Opinion
No. COA08-1375.
Filed 19 May 2009.
Buncombe County No. 07CRS64400.
Appeal by defendant from judgment entered 23 July 2008 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 4 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.
William B. Gibson, for defendant-appellant.
The trial court did not abuse its discretion in declining to provide the jury with its recollection of the evidence and in declining to have testimony read back to the jury or to provide the jury with a transcript of the testimony.
I. Factual and Procedural Background
On 22 November 2007, Officers Brian Griffin and Jeremy Woody of the Asheville Police Department went to the Hillcrest Apartments. The officers testified that they went to this community on a daily basis to do "crime prevention." The officers entered the community around 1 a.m. As the officers walked around the apartment complex, they observed approximately five or six people near the 25 Building. They specifically noticed a blackmale, defendant, who was wearing a "red hoodie" so you could not see his face.
Defendant turned away from the officers when he saw them and began to quickly walk away from them. The officers followed him, and defendant began walking faster and looking over his shoulder at the officers to see if they were following him. The officers split up because defendant was acting suspicious, and they hoped to "cut him off in case he took off running." Defendant turned a corner, and Officer Griffin watched him from behind a small cement wall. Officer Griffin testified that there were large holes in the wall, and he was able to observe defendant's actions. Officer Griffin watched defendant standing on the front "stoop" of Apartment 21-C. Officer Griffin stated that defendant "looked around back and forth, and at that time I saw him reach into his pocket and his hand went like this (indicating) and a black object fell to his feet." Officer Griffin stated that defendant then walked back toward the area from which he came, at which time he stopped defendant.
Officer Griffin asked defendant what he was doing, and defendant told him he was visiting someone who had a funeral. Officer Griffin commented that it was an unusual time to be visiting, and he had not seen defendant "knock or ring the doorbell or even touch the door." Officer Griffin then asked defendant what he had "threw down," and defendant responded "[n]othing" and became "very agitated." Officer Griffin asked for defendant's identification, and defendant told the officers he had family members in Apartment 25-A. Once Officer Griffin knew where he could find defendant, he let him go. After defendant left, Officer Woody went to Apartment 21-C and found a black bag on the ground. Inside the bag was a "greenish colored medicine bottle and five to six crack rocks in it." At that point, the officers proceeded to Apartment 25-A and arrested defendant.
At trial, defendant testified that on the date of his arrest, he was living with his mother in Apartment 25-A. He had left his house around midnight to pay his respects to the Shelton family, whose grandmother had passed away. He knocked on the door to Apartment 21-B, nobody answered, and he turned around to go back across the street when he was stopped by the officers. Defendant testified that he answered their questions, and they let him go back to his mother's home. Fifteen to twenty minutes later, as he was leaving his mother's home, the officers stopped him again and accused him of dropping something on the ground. Defendant testified that he told the officers, "I don't know what you found, but it's not mine." Defendant denied at trial that the drugs found by the officers were his.
The jury found defendant guilty of possession of cocaine. The trial court sentenced defendant to six to eight months imprisonment, which was suspended, and defendant was placed on supervised probation for twenty-four months. Defendant appeals.
In his only argument, defendant contends that the trial court abused its discretion by refusing to allow the jury to review his testimony. Defendant contends that a review of his testimony would have shown he denied that he had thrown anything on the ground. We disagree.
N.C. Gen. Stat. § 15A-1233(a) 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.
N.C. Gen. Stat. § 15A-1233(a)(2007). Our Supreme Court has stated that:
This statute imposes two duties upon the trial court when it receives a request from the jury to review evidence. First, the court must conduct all jurors to the courtroom. Second, the trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue.
State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985). The trial court may only be reversed for an abuse of discretion upon a showing that its decision was so arbitrary that it could not have been the result of a reasoned decision. State v. Morgan, 183 N.C. App. 160, 168, 645 S.E.2d 93, 100 (2007) (citing State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)), appeal dismissed and disc. review denied, 362 N.C. 241, 660 S.E.2d 536 (2008).
In the instant case, the jury sent a note during deliberations, which stated:
Did defendant in his testimony recall that officer Griffin asked him "What did you throw down" and what was defendant's response.
The jury was called back to the courtroom, and the trial court addressed the jury as follows:
Members of the jury, you are, by this question, asking me to review testimony. As I informed you at the beginning of the trial, it would be your responsibility to make your decision based on what you recall of the evidence. At that time I told you that you would not have a written transcript to consult, and it is difficult and time-consuming for the court reporter to read or play back testimony. Therefore, I urged you to pay close attention to the testimony as it was given, and further, that if you wanted to take notes, you could. So I am sorry, but I am not going to grant your request to review the testimony. The jury has the responsibility of recalling all of the evidence. To begin rehearing parts of the testimony would tend to emphasize certain portions of the evidence without giving equal publication to other evidence in the case. For that reason, it is best not to let portions of the testimony be repeated without having it all repeated, because all of the evidence is important. Again, as I told you, it is the responsibility of the jury to recall all of the evidence.
The jury was requesting that the trial court tell them her recollection of a portion of defendant's testimony. "The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2007). Thus, trial judges "must be careful in what they say and do because a jury looks to the court for guidance and picks up the slightest intimation of an opinion. It does not matter whether the opinion of the trial judge is conveyed to the jury directly or indirectly. . . ." State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983) (citing State v. Whitted, 38 N.C. App. 603, 248 S.E.2d 442 (1978)). Defendant contends that the trial court failed to properly exercise its discretion by refusing to allow the jury to review defendant's testimony. The trial court informed the jury that it had a responsibility to recall defendant's testimony, and it would be difficult and time-consuming for the court reporter to read or play back the testimony. The trial court further informed the jury that it was best for them to recall defendant's testimony, rather than have it read to them, because "rehearing parts of the testimony would tend to emphasize certain portions of the evidence. . . ."
These observations indicate that the trial court exercised its discretion when it denied the jury's request. See State v. Corbett, 339 N.C. 313, 338, 451 S.E.2d 252, 265 (1994) (In instructing the jury to rely upon their individual recollections to arrive at a verdict, the trial court exercised its discretion and complied with the requirements of N.C.G.S. § 15A-1233(a)), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002); State v. Perez, 135 N.C. App. 543, 554-55, 522 S.E.2d 102, 110 (1999), appeal dismissed and disc. review denied, 351 N.C. 366, 543 S.E.2d 140 (2000). Accordingly, we find no error.
NO ERROR
Judges HUNTER, ROBERT C. and JACKSON concur.
Report per Rule 30(e).