State v. White

594 S.E.2d 450, 163 N.C. App. 765, 2004 N.C. App. LEXIS 572
Court of Appeals of North Carolina·Decided April 20, 2004·No. No. COA03-742·Published·Cited by 1 cases

Opinion

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 [767]*767residue] 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 addressed the 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:

[768]*768And 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 [769]*769trial court denies a request by the jury to review a transcript based upon its erroneous belief that 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

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State v. White, 594 S.E.2d 450, 163 N.C. App. 765, 2004 N.C. App. LEXIS 572 (N.C. Ct. App. 2004).

594 S.E.2d 450 (State v. White) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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