Opinion
No. COA11-56
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgments entered 30 August 2010 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 7 June 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Tina A. Krasner, for the State. Russell J. Hollers, III, for defendant-appellant.
Durham County Nos. 07 CRS 52664-5, 08 CRS 12130-1.
Kevin B. Johnson ("defendant") was indicted on 3 November 2008 for attempted murder, assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon on a government official, second-degree burglary, and possession of a firearm by a felon. Defendant was convicted by a jury on 30 August 2010 on all charges and sentenced to 296-365 months.
The sentences for the various convictions run consecutively to equal this total sentence. The particular sentences for the various convictions are as follows: 251 to 311 months for attempted murder and assault with a deadly weapon with intent to kill, inflicting serious injury; 25 to 30 months for assault with a deadly weapon on a government official and second-degree burglary; and 20 to 24 months for possession of a firearm by a felon.
On appeal, defendant contends that the trial judge erred by failing to exercise his discretion in denying the jury's request to review the transcripts of the testimonies of two of the State's witnesses. We find no prejudicial error.
I. Background
At trial, the State's evidence tended to show the following: On the night of 23 September 2007, Stanley Rhynehardt ("Rhynehardt") and his girlfriend were upstairs in their duplex when they heard a loud thump. Rhynehardt called 911 to report a possible break-in in progress.
Officer David Bernard Vereen ("Officer Vereen") of the Durham Police Department responded to Rhynehardt's call and was the first to arrive at the scene. When Officer Vereen approached the house, he found the hinges to the back door shattered. As he slowly opened the door, he saw one person, later identified as David Williams ("Williams"), run up the stairs. Once Officer Vereen opened the door a little more, he found another individual, whom he later identified as defendant, standing behind the door. Defendant slammed the door on Officer Vereen, but only after they looked at each other eye-to-eye.
Officer Vereen then backed away from the house and called for backup. Once Corporal Daryl Macaluso ("Corporal Macaluso") arrived, Officer Vereen went to the back patio, announced, "Durham Police," and then kicked in the door, his gun in hand. The lights were on in the house, and Officer Vereen saw defendant sitting at a table, pointing a weapon at him. Defendant then fired his weapon, whereupon a firefight commenced between the two, leaving Officer Vereen wounded.
As Corporal Macaluso and another officer, who had just arrived, came over to assist Officer Vereen, Corporal Macaluso noticed a silver sedan with two occupants driving slowly up the hill away from the incident. Later, Officer Macaluso found a .350 Magnum handgun lying in the street down the hill from the scene of the incident. Further investigation linked Williams to the scene of the crime, but no physical evidence connected defendant to the scene.
Soon after Officer Vereen was discharged from the hospital, an investigator showed him a photo array of potential suspects, and Officer Vereen identified defendant with 75% accuracy. He also later identified defendant in open court as the person who shot him.
Steven Shealey ("Shealey") testified that he was leasing a gray 2007 Mercury at the time of the incident and lent the vehicle to Williams, the man who was with defendant during the incident, on the evening of the crime. Williams used the vehicle for approximately two hours on 23 September 2007 and returned the vehicle around 9:00 p.m. or 9:30 p.m. that day. Shealey had spoken with a detective about this previously, and to the extent the detective's notes varied from his testimony, Shealey disavowed them.
Williams identified defendant in court as the individual who was with him during the break-in. Williams' story otherwise generally corroborated Officer Vereen's.
Melody Harris ("Harris"), who is defendant's cousin, was also called to the stand by the State. She was driving back from Burlington on 23 September 2007. Defendant's girlfriend was in the car with Harris, and as they were driving, the girlfriend received a phone call from defendant asking her to pick him up. The two women picked defendant up on Stadium Drive, and he appeared to be shot and in need of first aid. Harris further testified that defendant exclaimed, "I think I shot the police. I got hit, I got hit," while he was in the car with them.
In his defense, defendant testified on his own behalf and presented two other witnesses, Officer George Bryant and Officer Dominic Mussatti. Defendant testified he had not seen Williams since a week before the 23rd and did not participate in the break-in.
