An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1460
                         NORTH CAROLINA COURT OF APPEALS
                               Filed:     17 June 2014
STATE OF NORTH CAROLINA

                                                Guilford County
       v.
                                                No. 12 CRS 080377

DOMENICO ALEXANDER LOCKHART


       Appeal by defendant from judgment entered 16 July 2013 by

Judge    R.    Stuart    Albright    in   Guilford     County    Superior     Court.

Heard in the Court of Appeals 22 May 2014.

       Attorney General Roy Cooper, by Special                   Deputy      Attorney
       General James A. Wellons, for the State.

       John R. Mills for Defendant.

       ERVIN, Judge.

       Defendant       Domenico     Alexander     Lockhart       appeals     from    a

judgment       sentencing    him    to    a   term   of    225    to   279    months

imprisonment and ordering him to pay a $500,000 fine based upon

his conviction for conspiring to traffic in heroin by possessing

over     28    grams    of   that    controlled      substance.        On     appeal,

Defendant contends that the trial court erroneously coerced the

jury’s        guilty    verdict     by    delivering      certain      supplemental

instructions in an “extremely loud” voice and by concluding his

supplemental instructions by stating, “[t]ake your time.                            We
                                               -2-
have    all    day    and       all     week    if   necessary.”          After    careful

consideration        of    Defendant’s         challenges     to    the    trial   court’s

judgment      in   light     of    the    record     and    the     applicable     law,    we

conclude      that        the     trial        court’s     judgment       should    remain

undisturbed.

                                 I. Factual Background

                                  A. Substantive Facts

       On the afternoon of 12 June 2012, Deputy Herbert Sampson of

the    Guilford      County       Sheriff’s       Department       was    parked   in     the

median of Interstate 85 near the Wiley Lewis Bridge when he saw

a blue Honda Civic following a white Lexus too closely.                                 After

making    this     observation,           Deputy     Sampson       activated     his     blue

lights and entered the highway in order to make a traffic stop.

Although the driver of the Honda Civic promptly pulled over, the

driver of the white Lexus ignored Deputy Sampson’s signal and

drove on.

       As Deputy Sampson approached the Honda Civic, he noticed

that    Defendant,        who     was    driving,        appeared    nervous      and    that

Defendant’s chest and lap were covered with loose bits of cigar

tobacco, which Deputy Sampson identified as “blunt innards” and

“tobacco shake.”            According to Deputy Sampson, such loose bits

of cigar tobacco are associated with marijuana use.
                                              -3-
         After    Deputy       Sampson      asked     Defendant        to    produce       his

driver’s license, Defendant informed Deputy Sampson that he did

not have a license or any other type of written identification.

However, Defendant did provide his name and date of birth.                                  In

addition, Defendant presented Deputy Sampson with an Enterprise

car rental agreement that indicated that the Honda Civic had

been leased exclusively to a person named Tiffany Push on 29 May

2012 in Patterson, New Jersey, and was scheduled to have been

returned 1 June 2012.

         After entering Defendant’s name and date of birth into the

mobile computer terminal located in his patrol vehicle, Deputy

Sampson confirmed that Defendant’s license had been revoked and

that there was an outstanding warrant for Defendant’s arrest.

As   a    result,       Deputy     Sampson    informed       Defendant       that     he   was

required to take Defendant into custody on the basis of the

outstanding           warrant.       At    that     point,     Deputy       Sampson    asked

Defendant to exit the Honda Civic, patted him down, handcuffed

him,     and     placed      him   in   the   front     passenger       seat    of    Deputy

Sampson’s patrol vehicle.

         As Deputy Sampson took Defendant into custody, Defendant

volunteered that the Honda Civic did not contain anything of

interest,        an    unsolicited        statement     that    made    Deputy       Sampson

suspicious.             As    a    result,     Deputy     Sampson       directly       asked
                                            -4-
Defendant whether there were any drugs, narcotics, or weapons in

the Honda Civic and whether Deputy Sampson could search the

vehicle.      In response, Defendant dropped his head to his chest

with a defeated look and said, “[n]o, go ahead.”

