STATE OF NORTH CAROLINA
v
.
Moore County
No. 01 CRS 53251
DENNIS EDWARD FESSLER, II
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
CALABRIA, Judge.
Dennis Edward Fessler, II, (“defendant”) appeals from a 4
April 2003 conviction of first-degree murder in Moore County
Superior Court. We find no error.
On 31 August 2001, Jerry Griffith (“Griffith”) and Brad Urik
(“victim”) arranged to meet defendant to purchase thirteen pounds
of marijuana. Griffith and the victim carried $6000, arrived at
defendant's home near dusk, and awaited defendant's arrival in his
gravel driveway. A few minutes later, defendant and Joe Hill
(“Hill”) arrived. While exiting his car, defendant put a .22
caliber target pistol in the back waistband of his pants. The men
greeted one another, and defendant and Hill raised the front oftheir shirts. Defendant then motioned to Griffith and the victim
to lift their shirts. Testimony from Griffith and Hill tended to
show that neither Griffith nor the victim was carrying a weapon.
Griffith and the victim lifted their shirts, and as they
turned their backs toward defendant, defendant fired his pistol.
Griffith jumped behind the trunk of his car. The victim walked
approximately ten steps and fell to the ground next to defendant's
driveway. Defendant stood over the victim, who had his arm raised,
and fired several shots. Griffith ran toward some woods, and
defendant jogged after him firing his pistol. Griffith eluded
defendant and soon thereafter stopped a motorist, who called law
enforcement. Meanwhile, Hill moved past the victim, who was not
moving, and ran from the scene into a separate area of the woods.
After chasing Griffith, defendant walked back to the victim, who
was lying face down on the ground and fired two shots into the back
of his head. After hearing sirens, defendant hid in some woods.
He returned to his home the next day and telephoned the police, who
arrived shortly thereafter and arrested him.
Defendant testified he was acting in self-defense. He saw
Griffith draw a gun. He drew his pistol, fired, and hit the victim
in the back by mistake. He later went back and shot the victim
twice in the back of the head because he thought the victim, like
Griffith, had a gun. He then searched the victim and found he was
unarmed and became scared because he had shot an unarmed man.
On appeal defendant asserts the trial court: (I) erred by
failing to exercise its discretion in denying the jury's requestduring deliberations to review defendant's testimony; (II)
committed prejudicial error by failing to conduct the jury to the
courtroom to address their request for the statements made to law
enforcement by Griffith, Hill, and defendant; and (III) erred by
informing and allowing the prosecutor to inform prospective jurors
that the State was not seeking the death penalty.
I. Discretion to Grant or Deny a Review of Testimony
Defendant asserts the trial court erred by failing to exercise
its discretion in denying the jury's request during deliberations
to be provided with defendant's testimony. Defendant argues the
trial court improperly denied the request based on the
unavailability of the transcript and, thus, failed to exercise its
discretion. We disagree.
In pertinent part, N.C. Gen. Stat. § 15A-1233(a) (2003)
states, “If the jury after retiring for deliberation requests a
review of certain testimony[,] . . . [t]he judge in his discretion,
after notice to the prosecutor and defendant, may direct that
requested parts of the testimony be read to the jury . . . .”
(Emphasis added). “Whether to allow the jury to review a witness's
testimony is a matter solely addressed to the discretion of the
trial court.” State v. Lee, 335 N.C. 244, 290, 439 S.E.2d 547, 571
(1994). If the trial court denies the jury's request to review
testimony “upon the ground that the court has no power to grant the
motion in its discretion, the ruling is reviewable. In addition,
there is error when the trial court refuses to exercise its
discretion in the erroneous belief that it has no discretion as tothe question presented.” State v. Lang, 301 N.C. 508, 510, 272
S.E.2d 123, 124-25 (1980) (citation omitted).
By way of contrast, no error occurs when the record shows that
“the trial court was aware . . . it had discretion to produce the
transcript . . . [and] that the trial court exercised its
discretion when deciding not to honor the jury's request.” State
v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996); State v.
Lawrence, 352 N.C. 1, 27, 530 S.E.2d 807, 824 (2000). A trial
court's grant of a request to review an exhibit and denial of a
request to review certain testimony indicates the trial court
realized it had discretionary authority to grant or deny jury
requests. State v. Buckner, 342 N.C. 198, 232, 464 S.E.2d 414, 433
(1995). Our Supreme Court has also stated that “the trial court's
instruction that the jurors rely upon their individual and
collective memory of the testimony is indicative of [an] exercise
of its discretion.” Harden, 344 N.C. at 563, 476 S.E.2d at 669.
In the instant case, the jury's request to review defendant's
testimony also included a request to review an exhibit. The trial
court granted the jury's request to review the exhibit but denied
the request to review defendant's testimony by explaining to
counsel, “I believe I will have to respectfully deny that and just
tell them they'll have to rely on their best recollection.” The
trial court's granting of the request to review an exhibit and
denial of the request to review testimony indicates an exercise of
discretion. Moreover, the trial court's statement to counsel
indicates an exercise of discretion. Accordingly, we find thetrial court did not deny the jury's request based solely on the
unavailability of the transcript but, rather, the trial court
exercised discretion.
II. Conducting the Jury to the Courtroom
Defendant asserts the trial court committed prejudicial error
by failing to conduct the jury to the courtroom, as required by
N.C. Gen. Stat. § 15A-1233(a) (2003), before sending to the jury
room Griffith's, Hill's, and defendant's statements made to law
enforcement. We find no prejudice to defendant.