Following the close of the evidence, the case was submitted to the jury, after which the procedural issues involved in this case arose. After the first lunch recess during the jury's deliberations, the jury sent out a request for information. This request asked for the "transcript testimony of Steven Shealey on the stand," the "transcript of David Williams' court testimony," and David Williams' written statement. In addition, the jury asked whether Officer Vereen's written report on the incident was available for review. In response to these requests, the trial judge first discussed the matter with counsel, saying:
The jury has sent out a request, first requesting the transcript testimony of Steven Shealey on the stand which, of course, they cannot have, since there is none.
They've requested a transcript of David Williams' court testimony which, of course, they cannot have, since there is none.
They've requested David Williams' written statement, which was introduced as Exhibit 42, which I will provide unless you have objection.
. . . .
They've also asked the question, is Officer Vereen's written report on the incident available.
It was not introduced into evidence, as I recall, and for that reason it is not available to them and I will so indicate to them.
(Emphasis added.) No objections were made.
When the trial judge addressed the jury on the matter, the court explained that it would provide Exhibit 42, David Williams' written statement, to them but that it could not provide Officer Vereen's report since the report was not introduced into evidence. Regarding the requests for transcripts of the testimonies, the trial court explained:
Although the court reporter takes the testimony, he does not prepare the transcript of that. So you will be required to recall the testimony from your own recollection.
The same is true of your second request of David Williams' court testimony. You'll be required to recall the testimony, since no transcript of that is prepared.
. . . .
Your consideration has to be based on the testimony from the stand and any exhibits that were tendered in the case.
(Emphasis added.) Later, the jury returned a guilty verdict on all charges. Defendant appeals.
II. Jury Request
Defendant argues that the trial judge failed to exercise his discretion when he denied the jury's request to review the transcripts of the testimonies of Shealey and Williams, and that because defendant was prejudiced thereby, he should be given a new trial.
Despite defendant's failure to object to the trial judge's decision, this issue is still reviewable by this Court since the trial judge's actions were allegedly in violation of a statutory mandate, namely N.C. Gen. Stat. § 15A-1233(a) (2009), in this case. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985); State v. Bryant, 189 N.C. 112, 115, 126 S.E. 107, 109 (1925).
The single issue before us is, therefore, whether the trial judge committed prejudicial error in failing to exercise his discretion when he denied the jury's request for a transcript covering the testimony of two State witnesses, Shealey and Williams. This issue devolves into two sub-issues: (1) whether the language used by the trial judge shows that the trial judge believed he had no discretion to exercise, and (2) if the trial judge failed to exercise his discretion, whether such error was so prejudicial to defendant as to warrant a new trial. E.g., State v. Long, 196 N.C. App. 22, 28, 674 S.E.2d 696, 700 (2009). We hold for the following reasons that the trial judge did fail to exercise his discretion in denying the jury's requests regarding the transcripts; however, defendant was not prejudiced by the trial judge's error. Therefore, defendant is not entitled to a new trial.
Insofar as other issues raised in the record on appeal were not addressed by the parties in their briefs, they are deemed abandoned. N.C. R. App. P. 28(a).
A. Discretion was not Exercised
The governing statute for the first sub-issue is N.C. Gen. Stat. § 15A-1233(a), and it provides:
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.
Id. (emphasis added). The statute's requirement for the trial judge to exercise his discretion regarding jury requests to review testimony or evidence during their deliberations is simply a codification of long-standing common law. See State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999); State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375 (1997); State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985); see State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 124 (1980). When such a request is "addressed to the discretion of the court [and] is denied upon the ground that the court has no power to grant the motion in its discretion, the ruling is reviewable." Lang, 301 N.C. at 510, 272 S.E.2d at 124-25 (citing Calloway v. Ford Motor Co., 281 N.C. 496, 505, 189 S.E.2d 484, 490-91 (1972)).
There is a plethora of cases which have applied these rules, and despite their varying facts, the distinguishing factor between those cases which have found error and those that have not is that there is error when the "trial court indicates that it lacks discretion to grant or deny a request" but not when the "trial court clearly indicates it is exercising discretion." State v. White, 163 N.C. App. 765, 770, 594 S.E.2d 450, 453 (2004); accord Lang, 301 N.C. at 510, 272 S.E.2d at 125. The final determination in each case depends upon an analysis of the precise words used by the trial judge and the context in which the words were spoken in light of precedent. Johnson, 346 N.C. at 124-25, 484 S.E.2d at 376.
