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State v. Hiatt12/6/2005
d Co., 156 N.C. 581, 72 S.E. 630 (1911), a case dealing with this issue in civil trials, and cited with approval Segars v. Atlantic Court Line Rail Road, 286 F.2d 767 (4th Cir. 1961), a case in which the UnitedStates 4th Circuit Court of Appeals determined "that there was no error when a verdict was returned in four minutes." Spangler, 314 N.C. at 388, 333 S.E.2d at 731. In conclusion, our Supreme Court stated, that shortness of time in deliberating a verdict in a criminal case, in and of itself, simply does not constitute grounds for setting aside a verdict. The brevity of deliberation should only be questioned if there is evidence of some misconduct on the part of the jury or the trial judge believes that the jury acted with a contemptuous or flagrant disregard of its duties in considering the matters submitted to it for decision.
Id. Defendant has presented no evidence that "the jury acted with a contemptuous or flagrant disregard of its duties in considering the matters submitted to it for decision." Accordingly, we reject this assignment of error.
Defendant next argues the trial court erred by failing to declare a mistrial or set aside the verdict ex mero moto. The decision to declare a mistrial or set aside a verdict "is addressed to the discretion of the trial court and . . . will not be disturbed on appeal absent an abuse of discretion." State v. Smith, 138 N.C. App. 605, 610, 532 S.E.2d 235, 239 (2000). In support of this assertion, defendant relies on his previous arguments. For the reasons stated in the foregoing analysis, we conclude the trial court did not abuse its discretion by failing to grant a mistrial or set aside the verdict ex mero moto.
Defendant has also filed a motion for appropriate relief in which he argues the trial court erred during sentencing by finding as an aggravating factor that defendant was grossly impaired inviolation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), expressly adopted by our Supreme Court in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). The basis of defendant's assertion is that, had the aggravating factor not been present to counterbalance the mitigating factor, he would have been sentenced at level five instead of level four. Recently, our Supreme Court considered the applicability of Blakely to North Carolina's Structured Sentencing Act, and held that "those portions of [N.C. Gen. Stat.] § 15A-1340.16 (a), (b) and (c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon such judicial findings of such aggravating factors by a preponderance of the evidence violate the Sixth Amendment to the United States Constitution." Allen, 359 N.C. at 438-39, 615 S.E.2d at 265. The Court further stated that " fter Blakely, it is clear that the 'statutory maximum' . . . is not the maximum sentence authorized by statute . . . the maximum sentence authorized by the jury verdict or the defendant's admissions." Id., 359 N.C. at 437, 615 S.E.2d at 264. Although Allen only addressed sentences imposed under the North Carolina Structured Sentencing Act, our Supreme Court has held that "the rationale in Allen applies to all cases in which (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant's sentence beyond the presumptive range without submitting the aggravating factors to a jury." State v. Speight,___, N.C. ___, ___, 614 S.E.2d 262, 264 (2005) (applying Blakely to level two sentencing for driving while impaired under the guidelines set forth in N.C. Gen. Stat. § 20-179 (2003)).
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