NO. COA09-1430 TWENTY FIRST JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA )
)
v. ) FROM FORSYTH COUNTY
) Nos. 08 CRS 37918;
BRIAN LEIGH CHAMBERS ) 58735
)
______)
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DEFENDANT-APPELLANT’S BRIEF
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i
INDEX
PAGE
TABLE OF AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 3
STATEMENT OF THE FACTS ...... 3
ARGUMENTS ...... 4
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DECLARE A MISTRIAL AS THE STATE REPEATEDLY ELICITED TESTIMONY FROM STATE’S WITNESSES REGARDING A FIELD TEST DONE ON THE ALLEGED CONTRABAND AND THEN DISOBEYED A DIRECT TRIAL DIRECTIVE AND MENTIONED THE FIELD TEST DURING CLOSING ARGUMENT. (ASSIGNMENT OF ERROR NO.1, Rp.61)...... 4
II. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO STRIKE THE TESTIMONY OF OFFICER JOHNSON CONCERNING WHAT MR. CHAMBERS ALLEGEDLY TOLD HIM WHILE IN CUSTODY AS MR. CHAMBERS NEVER SIGNED A WAIVER OF HIS MIRAND RIGHTS AND SAID STATEMENTS SHOULD HAVE BEEN EXCLUDED AS THEY VIOLATED HIS CONSTITUTIONAL RIGHTS(ASSIGNMENT OF ERROR NO. 2, Rp.61).8
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES FOR INSUFFICIENCY OF THE EVIDENCE. (ASSIGNMENT OF ERROR NO.3, Rp.62)...... 13
IV. THE TRIAL COURT ERRED IN FAILING TO SET ASIDE DEFENDANT’S SENTENCE AS A HABITUAL FELON AS THIS SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS. (ASSIGNMENT OF ERROR NO. 4, Rp.62)...... 16
CONCLUSION ...... 20
CERTIFICATE OF SERVICE ...... 21
iii
CASES TABLE OF AUTHORITIES PAGE
Atkins v. Virginia, 536 U.S. 304(2002)...... 18
Berkemer v. McCarty, 468 U.S. 420,82 L.Ed.2d 317(1984). .12
Dickerson v. United States, 530 U.S. 428 (2000). . . . . 11
Hughes v. United States, 689 A.2d 1206(D.C. 1997). . . . 5
In re Oliver, 333 U.S. 257 (1948)...... 5
Irvin v. Dowd, 366 U.S. 717(1961)...... 5
Johnson v. Zerbst, 304 U.S. 458,82 L.Ed. 1461 (1938). . .12
Michigan v. Jackson, 475 U.S. 625,89 L.Ed.2d 631 (1986). 12
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).9,11,12
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548(1984).5
Nebraska Press Ass’n v. Stuart, 427 U.S. 539(1976). . . . 5
Pennsylvania v. Muniz, 496 U.S. 582,110 S.Ct. 2638(1990). 10
State v. Boyd,321 N.C. 574,364 S.E.2d 118(1988). . . . .7
State v. Beaver, 317 N.C. 643,346 S.E.2d 476(1986). . . . 14
State v. Crudup, 157 N.C.App. 657, 580 S.E.2d 21 (2003). 9,10
State v. Davis, 20 N.C. App. 191,201 S.E.2d 61(1973),
cert. denied, 284 N.C. 618, 202 S.E.2d 274 (1974). . . . .15
State v. Diaz, 317 N.C. 545,346 S.E.2d 488(1986). . . . . 14
State v. Golphin, 352 N.C. 364,533 S.E.2d 168(2000),
cert. denied, 532 U.S. 931, 121 S.Ct. 1379-80 (2001). . .10
State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972) . . . .14
State v. Mason, 126 N.C. App. 318,484 S.E.2d 818(1997)
cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001). . . . .17
State v. McNeill, 349 N.C. 634,509 S.E.2d 415(1998),
cert. denied, 528 U.S. 838, 145 L.Ed.2d 87 (1999). . . . 5
iv
State v. Rogers, 352 N.C. 119,529 S.E.2d 671(2000). . . .16
State v. Odom, 307 N.C. 655 (1985)...... 9,12
