State v. Jones

234 S.E.2d 555 (1977)

292 N.C. 513

STATE of North Carolina v. Gregory Hudson JONES.

No. 2.

Supreme Court of North Carolina.

May 10, 1977.

*559 Rufus L. Edmisten, Atty. Gen., James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.

George H. Sperry, Wilmington, for defendant appellant.

HUSKINS, Justice:

It has long been held in this State that "[e]very person charged with crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951); accord, State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966); State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954). Responsibility for enforcing this right necessarily rests upon the trial judge. State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959). He must conduct himself with the "utmost caution in order that the right of the accused to a fair trial may not be nullified by any act of his." State v. Carter, supra. "He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands." Withers v. Lane, 144 N.C. 184, 56 S.E. 855 (1907).

In this regard we said in State v. McVay, 279 N.C. 428, 183 S.E.2d 652 (1971), quoting 3 Strong, N.C.Index 2d, Criminal Law § 122, that:

"Generally, where the jury have retired but are unable to reach a verdict, the court may call the jury back and instruct them as to their duty to make a diligent effort to arrive at a verdict, so long as the court's language in no way tends to coerce or in any way intimate any opinion of the court as to what the verdict should be."

Under certain circumstances language which informs the jurors that they may be kept for a specified period of time unless they reach a verdict may amount to coercion, tainting the verdict. Pfeiffer v. State, 35 Ariz. 321, 278 P. 63 (1929); Canterbury v. Commonwealth, 222 Ky. 510, 1 S.W.2d 976 (1928). It was said long ago in Green v. Telfair, 11 How.Pr. (N.Y.) 260 (1853), that "[a]n attempt to influence the jury, by referring to the time they are to be kept together, or the inconvenience to which they are to be subjected, in case they are so pertinacious as to adhere to their individual opinions, and thus continue to disagree, cannot be justified."

Nevertheless, whether prejudicial error arises from additional instructions urging the jury to agree on a verdict is largely *560 dependent on the facts and circumstances of each case. State v. McKissick, 268 N.C. 411, 150 S.E.2d 767 (1966). In State v. McVay, supra, the trial judge instructed as follows:

"COURT: Members of the jury, you may reconcile any differences you have under the evidence and render a verdict. The Court will express the hope that you will do so. If this jury fails to render a verdict, it would then become necessary to call upon another jury to pass upon the cases. I have no reason to believe that another would have more intelligence and be better qualified than this jury to make the decisions. Even so, the Court would have the jury bear in mind that each person is a keeper of his own conscience and the Court would not have a juror to do violence to his own conscience nor to render verdict. However, we have until Friday night for you to work on this case and no reason to hurry the matter. So take your time and deliberate further, please. Please retire." (Emphasis added.)

The statement was given in response to the inquiry of the jury foreman that, "we have reached an impasse. Shall we continue?" This Court held that in the context of that case "[t]he additional statement that the jury had until Friday to work on the case was given simply to assure the jury that they need not rush their deliberations and that they had ample time in which to consider their verdict." State v. McVay, supra; accord, People v. Haacke, 34 Cal. App. 516, 168 P. 382 (1917); State v. Gresham, 290 N.C. 761, 228 S.E.2d 244 (1976); State v. McKissick, supra; Butler v. State, 185 Tenn. 686, 207 S.W.2d 584 (1948). We now apply these principles to the facts of our case.

During the State's rebuttal testimony the following transpired:

"COURT: Well, while you gentlemen are apparently thinking, let me inquire of the jurors who were empanelled Tuesday what, if anything, I said to you about sessions beyond today. I do recall telling the jurors, or at least two of them, upon their inquiry that we would not have court on Saturday or Sunday. Do you recall if I made any statement to you about Friday evening, meaning after 6:00 p. m. MR. GORE (Juror): Could I say something, sir? COURT: If it is about what I am talking about, yes, sir. MR. GORE: I was going to say that my preference would be to continue tonight instead of having to come back Monday. I mean, that's my preference. COURT: Juror No. 2, I think I promised you we would not have court tomorrow, is that right? MRS. BROCK (Juror No. 2): Yes, sir, and Sunday. COURT: How about tonight? Did I promise you anything about tonight? MRS. BROCK (Juror No. 2): No, that was because I have conflicts on Saturday and Sunday and I still do have the same conflicts. COURT: You explained that before you were selected. I understand that, but you do not have any tonight except for the normal conflicts that most people have? MRS. BROCK: Mine are really abnormal, sir."

