- A verdict must be unanimous, but jurors do not have to unanimously agree on the manner in which a particular element has been proved.
- Inconsistent verdicts are permissible, as long as they are not also mutually exclusive.
- Once accepted and entered, verdicts generally may not be “impeached” or challenged, except in limited circumstances where the jury was exposed to extraneous prejudicial material.
Requirement of Unanimity
As discussed in the preceding section, the jury’s verdict in a criminal case must be unanimous. See N.C. Const. Art. 1, § 24; G.S. 15A-1237(b); State v. Bradley, 181 N.C. App. 557 (2007). More specifically, this means that the jury must unanimously agree the state has proven every element of the crime charged. State v. Jordan, 305 N.C. 274 (1982); State v. Lewis, 274 N.C. 438 (1968). This principle does not require that all jurors agree on the specific method or reason why a single element is satisfied, but unanimity may arise as an issue if the jury instructions or verdict sheet fails to indicate unanimity as to all elements or offenses, as explained below:
- Multiple Theories to Support One Element
When a jury is instructed on multiple theories that could support an element of an offense, the jury is not required to be unanimous about which particular theory supports that element. For example, if a defendant is prosecuted for first-degree rape, and the trial court instructs the jury that the defendant can be convicted of the offense if the defendant either employed a deadly weapon or he was aided and abetted by another person in the commission of the rape, the defendant’s constitutional right to a unanimous jury verdict is not violated if some jurors find the defendant used a deadly weapon while other jurors find the defendant was aided and abetted - as long as all twelve jurors find one basis or the other, then it is a unanimous verdict. State v. Belton, 318 N.C. 141 (1986); State v. Taylor, 362 N.C. 514 (2008) (two different armed robberies were simply alternative ways of establishing the underlying felony element of felony murder – no unanimity violation); State v. Golphin, 352 N.C. 364 (2000) (trial court did not err in capital sentencing hearing by using a disjunctive instruction for the two theories supporting one aggravating circumstance); State v. Allen, 339 N.C. 545 (1995) (defendant guilty as either a principal or aider and abettor); State v. Hartness, 326 N.C. 561 (1990) (either of the alleged sex acts would support conviction); State v. Creason, 313 N.C. 122 (1985) (sell “or” deliver drugs - two methods of committing a single offense); State v. Haddock, 191 N.C. App. 474 (2008) (mentally incapacitated “or” physically helpless - two theories for same element); State v. Bradley, 181 N.C. App. 557 (2007) (no error in submitting DWI verdict based on either .08 or appreciable impairment – “defendant was charged with a single wrong that could be established alternatively through either of its elements”).
However, if the trial court instructs the jury on multiple theories to support a single element of an offense, there could be a unanimity violation if an appellate court later rules that there was insufficient evidence to support one of those theories. Unless the verdict form required the jury to indicate each theory about which the jury was unanimous, the appellate court would be required to reverse the defendant’s conviction because there is no way of knowing whether some jurors may have convicted based only on the theory for which there was insufficient evidence. State v. Moore, 315 N.C. 738 (1986) (when three underlying purposes for kidnapping were submitted to the jury and one of those purposes was later deemed not supported by the evidence, a new trial had to be ordered since the verdict did not indicate which of the three purposes the jury unanimously found to exist).
Recording the reason
If the prosecutor has any concerns about whether there is sufficient evidence to support all the theories that are being submitted to the jury (e.g., if the state can clearly prove both felony murder and premeditation-deliberation, but arguably does not have enough evidence to show lying in wait), he or she should ask the judge to submit a special verdict form that will allow the jury to indicate all the theories for which it was unanimous, just in case the appellate court finds that any one of those theories should not have been submitted. If the Court of Appeals finds it was error to submit the theory of lying in wait, but the jury has clearly indicated that it was also unanimous as to premeditation, then the error should be deemed harmless.
Alternatively, the state could also just ask the judge not to submit the particular theory about which the prosecutor is unsure of the sufficiency of evidence, and thereby avoid the risk of it being reversed on appeal.
