-1-
No: COA04-560 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From Wake County
) No. 97 CRS 98195-96 &
STEVE LAWRENCE BERRYMAN) 97 CRS 23187
************************************
BRIEF FOR DEFENDANT-APPELLANT
************************************
SUBJECT INDEX
TABLE OF CASES AND AUTHORITIES...... iii-v
QUESTIONS PRESENTED...... 1-2
STATEMENT OF THE CASE...... 2-3
STATEMENT OF THE GROUNDS...... 3
STATEMENT OF THE FACTS...... 3-6
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...... 6-13
II.THE TRIAL COURT ERRED IN ALLOWING
INTO EVIDENCE STATE'S EXHIBITS 2,
2B, 2B-1 AND 3 OVER THE OBJECTION
OF DEFENSE COUNSEL AS NO CHAIN OF
CUSTODY WAS ESTABLISHED AND THE
SBI CHEMIST WHO ACTUALLY RECEIVED
THE EVIDENCE AND PERFORMED AN ANALYSIS
UPON IT WAS UNAVAILABLE TO TESTIFY AT
TRIAL...... 13-16
III.THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS THE
ROBBERY WITH A DANGEROUS WEAPON
CHARGE FOR INSUFFICIENCY OF THE
EVIDENCE...... 16-20
IV.PURSUANT TO THE RULING IN STATE V.
JONES, 161 N.C. APP. 60, 588 S.E.2d
5 (2003), THAT POSSESSION OF COCAINE
IS A MISDEMEANOR, THE TRIAL COURT ERRED
IN DENYING DEFENDANT'S MOTION TO DISMISS
THE HABITUAL FELON CHARGE...... 20-21
CONCLUSION...... 22
CERTIFICATE OF SERVICE...... 23
TABLE OF CASES AND AUTHORITIES
Barker v. Wingo, 407 U.S. 514
(1972)...... 7,8,10
11,12
Doggett v. United States, 505 U.S.
647 (1992)...... 12-13
Goeke v. Branch, 514 U.S. 115
(1995)...... 6
Ortega-Rodriguez v. United States, 507
U.S. 234 (1993)...... 7
United States v. Marion, 404 U.S.
307 (1971)...... 10
Layne v. Gunter, 559 F.2d 850
(1st Cir. 1977)...... 9
Rheuark v. Shaw, 628 F.2d 297
(5th Cir. 1980)...... 7,9
Smith v. Kansas, 356 F.2d 654
(10th Cir. 1966)...... 9
United States v. Johnson, 732 F.2d 379
(4th Cir. 1984)...... 7,8,9
10,11
Ward v. Freeman, Slip Opn. No. 94-6424,
1995 U.S. App. LEXIS 2304 (4th Cir.
February 8, 1995)...... 12
State v. Bare, 77 N.C. App. 516,
335 S.E.2d 748 (1985)...... 7,8
State v. China, ___ N.C. App. ___,
564 S.E.2d 64 (2002)...... 8,10
State v. Corbett and State v. Rhone,
307 N.C. 169, 297 S.E.2d 553 (1982)...... 19
State v. Gibbons, 303 N.C. 484,
279 S.E.2d 574 (1981)...... 19
TABLE OF CASES AND AUTHORITIES (CONT'D)
State v. Greenlee, 146 N.C. App. 729,
553 S.E.2d 916 (2001)...... 14
State v. Hammonds, 141 N.C. App. 152,
541 S.E.2d 166 (2000)...... 7
State v. Jones, 310 N.C. 716,
314 S.E.2d 529 (1984)...... 8
State v. Jones, 161 N.C. App. 60,
588 S.E.2d 5 (2003) ...... 20
State v. Mason, 144 N.C. App. 20,
550 S.E.2d 10 (2001)...... 15
State v. Mull, 224 N.C. 574,
31 S.E.2d 764 (1944)...... 18
State v. Shelman, 159 N.C. App. 300,
584 S.E.2d 88 (2003)...... 15
State v. Shoff, 118 N.C. App. 724,
456 S.E.2d 875 (1995)...... 6
State v. Smith, 268 N.C. 167,
150 S.E.2d 194 (1966)...... 19
State v. Smith, 289 N.C. 143,
221 S.E.2d 247 (1976)...... 8
State v. Sneed, 161 N.C. App. 331,
588 S.E.2d 74 (2003)...... 21
State v. White, 322 N.C. 506,
369 S.E.2d 813 (1988)...... 16
6th Amend., U.S. Const...... 7
14th Amend., U.S. Const...... 7
Art. I, Sec. 18, N.C. Const...... 7
N.C.G.S. §14-7.1...... 20
N.C.G.S. §14-7.2...... 20,21
TABLE OF CASES AND AUTHORITIES (CONT'D)
N.C.G.S. §14-87...... 16,18
N.C.G.S. §15A-1444 (2001)...... 6
N.C.G.S. §90-95(a)(3)...... 20
N.C.G.S. §90-95(g)-(g1)...... 14
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No: COA04-560 TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************
STATE OF NORTH CAROLINA)
)
v.) From Wake County
) No. 97 CRS 98195-96 &
STEVE LAWRENCE BERRYMAN) 97 CRS 23187
************************************
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. 14-20.
