              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-874

                                  Filed: 2 May 2017

Wake County, Nos. 14CRS001805, 14CRS209220

STATE OF NORTH CAROLINA,

             v.

JEROME HARRIS, Defendant.


      Appeal by defendant from judgment entered 11 December 2015 by Judge

Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals

22 February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Marc X.
      Sneed, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
      defendant-appellant.


      BERGER, Judge.


      Jerome Harris (“Defendant”) appeals from judgment entered following his

conviction for second degree murder and possession of a firearm by a convicted felon.

Defendant contends the trial court erred (1) by allowing the State to introduce a video

of a witness’ interview by law enforcement into evidence, both substantively and

corroboratively, and to play the video for the jury; and (2) by giving supplemental jury

instructions urging the jurors to continue their deliberations when it was

communicated to the trial court that they were unable to agree upon a verdict.
                                     STATE V. HARRIS

                                    Opinion of the Court



         After review, we disagree with Defendant on his first assignment of error and

hold that the trial court did not commit error in allowing the State’s video interview

evidence to be played for the jury, first as a ‘past recorded recollection’ exception to

hearsay, and second as corroborative evidence substantiating their witness’

testimony. We agree with Defendant on his second assignment of error that the trial

court erred by giving some, but not all, of the supplemental jury instructions required

by statute if it appears to the judge that the jury has been unable to agree upon a

verdict.    However, because this was unpreserved error and the trial court’s

instructions did not coerce the jury into reaching its verdict, it did not rise to the level

of plain error. For these reasons, Defendant received a fair trial free from prejudicial

error.

                                  Factual Background

         The State presented evidence at trial that tended to show the following chain

of events led to the death of Corey Jackson (“Jackson”). Donivan Bridges (“Bridges”),

a close friend of Defendant for approximately 12 years, testified that he, Jackson, and

Defendant were at a cookout together on April 20, 2014. At the cookout, Jackson and

Defendant began to argue when Jackson told Defendant, “We used to take your drugs

and we used to beat you up whenever you was on the streets.” Jackson’s comment

was made in the presence of Defendant’s girlfriend, Africa Ledbetter (“Ledbetter”),

and their children. After this verbal exchange, Defendant expressed anger to Bridges



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at this insult and his intent to shoot Jackson that day. Defendant also asked Bridges

about acquiring a gun. Defendant did not know where his gun was located because

Ledbetter had hidden it from him.

      Tyshia Wilson (“Wilson”) testified that on April 21, 2014, she noticed that

Jackson seemed agitated and anxious when she saw him at the home of Cora Bost

(“Bost”), Wilson’s mother. When Wilson asked Jackson why he was anxious, he said

that he was in the middle of a confrontation with Defendant and wanted it resolved

that day. Jackson let Wilson know about the confrontation so that he “wouldn’t get

jumped,” and also said that he wanted to fight Defendant in the parking lot their

adjacent apartments shared.

      Once Jackson, Wilson, and others left Bost’s home and returned to Defendant

and Jackson’s apartment complex, Defendant was found pacing outside as he talked

on his telephone. Jackson challenged Defendant to a fight, but Defendant said he did

not have time to fight. Bost testified that Jackson, in reference to a previous domestic

incident between Defendant and Ledbetter in which police were called, said to

Defendant, “You must be still mad because you think my girl called the cops on you

when you was beating [Ledbetter].”

      Defendant continued his telephone conversation and requested the person to

whom he was speaking to bring him a gun. Jackson continued to call Defendant

inflammatory names as he challenged him to fight, but Defendant continued to



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decline Jackson’s invitation. Later that day, Jackson informed his wife, Tyaisha

Smalley (“Smalley”), about his confrontation with Defendant and how Defendant had

accused Jackson of trying to “holler at” Ledbetter.      Jackson denied having ever

pursued any kind of relationship with Ledbetter.

