State v. Sargeant , 206 N.C. App. 1 ( 2010 )

GEER, Judge.

Defendant Neil Matthew Sargeant appeals his convictions for first degree murder, first degree kidnapping, robbery with a dangerous weapon, and burning of personal property. The primary issue on appeal is whether the trial court erred in taking partial “verdicts” from the jury.

At trial, at the end of the first day of deliberation, the jury had not reached a unanimous decision as to each of the charges. The trial court requested that the jury go ahead and submit verdict sheets for any of the charges as to which it had unanimously found defendant guilty. The trial court then received the jury’s verdicts finding defendant guilty of first degree kidnapping, robbery with a dangerous weapon, and burning of personal property, as well as first degree murder on the bases of both felony murder and lying in wait. The only issue left for the jury to decide was whether defendant was guilty of first degree murder on the basis of premeditation and deliberation. The next morning, the court gave the jury a new verdict sheet solely asking the jury to decide whether defendant was guilty of first degree murder on the basis of premeditation and deliberation. The jury returned a guilty verdict later that day.

The issue on appeal is whether it was error to take a “verdict” as to lying in wait and felony murder when the jury had not yet agreed on premeditation and deliberation. Premeditation and deliberation, felony murder, and lying in wait are not crimes, but rather are theories upon which a defendant may be convicted of first degree murder. We hold that a trial court cannot take a verdict on a theory. Therefore, the trial court, in this case, erred by taking partial verdicts on theories as to the charge of first degree murder.

Facts

Stephen Harrington was kidnapped, robbed, and murdered on the night of 7 November 2005. A medical examiner determined the cause of death to be asphyxiation. Defendant, Kyle Triplett, and Matthew Dalrymple were subsequently charged capitally with the first degree murder of Harrington. They were also charged with first degree kidnapping, robbery with a dangerous weapon, and burning of personal property. The three men and the victim were acquaintances who dealt and used illegal drugs together.

The State first proceeded against Triplett. On 10 September 2007, Dalrymple had given the State a written statement pointing to Triplett as responsible for the death of Harrington and as having orchestrated the removal of Harrington from defendant’s home. In anticipation of trying Triplett, the State entered into an agreement with Dalrymple on 13 September 2007. In that agreement, the State agreed not to seek the death penalty against Dalrymple. In return, Dalrymple agreed to “be available to provide truthful testimony concerning the events surrounding the death of Stephen Harrington if called upon by the state to do so.” The truthfulness of his testimony was to “be measured against [his] written statement in the presence of Detective Dee Dee Rominger on 10th September 2007.” The State agreed further “[t]hat as to the statement to Detective Rominger the State will not use the statement against [Dalrymple] in any state criminal proceedings, and will not use any evidence derived from such statement against him in any state judicial proceeding.”

Ultimately, Dalrymple was not required to testify against Triplett because Triplett pled guilty to second degree murder, among other offenses, for his involvement in the crime. The State next proceeded against defendant and called Triplett as a witness during the trial. Triplett’s testimony placed the majority of the blame for Harrington’s murder on defendant.

Triplett testified that when he arrived at defendant’s house on the night of 7 November 2005, defendant told him to put on gloves, grab Harrington when he arrived later, and put a gun to Harrington’s head. When Harrington arrived, Triplett grabbed Harrington by the throat and put a gun to his head. Then, defendant wrapped Harrington in duct tape and punched him while Dalrymple kicked him. Dalrymple removed cocaine from Harrington’s pocket before Triplett and defendant put Harrington in the trunk of Harrington’s car. Triplett testified that he and defendant drove Harrington’s car, while Dalrymple followed in a second car. They parked the car near a bridge where defendant sprayed Harrington’s body with lighter fluid, and Triplett lit the fluid with a lighter. The three men then returned to defendant’s house in the car driven by Dalrymple.

During defendant’s case in chief, defendant called Dalrymple to the stand. Dalrymple invoked his Fifth Amendment right against self-incrimination and refused to testify. Since Dalrymple was unavailable to testify on defendant’s behalf, defendant moved, pursuant to N.C.R. Evid. 804(b)(5), to introduce Dalrymple’s 10 September 2007 statement to Detective Rominger. According to Dalrymple’s statement, Triplett had grabbed Harrington by the neck and held him at gunpoint, as Triplett had testified, but Triplett was also responsible for duct-taping Harrington’s head, hitting Harrington, and kicking him. Dalrymple stated that defendant had been asleep during the initial attack, but had awoken later and ridden in the second car with Dalrymple because Dalrymple was scared. Triplett, he said, lit the fire. The trial court concluded that the statement lacked sufficient indicia of trustworthiness and excluded the statement.

On the morning of Tuesday, 22 April 2008, with closing arguments having concluded the previous day, the court instructed the jury as to the charges, including the “three theories under which [the jury could] find [defendant] guilty of first degree murder, those theories being lying in wait, the felony murder rule, and premeditation and deliberation.” The verdict sheet for the first degree murder charge set out the following choices:

WE THE JURY, AS OUR UNANIMOUS VERDICT, FIND THAT THE DEFENDANT, NEIL MATTHEW SARGENT, IS:

_ GUILTY OF FIRST DEGREE MURDER.

