Criminal Practice – Jury & Jurors – Request for Transcript – Judge’s Discretion – No Prejudice

State v. Starr (Lawyers Weekly No. 11-06-1252, 9 pp.) (Mark Martin, J.) Appealed from New Hanover County Superior Court. (W. Allen Cobb Jr., J.) On discretionary review from the Court of Appeals. N.C. S. Ct. Click here for the full-text opinion.

Holding: The trial court erred when it told the jury that it lacked the technological capability to provide the jury with the transcript it requested. However, the defendant failed to show that the court’s failure to exercise its discretion was prejudicial to him.

We modify and affirm our Court of Appeals’ decision to uphold defendants’ convictions of four counts of assaulting a firefighter with a firearm.

When a jury asks to review a witness’ testimony during deliberations, the trial court must exercise its discretion in determining whether to permit such a review. Where the trial court’s statements show that the court did not exercise discretion, the denial of the jury’s request is deemed erroneous.

Here, the trial court’s statement, “We don’t have the capability … so we cannot provide you with that,” overcomes the presumption that the court exercised its discretion. The trial court violated G.S. § 15A-1233(a) by failing to exercise its discretion. The error is preserved by operation of law for appellate review.

Defendant bears the burden of showing that he has been prejudiced by the trial court’s error in not exercising discretion in accordance with G.S. § 15A-1233(a). Defendant has not carried his burden.

He does not explain how the review of witness Spruill’s testimony would have created a reasonable possibility that a different result would have been reached at his trial. The jury had the opportunity to see and hear Spruill’s testimony at trial, and his testimony was not confusing or contradicted.

Further, Spruill’s testimony was not material to the determination of defendant’s guilt or innocence. Specifically, the requested testimony was incriminating to defendant and came from a witness for the prosecution, unlike alibi testimony or other testimony that would tend to benefit a defendant.

In addition, Spruill’s testimony was not the only evidence directly linking defendant to the alleged crimes. Rather, three other witnesses gave testimony that corroborated Spruill’s testimony. Defendant thus has not demonstrated a reasonable possibility that a different result would have been reached at his trial had the error not been committed.

Modified and affirmed.