      Several days passed, and on April 24, 2014, Smalley and her son Christian

returned to the apartment they shared with Jackson. Jackson had previously sent

Smalley a text message at approximately 2:40 p.m. saying that he was at their

apartment cleaning. When Smalley and Christian arrived, Smalley paused briefly

outside to speak with Ledbetter’s parents who were sitting on Defendant and

Ledbetter’s front porch.   Christian entered the apartment first, and came back

outside to tell Smalley that Jackson was lying on the floor of their living room, face

down and unresponsive. Ledbetter’s stepfather called for police and an ambulance.

      As part of law enforcement’s initial investigation, Raleigh Police Detective

Brian Neighbors (“Detective Neighbors”) interviewed Ledbetter’s 13-year-old son,

Xavier Gibbes (“Gibbes”), on that same day, April 24. Gibbes informed Detective

Neighbors during this interview that he had heard a gunshot at approximately 2:45

to 3:00 p.m. earlier that day in the vicinity of Jackson’s apartment, and several

seconds later had observed Defendant walking away from the apartment with a

jacket in his hand.




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                                 Opinion of the Court



      When Bridges returned to his apartment on April 24 and saw the ongoing

investigation at Jackson’s apartment, he called Defendant because of the

conversation he and Defendant had the previous day. During this conversation,

Defendant asked whether the police were looking for him, and admitted that “he [had]

shot [Jackson] and thought he hit him at least once”. Bridges was interviewed by

Raleigh Police Detective Eric Emser (“Detective Emser”) on April 24, and he conveyed

the content of his conversation with Defendant to Detective Emser.

      Dr. Lauren Scott (“Dr. Scott”) of the Office of the Chief Medical Examiner

performed an autopsy of Jackson on April 25, 2014. Dr. Scott testified about the

autopsy, finding that Jackson had suffered four gunshot wounds.       Two of these

gunshot wounds entered Jackson’s back and were determined to be fatal.

      Defendant was arrested on the morning of April 25, 2014. Following his arrest,

Defendant was interviewed by Raleigh Police Detective Zeke Morse (“Detective

Morse”). During the interview, Defendant informed Detective Morse where he would

be able to find the weapon with which he had shot Jackson.

      At trial, Defendant freely, voluntarily, and understandingly elected to remain

silent and not present any evidence on his own behalf, after consultation with his

counsel.

                              Procedural Background




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                                   Opinion of the Court



      Defendant was indicted by a Wake County Grand Jury on June 2, 2014, for

possession of a firearm by a convicted felon in violation of N.C. Gen. Stat. § 14-415.1,

and first degree murder in violation of N.C. Gen. Stat. § 14-17. These charges were

joined for trial as they arose from the same acts of Defendant. Defendant was tried

before a jury beginning on December 7, 2015, in Wake County Superior Court, the

Honorable Michael R. Morgan presiding.            The jury returned verdicts finding

Defendant guilty of possession of a firearm by a convicted felon, for which Defendant

was sentenced to a term of 17 to 30 months, and guilty of second degree murder, for

which he was sentenced to a term of imprisonment of 328 to 406 months; the sentence

terms to run consecutively. Defendant gave oral notice of appeal.

                                       Analysis

      Defendant has two assignments of error asserted in this appeal. His first

assignment contests the introduction of a video interview conducted by Detective

Neighbors of Gibbes into the State’s evidence, and allowing said interview to be

played twice for the jury. His second assignment of error, albeit unpreserved at trial,

challenges supplemental jury instructions given by the trial court when the jury

communicated that it was unable to reach a verdict after three hours of deliberation.

We take each in turn.

I. Video Recording of Witness’ Interview




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        By his first assignment of error, Defendant contends that the trial court erred

by allowing the State to twice play for the jury a video recording of its witness being

interviewed by law enforcement. Defendant argues that it was error for the trial

court to allow the video interview to be introduced as evidence both substantively,

and thereafter corroboratively. In other words, it should have failed substantively,

and therefore failed corroboratively. We disagree.