_ (A) IF YES, DO YOU UNANIMOUSLY FIND ON THE BASIS OF LYING IN WAIT. •

._ (B) IF YES, DO YOU UNANIMOUSLY FIND ON THE BASIS OF THE FELONY MURDER RULE

(I) ._. IF YES, DO YOU UNANIMOUSLY FIND THE UNDERLYING FELONY TO BE:

1. KIDNAPPING

_ 2. ROBBERY WITH A DANGEROUS WEAPON

_ (G) IF YES, DO YOU UNANIMOUSLY FIND ON THE BASIS [SIC] PREMEDITATION AND DELIBERATION

OR

_ GUILTY OF SECOND DEGREE MURDER OR

_ NOT GUILTY

The verdict sheets for the other charges gave the jury a choice of only guilty of the charge or not guilty, except for robbery, which had a choice of (1) guilty of robbery with a dangerous weapon, (2) guilty of common law robbery, or (3) not guilty.

At 10:55 a.m., after the jury had retired to deliberate, the jury sent its first note to the court: “What did State need to prove for a verdict of guilty to Burning of personal property — Can we have a list?” At 11:35 a.m., the jury sent another note: “Are there any possible consequences/punishments/repercussions to a witness for lying under oath? Specifically a witness who made a plea agreement with the State? We need to be reinstructed on the elements needed to be proven by the state on the charge of robbery w/ a dangerous weapon & common law robbery.” The jury sent its third note at 12:25 p.m.: “Please reinstruct us on First Degree Murder. If we are going to lunch please wait until we return.” Shortly after receiving this note, the court dismissed the jurors for their lunch break and told them to return at 2:00 p.m.

After the lunch break, the court reinstructed the jury on first degree murder. At 3:00 p.m., after having resumed deliberation, the jury sent a fourth note: “Would you reinstruct us on one theory @ a time so that we may deliberate one @ a time. Please redefine ‘in concert[.]’ Please redefine ‘premeditated].]’ Please reinstruct on the difference between 1st & 2nd degree murder.” In response to this note, the court first reinstructed the jury as to the theory of lying in wait. When the jury notified the court at 3:20 p.m. that it was ready for the next instruction, the court reinstructed the jury as to the theory of felony murder. After the jury indicated at 3:40 p.m. that it was ready for the final theory, the court reinstructed the jury as to the theory of premeditation and deliberation. At 4:15 p.m., the jury sent its fifth note of the day asking the court to “redefine two of five points” regarding premeditation and deliberation: “premeditation” and “intent.”

Shortly after the jurors exited the courtroom, the trial judge informed the State and defendant that before the court recessed for the day, the trial judge intended to ascertain whether the jury had already reached any unanimous verdicts:

Now, I am thinking about this. If we don’t have the verdict, I should say verdicts by 5:00 p.m. I am going to make an inquiry if they’ve reached a verdict on any of the counts. If they have, it is my plan to take the verdict before we — those verdicts or verdict as the case may be if we have any before we adjourn for the evening. The reason being if they’ve reached a verdict on one or more and not on all and something happens over the evening hour I’ve got a problem. If we take those verdicts tonight, I won’t have that problem.

Although the State had no objection, defendant noted his objection.

At 4:51 p.m., after about five hours of deliberation, the trial judge advised the State and defendant that he had resolved to go forward with his plan to assess the jury’s progress:

I think what I’m going to do is bring the alternates back as well as the other jurors. I’m going to make an inquiry and make it clear I’m not trying to rush them just to find out whether they’ve reached a unanimous verdict on all the matters. If they indicate they have not, I’m going to ask whether or not they’ve reached a unanimous verdict on any of the matters. If they have I’m going to make an inquiry of the foreperson to determine whether he has filled out the verdict sheets in accordance with my instructions on the matters which they have reached a unanimous verdict. If they have not, I’ll send them back to the jury room with instructions to go ahead if they have reached a unanimous verdict to return so I can take this verdict before we adjourn for the evening. If they ask to continue and again this is not something I’m going to suggest but if they ask I’ll send them back to the jury room and let them deliberate for a while. Now, I’m not going to keep them here late because they’re going to want to be getting into the dinner hour... and most folks may well have other plans for the evening. But go ahead if we can, let’s get the alternate jurors brought in first and if you will, Sheriff, get the jury, twelve jurors and tell them to stop deliberations and to bring the verdict sheets with them.

The jurors were then summoned back to the courtroom, and the trial judge addressed the foreperson, Mr. Price:

THE COURT: Mr. Price, I’m not asking you this in an effort to try to cause anyone to rush. That’s the last thing I would want anyone to do but it is getting close to the evening break. Let me first begin by asking you, sir, has the jury reached a unanimous verdict in all matters?

FOREPERSON PRICE: No, sir.

THE COURT: Has the jury reached a — and I take it’s necessary for further deliberations on the matters that are not resolved, is that right?

FOREPERSON PRICE: Yes, sir.