       In    the   course    of    searching        the   vehicle,        Deputy   Sampson

found a mixture of marijuana and tobacco on the front seat and a

plastic baggie containing approximately three grams of marijuana

hidden under the center console.                    In the Honda Civic’s trunk,

Deputy Sampson found a large black suitcase that contained a

blue soft-sided cooler-type lunch bag or box, a black plastic

bag   tied    in   a    knot,     and    other    materials       he    associated      with

heroin trafficking.            Upon opening the light blue cooler, Deputy

Sampson found 18 grams of heroin powder, scales, stamps, and

cutting agents.         In the black plastic bag, Deputy Sampson found

a pie pan containing rice and small bindles of heroin that had

been rubber-banded together.                According to Special Agent Patti

Jo    Carroll,     a   forensic         scientist      with   the      State    Bureau   of

Investigation,         the   white      powder    seized      from     the     Honda   Civic

consisted of more than 28 grams of heroin.

       As    Deputy     Sampson      and   Corporal       Lucas      T.   Moser    of    the

Guilford County Sheriff’s Department, who had arrived to assist

Deputy      Sampson,    were    searching        the    black   suitcase,        Defendant

called over to          Deputy Sampson and said, without having been
                                     -5-
questioned by any law enforcement officer, “I know that I’m

going to be arrested for that stuff, but it’s not mine.                        The

suitcase was supposed to be in the car I was following.”

      As   Corporal   Moser    processed    the     evidence    that   had   been

taken from the Honda Civic, Deputy Sampson, along with Detective

Tim   Weavil    of    the     Guilford     County    Sheriff’s     Department,

interviewed    Defendant.        Defendant    stated     that    he    lived   in

Charlotte, that he worked on cars, and that he had repaired a

car for an individual that he only knew as “Cal.”                 According to

Defendant, “Cal” asked Defendant whether he wanted to make $200

and Defendant gave an affirmative answer.               Initially, Defendant

told the investigating officers that he had agreed to drive the

Honda Civic and the heroin from Charlotte to Greenville, North

Carolina, at which point he was supposed to turn the car over to

someone who would drive the car and the heroin to Patterson, New

Jersey.    Subsequently, Defendant told the investigating officers

that, although he knew that the trip involved the transportation

of heroin, the heroin was supposed to have been in the white

Lexus that he was following rather than the Honda Civic and

speculated that “Cal” must have transferred the heroin from the

Lexus to the Honda Civic.

                            B. Procedural Facts
                                 -6-
    On 12 June 2012, a magistrate’s order charging Defendant

with trafficking in more than 28 grams of heroin by possession

was issued.    On 6 August 2012, the Guilford County grand jury

returned   a   bill    of   indictment   charging   Defendant   with

trafficking in more than 28 grams of heroin by possession and

conspiring with an unknown person to traffic in more than 28

grams of heroin by possession.1    On 8 July 2013, Defendant filed

a motion seeking to have any evidence seized from the Honda

Civic suppressed.     On 16 July 2013, the trial court entered an

order denying Defendant’s suppression motion.

    The charges against Defendant came on for trial before the

trial court and a jury at the 8 July 2013 criminal session of

the Guilford County Superior Court.      On 16 July 2013, the jury

returned a verdict convicting Defendant of conspiracy to traffic

in more than 28 grams of heroin by possession and acquitting

Defendant of trafficking in more than 28 grams of heroin by

possession and transportation.    At the conclusion of the ensuing

sentencing hearing, the trial court entered a judgment ordering

that Defendant be imprisoned for a term of 225 to 279 months and




    1
      Although Defendant appears to have been charged with
trafficking in more than 28 grams of heroin by transportation as
well, the record on appeal presented for our review does not
contain any indictment purporting to charge Defendant with
having committed that offense.
                                     -7-
pay a $500,000.00 fine.        Defendant noted an appeal to this Court

from the trial court’s judgment.

