1. Jurisdiction--criminal case on civil calendar--mandate of
Chief Justice
The trial court had proper jurisdiction over a prosecution
for discharging a firearm into occupied property where the matter
was called for trial before a judge presiding over a calendar
designated as “civil” because an order from the Chief Justice
specifically authorized the trial court to hear during a civil
calendar week both civil and criminal cases.
2. Trials--exhibits--viewed in jury room--consent not obtained
There was no prejudicial error in a prosecution for
discharging a firearm into occupied property where the trial
court allowed photographs of a vehicle to be sent to the jury
room without conducting the jury to the courtroom or obtaining
the consent of the parties, but defendant did not argue and the
court could not discern prejudice. Appeal by defendant from judgment filed 23 December 1997 by
Judge L. Todd Burke in Guilford County Superior Court. Heard in
the Court of Appeals 26 January 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Wallace R. Young, Jr., for the State.
Wyatt, Early, Harris & Wheeler, L.L.P., by John D. Bryson,
for defendant-appellant.
GREENE, Judge.
Terry Lee Thomas (Defendant) appeals from his jury
conviction of discharging a firearm into occupied property.
Defendant was charged with the offense of discharging a
firearm into occupied property on 15 July 1997, arrested on 28
July 1997, and indicted on 10 November 1997. The matter was
called for trial on 11 December 1997 in the Guilford County
Superior Court with the Honorable L. Todd Burke (Judge Burke)
presiding over a week of court designated as "civil" on the
calendar of courts issued by the Administrative Office of the
Courts.
The State's evidence at trial tended to show the following
facts. On 15 July 1997, Lesa Thomas (Ms. Thomas), Defendant's
estranged wife, was driving her vehicle in Archdale, North
Carolina, and saw Defendant pass her heading in the oppositedirection. Defendant then turned his vehicle around and
proceeded to follow Ms. Thomas for several miles into High Point,
North Carolina. Ms. Thomas drove to an entrance ramp to
Interstate Business 85, when she observed Defendant reach behind
his seat, and pull his vehicle along side of her vehicle. She
then heard a "very loud bang" and heard something hit the car.
She looked up at the passenger side window of Defendant's van,
and saw the end of a black powder muzzle loader shotgun with
which Defendant had previously threatened her. She stopped her
vehicle and attempted to reverse the car back up the entrance
ramp. Defendant drove to the next exit, turned around, and came
back down the opposite side of the highway. Ms. Thomas then
drove to the Asheboro Police Department because she knew the
police had a restraining order which had not yet been served on
Defendant. After going to the Asheboro Police Department, Ms.
Thomas was advised to go to the Magistrate's office in Guilford
County, where she filed a report with Officer Eddie Caldwell
(Officer Caldwell) of the High Point Police Department, and
showed Officer Caldwell the dent in her door allegedly caused by
Defendant's shooting. Officer Caldwell confirmed Ms. Thomas'
story in his testimony at trial. The State also offered into
evidence photographs of Ms. Thomas' door, showing the dent
allegedly caused by Defendant. Defendant presented the testimony of his cousin James
Thomas, who demonstrated to the jury that due to the weight of
the shotgun, it was not possible for him to hold it with one arm
at the angle Defendant would have had to hold it, and pull the
trigger. James Thomas also testified that he had experience
shooting both Defendant's shotgun and his own powder gun. In his
opinion, the amount of smoke discharged from the shotgun when
fired would have filled the car with smoke, and the sound from
the shotgun would have "burst your eardrums and possibly
crack[ed] the windows in the van." Additionally, James Thomas
testified that the shotgun had been in his own possession since
January of 1997, and his wife, Brenda Thomas, corroborated this
testimony. Finally, James Thomas testified that if the shotgun
actually had been shot, it would have caused a round bullet hole
rather than the dent the State's photographs and Ms. Thomas'
testimony suggested.
Defendant also presented the testimony of his brother and
employee Shannon Dilldine (Dilldine), who testified that as a
part of his employment, his duties were to load and unload
Defendant's van regularly. Dilldine also testified that he
unloaded the van on 15 July 1997, and there was not a weapon in
the vehicle.
