STATE of North Carolina
v.
Otha James BELL.
No. 8012SC65.
Court of Appeals of North Carolina.
August 19, 1980.*204 Atty. Gen. Rufus L. Edmisten by Associate Atty. Francis W. Crawley, Raleigh, for the State.
Asst. Public Defender James R. Parish, Fayetteville, for defendant-appellant.
CLARK, Judge.
Defendant contends that the trial court committed reversible error by permitting the jury during deliberation to take three witnesses' statements into the jury room in violation of N.C.Gen.Stat. § 15A-1233, which statute provides in relevant part:
"(b) Upon 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. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, he must, upon request, instruct the jury not to conduct any experiments with the exhibit." [Emphasis added.]
We do not agree with defendant's contention. There is no doubt that, pursuant to N.C.Gen.Stat. § 15A-1233(b), supra, it was error for the trial court to submit the statements to the jury without the consent of defendant. The question before us, then, is whether such error is sufficiently prejudicial to warrant a new trial. "A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. . . ." N.C.Gen.Stat. § 15A-1443(a).
Defendant, however, correctly cites Gooding v. Pope, 194 N.C. 403, 140 S.E. 21 (1927); Brown v. Buchanan, 194 N.C. 675, 140 S.E. 749 (1927); Nicholson v. Eureka Lumber Co., 156 N.C. 59, 72 S.E. 86 (1911); Williams v. Thomas, 78 N.C. 47 (1878); Burton v. Wilkes, 66 N.C. 604 (1872); Watson v. Davis, 52 N.C. 178 (1859) and Outlaw v. Hurdle, 46 N.C. 150 (1853), for the proposition that at common law it was reversible error to allow, over objection, the jury to take evidence into the jury room in civil cases. The defendant explains, in addition, that our Supreme Court has also stated in dicta that it was error to allow, over objection, the jury to take evidence into the jury room in a criminal case. State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819 (1940).
We note, however, that in State v. Haltom, 19 N.C.App. 646, 199 S.E.2d 708 (1973), cert. denied, 284 N.C. 619, 201 S.E.2d 691 (1974), written prior to the enactment of N.C.Gen.Stat. § 15A-1233, this Court held that prejudice must be shown in order that permission to take evidence into the jury room be reversible error. See also, Gooding v. Pope, supra, where the court found no *205 prejudicial error and State v. Stephenson, supra, 218 N.C. at 265, 10 S.E.2d 819 where the court stressed the "especially objectional" features of the writings sent to the jury room. In consideration of the rule that statutes must be construed to be in derogation of common law, we elect to reaffirm State v. Haltom in view of N.C.Gen.Stat. § 15A-1443(a). See, Brown v. Buchanan, supra, 194 N.C. at 679, 140 S.E. 749 (effect of statute on this common law rule). Defendant neither raised at the trial level, nor argued for the first time on appeal (were he allowed to do so), that his constitutional right to a jury trial has been denied, and we do not address that question; consequently, N.C.Gen.Stat. § 15A-1443(b) does not apply.
We have carefully considered defendant's argument that the error was in fact prejudicial because the three written statements, set out in detail above, presented the State's case in the strongest possible light while points elicited during the trial testimony of Betty Smith and Phyllis Denise LeSane, also set out in detail above, were not allowed to be taken back to the jury room. In particular, defendant argues that the statements sent to the jury room did not fully show that McCoy was the aggressor, as did the testimony presented at trial. We note, however, that the statement of Betty Mae Smith sent to the jury room did in fact indicate that "Pondie got mad"; that Pondie said that defendant owed Betty money and that defendant and Pondie argued while in defendant's house. That Pondie said he would "up" defendant as well as defendant's statement that Pondie was "messing" with him were also included in defendant's statement sent to the jury. The evidence against defendant, both the testimony presented at trial and that presented in the statements sent to the jury, was substantial. Even considering that testimony showing Ms. Smith's relationship to the deceased, hence her potential bias, was not sent to the jury room, such evidence was presented to the jury at trial. Defendant has failed to meet his burden of showing how the alleged error would have changed the outcome of the trial.
For the same reason, we find that the error, if any, of the trial court in failing to submit defendant's first statement to the jury is without prejudice to the defendant. In addition, we note that N.C.Gen.Stat. § 15A-1233(b) does not require a trial judge to submit all other statements to the jury and, in light of the fact that a portion of defendant's first statement had been deleted, we cannot say that the trial court abused its discretion in refusing to allow the jury to take this statement into the jury room.
No error.
MORRIS, C. J., and ERWIN, J., concur.