No. 10-1472 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

*************************************

STATE OF NORTH CAROLINA)

)

v.)FROM MECKLENBURGCOUNTY

) No. 09 CRS 228413-15

BRIAN KEITH GRIER) 09 CRS 60586

*************************************

DEFENDANT-APPELLANT’S BRIEF

*************************************

-i-

INDEX

TABLE OF CASES AND AUTHORITES...... ii

ISSUES PRESENTED ...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW. . . 3

STATEMENT OF THE FACTS ...... 3

ARGUMENT ...... 8

THE TRIAL COURT COMMITTED PLAIN ERROR

IN ADMITTING DEFENDANT’S PURPORTED CONFESSION WHEN THAT PURPORTED

CONFESSION WAS NEITHER VERIFIED BY DEFENDANT NOR A VERBATIM RECORD OF DEFENDANT’S WORDS ...... 8

THE TRIAL COURT COMMITTED PLAIN ERROR

IN ALLOWING OFFICER HOUSER TO TESTIFY

AND COMMENTON THE DEFENDANT’S POST-MIRANDA EXERCISE OF HIS RIGHT TO

SILENCE IN VIOLATION OF HIS RIGHTS

UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS

19 AND 23 OF THE NORTH CAROLINACONSTITUTION...... 13

THE TRIAL COURT COMMITTED PREJUDICIAL

ERROR IN FAILING TO CONDUCT THE JURY

TO THE COURTROOM AFTER THE JURY

REQUESTED TO REVIEW EVIDENCE IN

VIOLATION OF THE STATUTORY MANDATE

SET FORTH IN N.C.G.S. § 15A-1233(A) . . 18

THE TRIAL COURT COMMITTED PREJUDICIAL

ERROR IN FAILING TO ARREST JUDGMENT

ON EITHER DEFENDANT’S CONVICTION FOR

MISDEAMEANOR LARCENY OR DEFENDANT’S

CONVICTION FOR MISDEMEANOR POSSESSION

OF STOLEN GOODS PRIOR TO SENTENCING . . 25

-ii-

CONCLUSION ...... 27

CERTIFICATE OF SERVICE ...... 28

-iii-

TABLE OF CASES AND AUTHORITIES

Cases:

Doyle v. Ohio, 426 U.S. 610,

96 S.Ct. 2240 (1976)...... 14

N.C. Dep’t. of Env’t. & Natural

Resources v. Carroll, 358 N.C.

