Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.


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E.g., 07/24/2024
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In this New Hanover County case, the Supreme Court reversed the unpublished Court of Appeals decision granting defendant a new trial on his convictions of first-degree murder, murder of an unborn child, and robbery with a dangerous weapon. The Court determined that the trial court properly exercised its discretion under G.S. 15A-1233 when denying the jury’s request to review partial transcripts.  

In August of 2016, Wilmington Police responded to a dead woman at a local hotel. An investigation of the victim’s phone and hotel surveillance determined that defendant came to the hotel looking for sexual services. When police interviewed defendant, he admitted that he had struck the victim but denied killing her. During subsequent testimony, defendant changed his story and no longer admitted he struck the victim. At trial, the jury made multiple requests to review evidence, including one request to review transcripts of a police detective’s testimony, defendant’s testimony, and the medical examiner’s testimony. The trial court denied this request for transcripts, informing the jury that it was their duty to recall the testimony and “[w]e’re not – we can’t provide a transcript as to that.” Slip Op. at 7. After defendant was convicted, he appealed and argued that the language from the trial court suggested that it had not exercised the discretion granted by G.S.15A-1233 to allow the jury to review transcripts. The Court of Appeals agreed, finding the trial court failed to exercise discretion and that the error was prejudicial, granting a new trial.

Taking up the State’s petition for discretionary review, the Supreme Court first explained that normally the presumption is that a trial court exercised its discretion when ruling on a jury request, unless the trial court makes a statement that expresses it has no discretion as to the request in unambiguous terms. The Court emphasized that appellate courts must review the record to determine the context of statements alleged to show lack of discretion. The court found ambiguity here in the combination of the trial court’s statement’s “we’re not” and “we can’t,” explaining “[w]hile the word ‘can’t,’ if read alone, could be indicative of a lack of discretion, the phrase ‘we’re not’ indicates the exercise of discretion.” Id. at 14. This ambiguity plus the trial court’s conduct when considering the previous requests indicated it had exercised the appropriate discretion, and the Court reversed the decision granting a new trial. 

Justice Riggs concurred in the result only, and would have held that the trial court erred but the error was not prejudicial. Id. at 18. 

Justice Earls dissented, and would have held the trial court failed to exercise discretion. Id. at 21. 

State v. Mumma, 372 N.C. 226 (May. 10, 2019)

On writ of certiorari of a divided decision of the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 215 (2018), the court held that the defendant was not prejudiced by the trial court’s decision to allow the jury to review photographs in the jury room without the defendant’s consent. At trial at least 179 photographs were admitted into evidence, all but one of them without any objection from the defendant. While deliberating, the jury sent a note to the trial court requesting the photographs. After noting that whether to send the photos back was in the trial court’s discretion, trial counsel objected to allowing the jury to review the photos in the jury room and stated his preference that the jurors rely on testimony and recollection. The trial court decided, in its discretion, to allow the jury to have all of the photographs, and those items were delivered to the jury room. The defendant was convicted and he appealed. G.S. 15A-1233(b) provides, in part, 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.” Permitting juries to take evidence to the jury room without the consent of the parties constitutes error. While the trial court erred by allowing the jury to examine the photographs in the jury room without the defendant’s consent, the error was not prejudicial given the extensive evidence of the defendant’s guilt and the weakness of the defendant’s claim of self-defense when considered in connection with other evidence in the record. Here, the central issue was whether or not the defendant acted in self-defense. In arguing prejudice, the defendant asserted that the lengthy period of time that the jury was allowed to have photographs showing injuries inflicted upon the victim’s body and photographs of the relatively minor injuries inflicted on him could easily have led the jury to reject his self-defense claim. For reasons discussed in the court’s opinion, the court did not find this argument persuasive.