        Initially, we must note that “[e]vidence of an out-of-court statement of a

witness, related by the in-court testimony of another witness, may be offered as

substantive evidence1 or offered for the limited purpose of corroborating the

credibility of the witness making the out-of-court statement.2” State v. Ford, 136 N.C.

App. 634, 640, 525 S.E.2d 218, 222 (2000) (footnotes in original). “Although the better

practice calls for the party offering the evidence to specify the purpose for which the

evidence is offered, unless challenged there is no requirement that the purpose be

specified.” Id. “If the offering party does not designate the purpose for which the

evidence is offered, the evidence is admissible if it qualifies either as corroborative

evidence or competent substantive evidence.” Id. (citing State v. Goodson, 273 N.C.




        1 The evidence would qualify as substantive evidence if it was offered for the truth of the matter
asserted and qualified as an exception under our hearsay rules. N.C. Gen. Stat. § 8C–1, Rule 803
(1999).
        2 If offered simply as corroborative evidence and admitted for this limited purpose, the evidence

does not constitute hearsay evidence because it is not offered to prove the truth of the prior out-of-
court statement. As such this evidence does not qualify as an exception to the hearsay rule.

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128, 129, 159 S.E.2d 310, 311 (1968); State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d

728, 735 (1989)).

   A. Introduction of Recording as Hearsay Exception

      Defendant first argues that the trial court erred in allowing the video interview

to be introduced as substantive evidence and played for the jury when the State’s

witness, Gibbes, was unable to recall any of the statements he made to Detective

Neighbors soon after Defendant had shot and killed Jackson. Defendant argues that

the State introduced the video interview pursuant to Rule 612 of the North Carolina

Rules of Evidence as a ‘present recollection refreshed’, and in allowing it to do so, the

trial court erred. However, in light of the testimony of Gibbes, the arguments of

counsel, and the ruling of the trial court, the evidence was properly introduced

pursuant to Rule 803(5) as a hearsay statement that fits within an exception to

exclusion. Therefore, as shown below, the trial court did not err, and this portion of

this alleged error is overruled.

      At the time evidence is admitted, exceptions to the admission must generally

be preserved by counsel with an objection. N.C. Gen. Stat. § 8C–1, Rule 103; N.C.R.

App. P. 10(a)(1). “In order to preserve a question for appellate review, a party must

have presented the trial court with a timely request, objection or motion, stating the

specific grounds for the ruling sought if the specific grounds are not apparent.” State




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                                   Opinion of the Court



v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (citing N.C.R. App. P.

10(b)(1)).

         The specific grounds for objection raised before the trial court must be the

theory argued on appeal because “the law does not permit parties to swap horses

between courts in order to get a better mount in the [appellate court].” Weil v.

Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). Furthermore, when counsel objects

to the admission of evidence on only one ground, he or she fails to preserve the

additional grounds for appeal, unless plain error is specifically and distinctly argued

on appeal. State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995) (citing N.C.R.

App. P. 10(c)(4)). For this issue, Defendant has not argued plain error. Therefore,

we only address the grounds under which the contested admission of evidence was

objected, as any other grounds have been waived.

         The admission of evidence alleged to be hearsay is reviewed de novo when

preserved by an objection. State v. Wilson, 197 N.C. App. 154, 159, 676 S.E.2d 512,

515 (2009). Unless there is an evidentiary rule to the contrary, assignment of error

to the admission of evidence is waived on appeal if no objection is raised to the trial

court.    State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011).

Furthermore, unless a defendant proves that a different result would have been

reached at trial absent the error, evidentiary errors are harmless. State v. Ferguson,

145 N.C. App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C. 223, 554



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S.E.2d 650 (2001) (citing State v. Campbell, 133 N.C. App. 531, 540, 515 S.E.2d 732,

738 (1999)).

      Hearsay is “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

N.C. Gen. Stat. § 8C-1, Rule 801 (2015). Hearsay may not be admitted into evidence,

“except as provided by statute or by [the evidentiary] rules.” N.C. Gen. Stat. § 8C-1,

Rule 802 (2015). These evidentiary rules provide exceptions for certain hearsay

evidence to not be excluded if the statement fits in certain categories. N.C. Gen. Stat.

