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.