State v. Lockhart ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1460
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
Guilford County
v.
No. 12 CRS 080377
DOMENICO ALEXANDER LOCKHART
Appeal by defendant from judgment entered 16 July 2013 by
Judge R. Stuart Albright in Guilford County Superior Court.
Heard in the Court of Appeals 22 May 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
John R. Mills for Defendant.
ERVIN, Judge.
Defendant Domenico Alexander Lockhart appeals from a
judgment sentencing him to a term of 225 to 279 months
imprisonment and ordering him to pay a $500,000 fine based upon
his conviction for conspiring to traffic in heroin by possessing
over 28 grams of that controlled substance. On appeal,
Defendant contends that the trial court erroneously coerced the
jury’s guilty verdict by delivering certain supplemental
instructions in an “extremely loud” voice and by concluding his
supplemental instructions by stating, “[t]ake your time. We
-2-
have all day and all week if necessary.” After careful
consideration of Defendant’s challenges to the trial court’s
judgment in light of the record and the applicable law, we
conclude that the trial court’s judgment should remain
undisturbed.
I. Factual Background
A. Substantive Facts
On the afternoon of 12 June 2012, Deputy Herbert Sampson of
the Guilford County Sheriff’s Department was parked in the
median of Interstate 85 near the Wiley Lewis Bridge when he saw
a blue Honda Civic following a white Lexus too closely. After
making this observation, Deputy Sampson activated his blue
lights and entered the highway in order to make a traffic stop.
Although the driver of the Honda Civic promptly pulled over, the
driver of the white Lexus ignored Deputy Sampson’s signal and
drove on.
As Deputy Sampson approached the Honda Civic, he noticed
that Defendant, who was driving, appeared nervous and that
Defendant’s chest and lap were covered with loose bits of cigar
tobacco, which Deputy Sampson identified as “blunt innards” and
“tobacco shake.” According to Deputy Sampson, such loose bits
of cigar tobacco are associated with marijuana use.
-3-
After Deputy Sampson asked Defendant to produce his
driver’s license, Defendant informed Deputy Sampson that he did
not have a license or any other type of written identification.
However, Defendant did provide his name and date of birth. In
addition, Defendant presented Deputy Sampson with an Enterprise
car rental agreement that indicated that the Honda Civic had
been leased exclusively to a person named Tiffany Push on 29 May
2012 in Patterson, New Jersey, and was scheduled to have been
returned 1 June 2012.
After entering Defendant’s name and date of birth into the
mobile computer terminal located in his patrol vehicle, Deputy
Sampson confirmed that Defendant’s license had been revoked and
that there was an outstanding warrant for Defendant’s arrest.
As a result, Deputy Sampson informed Defendant that he was
required to take Defendant into custody on the basis of the
outstanding warrant. At that point, Deputy Sampson asked
Defendant to exit the Honda Civic, patted him down, handcuffed
him, and placed him in the front passenger seat of Deputy
Sampson’s patrol vehicle.
As Deputy Sampson took Defendant into custody, Defendant
volunteered that the Honda Civic did not contain anything of
interest, an unsolicited statement that made Deputy Sampson
suspicious. As a result, Deputy Sampson directly asked
-4-
Defendant whether there were any drugs, narcotics, or weapons in
the Honda Civic and whether Deputy Sampson could search the
vehicle. In response, Defendant dropped his head to his chest
with a defeated look and said, “[n]o, go ahead.”
In the course of searching the vehicle, Deputy Sampson
found a mixture of marijuana and tobacco on the front seat and a
plastic baggie containing approximately three grams of marijuana
hidden under the center console. In the Honda Civic’s trunk,
Deputy Sampson found a large black suitcase that contained a
blue soft-sided cooler-type lunch bag or box, a black plastic
bag tied in a knot, and other materials he associated with
heroin trafficking. Upon opening the light blue cooler, Deputy
Sampson found 18 grams of heroin powder, scales, stamps, and
cutting agents. In the black plastic bag, Deputy Sampson found
a pie pan containing rice and small bindles of heroin that had
been rubber-banded together. According to Special Agent Patti
Jo Carroll, a forensic scientist with the State Bureau of
Investigation, the white powder seized from the Honda Civic
consisted of more than 28 grams of heroin.
As Deputy Sampson and Corporal Lucas T. Moser of the
Guilford County Sheriff’s Department, who had arrived to assist
Deputy Sampson, were searching the black suitcase, Defendant
called over to Deputy Sampson and said, without having been
-5-
questioned by any law enforcement officer, “I know that I’m
going to be arrested for that stuff, but it’s not mine. The
suitcase was supposed to be in the car I was following.”
