as best you can?\nMr. Spears: No, sir.\nThe Court: You don\u2019t believe you will?\nLet me ask, is anybody on the jury who dissents from what Mr. Spears said?\nIf you do raise your hand or let me put the question another way. If there is anyone on the jury who feels that we can make progress, that the jury can make progress if you continue deliberations.\n(No response.)\nThe Court: Again, I don\u2019t want you to feel rushed, but if there is anybody who feels like we can make progress, I think we ought to continue to try, if you can, but if all of you honestly are satisfied that you\u2019ve done all you can do, and there is no need to continue, I need to know that.\nI need to know what y\u2019all\u2019s feeling is. Let me ask you, I was going to give you a recess, let me ask you to do this. Having the questions I\u2019ve put to you, do you want to \u2014 let me let you retire for just a moment and discuss the questions of whether or not you think further deliberations with the other folks and give y\u2019all\u2019s . . . honest assessment of what you think the prospects are, and if the' honest prospect is you can\u2019t make any \u2014 you know, are not able to make any progress, just tell me that.\nI don\u2019t want to keep you here unnecessarily but again, if you feel you can make progress, we\u2019ve got all week, take whatever time you need. Let me let y\u2019all \u2014 I was going to give you a break, but let me do that, let me ask you to step back and consider the questions I just put to you, and I\u2019ll bring you back. Knock on the door when you\u2019re ready to answer those propositions.\nAfter ten minutes in the jury room, the jury returned and reported that it wished to deliberate further. After an additional hour of deliberations, the jury reported that it had arrived at some verdict or verdicts but that it had not reached verdicts as to all of the charges. The trial court then sent the jury home for an overnight recess. The next morning, the jury deliberated for another hour and ten minutes before returning verdicts of guilty as to all of the charges. The jury had deliberated for a total of fourteen hours and twenty minutes, spanning four days.\nIn deciding whether the trial court coerced a verdict by the jury, the appellate court must look to the totality of the circumstances. State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992). Some of the factors considered are whether the trial court conveyed an impression to the jurors that it was irritated with them for not reaching a verdict and whether the trial court intimated to the jurors that it would hold them until they reached a verdict. State v. Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988).\nIn the present case, defendant contends that the trial court intimated that it was unhappy with a report of a deadlocked jury and would hold the jury until it reached a verdict. Defendant contends that the various exchanges between the trial court and the foreman could only have communicated the court\u2019s displeasure. We find no merit in this argument. Nothing in the record suggests an expression by the trial court that it was displeased with the jurors.\nDefendant also refers to the trial court\u2019s statements that \u201cwe\u2019ve got all the time in the world\u201d and \u201cwe\u2019ve got all week.\u201d He argues that those statements conveyed the meaning that the trial court would force the jury to continue to deliberate until a verdict was reached, no matter how long it took. We do not agree.\nGuidelines for instructing a potentially deadlocked jury are contained in N.C.G.S. \u00a7 15A-1235, which states:\n(a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.\n(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:\n(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;\n(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;\n(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and\n(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\n(c) If 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.\n(d) If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.\nN.C.G.S. \u00a7 15A-1235 (1988). It is clearly within the sound discretion of the trial court to determine whether to give an instruction pursuant to subsection (c) of this statute. State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986).\nIn this case, it was within the trial court\u2019s discretion to require the jury to continue its deliberations without giving the instructions contained in subsections (a) and (b). N.C.G.S. \u00a7 15A-1235(c). This was the action taken by the trial court when the jury did not return a verdict by midmoming Monday, the second full day of deliberations. After that instruction to continue to deliberate, and before the lunch recess on Monday, the foreman told the trial court that although the jurors had not reached a unanimous verdict, they were \u201cgoing to continue one more time.\u201d This statement evinces the jury\u2019s own assessment that an agreement could be reached.