Immediately prior to the charge to the jury Judge Martin entered the following order:

"COURT: It is now apparent to the court that this trial cannot be concluded during its regular hours assigned by law for this session of court which expires at 5:00 P.M. on this day. Therefore pursuant to the authority vested in me as presiding judge under G.S. 15-167 I extend this court by virtue of the fact that the trial of a felony is in progress on the last Friday of this session of court and it appears to my satisfaction that it is unlikely that such trial can be completed before 5:00 p. m. Therefore, as the presiding judge, I extend this session of court as it shall be necessary for the purpose of the completion of this court to be completed today, tonight or tomorrow. *561 This the 20th day of February, 1976. 4:20 p. m."

The charge was completed and the jury sent to deliberate at a few minutes past six o'clock on that Friday. The jury returned of its own volition twice; once to view an exhibit and once to ask that the instructions regarding self-defense be repeated. At 9:20 the court called the jury back, inquired as to its progress and then made the following statement:

"Ladies and Gentlemen of the Jury, I realize this has been a long trial and I am not making any effort to rush you, particularly at this time, because we do not have to rush. I can very easily make arrangements for you to spend the night here, which I shall start doing immediately; not here but in quarters that will be provided for you in a convenient lodging area in the City of Wilmington and we can come back tomorrow; and if we don't finish tomorrow we can come back Sunday. Please understand that I am not trying to rush you, but since you say, Mr. Foreman, that you are making progress very slowly I would remind you Ladies and Gentlemen of the Jury what a disagreement means, and remind you again of what I told you in one of the final parts of my chargethat a jury is composed of twelve individuals and you are a deliberative body. It is not usually wise for a juror to take an adamant position at the commencement of deliberations from which they say they will not recede under any circumstances. That's the reason that you have twelve jurors rather than one for to take such an adamant position at the commencement of deliberations may possibly cause you embarrassment further on in the deliberations if you find that your original position was erroneous; so I presume that you Ladies and Gentlemen of the Jury realize what a disagreement would mean, that is, unable to reach a verdict. It means, of course, that there will be another week of Court when the time of the Court will have to be consumed in the trial of these actions again by another jury. You have heard all of the evidence in this case and the charge of the Court as to the law, which appears to be reasonably easy to understand."

It is our view that, in the context of this case, this language amounts to improper pressure upon the jury to arrive at a verdict. Judge Martin knew that some members of the jury had "abnormal conflicts" and consequently had promised two of the jurors that court would not be held on Saturday or Sunday. When he gratuitously called the jury back into court, spoke to them of their duty to agree and threatened to keep them through the weekend unless they reached a verdict, his actions could have had no other effect than to intimidate and to coerce the jury to reach a verdict.

Viewed in its totality, we find that the language embodied in the additional instructions to the jury was coercive and intimidating so as to deprive the jurors of "that freedom of thought and of action so very essential to a calm, fair and impartial consideration of the case." State v. Windley, 178 N.C. 670, 100 S.E. 116 (1919). Defendant must therefore be given a new trial. State v. Roberts, 270 N.C. 449, 154 S.E.2d 536 (1967).

While these utterances alone compel us to grant a new trial, they do not comprise the totality of Judge Martin's role in the deliberations of the jury. Close examination of the record reveals numerous remarks by him in the presence of the jury during the course of the trial, the cumulative effect of which suggests judicial leaning. Whether, by making these remarks, the judge intended to express an opinion is not controlling; rather, the prejudicial effect of judicial utterances flows from the probable meaning attached to them by the jury. State v. McEachern, 283 N.C. 57, 194 S.E.2d 787 (1973).

In view of this disposition of defendant's appeal we find it necessary to pass on only one other assignment of error, to wit: the admission into evidence of the testimony of Trooper Harry Stegall.

Defendant contends the testimony of Trooper Stegall should have been excluded *562 in that, by putting before the jury evidence of the defendant's assault on Trooper Stegall, it showed defendant had committed a separate, distinct offense in contravention of the rule discussed in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Not so. We hold the testimony was properly admitted.