- Multiple Offenses in One Instruction or Verdict:
The trial court should not submit multiple offenses to the jury using a single jury instruction or verdict form. For example, this issue may arise if the trial judge is unclear whether the statute creates one or two offenses, so the judge submits a single offense with one verdict, but an appellate court later decides otherwise. There would be a unanimity violation under those circumstances that requires a new trial because it would be impossible to determine whether the jury unanimously found that the defendant committed either one of the offenses (unless, of course, the verdict form required the jury to indicate each of the offenses it unanimously found to exist). See State v. Lyons, 330 N.C. 298 (1991) (error where two assaults against victim A and victim B were erroneously submitted to jury under one verdict for an assault against A “and/or” B); State v. Diaz, 317 N.C. 545 (1986) (two drug trafficking offenses, for possessing “or” transporting marijuana, erroneously submitted as one verdict – each offense should have been listed separately); but see State v. Moore, 327 N.C. 378 (1990) (“sell or deliver” controlled substance is a single offense that can be committed either of two ways). To decide whether a particular statute creates two distinct offenses or just describes two different ways of committing the same offense, the court will look at: (i) the plain language the statute; (ii) the rules of grammar and construction; and (iii) and the intent of the legislature. See State v. Creason, 313 N.C. 122 (1985).
- Unanimity Issues in Child Sexual Assault Cases:
After several inconsistent North Carolina Court of Appeals rulings on the unanimity issue in child sexual assault cases, the North Carolina Supreme Court eventually clarified the issue in a series of cases: see State v. Massey, 361 N.C. 406 (2007), reversing 174 N.C. App. 216 (2005); State v. Markeith Lawrence, 360 N.C. 368 (2006), reversing in part 170 N.C. App. 200 (2005); and State v. Gary Lawrence, 360 N.C. 393 (2006), reversing in part 165 N.C. App. 548 (2004). These cases are all complex and heavily fact-dependent, and they should be reviewed carefully by the prosecutor if this issue comes up in a pending case. But generally speaking, the decisions address situations in child sexual assault cases where the defendant is charged with multiple counts spanning a range of time. For example, where the victim reports being abused approximately 8 to 10 times over a two-year span of time, the defendant might be charged with 8 identical counts, all covering the same time period. But what if the jury only returns 4 guilty verdicts out of the 8 charges – how can the court know whether the jurors were unanimous as to which acts supported those 4 particular verdicts? Even if the jury returns 8 guilty verdicts, is there still a possible unanimity violation since it’s unknown whether the jurors were unanimously finding the same facts beyond a reasonable to support each different count?
Based on the three cases cited above, the rule now appears to be that as long as there was sufficient evidence presented at trial to support each count of conviction that the jury actually returned, the defendant’s right to unanimity has not been violated. See also State v. Bates, 179 N.C. App. 628 (2006) (no unanimity violation where jury convicted defendant on 7 of 10 possible counts);State v. Fuller,179 N.C. App. 61 (2006) (no unanimity violation as to five indecent liberties and rape convictions, even though there was testimony about other additional acts); State v. Bullock,178 N.C. App. 460 (2006) (generic testimony about “multiple” acts can support more than conviction); State v. Brigman,178 N.C. App. 78 (2006) (no unanimity violation in convicting defendant of 27 counts of indecent liberties and 18 counts of first-degree sexual offense, all on separate verdict sheets, but none of the verdict sheets set out the specific acts that the jury had to find to convict for that count).
Inconsistent vs. Mutually Exclusive Verdicts
Jury verdicts will not be reversed merely because they are “inconsistent.” To require reversal, jury verdicts must be both inconsistent and legally contradictory (i.e., "mutually exclusive"). The most significant North Carolina appellate case on inconsistent jury verdicts is State v. Mumford, 364 N.C. 394 (2010), in which the jury acquitted the defendant of driving while impaired, yet convicted him of felony serious injury by motor vehicle – an offense which included as an element that the driver was under the influence of an impairing substance. In Mumford, the court noted that the two verdicts were “certainly inconsistent,” but allowed them to stand since they were not truly “mutually exclusive.” Id. at 401; see State v. Johnson, 214 N.C. App. 436 (2011) (convictions for both trafficking “opium” and selling a Schedule III substance or “opium derivative” based on the same conduct were not mutually exclusive); State v Blackmon, 208 N.C. App. 397 (2010) (jury found defendant guilty of larceny after breaking/entering, even though they deadlocked on the breaking/entering charge – inconsistent, but not mutually exclusive); State v. Wade, 213 N.C. App. 481 (2011) (jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury but not guilty of attempted first-degree murder – verdicts were not mutually exclusive).
