State v. Asbury
State v. Asbury
Opinion of the Court
The defendant brings forward only one assignment of error. It concerns things that occurred during the jury poll.
Specifically, the defendant refers to the three questions asked each juror by the clerk during the polling of the jury when the verdict was returned against Conner, one juror’s apparent confusion, and the trial court’s reaction thereto. The three questions were: “Was this your verdict? Is this now your verdict? Do you still agree and assent thereto?” When one juror asked what was the difference in the three questions and why were there three questions, the court responded, “They would really call for the same response, I would say.”
“Clerk: David M. Houck. (Stands.) Your foreman has reported to the Court a verdict of guilty of robbery with a firearm as to Edward Conner, Jr. Was this your verdict?
David M. Houck: (No response.)
Clerk: Was this your verdict?
David M. Houck: Can I ask — uh. I hate to be — can I ask what the difference in the three questions is?
The Court: Pm sorry. Will you phrase your question again ?
David M. Houck: What are the differences in the three questions that she asked?
The Court: I’ll let her ask the questions again.
Clerk: The three questions are: ‘Was this your verdict? Is this now your verdict? Do you still agree and assent thereto ?’
David M. Houck : What I’m asking is, why are there three questions?
The Court: They would really call for the same response, I would say. I just don’t know how better to explain. Ask the first question.
* * *
Clerk: Was this your verdict?
David M. Houck : Yes, it was.
Clerk: Is it now your verdict?
David M. Houck: (Long pause.) Yes.
Clerk : Do you still agree and assent thereto ?
David M. Houck : What would happen if I said no ?
Mr. Funderburk: (Attorney for defendant Conner.) Your Honor, I think that he should be instructed that he has a right to say no, and that he should do so, if he so feels.
*295 The Court: Well, sir. You will just have to answer the questions, and the Court will take such steps as must be taken, but you must answer the question. Ask the question again.
Clerk: Do you still agree and assent thereto?
David M. Houck : Yes, sir.”
After the clerk had polled the last juror, both defendants moved for a mistrial based on Mr. Houck’s request for instructions and the court’s refusal to so instruct.
Arguments were heard by the court in support of the motion for mistrial. Thereafter, the following exchange took place.
“The Court: Mr. Houck, stand up. (Mr. Houck stands.) Poll Mr. Houck again. Mr. Houck, listen to the questions. As I indicated to you, I think the questions are self-explanatory. Ask the juror the first question—
Mr. Funderburk: Your Honor, if I might, I think the problem is Mr. Houck doesn’t understand—
The Court: All I want is Mr. Houck’s verdict. That’s all. With reference to what happens, that’s of no concern to him. All I want to know is what his verdict is. So, ask the questions again.
Clerk: Mr. Houck, your foreman has reported to the Court a verdict of robbery with a firearm as to Edward Conner, Jr. Was this your verdict?
Mr. Houck: Yes, ma’am.
Clerk: Is this now your verdict?
Mr. Houck : Yes, ma’am.
Clerk: Do you still agree and assent thereto?
Mr. Houck: Yes, ma’am.
The Court: Now, as to Mr. Asbury.
Clerk: Your foreman has reported to the Court a verdict of guilty of robbery with a firearm as to Willie James Asbury. Was this your verdict?
Mr. Houck: Yes, ma’am.
*296 Clerk: Is this now your verdict?
Mr. Houck : Yes, ma’am.
Clerk : Do you still agree and assent thereto ?
Mr. Houck: Yes, ma’am.
The Court: Now, Mr. Houck, is there any misunderstanding on your part about the time frame and the essence of those questions?
Mr. Houck : No, sir.
The Court: Motions For a Mistrial is Denied'.”
It is of significant note that the jury was polled individually as to each defendant and that the alleged error complained of herein by defendant Asbury occurred when juror Houck was being questioned with respect to his verdict against defendant Conner. When the same juror was questioned as to his verdict against Asbury, he showed no reluctance or hesitation whatsoever.
Generally, a defendant has the right to have the jury polled in order to determine whether the verdict is unanimous. State v. Cephus, 241 N.C. 562, 86 S.E. 2d 70. There is, however, a conflict of authority as to whether a verdict of guilty should be accepted after a juror, during the poll, has indicated that his consent to the verdict was given reluctantly. Some courts have held that a reluctantly assented to verdict is a defective verdict. We hold to the view that such verdicts are not defective if it appears that the juror ultimately freely assented to the verdict. Subsequent answers and responses made by a juror may cure the effect of prior inconsistent, ambiguous, equivocal or evasive answers. See Annot., 25 A.L.R. 3d 1149.
Here, the juror unequivocally indicated his assent to the verdict. Moreover, juror Houck’s responses do not indicate any reluctance to assent to the verdict. Instead, his questions seem to stem from idle curiosity as to why there were three questions instead of one. The judge’s initial response to the juror’s questions was not as clear as it could have been. Nevertheless, it could not have been taken as a suggestion as to what the juror’s response to the poll should be. The questions directed to him were clear and simple. They called for yes or no answers. There is nothing in the record to suggest that his answers were prompted by anything other than the evidence in the case. In
No error.
Dissenting Opinion
dissenting:
The court’s instruction to juror Houck that the three questions would call for the same response was error since the juror had the right to disagree at that time even though he had agreed to the verdict when reached in the jury room. Though given during the poll of the jurors relative to the verdict rendered in the case against the defendant Conner, the instruction was never corrected. Under these circumstances juror Houck could have understood that he was required to then assent to the verdict if he theretofore agreed. In my opinion the error was not harmless beyond a reasonable doubt.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.