Convictions for second-degree burglary and felonious breaking and entering were upheld
where the court denied the jury's request that certain evidence be restated, saying both that it
“could not” provide a transcript and that it was exercising its discretion in denying the request.
Reading the court's statements as a disavowal of its discretion would make them nonsensical and
contradictory. N.C.G.S. § 15A-1233(a).
Attorney General Roy Cooper, by Assistant Attorney General
Joyce S. Rutledge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant appellant.
WYNN, Judge.
Following his convictions on charges of second-degree murder
and felonious breaking or entering
, Gene Anderson White, Defendant,
contends the trial court erred by denying jury requests to review
evidence presented at his trial. Upon review, we find no error in
his trial.
The State presented evidence at trial tending to show that, in
the early morning of 1 July 1995, Defendant shot and killed Ephraim
Allen Beatty. After the jury began its deliberations, it sent a
message to the trial court requesting to review the testimony of
one of the witnesses and the gunshot residue tests of two people.
Before bringing the jury back into the courtroom, the trial court
informed counsel for Defendant and the State that it is impossible to provide the testimony, and
in my discretion I will advise them that I
cannot provide that. The [gunshot residue]
test results were part of the testimony of
witnesses, but there has not been any
documentation introduced into evidence, so I
guess we can't give them that information. We
can just tell them that is the way it is.
Neither the State nor defense counsel objected to the trial court's
decision. The jury was brought into the courtroom and the trial
court addressed it as follows:
Members of the jury, remember that I said
in my instructions that it is your duty to
recall the evidence. In my discretion, I
cannot provide a written transcript of the
evidence, so it is not possible to give you
[the witness's] testimony and the [gunshot
residue] test results were part of the
evidence, not a document that was introduced
into evidence as to what the results were.
If you will recall the evidence, and I am
not going to attempt to recall it for you for
to do so might mean that I would comment on
the evidence or point out some evidence over
and above other evidence, and all evidence is
important. So, I am not in a position to do
so, and I cannot do that. It is your
recollection of the evidence which is
important and upon which you must deliberate.
Later during its deliberations, the jury sent a second note to the
trial court requesting a witness's police statements. The trial
court noted that
what I understand that to mean is that [the
witness] was cross[-]examined about the
statements that she made to the officers and
some of those statements the jury heard about
in the process of cross[-]examination, but the
statements themselves are not in evidence . .
. . so I will tell them that they cannot have
the statements and it is their duty to recall
the evidence and I have instructed the jury on
prior inconsistent statements. So, I cannot
give them the statements and they indicate
that they understand.
When the jury returned to the courtroom, the trial court addressedthe jury foreperson to ensure that it correctly comprehended the
jury's request. The foreperson responded that the jury “wanted to
get the statements, if they were admitted into evidence, but we
weren't really sure of the specifics of the statement and we wanted
to make sure that we were wording it correctly.” The trial court
thereafter instructed the jury that
[i]n fact no written document was introduced
into evidence in regards to that. The witness
was asked questions about things she said at
an earlier time and she answered those
questions. That is part of the evidence in
the case and not in a document that I can give
you. So, that is just as when we were dealing
with some things yesterday that are not in
evidence. . . . What is in evidence is only
the questions and answers about her statements
made at an earlier time. You will recall what
I instructed you in regard to statements given
by a witness at an earlier time. . . .
When the foreperson noted that the jury was particularly interested
in reviewing the evidence as to what point in time the witness made
her earlier statements, the trial court responded as follows:
And here, again, we are at a point where the
Court is prohibited, if you will, from me
trying to recapitulate the evidence for fear
that my recollection is erroneous. It is the
duty of the jury to recall and remember all of
the evidence. I am not in a position now, and
in my discretion I cannot provide you with
that information. That is what you all, in
your deliberations, determine the facts to be.
Neither party's attorney objected to the trial court's response to
the jury.
The jury found Defendant guilty of second-degree murder and
felonious breaking or entering. The trial court sentenced
Defendant to a minimum term of imprisonment of 188 months, and a
maximum term of 235 months for the second-degree murder conviction. The trial court sentenced Defendant to a ten to twelve month term
for his conviction of felonious breaking or entering. Although
Defendant gave notice of appeal, his counsel failed to perfect the
appeal. On 21 November 2001, this Court allowed Defendant's
petition for writ of certiorari to review the trial court's
judgments.
___________________________________________________
Defendant's sole contention on appeal is that the trial court
committed prejudicial error by failing to affirmatively exercise
its discretion under section 15A-1233 of the General Statutes,
thereby entitling him to a new trial.
Section 15A-1233(a) of the General Statutes provides:
(a) If the jury after retiring for
deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge in
his discretion, after notice to the prosecutor
and defendant, may direct that requested parts
of the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence.
In his discretion the judge may also have the
jury review other evidence relating to the
same factual issue so as not to give undue
prominence to the evidence requested.
N.C. Gen. Stat. § 15A-1233(a) (2003).
Section 15A-1233's
requirement that the trial court exercise its discretion “is a
codification of the long-standing common law rule that the decision
whether to grant or refuse a request by the jury for a restatement
of the evidence lies within the discretion of the trial court.”