There are several cases that demonstrate the circumstances under which this Court or our Supreme Court will find the trial judge failed to exercise his discretion. In State v. Long, 196 N.C. App. 22, 674 S.E.2d 696 (2009), the jury asked to hear the transcripts of the testimonies of defendant and the victim in a rape case. Id. at 25, 674 S.E.2d at 698. The trial judge denied the jury's request, explaining first to counsel that "we don't have the technology to provide that" and then relating to the jury:
I need to inform you that in the State of North Carolina, with our court reporting equipment, we don't have the technology to give you transcripts from the trial. We are not prepared to do that.
[Y]ou are to rely upon your recollection of what the evidence is in trying to resolve this question that you have.
Id. at 26, 674 S.E.2d at 699 (emphasis added). This Court held that the trial judge's language indicated that he was not exercising his discretion, but rather simply reacting to the circumstances since his need to inform the jury members to rely on their memories arose from there being no technology to provide the transcript to them. Id. at 39-40, 674 S.E.2d at 706; see also State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605 (1986) (finding the trial judge failed to exercise his discretion in denying the jury's request to review a transcript when he explained, "it is not possible to arrange that"); Ashe, 314 N.C. at 33, 331 S.E.2d at 656 (finding error in the trial judge's saying, "I'll have to give you this instruction. There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree upon that recollection in your deliberations"); Lang, 301 N.C. at 510, 272 S.E.2d at 125 (finding error when the trial judge denied the jury's request to review the transcript when the judge said, "No sir, the transcript is not available to the jury").
Similarly, in Barrow, 350 N.C. 640, 517 S.E.2d 374, a capital case, the jury asked to review a few of the State's exhibits and the transcripts of four of the witnesses' testimonies. Id. at 645, 517 S.E.2d at 377. The court allowed the jury to review the exhibits entered into evidence but replied regarding the testimonies:
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.
. . . So we're 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 646-47, 517 S.E.2d at 378 (underlining added). Our Supreme Court held that the trial judge's explicitly saying the court did not have the ability to comply with the request showed that the trial judge did not exercise his discretion. Id. at 648, 517 S.E.2d at 379; see also Johnson, 346 N.C. at 124, 484 S.E.2d at 375 (finding error in the trial judge's saying, "I'll need to instruct you that we will not be able to replay or review the testimony for you" as indicating no exercise of discretion).
Defendant argues that the language the trial judge used in the present case resembles that which was used in the above-mentioned cases, especially Long, and we agree. In this case, the trial judge denied the jury's request, saying twice: "of course, they cannot have [the transcript], since there is none." This was tantamount to his saying the jury could not review the transcript because the court did not have the ability to provide it to them, which was the effect of all the precedential language found to have been in error. Particularly, the trial judge's saying "of course" shows that he made his decision based upon an understanding that he could not meet the jury's request, not that he would not based upon his discretion. Furthermore, the trial judge's explaining to the jury members that they would be required to use their memories regarding the testimonies because of his inability to provide it — as indicated by his use of the word "so" — reinforces our understanding that the trial judge was acting solely from the perceived impossibility of the circumstances.
Alternatively, the State argues that the trial judge did not commit error since the language the trial judge used is similar to that found in State v. Guevara, 349 N.C. 243, 506 S.E.2d 711 (1998). In Guevara, the trial judge refused the jury's request to review the transcript, saying, "We do not have prepared transcripts of the testimony of each witness. It is the duty of the jury to recall the testimony of the witness as it was presented during the trial of the case." Id. at 251, 506 S.E.2d at 717. While this language alone would indicate the trial judge believed he could not exercise any discretion, the context of his language saved the case from error. Particularly, the trial judge in Guevera clearly showed he was not only aware of but was also exercising his discretion when he commented, regarding a review of the transcript, "Well, you know, frequently that's done. All of us know that." Id. However, the transcript of the present case is wholly devoid of any other language that would indicate the trial judge knew he had discretion to exercise. Rather, the trial judge denied the jury's request solely because he thought meeting their request was impossible.
