State v. Massenburg , 234 N.C. App. 609 ( 2014 )

NO. COA13-1434
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 222413
ERIC DONOVAN MASSENBURG
Appeal by defendant from judgment entered 10 May 2013 by
Judge G. Wayne Abernathy in Wake County Superior Court. Heard
in the Court of Appeals 22 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Victoria L. Voight, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jillian C. Katz, for defendant-appellant.
BRYANT, Judge.
Where the trial court’s Allen charge to the jury was in
substantial compliance with N.C. Gen. Stat. ' 15A-1235, there
was no coercion of the jury verdict. Where the sentence imposed
was within the presumptive range, the trial court did not abuse
its discretion by imposing an intermediate sanction of special
probation.
On 10 December 2012, defendant Eric D. Massenburg was
indicted on charges of felonious breaking or entering and
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assault inflicting serious bodily injury. The matter was
brought to trial during the 7 May 2013 session in Wake County
Superior Court, the Honorable G. Wayne Abernathy, Judge
presiding.
The evidence presented at trial tended to show that on the
evening of 23 September 2012, defendant accompanied his mother
Henrietta Massenburg to the home of defendant’s ex-sister-in-law
Patricia Massenburg. Then, defendant left. Patricia’s
boyfriend Joe Perry was at the residence. Henrietta called
defendant after Joe began cursing at her and ordering her to
leave. When defendant returned to the residence, Joe brandished
a butcher’s knife. Though testimony differed as to whether Joe
put the knife down prior to the time defendant began hitting
him, the testimony was consistent in showing that defendant
punched Joe repeatedly. Due to defendant’s assault, Joe spent
three days in the hospital, lost several of his teeth, and had a
plate inserted into his jaw.
At the close of the evidence, the charge of felonious
breaking and entering was dismissed but the State was allowed to
proceed on the charge of misdemeanor breaking or entering. The
trial court instructed the jury on misdemeanor breaking or
entering and assault inflicting serious bodily injury. At five
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o’clock, after a few hours of deliberation, the jury advised the
court that it had reached a unanimous verdict on the charge of
breaking or entering but could not agree on the assault
inflicting serious bodily injury charge and did not feel they
would reach a unanimous verdict with more time. The court
emphasized to the jury that it was their duty to reach a verdict
if they could do so without surrendering their honest
convictions, then instructed the jury that deliberations would
resume the following morning.
The next day, the jury returned a verdict of guilty on the
charge of assault inflicting serious bodily injury and a verdict
of not guilty on the charge of misdemeanor breaking or entering.
Defendant appeals.
___________________________________
On appeal, defendant raises the following two arguments:
the trial court (I) erred in failing to properly instruct the
jury; and (II) abused its discretion in sentencing defendant to
an active term of imprisonment.
I
Defendant argues that after receiving notice that the jury
was deadlocked, the trial court erred in failing to properly
instruct the jury of its duty to make reasonable efforts to
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reach a unanimous verdict pursuant to General Statutes, section
15A-1235, also known as an Allen charge,1 and as a result, the
jury’s guilty verdict was coerced. We disagree.
Initially, we note that defendant failed to preserve this
issue for review as he failed to object to the trial court’s
jury instruction that he now challenges. See N.C. R. App. P.
10(a)(2) (2014) (objection required to allow appeal of a jury
charge); see also State v. Storm, ___ N.C. App. ___, ___, 743
S.E.2d 713, 716 (2013) (Where the defendant failed to object to
the trial court’s instruction and did not object after the trial
court’s instruction, the challenge was not properly preserved.).
Therefore, we review this matter for plain error.2 See State v.
1
Allen v. United States, 164 U.S. 492, 501—02 (1896) (finding no
error in trial court’s reinstruction to jury where jury could
not reach a unanimous verdict. The Supreme Court reasoned that
“[w]hile, undoubtedly, the verdict of the jury should represent
the opinion of each individual juror, it by no means follows
that opinions may not be changed by conference in the jury room.
The very object of the jury system is to secure unanimity by a
comparison of views and by arguments among the jurors
themselves. It certainly cannot be the law that each juror
should not listen with deference to the arguments and with a
distrust of his own judgment, if he finds a large majority of
the jury taking a different view of the case from what he does
himself. It cannot be that each juror should go to the jury room
with a blind determination that the verdict shall represent his
opinion of the case at that moment; or that he should close his
ears to the arguments of men who are equally honest and
intelligent as himself.”).
2
Defendant cites to State v. May, ___ N.C. App. ___, 749 S.E.2d
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Williams, 315 N.C. 310, 328, 338 S.E.2d 75, 86 (1986) (reviewing
the defendant’s challenge to the trial court’s Allen charge
based on a failure to comply with General Statutes, section 15A-
1235 for plain error where the defendant failed to preserve his
argument at trial).
