State v. Grogan

• Decision Date: 20 March 1979
• Docket Number: No. 7815SC868,7815SC868
• Citation: 253 S.E.2d 20,40 N.C.App. 371
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James Michael GROGAN.

Page 20

253 S.E.2d 20

40 N.C.App. 371

STATE of North Carolina v. James Michael GROGAN.

No. 7815SC868.

Court of Appeals of North Carolina.

March 20, 1979.

J. Kirk Osborn, Manning, Jackson, Osborn & Frankstone, P.A., Chapel Hill, for defendant appellant.

MITCHELL, Judge.

The defendant assigns as error remarks made by Judge Bailey in the presence of the jury during the second trial of this action. After the jury had commenced its deliberations, it requested that certain photographs be sent to the jury room. Only one, the photograph of an automobile, had been introduced into evidence. The defendant consented to this photograph being sent to the jury room but did not consent to the remaining photographs being sent there for the jury's consideration. Judge Bailey then had the jury returned to the courtroom and stated:

Ladies and gentlemen of the jury, you have requested that the photographs be permitted to be taken to the jury room. The photograph of the automobile was formerly offered in evidence and there's no objection, and I will send that one. The other photographs taken purportedly by Mr. Wilson were not formerly offered in evidence, and I cannot send them without consent of both parties; and the defendant does not consent. So I can't permit you to take those three photographs with you to the jury room.

Upon a request by the jury to examine materials admitted into evidence, the trial judge in the exercise of his discretion, after notice to the prosecutor and defendant, may permit the jury to examine such materials in the courtroom. G.S. 15A-1233(a). Here, however, the jury requested that they be permitted to take to the jury room photographs which had not been received in evidence as well as photographs which had been received. Upon such a request by the jury, the trial judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence if all parties to the action consent. G.S. 15A-1233(b). The controlling statute does not grant the trial judge authority to permit the jury to take exhibits or other materials which have not been received in evidence to the jury room under any circumstances. G.S. 15A-1233. Therefore, the trial judge's statement to the jury that he could not allow them to take the photographs which had not been received in evidence into the jury room because the defendant did not consent was an incorrect statement of the law.

The trial judge's view of the applicable law, which we have found incorrect, was in itself in no way harmful to the defendant. It led to a correct ruling that the jury could not take the photographs which had not been received in evidence into the jury room. In undertaking to state his reason for that ruling, however, we find that the trial judge committed error prejudicial to the defendant.

A trial judge is prohibited from expressing any opinion which is calculated to prejudice either of the parties at any time during the trial. G.S. 15A-1222 and 1232; State v. Guffey, 39 N.C.App. 359, 250 S.E.2d 96 (1979); State v. Whitted, 38 N.C.App. 603, 248 S.E.2d 442 (1978). See State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971) (construing former G.S. 1-180). The slightest intimation from the trial judge as to the weight or credibility to be given evidentiary matters will always have great weight with the jury, and great care must be exercised to insure that neither party is unduly prejudiced by any expression from the bench which is likely to prevent a fair and impartial trial. State v. Wollard, 227 N.C. 645, 44 S.E.2d 29 (1947) (former G.S. 1-180). Not every indiscreet and improper remark by a trial judge is of such harmful effect as to require a new trial. State v. Holden, 280 N.C. 426, 185 S.E.2d 889 (1972); State v. Blue, 17 N.C.App. 526, 195 S.E.2d 104 (1973). Here, however, we find that the trial judge's explanation of his ruling excluding the photographs in question may have led the jury reasonably to conclude that he felt the photographs were important evidence which the jury should see and which he would allow them to see but for the defendant's act in withholding consent. The probable effect upon the jury determines whether the conduct or language of the judge amounts to an expression of opinion which will entitle the defendant to a new trial. See State v. McEachern, 283 N.C. 57, 194 S.E.2d 787 (1973) (former G.S. 1-180). When considered in light of its probable effect upon the jury, we find that the attempt by the trial judge to explain the reason for his failure to comply with the jury's request constituted an impermissible expression of opinion in violation of G.S. 15A-1222 and 1232 which will require a new trial.

The defendant also contends that Judge Bailey erred in denying his motion for a rehearing upon his pretrial motion to suppress which had been previously denied. Our disposition of this case makes it unnecessary for us to discuss this contention other than to note that nothing alleged by the defendant in his motion for rehearing and supporting affidavits required Judge Bailey to rehear the motion which had previously been finally denied.

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