As Corporal Moser processed the evidence that had been
taken from the Honda Civic, Deputy Sampson, along with Detective
Tim Weavil of the Guilford County Sheriff’s Department,
interviewed Defendant. Defendant stated that he lived in
Charlotte, that he worked on cars, and that he had repaired a
car for an individual that he only knew as “Cal.” According to
Defendant, “Cal” asked Defendant whether he wanted to make $200
and Defendant gave an affirmative answer. Initially, Defendant
told the investigating officers that he had agreed to drive the
Honda Civic and the heroin from Charlotte to Greenville, North
Carolina, at which point he was supposed to turn the car over to
someone who would drive the car and the heroin to Patterson, New
Jersey. Subsequently, Defendant told the investigating officers
that, although he knew that the trip involved the transportation
of heroin, the heroin was supposed to have been in the white
Lexus that he was following rather than the Honda Civic and
speculated that “Cal” must have transferred the heroin from the
Lexus to the Honda Civic.
B. Procedural Facts
-6-
On 12 June 2012, a magistrate’s order charging Defendant
with trafficking in more than 28 grams of heroin by possession
was issued. On 6 August 2012, the Guilford County grand jury
returned a bill of indictment charging Defendant with
trafficking in more than 28 grams of heroin by possession and
conspiring with an unknown person to traffic in more than 28
grams of heroin by possession.1 On 8 July 2013, Defendant filed
a motion seeking to have any evidence seized from the Honda
Civic suppressed. On 16 July 2013, the trial court entered an
order denying Defendant’s suppression motion.
The charges against Defendant came on for trial before the
trial court and a jury at the 8 July 2013 criminal session of
the Guilford County Superior Court. On 16 July 2013, the jury
returned a verdict convicting Defendant of conspiracy to traffic
in more than 28 grams of heroin by possession and acquitting
Defendant of trafficking in more than 28 grams of heroin by
possession and transportation. At the conclusion of the ensuing
sentencing hearing, the trial court entered a judgment ordering
that Defendant be imprisoned for a term of 225 to 279 months and
1
Although Defendant appears to have been charged with
trafficking in more than 28 grams of heroin by transportation as
well, the record on appeal presented for our review does not
contain any indictment purporting to charge Defendant with
having committed that offense.
-7-
pay a $500,000.00 fine. Defendant noted an appeal to this Court
from the trial court’s judgment.
II. Legal Analysis
In his brief, Defendant argues that the trial court
impermissibly coerced the jury into returning its verdict in
this case. In support of this contention, Defendant asserts
that the trial court delivered an instruction to the jury
concerning the jury’s alleged inability to reach a unanimous
verdict in an impermissible manner and that the language that
appeared at the end of this supplemental instruction clearly
conveyed the message to the jury that the trial court would
compel it to continue deliberating until they had reached a
verdict. We do not believe that either of Defendant’s arguments
have merit.
A. Relevant Factual Information
The jury began deliberating on a verdict at 9:58 a.m. on 16
July 2013. Approximately one hour later, the members of the
jury asked the trial court to reinstruct them concerning the
elements of the offenses with which Defendant had been charged.
After the trial court delivered these supplemental instructions,
the jury resumed its deliberations. At 12:11 p.m., the jury
sent the trial court a note asking, “[w]hat do we do if we
cannot agree on two of the charges?” After reviewing the jury’s
-8-
communication, the trial court informed the parties, without
drawing any objection, that he intended to instruct the jury in
accordance with NCPJI 101.40, which reflects the approach
required by N.C. Gen. Stat. § 15A-1235 and the decision of the
United States Supreme Court in Allen v. United States, 164 U.S.
492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528, 530-31 (1896).2
Once the jury returned to the courtroom, the trial court
delivered a supplemental instruction that was substantively
identical to that set out in NCPJI. 101.40 and concluded by
saying, “[t]ake your time. We have all day and all week if
necessary.” The jury returned to its deliberations at 12:15
p.m. and returned a unanimous verdict convicting defendant of
conspiracy to traffic in more than 28 grams of heroin by
possession and acquitting Defendant of trafficking in more than
28 grams of heroin by possession and transportation at 12:35
p.m. After taking a lunch break, the trial court commenced the
required sentencing hearing, at which point Defendant
unsuccessfully objected to the fact that, as he saw it, the
2
As the Supreme Court has clearly held, the approach
employed in N.C. Gen. Stat. § 15A-1235 represents North
Carolina’s attempt to comply with Allen and its progeny. State
v. Alston, 294 N.C. 577, 597, 243 S.E.2d 354, 367 (1978)
(stating that the “enactment [of N.C. Gen. Stat. § 15A-1235]
provides our trial judges and our practicing attorneys with
clear standards for . . . instructions” like those contemplated
in Allen).