In pertinent part N.C. Gen. Stat. § 15A-1233(a) states, “If
the jury after retiring for deliberation requests a review of
certain testimony or other evidence, the jurors must be conducted
to the courtroom.” In State v. Nobles, 350 N.C. 483, 515 S.E.2d
885 (1999), our Supreme Court addressed the same issue on facts
remarkably similar to the instant case. In Nobles, our Supreme
Court observed and held that:
In order to be entitled to a new trial,
defendant must demonstrate that there is a
reasonable possibility that a different result
would have been reached had the trial court's
error not occurred. Defendant cannot meet
this burden. Not only did defendant's counsel
agree with the trial court when it erroneously
thought that it had discretion whether to
bring the jury to the courtroom, but there was
unanimous agreement among the State, the
defendant, and the trial judge concerning the
items requested by the jury; and the
prosecution and defendant consented to
permitting the jury to have those items.
Therefore, defendant has not met his burden of
showing prejudice as a result of the trial
court's failure to follow the requirements of
N.C.G.S. § 15A-1233(a).
Id. at 506, 515 S.E.2d at 899 (citation omitted). In the instant
case, the State, defendant's counsel, and the trial court agreed to
present the three witnesses' statements to the jury. Furthermore,
the State and defendant's counsel consented to submitting those
statements to the jury in the jury room. We find this case
sufficiently analogous to Nobles and hold defendant has failed to
show he was prejudiced by the trial court's failure to conduct the
jury to the courtroom.
III. Informing Prospective Jurors the Case is Non-Capital
Defendant asserts the trial court committed reversible error
by informing and allowing the prosecutor to inform prospective
jurors that the State was not seeking the death penalty. Under
N.C. Gen. Stat. § 15A-1214(b) (2003), a judge may address
“prospective jurors . . . concerning [their] general fitness and
competency . . . [to] serve as jurors in the case.” Similarly,
under N.C. Gen. Stat. § 15A-1214(c) (2003), “the prosecutor and the
defense counsel . . . may personally question prospective jurors
individually concerning their fitness and competency to serve as
jurors in the case . . . .”
In the instant case, while addressing the jury pool, the judge
stated, “The State is not seeking the death penalty in this case.
. . . And for this reason, it will not take nearly as long as the
typical capital murder trial. . . . [O]ur best estimate is that
this trial will conclude by Friday.” During voir dire, the
prosecutor similarly addressed a prospective juror and asked, “And
you've heard the charge; it's first-degree murder but it is not adeath penalty case. We should be finished by Friday. . . . Would
that be any problem for you?” The prosecutor also questioned two
other prospective jurors to be certain they understood the nature
of the charge and that the death penalty would not be imposed, in
order to determine if they would have “a problem being fair.” The
prosecutor asked: (1) “Do you understand this is a first-degree
murder case . . . but it's not a death penalty case? Anything
about those charges . . . anything to give you [a problem being
fair]” and (2) “Other than [your leaving this Sunday evening],
would you have any problem? You've heard questions about drugs and
different things. . . . And you know this is not a death penalty
case.”
The trial court and prosecutor informed prospective jurors of
the nature of the trial in order to give them an estimate of the
amount of time the trial might take and to determine if a time
conflict might disqualify a prospective juror. The prosecutor also
questioned two prospective jurors as to whether they understood the
nature of the charges and that the death penalty would not be
imposed if the jury were to return a verdict of guilty, as part of
determining their fitness and competency to serve as jurors.
Nonetheless, defendant argues that the trial court's and
prosecutor's comments implied to the jury that the State had
already given defendant “a break” by not seeking the greater
penalty and lessened the jury's responsibility to decide the case
on the evidence. For this proposition defendant relies on State v.
Hines, 286 N.C. 377, 211 S.E.2d 201 (1975), State v. White, 286N.C. 395, 211 S.E.2d 445 (1975), and State v. Jones, 296 N.C. 495,
251 S.E.2d 425 (1979). In these cases, our Supreme Court held that
two types of statements in capital cases prejudice the defendant.
First, statements in a capital case are prejudicial when
“professedly made to 'ease' the 'feelings' of a juror concerning
her misgivings regarding the death penalty, suggest[ing] to the
jurors, both prospective and seated, that if verdicts of guilty
were returned, the mandatory death penalty, in all probability,
might not or would not be imposed.” Hines, 286 N.C. at 386, 211
S.E.2d at 206. Second, statements “suggest[ing] to the jury that
they can depend upon either judicial or executive review to correct
any errors in their verdict, and to share their responsibility for
it, [are] an abuse of privilege and prejudicial to the defendant.”
White, 286 N.C. at 403, 211 S.E.2d at 449-50. See also Jones, 296
N.C. at 497, 251 S.E.2d at 427 (finding prejudicial error, in a
capital case, where “the district attorney stated, 'Now you know,
if you do err in this case he [defendant] has the right of
appeal'”).
In the instant case, the statements and questions were not
made to ease the minds of the jury concerning the punishment sought
nor were they made to suggest that the punishment sought might not
be instituted. In addition, they did not suggest that a judicial
or executive review could correct errors in the jury's verdict.
Accordingly, we hold the purpose of the trial court's statements
and the prosecutor's questions fall within the guidelines of
statements and questions allowed under North Carolina law and donot result in the type of prejudice present in Hines, White, and
Jones.
For the foregoing reasons, we find that defendant had a fair
trial free from prejudicial error.
No error.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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