State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265,
cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977). . . . . 14
State v. Williams,361 N.C. 78,637 S.E.2d 523(2006). . . 7
Thompson v. Keohane, 516 U.S. 99, 133 L.Ed.2d 383 (1995).12
Tumey v. Ohio, 273 U.S. 410 (1927)...... 5
STATUTES
N.C. Gen. Stat. 7A-27(b) ...... 2
N.C.G.S. 90-95(a)(3) ...... 14
N.C.G.S. § 15A-1061...... 6,7
CONSTITUTIONAL PROVISIONS
U.S. Constitution, Amendments V, VI, XIV...... 6
U.S. Constitution, Amendments VI ...... 6,9
U.S. Constitution, Amendment VII ...... 17
U.S. Constitution, Amendment XIV ...... 6,17
N.C. Constitution, Art. I, § 19 ...... 6,17
N.C. Constitution, Art. I, § 23 ...... 6
N.C. Constitution, Art. I, § 27 ...... 17
N.C. Constitution, Art. I, § 35 ...... 6
OTHER AUTHORITIES
N.C. R. App. Proc. 28(b)(6)...... 17
NO. COA09-1430 TWENTY FIRST JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
v. ) FROM FORSYTH COUNTY
) Nos. 08 CRS 37918;
BRIAN LEIGH CHAMBERS ) 58735
)
______)
DEFENDANT-APPELLANT’S BRIEF
********************************************
QUESTIONS PRESENTED
I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO DECLARE A MISTRIAL AS THE STATE REPEATEDLY ELICITED TESTIMONY FROM STATE’S WITNESSES REGARDING A FIELD TEST DONE ON THE ALLEGED CONTRABAND AND THEN DISOBEYED A DIRECT TRIAL DIRECTIVE AND MENTIONED THE FIELD TEST DURING CLOSING ARGUMENT?
II. DID THE TRIAL COURT COMMIT PLAIN ERROR IN FAILING TO STRIKE THE TESTIMONY OF OFFICER JOHNSON CONCERNING WHAT MR. CHAMBERS ALLEGEDLY TOLD HIM WHILE IN CUSTODY AS MR. CHAMBERS NEVER SIGNED A WAIVER OF HIS MIRANDA RIGHTS AND SAID STATEMENTS SHOULD HAVE BEEN EXCLUDED AS THEY VIOLATED HIS CONSTITUTIONAL RIGHTS?
III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES FOR INSUFFICIENCY OF THE EVIDENCE?
IV. DID THE TRIAL COURT ERR IN FAILING TO SET ASIDE DEFENDANT’S SENTENCE AS A HABITUAL FELON AS THIS SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS?
STATEMENT OF THE CASE
Mr. Chambers was indicted for possession of cocaine on 10 November 2008. On that same day, he was indicted as a Habitual Felon. The Defendant’s case was called for hearing at the 10 August 2009 session of Criminal Superior Court for Forsyth County before the Honorable William Z. Wood, Jr. On or around 12 August 2009 the jury returned a verdict finding the Defendant guilty of possession of cocaine, and Mr. Chambers then pled guilty to obtaining the status of habitual felon. The trial court entered the judgment on 12 August 2009, sentencing Defendant to a minimum of 80 months, and a maximum of 105 months to be served in the Department of Corrections. The Defendant gave timely notice of appeal from the judgment of the trial court in open court on 12 August 2009. The transcript was ordered on 13 August 2009 and was mailed to the parties on 28 August 2009.
The final record on appeal was filed with the North Carolina Court of Appeals on 5 November 2009 and docketed on 17 November 2009. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 20 November 2009.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given by the Defendant in open court on 12 August 2009.
