1
No. 422A01TWENTY-SEVEN A DISTRICT
SUPREME COURT OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
)From Gaston
v.)99 CrS 9581-82
)
JEFFREY NEAL DUKE)
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DEFENDANT’S MOTION FOR A NEW TRIAL
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1
INDEX
table of authorities...... ii
Introduction
Procedural History
Legal Analysis
A.The State’s Failure And Inability To Provide Defendant With A Transcript Of His Trial Deprives Defendant Of Substantial Rights And Entitles Him To A New Trial.
B.Applicability Of Rule 2.
CERTIFICATE OF SERVICE
VERIFIcATION...... 14
EXHIBITS
TABLE OF AUTHORITIES
Cases
Anders v. California,
386 U.S. 738, 18 L.Ed.2d 493 (1967)...... 8
Britt v. North Carolina,
404 U.S. 226, 30 L.Ed.2d 400 (1971)...... 7
Draper v. Washington,
372 U.S. 487, 9 L.Ed.2d 899 (1963)...... 6
Ellis v. United States,
356 U.S. 674, 2 L.Ed.2d 1060 (1958)...... 8
Eskridge v. Washington State Board,
357 U.S. 214, 2 L.Ed.2d 1269 (1958)...... 6
Griffin v. Illinois,
351 U.S. 12, 100 L.Ed. 891 (1956)...... 6
Hardy v. United States,
375 U.S. 277, 11 L.Ed.2d 331 (1964)...... 8
Lane v. Brown,
372 U.S. 477, 9 L.Ed.2d 892 (1963)...... 7
State v. Jackson,
59 N.C. App. 615, 297 S.E.2d 610 (1982)...... 6
State v. McNeill,
33 N.C. App. 317, 235 S.E.2d 274 (1977)...... 8
State v. Neely,
21 N.C. App. 439, 204 S.E.2d 531 (1974)...... 10
State v. Rankin,
306 N.C. 712, 295 S.E.2d 416 (1982)...... 6
State v. Rich,
13 N.C. App. 60, 185 S.E.2d 288 (1971), appeal dismissed, 280 N.C. 304, 186 S.E.2d 179 (1972) 5
State v. Robinson,
83 N.C. App. 146, 349 S.E.2d 317 (1986)...... 7
State v. Roux,
263 N.C. 149, 139 S.E.2d 189 (1964)...... 5
State v. Sanders,
312 N.C. 318, 321 S.E.2d 836 (1984)...... 6
State v. Teat,
22 N.C. App. 484, 206 S.E.2d 732, cert. denied, 285 N.C. 667, 207 S.E.2d 765 (1974)10
Statutes
N.C. Gen. Stat. § 7A-27...... 5
N.C. Gen. Stat. § 7A-32...... 9
N.C. Gen. Stat. § 7A-95(c)...... 5
N.C. Gen. Stat. § 7A-450 et. seq...... 5
N.C. Gen. Stat. § 15A-1415...... 9
N.C. Gen. Stat. § 15A-1418(c)...... 13
N.C. Gen. Stat. § 15A-1444(a)...... 5
Other Authorities
"Court Records Missing, Jury Foreman Threatened as Trial Comes To Close," The Gaston Gazette, March 23, 2001 3
N.C. R. App. P. 2...... 1,9,10,11
N.C. R. App. P. 10(c)(4)...... 8
N.C. R. App. P. 21...... 9
Constitutional Provisions
United States Constitution
Sixth Amendment...... 1
Eighth Amendment...... 1,8
Fourteenth Amendment...... 1,6
North Carolina Constitution, Art. I
§ 19...... 1,6
§ 23...... 1
1
No. 422A01TWENTY-SEVEN A DISTRICT
SUPREME COURT OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
)From Gaston
v.)99 CrS 9581-82
)
JEFFREY NEAL DUKE)
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DEFENDANT’S MOTION FOR A NEW TRIAL
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TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:
NOW COMES defendant-appellant, Jeffrey Neal Duke, through undersigned counsel, and respectfully moves this Court, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure; the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; and Article I, §§ 19 and 23 of the North Carolina Constitution, to reverse defendant’s convictions for two counts of first-degree murder and his sentences of death, and to order a new trial on both charges. Pending resolution of this motion, defendant respectfully requests that the Court enter an order tolling the time periods for perfecting the appeal in this case. As grounds for this motion, defendant shows the following:
Introduction
1. Defendant respectfully asks this Court to reverse his convictions for two counts of first-degree murder and his sentences of death because nearly the entire set of the stenographic notes and audiotapes of the two court reporters of this eighteen-day capital trial have disappeared. As will be shown in detail below, the court reporters’ notes and tapes for seventeen of the eighteen days of the trial disappeared from the court reporters’ office on the last day of the penalty phase of the trial, the missing notes and tapes have not yet been found, law enforcement authorities have no hard leads about the location of the missing notes and tapes, the court reporters cannot prepare the trial transcripts without those notes and tapes, and defendant’s trial attorneys cannot reconstruct the trial from their own notes and memories. Consequently, it is impossible for undersigned counsel to provide effective appellate representation of his client or for this Court to conduct a meaningful and adequate review of this case on appeal.