Prosecutors should carefully scrutinize any cases cited on the issues of inconsistency and mutual exclusivity decided before Mumford, since the court adopted a significantly revised approach in that case. Post-Mumford, convictions are only “mutually exclusive” if they are truly contradictory, such that rendering a verdict as to one offense necessarily means that a corresponding verdict in the other offense would be factually or legally impossible. See, e.g., State v. Mumford, 364 N.C. 394 (2010) (offering illustrative example that verdicts for both embezzlement and obtaining property by false pretenses would be mutually exclusive, because property cannot be obtained simultaneously pursuant to both lawful and unlawful means); State v. Melvin, 364 N.C. 589 (2010) (noting that defendant could not be convicted of both first degree murder and accessory after the fact to murder – charges could be joined for trial and both could be submitted to jury, but jury must be instructed to return a verdict only as to one or the other); State v. Reid, 335 N.C. 647 (1994) (defendant was convicted of assault based on acting in concert with the principal, even though principal was found not guilty – court ruled that inconsistent jury verdicts in the same trial are permissible); but see State v. Byrd, 122 N.C. App. 497 (1996) (narrow exception holding that acquittal of a named principal in separate trial required acquittal of aider and abettor in current trial – does not apply to defendants tried together in joint trial).
Impeaching the Verdict
As a general rule, once a verdict has been returned by the jury, accepted by the judge, and entered in the record, the verdict may not be “impeached.” This means that a juror may not testify (and evidence may not be received) as to what took place during the deliberations to call into question the basis for reaching the verdict. See G.S. 8C-1, Rule 606; State v. Cherry, 298 N.C. 86 (1979). There is, however, a limited exception to this rule for criminal cases in which it is subsequently determined that matters not in evidence came to the attention of the jury under circumstances that would violate the defendant’s right to confront the witnesses against him. See G.S. 15A-1240(c)(1). But if the challenged evidence does not implicate defendant’s confrontation rights, the exception does not apply. See State v. Rosier, 322 N.C. 826 (1988) (jury foreman allegedly watched a program on child abuse contrary to judge’s instructions and also told other jurors during deliberations about a young friend who was raped – but since defendant has no right to cross-examine jurors about arguments made in deliberation, his confrontation rights were not implicated, so the exception did not apply); State v. Quesinberry, 325 N.C. 125 (1989) (affidavits and other evidence that jurors’ beliefs about the defendant’s parole eligibility had influenced their verdict was properly excluded from consideration); State v. Cherry, 298 N.C. 86 (1979) (testimony by reporter that juror told her that jury recommended death sentence because defendant would be eligible for parole if he were sentenced to life imprisonment was not admissible to impeach verdict); State v. Froneberger, 55 N.C. App. 148 (1981) (testimony of defense counsel’s secretary about juror’s conversation concerning “second thoughts” about verdict was inadmissible).
Similar exceptions apply when: (i) there is evidence of bribery or intimidation, or attempted bribery/intimidation of a juror, see G.S. 15A-1240(c)(2); or (ii) a juror makes a clear statement indicating that he or she relied on racial animus in rendering a verdict, see Pena-Rodriguez v. Colorado, __ U.S. __, 137 S.Ct. 855 (2017).
Ordinarily, under Rule of Evidence 606(a), a juror is not competent to testify as a witness in the matter in which he or she is sitting as a juror; however, Rule 606(b) creates an exception that allows the juror to be called to testify when there is a challenge to the validity of a verdict, but only as to: (i) whether extraneous prejudicial information was improperly brought to the jury’s attention, and (ii) whether any improper outside influence was brought to bear on any juror. But even under this exception, jurors are only permitted to testify about the objective facts that happened, and not about how it impacted their thought processes or influenced the deliberations. See State v. Lyles, 94 N.C. App. 240 (1989). Furthermore, “extraneous information” is limited to meaning only information which (i) reaches the jurors without being introduced into evidence, and (ii) deals specifically with the defendant or the case which is being tried. See State v. Rosier, 322 N.C. 826 (1988); see also State v. Heatwole, 344 N.C. 1 (1996) (juror’s communication with his professor about violent tendencies of paranoid schizophrenics was not ‘extraneous information,’ because it did not directly deal with the defendant and his charges); but see State v. Lyles, 94 N.C. App. 240 (1989) (new trial ordered after jurors testified pursuant to Rule 606(b) in case where juror peeled back paper from an exhibit in the jury room, uncovering information about defendant’s prior criminal history and impeaching the alibi witness – however, trial judge still properly excluded juror testimony about how this extraneous information affected their deliberation and verdict).
For more information on the judge’s duty to respond when allegations of improper jury conduct or exposure has occurred, and to see examples of what does or does not constitute exposure to “extraneous information” that may prejudice the deliberations, see the related entry on Juror Misconduct.