THE COURT: Okay. Has the jury reached a unanimous verdict on any of the matters?

FOREPERSON PRICE: Yes, sir.

THE COURT: Okay. As to those matters have you filled out the verdict sheets in accordance with my instructions?

FOREPERSON PRICE: Yes, sir.

THE COURT: Is the jury ready to pronounce its verdict on those matters?

FOREPERSON PRICE: Yes, sir.

THE COURT: All right, I’m going to ask you to hand the verdict sheets to the bailiff.

The jurors then submitted the verdict sheets to the court, but since one of the verdict sheets was not yet signed, the trial judge sent the jury back to the jury room to properly complete the sheet.

Once the jury verified that all verdict sheets had been signed and dated, it was escorted back to the courtroom. At this point, the court received “the four verdicts” already decided upon: guilty of first degree murder on both the theories of lying in wait and felony murder, guilty of first degree kidnapping, guilty of burning of personal property, and guilty of robbery with a dangerous weapon. The jury had not reached a unanimous agreement about the first degree murder theory of premeditation and deliberation. The court then adjourned for the day.

Court reconvened at 9:30 a.m. the next morning, Wednesday, 23 April 2008. Before the jury entered, the trial judge explained that the recording system had not been activated on the previous afternoon and informed the State and defendant that he would be retaking the verdicts so that they would have a proper record. The trial judge then gave both sides an opportunity to be heard. Defense counsel stated: “I’d move that the taking of the verdicts yesterday be set aside and the jury be sent out until they’ve reached a unanimous verdict on all issues. I believe that taking of partial verdicts violates [defendant’s] right to a trial by jury.”

When the jury entered the courtroom, the trial judge again explained the issue of the tape recording system and told the jury that he would retake the verdicts and poll each of the jurors. Each juror confirmed that he or she still assented to the guilty verdicts. Defense counsel renewed his motion to set aside the verdicts.

The trial judge returned the jury to the jury room to continue deliberating as to whether defendant was guilty of first degree murder on the theory of premeditation and deliberation. The trial judge had prepared a new verdict sheet solely for that issue. The new verdict sheet gave only two options: guilty or not guilty of first degree murder on the theory of premeditation and deliberation.

At 10:23 a.m., the jury sent the following note: “Please reinstruct on Malice, Premeditation & Deliberation. Please redefine ‘premeditation.’ ” At 10:30 a.m., the jury sent its final note: “If we are not coming to a unanimous decision what do we do? Do we need to be unanimous for NOT GUILTY as well as for Guilty?” After receipt of the last note, the State indicated that it would have no objection to the trial court’s declaring a mistrial as to the first degree murder theory of premeditation and deliberation. Defendant then formally moved for a mistrial on that theory, but the trial judge denied the motion. The judge subsequently informed the jury that a “verdict is not a verdict whether it’s guilty or not guilty until all twelve jurors agree unanimously as to the decision.” The judge also gave the jurors an Allen charge and sent them back to continue deliberating.

At 12:14 p.m. the jury returned a verdict of guilty of first degree murder based on the theory of premeditation and deliberation. The court polled each of the jurors and accepted the verdict.

Sentencing occurred on the morning of Thursday, 24 April 2008. Although defendant had been tried capitally, the State elected not to proceed with the death penalty phase. For the first degree murder conviction, defendant was, therefore, sentenced to life imprisonment without parole. For the first degree kidnapping conviction, defendant was sentenced to a consecutive presumptive-range term of 100 to 129 months imprisonment. The trial court consolidated the robbery with a dangerous weapon and burning of personal property convictions and imposed a presumptive-range term of 60 to 81 months imprisonment to run consecutive to the kidnapping sentence. Defendant timely appealed to this Court.

I

Defendant contends on appeal that the trial court erred in taking verdicts on two of the three possible theories of first degree murder on Tuesday and then, on Wednesday, permitting the jury to continue deliberating as to the third theory of first degree murder. Defendant argues that the trial court’s procedure violated his “constitutional guarantee to a unanimous verdict of a jury of 12 in a criminal case.” We note that the State has cited no authority authorizing what the trial court did in this case, and we have found none in North Carolina or in any other jurisdiction.

Premeditation and deliberation, felony murder, and lying in wait are all theories under which a defendant may be convicted of first degree murder. See State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555, 560-61 (1989) (“Premeditation and deliberation is a theory by which one may be convicted of first degree murder; felony murder is another such theory.”). Even though the State may proceed under multiple theories of first degree murder, “[cjriminal defendants are not convicted or acquitted of theories . . . .” Id., 386 S.E.2d at 561 (emphasis added). Rather, “they are convicted or acquitted of crimes.” Id. Thus, in cases involving multiple theories of first degree murder, the defendant is “charged with only one crime, first degree murder; [he or] she [is] convicted of that crime.” Id., 386 S.E.2d at 560.

A trial court includes the different theories on the first degree murder verdict sheet because of the need in sentencing — particularly capital sentencing proceedings — to understand the theory upon which the jury found the defendant guilty of first degree murder. See State v. Goodman, 298 N.C. 1, 16, 257 S.E.2d 569, 580 (1979) (“If the jury’s verdict were general, not specifying the theory upon which guilt was found, the court would have no way of knowing what theory the jury used and would not have proper basis for passing judgment.”).