State v. Starr, 365 N.C. 314 (Dec. 9, 2011)

The court modified and affirmed a decision of the court of appeals in State v. Starr, 209 N.C. App. 106 (Jan. 4, 2011) ((1) although the trial judge did not explicitly state that he was denying, in his discretion, the jury's request to review testimony, the judge instructed the jurors to rely on their recollection of the evidence that they heard and therefore properly exercised discretion in denying the request and (2) when defense counsel consents to the trial court's communication with the jury in a manner other than in the courtroom, the defendant waives his right to appeal the issue; here, although the trial judge failed to bring the jurors to the courtroom in response to their request to review testimony and instead instructed them from the jury room door, prior to doing so he asked for and received counsel’s permission to instruct at the jury room door). The supreme court determined that the trial court violated G.S. 15A-1233(a) by failing to exercise its discretion in deciding whether to allow the jury to review testimony. The court noted that as a general rule, when the trial court gives no reason for a ruling that must be discretionary, it is presumed that the court exercised its discretion. However, when the trial court’s statements show that it did not exercise discretion, the presumption is overcome. Here, the trial court’s statement that “we don’t have the capability . . . so we cannot provide you with that” overcomes the presumption the court exercised its discretion. However, the court found that the error was not prejudicial. The court provided the following guidance to trial court judges to ensure compliance with G.S. 15A-1233(a): The trial court must exercise its discretion to determine whether the transcript should be made available to the jury but it is not required to state a reason for denying access to the transcript. The trial judge may simply say, “In the exercise of my discretion, I deny the request,” and instruct the jury to rely on its recollection of the trial testimony. 

In this Rutherford County case, defendant appealed his convictions for possession of a firearm by felon, possession of methamphetamine, and attaining habitual felon status, arguing error in (1) denying his motion to dismiss based on insufficient evidence he possessed the firearm and drugs, (2) failing to instruct the jury on theories of attempt, and (3) permitting the jury to hear recordings of defendant’s calls from jail a second time without appropriate jury instruction. The Court of Appeals found no error. 

Beginning with (1), the Court of Appeals explained that at trial, the State offered testimony from a police officer that defendant made several phone calls while in jail. The substance of these calls were that defendant left something in his coat and that he would pick it up later. Police later met with the woman defendant was calling, and found the coat with two bags of methamphetamine, as well as a firearm hidden at another acquaintance’s house. The court noted that defendant’s instructions and knowledge of where these items were hidden, and the instructions he gave to those on the outside through the phone calls, represented constructive possession to support the conviction. The court explained the “jail calls reflect that [defendant] sought to control the disposition and use of both the gun and the methamphetamine by directing [the woman] to remove them from the scene of his arrest.” Slip Op. at 6. The court also pointed out that this evidence could support the jury concluding defendant actually possessed the items. 

In (2), defendant argued that he did not successfully convince the woman to move the items, warranting a jury instruction on attempted possession as a lesser alternative. The court disagreed, explaining “the State’s evidence actually demonstrated that [the woman] had, in fact, moved the items by the time she was approached by law enforcement . . . [t]here was therefore no evidence tending to show an attempted possession.” Id. at 8. 

Dispensing with (3), the court noted that the statement defendant relied on in State v. Weddington, 329 N.C. 202 (1991), was dicta, and no caselaw required the trial court to instruct the jury to remember all the previous evidence when allowing review of a specific part of testimony. The court concluded “[t]he jury was appropriately instructed that it should consider all the evidence during the jury charge, and the trial court scrupulously observed the requirements of [G.S.] 15A-1233(a) during the replay.” Id. at 10. 

The defendant was indicted for taking indecent liberties with a child and went to trial. At trial, the jury heard testimony from the victim and the defendant. During deliberations, the jury asked to see a transcript of both witnesses’ testimony. The trial judge told the jury that “unlike on TV” transcripts are not made in real time, it would take “a couple weeks at the fastest” to create them, so it is “just not able to be done.” On appeal, the defendant argued this was reversible error because the trial judge failed to clearly state that she was declining to provide a transcript as a matter of judicial discretion, rather than because it was impossible. The appellate court agreed, based on nearly indistinguishable binding precedent, even though in this case it “readily can be inferred” from the trial judge’s comments that she was aware that she had the discretion to order a transcript but was choosing not to do so because of the delay it would cause. The court noted that “we believe the Supreme Court should review this line of cases,” but “as an intermediate appellate court […w]e are bound by both our own precedent and the Supreme Court’s, and thus constrained to find error.”

Additionally, the error is deemed prejudicial when it is material to the determination of guilt or innocence and involves issues of confusion or contradiction such that the jury would want to review the evidence to understand it. Both factors applied in this case because there was no physical evidence and “the State’s case relied entirely on witness testimony.” Since the jury asked to review a transcript of that testimony, and the trial court erroneously told the jury it was not possible, “there is a reasonable possibility that the trial court’s error affected the outcome of the jury’s deliberations.” The conviction was vacated and remanded for a new trial.

