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State v. Hiatt12/6/2005
in the hall.
COURT: That's a bad sign. You guys start carrying on and yell a little bit to keep them awake. I've [seen] one, two, at least, maybe more. But I did see two. Court Reporter didn't see any. How many the clerk see? How many jurors did you see sleeping?
CLERK: Only one.
COURT: You say two, two possibles.
(WHEREUPON: The jury returned to the courtroom at 2:54 p.m.)
During the charge to the jury, at the beginning of explaining the elements of DWI, the trial court asked the jury, "Y'all need a break? Everybody okay?" After the charge, the jury retired todeliberate at 4:37 p.m. A brief time later the trial court sent the verdict sheet to the jury. At 4:42 p.m., the trial court was informed that the jury had reached a verdict.
During sentencing for the DWI conviction, the superior court found as an aggravating factor that defendant's faculties were grossly impaired at the time defendant was driving and found as a mitigating factor that defendant had a safe driving record for five years prior to the date of the offense. The court then determined that the aggravating factor was substantially counterbalanced by the mitigating factor and imposed a level four sentence of 120 days in the custody of the N.C. Department of Correction, suspended the sentence, and placed defendant on supervised probation for thirty-six months. As a condition of a special probation, the defendant was required to serve forty-eight hours in the Surry County jail. Defendant appeals.
On appeal, defendant argues that at least two jurors were sleeping during the proceedings, thereby depriving him of his right to a trial by twelve jurors. As an initial matter, we note defendant did not make any objection at trial regarding the alleged juror misconduct. It is well established that under N.C. R. App. P. 10(b)(1) (2005):
order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make.
Our Supreme Court has recently held that "the Rules of Appellate Procedure, regarding assignments of error and the contents of anappellant's brief, must be consistently applied; otherwise, the Rules become meaningless[.]" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). After reviewing the transcripts and briefs in this case, we see no manifest injustice on these facts that persuades us to use our discretion to hear this matter under Rule 2 of the North Carolina Rules of Appellate Procedure, and we do not address this assignment of error.
Defendant also asserts that the return of a verdict after only five minutes indicated the jury did not deliberate, and therefore, he was deprived of his right to a jury trial. Our Supreme Court first addressed this issue in the context of a criminal trial in State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985). In Spangler, the trial court denied a defendant's motion to set aside a verdict based on the jury returning a verdict after only fifteen minutes of deliberation. With respect to the question of how long a jury must deliberate in criminal cases, our Supreme Court observed, the general rule applied in state and federal courts . . . is that a jury is not required to deliberate for any particular period of time, and the mere fact that a jury deliberates for a short period of time is generally insufficient to indicate that the verdict was the result of passion, prejudice, or bias.
Id., 314 N.C. at 387, 333 S.E.2d at 730. Our Supreme Court went on to quote Urquhart v. Durham and South Carolina Railroa
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