649, 599 S.E.2d 888 (2004)...... 18, 25

State v. Ashe, 314 N.C. 28, 331

S.E.2d 652 (1985) ...... 19

State v. Bartlett, 121 N.C. App. 521,

466 S.E.2d 302(2006)...... 10

State v. Best, 342 N.C. 502, 467

S.E.2d 45 (1996)...... 15

State v. Boykin, 298 N.C. 687, 259

S.E.2d 883 (1979) ...... 9

State v. Byers, 105 N.C. App. 377,

413 S.E.2d 586 (1992) ...... 9

State v. Cole, 293 N.C. 328, 237

S.E.2d 814 (1977) ...... 9

State v. Cummings, 346 N.C. 291, 488

S.E.2d 550 (1997) ...... 8

State v. Fox, 274 N.C. 277, 163

S.E.2d 492 (1968) ...... 10

State v. Fox, 277 N.C. 1, 175

S.E.2d 561 (1970) ...... 9

State v. Hager, ___ N.C. App. ___,

692 S.E.2d 404 (2010) ...... 26

State v. Helms, 93 N.C. App. 394, 378

S.E.2d 237 (1989) ...... 18

-iv-

State v. Jones, 355 N.C. 117, 125,

558 S.E.2d 97, 103 (2002) ...... 8, 14

State v. Ladd, 308 N.C. 272, 302

S.E.2d 164 (1983) ...... 15

State v. Locklear, 172 N.C. App. 249,

616 S.E.2d 334 (2005) ...... 13

State v. Love, 156 N.C. App. 309, 318,

576 S.E.2d 709, 714 (2003)...... 18

State v. McLaughlin, 320 N.C. 564, 359

S.E.2d 768 (1987) ...... 20

State v. Owens, 160 N.C. App. 494, 586

S.E.2d 519 (2003) ...... 26

State v. Perry, 305 N.C. 225,287

S.E.2d 810 (1982) ...... 25

State v.Ross, 322 N.C. 261, 367 S.E.2d

889 (1988)...... 16

State v. Walker, 269 N.C. 135, 152

S.E.2d 133 (1967) ...... 9

State v. Ward, 354 N.C. 231, 555

S.E.2d 251 (2001) ...... 14

State v. Wilson, 363 N.C. 478, 681

S.E.2d 325 (2009) ...... 19

Staton v. Brame, 136 N.C. App. 170,

523 S.E.2d 424 (1999) ...... 25

Statutes:

N.C. Gen. Stat. §§ 7A-27(b)(2010). . . . . 3

N.C. Gen. Stat. § 15A-1233(a)(2010). . . . 18

N.C. Gen. Stat. § 15A-1446(d)(18) (2005) . 25

No. 10-1472 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

*************************************

STATE OF NORTH CAROLINA)

)

v.)FROM MECKLENBURGCOUNTY

) No. 09 CRS 228413-15

BRIAN KEITH GRIER) 09 CRS 60586

*************************************

DEFENDANT-APPELLANT’S BRIEF

*************************************

ISSUES PRESENTED

DID THE TRIAL COURT COMMIT PLAIN ERROR IN ADMITTING DEFENDANT’S PURPORTED CONFESSION WHEN THAT PURPORTED CONFESSION WAS NEITHER VERIFIED BY DEFENDANT NOR A VERBATIM RECORD OF DEFENDANT’S WORDS?

DID THE TRIAL COURT COMMIT PLAIN ERROR IN ALLOWING OFFICER HOUSER TO TESTIFY AND COMMENT ON THE DEFENDANT’S POST-MIRANDA EXERCISE OF HIS RIGHT TO SILENCE IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 19 AND 23 OF THE NORTH CAROLINA CONSTITUTION?

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR IN FAILING TO CONDUCT THE JURY TO THE COURTROOM AFTER THE JURY REQUESTED TO REVIEW EVIDENCE IN VIOLATION OF THE STATUTORY MANDATE SET FORTH IN N.C.G.S. § 15A-1233(A)?

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR IN FAILING TO ARREST JUDGMENTON DEFENDANT’S CONVICTION FOR MISDEMEANOR POSSESION OF STOLEN GOODS PRIOR TO SENTENCING?

-1-

STATEMENT OF THE CASE

Defendant-appellant, Brian Grier, was indicted on charges of Felony Breaking or Entering a Motor Vehicle, Misdemeanor Possession of Stolen Goods and Misdemeanor Larceny on 6 July 2009. (R pp 2-4). Mr. Grier was subsequently indicted for having obtained Habitual Felon status on 8 September 2009. (R pp 5-6). Mr. Grier entered a plea of not guilty to all charges and this matter came on for trial during the 3 June 2010 criminal session of Mecklenburg County Superior Court before the Honorable Yvonne Mims Evans, presiding Superior Court Judge. (T Vol I p 1).

Mr. Grier was found guilty of all charges by unanimous jury verdict on 4 June 2010. (R pp 26-28). Following the proceedings, Mr. Grier pled guilty to having obtained the status of Habitual Felon. (R pp 29-32). All charges were consolidated for one judgment and Mr. Grier was sentenced in the presumptive range to an active term of one-hundred thirty months minimum to one-hundred sixty-five months maximum in the North Carolina Department of Correction. (R pp 36-37). Mr. Grier entered oral Notice of Appeal in open court on 4 June 2010. (T Vol II p 284).

The original due date for delivery of the transcripts in this case was 9 August 2010. (R pp 39, 41). Mr. Grier received a thirty day extension for delivery of the transcripts from the trial court on 26 July 2010. (R p 44). The trial transcript was electronically delivered to the parties by court reporter Jillian Turner on 8 September 2010. (T Vol II p 286). The Proposed Record on Appeal was served on the Mecklenburg County District Attorney’s Office on 11 October 2010 and the Record on Appeal was settled by operation of law on 15 November 2010. (R pp 48). The settled Record on Appeal was filed in the North Carolina Court of Appeals on 29 November 2010 and docketed on 2 December 2010. (R p 1). The Printed Record on Appeal was mailed by the Clerk of Court of the North Carolina Court of Appeals to the parties on 3 December 2010.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Mr. Grier appeals from a final judgment of the Mecklenburg County Superior Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2010).