In this indecent liberties with a child case, although the trial court erred by failing to conduct the jury to the courtroom as required by G.S. 15A-1233 in response to its request to review certain evidence, the error was not prejudicial and the defendant failed to show an error of constitutional magnitude. The statute requires that if the jury, after retiring for deliberations, requests to review evidence, the jurors must be conducted to the courtroom. Here, the jury sent two notes to the trial court, one requesting police reports, and another requesting transcripts of certain trial testimony. On both occasions, the bailiff brought the notes into the courtroom to the judge and delivered the judge’s written responses to the jury. The judge’s notes informed the jury that they could not review the police reports because they were not in evidence and that the trial court had decided, in its discretion, not to delay deliberations to have a transcript produced of the testimony in question. This was error because the trial court failed to comply with the statute. However this did not constitute a violation of the defendant’s right to a unanimous verdict under the state constitution, where the trial court did not interact with or provide instructions to less than a full jury panel. Additionally a new trial is not warranted as there is no showing that the error prejudiced the defendant.

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.

Although the trial court erred by failing to exercise discretion in connection with the jury’s request to review certain testimony, the defendant failed to show prejudice. In this armed robbery case, during deliberations the jury sent a note to the trial court requesting several items, including a deputy’s trial testimony. The trial court refused the request on grounds that the transcript was not currently available. This explanation was “indistinguishable from similar responses to jury requests that have been found by our Supreme Court to demonstrate a failure to exercise discretion.” However, the court went on to find that no prejudice occurred.

The trial court did not violate G.S. 15A-1233 by providing a preemptive instruction that denied the jury an opportunity to make any evidentiary requests. The court concluded that no such preemptive instruction was given; the trial court instructed that although no transcript existed, it would consider requests to review testimony on a case by case basis and attempt to accommodate requests if necessary.

The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this statement “demonstrated a belief that [the trial court] was not capable of complying with the jury’s transcript request” and that as a result the trial court failed to exercise discretion in responding to the jury’s request. [Author’s note: For the proper procedure for responding to such a request by the jury, see my Bench Book section here.]

The court reversed and remanded for a new trial where the trial court failed to exercise its discretion regarding the jury’s request to review the victim’s testimony and the error was prejudicial. Responding to the jury’s request, the trial court stated, in part, “We can’t do that.” This statement suggests that the trial court did not know its decision was discretionary.

Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court directed that certain items be sent back to the jury. Defense counsel objected. Under G.S. 15A-1233, it was error for the court to send the material to the jury room over the defendant’s objection.

(1) The trial court erred when it responded to the deliberating jury’s request to review evidence by sending the requested evidence back to the jury room instead of conducting the jury to the courtroom, as required by G.S. 15A-1233. The defendant however suffered no prejudice. (2) The trial court erred when it allowed the jury to review a statement that had not been admitted in evidence. The defendant however suffered no prejudice. 

State v. Garcia, 216 N.C. App. 176 (Oct. 4, 2011)

The trial court properly exercised its discretion when denying the jury’s request to review testimony. Although the trial court’s statements to the jury indicate it thought that a review of that testimony was not possible (statements that normally suggest a failure to exercise discretion), the trial court had previously discussed with counsel the possibility of having the testimony read to the jury. The trial court was aware it had the ability to grant the request, but exercised its discretion in declining to do so.

The trial court violated G.S. 15A-1233 by responding to a jury request to review evidence and sending the evidence back to the jury room instead of bringing the jury into the courtroom. However, no prejudice resulted.

The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.

The trial court did not abuse its discretion by denying the jury’s request, made during deliberations, for a transcript of a witness’s testimony. The trial court expressly denied the request in its discretion; there is no requirement that the trial judge provide any further explanation to demonstrate that he or she is in fact exercising discretion.

State v. Ross, 207 N.C. App. 379 (Oct. 19, 2010)

The bailiff’s delivery of an exhibit to the jury, with an instruction from the trial judge that it would need to be returned to the trial court did not prejudice the defendant, even though the trial court violated G.S. 15A-1233(a) by failing to bring the jury into the courtroom when the jury’s asked to review the exhibit. As to the instruction delivered by the bailiff, the court distinguished prior case law, in part, because the communication did not pertain to matters material to the case. 

The trial court erred in not exercising its discretion when denying the jury’s request for transcripts of testimony of the victim and the defendant.

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