STATEMENT OF THE FACTS
On 8 August 2008 around 11:50 a.m.,Mr. Chambers was driving his Toyota Paseo on Bellauwood Street in Winston-Salem. Officer Kyle Krawczyk had been radioed that a car had been seen slowing down and talking to people in the area. He began following Mr. Chambers’ Paseo for several blocks. Krawczyk testified that he ran the tags and Mr. Chambers was the registered owner of the vehicle. After following the vehicle for a while, Krawczyk testified that he observed the driver throw a white piece of paper out of the car and he initiated a traffic stop for littering. (Tpp.16;17;18;20)
When the vehicle was stopped, Mr. Chambers was the only occupant of the vehicle. In the front passenger seat floorboard a stand up vacuum cleaner was sitting. Mr. Chambers told Krawczyk that he had purchased the vacuum cleaner recently and was looking for the person who sold it to him because he needed the power cord. Krawczyk testified that he went to the passenger side to get a better look at the vacuum cleaner because he thought it might have been stolen. When he went around to the passenger side he noticed a “rocklike white substance” on the seat that looked to him like crack cocaine. (Tpp.21;22;23;32;33)
On cross examination Krawczyk testified that he never retrieved any paper or anything else that Mr. Chambers allegedly threw out of the window. He also did not check to see if the vacuum cleaner was stolen. (Tpp.31;33)
Officer Eric Johnson of the Winston-Salem Police Department testified that Mr. Chambers approached him at the jail after he had been arrested and told him that he had some information that would help him out. Officer Johnson testified that he gave Mr. Chambers his Miranda Rights, but he did not get Mr. Chambers to sign a waiver of his rights before speaking with him. Johnson testified that Mr. Chambers told him that he purchased the crack at Easton and not on Belleauwood Street. (Tpp.49;50;51-54)
Lori Knops is a chemist for the State Bureau of Investigation. She testified that she tested and analyzed State’s Exhibit number 1 and it was cocaine. She indicated that it weighed .09 of a gram. (Tpp.57;62-3;64).
ARGUMENTS
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DECLARE A MISTRIAL AS THE STATE REPEATEDLY ELICITED TESTIMONY FROM STATE’S WITNESSES REGARDING A FIELD TEST DONE ON THE ALLEGED CONTRABAND AND THEN DISOBEYED A DIRECT TRIAL DIRECTIVE AND MENTIONED THE FIELD TEST DURING CLOSING ARGUMENT. (ASSIGNMENT OF ERROR NO.1, Rp.61)
During Officer Kyle Krawczyk’s testimony, the Prosecutor and the Officer mentioned the fact that he had “field tested” the rocklike white substance found on the passenger seat of Mr. Chambers four separate times over repeated objections made by Mr. Chambers which were sustained by the trial court. Then the prosecutor again mentioned field test in his closing argument even after the trial court admonished the prosecutor out of the presence of the jury that “field test” was not to be mentioned again. The repeated mention of this inadmissible and highly prejudicial evidence required that the trial court declare a mistrial.
Standard of Review
A trial court’s decision regarding a motion for a mistrial will also not be disturbed absent a showing of an abuse of discretion. State v. McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-23 (1998), cert. denied, 528 U.S. 838, 145 L.Ed.2d 87 (1999).
Argument
The Sixth Amendment provides a criminally accused individual has a right to trial by an impartial jury. This right is “fundamental and deeply embedded in American jurisprudence.” Hughes v. United States, 689 A.2d 1206, 1207 (D.C. 1997); see also Irvin v. Dowd, 366 U.S. 717, 721-22 (1961). The failure to accord an accused a fair hearing violated even the minimal standards of due process. In re Oliver, 333 U.S. 257 (1948); Tumey v. Ohio, 273 U.S. 410 (1927). “One touchstone of a fair trial is an impartial trier of fact.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984). The trial judge has the responsibility of protecting this right to ensure the defendant receives a fair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 555 (1976).