Whether or not the jury based its verdict on premeditation and deliberation as well as felony murder determines what aggravating circumstances may be submitted to the jury in capital sentencing. See State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770-71 (2002) (holding that when defendant is convicted of felony murder only, underlying felony constitutes element of first degree murder and merges into murder conviction; if defendant is convicted of first degree murder based on both premeditation and felony murder, then felony underlying felony murder may be used as aggravating factor in sentencing proceeding, and defendant may receive separate sentences for both murder and felony). Further, the fact that a jury based its verdict only on felony murder may affect the findings necessary during capital sentencing. See State v. Stokes, 308 N.C. 634, 651 n.1, 304 S.E.2d 184, 195 n.1 (1983) (noting that, when felony murder is one theory presented, requiring jury to indicate theory under which jury returned first degree murder verdict may obviate need to have jury decide in sentencing whether defendant killed, attempted to kill, or intended that life would be taken).

Even in non-capital cases, specification of the theory affects whether the trial court should sentence the defendant for both the murder and any felony argued to be the basis for felony murder. State v. Norwood, 303 N.C. 473, 480, 279 S.E.2d 550, 555 (1981) (“Since conviction of the defendant for first degree murder was based upon proof of premeditation and deliberation, proof of the underlying felony was not an essential element of the State’s homicide case and the trial court properly sentenced defendant both upon the murder conviction and the felony conviction.”). Thus, a jury’s specification of its theory does not constitute a conviction of a crime, but is for purposes of sentencing proceedings.

The State’s argument that the jury in effect rendered three first degree murder verdicts — as opposed to verdicts on three theories— cannot be reconciled with Thomas, 325 N.C. at 593, 386 S.E.2d at 560 (rejecting dissent’s argument because it “presupposes that defendant has been charged with, and could have been convicted of, two different crimes — first degree felony murder and first degree premeditated and deliberated murder”). In this case, there was only one conviction and one verdict finding defendant guilty of first degree murder, although the jury ultimately based its verdict on three theories. Only one person was killed, defendant was charged with only one count of first degree murder, the jury rendered a single verdict of guilty of first degree murder, and defendant was sentenced for only a single count of murder.

Consequently, we are not talking about true partial verdicts in this case: these were not verdicts as to crimes but factual findings regarding theories of the crime of first degree murder. Even assuming, without deciding, that partial verdicts as to multiple charges are permissible in North Carolina, we hold that a trial court may not take partial verdicts as to theories of a crime. We cannot reconcile Thomas — and its proposition that “defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes”— with what the trial court did in this case. Id., 386 S.E.2d at 561.

This holding is further supported by the Supreme Court’s decision in State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982). In Booker, the jury in the defendant’s first trial had been unable to reach a verdict, but had indicated in a note that it was deadlocked on second degree murder. After a mistrial was declared and the defendant was retried, the defendant argued on appeal that North Carolina should adopt the New Mexico rule requiring in cases involving lesser included offenses that a trial court submit to a deadlocked jury verdict sheets indicating whether the jury had unanimously voted for acquittal on any of the greater or lesser included offenses. Id. at 305, 293 S.E.2d at 80. The Supreme Court “rejected] this request” because it was “of the opinion that the better reasoned rule is the majority rule which requires a final verdict before there can be an implied acquittal.” Id. (emphasis original).

We see no material difference between the New Mexico rule and the procedure followed in this case. When a jury is deadlocked, the New Mexico rule in effect calls for the taking of partial “verdicts” on greater and lesser included offenses with respect to a single charge even though there is no unanimity as to whether the defendant should be convicted of the charged offense. In other words, the New Mexico rule attempts to establish unanimity on aspects of a charged crime in advance of a final verdict on the charged crime. That is precisely what the trial court’s procedure in this case was designed to accomplish.

The jury was not yet in agreement with respect to the charge of first degree murder. The trial judge was, however, concerned that something might occur overnight and, for that reason, had the jury complete verdict sheets setting out the theories on which the jury was unanimous. The jury did not, however, render a final verdict on the single first degree murder charge, but continued to deliberate the next day. If, as the Supreme Court stated in Booker, there must be a final verdict before there can be an acquittal, there must be a final verdict before there can be a conviction. The jury in this case did not, on Tuesday, return a final verdict as to first degree murder; rather, it expressed unanimity as to two theories of first degree murder.

Even though we have concluded that the trial court erred in taking partial “verdicts” as to two of the first degree murder theories, we must still decide whether that error is harmless. Because this issue involves defendant’s constitutional right to a unanimous jury verdict, the State bears the burden of demonstrating that the error is harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2009).

The State argues that when the jury rendered its “verdicts” on lying in wait and felony murder, “[t]he jury’s consideration of (and final unanimous agreement on) the theory of malice, premeditation, and deliberation then became moot so far as defendant’s conviction of first degree murder was concerned. Conviction based on that theory as well'would have been relevant only to our Supreme Court’s proportionality review had this defendant been sentenced to death.” This argument, however, disregards the importance of the potential of juror compromises during the jury’s deliberations.