\nAfter lunch, the trial court instructed the jury in accord with N.C.G.S. \u00a7 15A-1235(a) and (b). That afternoon, the trial court inquired whether further deliberations would be worthwhile. After being informed by the foreman that progress was at a standstill, the trial court asked the jury to return to the jury room to consider simply whether additional deliberations would be fruitful. After ten minutes in the jury room, the jury returned and responded that further deliberations were worthwhile. By the end of that day, the jury had reached some verdict or verdicts but had not reached verdicts as to all charges. After an overnight recess, the jury deliberated further and returned verdicts finding defendant guilty of all charges.\nThe statements of the jury and its subsequent actions validate the trial court\u2019s determination that further deliberations were worthwhile. The jury decided in the privacy of the jury room that it could come to agreement and did so within a few hours. Considering the totality of the circumstances and giving proper deference to the trial court\u2019s exercise of discretion, we can only conclude that the trial court did not abuse its discretion by denying defendant\u2019s motion for a mistrial and giving additional jury instructions. The decision to convict a man of arson and three counts of first-degree murder is a particularly heavy one; considerable deliberation is warranted. Here, the trial court facilitated that deliberation, but it did not force a verdict.\nMoreover, we find no merit in defendant\u2019s argument that the deliberations were too long, in light of the time needed for the actual trial. Although the jury deliberated for four days, while only two days were used for the presentation of evidence, we decline to adopt any rule as to how long the jury should be allowed to deliberate which is based on the time required for the State to present evidence. It is left to the discretion of the trial court to decide if jury agreement as to a verdict is reasonably possible. N.C.G.S. \u00a7 15A-1235(d). Here, the trial court did not abuse its discretion. Therefore, we find no merit in this assignment of error.\nThe defendant received a fair trial free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by David F. Bloke, Assistant Attorney General, for the State.", "Malcolm Ray Blunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE ERIC PORTER\nNo. 22A94\n(Filed 2 June 1995)\n1. Criminal Law \u00a7 427 (NCI4th)\u2014 prosecutor\u2019s statements during closing argument \u2014 not comments on defendant\u2019s failure to testify\nThe prosecutor\u2019s reference in his closing argument in a trial for arson and three murders to when defendant \u201ccomes and tries to hide\u201d was not an improper comment on defendant\u2019s failure to testify but was a reference to defendant\u2019s attempt to escape from the scene of the crimes and to avoid the police. Moreover, the prosecutor\u2019s statement that only the three victims and the perpetrator knew exactly what happened inside the mobile home was the statement of a truism and not a comment on defendant\u2019s failure to testify, and his statement that \u201cyou haven\u2019t heard anything about any accident\u201d was merely a permissible comment on defendant\u2019s failure to produce evidence and not a comment on defendant\u2019s failure to testify.\nAm Jur 2d, Trial \u00a7\u00a7 577-587.\nComment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused\u2019s failure to testify. 14 ALR3d 723, supp sec. 1.\n2. Criminal Law \u00a7 496 (NCI4th)\u2014 jury question about evidence \u2014 no evidence on point \u2014 no discretion to review evidence\nWhere the jury sent the trial judge a question as to what time of day defendant\u2019s car was spotted by the police, but no direct evidence had been introduced on this point, the trial court could not exercise its discretion as to whether to allow the jury to review evidence on this point, and the trial court did not err by instructing the jurors that it could not answer their question and that they must rely on their own recollection of the evidence. N.C.G.S. \u00a7 15A-1233(a).\nAm Jur 2d, Criminal Law \u00a7\u00a7 918 et seq.\n3. Criminal Law \u00a7 398 (NCI4th)\u2014 instruction to alternate juror \u2014 no expression of opinion\nThe trial court\u2019s instruction to an alternate juror in a capital case, in the presence of the twelve jurors who decided the case and just before they retired to deliberate, that the alternate must remain available because he might be needed further did not constitute an expression of opinion that the evidence justified verdicts of guilty of first-degree murder which might necessitate the alternate juror\u2019s presence at a capital sentencing proceeding. N.C.G.S. \u00a7 15A-1222, 15A-1232.\nAm Jur 2d, Criminal Law \u00a7\u00a7 918 et seq.