-9-
trial court had delivered an “extremely loud” supplemental
instruction.
B. Preservation of Defendant’s Claims
As he candidly acknowledges, Defendant did not lodge a
contemporaneous objection to the manner in which the trial court
delivered its supplemental instructions or to the content of
those instructions in the court below. Although the parties
have vigorously debated the extent, if any, to which Defendant
properly preserved his challenges to the trial court’s
supplemental instructions, with Defendant claiming that there
was no necessity for a contemporaneous objection to the trial
court’s supplemental instructions and the State claiming that
such an objection was required, we need not devote substantial
time to a thorough discussion of this question given this
Court’s recent decisions in State v. Blackwell, __ N.C. App. __,
__, 747 S.E.2d 137, 140 (2013), and State v. Gillikin, 217 N.C.
App. 256, 261, 719 S.E.2d 164, 168-69 (2011),3 to the effect that
3
Although discretionary review has been granted and a stay
ordered in State v. May, __ N.C. App.__, 749 S.E.2d 483, 490
(2013), disc. review allowed, __ N.C.__, 753 S.E.2d 663 (2014),
which raises the same preservation issue found in Gillikin and
Blackwell, those decisions remain binding upon us unless and
until the Supreme Court overturns our earlier decision. In re
Appeal of Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) (stating that, “[w]here a panel of the Court of Appeals
has decided the same issue, albeit it in a different case, a
subsequent panel of the same court is bound by that precedent,
-10-
claims such as those at issue here implicate the “unanimous
jury” right embodied in N.C. Const. art. I, sec. 24. “While the
failure to raise a constitutional issue at trial generally
waives that issue for appeal, where the error violates the right
to a unanimous jury verdict under Article I, Section 24, it is
preserved for appeal without any action by counsel.” State v.
Wilson, 363 N.C. 478, 479, 681 S.E.2d 325, 326 (2009). As a
result, we will reach the merits of Defendant’s challenges to
the trial court’s supplemental instructions despite the fact
that Defendant failed to raise the issues that he presents for
our review before the trial court in a timely fashion.
C. Standard of Review
In determining whether a trial court’s instructions “force
a verdict or merely serve as a catalyst for further
deliberations,” we consider the totality of the circumstances
“under which the instructions were made and the probable impact
of the instructions on the jury.” Gillikin, 217 N.C. App. at
262, 719 S.E.2d at 168 (quoting State v. Fernandez, 346 N.C. 1,
21, 484 S.E.2d 350, 362–63 (1997)). In the event that the trial
court’s instructions did erroneously “force” a verdict, the
defendant is entitled to relief unless the State shows that the
trial court’s error was harmless beyond a reasonable doubt.
unless it has been overturned by a higher court.”) (citations
omitted).
-11-
Wilson, 363 N.C. at 487, 681 S.E.2d at 331. An error is
harmless beyond a reasonable doubt if it “did not contribute to
the defendant’s conviction.” Gillikin, 217 N.C. App. at 261,
719 S.E.2d at 168 (quoting Wilson, 363 N.C. at 487, 681 S.E.2d
at 331).
D. Specific Challenges to the Supplemental Instructions
1. Basic Principles Governing Supplemental Instructions
The manner in which a trial court should address a jury
that is having trouble reaching a decision is addressed in N.C.
Gen. Stat. § 15A-1235, which was enacted to serve as “the proper
reference for standards applicable to charges which may be given
a jury that is apparently unable to agree upon a verdict.”
State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809
(1980) (citing Alston, 294 N.C. at 596-97, 243 S.E.2d at 366-
67). According to N.C. Gen. Stat. § 15A-1235(a), a trial court
is required to instruct the jury that a verdict must be
unanimous. In addition, N.C. Gen. Stat. § 15A-1235(b) provides
that, in its discretion, a trial court may instruct the jury
that:
(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;
(2) Each juror must decide the case for
himself, but only after an impartial
-12-
consideration of the evidence with his
fellow jurors;
(3) In the course of deliberation, a juror
should not hesitate to reexamine his
own views and change his opinion if
convinced that it is erroneous; and
(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.