§ 8C-1, Rule 803 (2015). One such statement that will not be excluded by the hearsay

rule is “[a] memorandum or record concerning a matter about which a witness once

had knowledge but now has insufficient recollection to enable him to testify fully and

accurately, shown to have been made or adopted by the witness when the matter was

fresh in his memory and to reflect that knowledge correctly.” N.C. Gen. Stat. § 8C-1,

Rule 803(5). This is considered a ‘past recollection recorded’, and, “[i]f admitted, the

memorandum or record may be read into evidence but may not itself be received as

an exhibit unless offered by an adverse party.” Id.

      In the case sub judice, Defendant argues that the trial court permitted the jury

to hear the recording of Gibbes’ interview by Detective Neighbors under Rule 612(a)

of the North Carolina Rules of Evidence. Defendant further argues that the trial

court erred by allowing the State to play this recording, because under Rule 612



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Defendant must be the party choosing whether or not the recording will be played for

the jury.

      Rule 612 provides for the use of a writing or object to be used to refresh the

witness’ memory. N.C. Gen. Stat. § 8C-1, Rule 612 (2015). This ‘present recollection

refreshed’ writing or object may be used by the witness to refresh his memory, but

the “adverse party is entitled to have the writing or object produced at the trial,

hearing, or deposition in which the witness is testifying”. Id. Furthermore, this

adverse party is “entitled to inspect it, to cross-examine the witness thereon, and to

introduce in evidence those portions which relate to the testimony of the witness”.

Id.

      However, it was neither explicitly stated whether the State was seeking to

introduce the video into evidence as a hearsay exception pursuant to Rule 803(5) or

as a ‘present recollection refreshed’ pursuant to Rule 612, nor was it stated that the

trial court was allowing the video’s introduction into evidence pursuant to either of

these two rules. Therefore, we must distinguish between a writing that is offered as

a ‘past recollection recorded’ and one that is offered as a ‘present recollection

refreshed’ because the admissibility requirements are critically different.

      “Before a past recollection recorded can be read into evidence, certain

foundational requirements must be met.” State v. Harrison, 218 N.C. App. 546, 551-




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52, 721 S.E.2d 371, 376 (2012). This Court, in State v. Love, 156 N.C. App. 309, 576

S.E.2d 709 (2003), explained that

             [i]n order to admit ‘recorded recollection’ pursuant to N.C.
             Gen. Stat. § 8C-1, Rule 803(5), the party offering the
             recorded recollection must show that the proffered
             [evidence] meets three foundational requirements: (1) The
             [evidence] must pertain to matters about which the
             declarant once had knowledge; (2) The declarant must now
             have an insufficient recollection as to such matters; (3) The
             [evidence] must be shown to have been made by the
             declarant or, if made by one other than the declarant, to
             have been examined and adopted . . . when the matters
             were fresh in [his or her] memory.

Id., 156 N.C. App. at 314, 576 S.E.2d at 712 (brackets omitted).

             In contrast,

                   [u]nder present recollection refreshed the witness'
                   memory is refreshed or jogged through the
                   employment of a writing, diagram, smell or even
                   touch, and he testifies from his memory so refreshed.
                   Because of the independent origin of the testimony
                   actually elicited, the stimulation of an actual
                   present recollection is not strictly bounded by fixed
                   rules but, rather, is approached on a case-by-case
                   basis looking to the peculiar facts and circumstances
                   present.