In Booker, our Supreme Court quoted with favor the rationale of the Michigan Court of Appeals decision in People v. Hickey, 103 Mich. App. 350, 303 N.W.2d 19 (1981), as supporting the Supreme Court’s decision to reject the New Mexico rule and require a final verdict:

“Defendant’s conviction followed a second trial on the charge of first-degree murder, the first trial having ended in a mistrial due to a hung jury. At the first trial, the jury was instructed that it could return one of four possible verdicts: guilty of first-degree murder, guilty of second-degree murder, guilty of voluntary manslaughter, or not guilty. When the jury indicated to the court that it could not reach a unanimous verdict, defense counsel requested that the trial court inquire as to whether the jury had reached a decision concerning defendant’s guilt or innocence on any of the charges submitted to it. The trial court refused to make such an inquiry.

Defendant contends that his second trial on the charge of murder was barred by art 1, § 15 of the Michigan Constitution, and by the Fifth Amendment to the United States Constitution, which provide that a person may not be placed twice in jeopardy for the same offense. Defendant argues that the trial court’s failure to inquire as to the status of the jury’s deliberations on the various possible verdicts submitted to it prevented the court from discovering whether the jury had decided that defendant was innocent of all charges except manslaughter. Defendant urges the adoption of the rule announced in State v Castrillo, 90 NM 608; 566 P 2d 1146 (1977), where it was held that where a jury announced its inability to reach a verdict, and the trial court failed to determine whether the jury had unanimously voted for acquittal on any of the included offenses, jeopardy attached as to all charges except the charge of voluntary manslaughter, the least of the included offenses. The New Mexico court held that there is no plain and obvious reason to declare a mistrial as to any included offense upon which the jury has reached a unanimous agreement of acquittal. Consequently, the Court ruled that when a jury announces its inability to reach a verdict in a case involving included offenses, the trial court is required to submit verdict forms to the jury to determine if it has unanimously voted for acquittal on any of the included offenses, and the jury may then be polled with regard to any verdict thus returned.

Other jurisdictions have examined defendant’s argument and rejected it. See, Walters v State, 255 Ark 904; 503 SW 2d 895 (1974), cert den 419 US 833; 95 SCt 59; 42 LEd 2d 59 (1974), People v Griffin, 66 Cal 2d 459; 58 Cal Rptr 107; 426 P 2d 507 (1967), People v Doolittle, 23 Cal App 3d 14; 99 Cal Rptr 810 (1972), People v Hall, 25 Ill App 3d 992; 324 NE 2d 50 (1975), State v Hutter, 145 Neb 798; 18 NW 2d 203 (1945). We conclude that polling the jury on the various possible verdicts submitted to it would constitute an unwarranted and unwise intrusion into the province of the jury. As was noted by the California Supreme Court in Griffin, supra, it must be recognized as a practical matter that jury votes on included offenses may be the result of a temporary compromise in an effort to reach unanimity. A jury should not be precluded from reconsidering a previous vote on any issue, and the weight of final adjudication should not be given to any jury action that is not returned in a final verdict.”

Booker, 306 N.C. at 305-06, 293 S.E.2d at 80-81 (quoting Hickey, 103 Mich. App. at 351-53, 303 N.W.2d at 20-21) (emphasis original).

Other courts, in evaluating the risks of taking partial verdicts, have echoed such concern about protecting the province of the jury to revisit previously held views in the course of reaching a final verdict. See, e.g., United States v. Benedict, 95 F.3d 17, 19 (8th Cir. 1996) (“The danger inherent in taking a partial verdict is the premature conversion of a tentative jury vote into an irrevocable one. It is improper for a trial court to intrude on the jury’s deliberative process in such a way as to cut short its opportunity to fully consider the evidence. Such an intrusion would deprive the defendant of the very real benefit of reconsideration and change of mind or heart.” (internal citations and quotation marks omitted)); People v. Richardson, 184 P.3d 755, 763-64 (Colo. 2008) (“ [I]n the case where a jury has not completed deliberations at the time of the partial verdict instruction, the resulting verdict might well be the result of juror coercion — a particular concern where, as here, the jury is deadlocked.”); Caldwell v. State, 164 Md. App. 612, 642-43, 884 A.2d 199, 216 (2005) (“[A] verdict must be unambiguous and unconditional and must be final — in the sense of not being provisional or tentative and, to the contrary, being intended as the last resolution of the issue and not subject to change in further deliberation. A verdict that is tentative ... is defective and not valid. In deciding whether to accept a partial verdict, a trial judge must guard against the danger of transforming a provisional decision into a final verdict.”).

