-1-
No: COA04-395 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From Wake County
) No. 99 CRS 078143
TRAVARES W. BROWN)
************************************
BRIEF FOR DEFENDANT-APPELLANT
************************************
SUBJECT INDEX
TABLE OF CASES AND AUTHORITIES...... iii-v
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE GROUNDS...... 2
STATEMENT OF THE FACTS...... 3-5
ARGUMENT:
I.THE STATE'S FAILURE TO PROVIDE A
TRANSCRIPT OF THE PROCEEDINGS IN A
TIMELY FASHION HAS DEPRIVED DEFENDANT
OF HIS CONSTITUTIONAL AND STATUTORY
RIGHTS TO MEANINGFUL AND EFFECTIVE
APPELLATE REVIEW...... 5-12
R. pp. 14, 15, 16 & 17.
II.THE TRIAL COURT ERRED IN ALLOWING
TESTIMONY, OVER DEFENDANT'S OBJECTION,
IN REGARD TO A GUN FOUND AT DEFENDANT'S
SISTER'S HOUSE, AND INTRODUCTION OF THE
GUN INTO EVIDENCE, AS THERE WAS NO GUN
FOUND AT THE SCENE AND NO SUPPORTING
EVIDENCE PRESENTED THAT THIS WAS A GUN
USED IN THE COMMISSION OF THE CRIME...... 12-20
T. pp. 91-94.
CONCLUSION...... 21
CERTIFICATE OF SERVICE...... 22
TABLE OF CASES AND AUTHORITIES
Barker v. Wingo, 407 U.S. 514
(1972)...... 6,7,8
9,10,11
Doggett v. United States, 505 U.S.
647 (1992)...... 11
Goeke v. Branch, 514 U.S. 115
(1995)...... 5
Ortega-Rodriguez v. United States, 507
U.S. 234 (1993)...... 5-6
United States v. Marion, 404 U.S.
307 (1971)...... 9
Layne v. Gunter, 559 F.2d 850
(1st Cir. 1977)...... 8
Rheuark v. Shaw, 628 F.2d 297
(5th Cir. 1980)...... 6,8
Smith v. Kansas, 356 F.2d 654
(10th Cir. 1966)...... 8
United States v. Johnson, 732 F.2d 379
(4th Cir. 1984)...... 6,8
9,10
Ward v. Freeman, Slip Opn. No. 94-6424,
1995 U.S. App. LEXIS 2304 (4th Cir.
February 8, 1995)...... 11
State v. Agnew, 294 N.C. 382,
241 S.E.2d 684 (1978)...... 15
State v. Bare, 77 N.C. App. 516,
335 S.E.2d 748 (1985)...... 6
State v. Bullard, 312 N.C. 129,
322 S.E.2d 370 (1984)...... 19
State v. China, ___ N.C. App. ___,
564 S.E.2d 64 (2002)...... 7,9
TABLE OF CASES AND AUTHORITIES (CONT'D)
State v. Coffey, 345 N.C. 389,
480 S.E.2d 664 (1997)...... 15,16
17
State v. DeCastro, 342 N.C. 667,
467 S.E.2d 653 (1996)...... 18,19
State v. Felton, 330 N.C. 619, 412
S.E.2d 344 (1992)...... 14,18
19
State v. Gappins, 320 N.C. 64,
357 S.E.2d 654 (1987)...... 15
State v. Hamilton, 264 N.C. 277,
141 S.E.2d 506 (1965)...... 14
State v. Hammonds, 141 N.C. App. 152,
541 S.E.2d 166 (2000)...... 6
State v. Jones, 310 N.C. 716,
314 S.E.2d 529 (1984)...... 7
State v. Mason, 315 N.C. 724,
340 S.E.2d 430 (1986)...... 15
State v. Shoff, 118 N.C. App. 724,
456 S.E.2d 875 (1995)...... 5
State v. Smith, 289 N.C. 143,
221 S.E.2d 247 (1976)...... 7
State v. Soles, 119 N.C. App. 375,
459 S.E.2d 4 (1995)...... 19
State v. Whiteside, 325 N.C. 389,
383 S.E.2d 911 (1989)...... 14
6th Amend., U.S. Const...... 6
14th Amend., U.S. Const...... 6
Art. I, Sec. 18, N.C. Const...... 6
N.C.G.S. §8C-1, Rule 401 (1988)...... 14
TABLE OF CASES AND AUTHORITIES (CONT'D)
N.C.G.S. §8C-1, Rule 402 (1988)...... 14
N.C.G.S. §8C-1, Rule 403 (1986)...... 15,16
N.C.G.S. §8C-1, Rule 801 (1986)...... 17
N.C.G.S. §15A-1444 (2001)...... 5
-1-
No: COA04-395 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From Wake County
) No. 99 CRS 078143
TRAVARES W. BROWN)
************************************
QUESTION PRESENTED
************************************
I.WHETHER THE STATE'S FAILURE TO PROVIDE
A TRANSCRIPT OF THE PROCEEDINGS IN A
TIMELY FASHION HAS DEPRIVED DEFENDANT
OF HIS CONSTITUTIONAL AND STATUTORY
RIGHTS TO MEANINGFUL AND EFFECTIVE
APPELLATE REVIEW?