“[P]lain error review in North Carolina is normally limited
to instructional and evidentiary error.” State v. Lawrence, 365
N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citation omitted);
see generally State v. Conley, ___ N.C. App. ___, ___, 724
S.E.2d 163, 169, disc. review denied, 366 N.C. 238, 731 S.E.2d
413 (2012) (“Where trial counsel fails to object to the trial
court's instructions in response to a question from the jury
seeking clarification, we review for plain error.”). “Preserved
legal error is reviewed under the harmless error standard of
review. Unpreserved error in criminal cases, on the other hand,
is reviewed only for plain error.” Lawrence, 365 N.C. at 512,
723 S.E.2d at 330 (citations omitted).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
483 (2013), for the proposition that this issue is subject to
harmless error analysis as opposed to plain error. We note,
however, that our Supreme Court has granted a stay as to May.
We therefore do not use it as a basis for our standard of review
or analysis of this issue.
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must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty.
Id. at 518, 723 S.E.2d at 334 (citations omitted).
Pursuant to North Carolina General Statutes, section 15A-
1235, “[i]f 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).” N.C. Gen. Stat. ' 15A-1235(c)
(2013).
(a) Before the jury retires for
deliberation, the judge must give an
instruction which informs the jury that in
order to return a verdict, all 12 jurors
must agree to a verdict of guilty or not
guilty.
(b) Before the jury retires for
deliberation, the judge may give an
instruction which informs the jury that:
(1) Jurors have a duty to consult with
one another and to deliberate with a
view to reaching an agreement, if it
can be done without violence to
individual judgment;
(2) Each juror must decide the case for
himself, but only after an impartial
consideration of the evidence with his
fellow jurors;
(3) In the course of deliberations, a
juror should not hesitate to reexamine
his own views and change his opinion if
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convinced it is erroneous; and
(4) No juror should surrender his
honest conviction as to the weight or
effect of the evidence solely because
of the opinion of his fellow jurors, or
for the mere purpose of returning a
verdict.
Id. § 15A-1235 (a), (b).
Defendant contends that the trial court’s Allen charge
failed to instruct the jury in accordance with section 15A-
1235(b)(3), “a juror should not hesitate to reexamine his own
views and change his opinion if convinced it is erroneous[,]”
and because of this omission, he is entitled to a new trial. We
disagree.
In Williams, 315 N.C. 310, 338 S.E.2d 75, the defendant
argued that the trial court’s Allen charge failed to comply with
General Statutes, section 15A-1235(b)(3) and (4). The Court
reasoned that “whenever the trial judge gives the jury any of
the instructions authorized by N.C.G.S. § 15A–1235(b), whether
given before the jury initially retires for deliberation or
after the trial judge concludes that the jury is deadlocked, he
must give all of them.” Id. at 327, 338 S.E.2d at 85.
Since the trial judge gave the instruction
after forming the opinion that the jury was
deadlocked, he committed error when he gave
the instructions set out in N.C.G.S. § 15A–
1235(b)(1) and (2), but failed to give the
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instructions set out in N.C.G.S. § 15A–
1235(b)(3) and (4).
This error does not, however, automatically
entitle the defendant to a new trial.
Id. at 327, 338 S.E.2d at 86. In State v. Fernandez, 346 N.C.
1, 484 S.E.2d 350 (1997), our Supreme Court reasoned as follows:
[t]he trial court's instructions did not
suggest that jurors should surrender their
beliefs or include extraneous references to
the expense and inconvenience of another
trial, as has been found erroneous by this
Court.
Moreover, by comparing the trial court's
instructions with those contained in Section
15A–1235 above, it is clear that the trial
court's instructions contained the substance
of the statutory instructions. The
instructions fairly apprised the jurors of
their duty to reach a consensus after open-
minded debate and examination without
sacrificing their individually held
convictions merely for the sake of returning
a verdict.
Id. at 22—23, 484 S.E.2d at 363—64 (citations omitted).
Here, the trial court gave the following charge:
THE COURT: Ladies and gentlemen, I want
to emphasize to you the fact that it is your
duty to do whatever you can to reach a
verdict. You should reason the matter over
together as reasonable men and women and
reconcile your differences if you can
without surrendering any conscious
convictions. No juror should surrender his
honest convictions as to the weight or the
effect of the evidence solely because the
opinion of a fellow juror or for the mere
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purpose of returning a verdict. Each of you
must decide this case for yourself with
impartial consideration [of] the evidence.
Y’all have a duty to consult with one
another and to deliberate with the view of
reaching an agreement if it can be done
without injury to your personal judgment.
We acknowledge that the trial court’s charge fails to state
the words of section 15A-1235(b)(3) verbatim. However, it is
clear that the trial court's instructions contain the substance
of General Statutes, section 15A-1235(b). Moreover, we again
note that based on Fernandez, the substance of the instruction
“fairly apprised the jurors of their duty to reach a consensus
after open-minded debate and examination without sacrificing
their individually held convictions merely for the sake of
returning a verdict.” Id. at 23, 484 S.E.2d at 364; see also
State v. Gettys, ___ N.C. App. ___, ___, 724 S.E.2d 579, 586
(2012) (reviewing for plain error the trial court’s Allen
charge). Accordingly, we overrule defendant’s argument.