On the other hand, however, N.C. Gen. Stat. § 15A-1235(c)
explicitly provides that:
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.
We will now evaluate Defendant’s contentions in light of these
well-established principles of North Carolina law.
2. Delivery of the Supplemental Instructions
As an initial matter, Defendant contends that the trial
court erred by delivering its supplemental instructions using an
“extremely loud” voice. According to Defendant, the volume at
which the trial court allegedly delivered its supplemental
instructions informed the jury of its dissatisfaction with the
length of time that the deliberation process was taking and had
-13-
the effect of coercing the jury into reaching a unanimous
verdict. Although the delivery of a supplemental instruction in
such a manner as to threaten to require the jury to deliberate
for an unreasonable time is unlawful, N.C. Gen. Stat. § 15A-
1235; see State v. Porter, 340 N.C. 320, 336, 457 S.E.2d 716,
724 (1995) (stating that “[s]ome 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”), we do not believe that
anything about the manner in which the trial court delivered its
supplemental instructions had a coercive effect.
As Defendant requested, the Court has listened to a
recording of the trial court’s supplemental instructions. Our
review of the recording of the supplemental instructions
indicates that, while the trial court spoke with sufficient
emphasis to ensure that the jury could hear and understand what
was being said and both raised and lowered the volume at which
it was speaking at different points, the volume level that the
trial court utilized was not excessive given the conditions that
exist in the average trial courtroom. In addition, we detected
nothing in the tone of voice that the trial court utilized in
delivering these supplemental instructions that would have any
-14-
sort of coercive effect. The fact that no one contradicted
Defendant’s post-verdict contention that the trial court
delivered the supplemental instructions in an “extremely loud”
voice is just as consistent with a disregarding of Defendant’s
contention as unmerited as it is with acceptance of the validity
of Defendant’s assertion. As a result, given that a reasonable
juror would not have had any basis for concluding that the trial
court was concerned about the length of time being occupied by
the deliberations process based upon the manner in which the
trial court delivered its supplemental instructions, Defendant
is not entitled to appellate relief on the basis of this
contention.
3. Language Used in the Supplemental Instructions
In addition to asserting that the trial court erred by
delivering its supplemental instructions in an “extremely loud”
voice, Defendant contends that the trial court actively coerced
the jury into reaching a verdict by concluding its supplemental
instructions with the statement, “[t]ake your time. We have all
day and all week if necessary.” In essence, Defendant asserts
that this statement constituted a veiled threat to compel the
jury to continue deliberating until it reached a verdict. We
are unable to agree with Defendant’s characterization of the
trial court’s concluding remarks.
-15-
A careful review of the transcript compels us to conclude
that, rather than representing an attempt to coerce the jury
into reaching a quick verdict, the trial court was simply
attempting to reassure the members of the jury that they should
not be concerned about the length of time that it was taking
them to reach a unanimous verdict. Language similar to that
employed by the trial court in this case has been held to be
unexceptionable by the Supreme Court. For example, in Porter,
340 N.C. at 333, 335, 457 S.E.2d at 722-23, the Supreme Court
found that the trial court’s statement to a jury that had
already been deliberating for four days to the effect that,
“we’ve got plenty of time, there’s no rush, y’all take whatever
time you feel is necessary in this matter” and “we’ve got all
week” did not, when considered in context, have the effect of
coercing a verdict. As a result of the fact that the jury had
been deliberating for slightly less than half a day when the
trial court made the challenged statement to the jury and the
fact that nothing in the language actually utilized by the trial
court in any way intimated that the jury would be required to
continue to deliberate until it reached a verdict, we are unable
to see any error in the language utilized at the conclusion of
the trial court’s supplemental instructions and hold, for that
-16-
reason, that Defendant is not entitled to relief from the trial
court’s judgment on the basis of this contention.4
III. Conclusion
Thus, for the reasons set forth above, we conclude that
neither of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).
4
Although Defendant correctly notes that the trial court in
this case, unlike the trial court in Porter, did not inquire of
the jury if further deliberations would be appropriate before
making the challenged statement, that fact, standing alone, is
not sufficient to cause us to conclude that a different outcome
is appropriate here. Similarly, we are unable to deduce from
the mere fact that the jury reached a verdict approximately 20
minutes after the delivery of the challenged supplemental
instruction that the jury felt intimidated by the trial court’s
conduct, since that fact is just as consistent with a conclusion
that the supplemental instruction achieved its purposes of
facilitating more effective jury deliberations.