ASSIGNMENT OF ERROR NO. 1
R. pp. 14, 15, 16 & 17.
II.WHETHER THE TRIAL COURT ERRED IN
ALLOWING TESTIMONY, OVER DEFENDANT'S
OBJECTION, IN REGARD TO A GUN FOUND
AT DEFENDANT'S SISTER'S HOUSE, AND
INTRODUCTION OF THE GUN INTO EVIDENCE,
AS THERE WAS NO GUN FOUND AT THE SCENE
AND NO SUPPORTING EVIDENCE PRESENTED
THAT THIS WAS A GUN USED IN THE
COMMISSION OF THE CRIME?
ASSIGNMENT OF ERROR NO. 2
T. pp. 91-94.
STATEMENT OF THE CASE
Defendant Brown was indicted for Robbery with a Dangerous Weapon on October 11, 1999 in Wake County. (R. p. 3) Thereafter, Defendant was arraigned on November 10, 1999, (R. p. 4) and his case came on for trial on December 15, 1999, in the Superior Court Criminal Session in Wake County before the Honorable Wiley F. Bowen. (R. p. 1) Defendant Brown was found guilty by a jury of Robbery with a Dangerous Weapon on December 16, 1999, (R. p. 5) and Judgment was entered by the Honorable Wiley F. Bowen on that same date. (R. pp. 6-11) Defendant Brown gave Notice of Appeal to the Court of Appeals on December 16, 1999, (R. pp. 12-13) and this matter is properly before this Court for review.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant-Appellant is entitled to an appeal to this Court as a matter of right pursuant to N.C.G.S. 15A-1444(a) and as a matter of law pursuant to N.C.G.S. 15A-1441, N.C.G.S. 15A-1442(4)(b), (4)(c) and (6), and N.C.G.S. 15A-1443(b). This appeal has been properly filed and perfected with this Court pursuant to the North Carolina Rules of Appellate Procedure, Rule 4, etseq.