We think that the same concerns raised in taking partial verdicts (whether as to lesser included offenses or to individual charges of a multiple count indictment), are equally triggered by the taking of partial “verdicts” on theories of first degree murder. Here, after the jury had submitted its verdict sheets on Tuesday evening, it was not permitted on Wednesday to reconsider those earlier decisions and was left to consider the theory of premeditation and deliberation essentially in a vacuum. Indeed, the jury was given a whole new verdict sheet limited to premeditation and deliberation. Because the jury’s decisions on the theories of lying in wait and felony murder, at that moment in time, were not in themselves convictions, but rather were bases for a conviction, we find troubling the possibility that taking separate decisions on the theories may have “cut short [the jury’s] opportunity to fully consider the evidence . . . [or] deprive[d] the defendant of the very real benefit of reconsideration and change of mind or heart.” Benedict, 95 F.3d at 19 (internal quotation marks omitted).

We conclude that this intrusion into the province of the jury cannot be deemed harmless beyond a reasonable doubt. We do not know what the jury ultimately would have decided had it been permitted to continue deliberating about all the theories of first degree murder. The record indicates that the jury had been periodically asking the court for reinstruction and was still engaged in fruitful deliberation by the time the court solicited verdicts at the end of the first day of deliberation. Many of the jury’s questions focused on the murder charge, requesting explanation of each of the theories as well as the definition of “in concert.” Additionally, the jurors apparently harbored significant doubt about Triplett’s testimony. Their question about the consequences of perjury to “a witness who made a plea agreement with the State” could only have applied to Triplett.

We find merit in defendant’s contention that the outcome may have been different if the jury had been able to continue deliberating on all three theories. For example, on the second day of deliberation, those jurors previously not willing to find defendant guilty of first degree murder based on premeditation and deliberation may have been persuaded to change their position based on the fact that “verdicts” of first degree murder had already been rendered. Even if no partial verdicts had been taken and defendant had still been convicted of first degree murder based on one, but not all, of the theories, that result would have had ramifications for sentencing whether before the jury, had the State continued to proceed capitally, or before the trial judge in non-capital sentencing.

We find persuasive the reasoning applied in Benedict. In Benedict, 95 F.3d at 18, the Eighth Circuit held that partial verdicts had been taken in error when the trial court, over the defendant’s objection, took verdicts on three counts (conspiracy to burglarize a post office, aiding and abetting post office burglary, and aiding and abetting theft of post office property) when the jury indicated, after approximately eight hours of deliberation, that it had agreed on three counts, but was still undecided on a fourth count (conspiracy to steal post office property). The trial court “entered as final judgments” the verdicts on the three counts and denied the defendant’s motion for a mistrial on the fourth count. Id. at 18-19. Ultimately, after deliberating further, the jury was still deadlocked on the final count, and the government dismissed that count. Id. at 19.

On appeal, the Eighth Circuit expressed concern over the short length of time spent deliberating before the trial court took partial verdicts, the indication that the jury was progressing toward unanimity on the fourth count, the absence of a deadlock, and the lack of any request by the parties for partial verdicts. Id. at 19-20. The court also noted the close relationship between the fourth count and one of the counts that had already been decided:

It is difficult to imagine that the jury could continue to deliberate on the conspiracy charge without reweighing the evidence with respect to the substantive offense where, as here, the government’s evidence on both counts was virtually the same. The jury expressed as much when it asked for clarification between the two charges.

Id. at 20. Although the court acknowledged that partial verdicts “may be appropriate in certain circumstances,” the court concluded that the trial court had committed “error in the manner” in which it conducted deliberations and had abused its discretion by instructing the jury to deliver partial verdicts. Id. at 19-20.

Similar facts appear in this case. Here, deliberations had not been underway for a substantial amount of time given that this case involved a capital murder charge. The trial judge decided on his own volition, without request from the jury or the parties, to take verdicts before adjourning on the first afternoon of deliberation, solely because of the trial judge’s concern that if “something happens over the evening hour I’ve got a problem.” The jury had not arrived at a deadlock, but rather was still actively deliberating when the court requested the partial verdicts. Lastly, the court took “as final judgments” guilty verdicts on three of the charges and on two of the three theories of first degree murder. As was the case in Benedict, the three murder theories were all “so closely related” that “[i]t is difficult to imagine that the jury could continue to deliberate on [one theory] without reweighing the evidence with respect to” the other theories. Id. at 20. Under these circumstances, we must conclude the court’s error was prejudicial.

Defendant is entitled to a new trial as to the murder indictment. Defendant does not argue any prejudice with respect to the trial court’s taking partial verdicts on the charges of first degree kidnapping, robbery with a dangerous weapon, or burning of personal property. Therefore, we do not address whether the trial court properly took partial verdicts as to those charges. See Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (“It is not the role of the appellate courts ... to create an appeal for an appellant.”).

II

Defendant contends, in addition, that the trial court erred when it barred him from introducing Dalrymple’s September 2007 statement to Detective Rominger. Defendant argues that this statement should have been admitted under the residual hearsay exception of Rule 803(5) of the Rules of Evidence.

There is no dispute that once Dalrymple asserted his Fifth Amendment rights when called by defendant to testify, Dalrymple was unavailable within the meaning of Rule 804. See State v. Harris, 139 N.C. App. 153, 158, 532 S.E.2d 850, 854 (“Where a witness is physically present at the trial, but asserts his Fifth Amendment right not to testify, he is considered ‘unavailable’ for the purpose of’ Rule 804.), disc. review denied, 353 N.C. 271, 546 S.E.2d 850 (2000).