             [State v. Gibson, 333 N.C. 29, 50, 424 S.E.2d 95, 107 (1992)
             overruled on other grounds by State v. Lynch, 334 N.C. 402,
             432 S.E.2d 349 (1993)]. Because “the evidence is the
             testimony of the witness at trial, whereas with a past
             recollection recorded the evidence is the writing itself,” “the
             foundational questions raised by past recollection recorded
             are never reached.” Id. The relevant test, then, “is
             whether the witness has an independent recollection of the
             event and is merely using the memorandum to refresh
             details or whether the witness is using the memorandum

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                                   Opinion of the Court



              as a testimonial crutch for something beyond his recall.”
              State v. York, 347 N.C. 79, 89, 489 S.E.2d 380, 386 (1997).

Harrison, at 552, 721 S.E.2d at 376.

       The testimony of Gibbes leading up to the introduction of the video evidence to

the jury showed that this evidence was necessary “as a testimonial crutch for

something beyond his recall.” See York, at 89, 489 S.E.2d at 386. During direct

examination of Gibbes by the State, the following pertinent exchanges illustrated

Gibbes’ lack of recall:

              [The State]: All right. Now, what was the detective
                           talking to you about?

              [Gibbes]:    I don’t remember.

              [The State]: You don’t remember?

              [Gibbes]:    Huh-uh. I really don’t…

And:

              [The State]: Do you recall telling the detective that?

              [Gibbes]:    No.

And:

              [The State]: Okay. You don’t recall this detective that’s
                           depicted with you looking at this piece of
                           paper in State’s Exhibit 99, this being the
                           sketch and you indicating where you were
                           when you heard the gunshot and two or three
                           seconds later, you see [Defendant] walking
                           away carrying a jacket?

              [Gibbes]:    No, I really don’t.

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                [The State]: Okay. Did you tell the detective that?

                [Gibbes]:   No.

                [The State]: Tell us everything – how long did you stay at
                             the Raleigh Police Department?

                [Gibbes]:   I really don’t know. That was a year ago. You
                            can’t expect me to recall that.

Following these exchanges, the State asked Gibbes whether viewing the video

interview with Detective Neighbors would be helpful. Gibbes responded, “I mean,

whatever floats your boat.” Then, when Defendant was asked by the trial court

whether or not he objected to the introduction of the video evidence to the jury,

Defendant’s counsel initially had no objection, but then changed his mind and entered

an objection.

       The objection lodged by Defendant before the introduction of the contested

evidence is consistent with an objection to the introduction of ‘past recollection

recorded’ evidence, particularly the second foundational requirement enunciated in

Love: “[t]he declarant must now have an insufficient recollection as to such

matters…” Love, 156 N.C. App. at 314, 576 S.E.2d at 712. Defendant’s counsel

objected “because of the testimony of the witness saying he did not remember.” The

trial court responded in overruling Defendant’s objection that “[t]he aspect of his

saying he did not remember is a demonstration of his recollection being exhausted”,

i.e., insufficient recollection as to such matters.


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                                  Opinion of the Court



      As the pertinent parts of the testimony above show, Gibbes had insufficient

recollection as to the information he had conveyed to Detective Neighbors when those

matters were fresh in his memory.         Had Defendant’s counsel objected to the

introduction of the evidence generally, or objected to any other foundational issues

specifically, those objections could be reviewed by this Court. However, Defendant

has failed to preserve other grounds for review and he is not permitted “to swap

horses between courts.”     Weil, at 10, 175 S.E. at 838.     Therefore, based upon

Defendant’s counsel’s objection, and the concomitant scope of review permitted within

this Court, we must conclude that the trial court did not err in allowing the video of

this interview to be played for the jury during Gibbes’ testimony as ‘past recollection

recorded’ substantive evidence.

   B. Introduction of Recording as Corroborative Evidence

      Defendant next argues, within this same issue, that the introduction of the

same video interview as corroborative evidence during the testimony of Detective

Neighbors was allowed in error. Defendant argues this was error because, if the video

was improperly introduced during Gibbes’ testimony as substantive evidence, it

should not have been introduced during Detective Neighbors’ testimony as

corroborative evidence. As shown above, the introduction of the video as substantive

evidence was not error; therefore, Defendant’s argument fails to show why it could

not have been introduced as corroborative evidence at a later point in the trial.



