Opinion
No. 04-1506.
Filed 15 November 2005.
Wake County Nos. 02 CRS 88230, 88233.
Appeal by defendant from judgment entered 23 January 2004 by Judge Orlando F. Hudson in Wake County Superior Court. Heard in the Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General Michelle B. McPherson, for the State. Daniel F. Read for defendant-appellant.
Levonia Yuvette Williams ("defendant") appeals from a judgment entered upon jury verdicts finding her guilty of communicating threats, resisting a public officer, and disorderly conduct. Defendant received a suspended sentence of forty-five days in the custody of the Wake County Sheriff and was placed on unsupervised probation. We find no error.
The State presented evidence that defendant became upset and engaged in a physical altercation with an off-duty Raleigh police officer employed with Kroger after she threatened a Central Carolina Bank ("CCB") employee and was told to leave the premises. The altercation resulted from defendant's attempt to withdraw money from a newly opened CCB account from a branch located inside a Kroger store. Defendant explained to the employee she needed the funds to purchase pharmaceutical drugs for her six-year-old daughter, who had recently been released from the hospital. The CCB branch employees refused to release defendant's money because a "freeze" had been placed on her account due to an error in paperwork.
Defendant was charged with and tried on counts of communicating threats, resisting a public officer, disorderly conduct, assault on a government officer, and second-degree trespass. At the close of the State's evidence and again at the close of all the evidence, defendant moved to dismiss only the charges of assault on a government officer and second-degree trespass on the grounds of insufficiency of the evidence, but failed to move to dismiss the remaining three charges. The jury returned verdicts of not guilty on the charges of assault on a government officer and second-degree trespass but guilty on the charges of communicating threats, resisting a public officer, and disorderly conduct. The trial court sentenced defendant to forty-five days in the custody of the Wake County Sheriff, the sentence was suspended and defendant was placed on unsupervised probation for twelve months. Defendant appeals.
In her first assignment of error, defendant asserts the trial court committed plain error in failing to dismiss the charges of communicating threats, resisting a public officer, and disorderly conduct. As noted previously, defendant did not move to dismiss these charges during trial due to insufficiency of the evidence. Consequently, when a defendant fails to properly preserve a question for appellate review by making a timely request, objection or motion at trial, the only avenue for appellate review is plain error analysis. N.C.R. App. 10(c)(4) (2005). However, in State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995), our Supreme Court considered a defendant's assertion of plain error as to the trial court's submission of charges to a jury when defendant had failed to move to dismiss the charges at the close of all the evidence. Our Supreme Court stated that, "under Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure, the issue of insufficiency was not preserved for appellate review[,]" and overruled the assignment of error without undertaking a plain error analysis. Id.; see also State v. Freeman, 164 N.C. App. 673, 676-77, 596 S.E.2d 319, 322 (2004) (holding that plain error review was unavailable to a defendant who failed to move to dismiss charges based upon insufficiency of the evidence at the close of all evidence as required by Rule 10 (b)(3)). We hold accordingly.
Defendant's remaining assignment of error is whether the jury verdict must be set aside on the grounds that the jury reached the verdict by "lot." An affidavit by one of the jurors indicates, inter alia, the jury was "sharply divided" and reached a compromise finding defendant guilty of some charges and not guilty of others. Defendant asserts that "such a verdict by lot is susceptible to impeachment" by the affidavit of record pursuant to N.C. Gen. Stat. § 15A-1240 (2003). We disagree. N.C. Gen. Stat. § 15A-1240 (2003), entitled "Impeachment of the verdict," provides as follows:
(a) Upon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.
(b) The limitations in subsection (a) do not bar evidence concerning whether the verdict was reached by lot.
(c) After the jury has dispersed, the testimony of a juror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a), only when it concerns:
(1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him; or
(2) Bribery, intimidation, or attempted bribery or intimidation of a juror.
This statute represents a codification of the general rule that, "after the jury renders a verdict and has been discharged, the court will not receive the testimony of jurors to impeach their verdict." State v. Carter, 55 N.C. App. 192, 197, 284 S.E.2d 733, 737 (1981). The official commentary of N.C. Gen. Stat. § 15A-1240 adds that the "traditional rule has been to disallow almost all attempts by a juror to impeach his verdict because to do otherwise would place the finality of verdicts in great jeopardy and subject jurors after the close of the case to intense pressure to come forward and impeach their verdicts." Official Commentary, N.C. Gen. Stat. § 15A-1240. Black's Law Dictionary equates a verdict of lot, to which defendant likens the instant verdict, with a chance verdict, which it defines as a "now-illegal verdict, arrived at by hazard or lot." Black's Law Dictionary 1592 (8th ed. 2004). A "lot" is defined as "an object (as a piece of wood, pebble, die, straw) used as one of the counters in determining a question by the chance fall or choice of one or more of them[.]" Webster's Third New International Dictionary 1338 (1976). There is no evidence that the verdict in the instant case was reached by such means of mere chance; therefore, this argument is unavailing.
Defendant also contends the verdict is a compromise verdict. It is unclear whether defendant equates a compromise verdict with a verdict by lot or merely argues, as an alternative to his argument that the verdict in the instant case was a verdict by lot, that compromise verdicts are impermissible on separate grounds. As an initial matter, for reasons given above, a compromise verdict is separate and distinct from a verdict by lot. Accordingly, to the extent defendant argues that a compromise verdict is a subset of a verdict by lot, we reject this contention.
In the alternative and relying on Bartholomew v. Parrish, 186 N.C. 81, 83-84, 118 S.E.2d 899, 901 (1923) (citation omitted), defendant contends that the verdict in the instant case is an impermissible compromise verdict. In Bartholomew, our Supreme Court stated the following:
A verdict which is reached only by the surrender of conscientious convictions on one material issue by some jurors in return for a relinquishment by others of their like settled opinion on another issue, and the result is one which does not command the approval of the whole panel, is a compromise verdict. Such a verdict is improper and should be set aside as being founded on conduct subversive of the soundness of trial by jury. Thus in a prosecution of joint defendants, where certain of the jurors believe that all of the defendants should be convicted and others that all should be acquitted, a verdict reached by an agreement by which the acquittal of some is exchanged for the conviction of others is a compromise verdict and as such cannot stand.
Bartholomew predates the statutory codification concerning impeachment of a verdict; however, presupposing without determining that Bartholomew was not superceded by N.C. Gen. Stat. § 15A-1620, it cannot avail defendant in the instant case. Our Supreme Court later distinguished Bartholomew in State v. High, 215 N.C. 244, 246, 1 S.E.2d 563, 564-65 (1939) on the grounds that the jury in Bartholomew "returned a verdict which in no aspect of the case was supported by evidence, and it expressly stated in its verdict that it was a compromise." By contrast, in High, "the verdict [wa]s supported by evidence and the defendant was adjudged guilty . . ." of a lesser-included offense. Id. Similarly, in the instant case, the verdict was supported by the evidence and defendant was found guilty of the crime charged. This assignment of error is overruled.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).