State v. Mumma, ___ N.C. ___, 827 S.E.2d 288 (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.