STATEMENT OF THE FACTS
On or about September 7, 1999, an Acme cab picked up two young men from an apartment building on Fisher Street in Raleigh, North Carolina. (T. (12/15/99) pp. 5-6) The two men made several short stops, including a stop on Rose Lane and a stop at Longview Grocery off Poole Road to use the telephone. (T. (12/15/99) pp. 7 & 10) They then went to Dacian Road to an apartment building and didn't appear to see what they were looking for so they returned to Longview Grocery. At this point the "lighter skinned" black male, later identified as Jerry Pulley, (T. p. 30) went into the store and returned to the cab. (T. (12/15/99) p. 11) The cab driver was then directed to drive back to Rose Lane. (T. (12/15/99) p. 12)
When the cab driver returned to Rose Lane he was directed to pull down to the end of the road, a dead end, (T. (12/15/99) p. 12) at which point the "lighter skinned" black male, Jerry Pulley, got out of the car, pulled out a gun and pointed it at the cab driver and told the driver to give him his money. (T. (12/15/99) p. 13) The cab driver indicated that it appeared that the other young man in the car, later identified as Defendant Brown, (T. (12/15/99) p. 50) appeared to be "taking orders from the guy with the gun." (T. (12/15/99) p. 15) At some point the cab driver testified that Defendant Pulley gave the gun to Defendant Brown and told him to hold the gun on the cab driver while Defendant Pulley searched the trunk of the cab. (T. (12/15/99) p. 15) The cab driver described the gun as a "small caliber automatic," "kinda chrome," and "long." (T. (12/15/99) p. 16)
The cab driver testified that he was told to lay down on the ground, but he took off running instead. The light skinned male ran after him and cut him off, then just walked off. He last saw the gun in the possession of the light skinned male, Defendant Pulley, and did not see Defendant Brown again after he, the cab driver, ran from the scene. After Defendant Pulley walked away, the cab driver returned to his car and drove down the road to a police officer to report the robbery. (T. (12/15/99) pp. 17-20)
Officer J. W. Bunch of the Raleigh Police Department thereafter testified that the cab driver reported to him, immediately following the incident, that "suspect number one," later identified as Defendant Jerry Pulley, used a blue steel automatic pistol. Officer Bunch also noted in his report that "suspect number two," Travares Brown, "used no weapon." (T. (12/15/99) pp. 50-1)
The two men were sighted not far from the scene of the robbery a short time after the cab driver reported the incident. Defendant Brown immediately cooperated with police while Defendant Pulley fled, pursued by police officers who were unable to locate him that evening. (T. (12/15/99) p. 63) Defendant Brown was transported for questioning and told police that he knew the other man only as "Jay;" and, that he was dating Defendant Brown's sister.
Defendant Brown further stated that he never intended to be involved in any robbery and was yelling at "Jay," "why are you doing this?" (T. (12/15/99) p. 82) Defendant Brown said that "Jay" kept "r[a]cking the slide back on the weapon," and at one point Defendant Brown told the cab driver to just "give it up," so he wouldn't get hurt. (T. (12/15/99) p. 82) Defendant Brown assisted the police in locating Defendant Pulley by making several telephone calls and taking police to his sister's apartment where police eventually arrested Defendant Pulley. (T. (12/15/99) p. 83-90)
ARGUMENT
I.THE STATE'S FAILURE TO PROVIDE A
TRANSCRIPT OF THE PROCEEDINGS IN A
TIMELY FASHION HAS DEPRIVED DEFENDANT
OF HIS CONSTITUTIONAL AND STATUTORY
RIGHTS TO MEANINGFUL AND EFFECTIVE
APPELLATE REVIEW.
The right to appeal in a criminal proceeding is purely statutory. State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995); N.C. Gen. Stat. §15A-1444 (2001). There is no recognized constitutional right to an appeal under the United States Constitution for a convicted criminal. Goeke v. Branch, 514 U.S. 115, 119 (1995)(citing Ortega-Rodriguez v. United States, 507 U.S. 234, 253 (1993). However, the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sec. 18 of the North Carolina Constitution guarantee the right to a speedy trial. State v. Bare, 77 N.C. App. 516, 519, 335 S.E.2d 748, 750 (1985).
In the case of State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000), this Court adopted the holding in an earlier 4th Circuit decision stating that "undue delay in processing an appeal may rise to the level of a due process violation." United States v. Johnson, 732 F.2d 379, 381 (4th Cir. 1984). Following the lead of a 5th Circuit ruling in Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), the Court in Johnson reasoned that in determining whether a given post-conviction delay amounted to a due process violation courts should employ the same four factors set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether a violation of the Sixth Amendment right to a speedy trial had occurred. The four factors enumerated by the Supreme Court in Barker include: 1) the length of delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) prejudice to the defendant. Id., at 530. "These factors were adopted as the standard under North Carolina constitutional law." Bare, supra,at 519, 335 S.E.2d at 750. See State v. Jones, 310 N.C. 716, 314 S.E.2d 529 (1984) and State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976) and cases cited therein.
While no one factor is dispositive, the length of delay does act as a triggering mechanism. However, all four factors are related and must be considered together with such other circumstances as may be relevant. The length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. Barker, at 530-31. An analysis of the four factors set forth in Barker v. Wingo, is necessary "to determine if there was a due process violation caused by a delay in processing an appeal." State v. China, ___ N.C. App. ___, ___, 564 S.E.2d 64, 68 (2002).