II.WHETHER THE TRIAL COURT ERRED IN
ALLOWING INTO EVIDENCE STATE'S
EXHIBITS 2, 2B, 2B-1 AND 3 OVER THE
OBJECTION OF DEFENSE COUNSEL AS NO
CHAIN OF CUSTODY WAS ESTABLISHED AND
THE SBI CHEMIST WHO ACTUALLY RECEIVED
THE EVIDENCE AND PERFORMED AN ANALYSIS
UPON IT WAS UNAVAILABLE TO TESTIFY AT
TRIAL?
ASSIGNMENT OF ERROR NO. 2
T. pp. 47-55.
III.WHETHER THE TRIAL COURT ERRED IN
DENYING DEFENDANT'S MOTION TO DISMISS
THE ROBBERY WITH A DANGEROUS WEAPON
CHARGE FOR SUFFICIENCY OF THE EVIDENCE?
ASSIGNMENT OF ERROR NO. 3
R. p. 7.
T. pp. 100-101.
IV.WHETHER PURSUANT TO THE RULING IN
STATE V. JONES, 161 N.C. APP. 60,
588 S.E.2d 5 (2003), THAT POSSESSION
OF COCAINE IS A MISDEMEANOR, THE TRIAL
COURT ERRED IN DENYING DEFENDANT'S
MOTION TO DISMISS THE HABITUAL FELON
CHARGE?
ASSIGNMENT OF ERROR NO. 4
R. pp. 4, 5, 9, 10-11.
T. pp. 132-138 & 141.
STATEMENT OF THE CASE
Defendant Berryman was indicted for: 1) Robbery with a Dangerous Weapon (97 CRS 98195), 2) Possession of Crack Cocaine (97 CRS 98196), and 3) Habitual Felon (97 CRS 23187 on November 18, 1997 in Wake County. (R. pp. 3-5) Defendant was arraigned on December 17, 1997, (R. p. 6) and his case came on for trial at the February 18, 1998 Criminal Session of Wake County Superior Court before the Honorable Henry V. Barnette, Jr. (R. p. 1) Defendant Berryman was found guilty by a jury of: 1) Common Law Robbery, 2) Possession of Cocaine and 3) Being an Habitual Felon on February 19, 1998, (R. pp. 7-9) and Judgment was entered by the Honorable Henry V. Barnette, Jr., on that same date. (R. pp. 10-11) Defendant Berryman gave Notice of Appeal to the Court of Appeals on February 19, 1998, (R. pp. 14-15) 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(1), (3), (4)(b), (4)(c), (4)(d) 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 October 30, 1997 at approximately 10:00 or 10:30 p.m., Defendant Steve Berryman entered a Texaco gas station and convenience store on the edge of downtown Raleigh. (T. pp. 12-13) The store clerk observed him take a 40 ounce "Bull" out of the cooler, but after turning his back to the clerk the bottle was gone. He also picked up a fifth of Wild Irish Rose and again turned his back to the clerk and the clerk did not see the bottle. (T. p. 14) Mr. Berryman then started to walk towards the door, not having exchanged any words with the clerk. (T. p. 15) The clerk, a Salah M. Yousif, (T. p. 11) was working with another man that evening, and both men spoke Arabic. There were two doors leading outside from the store. Mr. Yousif spoke to the other man working in the store telling him to prevent Mr. Berryman from leaving through one door while he, Mr. Yousif, did the same at the other door. (T. pp. 12, 15) As the two men rushed at him Mr. Berryman started rushing for the door, but was apprehended by the two men and Mr. Yousif punched him and knocked him to the floor. Mr. Berryman asked Mr. Yousif to please not hit him, but Mr. Yousif testified he hit Defendant to the floor, and sat on his back while Defendant Berryman lay face down as Mr. Yousif held his hands behind his back. (T. p. 18) The police were called and two Raleigh police officers arrived shortly thereafter. (T. p. 19)
Mr. Yousif testified that at some point during the struggle he saw Mr. Berryman reach in his pocket and pull out a screwdriver that was "at least four inches," but he could not describe it further. (T. p. 18) When the police arrived Mr. Yousif told them that Mr. Berryman had a "screwdriver in his pocket." (T. p. 19) One police officer testified that he later retrieved a screwdriver from somewhere on the floor within several feet of the general area where the parties had been. (T. p. 26) Mr. Yousif further testified that the Wild Irish Rose was worth $3.89 and the Bull Malt Liquor approximately $1.69 or $1.79. (T. 19) After Mr. Berryman was arrested he was searched and the police found a crack pipe and two units of what they thought to be crack cocaine in the pocket of his coat. (T. p. 32)
Defendant Berryman testified on his own behalf that on October 30, 1997, while at work he had received news that had him very upset. He learned that his young daughter's mother had died. After he left work that day he went to a friend's house to talk, and around 10:00 p.m., or so, that evening his friend suggested they have a beer. Mr. Berryman offered to go to the store to get a couple of beers, so he picked up his friend's jacket and went to the Texaco convenience store. He only had about $2.00 in his pocket, which was enough to buy a bottle or two of beer. Once he got to the store, Defendant Berryman, admitted that he shoplifted a 40 ounce beer and a bottle of Richard's wine because he was upset and he wanted to just get drunk. (T. pp. 59-60)
