State v. Lyons, ___ N.C. App. ___, 793 S.E.2d 755 (Dec. 6, 2016)

In this murder case, although the trial court erred by making comments prior to closing arguments suggesting to the jury that it would be futile to request to review witness testimony, the error was not prejudicial. The trial judge had stated:

When you go back and start deliberating, if six of you say, Well, I remember this witness says things this way and the other six of you say, No, I don’t remember it that way . . . you don’t have the option of saying, Well, let’s go ask the judge and let the judge tell us what did that witness really say. Because if you ask that question, my response it going to be, That’s part of your job, to figure it out and to make that determination based on your recollection[.]

The court rejected the State’s argument that the trial court’s comments merely made it clear to the jurors that if they asked for his interpretation of witness testimony, the judge would instruct them to make that determination based on their own recollections. However, the court declined to find that the error was prejudicial.