State v. Nova, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 17, 2020)

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.