Defendant Brown's case went to trial in December of 1999, (R. p. 1) with Judgment (R. pp. 6-11) and Appellate Entries (R. pp. 12-13) being entered on December 16, 1999. The first portion of the transcript of Defendant Brown's trial is prepared and delivered on or about January 23, 2001, (R. p. 14) approximately a little over two years later. However, the final portion of the transcript from the same trial is prepared and delivered on or about December 30, 2003, (R. p. 15) over four years after the date of Defendant Brown's trial.
This four-year delay certainly "triggers" the four factor analysis under Barker. In United States v. Johnson the Fourth Circuit Court considers a "two-year delay in... the range of magnitude of delay as a result of which courts have indicated that due process may have been denied." Johnson, at 382 (citing Smith v. Kansas, 356 F.2d 654, 657 (10th Cir. 1966)(one-year delay in hearing post-conviction petition); Layne v. Gunter, 559 F.2d 850, 851 (1st Cir. 1977)(three-year delay in allowing motion for preparation of transcript); Rheuark, supra, 628 F.2d at 302-3 (assumes without deciding that two-year delay in preparing transcript for appeal violates due process).
The second factor - the reason for delay - is readily apparent: the delayed production and delivery of the transcript. As noted in the Record on Appeal, appellate counsel served upon the Wake County Clerk of Court and the transcriptionist(s) several formal requests for the transcript and/or an anticipated date of delivery. (R. pp. 16-17) Appellate counsel also made numerous less formal inquiries and attempts to obtain the transcript for use in Defendant Brown's appeal, all to no avail. (R. pp. 18-19) The State is certainly aware of the situation and makes no effort to obtain the transcript(s); and, when a transcript is finally delivered and a proposed Record on Appeal drafted the State does not even respond and stipulate, or object, to the record. The State simply lets the full time period expire before Defendant is able to file the Record on Appeal with the Office of the Clerk of the Court of Appeals, thus extending the delay by several additional weeks. (R. pp. 22-3)
While it could be argued by the State that due to the backlog of cases, and the precedence of murder cases over all others on appeal, the delay in Defendant Brown's transcript is an unavoidable consequence of our judicial system, our courts are quick to point out that this is a serious problem warranting correction by the courts themselves. Johnson, supra, at 382. "None of the delay was attributable to any affirmative act by [D]efendant." China, supra, at ___, 564 S.E.2d at 68. Further, courts have indicated that "it is improper for the prosecution intentionally to delay 'to gain some tactical advantage over [defendants] or to harass them.'" Barker, supra, at 531, citing United States v. Marion, 404 U.S. 307, 325 (1971). There is absolutely no motivation for the State to take any action to move matters forward on appeal as further delays typically result in potentially "moot" issues, a lower percentage of perfected appeals and less work for the State.
Again, as noted in appellate counsel's Affidavit, Defendant Brown never acquiesces in any delays in the production and delivery of the transcript of his trial. And, despite numerous requests and inquiries, Defendant Brown is still unable to obtain a completed transcript and perfect his appeal until four years after his trial. This goes to the third factor relating to the "defendant's assertion of his right(s)." As in the case of United States v. Johnson, the "[D]efendant did press his attorney to obtain the transcript, and his counsel in fact did communicate with the court reporter, all to no avail. . . Manifestly, [D]efendant did as much as it is wise to require an accused to do to obtain the transcript." Johnson, supra, at 382. It cannot be said that Defendant Brown, by and through appellate counsel, failed to assert his right to prompt appellate review. Any failure to make such a demand, at any given time, may not be deemed a waiver of that right. Barker, supra, at 528.
The fourth factor, prejudice to the defendant, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. These include: 1) prevention of oppressive incarceration; 2) minimization of anxiety and concern of the accused; and 3) limitation of the possibility that the accused's defense might be impaired. Id., at 532.
