Opinion
No. COA12–1237.
2013-06-4
STATE of North Carolina v. Donwayne Lakaku BASS.
Attorney General Roy Cooper, by Special Deputy Attorney General Mary L. Lucasse, for the State. Michael E. Casterline for Defendant–Appellant.
Appeal by Defendant from judgment entered 15 March 2012 by Judge Henry W. Hight in Superior Court, Durham County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Mary L. Lucasse, for the State. Michael E. Casterline for Defendant–Appellant.
McGEE, Judge.
Donwayne Lakaku Bass (Defendant) was charged with, inter alia, two counts of attempted common law robbery and of having attained habitual felon status. Evidence showed that Defendant demanded money from two men in a parking lot, falsely claiming he had a gun.
The jurors sent a note to the trial court indicating they were unable to reach a unanimous verdict. Defendant moved for a mistrial. Upon the trial court's inquiry, the foreperson indicated that the jurors' division, since that morning or late in the afternoon of the previous day, was eleven to one. The trial court instructed the jury that it “may continue [its] deliberations.” Defendant again requested a mistrial. The trial court indicated it would, instead, give an Allen charge if necessary.
Later, the jury sent a second note, which stated: “Your Honor, at this time, we the jury are unable to reach a unanimous verdict. We have deliberated as you have instructed, and still one juror holds to their convictions as of yesterday. Their vote has not changed. This juror has stated their vote will not change.” The trial court brought the jury in and gave an Allen instruction. Defendant did not object to the Allen instruction or request a mistrial. The jury continued deliberating.
The jury found Defendant guilty of two counts of attempted common law robbery. Defendant admitted his habitual felon status. Defendant appeals.
In his first argument, Defendant contends the trial court erred by (1) giving an Allen instruction and (2) denying Defendant's motion for mistrial.
N.C. Gen.Stat. § 15A–1235 governs the actions a trial court may take when a jury is unable to agree:
(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.
(d) If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.
N.C. Gen.Stat. § 15A–1235 (c), (d) (2011).
Defendant did not object to the Allen charge and therefore failed to preserve this issue for review. Defendant argues the instruction is reviewable for harmless error pursuant to State v. Wilson, 363 N.C. 478, 681 S.E.2d 325 (2009). In Wilson, the trial court “instructed a single juror in violation of [the] defendant's right to a unanimous jury verdict[.]” Wilson, 363 N.C. 486, 681 S.E.2d at 331. Our Supreme Court held the error was preserved, notwithstanding the defendant's failure to object. Id.
The case before us, however, involves an alleged violation of N.C. Gen.Stat. § 15A–1235. Our Supreme Court has rejected is preserved without an objection. State v. Aikens, 342 N.C. 567, 578, 467 S.E.2d 99, 106 (1996). Defendant's challenge to the instruction pursuant to Wilson is not preserved.
Because Defendant failed to preserve his challenge to the Allen instruction, it is reviewable only for plain error. SeeN.C.R.App. P. 10(a)(4). Defendant, however, failed to argue that the trial court committed plain error. Therefore, he is not entitled to plain error review. See State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d 756, 756 (2005) (“[B]ecause defendant did not ‘specifically and distinctly’ allege plain error ..., defendant is not entitled to plain error review of this issue.”).
Defendant further argues the trial court erred in denying his motion for a mistrial. “[T]he action of the judge in declaring or failing to declare a mistrial [under N.C. Gen.Stat. § 15A–1235] is reviewable only in case of gross abuse of discretion. Our review must take into account the totality of the circumstances.” State v. Rasmussen, 158 N.C.App. 544, 556, 582 S.E.2d 44, 53 (2003) (citations omitted). This Court further explained:
In reviewing the totality of the circumstances, some factors to consider 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.” Our courts, however, have not adopted a bright-line rule setting an outside time-limit on jury deliberations, or a rule that deliberations for a certain length of time, in relation to the length of time spent by the State presenting its evidence, is too long.
State v. Baldwin, 141 N.C.App. 596, 608, 540 S.E.2d 815, 823 (2000) (citations omitted).
In the case before us, the trial court did not abuse its discretion. There is no indication the trial court conveyed an impression to the jurors that it was irritated with the jury for not reaching a verdict, nor did the trial court intimate it would hold them until they reached a verdict. Instead, the trial court asked for the numerical division of the jurors and how long they had been at that position. After the second note, the trial court gave an Allen instruction. None of the trial court's actions can be construed as threatening under the totality of circumstances. The trial court did not abuse its discretion in denying Defendant's motion for a mistrial.
Defendant also argues that his habitual felon status “is void because the underlying convictions for attempted common law robbery are in error.” This argument is derivative of Defendant's previous arguments. Because we find no error in Defendant's conviction, we need not address this argument.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).