                              II. Legal Analysis

       In    his   brief,   Defendant   argues     that   the   trial      court

impermissibly coerced the jury into returning its verdict in

this case.         In support of this contention, Defendant asserts

that   the    trial   court    delivered   an   instruction     to   the   jury

concerning the jury’s alleged inability to reach a unanimous

verdict in an impermissible manner and that the language that

appeared at the end of this supplemental instruction clearly

conveyed the message to the jury that the trial court would

compel it      to continue deliberating until they had reached a

verdict.      We do not believe that either of Defendant’s arguments

have merit.

                      A. Relevant Factual Information

       The jury began deliberating on a verdict at 9:58 a.m. on 16

July 2013.         Approximately one hour later, the members of the

jury asked the trial court to reinstruct them concerning the

elements of the offenses with which Defendant had been charged.

After the trial court delivered these supplemental instructions,

the jury resumed its deliberations.              At 12:11 p.m., the jury

sent the trial court a note asking, “[w]hat do we do if we

cannot agree on two of the charges?”            After reviewing the jury’s
                                               -8-
communication,          the    trial      court   informed        the    parties,      without

drawing any objection, that he intended to instruct the jury in

accordance           with    NCPJI     101.40,       which    reflects        the    approach

required by N.C. Gen. Stat. § 15A-1235 and the decision of the

United States Supreme Court in Allen v. United States, 164 U.S.

492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528, 530-31 (1896).2

Once       the   jury       returned      to   the    courtroom,        the    trial    court

delivered        a    supplemental         instruction        that      was   substantively

identical to that set out in NCPJI. 101.40 and concluded by

saying, “[t]ake your time.                     We have all day and all week if

necessary.”           The jury returned to its deliberations at 12:15

p.m. and returned a unanimous verdict convicting defendant of

conspiracy       to     traffic      in    more      than    28   grams       of    heroin   by

possession and acquitting Defendant of trafficking in more than

28 grams of heroin by possession and transportation at 12:35

p.m.       After taking a lunch break, the trial court commenced the

required         sentencing          hearing,        at      which      point       Defendant

unsuccessfully objected to the fact that, as he saw it, the



       2
      As the Supreme Court has clearly held, the approach
employed in N.C. Gen. Stat. § 15A-1235 represents North
Carolina’s attempt to comply with Allen and its progeny. State
v. Alston, 294 N.C. 577, 597, 243 S.E.2d 354, 367 (1978)
(stating that the “enactment [of N.C. Gen. Stat. § 15A-1235]
provides our trial judges and our practicing attorneys with
clear standards for . . . instructions” like those contemplated
in Allen).
                                         -9-
trial       court     had   delivered   an     “extremely       loud”   supplemental

instruction.

                      B. Preservation of Defendant’s Claims

       As       he   candidly   acknowledges,       Defendant    did    not   lodge   a

contemporaneous objection to the manner in which the trial court

delivered its supplemental instructions or to the content of

those instructions in the court below.                      Although the parties

have vigorously debated the extent, if any, to which Defendant

properly         preserved      his   challenges       to   the     trial     court’s

supplemental instructions, with Defendant claiming that there

was no necessity for a contemporaneous objection to the trial

court’s supplemental instructions and the State claiming that

such an objection was required, we need not devote substantial

time       to    a   thorough   discussion     of    this   question     given   this

Court’s recent decisions in State v. Blackwell, __ N.C. App. __,

__, 747 S.E.2d 137, 140 (2013), and State v. Gillikin, 217 N.C.

App. 256, 261, 719 S.E.2d 164, 168-69 (2011),3 to the effect that



       3
      Although discretionary review has been granted and a stay
ordered in State v. May, __ N.C. App.__, 749 S.E.2d 483, 490
(2013), disc. review allowed, __ N.C.__, 753 S.E.2d 663 (2014),
which raises the same preservation issue found in Gillikin and
Blackwell, those decisions remain binding upon us unless and
until the Supreme Court overturns our earlier decision.   In re
Appeal of Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) (stating that, “[w]here a panel of the Court of Appeals
has decided the same issue, albeit it in a different case, a
subsequent panel of the same court is bound by that precedent,
                                        -10-
claims such as those at issue here implicate the “unanimous

jury” right embodied in N.C. Const. art. I, sec. 24.                      “While the

failure    to    raise    a   constitutional      issue   at     trial     generally

waives that issue for appeal, where the error violates the right

to a unanimous jury verdict under Article I, Section 24, it is

preserved for appeal without any action by counsel.”                       State v.