As Judge Wood noted, the Prosecutor and the officer’s repeated mention of a “field test” done on the alleged contraband was inadmissible in court and highly prejudicial. Though Judge Wood admonished the State for their repeated references to the inadmissible and highly prejudicial evidence, he should have declared a mistrial. Failure to do so violated N.C.G.S. § 15A-1061, Rules of Evidence, Mr. Chambers’ constitutional right to a fair trial and due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Art. I, §§ 19, 23 and 35 of our Constitution.
As noted, the trial court did admonish the State for the repeated references to the “field test”, but denied Mr. Chambers’ motion for a mistrial. Judge Wood told the prosecutor that one more mention of “field test” would require a mistrial. (Tp.25-6) That one more reference came during closing argument when the prosecutor again referred to a field test done on the contraband. Out of the presence of the jury, Mr. Chambers again requested a mistrial as the prosecutor had hammered home the inadmissible evidence both at the beginning and the end of trial. The trial court denied the request for mistrial again, even though the State had failed to adhere to its request. (Tpp.75-8)
N.C.G.S. 15A-1061 states:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial may not be declared as to a defendant who does not make or join in the motion.
N.C.G.S. 15A-1061(2009)
The repeated mentions of the officer’s field test on the contraband did provide irreparable harm to Mr. Chambers by putting before the jury with the first witness, incompetent and inadmissible evidence regarding the alleged contraband. It is obvious that Judge Wood felt this was a serious violation as he admonished the State out of the presence of the jury. However, the damage to Mr. Chambers had already been done.
Mr. Chambers is well aware that: "[t]he decision whether to grant a motion for mistrial rests within the sound discretion of the trial judge and will not ordinarily be disturbed on appeal absent a showing of abuse of that discretion." State v. Boyd,321 N.C. 574, 579, 364 S.E.2d 118, 120 (1988). "A trial court's actions constitute abuse of discretion upon a showing that [the] actions are manifestly unsupported by reason and so arbitrary that [they] could not have been the result of a reasoned decision." State v. Williams,361 N.C. 78, 81, 637 S.E.2d 523, 525 (2006) (quotation marks and citations omitted).
Mr. Chambers respectfully contends that the State’s repeated references to the field test on the contraband over sustained objections, but before the jury nonetheless, had so irreparably harmed his chance at a fair trial before the jury that a mistrial was required. Certainly, when the prosecutor violated the Judge’s warning not to mention field test again during closing argument, Judge Wood should have carried through on his pledge to declare a mistrial (Tp.25-6) The standard was not what the Prosecutor meant, or whether it was a slip of the tongue to mention it in closing. The issue was one of damage to Mr. Chambers ability to have a fair trial before the jury who was presented with inadmissible and highly prejudicial evidence in his case at the beginning on four different occasions, which was re-enforced at closing by the prosecutor. In this instance it was abuse of discretion not to declare a mistrial.
- THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO STRIKE THE TESTIMONY OF OFFICER JOHNSON CONCERNING WHAT MR. CHAMBERS ALLEGEDLY TOLD HIM WHILE IN CUSTODY AS MR. CHAMBERS NEVER SIGNED A WAIVER OF HIS MIRAND RIGHTS AND SAID STATEMENTS SHOULD HAVE BEEN EXCLUDED AS THEY VIOLATED HIS CONSTITUTIONAL RIGHTS(ASSIGNMENT OF ERROR NO. 2, Rp.61)
Officer Eric Johnson was allowed to testify regarding a conversation he had with Mr. Chambers at the jail. This was after Mr. Chambers had been arrested. Officer Johnson testified that he did not get Mr. Chambers to sign a waiver of his Miranda rights before he spoke with him. As Mr. Chambers was in custody, this statement should have been excluded.
Standard of Review
Plain error is error which is so fundamental that, absent the error, the jury would have reached a different result. State v. Odom, 307 N.C. 655 (1985).