Defendant Brown had never been convicted of a prior felony and/or served jail time before his underlying conviction in this case. (R. pp. 6-11) As the months of his sentence "ticked off" and he drew closer and closer to his actual release date, it's fair to assume that Defendant Brown became more and more anxious about his appeal that might never come to pass or, at least, would have little to no real impact on his sentence. Most courts agree that jail/prison time has a detrimental impact on an individual. It means a loss of a job, subjects a person to public scorn and disrupts family life. Barker, supra, at 532. Of the three concerns that comprise this fourth factor, most courts also agree that the last relating to impairment of a defendant's possible defense, through the loss of evidence, notes, and witnesses' memories, is the most important and can skew the fairness of the entire legal system. Id.; Ward v. Freeman, Slip Opn. No. 94-6424, 1995 U.S. App. LEXIS 2304 (4th Cir. February 8, 1995).
As a general proposition, . . . delay is unreasonable if it "approaches one year." Doggett v. United States, 505 U.S. 647, 652 (1992). If, as in this case, the . . . delay is unreasonable, the delay is "presumptively prejudicial" and the longer the delay, the more "intensified" the presumption of prejudice. Id.
Without being able to perfect his appeal due to a lack of a transcript, through no fault of his own, any possibility of meaningful appellate review is completely circumvented. Defendant Brown would show the Court that as of the date of the filing of this Brief Defendant Brown has been released from prison, having served all of his sentence for the pending case. This does not, however, render this matter moot as Defendant Brown is still a convicted felon having been unable to pursue his appeal, and possibly overturn this felony conviction, prior to this date.
II.THE TRIAL COURT ERRED IN ALLOWING
TESTIMONY, OVER DEFENDANT'S OBJECTION,
IN REGARD TO A GUN FOUND AT DEFENDANT'S
SISTER'S HOUSE, AND INTRODUCTION OF THE
GUN INTO EVIDENCE, AS THERE WAS NO GUN
FOUND AT THE SCENE AND NO SUPPORTING
EVIDENCE PRESENTED THAT THIS WAS A GUN
USED IN THE COMMISSION OF THE CRIME.
After Defendant Brown led police to his sister Takida Brown's apartment for them to capture Defendant Pulley, the police entered Takida Brown's residence. (T. (12/15/99) p. 90) Detective Culpepper of the Raleigh Police Department then testified on direct examination by the State as follows:
Q: At some point did you go inside the residence there at Baker's Grove Way?
A: Yes, sir, we did.
Q: Okay. And whose residence was that?
A: That was Takida Brown's residence.
Q: And did she go in there with you and Detective Dunn?
A: Yes, sir, she did
Q: What was the reason for going inside the house?
Defense Counsel: I object to that.
Court: Overruled.
Q: Go ahead.
A: The reason for that was to locate the possible weapon that was used in the robbery.
Q: In what area of the house did you look?
A: She took us to the bedroom. She said that generally he keeps it in --
Defense Counsel: Objection.
Court: Overruled.
Q: Go ahead.
A: That it was kept in a small drawer. When we opened the drawer the weapon was [sic] there. We then lifted the mattress and there laid the gun.
(T. (12/15/99) p. 90, line 19 - p. 91, line 16)
Detective Culpepper goes on to describe the gun that was located as a "small 25", semi-automatic revolver," (T. (12/15/99) p. 91) "25 RVI Model RD26 blue steel." (T. (12/15/99) p. 92, lines 4-5) The gun was introduced into evidence over objection of defense counsel, without any further foundation or identification, as State's Exhibit Number 4. (T. (12/15/99) p. 94)
Defendant Brown contends that the gun found at his sister's apartment was irrelevant evidence and, even if the trial court considered it relevant, was unfairly prejudicial.
Under our rules of evidence, unless otherwise provided, all relevant evidence is admissible.
N.C.G.S. §8C-1, Rule 402 (1988). ''Relevant
evidence' means evidence having any tendency
to make the existence of any fact that is of
consequence to the determination of the action
more probable or less probable than it would
be without the evidence. N.C.G.S. §8C-1, Rule
401 (1988). In criminal cases, "'[E]very
circumstance that is calculated to throw any
light upon the supposed crime is admissible.
The weight of such evidence is for the jury.'"
State v. Whiteside, 325 N.C. 389, 397, 383
S.E.2d 911, 915 (1989)(quoting State v.
Hamilton, 264 N.C. 277, 286-87, 141 S.E.2d 506,
513 (1965).
State v. Felton, 330 N.C. 619, 638, 412 S.E.2d