\n4. Homicide \u00a7 476 (NCI4th)\u2014 instructions \u2014 intent to kill\u2014 consideration of nature of assault \u2014 evidence of assault\nThere was sufficient evidence of an assault upon three murder victims to support the trial court\u2019s instruction that the jury could consider \u201cthe nature of the assault\u201d on the issue of intent to kill where the evidence tended to show that defendant had previously threatened the occupants of a mobile home; defendant poured a large amount of gasoline into the mobile home, which was heated by kerosene space heaters; the gasoline ignited; defendant was seen exiting the smoking mobile home with his clothes on fire; and the mobile home then exploded into flames. The intentional pouring of a large amount of a highly volatile and flammable liquid such as gasoline into living quarters heated by kerosene space heaters certainly would have put a person of reasonable firmness in fear of immediate personal injury.\nAm Jur 2d, Criminal Law \u00a7\u00a7 918 et seq.\n5. Criminal Law \u00a7\u00a7 574, 879 (NCI4th)\u2014 deadlocked jury\u2014 requiring jury to deliberate further \u2014 length of deliberations \u2014 denial of mistrial \u2014 verdict not coerced\nThe trial court in a prosecution for arson and three counts of first-degree murder did not err by denying defendant\u2019s motions for a mistrial based on the jurors\u2019 reports that they were deadlocked and on the length of deliberations and did not coerce a verdict by giving the jury additional instructions where the jury began deliberating on Thursday at 3:00 p.m.; the jury recessed from Friday afternoon until Monday; the jury foreman reported at midmorning on Monday that the jury was deadlocked; the trial court directed the jury to continue to deliberate without giving the instructions contained in N.C.G.S. \u00a7 15A-1235(a) and (b); before the lunch recess on Monday, the foreman told the court that, although the jurors had not reached a unanimous verdict, they were \u201cgoing to continue one more time\u201d; after lunch, the trial court instructed the jury in accord with \u00a7 15A-1235(a) and (b); the trial court inquired later on Monday afternoon whether further deliberations would be worthwhile, and after being informed that progress was at a standstill, asked the jury to return to the jury room to consider whether additional deliberations would be fruitful; the jury returned after ten minutes and responded that further deliberations were worthwhile; the jury reached some verdict or verdicts by the end of the day but did not reach verdicts as to all charges; after an overnight recess, the jury deliberated for an hour and ten minutes on Tuesday and returned verdicts finding defendant guilty of all charges; the jury deliberated over four days for a total of fourteen hours and twenty minutes; and nothing in the record suggests any expression by the trial court that it was displeased with the jurors and would hold the jury until it reached a verdict.\nAm Jur 2d, Trial \u00a7\u00a7 573 et seq.\n6. Criminal Law \u00a7 881 (NCI4th)\u2014 deadlocked jury \u2014 court\u2019s statements not coercive\nThe trial court\u2019s statements that \u201cwe\u2019ve got all the time in the world\u201d and \u201cwe\u2019ve got all week\u201d did not convey the meaning that the court would force the jury to deliberate until a verdict was reached, no matter how long it took.\nAm Jur 2d, Trial \u00a7 1602.\n7. Criminal Law \u00a7 876 (NCI4th)\u2014 deadlocked jury \u2014 further deliberations \u2014 discretion not to give statutory instructions\nIt was within the trial court\u2019s discretion to require the jury to deliberate further without giving the instructions contained in N.C.G.S. \u00a7 15A-1235(a) and (b). N.C.G.S. \u00a7 15A-1235(c).\nAm Jur 2d, Trial \u00a7\u00a7 1054 et seq.\n8. Criminal Law \u00a7 572 (NCI4th)\u2014 motion for mistrial \u2014 length of deliberations \u2014 time required for evidence not considered\nThe trial court did not err by denying defendant\u2019s motions for a mistrial based on the jury\u2019s deliberations for four days when only two days were used for the presentation of evidence, since no rule will be adopted as to how long the jury should be allowed to deliberate based on the time required for the State to present evidence. Rather, it is left to the discretion of the trial court to decide if jury agreement as to a verdict is reasonably possible. N.C.G.S. \u00a7 15A-1235(d).\nAm Jur 2d, Trial \u00a7\u00a7 1493 et seq.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment entered by Griffin, J., on 2 July 1993, in the Superior Court, Hertford County, sentencing defendant to four consecutive sentences of life imprisonment for three counts of first-degree murder and one count of first-degree arson. Defendant\u2019s motion to bypass the Court of Appeals on the arson conviction was allowed 12 October 1994. Heard in the Supreme Court on 10 January 1995.\nMichael F. Easley, Attorney General, by David F. Bloke, Assistant Attorney General, for the State.\nMalcolm Ray Blunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0320-01", "first_page_order": 352, "last_page_order": 369 }