State v. Hill ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-344
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 12 CRS 56659
13 CRS 386
ANGELA WELCH HILL
Appeal by defendant from judgment entered 17 October 2013
by Judge Timothy S. Kincaid in Cleveland County Superior Court.
Heard in the Court of Appeals 11 September 2014.
Attorney General Roy Cooper by Assistant Attorney General
Jane L. Oliver for the State.
Russell J. Hollers III for defendant-appellant.
STEELMAN, Judge.
Even assuming arguendo that the trial court erred in its
comments to the jury about the availability of a transcript for
its review, defendant failed to show prejudice as a result of
these comments.
I. Factual and Procedural Background
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In December 2012 Rick Rippy had romantic relationships with
Karen Mobley and with Angela Hill (defendant). On the evening of
3 December 2012 Mr. Rippy, his son, Brandon Huffman, and Ms.
Mobley ate supper together in a camper trailer in the King’s
Mountain area of Cleveland County, North Carolina. After supper
defendant entered the trailer and began arguing and fighting
with Ms. Mobley. In the course of the altercation, Ms. Mobley’s
hand was injured. After the fight, defendant left the trailer
and damaged Ms. Mobley’s car.
On 11 February 2013 defendant was indicted for the felony
of assault with a deadly weapon inflicting serious injury and
for the misdemeanor of injury to personal property. Defendant
was tried before a jury at the 13 October 2013 Session of
Criminal Superior Court of Cleveland County. In her trial
testimony, defendant admitted committing simple assault on Ms.
Mobley and damaging her car, but denied possessing or using a
knife. Witness testimony was in conflict as to whether defendant
or Ms. Mobley was Mr. Rippy’s current girlfriend at the time of
the incident, and whether it was defendant or Ms. Mobley who
held a knife during the fight. On 17 October 2013 the jury
returned guilty verdicts against defendant for assault with a
deadly weapon inflicting serious injury and injury to personal
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property. The trial court sentenced defendant to an active
prison term of 38 to 55 months.
Defendant appeals.
II. Petition for Certiorari
During the sentencing proceeding, defendant’s trial counsel
informed the trial court that defendant was “adamant that she’s
not guilty” and that “she is going to want to appeal.” However,
defendant neither noted an appeal in open court nor filed a
written notice of appeal. On 25 April 2014 defendant’s appellate
counsel filed a petition for writ of certiorari seeking review
of the judgment entered in this matter. In our discretion, we
grant defendant’s petition for writ of certiorari.
III. Court’s Statement Concerning Review of Transcript
Defendant’s sole argument on appeal is that the trial court
violated N.C. Gen. Stat. § 15A-1233(a) by failing to exercise
its discretion regarding whether to allow the jury to review
witness testimony. Defendant contends that the court’s error
entitles her to a new trial. We disagree.
A. Standard of Review
N.C. Gen. Stat. § 15A-1233(a) provides in part that:
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
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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.
“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[.] . . . Insofar as the statute requires the judge to
exercise discretion, it is merely a codification of the common
law rule.” State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656
(1985) (citations omitted). “The trial court must uphold its
duty to ‘exercise its discretion in determining whether to
permit requested evidence to be read to or examined by the
jury[.]’” State v. Presson, __ N.C. App. __, __, 747 S.E.2d 651,
656 (quoting State v. Hinton, __ N.C. App. __ , __, 738 S.E.2d
241, 248 (2013) (quoting Ashe, 314 N.C. at 34, 331 S.E.2d at
656)), disc. review denied, 367 N.C. 274, 752 S.E.2d 150 (2013).
“When a trial court violates this statutory mandate by
denying the jury’s request to review the transcript ‘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
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is preserved by law even when the defendant fails to object.”
State v. Starr, 365 N.C. 314, 317, 718 S.E.2d 362, 365 (2011)
(quoting State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378
(1999) (internal quotation omitted)).
However, to obtain relief, a defendant must show prejudice
as a result of the trial court’s error. “This prejudice may be
shown by demonstrating ‘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.’”
Hinton, __ N.C. App. at __, 738 S.E.2d at 248 (quoting N.C. Gen.
