State v. Lang

272 S.E.2d 123 (1980)

STATE of North Carolina
v.
Leburn Hoyt LANG.

No. 69.

Supreme Court of North Carolina.

December 2, 1980.

Joseph Beeler, Miami, Fla., Tharrington, Smith & Hargrove, Raleigh, by Roger W. Smith, and Elmore & Powell, P. A., by Bruce Elmore, Sr., Asheville, for defendant.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. T. Buie Costen and Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.

COPELAND, Justice.

By his nineteenth assignment of error, defendant contends that the trial court erred in refusing the jury's request, after beginning its deliberations, to have the transcript of the testimony of defendant's witness Mrs. Rena James read to it. We hold that the trial judge's refusal on the grounds that he did not have the authority, in his discretion, to grant the jury's request was a prejudicial error entitling defendant to a new trial.

It 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. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980); State v. Ford, 297 N.C. 28, 252 S.E.2d 717 (1979); State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). 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. Calloway v. Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972). 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. Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter. State v. Ford, supra; Calloway v. Ford Motor Co., supra; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461 (1938). See also People v. Autman, 58 Ill.2d 171, 317 N.E.2d 570 (1974); People v. Queen, 56 Ill.2d 560, 310 N.E.2d 166 (1974).

We find that the trial court's response to the jury's request in this case must be interpreted as a statement that the court believed it did not have discretion to consider the request. In answer to the jury's question whether the transcript of Ms. Rena James was available to be read to them, the trial judge replied:

"No sir, the transcript is not available to the jury. The lady who takes it down, of course, is just another individual like you 12 people. And what she hears may or may not be what you hear, and 12 of you people are expected, through your ability to hear and understand and to recall evidence, to establish what the testimony was. No, I hope you understand. She takes it down and the record, after she submits it to the various individuals, if it needs to be submitted is gone over and then they themselves can object to what she had in the record as not being what the witness says, and so on and so forth. For that reason I do not allow records to even be read back to the jury, because she may not have heard it exactly as the witness said it, and you people might have heard it differently; so for that reason you are required to recall the witness' testimony as you've heard it."

We hold that Judge Grist'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. The denial of the jury's request as a matter of law was error.

We further find the trial court's error prejudicial to defendant in this action. In a case involving an identical assignment of error, State v. Ford, supra, we held that the trial judge's failure to exercise his discretion was not prejudicial where the evidence requested by the jury concerned the exact date and time that each perpetrator of the crime involved was arrested. The Court reasoned that the requested evidence was conflicting, inconclusive, or not in the record, and that any attempt to review it would likely have raised more questions than it would have answered. In the present case, however, the requested evidence was testimony which, if believed, would have established an alibi for defendant. Ms. James' statements were in direct conflict with the evidence presented by the State. Thus, whether the jury fully understood the alibi witness' testimony was material to the determination of defendant's guilt or innocence. Defendant was at least entitled to have the jury's request resolved as a discretionary matter, and it was prejudicial error for the trial judge to refuse to do so.

Since we have held that the trial court committed prejudicial error entitling defendant to a new trial, we deem it unnecessary to discuss defendant's remaining assignments of error, as they are unlikely to recur. However, defendant's assignment involving the failure of the trial court to allow defendant's motion to reopen the case in order to introduce into evidence Mrs. Rena James' time card from the restaurant at which she worked gives us particular concern, since the time card corroborated Mrs. James crucial testimony as defendant's alibi witness. Because defendant can subpoena the time card and present this evidence at retrial, we do not consider this assignment at this time.

For the reason that the trial court erred in failing to exercise its discretion in determining whether to grant the jury's request for a restatement of Mrs. James' testimony, defendant is given a

NEW TRIAL.

BROCK, J., did not participate in the consideration or decision of this case.