STATEMENT OF THE FACTS

The State’s Evidence

Around 8:00 a.m. on the morning of 12 June 2009 Kim Harden, a teacher at Elizabeth Traditional School in Charlotte, North Carolina, arrived at the school parking lot for a teacher workday. (T Vol I p 106). Upon pulling into the parking lot, she observed broken glass on the pavement and noticed the window of a car belonging to Courtney Pender, a fellow teacher, was broken out. (T Vol I pp 106-107). She then placed a call into the school to let Ms. Pender know her car had been broken into. (T Vol I p 107).

After she placed the call she observed a black male standing behind a tree about fifteen feet away on a hill next to the parking lot. The individual stated to her, “hey you, hey you, what you got” to which she responded she “had a cell phone with 911 on it.” (T Vol I pp 108, 115). The individual then walked away down the hill. Ms. Harden testified at trial he was carrying a black bag and a white monogrammed tote bag which she knew belonged to Ms. Pender. (T Vol I p 109). On cross-examination, Ms. Harden acknowledged that in her written statement given to the police shortly after the incident she stated the individual she saw on the hill had a black bag but she did not mention him having the white tote bag belonging to Ms. Pender. (T Vol I p 128).

After Ms. Harden called into the school, Ms. Pender came outside to the parking lot. (T Vol I p 123). She noticed her camera and white monogrammed tote bag had been taken from her vehicle. (T Vol I p 139). Ms. Pender then got into Ms. Harden’s car and they began to drive around looking for the person who Ms. Harden had seen on the hill. (T Vol I p 110, 123). After about five minutes of driving, Ms. Pender observed a black male carrying a black trash bag and her white monogrammed tote bag in the parking lot of a restaurant called Jackalope Jacks. (T Vol I pp 135-136). Ms. Harden pulled next to the individual and called 911 while Ms. Pender got out of the car and told the individual he had her tote bag. The individual then gave Ms. Pender her tote bag and her camera, and walked away. (T Vol I p 141). After he walked away, Ms. Harden and Ms. Pender attempted to follow the individual but lost touch with him. (T Vol I pp 126, 141).

Shortly thereafter, Ms. Harden and Ms. Pender met with Officer Frank Cantrell of the Charlotte Police Department and described the individual they had seen as a black male wearing a Tommy-Hilfiger t-shirt, baseball cap, sunglasses and Nike shoes with multi-colored shoelaces. (T Vol I p 157). This description was broadcast over the police radio. Officer Jason Hoovan of the Charlotte Police Department heard this description, observed Mr. Grier walking down the road, believed Mr. Grier matched this description and placed Mr. Grier under arrest. (T Vol I pp 147-148). Officer Hoovan noted in his testimony that Mr. Grier was cooperative at the time of his arrest. (T Vol I p 147).

About twenty to twenty-five minutes after encountering the individual in the parking lot, Ms. Pender was taken to the location where Mr. Grier was arrested and identified him from about twenty feet away as the person she saw at Jackalope Jacks. (T Vol I p 142). She also identified Mr. Grier at trial as the person who had her tote bag and camera. (T Vol I p 136).

Ms. Harden testified she believed the person she saw near the school parking lot was the same person she and Ms. Pender saw in the Jackalope Jacks parking lot. (T Vol I p 124). At trial, she also identified Mr. Grier as the person she saw in the school parking lot. (T Vol I pp 109-110). In her statement to police she described the person she saw as being five feet tall or about her height and wearing blue jeans, a black pullover with a Tommy Hilfiger emblem, a khaki colored hat and Nike shoes with blue shoelaces. (T Vol I p 114). She admitted in her testimony, however, that the Defendant was “much taller than her” and was sure that he had different color shoelaces. (T Vol I p 114). She also testified at trial she was sure she had seen Mr. Grier at a pizza restaurant about one or two months prior to the trial. (T Vol I pp 129-130). Ms. Harden was never asked to identify Mr. Grier from a lineup. (T Vol I p 119).