As Mr. Berryman started to leave the store he noticed the clerk, Mr. Yousif, watching him. Mr. Berryman turned around to put the beer back but realized there was someone else behind him as well. When he looked back Mr. Yousif was coming towards him with an aluminum baseball bat, so Mr. Berryman tried to run towards the door. Mr. Yousif hit him from behind with the baseball bat, at which point Mr. Berryman threw up his hands and told him, "all right, you got me." Mr. Berryman testified that Mr. Yousif then started hitting Mr. Berryman with his fists in a corner of the store knocking him to the floor. (T. pp. 62-64) Mr. Yousif continued to hit Mr. Berryman while he was down on the floor, as Mr. Berryman begged him to stop. Mr. Berryman said he tried to get up and run by Mr. Yousif at one point, but Mr. Yousif grabbed him by the neck and swung him back to the floor, where he was when the police officers arrived. Mr. Berryman testified that he was grateful when the police officers arrived and got the other two men off of him. (T. p. 65)
Mr. Berryman testified that he had a screwdriver in his pocket from work that day, which is where it was when Mr. Yousif pointed it out to the first officer, who removed it from Mr. Berryman's pocket. Mr. Berryman testified that he never threatened the store clerks in any way while in the store. Mr. Berryman also testified that he was unaware that the crack pipe and crack cocaine was in the pocket of the jacket of his friend at the time he put it on. (T. pp. 65-68, 71)
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.
ASSIGNMENT OF ERROR NO. 1
R. pp. 14-20.
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 Berryman's case went to trial in February of 1998, (R. p. 1) with Judgment (R. pp. 10-11) and Appellate Entries (R. pp. 14-15) being entered on February 19, 1998. The transcript of Defendant Berryman's trial was not prepared and delivered until on or about February 2, 2004, (R. p. 16) approximately six years later.
Certainly this six-year delay "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, individually, numerous formal, written requests for the transcript and/or an anticipated date of delivery. (R. pp. 17-20) In addition, appellate counsel made numerous inquiries, telephone calls and other attempts to obtain the transcript for use in Defendant Berryman's appeal; and, it still took six years to obtain. (R. pp. 16-20)
Throughout this time, the State is aware of the situation and makes no effort to obtain the transcript; and, when a transcript is finally delivered and a proposed Record on Appeal drafted the District Attorney for Wake County does not even respond and stipulate, or object, to the record. Rather, the time period simply expires and Defendant is, finally, able to file his 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 Berryman'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 Berryman never acquiesces in any delays in the production and delivery of the transcript of his trial. And, despite numerous requests and inquiries, Defendant Berryman is still unable to obtain a completed transcript and perfect his appeal until six 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 Berryman, 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 light of the interests of the defendants who 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 Berryman received a lengthy prison term of 133 to 169 months in jail. (R. p. 10) He has already served over one-half of that time in prison, effectively negating the benefit of any appeal. Obviously, as time wore on, and Defendant Berryman's appeal has been increasingly extended, he's felt increased anxiety and an increased sense of hopelessness and loss of faith in our judicial system. 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 Berryman has already served over half of his full sentence and a second trial at this juncture would be all but impossible.
II.THE TRIAL COURT ERRED IN ALLOWING
INTO EVIDENCE STATE'S EXHIBITS 2,
2B, 2B-1 AND 3 OVER THE OBJECTION
OF DEFENSE COUNSEL AS NO CHAIN OF
CUSTODY WAS ESTABLISHED AND THE SBI
CHEMIST WHO ACTUALLY RECEIVED THE
EVIDENCE AND PERFORMED AN ANALYSIS
UPON IT WAS UNAVAILABLE TO TESTIFY AT
TRIAL.
ASSIGNMENT OF ERROR NO. 2
T. pp. 47-55.
Over objection of defense counsel, the trial court allowed into evidence State's Exhibits 2, 2B, 2B-1 and 3, which included a crack pipe, two crack cocaine rocks and the packaging therefrom. (T. pp. 47-56) The State called as a witness Richard Wagner, Jr., a forensic chemist for the North Carolina State Bureau of Investigation, assigned to the drug chemistry section of the crime laboratory. (T. p. 39) Through Mr. Wagner the State offered the lab report and results of another SBI chemist Linda E. Farren, who actually did the testing on the evidence in the case at bar. (T. p. 47) Mr. Wagner testified to the system in place at the SBI as to how evidence was logged in and tested and to two sets of initials on the evidence - those of Linda Farren and of Marsha Sauls, a lab technician. (T. p. 48) Mr. Wagner further testified that he had not performed any tests on State's Exhibit 2B-1, (T. p. 49, lines 12-15) which appeared to him to be crack cocaine, but he was allowed to read into evidence the results of Linda Farren's report indicating that "State's Exhibit 2B-1 contained Schedule 2 controlled substance cocaine base, the weight of one-tenth of one gram." (T. p. 55, lines 16-18)