Procedural History
2. On April 6, 1999, defendant was indicted for two counts of murder. Copies of the indictments are attached as exhibits to this motion. On March 15, 2001, defendant was convicted of two counts of first-degree murder. On March 22, 2001, defendant was sentenced to death on both counts. Copies of the Issues and Recommendations as to Punishment and the Judgment and Commitment Orders are attached to this motion as exhibits.
3. Defendant’s trial in the Superior Court of Gaston County, before the Honorable Claude S. Sitton, began on February 26, 2001 and ended on March 22, 2001. There were two court reporters. Official Court Reporter Mitzy Bondurant was the reporter for the first ten days of the trial. Official Court Reporter Teresa H. Bland was the reporter for the last eight days of the trial. The state was represented by Assistant District Attorneys Mikko Red Arrow and Jeanne Miller. Defendant’s trial counsel were Mr. Alan G. Cloninger and Mr. William A. Anthony of Gaston County.
4. Ms. Bondurant used audiotapes to report. Ms. Bland used stenographic notes to report. See the affidavits of Mitzy Bondurant and Teresa H. Bland (hereinafter “Bondurant Affidavit” and “Bland Affidavit”), attached to this motion as exhibits.
5. During the trial, Ms. Bondurant and Ms. Bland kept their notes and tapes in their shared office in the Gaston County Courthouse. They kept the office locked at all times. See Bondurant and Bland Affidavits.
6. On March 22, 2001, the last day of the trial, during penalty phase jury deliberations, Ms. Bland discovered that all of her notes of the previous seven days of the trial were missing from the court reporters’ office. Ms. Bondurant then discovered that her tapes and backup tapes of the first ten days of the trial also were missing from the office. See Bondurant and Bland Affidavits; see also “Court Records Missing, Jury Foreman Threatened as Trial Comes to Close,” The Gaston Gazette, March 23, 2001, attached to this motion as an exhibit.
7. The only notes and tapes of the trial that either of the court reporters still have are Ms. Bland’s notes for March 22, 2001, the last day of the trial. Ms. Bland has her notes for that day because those notes were not in the court reporters’ office when her other notes and Ms. Bondurant’s tapes disappeared. See Bondurant and Bland Affidavits. Ms. Bland has not yet prepared a transcript of court proceedings of March 22, 2001. Undersigned counsel has a 46-page transcript of a pre-trial motions hearing held on December 21, 2000.
8. After Ms. Bland and Ms. Bondurant realized that their notes and tapes were missing, the Gastonia Police Department, the Gaston County Sheriff’s Department, and the State Bureau of Investigation (“SBI”) began an investigation of the disappearance. On September 26, 2001 – over six months after the disappearance of the notes and tapes – Assistant District Attorney Mikko Red Arrow and SBI Special Agent David Nance confirmed to undersigned counsel that none of the missing notes or tapes had been found as of that date. Special Agent Nance told undersigned counsel on September 26, 2001 that law enforcement authorities do not have any solid leads about the location of the missing tapes and notes or about the cause of their disappearance.
9. Ms. Bondurant and Ms. Bland have stated in affidavits that they cannot prepare transcripts of seventeen of the eighteen days of the trial without their notes and tapes.
10. Defense trial counsel Cloninger and Anthony have told undersigned counsel that they cannot reconstruct such a large portion of this eighteen-day capital trial from their own notes and memories. See Affidavit of Benjamin Dowling-Sendor, attached to this motion as an exhibit.
11. The only transcript that undersigned counsel currently possesses is the 46-page transcript of the December 21, 2000 pre-trial motions hearing.
12. On March 22, 2001, Judge Sitton entered Appellate Entries, appointing the Office of the Appellate Defender to represent Mr. Duke in this capital appeal. A copy of the Appellate Entries is attached as an exhibit to this motion.
13. On March 22, 2001, Deputy Clerk of Court Kelly D. Honeycutt delivered the Appellate Entries to court reporters Bondurant and Bland. Consequently, the trial transcript initially was due to be delivered on July 27, 2001.
14. On July 27, 2001 and on August 29, 2001, this Court entered orders extending the court reporters’ time to prepare the transcript to September 26, 2001. In motions requesting those extensions, undersigned counsel notified the Court about the disappearance of the notes and tapes and asked for the extensions in order to give law enforcement authorities a reasonable opportunity to find the missing notes and tapes. Copies of the Courts order of July 27, 2001 and August 29, 2001 are attached as exhibits to this motion. On September 26, 2001 defendant filed another motion for an extension of time for the court reporters to prepare the transcript, to October 2, 2001, to give undersigned counsel a chance to complete this motion. As explained above, the missing notes and tapes have not been found, the court reporters cannot prepare transcripts for seventeen of the eighteen days of the trial, and defense trial counsel cannot recreate the trial proceedings.