The testimony of Trooper Stegall established salient facts concerning the flight of the defendant. An accused's flight is "universally conceded" to be admissible as evidence of consciousness of guilt and thus of guilt itself. Wigmore on Evidence § 276 (1940). In North Carolina it has long been held that "[s]ubsequent acts, including flight . . . are competent on the question of guilt. [Citations omitted.] The basis of this rule is that a guilty conscience influences conduct." State v. Steele, 190 N.C. 506, 130 S.E. 308 (1925); accord, State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973); State v. Godwin, 216 N.C. 49, 3 S.E.2d 347 (1939); State v. Tate, 161 N.C. 280, 76 S.E. 713 (1912); State v. Nat, 51 N.C. 114 (1858).

Even though the evidence of flight may disclose the commission of a separate crime by defendant, it is nonetheless admissible. State v. White, 101 Ariz. 164, 416 P.2d 597 (1966); State v. Nelson, 261 La. 153, 259 So. 2d 46 (1972); State v. Ross, 92 Ohio App. 29, 108 N.E.2d 77 (1952); Broyles v. State, 83 Okl.Cr. 83, 173 P.2d 235 (1946), cert. denied, 329 U.S. 790, 67 S. Ct. 358, 91 L. Ed. 2d 677 (1946).

Thus in State v. Irick, supra, we held that where immediately following a burglary the defendant attempted to elude police and fired shots at them, such evidence of flight was evidence of guilt and therefore admissible. See, e. g., Fulford v. State, 221 Ga. 257, 144 S.E.2d 370 (1965) (defendant apprehended pursuant to arrest warrant for a separate crime); People v. Anderson, 17 Ill. 2d 422, 161 N.E.2d 835 (1959) (defendant resisted arrest and shot officer); People v. Gambino, 12 Ill. 2d 29, 145 N.E.2d 42 (1957), cert. denied, 356 U.S. 904, 78 S. Ct. 566, 2 L. Ed. 2d 582 (1958) (car stolen in armed escape); Meredith v. State, 247 Ind. 233, 214 N.E.2d 385 (1966) (defendant killed police officer during flight); State v. Nelson, supra (theft of automobile to facilitate flight); State v. Neal, 231 La. 1048, 93 So. 2d 554 (1957) (defendant jumped bail); State v. Ball, 339 S.W.2d 783 (Mo.1960) (defendant assaulted police officer and resisted arrest); State v. Matheson, 225 N.C. 109, 33 S.E.2d 590 (1945) (threats and statements made to taxi driver when cab commandeered to aid defendant's escape); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938) (defendant evaded arrest and shot at officers during flight); State v. Ross, supra (burglaries and larcenies to facilitate flight); Broyles v. State, supra (policeman shot during flight); Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235 (1951) (defendant shot at police officer during flight). Applying these rules we hold the testimony of Trooper Stegall describing defendant's flight competent and admissible.

Nevertheless, defendant contends that by virtue of his offer to stipulate to his identity, to his flight and to the weapon used in the murder for which he is now on trial, there is no real issue on these facts. He argues that the probative value of evidence concerning the shooting of Trooper Stegall is greatly outweighed by the prejudice to the defendant of the evidence of the shooting and thus should not be admitted. Whatever the merits, if any, of this position with regard to identity of the defendant and the weapon, this argument clearly has no merit with respect to the flight of defendant. See State v. Payne, supra. Flight is not an element of homicide, the presence of which must be answered by a yes or no; rather, as we have noted, it is "evidence of consciousness of guilt and thus of guilt itself." It is only a circumstance bearing on defendant's guilt. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Gaines, 260 N.C. 228, 132 S.E.2d 485 (1963). It is open to explanation and rebuttal by the defendant. 2 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 178 and cases cited. Thus the degree or nature of the flight is of great importance to the jury *563 in weighing its probative force.See State v. Hairston, 182 N.C. 851, 109 S.E. 45 (1921); State v. Malonee, 154 N.C. 200, 69 S.E. 786 (1910). For example, it is likely that a jury would attach a different significance where a defendant fled a short distance to a friend's house following the alleged commission of a crime than where, as here, the defendant attempted to flee the state and in doing so assaulted a law enforcement officer. Flight is "relative" proof which must be viewed in its entire context to be of aid to the jury in the resolution of the case. Stipulation to the fact of flight is not sufficient under these circumstances. The testimony of Trooper Stegall was properly admitted.

For the reasons stated there must be a new trial in each of the eight cases. It is so ordered.

NEW TRIAL.