Just as Guevara can easily be distinguished from the case at hand, so too can this case be distinguished from other cases where our Courts have held the trial judge exercised his discretion. Our Courts have determined that when the judge specifically says he makes his decision "in my discretion," no matter what his other language may indicate, the judge is presumed to have exercised his discretion. State v. Fullwood, 343 N.C. 725, 743, 472 S.E.2d 883, 892 (1996); State v. Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 676 (1991); State v. Benson, 323 N.C. 318, 327, 372 S.E.2d 517, 522 (1988); State v. Burgin, 313 N.C. 404, 416, 329 S.E.2d 653, 660-61 (1985); State v. White, 163 N.C. App. 765, 770-71, 594 S.E.2d 450, 453 (2004). In other cases, our Courts have found that the trial judge exercises his discretion when he gives an explanation for his decision showing he made his decision based upon some reasoning other than the impossibility of providing the transcript. See State v. Corbett, 339 N.C. 313, 337-38, 451 S.E.2d 252, 265 (1994) (finding no error when the trial judge explained that it was unfair to provide certain portions of the transcript and not others since doing so could lead to misunderstandings with the testimony taken out of context); accord State v. Lee, 335 N.C. 244, 290, 439 S.E.2d 547, 571 (1994); State v. McVay, 174 N.C. App. 335, 340-41, 620 S.E.2d 883, 886-87 (2005); State v. Hines, 54 N.C. App. 529, 537, 284 S.E.2d 164, 169 (1981). Furthermore, in State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000), the Court found no error when the trial judge simply admonished the jury to "recall the evidence as the evidence was presented" and did not otherwise indicate it was impossible to meet the request. Id. at 27-28, 530 S.E.2d at 824.
In this case, at no point did the trial judge say he was acting in his discretion or give any explanation for his decision; furthermore, he did not limit his language to simply advising the jury members to rely on their memories. Rather, the trial judge's comment to the jury that the transcript was not available to them was "an indication that he did not exercise his discretion to decide whether the transcript should have been available under the facts of this case." Lang, 301 N.C. at 511, 272 S.E.2d at 125 (emphasis added). Therefore, because the trial judge failed to exercise his discretion in addressing the jury's request to review the transcripts of the testimonies of Shealey and Williams, the trial judge committed error.
B. Error Non-Prejudicial
N.C. Gen. Stat. § 15A-1443(a)(2009) governs the standard the Court must employ when determining whether a trial judge's error is prejudicial:
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when 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. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
Id.; see also State v. Helms, 93 N.C. App. 394, 400, 378 S.E.2d 237, 241 (1989); State v. McLaughlin, 320 N.C. 564, 570, 359 S.E.2d 768, 772 (1987).
Older cases have found prejudice only when the matter the jury asked to review was "material to the determination of defendant's guilt or innocence." Lang, 301 N.C. at 511, 272 S.E.2d at 125; accord Ashe, 314 N.C. 28, 38, 331 S.E.2d 652, 658 (1985). Later cases have spoken more in terms of the defendant having to show that the testimony the jury asked to review (1) involved issues of confusion and contradiction, and (2) it was likely that a jury would want to review the testimony. Long, 196 N.C. App. at 27-28, 674 S.E.2d at 699-700 (citing Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187).
Defendant argues that Williams was a star witness for the State; therefore, the jury would likely want to review his testimony, and further, his testimony was material to the determination of defendant's guilt. We disagree. While Williams' testimony certainly lent aid to the State's case, his importance does not rise to the same level as that of the witnesses in other cases where prejudice was found. Similarly, while Shealey's testimony did contradict his written statement in some places, his testimony was not material as it did not deal with defendant's alleged offenses; rather, Shealey's knowledge was limited to the circumstances surrounding his lending a car to Williams and his previous statement to an investigator.