Legal Analysis
15.Under North Carolina law, every defendant in a criminal case who is convicted of a felony upon a plea of not guilty possesses an absolute right to appeal his conviction to the appellate division. N.C. Gen. Stat. § 15A-1444(a); N.C. Gen. Stat. § 7A-27. Furthermore, an indigent appellant has “a constitutional right to have the state provide him with means to secure a full appellate review of his trial,” State v. Roux, 263 N.C. 149, 157, 139 S.E.2d 189, 195 (1964), and is entitled to receive a transcript of his trial at state expense in order to perfect an appeal. State v. Rich, 13 N.C. App. 60, 63, 185 S.E.2d 288, 290 (1971), appeal dismissed, 280 N.C. 304, 186 S.E.2d 179 (1972); N.C. Gen. Stat. § 7A-450 et. seq. Pursuant to statute, the court reporter’s notes, tapes, or other records of a trial in Superior Court are the property of the State, and it is the duty of the Clerk of Court to maintain custody of them. N.C. Gen. Stat. § 7A-95(c).
16.This case presents an unusual set of circumstances in which the state is unable to supply the indigent defendant with the transcript to which he is legally entitled because the court reporters’ notes and tapes of the trial have disappeared nearly in their entirety. Those notes and tapes disappeared on the last day of the trial, and law enforcement agencies have not found any trace of them. Without a transcript of seventeen of the eighteen days of trial, it is impossible for undersigned counsel to provide effective appellate representation of his client or for this Court to conduct a meaningful and adequate review of the case on appeal. It is submitted that, under these circumstances, defendant is deprived not only of his statutory right to appeal but his state and federal constitutional due process rights to a full and effective appellate review and to the effective assistance of counsel. The appropriate relief for the denial of these rights is a new trial. See State v. Sanders, 312 N.C. 318, 321 S.E.2d 836 (1984) (per curiam); State v. Rankin, 306 N.C. 712, 295 S.E.2d 416 (1982); State v. Jackson, 59 N.C. App. 615, 297 S.E.2d 610 (1982).
A.The State’s Failure And Inability To Provide Defendant With A Transcript Of His Trial Deprives Defendant Of Substantial Rights And Entitles Him To A New Trial.
17.Our state and federal courts have long recognized the importance of a complete record of the trial court proceedings to a full and meaningful appellate review. Defendant submits that the absence of a transcript or any substantially equivalent alternative deprives him of his constitutional rights to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 19 of the Constitution of North Carolina.
18.In Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891 (1956), the United States Supreme Court determined that a transcript was absolutely necessary for the defendant to exercise his right to effective appellate review under existing appellate practice and that the denial of a free transcript to an indigent defendant under those circumstances constituted a denial of constitutional rights guaranteed by the Fourteenth Amendment. See State v. Rich, 13 N.C. App. at 63, 185 S.E.2d at 290. Since its decision in Griffin, the Supreme Court has consistently reiterated that an indigent defendant is entitled to a free transcript of prior proceedings whenever the transcript is necessary for an effective defense or appeal. Thus, for example, the Court has held, applying the principles articulated in Griffin, that it is unconstitutional to deny a free transcript to an indigent defendant on the basis of a trial court’s decision that there was no reversible error in the trial, see Eskridge v. Washington State Board, 357 U.S. 214, 2 L.Ed.2d 1269 (1958), or that the indigent’s appeal is frivolous, see Draper v. Washington, 372 U.S. 487, 9 L.Ed.2d 899 (1963), since neither conclusion can be an adequate substitute for the full appellate review available to non-indigents. See also Lane v. Brown, 372 U.S. 477, 9 L.Ed.2d 892 (1963) (holding unconstitutional a procedure which permitted a public defender to deprive an indigent of his appeal by refusing to order a transcript simply because counsel thought the appeal would be unsuccessful).
19.While, in each of the foregoing cases, the defendants were effectively denied their right to appeal solely because of indigency, and the constitutional right implicated was the right of an indigent to the same protection of the law as a non-indigent, these decisions also explicitly recognized the critical importance of a transcript to the defendants’ efforts to obtain effective appellate review. In the case at bar, defendant is being denied his right to appeal, not because he is indigent, but because no transcript of virtually the entire trial is available. Nevertheless, the detrimental impact is the same, since a transcript is essential for defendant to obtain meaningful appellate review. See State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986) (“It is established that all defendants, including indigent parties, are entitled to transcript when appealing to a higher court or upon retrial when necessary for an effective defense.”)