Since Dalrymple was unavailable, the trial court, in order to determine whether Dalrymple’s statement was admissible under Rule 804(5), was required to undertake a six-step inquiry and determine (1) whether proper notice of the intent to use the statement had been given; (2) whether the statement did not fall within the scope of any other hearsay exception set out in Rule 804; (3) whether the statement exhibited circumstantial guarantees of trustworthiness equivalent to those required for other specific hearsay exceptions; (4) whether the statement was relevant to a material issue of fact; (5) whether the statement was more probative on the issue than any other evidence that the proponent could procure through reasonable efforts; and (6) whether the interests of justice would be served by the admission. See State v. Triplett, 316 N.C. 1, 8-9, 340 S.E.2d 736, 741 (1986).

At the trial of this case, the State did not contest that the Dalrymple statement met five of the Triplett elements. The State contended only that defendant could not show that the statement had the required equivalent circumstantial guarantees of trustworthiness. Our Supreme Court has held:

A trial judge should consider a number of factors in determining whether a hearsay statement possesses sufficient indicia of trustworthiness to be admitted under Rule 804(b)(5). Among these factors are: (1) the declarant’s personal knowledge of the underlying, event; (2) the declarant’s motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason, within the meaning of Rule 804(a), for the declarant’s unavailability. . .. [T]his list is not inclusive and . . . other factors may be considered when appropriate. Among the many factors which courts have considered are the existence of corroborating evidence, and the degree to which the proffered testimony has elements of enumerated exceptions to the hearsay rule.

State v. Nichols, 321 N.C. 616, 624-25, 365 S.E.2d 561, 566-67 (1988) (internal citations omitted). The trial court is required to make specific findings of fact and conclusions of law regarding these factors. Triplett, 316 N.C. at 9, 340 S.E.2d at 741.

In this case, the trial court, in support of its decision to exclude the Dalrymple statement, read the following findings of fact and conclusions of law into the record:

It is clear from the evidence presented on behalf of the State that Mr. Dalrymple was present during at least some of the events in question and therefore, he would have personal knowledge.

Second would be the declarant’s motivation to speak the truth. It appears to the Court that [Dalrymple] by refusing to testify has kept the death penalty in play in his own criminal case and therefore has acted against his own self interests by refusing to testify when called by the defense in this matter.

The third thing the Court is supposed to determine is whether the defendant has recanted his testimony. While the defendant has an unlimited right to assert the Fifth Amendment, the Court concludes that his refusal to testify while not a recantation is a factor considered by the Court not only in his trustworthiness but in the fourth reason, that being the reason that he is unavailable. The Court has considered that his refusal to testify is a voluntary him [sic] making himself unavailable and would put the Court in [sic] position in every case where a co-defendant makes an out of Court statement that could be under some circumstances considered exculpatory as to that co-defendant against another co-defendant admissible into evidence even though its [sic] an unsworn statement by the co-defendant simply taking the Fifth Amendment and refusing to testify and not being subject to cross-examination. The Court has also noted that in the defendant’s statement on the — given to the Detective Rominger on September 9 or apparently transcribed September 10th that in Paragraph Number Four that the witness Dalrymple has stated that he saw [sic] “saw Kyle moving around in the interior part and then it went into flames. Kyle moved to the trunk and then it went into flames.” The Court does not recall there being any testimony of the interior of the car being ignited or there being any fire damage but there was smoke damage to the interior but there was no evidence that the Court has yet heard that would indicate that there was any interior damage due to a fire. That would indicate to the Court some reservation concerning the trustworthiness of the statement made by Mr. Dalrymple.

Having considered all the factors enumerated in State versus Nichols and State versus Triplett the Court is not satisfied that the statement by Mr. Dalrymple is trustworthy and therefore defendant’s motion to admit the statement under Rule 804 and have the declarant declared unavailable is denied.

Thus, the trial court found the existence of the first factor (personal knowledge). It is unclear what precisely the trial court found with respect to the existence of the second factor (motive to speak the truth), or whether the trial court made any finding at all regarding the third factor (recanting). It appears that the court primarily based its decision not to admit the statement on the fourth factor. Because there is no dispute by the parties that Dalrymple had the required personal knowledge, we focus our review on the findings related to the second, third, and fourth factors.

With respect to the second factor, Dalrymple’s motive to speak the truth, the trial court does not explain whether it believed Dalrymple’s acting against his own interests by not testifying suggests that Dalrymple had a motive to tell the truth or a motive to dissemble. In addition, this finding lacks evidentiary support because it assumes that by refusing to testify in this case, Dalrymple lost the benefit of his agreement with the State — in other words, that Dalrymple’s refusal to testify meant that he was again subject to the death penalty. The State, on appeal, acknowledges that this assumption was in error: “The State believes that the trial court misread or misapprehended the State’s agreement with Dalrymple when it found that Dalrymple ‘has kept the death penalty in play in his own criminal case ... by refusing to testify when called by the defense.’ As noted above, the agreement said nothing about charging consequences if Dalrymple was called as a defense witness . . . .” (Internal citation omitted.) Finally, this finding erroneously focuses on Dalrymple’s actions at the time of the trial rather than on whether he had a motive to tell the truth at the time he made his 10 September 2007 statement. We, therefore, hold that the trial court erred in making this finding of fact.