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      Furthermore, and most dispositive, Defendant did not object to the second

introduction of this evidence under any issues pertaining to corroboration.

Defendant’s counsel, in giving his grounds for objection, stated, “Judge, I’m going to

object to reshowing this, especially when the State’s witness who is being interviewed

[in the video] is not here that that [sic] we can call and cross-examine about what

happened.” As stated above, and emphasized here, the specific grounds for objection

raised before the trial court must be the theory argued on appeal because “the law

does not permit parties to swap horses between courts in order to get a better mount

in the [appellate court].” Weil, at 10, 175 S.E. at 838. Furthermore, when counsel

objects to the admission of evidence on only one ground, he or she fails to preserve

the additional grounds for appeal, unless plain error is specifically and distinctly

argued on appeal. Frye, at 496, 461 S.E.2d at 677 (citing N.C.R. App. P. 10(c)(4)).

Again, as in the first part of this issue, plain error has not been argued.

      At trial, the State questioned Detective Neighbors extensively about the

interview recorded in the video, specifically detailing the Detective’s many questions

asked and Gibbes’ responses given, along with the circumstances surrounding the

interview.   When viewing the introduction into evidence of the video interview,

especially in the context of Detective Neighbors’ testimony, the video interview was

played for the jury to corroborate Detective Neighbors’ prior testimony about the

interview, not to corroborate any of Gibbes’ previous testimony.



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                    Corroboration is the process of persuading the trier
             of the facts that a witness is credible. We have defined
             “corroborate” as “to strengthen; to add weight or credibility
             to a thing by additional and confirming acts or evidence.”
             Prior consistent statements of a witness are admissible as
             corroborative evidence even when the witness has not been
             impeached. However, the prior statement must in fact
             corroborate the witness' testimony.

                    In order to be corroborative and therefore properly
             admissible, the prior statement of the witness need not
             merely relate to specific facts brought out in the witness's
             testimony at trial, so long as the prior statement in fact
             tends to add weight or credibility to such testimony. Our
             prior statements are disapproved to the extent that they
             indicate that additional or “new” information, contained in
             the witness's prior statement but not referred to in his trial
             testimony, may never be admitted as corroborative
             evidence. However, the witness's prior statements as to
             facts not referred to in his trial testimony and not tending
             to add weight or credibility to it are not admissible as
             corroborative evidence. Additionally, the witness's prior
             contradictory statements may not be admitted under the
             guise of corroborating his testimony.

State v. Locklear, 172 N.C. App. 249, 256, 616 S.E.2d 334, 339 (2005) (quoting State

v. Ramey, 318 N.C. 457, 468-69, 349 S.E.2d 566, 573-74 (1986) (internal citations and

quotations omitted)) (emphasis removed).

      Detective Neighbors testified in elaborate detail about his interview with

Gibbes.    The State methodically questioned Detective Neighbors about his

interviewee, Gibbes, as well as the responses Gibbes gave surrounding the death of

his neighbor. Detective Neighbors testified to the detailed chronological order of

Gibbes’ explanation of what he had witnessed. Thereafter, the State requested that


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the video interview be played for the jury to corroborate Detective Neighbors’

testimony about the interview. There may or may not have been inconsistencies

between Detective Neighbors’ testimony and the video interview, and there may or

may not have been facts mentioned in one but not the other, but these were for the

jury to consider and weigh. See Id. The statements made in the video interview were

admissible as corroborative evidence. See State v. Higginbottom, 312 N.C. 760, 768,

324 S.E.2d 834, 840 (1985), superseded by statute on other grounds as stated in State

v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998) (“It is not necessary that evidence prove

the precise facts brought out in a witness's testimony before that evidence may be

deemed corroborative of such testimony and properly admissible.” citing State v.

Burns, 307 N.C. 224, 297 S.E.2d 384 (1982)).