Stat. § 15A-1233).
B. Analysis
Just before the jury retired to deliberate, the trial court
stated the following to the jury:
Just a few things that have commonly come up
recently and I’ll instruct you as follows.
Often the juries will ask for the transcript
of a witness and we can provide that. It’s
going to take us about four weeks and you’ll
have to be here while we prepare a
transcript and proof read and get it ready
but we can do that if you want it. Generally
speaking I deny those requests. It is
discretionary with the Court but that’s just
to let you know before you ask how long it
takes.
Defendant argues that the trial court erred by warning the
jury that it would have to wait in court for a month in order to
review a transcript, thereby “chilling the jury’s right to
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review trial testimony” and “prevent[ing] the jury from
reviewing” “confusing, contradictory testimony by threatening to
keep the jury in the courthouse for a month waiting for
preparation of a transcript.” However, defendant does not argue
that the court’s alleged error affected the outcome of the
trial. Therefore, even if we assume that (1) the court erred;
(2) but for the court’s error, the jury would have asked to
review testimony, and; (3) the court would have granted the
jury’s request, defendant has failed to articulate any argument
that the jury’s hypothetical review of testimony would have
changed the outcome of the trial.
Defendant attempts to distinguish the facts of the present
case from those of State v. Johnson, 164 N.C. App. 1, 595 S.E.2d
176 (2004), where we held that the defendant was not prejudiced
by the trial court’s failure to comply with N.C. Gen. Stat. §
15A-1233, contending that “[u]nlike in Johnson, there was
confusing and contradictory evidence [in this case] that the
jury would have wanted to review.” Assuming, arguendo, the
accuracy of defendant’s speculation that the jury would have
wanted to review trial testimony, a defendant does not show
prejudice simply based on the existence of confusing or
contradictory testimony:
The test to determine whether a defendant
should receive a new trial due to the trial
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court’s failure to exercise discretion has
two parts. First, we “must consider if the
trial court failed to exercise its
discretion.” . . . Second, we must “consider
whether this error was prejudicial.” The
error is prejudicial if the testimony was
“material to the determination of [the]
defendant’s guilt or innocence.” Testimony
is material if “the defendant can show that
(1) such testimony or evidence involved
issues of some confusion and contradiction,
and (2) it is likely that a jury would want
to review such testimony.” If the defendant
satisfies this requirement, we will
determine [if] the error was prejudicial
because there exists “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. N.C. Gen. Stat. § 15A-
1443(a).”
(emphasis added). State v. Hatfield, __ N.C. App. __, __, 738
S.E.2d 236, 239-240 (2013) (quoting State v. Long, 196 N.C. App.
22, 28, 674 S.E.2d 696, 700 (2009) (internal citation omitted),
State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 377 (1997)
(internal quotation omitted), and Johnson, 164 N.C. App. at 20,
595 S.E.2d at 187 (internal quotation omitted)). Hatfield is
clear that a defendant must demonstrate prejudice resulting from
the court’s error.
In State v. Starr our Supreme Court first “determined that
there was error and that defendant’s failure to object at trial
did not bar appellate review” and then “consider[ed] whether the
trial court’s failure to exercise its discretion was
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prejudicial.” Starr, 365 N.C. at 319, 718 S.E.2d at 366.
Although the defendant in Starr argued that the “jury’s review
of [a witness’s] testimony could have reasonably resulted in not
guilty verdicts for Mr. Starr on one or more of the [charges,]”
he “d[id] not explain how the review of [the witness’s]
testimony would have created a reasonable possibility that a
different result would have been reached at his trial.” Id. The
Court held that “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” and
denied the defendant relief based on the trial court’s error.
In this case, defendant does not even make the conclusory
assertion proffered by the defendant in Starr that review of
trial testimony “would have created a reasonable possibility
that a different result would have been reached at his trial.”
Defendant has failed to establish, or even to put forth an
argument, that the trial court’s comments to the jury affected
the ultimate outcome of the trial. As a result, she has not
demonstrated reversible error.
NO ERROR.
Judges GEER and DIETZ concur.
Report per Rule 30(e).