The Defendant’s Evidence

The only witness called by Mr. Grier was Polly Raimer, the records manager from the Mecklenburg County Sheriff’s office. (T Vol II p 183). Ms. Raimer identified two documents printed from the Offender Management System at the MecklenburgCounty jail. (T Vol II p 184). These records were admitted into evidence and indicated Mr. Grier had been in custody at the Mecklenburg County Jail from the time of his arrest on 12 June 2009 up to the date of trial. (T Vol II pp 184-185). Ms. Rainer also stated inmates awaiting trial in MecklenburgCounty would not have been allowed work release. (T Vol II p 187).

The State’s Rebuttal

Over Defendant’s objection, the State was allowed to re-call Officer Thomas Howard to testify during rebuttal. Officer Howard testified after Mr. Grier was arrested, he gave Mr. Grier Miranda warnings and interviewed Mr. Grier. (T Vol II p 197). During the interview he asked Mr. Grier questions about the incident and handwrote a statement for Mr. Grier. (T Vol II pp 200, 203). This statement was subsequently introduced into evidence. (T Vol II p 203; R p 11).

According to the statement written by Officer Houser, Mr. Grier stated he was homeless, had been at a park which abutted Elizabeth Traditional School and found a white bag. (T Vol II pp 201, 206; R p 11). He later walked down the street and was approached by a white female who got out of a car and told him he had her white bag. He told the woman he found the bag in the park gave the bag back to her and then walked away. (T Vol II p 201; R p 11).

Officer Houser testified after he wrote Mr. Grier’s statement he explained to Mr. Grier the statement was a bunch of lies and asked Mr. Grier if he wanted to sign a statement and testify to a bunch of lies. (T Vol II p 205). At that point Officer Houser told the jury Mr. Grier “got highly agitated at me, and refused to talk to me anymore, and said he refused to sign the statement and said he didn’t have anything else to say to me.” (T Vol II p 202). Mr. Grier never signed the statement. (R p 11).

ARGUMENT

THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING DEFENDANT’S PURPORTED CONFESSION WHEN THAT PURPORTED CONFESSION WAS NEITHER VERIFIED BY DEFENDANT NOR A VERBATIM RECORD OF DEFENDANT’S WORDS.

Standard of Review

Mr. Grier did not object to the admission of his purported confession at trial. Admission of a confession for which defense counsel did not file a motion to suppress and did not object to is reviewed for plain error. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997). Under the plain error standard of review, a defendant is entitled to reversal “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).

Discussion of Relevant Legal Authority

The general rule is that a “statement of an accused reduced to writing by another person, where it was freely and voluntarily made, and where it was read to or by the accused and signed or otherwise admitted by him as correct shall be admissible against him.” State v. Boykin, 298 N.C. 687, 693, 259 S.E.2d 883, 887 (1979). However, North Carolina law prohibits the admission of a defendant’s purported confession or statement if it is “reduced to writing by another person” and the defendant has not “indicated his acquiescence in the correctness of the writing[.]” State v. Walker, 269 N.C. 135, 141, 152 S.E.2d 133, 137 (1967). Nonetheless, the written instrument is admissible, without regard to the defendant’s acquiescence, if it is a “verbatim record of the questions [asked] . . . and the answers” given by him. State v. Byers, 105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992); see also State v. Cole, 293 N.C. 328, 334-35, 237 S.E.2d 814, 818 (1977)(officer wrote down statements in longhand in “defendant’s own words” and swore they were defendant's actual words); State v. Fox, 277 N.C. 1, 25, 175 S.E.2d 561, 576 (1970) (sheriff testified that the transcription was an “exact copy” of the conversation between himself and defendant).