      “The jury could not be allowed to consider this evidence for any other purpose

[but corroboration], however, and whether it in fact corroborated the [Detective]'s

testimony was, of course, a jury question.” Locklear, at 257, 616 S.E.2d at 340

(citation and quotation marks omitted). The trial court did not err in allowing the

video interview be played for the jury for the purpose of corroborating Detective

Neighbors’ testimony, and, therefore, this portion of Defendant’s assignment of error

is overruled.

II. Supplemental Jury Instruction




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      Next we address Defendant’s argument that a new trial is required because he

was deprived of his fundamental right to a properly instructed jury. We disagree

with his contention that the supplemental jury instruction, given by the trial court in

response to the jury’s communication that it was “stuck” during its deliberation, had

a probable impact on the jury’s verdict or improperly coerced the jury to reach a

verdict. Therefore, this alleged error was not prejudicial and we decline to grant

Defendant a new trial.

      Defendant did not object at trial to the instructions assigned as error.

“Therefore, our review as to these instructions is limited to a review for plain error.”

State v. Evans, 346 N.C. 221, 225, 485 S.E.2d 271, 273 (1997) (citing State v. Odom,

307 N.C. 655, 300 S.E.2d 375 (1983)).

      Our Supreme Court reaffirmed their holding in State v. Odom, and further

clarified how the plain error standard of review applies on appeal to unpreserved

instructional error, in State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012):

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial.
             See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show
             that an error was fundamental, a defendant 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.” See id. (citations and quotation
             marks omitted); see also [State v. Walker, 316 N.C. 33, 39,
             340 S.E.2d 80, 83 (1986)] (stating “that absent the error the
             jury probably would have reached a different verdict” and
             concluding that although the evidentiary error affected a
             fundamental right, viewed in light of the entire record, the


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              error was not plain error). Moreover, because plain error
              is to be “applied cautiously and only in the exceptional
              case,” Odom, 307 N.C. at 660, 300 S.E.2d at 378, the error
              will often be one that “seriously affect[s] the fairness,
              integrity or public reputation of judicial proceedings,”
              Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting [U.S. v.
              McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)]).

Lawrence, at 518, 723 S.E.2d at 334. “[E]ven when the ‘plain error’ rule is applied,

‘[i]t is the rare case in which an improper instruction will justify reversal of a criminal

conviction when no objection has been made in the trial court.’ ” Odom, at 660-61,

300 S.E.2d at 378 (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).

       After approximately three hours of deliberations, the trial court received a note

from the jury indicating that “they ha[d] a split of 11 to 1.” Neither the State, nor

Defendant, objected to the trial court’s “inclination to give them what is colloquially

known as the dynamite charge, which would have them to be urged to do what they

can to arrive at a unanimous verdict.”

       Once the jury was present in the courtroom, the trial court stated:

              By virtue of your most recent note that’s been passed to me,
              your foreperson informs me that you have so far been
              unable to agree upon a verdict. The Court wants to
              emphasize 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 to reconcile
              your differences, if you can, without the surrender of
              conscientious convictions. But no juror should surrender
              his or her honest conviction as to the weight or effect of the
              evidence solely because of the opinion of his or her fellow
              jurors, or for the mere purpose of returning a verdict.



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                                  Opinion of the Court



Once again, neither party objected to the supplemental instructions after it was

given. The trial court then excused the jury to allow their deliberations to continue.

      Defendant contends that this instruction was given in violation of N.C. Gen.

Stat. § 15A-1235 (2015), which contains guidelines for instructing a deadlocked jury.

Pursuant to N.C. Gen. Stat. § 15A-1235,

             (a) Before the jury retires for deliberation, the judge must
             give an instruction which informs the jury 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 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.

             (c) 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


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                                  Opinion of the Court



             require or threaten to require the jury to deliberate for an
             unreasonable length of time or for unreasonable intervals.

             (d) If it appears that there is no reasonable possibility of
             agreement, the judge may declare a mistrial and discharge
             the jury.

N.C. Gen. Stat. § 15A-1235.

