Opinion
No. COA12–933.
2013-04-16
STATE of North Carolina v. Kevin Gordon HAITH.
Attorney General Roy Cooper, by Assistant Attorney General Christopher H. Wilson, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
Appeal by Defendant from judgments entered 22 December 2011 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 31 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Christopher H. Wilson, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
DILLON, Judge.
Defendant appeals from judgments entered upon jury verdicts convicting Defendant of three counts of sale and delivery of cocaine, three counts of possession with intent to sell and deliver cocaine, and conspiracy to possess with intent to sell and deliver cocaine. On appeal, Defendant argues the trial court failed to exercise its discretion in denying a request by the jury. We find Defendant's argument meritless.
The evidence of record tends to show the following: In December 2009, the Greensboro Police Department received complaints that there was drug activity at the residence of Ray Flippin (Flippin) on Holt Avenue in Greensboro, North Carolina. Defendant lived next to Flippin. Detective Richard Alston (Detective Alston) began keeping the house under surveillance and noticed that people would come and go, day and night, only staying for short periods of time. A Land Rover belonging to Defendant was routinely parked behind the house.
David Bowers (Bowers), a heroin addict, volunteered with the High Point Police Department to be a drug informant. Detective Alston met with Bowers, drove Bowers to the house on Holt Avenue that was under surveillance, and showed Bowers a photograph of Defendant, who the police believed was selling drugs from the house.
On 14 December 2009, under the direction of Detective Alston, Bowers approached the house with a $20 bill, knocked on the door, and entered. Flippin and Defendant were inside, and Flippin asked Bowers what he wanted. Bowers said, “a 20.” Flippin then called for Defendant, who emerged from a hallway with a tray of crack rocks. Bowers was told to choose one. Bowers complied, paid Defendant, and left. Bowers then delivered the crack rock to Detective Alston, who field tested the crack rock. The rock tested positive for cocaine. The rock was later confirmed to be cocaine base or crack cocaine by forensic chemists for the Greensboro Police Department.
On 15 December 2009, Bowers went back to the house on Holt Avenue with a $20 bill at the direction of Detective Alston. This time, Bowers was fitted with a wire, having audio capability. Bowers entered the house, and again, Flippin and Defendant were inside. Bowers bought a rock of crack cocaine from Defendant in much the same fashion as the previous day; only this time, the transaction was audiotaped.
On 16 December 2009, Bowers returned to the house at the direction of Detective Alston. For this third visit, Bowers was fitted with a video transmitter. On this day, a man with dreadlocks, named Hugh Lipford (Lipford), answered the door. Lipford let Bowers inside, and Flippin and Defendant were also present. Bowers purchased a $20 rock of crack cocaine from Defendant in much the same fashion as the previous two days. This time, the transaction was videotaped.
After these three events, Detective Alston obtained a search warrant for the house. On 17 December 2009, Bowers, Detective Alston, and ten to twelve other officers went to the house. Bowers entered the house as he had done on the previous three days. Flippin and Lipford were there, but Defendant was not. Bowers purchased a $20 rock of crack cocaine from Lipford. During the transaction, Lipford saw a silhouette outside the window and told Flippin the police were there. Lipford flushed the drugs down the toilet, along with a razor. The razor, however, did not flush, and the police discovered it. Flippin and Lipford were arrested that day. Defendant was subsequently arrested on 23 December 2009 at the house.
A third person was also present in the house that day, but this person was neither arrested nor charged.
Defendant was indicted on three counts of sale and delivery of cocaine, three counts of possession with intent to sell and deliver cocaine, and conspiracy with Lipford and Flippin to possess with intent to sell and deliver cocaine. Defendant was also indicted on having attained the status of an habitual felon. Defendant's case came on for trial during the 12 December 2011 session of Guilford County Superior Court. On 16 December 2011, the jury returned verdicts finding Defendant guilty of all charges. The trial court entered judgments consistent with the jury's verdicts and sentenced Defendant to two consecutive terms of 110 to 141 months incarceration. From these judgments, Defendant appeals.
In Defendant's sole argument on appeal, he contends the trial court failed to exercise its discretion by ruling that the jurors could not take notes or discuss the audio and video evidence while they were reviewing the evidence in the courtroom. We find this argument without merit.
N.C. Gen.Stat. § 15A–1233(a) (2011), provides the following:
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.
Similarly, N.C. Gen.Stat. § 15A–1233(b) (2011), provides that “[u]pon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.” In the context of N.C. Gen.Stat. § 15A–1233(a), this Court has stated that “[a] trial court's ruling in response to a request by the jury to review testimony or other evidence is a discretionary decision, ordinarily reviewable only for an abuse thereof.” State v. Perez, 135 N.C.App. 543, 554, 522 S.E.2d 102, 110 (1999), appeal dismissed and disc. review denied, 351 N.C. 366, 543 S.E.2d 140 (2000) (citations omitted); see also State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 124 (1980) (stating that “[i]t is well settled in this jurisdiction that the decision whether to grant or refuse a request by the jury, after beginning its deliberations, for a restatement of the evidence lies within the discretion of the trial court”). “When a motion addressed to the discretion of the court 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 (citation omitted). “In addition, 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.” Id. at 510, 272 S.E.2d at 125. “Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter.” Id. (citations omitted). “When the trial court gives no reason for a ruling that must be discretionary, we presume on appeal that the court exercised its discretion.” State v. Starr, 365 N.C. 314, 318, 718 S.E.2d 362, 365 (2011). “However, where the statements of the trial court show that the trial court did not exercise discretion ... the presumption is overcome, and the denial is deemed erroneous.” Id . “When a trial court violates this statutory mandate ... upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable, and the alleged error is preserved by law even when the defendant fails to object.” Id. at 317, 718 S.E.2d at 365 (citations and quotation marks omitted).
