State v. Davis

300 S.E.2d 861 (1983)

STATE of North Carolina v. Wilbert Louis DAVIS.

No. 829SC712.

Court of Appeals of North Carolina.

April 5, 1983.

*863 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. John R. Corne, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

VAUGHN, Chief Judge.

Defendant's first argument is that he was deprived of his right to a unanimous verdict as required by Art. 1, § 24 of the North Carolina Constitution. Defendant contends that one juror, Bertha Brodie, was coerced into assenting to the verdict. We do not agree. After the jury finished deliberating, they returned to the courtroom and the assistant clerk read the following: "We, the jury, by unanimous verdict, find the defendant, Wilbert Louis Davis, to be guilty of driving while his license was suspended." Then he asked: "Is this your verdict, so say you all? If it is, please raise your hand." All the jurors raised their hands. The clerk then polled the jury. When he reached the eleventh juror, the following exchange took place:

Clerk: Bertha Brodie. Your foreman has returned a verdict of guilty of driving while his license was suspended. Is this your verdict and do you now assent thereto? Juror Brodie: Not guilty. The Court: Excuse me, ma'am? Juror Brodie: What do you say? I vote guilty or not guilty? The Court: Guilty? Juror Brodie: Oh, yes, ma'am. Clerk: Guilty of driving while The Court: Is that your verdict? Juror Brodie: Yes, ma'am. The Court: And do you still assent thereto? Juror Brodie: Yes, sir.

The purpose of polling the jury is to give each juror an opportunity, before the verdict is recorded, to declare his or her assent in open court, and enable the court to determine that a unanimous verdict has been reached. Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (1968). A verdict is not defective if the juror understood that he or she has a right to dissent and eventually freely assented to the verdict. State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976). In this case it is likely that when Brodie said "Not guilty" she was asking if the clerk's question was whether she voted guilty or not guilty. Her subsequent assent to the verdict was unequivocal. Defendant was convicted by an unambiguous, unanimous verdict.

Defendant's second argument is that the trial court erred in denying his motion for a continuance to enable him to secure attendance of his witnesses. A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling is not reviewable absent abuse of discretion. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975). The question is one of law, not discretion, and is reviewable on appeal if the motion is based on a right guaranteed by the federal and state constitutions. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). The question here is one of law because the right to face one's accusers and witnesses with other testimony is guaranteed by the sixth amendment to the federal constitution, applicable to the states through the fourteenth amendment, and by Article I, sections 19 and 23 of the North Carolina Constitution. State v. Cradle, 281 N.C. 198, 188 *864-868 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972). Defendant contends he was prejudiced because the testimony of the absent witnesses would have established testimony critical to his defense and refuted Valentine's testimony. Defendant, however, failed to include in the record the proposed testimony of the absent witnesses. Defendant's counsel merely said,

I would like for the record to show that the defendant, prior to entering his plea, moved for a continuance for reason that three or four of his defense witnesses are not present or available for trial; that all four of them are under subpoena, namely, Charles Smith, Ricky Walker, Johnny Lee Davis and Wanda Allen. That the majority, or all but one of these witnesses were present in court yesterday when the case was calendared; however, for reasons unknown to me and just only speculating, they are not here today. And the defendant is of the opinion that they are vital to his defense in this cause.

Since defendant had an opportunity to present his defense through his own testimony and the testimony of his nephew, Rufus Davis, and has failed to show how he was prejudiced by the absence of his other witnesses, the testimony of the absent witnesses would not have added anything more than corroboration to his defense. The denial of defendant's motion for a continuance did not deprive him of his constitutional right to confront his accusers.

Defendant's third argument is that the trial court erred when it did not allow witness Rufus Davis to say whether Smith resembled defendant. Defendant contends that his defense was that Valentine mistook Smith for him, and he was deprived of his defense when the trial judge sustained the State's objection to his question on redirect examination. "[Does Charles Smith] look anything like Wilbur?" Defendant, however, failed to include in the record what Rufus Davis would have said had he been permitted to answer, so the assignment of error cannot be sustained. State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). As well as being too speculative, the question was beyond the scope of the matters raised on cross-examination. 1 Brandis on North Carolina Evidence § 36 (1982). Moreover, defendant previously said Smith "ain't identical to me, but he favors me," so if Rufus Davis had said Smith resembled defendant it would be merely corroborative and not essential to his defense.

We have carefully reviewed defendant's assignments of error and find no error.

No error.

WELLS and BRASWELL, JJ., concur.