Wilson, 363 N.C. 478, 479, 681 S.E.2d 325, 326 (2009).                           As a

result, we will reach the merits of Defendant’s challenges to

the    trial    court’s   supplemental      instructions        despite    the   fact

that Defendant failed to raise the issues that he presents for

our review before the trial court in a timely fashion.

                              C. Standard of Review

       In determining whether a trial court’s instructions “force

a     verdict    or     merely      serve   as    a    catalyst      for     further

deliberations,” we consider the totality of the circumstances

“under which the instructions were made and the probable impact

of the instructions on the jury.”                Gillikin, 217 N.C. App. at

262, 719 S.E.2d at 168 (quoting State v. Fernandez, 346 N.C. 1,

21, 484 S.E.2d 350, 362–63 (1997)).              In the event that the trial

court’s    instructions       did    erroneously      “force”    a   verdict,     the

defendant is entitled to relief unless the State shows that the

trial    court’s      error   was   harmless     beyond   a    reasonable     doubt.

unless it has been overturned by a higher court.”) (citations
omitted).
                                          -11-
Wilson,     363     N.C.    at   487,   681    S.E.2d      at   331.       An   error   is

harmless beyond a reasonable doubt if it “did not contribute to

the defendant’s conviction.”                  Gillikin, 217 N.C. App. at 261,

719 S.E.2d at 168 (quoting Wilson, 363 N.C. at 487, 681 S.E.2d

at 331).

       D. Specific Challenges to the Supplemental Instructions

       1. Basic Principles Governing Supplemental Instructions

       The manner in which a trial court should address a jury

that is having trouble reaching a decision is addressed in N.C.

Gen. Stat. § 15A-1235, which was enacted to serve as “the proper

reference for standards applicable to charges which may be given

a    jury   that    is     apparently    unable       to   agree    upon   a    verdict.”

State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809

(1980) (citing Alston, 294 N.C. at 596-97, 243 S.E.2d at 366-

67).    According to N.C. Gen. Stat. § 15A-1235(a), a trial court

is    required      to     instruct     the    jury    that     a   verdict     must    be

unanimous.         In addition, N.C. Gen. Stat. § 15A-1235(b) provides

that, in its discretion, a trial court may instruct 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
                                      -12-
                       consideration of the evidence with his
                       fellow jurors;

                 (3)   In the course of deliberation, a juror
                       should not hesitate to reexamine his
                       own views and change his opinion if
                       convinced that 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.

On   the    other      hand,   however,   N.C.    Gen.   Stat.     §    15A-1235(c)

explicitly provides that:

                 If 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).    The judge may
                 not require or threaten to require the jury
                 to deliberate for an unreasonable length of
                 time or for unreasonable intervals.

We will now evaluate Defendant’s contentions in light of these

well-established principles of North Carolina law.

                 2. Delivery of the Supplemental Instructions

      As an initial matter, Defendant contends that the trial

court erred by delivering its supplemental instructions using an

“extremely loud” voice.           According to Defendant, the volume at

which      the    trial   court   allegedly      delivered   its       supplemental

instructions informed the jury of its dissatisfaction with the

length of time that the deliberation process was taking and had
                                         -13-
the   effect      of    coercing   the     jury    into    reaching   a   unanimous

verdict.     Although the delivery of a supplemental instruction in

such a manner as to threaten to require the jury to deliberate

for an unreasonable time is unlawful, N.C. Gen. Stat. § 15A-

1235; see State v. Porter, 340 N.C. 320, 336, 457 S.E.2d 716,

724 (1995) (stating that “[s]ome of the factors considered are

whether the trial court conveyed an impression to the jurors

that it was irritated with them for not reaching a verdict and

whether the trial court intimated to the jurors that it would

hold them until they reached a verdict”), we do not believe that

anything about the manner in which the trial court delivered its

supplemental instructions had a coercive effect.

