State v. Darden

268 S.E.2d 225 (1980)

48 N.C. App. 128

STATE of North Carolina v. Bobby DARDEN.

No. 808SC121.

Court of Appeals of North Carolina.

August 5, 1980.

*227 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Daniel C. Oakley, Raleigh, for the State.

J. Faison Thomson, Jr., Goldsboro, for defendant.

HARRY C. MARTIN, Judge.

Defendant's first assignment of error is the trial court's sustaining objections by the state to certain evidence offered by defendant and allowing the state's motion to strike certain evidence. On direct examination of defendant, he testified as follows:

When I saw him [John Smith] about ten o'clock at Holloman's Store, we just looked at each other, me and John. We don't get along too good. He said something like, you know, well it won't much. I don't recall what it was he said; it won't nothing; see, we don't get along; so we don't speak; we got reasons for not getting along. Defendant was then asked whether Smith "made any threats to you?" This question was objected to; the objection was sustained. Then, in response to the question "Why don't you and John Smith get along?" defendant answered: A. We ain't got along about, since April. We had a difference over a money deal; we don't speak. It's like he's got it in for me.

An objection was sustained, and the court allowed the state's motion to strike. Defendant argues that it was error to exclude this testimony "as to a possible basis for the bias of the State's witness, John Christian Smith."

The record fails to show what answer defendant would have given had the objection to the question concerning threats by Smith not been sustained. It cannot, therefore, be determined that the court's ruling, even if erroneous, was prejudicial. State v. Martin, 294 N.C. 253, 240 S.E.2d 415 (1978). We note, parenthetically, that defendant had already testified that Smith "said something like, you know, well it won't much. I don't recall what it was he said; it won't nothing."

Defendant cites State v. Honeycutt, 21 N.C.App. 342, 204 S.E.2d 238, cert. denied, 285 N.C. 593, 205 S.E.2d 725 (1974), as clear authority for admitting the evidence of possible bias on the part of Smith, a witness for the state. In that case the Court held that defendant was prejudiced by the refusal of the trial court to allow him to testify about a previous altercation he had had with a witness for the state, stating that the evidence should have been admitted to show bias. The witness was the state's only witness to the murder for which the defendant was being tried. The Court found the credibility of the witness critical in the case, because when he testified at two earlier trials the jury was unable to reach a verdict. Defendant was convicted at his third trial when the witness was not *228 present but the transcript of his earlier testimony was read to the jury. Not only was defendant deprived of the opportunity to further cross-examine the witness and to have the jury observe the witness's demeanor, but his burden was "prejudicially compounded" by the court's refusal to allow him to testify about the earlier altercation.

The circumstances are quite different in this case. The victim of the alleged rape, Pamela Bryan, had already testified against the defendant; the credibility of John Smith was not "critical." Although the court allowed the state's motion to strike defendant's testimony that he and Smith had a "difference over a money deal" and "[i]t's like he's got it in for me," there is in the record defendant's evidence that he and Smith "don't get along too good" and "got reasons for not getting along." It was not error for the court to disallow repetitive evidence when evidence of the possible bias had already been entered into the record. This assignment of error is overruled.

Defendant next argues that the court's failure to declare a mistrial, either at the end of the first day of the trial or after receiving the note from the jury foreman the next morning, constitutes reversible error. We do not agree. Defendant relies upon N.C.G.S. 15A-1235(d) for his position: "If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury." Contrary to defendant's contention that it was "clearly incumbent" upon the judge to declare a mistrial, this statute does not mandate the declaration of a mistrial; it merely permits it. Even assuming that the response of the jury foreman after one hour and thirty-four minutes of deliberation the first day and twenty-five additional minutes the second day made it apparent to the judge that there was no "reasonable possibility of agreement," the action of the judge in declaring or failing to declare a mistrial is reviewable only in case of gross abuse of discretion. State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971). Defendant has failed to carry the burden of showing such abuse here.

Defendant's final assignment of error is that the court prejudiced the defendant by its second charge to the jury, after receipt of the note. Again, his argument is that N.C.G.S. 15A-1235 was not complied with. Subsection (c) of this statute reads:

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.

This statute, as indicated by its title, Length of deliberations; deadlocked jury, is applicable in the event the jury is deadlocked. The record in our case fails to show that the jury was deadlocked or unable to agree. In its response to the jury's request for further information, the court stated that "it is apparent to the court that the jury apparently is having some difficulty in reaching a verdict." It went on to caution the jury that a disagreement meant that more time of the court would be spent in a retrial of the action. The legislature by this statute did not undertake to set out what the trial judge must instruct the jury or to limit the instructions the trial judge could give. The test remains whether the charge as a whole is coercive. Isolated mention of the necessity to retry the case does not warrant a new trial unless the charge as a whole is coercive. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978). We do not find that the charge as a whole coerced a verdict in this case. The assignment of error is therefore overruled.

In defendant's trial we find

No error.

WEBB and WELLS, JJ., concur.