State v. McSpadden
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-576 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. Davidson County No. 11 CRS 52116 SHELDON O BRIAN MCSPADDEN Appeal by defendant from judgment entered 5 January 2012 by Judge Vance Bradford Long in Davidson County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Assistant Attorney General David Leon Gore, III, for the State. Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for defendant-appellant. HUNTER, Robert C., Judge. Defendant Sheldon O Brian McSpadden appeals from judgment entered upon a jury verdict finding him guilty of possession with intent to sell and deliver cocaine and selling cocaine. Defendant argues the trial court erred when it allowed the jury, during its deliberations, to view a still frame from a video which showed him selling cocaine to an undercover officer. -2Defendant contends the still image constitutes evidence that was modified and manipulated from the manner in which it was presented at trial, and the court violated his Sixth Amendment right to confront the witnesses against manipulated still video frame to the jury. him by showing the We disagree. Pursuant to N.C. Gen. Stat. § 15A-1233(a), [t]he trial court has the discretionary authority to allow the jury, upon request, to reexamine material received review portions of the testimony. in evidence and to State v. McVay, 174 N.C. App. 335, 339-40, 620 S.E.2d 883, 886 (2005). [A] court s ruling under N.C. Gen. Stat. § 15A-1233(a) is a discretionary decision and it ordinarily will be reviewed only for an abuse of discretion. discretion Id. at results 340, where 620 the S.E.2d court s at 886. ruling Abuse is of manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). At trial, substantive the purposes State and introduced without into objection evidence, from for defendant, a video recording of the purchase of cocaine from defendant by an undercover officer. The video was played during the testimony of the undercover officer, and it was paused at one point to -3identify defendant. During its deliberations the jury requested to see the paused picture of the defendant from the video as it was originally presented. the viewing, stating Defendant s trial counsel objected to that the jury had been presented the evidence and that it was up to the jurors to make a decision, and the prosecutor admitted that it had no way of pinpointing the exact undercover point at officer s which the video testimony. The was paused trial during court the overruled defendant s objection and directed the prosecutor to prepare the video to be shown to the jury defendant s face could be seen. and to pause it so that The prosecutor conferred with the officer and set up the video to show the still image at about the spot where it had originally been paused during the officer s testimony, although the prosecutor conceded that it could have been off by a second in either direction[.] The jury was then permitted to view the paused video with no further objection from defendant. We find no abuse of discretion in the trial court s showing of the paused video showing defendant s face. The prosecution may not have paused the video at exactly the same instant it was paused during the officer s testimony. However, defendant has not shown that the paused recording as viewed by the jury during -4its deliberations was manipulated in any way such that the jury saw the recording in a form that was not presented at trial. Additionally, defendant s constitutional argument under the Sixth Amendment is not properly before this Court as his trial counsel Chapman, did not 359 object N.C. on 328, this 366, basis 611 at S.E.2d trial. 794, State 822 v. (2005) ( [C]onstitutional error will not be considered for the first time on appeal. ). Moreover, we note that defendant s Sixth Amendment argument would be without merit had he raised such an objection at trial because he had ample opportunity to crossexamine the undercover officer regarding when it was introduced at trial. the video recording Accordingly, we hold the trial court did not err in allowing the jury to view the paused video recording during its deliberations. Defendant also argues the trial judge expressed an impermissible opinion on the evidence when he stated, Members of the jury, I have selected this portion [of the video recording] for you to view, a paused picture of a face appearing in the window of [the undercover officer s car]. Defendant contends the trial court s statement likely caused the jury to give undue weight to the still image because the trial judge had -5told them that he selected the image. Defendant s argument is misplaced. It is well established that a trial judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222 (2011). Whether [a] judge s comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. . . . [I]t is only when the jury may reasonably infer from the evidence before it that the trial judge s action intimated an opinion as to a factual issue, the defendant s guilt, the weight of the evidence or a witness s credibility that prejudicial error results. State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). point Here, the trial judge s statement that he chose the at constitute which an the opinion video as to recording a was factual paused issue in does the not case, defendant s guilt, the weight of the evidence in the case, or a witness s credibility. The judge s statement was entirely neutral as to the content of the evidence presented to the jury and merely informed the jury that he made the ultimate decision regarding at what moment the video was paused for their viewing. -6Accordingly, we overrule this argument received a fair trial, free from error. No error. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e). and hold defendant
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