In the case sub judice, Defendant did not object to the trial court's ruling on the jury request. Nonetheless, in accordance with the rule set forth in Starr, 365 N.C. at 317, 718 S.E.2d at 365, the alleged error is preserved. Here, the jurors asked the trial court whether they could take notes as they reviewed the audio and video evidence and whether they could discuss and deliberate upon the audio and video evidence while they were reviewing it. The trial court gave the following response:
There were two questions that were asked. One is: Can we take notes during the replay? And I'd ask that you not take notes because if you're taking notes you might miss important parts of either the audio or the video portions. And the other question is, is there any way we could take everybody out so that you could talk about it as you watch it, and there is really not a vehicle for that right now. But let me say this, Mr. Foreperson, if you watch it here in the courtroom and still wish to see it some more, we can try to make provisions for that, or we could bring you back in and let you watch it again. The logistics would make it difficult to clear everybody out and just have you in here with it because, necessarily, there would have to be an operator with it and, obviously, they're not on the jury.
On appeal, Defendant argues that the trial court erred in making the foregoing ruling, because it failed to exercise its discretion, believing it had no discretion to allow the jury to view the video and audio evidence and simultaneously deliberate. We find this argument unconvincing.
Defendant relies upon State v. Ashe, 314 N.C. 28, 33, 331 S.E .2d 652, 656 (1985), in which a trial court denied a jury's request to review trial transcripts upon the mistaken belief that it did not have the discretion to grant the request. Likewise, in Starr, our Supreme Court held the following:
A trial court's statement that it is unable to provide the transcript to the jury demonstrates the court's apparent belief that it lacks the discretion to comply with the request. Because [a] court does not exercise its discretion when it believes it has no discretion, a response indicating the inability to provide a transcript constitutes erroneous failure to exercise discretion.
Starr, 365 N.C. at 318, 718 S.E.2d at 365 (citations and quotation marks omitted) (emphasis in original). In Starr, the trial court had stated, “I have received this note, ‘We are requesting the testimony of Marvin Spruill.’ In North Carolina we don't have the capability of realtime transcripts so we cannot provide you with that.” Id. at 317, 718 S.E.2d at 365 (emphasis in original). The Starr Court concluded that the “trial court's statement that it is unable to provide the transcript to the jury demonstrates the court's apparent belief that it lacks the discretion to comply with the request.” Id. at 318, 718 S.E.2d at 365 (emphasis in original); see also State v. Barrow, 350 N.C. 640, 647, 517 S.E.2d 374, 378 (1999) (holding the trial court did not exercise its discretion when it said, “what [the court reporter is] taking down has not yet been transcribed[;][a] nd the Court doesn't have the ability to now present to you the transcription of what was said during the course of the trial ”) (emphasis in original); Ashe, 314 N.C. at 33, 331 S.E.2d at 656 (holding the trial court did not exercise discretion when it said, “[t]here is no transcript at this point[;][y]ou 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”).
We find this case distinguishable from the foregoing cases involving trial transcripts. In this case, we do not believe the trial court failed to exercise its discretion under a belief that it somehow lacked discretion. Rather, we believe in both instances raised by Defendant, the trial court exercised its discretion. First, we believe that the trial court exercised discretion when it denied the jury's request to take notes during the viewing of the audio and video evidence. The trial court specifically stated its reason in denying this request was because it did not want the jury to “miss important parts of either the audio or the video portions.” Second, we believe the trial court exercised its discretion when it did not allow the jury to deliberate while viewing the audio and video evidence. Defendant argues in his brief that the trial court failed to exercise discretion in this regard because it “failed to consider options[.]” However, the record shows that the trial court did consider options and, in fact, offered an alternative to the jury's request. Specifically, the trial court told the jurors that after they viewed the evidence in the courtroom the court would make provisions for them during the course of their private deliberations in the jury room to have the ability to return to the courtroom to review the evidence again. The jury, in fact, reviewed the evidence a second time. Moreover, in this case, the trial court stated that the “logistics” would be “difficult[,]” and that viewing the evidence would require someone not on the jury to operate the equipment; however, a trial court's assessment that a jury request would be complicated to carry out is not equivalent to a trial court's erroneous belief that a jury request cannot possibly be carried out. Based on the foregoing, we conclude Defendant's argument is without merit. Compare Starr, 365 N.C. at 318, 718 S.E.2d at 365;Barrow, 350 N.C. at 647, 517 S.E.2d at 378;Ashe, 314 N.C. at 33, 331 S.E.2d at 656.
NO ERROR. Judge STEPHENS and Judge STROUD concur.
Report per Rule 30(e).