An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1124


Filed: 2 August 2005


v .                             Guilford County
                                No. 00 CRS 94875

    On writ of certiorari by defendant to review judgment entered 1 February 2001 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 14 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    CALABRIA, Judge.

    Trenton Lawann Burch (“defendant”) seeks review of a judgment entered on a jury verdict finding him guilty of robbery with a dangerous weapon. The trial court sentenced defendant to fifty- eight to seventy-nine months in the North Carolina Department of Correction. We remand for a new trial.
    On 12 February 2000, two men, one armed and wearing a mask, entered JP Food Mart. The armed robber demanded that one of the owners, Prabha Marhatta (the “victim”), give him the money from the cash register while the other robber “look[ed] all around in [the] store.” The victim took approximately $100.00 from the register to give to the armed robber. After taking the money, the robber told the victim to lie down on the floor, and both perpetrators fled. The victim called the police but could not identify either of the robbers.
    Officer B.K. Collins (“Officer Collins”), a police officer with the Greensboro Police Department, was dispatched to JP Food Mart. Officer Collins interviewed the victim and asked the victim about a security camera that had been pulled down and was found lying on the floor in the rear of the store. The camera monitored the store; however, there was no recording device attached to the camera, and the robbery had not been taped. An examination of the camera revealed multiple latent fingerprints. Detective G.R. Marks (“Detective Marks”) with the Greensboro Police Department was assigned to investigate the 12 February 2000 robbery of JP Food Mart. Without a videotape of the robbery, Detective Marks inactivated his investigation of the case with the hopes that fingerprint analysis would yield further leads.
    On 29 February 2000, Detective J.M. Landers (“Detective Landers”) with the Greensboro Police Department conducted surveillance of multiple banks in a shopping center. At approximately 9:10 in the morning, a white Nissan Maxima with a suspicious license plate drove through the parking lot in a way that attracted Detective Landers' attention. Detective Landers observed three males in the car, but it disappeared out of his sight before he could follow it. At approximately 10:45 a.m., Detective Landers saw the car again, and based on its movements, Detective Landers decided to follow the car and called for assistance before stopping the car. After assistance arrived,Detective Landers stopped the car and determined the driver was operating the car without a license. In addition, the car bore a dealership tag that covered a valid South Carolina license plate. Detective Landers searched and photographed each of the three males in the car and then commenced a search of the car itself. In the car, he discovered an assault rifle, a 9mm pistol, a pellet pistol, two toboggan-like ski masks with eye holes cut out, a Halloween mask, and three pairs of gloves. Detective Landers placed defendant and two other individuals under arrest for carrying concealed weapons. Defendant was taken into custody and fingerprinted. Two of the fingerprints found on the security camera at JP Food Mart matched defendant's left little finger and thumb.
    Defendant was charged with robbery with a dangerous weapon for the 12 February 2000 robbery of JP Food Mart. At trial, defendant submitted a motion in limine to exclude or give limiting instructions regarding the suspicious license plate and vehicle search. The trial court reserved ruling on the motion until after a voir dire of Detective Landers. After the voir dire, the trial court found Detective Landers' testimony was circumstantial evidence with probative value not substantially outweighed by the danger of unfair prejudice and admitted the testimony. Relevant to this appeal, the trial court (1) allowed testimony by Detective Landers concerning the 29 February 2000 stop and resulting charges against all three of the occupants in the car and (2) permitted Detective Marks to read from his notes describing an interview heconducted with defendant. The jury returned a verdict of guilty. The trial court sentenced defendant to fifty-eight to seventy-nine months' imprisonment. Defendant appeals.
I. Transcript of Trial Testimony
    Defendant first assigns as error the trial court's announcement to the jury concerning its capability to supply a transcript of the trial to the jurors. Specifically, defendant argues the trial court's statements show the court did not believe it had the ability to make testimony available to the jury. We agree.
            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). This statute requires the trial court to exercise its discretion in deciding whether to grant or refuse a jury's request for a restatement of the evidence, and the trial court errs where it refuses to exercise its discretion on the premise that it has no discretion on the issue presented. State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999).
    In State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176 (2004), this Court considered comments by the trial court to the jury after it was impaneled but before opening argument in which the trialcourt indicated there would be no transcript available for the jurors to take back with them during deliberations because the State of North Carolina did not have the necessary equipment. Id., 164 N.C. App. at 19, 595 S.E.2d at 186-87. This Court held that the lack of a request by the jury to review testimony or transcripts was not determinative, and the purpose and intent of the statute are violated where “the trial court's pretrial comments could have foreclosed the jury from making a request for such testimony or evidence.” Id., 164 N.C. App. at 20, 595 S.E.2d at 187.
    In the instant case, the jury had been impaneled, initial instructions had been given, and some of the witnesses for the State testified before the lunch break. When the trial resumed, the court introduced court personnel to the jury and then went on to state the following:
        And in fact, that reminds me of something I need to make clear to you. Even though [the court reporter] is keeping a record which can be prepared in the future, we don't have the capability right now to instantly supply jurors with a transcript of the trial. Sometimes jurors later on want to see a transcript of something, and we cannot provide you with a transcript of the trial. Some of the federal courts, they tend to have more tax dollars at their disposal, are getting what is called live transcription, but we are several years from having that done.

These statements by the trial court foreclosed any jury request to use transcripts during deliberations and indicate the trial court's failure to exercise its discretion. We find the caseindistinguishable from the operative facts and reasoning of our holding in State v. Johnson, supra, and hold accordingly.
    We turn to the question of whether the error was prejudicial. Because this error is unrelated to rights arising under the Constitution of the United States, defendant must show “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2003). “It is only prejudicial error to deny the jury an opportunity to ask to review certain testimony or evidence where the defendant can show that (1) such testimony or evidence 'involved issues of some confusion and contradiction,' and (2) it is likely that a jury would want to review such testimony.” State v. Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187 (quoting State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 377 (1997)).
    In the instant case, the jury requested, during deliberations, evidence concerning the fingerprints and the security camera's location. Testimony concerning the fingerprint analysis involved a fingerprint officer with the Guilford County Sheriff's Department, a crime scene technician with the Greensboro Police Department, and expert testimony in the area of latent fingerprint examination. This testimony collectively spanned approximately forty-six pages of the two-hundred-page trial transcript and was the only physical evidence placing defendant at the scene of the crime. Defendant's fingerprints were found only on the security camera and, while the location of the camera in the store was well-established, the testimony of the camera's height by three witnesses differed substantially and placed it anywhere between seven and twelve feet. In addition, the testimony adduced at trial indicated some uncertainty as to whether defendant would be able to reach the camera in order to pull it down from its mount and whether there were objects on the ground in that area upon which defendant might climb to reach the camera. As a result, we cannot say the testimony regarding the fingerprints and security camera did not involve issues of confusion or contradiction.
    As to the second prong, the likelihood that the jury would want to see the transcript, the jury actually requested the fingerprint and security camera location evidence. The jury's request indicated their interest in the camera's location and suggests that the jury would have also requested the pertinent testimony had such a request not been pre-empted. Given the import of the fingerprint evidence found on the security camera, we are of the opinion that this error was prejudicial. Accordingly, we hold defendant is entitled to a new trial. Given our resolution of this issue, we need not consider defendant's remaining assertions.
    New trial.
    Judges TIMMONS-GOODSON and GEER concur.
            Report per Rule 30(e).

*** Converted from WordPerfect ***