Argument
The Fifth Amendment of the United States Constitution and Article I, Section 23 of the North Carolina Constitution guarantees that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. Amend. V; N.C. Constitution Art. I, Sect. 23. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the United States Supreme Court determined that the prohibition against self-incrimination requires that prior to a custodial interrogation, the alleged defendant must be advised “that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.” Id. at 479, 16 L.Ed.2d at 726. The question of whether Miranda warnings are required turns on a two-part analysis: whether the defendant is (1) in custody, and (2) interrogated. State v. Crudup, 157 N.C.App. 657, 580 S.E.2d 21 (2003).
The U.S. Supreme Court has held that “custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to have the force of a question on the accused and therefore be reasonably likely to elicit an incriminating response.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650 (1990)(internal quotes and citations omitted). Thus, “‘any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect constitute an interrogation.’” State v. Crudup, 157 N.C. App. 657, 660, 580 S.E.2d 21, 24 (2003) (quoting, State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379-80 (2001)).
It is evident that Mr. Chambers was in custody at the time of this interrogation. He was at the jail after being arrested. Officer Johnson testified that at the jail Mr. Chambers indicated to Johnson that “I will help you out.” Johnson then testified that Mr. Chambers “clarified it , saying that he had an (sic)incidence to talk to me about without his legal counsel present, but he state that he would like to assist in providing information to police personnel.”(Tp.50)
This information was that Mr. Chambers told Johnson that he bought crack cocaine in the area of Easton, not on Belleauwood Avenue. On cross examination, the following occurred regarding whether or not Mr. Chambers had waived his Miranda Rights to speak with Johnson:
Q. Now, this statement that Mr. Chambers gave to you that you—you said that you gave him his Miranda rights warning; correct?
A. Yes, sir.
Q. Did you have him sign the warning?
A. Initially I was just trying to see what kind of information he was going to provide, but I did read – or I did give him his Miranda rights.
Q. But you didn’t have him sign the statement.
A. No, sir.
(Tpp.53-4)
From Officer Johnson’s testimony it is unclear when he gave Mr. Chambers his Miranda warnings as he admitted “[i]nitially I was just trying to see what kind of information he was going to provide. . .” It is clear that Officer Johnson did not have Mr. Chambers fill out a written waiver to ensure that Mr. Chambers understood his rights and was making a knowing, voluntary waiver.
In Dickerson v. United States, 530 U.S. 428 (2000),the United States Supreme Court reaffirmed that due to “the coercion inherent in custodial interrogation,” the Fifth and Fourteenth Amendments demand careful scrutiny of the circumstances in which incriminating statements are attributed to prisoners subject to modern interrogation methods. Therefore, mere compliance with the constitutional guidelines established in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966), does not “conclusively establish [] the voluntariness of a subsequent confession.” Berkemer v. McCarty, 468 U.S. 420, 433-34, 82 L.Ed.2d 317, 330-31 (1984).
This Court must determine whether, as a matter of law, the totality of the circumstances shows the waiver itself to have been voluntarily made. Thompson v. Keohane, 516 U.S. 99, 133 L.Ed.2d 383 (1995). There is a heavy burden on the State to prove knowing, voluntary, and intelligent waiver of constitutional rights. Miranda, 384 U.S. at 475, 16 L.Ed.2d at 724. The reviewing court must “indulge every reasonable presumption against waiver.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461 (1938). “Doubts must be resolved in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633, 89 L.Ed.2d 631 (1986).
Officer Johnson admitted that he did not even read Mr. Chambers his rights initially and never testified that Mr. Chambers in fact waived those rights. We know that he did not have Mr. Chambers sign that he knowingly understood and voluntarily waived his Miranda rights before making the statement to Officer Johnson in the jail. As the clear mandate from the U.S. Supreme Court and our Supreme Court is that every all doubts must be resolved in favor of the Constitutional claim, it is clear that the State did not provide sufficient proof that Mr. Chambers did knowingly and voluntarily waive his Fifth Amendment rights before making this statement. This statement certainly was extremely prejudicial to Mr. Chambers as it provided the only scintilla of proof that Mr. Chambers was possibly aware of the minuscule amount (.09 of a gram) of cocaine in his vehicle.