      “Whenever the trial judge gives a deadlocked jury any of the instructions

authorized by N.C.G.S. § 15A-1235(b), he must give all of them.” State v. Aikens, 342

N.C. 567, 579, 467 S.E.2d 99, 106 (1996) (citation omitted). Defendant argues in his

brief that the trial court’s supplemental instruction omitted the substance of N.C.

Gen. Stat. § 15A-1235(b)(1) and (2), and entirely omitted (b)(3). However, “[t]he

purpose behind the enactment of N.C.G.S. § 15A-1235 was to avoid coerced verdicts

from jurors having a difficult time reaching a unanimous decision.” Evans, 346 N.C.

at 227, 485 S.E.2d at 274 (citing State v. Williams, 339 N.C. 1, 39, 452 S.E.2d 245,

268 (1994), overruled on other grounds by State v. Warren, 347 N.C. 309, 492 S.E.2d

609 (1997) cert. denied, __ U.S. __, 133 L.Ed.2d 61 (1995)).

      In State v. Evans, as in the case sub judice, the jurors were admonished not to

compromise or surrender their conscientious or honest convictions for the mere

purpose of returning a verdict. Evans, 346 N.C. at 227, 485 S.E.2d at 274. “The

substance of these instructions was to ask the jury to continue its deliberations, and

the instructions were not coercive.” Id. Our Supreme Court specifically noted in

Evans “that the effect of the instructions was not so coercive as to impel defendant’s


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                                   STATE V. HARRIS

                                   Opinion of the Court



trial counsel to object to the instructions.” Id. (quoting State v. Peek, 313 N.C. 266,

272, 328 S.E.2d 249, 253 (1985)). Defendant’s counsel here did not object to the trial

court’s supplemental instructions when they were given, and, as in Evans, the trial

court’s instructions were not coercive and any error was not fundamental. “[A]fter

examination of the entire record, the error [could not be said to have] ‘had a probable

impact on the jury's finding that the defendant was guilty.’ ” Lawrence, 365 N.C. at

518, 723 S.E.2d at 334 (citing Odom, 307 N.C. at 660, 300 S.E.2d at 378). This was

not plain error.

      While the failure of the trial court to give the full instructions as directed by

N.C. Gen. Stat. § 15A-1235 did not rise to the level of plain error, we must clarify that

at the time the instruction was given, the trial court should reasonably have believed

that the jury was deadlocked. Because the trial court gave some of the instructions,

but not all of them, it did commit error. However, this error does not automatically

entitle Defendant to a new trial because, as our Supreme Court has recognized,

“ ‘every variance from the procedures set forth in the statute does not require the

granting of a new trial.’ ” Williams, 315 N.C. at 327-28, 338 S.E.2d at 86 (quoting

Peek, 313 N.C. at 271, 328 S.E.2d at 253); See also State v. Easterling, 300 N.C. 594,

268 S.E.2d 800 (1980).

      Reading the instructions as a whole, and the context in which they were given,

the trial court’s supplemental instructions neither forced a verdict nor contained



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                                   Opinion of the Court



elements of coercion, but merely served as a catalyst for further deliberations.

Defendant has failed to show how the instructions given could be reasonably

interpreted as coercive, and failed to establish plain error. Therefore, because the

instructional mistake had no probable impact on the jury’s finding that Defendant

was guilty, we conclude that it was not prejudicial error.

                                      Conclusion

      The trial court did not err in allowing the State to introduce into evidence the

video interview of Gibbes by Detective Neighbors, either substantively as a ‘past

recollection recorded’ exception to hearsay, or corroboratively to substantiate

Detective Neighbors’ testimony. While the trial court did err in failing to give the full

supplemental jury instructions required by N.C. Gen. Stat. § 15A-1235, Defendant

will receive no relief from this error as it was neither plain nor prejudicial.

      NO PREJUDICIAL ERROR.

      Judges CALABRIA and HUNTER, JR concur.




                                          - 24 -