II
Next, defendant argues the trial court abused its
discretion and violated the Equal Protection Clause of both the
United States and North Carolina constitutions by choosing to
impose upon defendant a term of special probation of 135 days in
the Division of Adult Correction as an intermediate sanction.
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Specifically, defendant argues the trial court chose a sentence
with active time as opposed to regular probation because
defendant would “never make [enough] money working . . . to pay
back taxpayers for the cost of Medicaid.” We disagree.
“In criminal trials a State can no more discriminate on
account of poverty than on account of religion, race, or color.”
Griffin v. Illinois, 351 U.S. 12, 17, 100 L. Ed. 891, 898
(1956). “If the record discloses that the court considered
irrelevant and improper matter in determining the severity of
the sentence, the presumption of regularity is overcome, and the
sentence is in violation of defendant's rights.” State v.
Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987) (citation
and quotation omitted). “‘A judgment will not be disturbed
because of sentencing procedures unless there is a showing of
abuse of discretion, procedural conduct prejudicial to
defendant, circumstances which manifest inherent unfairness and
injustice, or conduct which offends the public sense of fair
play.’” State v. Cameron, 83 N.C. App. 69, 76, 349 S.E.2d 327,
332 (1986) (quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d
126, 133 (1962)).
Here, after hearing from defendant who requested a
mitigated-range sentence of 11 to 23 months with a short active
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sentence, and the State’s request of a presumptive range
sentence, the trial court imposed a presumptive range sentence
of 19—32 months. The sentence contained an intermediate
sanction – a term of special probation of 135 days in the
Division of Adult Correction. The trial court then gave the
following basis for the sentence imposed:
THE COURT: . . . Well, I noticed that the
Defendant has three prior breakings and
possession of schedule six and possession of
a firearm with obliterated serial number.
That, of course, is of concern. What bothers
me is that he has probation violations six
times for the same offense. In a perfect
world, I would leave him on probation, make
him pay back the taxpayers who probably paid
$50-$75,000 in Medicaid damage he did to
this man's head. But he won't make
probation. He won't make it in the sense
he'll never make the money working at
McDonald's to pay back the taxpayers for the
cost of Medicaid.
It does appear to me that the force was
clearly excessive in this case . . . . But
regardless, I think the jury has spoken. I
believe they've spoken correctly.
Stand up, please, [defendant]. The
lawyers are right, the range of sentences
provided to me to choose from by the
legislature range from a minimum of 11
months to a maximum of about 32 months in
the presumptive range, and they also allow
for suspension. I want you to realize you
sentenced the victim in this case to a
lifetime of a plate in his jaw and only half
the teeth in his head, so he doesn't ever
get over this.
How much time is he doing in federal?
. . .
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[Defense counsel]: He's got 24 months,
additional months, he's pulling everyday.
THE COURT: Well, I'll take into
consideration the fact he's going to be in
prison for 24 months in the federal system
as a result of this violation, this
conviction. Rather than your straight active
sentence which was my inclination, which I
would do if he did not have the 24 months
facing him, which he will serve.
. . .
I was going to sentence him at the bottom of
the presumptive and make it all active. What
I think I'm going to do is move -- that was
my thought process, maybe move to the top of
the presumptive and give him some
suspension.
In this case, madam clerk, the Defendant
admits that he has five points for felony
sentencing purposes, which makes him a level
two. This is a class F felony. It is the
judgment of the Court that the Defendant be
imprisoned in the [Division] of Adult
Corrections for Male Prisoners for a minimum
of [19] months and a maximum of [32] months;
however, in view of the fact he is going to
be in prison for 24 months in the federal
system, the Court is going to suspend all
but [four months and 15 days (135 days)],
and he's placed on supervised probation for
24 months on the condition that he have no
contact with the victim or any witnesses for
the State.
It appears the trial court’s reference to a sentence of
probation was intended as consideration of an exceptional
circumstance – “[i]n a perfect world, I would leave him on
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probation, make him pay back the taxpayers who probably paid
$50-$75,000 in Medicaid damage.” However, the trial court’s
sentence could be considered lenient by most accounts: Defendant
was a Level II offender convicted of a violent Class F felony,
sentenced in the presumptive range, but given a special
probationary sentence of 135 days in the Division of Adult
Correction, as opposed to a straight active sentence. Defendant
was also serving or about to serve an active sentence in the
federal system. On this record, defendant cannot show that the
sentence ordered by the court was a discriminatory sentence
predicated on poverty. The trial court did not abuse its
discretion, engage in procedural conduct prejudicial to
defendant, operate in circumstances manifesting an inherent
unfairness and injustice, or engage in conduct offensive to a
sense of fair play. See Cameron, 83 N.C. App. at 76, 349 S.E.2d
at 332. Defendant’s argument is overruled.
No error.
Judges HUNTER, Robert C., and STEELMAN concur.