20.Historically, our courts have identified two factors that are relevant to a determination of need for a transcript in a particular case: (1) the value of the transcript to the defendant in presenting an effective defense or appeal, and (2) the availability of alternative devices which are substantially equivalent to a transcript. See Britt v. North Carolina, 404 U.S. 226, 227, 30 L.Ed.2d 400, 403 (1971); State v. Rankin, 306 N.C. at 716, 295 S.E.2d at 419. However, in Britt, the Supreme Court made clear that a defendant need show no particularized need for a transcript nor bear the burden of proving that some alternative suggested by a court or the state is inadequate. While the defendant’s conviction in Britt was affirmed because counsel conceded in oral argument the availability of an informal alternative that was substantially equivalent to a transcript, defendant-appellant makes no such concession here. As the Court of Appeals stated in State v. Jackson, in which a new trial was ordered because of the denial to the accused of the effective use of a transcript of a previous mistrial in preparing for retrial:
The benefits of the availability of a transcript . . . to the State as well as the defendant, are manifest. No longer should the appellate courts be called upon to consider the casuistic arguments advanced to justify the absence of what has come to be a common tool in preparation for an appeal or retrial.
59 N.C. App. at 618, 207 S.E.2d at 612, quoting State v. McNeill, 33 N.C. App. 317, 323, 235 S.E.2d 274, 277-278 (1977).
21.The need for a transcript is particularly strong where, as in this case, appellate counsel did not represent the defendant at trial. Moreover, this is a capital case triggering the Eighth Amendment requirement for the utmost case in conducting appellate review. In this situation, the absence of a transcript has the effect of depriving defendant not only of due process but also of his state and federal constitutional rights to the effective assistance of counsel and against cruel and unusual punishment.
22.An appointed appellate attorney in a criminal case has a duty to investigate conscientiously and diligently all possible grounds for appeal. See, e.g., Ellis v. United States, 356 U.S. 674, 2 L.Ed.2d 1060 (1958); Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967). This duty includes the identification and argument of not only those errors to which prompt objection was made at trial, but also any “plain errors” or defects affecting substantial rights which were not brought to the attention of the court by trial counsel. See Hardy v. United States, 375 U.S. 277, 280, 11 L.Ed.2d 331, 334 (1964); N.C. R. App. P. 10(c)(4). Since the undersigned appellate counsel did not represent defendant at trial, his knowledge of those proceedings (and capacity to identify trial errors) necessarily must be derived from the written record. The United States Supreme Court has particularly emphasized the importance of a transcript under these circumstances, stating “[W]hen, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the Court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that.” Hardy, 375 U.S. at 280, 11 L.Ed.2d at 334.
23.In some instances, the appropriate relief for a defendant who has been erroneously denied a transcript is simply to supply the needed transcript. See, e.g., Hardy. However, when no transcript is available, the only logical remedy is to order a new trial. See State v. Sanders, supra.
24.Defendant anticipates that the State might argue that the trial attorneys could reconstruct the trial record from their own notes and memories. Any such argument would be implausible. It is impossible to reconstruct seventeen days of a capital trial with the reliability required for meaningful appellate review. As shown in the attached affidavit of Benjamin Dowling-Sendor, defendant’s trial attorneys have both said that they cannot reconstruct the trial record from their notes and memories.
B.Applicability Of Rule 2.
25.Rule 2 of the North Carolina Rules of Appellate Procedure provides that:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may . . . suspend or vary the requirements or provisions of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
26.Defendant has chosen the vehicle of a motion under Appellate Rule 2 to present this matter to the Court for several reasons. First, the total absence of a transcript does not appear to fall within any of the statutory grounds for a motion for appropriate relief under N.C. Gen. Stat. § 15A-1415, or any grounds for a petition for a writ of certiorari under N.C. Gen. Stat. § 7A-32 and N.C. R. App. P. 21.
27.Furthermore, defendant is moving under Rule 2 in the interest of judicial economy. As precedent, defendant respectfully directs this Court’s attention to the Court’s decision in State v. Sanders, supra. In Sanders, the defendant sought to challenge on appeal the adequacy and accuracy of the trial judge’s jury instructions at the penalty phase of a capital trial, in addition to other alleged errors. However, the portions of the instructions before the Court were riddled with misspelled words, incomplete sentences, and unintelligent phrases. Moreover, appellate counsel for the state and the defendant conceded that the transcript of the entire trial appeared to be incomplete and inaccurate, and that there was no way to improve the record on appeal from existing records of the original court reporter, who had moved out of state. Concluding that meaningful appellate review was precluded by the inaccurate and inadequate transcript and the resulting inability to formulate an adequate record, the Supreme Court elected, on its own motion, to exercise its powers under Rule 2 to vacate the judgments and order a new trial.