The jury retired to deliberate, and during its deliberationssent a note to Judge Burke requesting to review again the
photographs of the dent in Ms. Thomas' car door. Judge Burke
sent the photographs to the jury room without either: (1)
summoning the entire jury back to the courtroom before allowing
the photographs to be taken to the jury room; or (2) obtaining
the express consent of both parties. The jury returned a guilty
verdict and Defendant was sentenced to a minimum of twenty-three
and maximum of thirty-seven months in prison.
The dispositive issues are whether: (I) the trial court,
when assigned to hold "civil" court pursuant to the calendar of
courts, has jurisdiction to conduct a criminal trial; and (II)
the trial court committed reversible error by allowing the jury
to review the photographs of Ms. Thomas' car in the jury room
without first summoning the jury back to the courtroom or
obtaining the consent of the parties.
[1]Defendant contends the trial court did not have
jurisdiction to hear his criminal case because the calendar of
courts designated Judge Burke's commission for the trial of civil
cases only. We disagree.
Although there is a specific statute providing, "no criminal
process shall be made returnable to any civil session," N.C.G.S.§ 7A-49.2(b) (1995), there also was an Order from the Chief
Justice of the North Carolina Supreme Court, Burley B. Mitchell,
of which we take judicial notice,
(See footnote 1)
mandating that for the period
of 1 July 1997 through the week beginning 29 December 1997: "Each
session [of the Superior Court of North Carolina],
notwithstanding the designations appearing on THE CALENDAR OF
COURTS, shall be a jury session for the trial of criminal and
civil cases." That Order further provided: "The designations
appearing on THE CALENDAR OF COURTS are for administrative
purposes only and establish those matters which are to be given
priority during the session."
The Order from the Chief Justice thus specifically
authorized the trial court to hear, during a civil calendar week,
both civil and criminal cases, with the civil cases having
priority. The trial court therefore had proper jurisdiction to
hear Defendant's criminal case.
[2]Defendant also contends the trial court committed
reversible error by allowing the jury to view photographs in thejury room without first summoning the jury to the courtroom and
obtaining the consent of all parties.
"If the jury after retiring for deliberation requests a
review of certain testimony or other evidence, the jurors must be
conducted to the courtroom," N.C.G.S. § 15A-1233(a) (1997), and
"with consent of all parties," a trial judge may allow the jury
to view admitted exhibits in the jury room, N.C.G.S. § 15A-
1233(b).
In this case, it is undisputed that Judge Burke neither
conducted the jury to the courtroom, nor obtained the consent of
all parties before allowing the photographs of Ms. Thomas'
vehicle to be sent to the jury room. Accordingly, because these
actions are in direct conflict with the statute, they constitute
error. See State v. McLaughlin, 320 N.C. 564, 568, 359 S.E.2d
768, 771 (1987) ("not adhering to the requirements of the
statute" constitutes error on part of the trial court). This
error, however, does not require a new trial unless Defendant
demonstrates that "there is a reasonable possibility that, had
the error in question not been committed, a different result
would have been reached." N.C.G.S. § 15A-1443(a) (1997); see
McLaughlin, 320 N.C. at 568-70, 359 S.E.2d at 771-72 (requiring
defendant to show that error of trial court prejudiced him);
Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 528, 361S.E.2d 909, 919 (1987) (rejecting the notion that allowing the
jury to view exhibits without the consent of the parties was
reversible error per se, and requiring "the party asserting the
error [to] demonstrate that he has been prejudiced thereby"),
disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988); Gardner
v. Harriss, 122 N.C. App. 697, 700, 471 S.E.2d 447, 450 (1996)
(determining error by trial court in permitting the jury to view
exhibits without consent of the parties, but defendant "is not
entitled to a new trial absent a showing that the error was
prejudicial"). In this case, Defendant does not argue how the
errors were prejudicial and we discern no prejudice from this
record.
No error.
Judges JOHN and HUNTER concur.
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