In all other cases where either this Court or our Supreme Court found prejudicial error in circumstances similar to this case, the witnesses whose testimonies the jury asked to review were pivotal to the determination of defendant's guilt. In both Ashe and Lang, the jury asked to review the testimony of the witness who, if believed, would have established an alibi for the defendant in each case. Ashe, 314 N.C. at 37-38, 331 S.E.2d at 659; Lang, 301 N.C. at 510-11, 272 S.E.2d at 125. In Long, the jury asked to review the transcripts of both the victim and the defendant in a rape case. 196 N.C. App. at 25, 674 S.E.2d at 698. There, the testimonies were both central to the determination of defendant's guilt and contradictory to one another since the victim declared the defendant's guilt and the defendant denied it; furthermore, the defendant's testimony in Long was contradictory and confusing since he refuted his prior written statement. Id. at 40-41, 674 S.E.2d at 707. Johnson is another rape case where the jury asked to review the testimonies of the child victim and of the woman to whom the child first confessed the abuse. 346 N.C. at 123, 484 S.E.2d at 375. Our Supreme Court found prejudice because the victim's testimony was the only evidence linking defendant to the crime and the child's testimony was confusing and self-contradictory, so the jury would naturally want to review it and that of the adult in whom she confided because her story was so pivotal and her credibility so important. Id. at 126, 484 S.E.2d at 377. Finally, in State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605 (1986), this Court found prejudicial error when the trial judge failed to exercise his discretion in denying the jury its request to review the testimony of the single eyewitness who linked the defendant to the crime. Id. at 46, 348 S.E.2d at 607.
On the other hand, there are two pertinent examples where our Courts found no prejudice. In State v. Hanible, 94 N.C. App. 204, 379 S.E.2d 696 (1989), a murder case, the requested testimonies were not material to the case as they dealt with matters occurring after the defendant fired the murder weapon. Id. at 206, 379 S.E.2d at 698. In other words, in Hanible, the jury asked to hear about peripheral matters rather than those dealing directly with the alleged offense. The jury's belief in or correct understanding of such peripheral matters was not critical to the jury's determination of the defendant's guilt. Id. In another case, State v. McLaughlin, 320 N.C. 564, 359 S.E.2d 768 (1987), the jury asked to rehear the testimony of two witnesses whose testimonies were overwhelmingly favorable to the State, so there was no prejudice suffered by the defendant in the jury not being allowed to rehear those testimonies, especially since the State had a strong case overall. Id. at 572-73, 359 S.E.2d at 773.
In this case, neither Williams nor Shealey established an alibi for defendant. Rather, Williams' testimony was decidedly against defendant and generally confirmed the testimony of Officer Vereen. Shealey's testimony did not deal with pivotal aspects of defendant's alleged offenses but rather peripheral matters regarding a car he lent to Williams. Furthermore, Williams' written statement and his testimony were consistent as to the prejudicial elements against defendant; and though Shealey's testimony in court was contradictory to his written statement, again, his testimony was not vital to the State's case. Shealey's testimony reveals he knew nothing about what happened during the incident; defendant could have easily been picked up by Williams after he got the car just as he was dropped off before Williams returned the car. Furthermore, unlike Thompkins, Williams was not the only witness to connect defendant to the crime. In fact, Officer Vereen identified defendant as the perpetrator both in a photo array and in open court. Even if Williams had not testified at trial, the jury could have believed Officer Vereen's testimony over that of defendant's. Furthermore, had Shealey not testified, the jury could still have relied upon the testimony of Officer Macaluso, who saw two people driving away from the scene of the crime in a silver car. Thus, defendant has failed to meet his burden of showing a reasonable possibility that a different result would have been reached at trial "had the error in question not been committed." N.C. Gen. Stat. § 15A-1443(a).
Overall, the jury's request to review Williams' testimony aligns more with McLaughlin than any other precedent since Williams' testimony was strongly against defendant and corroborated other evidence supporting the State's case against him. The jury's request to review Shealey's testimony aligns most closely with the circumstances in Hanible, where this Court found no prejudicial error when the trial judge refused to let the jury review transcripts regarding immaterial matters. Therefore, we find defendant suffered no prejudice when the trial judge failed to exercise his discretion in denying the jury's request to review the transcripts.
III. Conclusion
The trial judge's language in the present case shows he was not exercising his discretion when he denied the jury's request to review the transcripts of the testimonies of two State witnesses because the trial judge indicated he did not have the ability to meet the jury's request. However, since the testimonies the jury requested to review were not material to the determination of whether defendant was guilty and did not involve a notable amount of confusion or contradiction, the trial judge's failure to exercise his discretion was not prejudicial. Therefore, we hold that defendant received a fair trial free of prejudicial error.
No prejudicial error.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).