Argument

In the instant case, the challenged evidence – State’s exhibit 8 -- was inadmissible because it was admitted as evidence of Mr. Grier’s written inculpatory statement or confession even though it was written by Officer Houser and Mr. Grier had not acquiesced in its correctness. During Officer Houser’s testimony he and the prosecutor repeatedly referred to the evidence as the defendant’s “statement”, exhibit 8 is labeled “Adult Voluntary Statement” and during jury instructions the trial court instructed the jury regarding the “admission” of the Defendant. (T Vol II pp. 203-204, 209, 259). Mr. Grier, however, never acquiesced to the correctness or accuracy of the purported confession. In fact, it is clear from both the testimony of Officer Houser and from the actual statement itself that Mr. Grier refused to sign and adopt the statement. (T Vol II p 202; R p 11).

Neither was the purported statement admissible under the theory that exhibit 8 was a verbatim, word-for-word, exact record of the questions asked and answers given during the 12 June 2009 interrogation. Officer Houser testified he:

. . .asked if [Mr. Grier would] like speak with me about that one particular incident. He said yes, he would. I just had him tell me – go back earlier that evening, that night, and tell me everything that he did from that night to where he got to IndependencePark.

(T Vol II p 200). Officer Houser then proceeded to testify regarding what Mr. Grier allegedly told him but did not mention what, if any, further questions he asked Mr. Grier while he was giving his statement. (T Vol II p 201). Officer Houser’s narrative testimony was not a word for word recitation of the statement contained in State’s exhibit 8. (T Vol II p 201; R p 11). More importantly, Officer Houser never testified that either his narration of Mr. Grier’s statement at trial or the contents of State’s exhibit 8 was a verbatim record of either his questions to Mr. Grier or of Mr. Grier’s exact answers.

The trial court’s error in admitting Mr. Grier’s purported written statement was prejudicial and rose to the level of plain error. Our Supreme Court has noted that in general, the best evidence of a defendant’s guilt is a confession. State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). Thus, “[w]here a confession is erroneously admitted into evidence, no one can say what weight and credibility the jury gave [it] and in the absence of some other evidence just as weighty the improperly admitted confession is prejudicial error and requires a new trial.” State v. Bartlett, 121 N.C. App. 521, 523, 466 S.E.2d 302, 303 (2006).

In the instant case, there were no witnesses to the breaking and entering of Ms. Pender’s car or to the larceny of her tote bag and camera. Furthermore, outside of Mr. Grier’s statement, there was very little direct evidence linking Mr. Grier to the crimes. There were no fingerprints taken from the vehicle. None of the stolen property was found on Mr. Grier at the time of his arrest. Instead, the State’s case was largely circumstantial and relied heavily on Ms. Harden’s and Ms. Pender’s identifications of Mr. Grier at trial as the person who had Ms. Pender’s camera and tote bag at both the school parking lot and the parking lot of Jackalope Jacks.

Because of the reliance on identification testimony by the State, mistaken identity was the central theme and primary focus of Mr. Grier’s defense at trial. Most notably, defense counsel challenged Ms. Harden’s identification of Mr. Grier based on conflicts between her trial testimony and her statement to police as well as her testimony she was sure she had seen Mr. Grier one or two months before trial when in fact Mr. Grier had been in custody at the time. (T Vol I pp 109, 114, 128-129, 184-185).[1] However, the admission of Mr. Grier’s confession made it almost impossible for the jury to consider an otherwise credible defense that could have provided the jury with reasonable doubt.

Specifically, the statement corroborated both Ms. Harden’s and Ms. Pender’s identification testimony and placed Mr. Grier at Jackalope Jack’s with both eyewitnesses and in possession of Ms. Pender’s stolen property. (R p 11). Furthermore, during deliberations the jury specifically requested to see a copy of all the exhibits, including the purported confession, which the trial court provided. (T Vol II p 267) Thus, the jury likely relied on what appeared to be the best evidence of Mr. Grier’s guilt in reaching its verdict, especially considering the trial court’s instruction to the jury regarding Mr. Grier’s admission. (T Vol II p 259). In fact, when asking the trial court for leave to present the confession during rebuttal, the Assistant District Attorney noted in order to undermine Mr. Grier’s mistaken identity defense the statement was “absolutely critical for the State’s case to be able to rebut this evidence that’s been put on this morning.” (T Vol II p 192).

It is precisely because the purported confession was “absolutely critical” to the State’s case that there is a reasonable likelihood the jury would not have convicted Mr. Grier without its admission into evidence. As such, Mr. Grier is entitled to a new trial.