With respect to whether Dalrymple ever recanted the 10 September 2007 statement (the third factor), the trial court recited the factor, but then made no specific finding other than noting that Dalrymple voluntarily chose to assert his Fifth Amendment rights. The record contains no evidence that Dalrymple ever recanted his statement. To the extent that the trial court was suggesting that Dalrymple’s refusal to testify amounted to a recantation, such a finding cannot be supported. In exchange for Dalrymple’s agreement to make himself available to testify if called by the State, the State only agreed to take the death penalty off the table. Dalrymple was still subject to being tried for murder with a possible resulting lengthy sentence. Under the agreement, the State could not use the September 2007 statement in any prosecution of Dalrymple, but it could still use testimony given by Dalrymple in any other proceedings. Since Dalrymple had not yet been tried at the time of defendant’s trial, he had no realistic choice but to assert his Fifth Amendment rights since, if he testified, he would provide the State with admissions that could then be used to convict him in his own trial. His assertion of his Fifth Amendment rights, therefore, has no bearing on the question whether Dalrymple ever recanted. We, therefore, hold that the trial court erred in failing to find that Dalrymple never recanted his September 2007 statement.

Turning to the final factor, the reason for Dalrymple’s unavailability, the trial court apparently considered Dalrymple’s assertion of his Fifth Amendment rights as a basis for concluding that his statement lacked guarantees of trustworthiness equivalent to those required by other hearsay exceptions. The bare fact that unavailability is due to the Fifth Amendment cannot, however, without more, justify a finding of a lack of trustworthiness since statements falling within other exceptions under Rule 804, such as a statement against interest, would be admissible even though the basis for unavailability was an assertion of Fifth Amendment rights.

Although it is not entirely clear, when we consider the trial court’s finding as to the second factor (motive to tell the truth) with this factor, it appears that the trial court’s concern was that co-defendants, such as Dalrymple, could strategically assert their Fifth Amendment rights specifically so that a prior statement exculpating a defendant could be admitted into evidence. The trial court’s finding that Dalrymple had acted contrary to his own interest in refusing to testify suggests that the trial court thought Dalrymple had some other motive, such as aiding defendant, in invoking the Fifth Amendment. As noted above and acknowledged by the State, however, the trial court misread the agreement. In fact, refusing to testify was entirely consistent with Dalrymple’s personal interests. The trial court, therefore, also erred with respect to the fourth factor.

The trial court next found that one aspect of Dalrymple’s statement was inconsistent with the trial testimony. While Nichols noted that one factor considered by courts was the existence of evidence corroborating the hearsay statement, the Supreme Court subsequently held that this Court, in applying Rule 804(5), “improperly referenced the hearsay statement’s consistency with other statements admitted at trial where the proper analysis is whether the statement to the detective, standing alone, was inherently trustworthy.” State v. Finney, 358 N.C. 79, 84, 591 S.E.2d 863, 866 (2004) (emphasis added). Accordingly, the trial court erred in determining the trustworthiness of the September 2007 statement by comparing it to other evidence presented at trial.

In sum, only one of the trial court’s findings of fact relating to the trustworthiness of the September 2007 statement is supported by competent evidence and the law. That finding — that Dalrymple had personal knowledge — is contrary to the trial court’s conclusion of law that the statement lacked trustworthiness within the meaning of Nichols and Triplett. Given the trial court’s findings of fact, we must conclude that the court’s exclusion of Dalrymple’s September 2007 statement was in error.

We cannot find this error harmless. Triplett testified that defendant was the leader with respect to the murder, kidnapping, robbery, and burning of personal property. Dalrymple’s statement would have painted a very different picture, with Triplett initiating the attack and murder and being substantially in control with respect to the remaining offenses. It is apparent that the jury had serious doubts about Triplett’s credibility since they asked the trial court: “Are there any possible consequences/punishments/repercussions to a witness for lying under oath? Specifically a witness who made a plea agreement with the State?” Given the stark differences between Triplett’s testimony and Dalrymple’s statement together with the jury’s question suggesting its belief that Triplett was lying under oath, it is reasonably possible that the jury would have reached a different verdict had it been able to consider Dalrymple’s statement. See N.C. Gen. Stat. § 15A-1443(a) (2009).

Although we have already granted a new trial on the charge of first degree murder, we now grant a new trial on the remaining charges based on the exclusion of Dalrymple’s statement. Becáuse of our disposition of these first two issues, we need not address defendant’s final contention that the trial court allowed the State to engage in prosecutorial misconduct or discriminatory use of immunity in connection with the State’s agreement with Dalrymple.

New trial.

Judge STROUD concurs. Judge ERVIN dissents in a separate opinion.