      As    Defendant      requested,      the     Court    has   listened    to    a

recording of the trial court’s supplemental instructions.                          Our

review     of    the     recording    of    the     supplemental      instructions

indicates       that,   while   the   trial       court   spoke   with    sufficient

emphasis to ensure that the jury could hear and understand what

was being said and both raised and lowered the volume at which

it was speaking at different points, the volume level that the

trial court utilized was not excessive given the conditions that

exist in the average trial courtroom.                 In addition, we detected

nothing in the tone of voice that the trial court utilized in

delivering these supplemental instructions that would have any
                                  -14-
sort of coercive effect.         The fact that no one contradicted

Defendant’s     post-verdict    contention      that    the     trial      court

delivered the supplemental instructions in an “extremely loud”

voice is just as consistent with a disregarding of Defendant’s

contention as unmerited as it is with acceptance of the validity

of Defendant’s assertion.       As a result, given that a reasonable

juror would not have had any basis for concluding that the trial

court was concerned about the length of time being occupied by

the deliberations process based upon the manner in which the

trial court delivered its supplemental instructions, Defendant

is   not   entitled   to   appellate   relief   on     the    basis   of   this

contention.

           3. Language Used in the Supplemental Instructions

      In addition to asserting that the trial court erred by

delivering its supplemental instructions in an “extremely loud”

voice, Defendant contends that the trial court actively coerced

the jury into reaching a verdict by concluding its supplemental

instructions with the statement, “[t]ake your time.              We have all

day and all week if necessary.”          In essence, Defendant asserts

that this statement constituted a veiled threat to compel the

jury to continue deliberating until it reached a verdict.                     We

are unable to agree with Defendant’s characterization of the

trial court’s concluding remarks.
                                        -15-
       A careful review of the transcript compels us to conclude

that, rather than representing an attempt to coerce the jury

into    reaching     a    quick    verdict,    the   trial    court   was   simply

attempting to reassure the members of the jury that they should

not be concerned about the length of time that it was taking

them to reach a unanimous verdict.                   Language similar to that

employed by the trial court in this case has been held to be

unexceptionable by the Supreme Court.                 For example, in Porter,

340 N.C. at 333, 335, 457 S.E.2d at 722-23, the Supreme Court

found   that   the       trial    court’s   statement    to   a   jury   that   had

already been deliberating for               four days to the effect that,

“we’ve got plenty of time, there’s no rush, y’all take whatever

time you feel is necessary in this matter” and “we’ve got all

week” did not, when considered in context, have the effect of

coercing a verdict.          As a result of the fact that the jury had

been deliberating for slightly less than half a day when the

trial court made the challenged statement to the jury and the

fact that nothing in the language actually utilized by the trial

court in any way intimated that the jury would be required to

continue to deliberate until it reached a verdict, we are unable

to see any error in the language utilized at the conclusion of

the trial court’s supplemental instructions and hold, for that
                                -16-
reason, that Defendant is not entitled to relief from the trial

court’s judgment on the basis of this contention.4

                           III. Conclusion

     Thus, for the reasons set forth above, we conclude that

neither of Defendant’s challenges to the trial court’s judgments

have merit.      As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

     NO ERROR.

     Judges ROBERT N. HUNTER, JR., and DAVIS concur.

     Report per Rule 30(e).




     4
      Although Defendant correctly notes that the trial court in
this case, unlike the trial court in Porter, did not inquire of
the jury if further deliberations would be appropriate before
making the challenged statement, that fact, standing alone, is
not sufficient to cause us to conclude that a different outcome
is appropriate here.    Similarly, we are unable to deduce from
the mere fact that the jury reached a verdict approximately 20
minutes after the delivery of the challenged supplemental
instruction that the jury felt intimidated by the trial court’s
conduct, since that fact is just as consistent with a conclusion
that the supplemental instruction achieved its purposes of
facilitating more effective jury deliberations.