State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999). It
is well established that, where the trial court denies a request by
the jury to review a transcript based upon its erroneous beliefthat it has no power or discretion to grant the request, such a
denial is error and is reviewable. See id;
State v. Johnson, 346
N.C. 119, 124, 484 S.E.2d 372, 375-76 (1997) (stating that “'there
is error when the trial court refuses to exercise its discretion in
the erroneous belief that it has no discretion as to the question
presented. Where the error is prejudicial, the defendant is
entitled to have his motion reconsidered and passed upon as a
discretionary matter.'”)
(quoting State v. Lang, 301 N.C. 508, 510,
272 S.E.2d 123, 125 (1980)).
Our Supreme Court has ruled numerous times that where the
trial court denies a request by the jury to review evidence based
upon its erroneous perception that it has no discretion to grant
the request, such denial constitutes error. For example, in
Barrow, our Supreme Court concluded the trial court erred by
failing to exercise its discretion in denying a request by the jury
to review portions of the transcript. Barrow, 350 N.C. at 647-48,
517 S.E.2d at 378-79.
In denying the jury's request, the trial
court stated as follows:
Ladies and gentlemen of the jury, although the
Court Reporter obviously was taking down and
continues to take down everything that's in
fact been said during the trial, what she's
taking down has not yet been transcribed. And
the Court doesn't have the ability to now
present to you the transcription of what was
said during the course of the trial.
Id. at 646-47, 517 S.E.2d at 378. The trial court further
explained that it was “not in the position to be able to comply
with that request as far as any transcription of anything said by
a witness during the trial[
.]” Id. at 647, 517 S.E.2d at 378.
Reviewing these statements by the trial court, the Supreme Courtconcluded the trial court's declaration that it lacked the ability
to present the transcription suggested a failure to exercise
discretion. The Barrow Court noted that, although the defendant
had no right to copies of the transcript even if available, the
trial judge was nevertheless required to exercise his discretion as
to whether to have the court reporter read to the jury the
testimony of these witnesses. Id. at 648, 517 S.E.2d at 379; see
also
Johnson, 346 N.C. at 124, 484 S.E.2d at 375 (holding that the
trial court's response to the jury's request -- “I'll need to
instruct you that we will not be able to replay or review the
testimony for you” -- indicated that the trial court believed it
did not have discretion to consider the request)
; State v. Ashe,
314 N.C. 28, 34-35, 331 S.E.2d 652, 657-58 (1985) (holding that the
trial court failed to exercise its discretion in merely stating
that the request could not be granted because there was “no
transcript at this point”).
In comparison to Barrow, our Supreme Court has also
consistently upheld decisions of the trial court where it exercised
discretion. See, e.g., State v. Lawrence, 352 N.C. 1, 27-28, 530
S.E.2d 807, 824 (2000) (concluding that the trial court did not
impermissibly deny the jury's request to review certain testimony
based solely on the unavailability of the transcript
where the
trial court instructed the jury as follows: “members of the jury,
it is your duty to recall the evidence as the evidence was
presented. So you may retire and resume your deliberation.”),
cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001); State v.
Fullwood, 343 N.C. 725, 743, 472 S.E.2d 883, 892 (1996) (concludingthat the trial court plainly exercised its discretion in denying
the jury request to review testimony where it stated for the record
that the testimony would not be sent into the jury room because the
previous court reporter who had recorded the testimony had left,
but added that the decision was in its discretion and reminded the
jury to use its recollection of the evidence), cert. denied, 520
U.S. 1122, 137 L. Ed. 2d 339 (1997); State v. Burgin, 313 N.C. 404,
416, 329 S.E.2d 653, 660-61 (1985) (concluding the trial court
properly exercised its discretion by telling the jury that, in its
discretion, it refused to order the stenographer to type the
transcript).
The central issue and distinguishing factor between these two
lines of cases is the exercise of discretion on the part of the
trial court. Where the trial court clearly indicates it is
exercising discretion, a decision to deny a jury request will be
upheld. Where the trial court indicates that it lacks discretion
to grant or deny a request, such decision is error.
In the instant case, the trial court repeatedly averred both
(1) that it “could not” provide the jury with a written transcript
and (2) that it was exercising its discretion by denying the jury's
request. If, as Defendant urges, we interpret the first statement
to mean the trial court believed it had no authority or ability to
provide the requested testimony,
then these statements directly
contradict one another. We do not agree with Defendant's
interpretation, however, on the very basis that such an
interpretation renders the trial court's statements nonsensical and
contradictory. If the trial court truly believed it lacked theability to provide the requested transcript, there would have been
no basis for its repeated statements that it was exercising its
discretion. If an act is impossible, it is not a discretionary
act. While we would encourage the trial court to use more care
when articulating its grounds for denial of a jury request, we do
not conclude the trial court's statements constituted a disavowal
of its authority to exercise discretion. “When the trial court
states for the record that, in its discretion, it is allowing or
denying a jury's request to review testimony, it is presumed that
the trial court did so in accordance with N.C.G.S. § 15A-1233.”
State v. Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 675 (1991)
.
We therefore uphold the judgment of the trial court.
No error.
Judges HUNTER and TYSON concur.
*** Converted from WordPerfect ***