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NO. COA07-1326 29-A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
) From RutherfordCounty
v.) 05 CrS 50129
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DANNY RAY BRIDGES,)
Defendant.)
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DEFENDANT-APPELLANT’S BRIEF
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TABLE OF CASES AND AUTHORITIES...... iii
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...... 3
STATEMENT OF THE FACTS...... 3
ARGUMENTS
- THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND ITS INDICTMENT AFTER THE STATE RESTED ITS CASE. 6
- THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE STATE RESTED ITS CASE WITHOUT PRESENTING SUFFICIENT EVIDENCE OF THE CHARGED OFFENSE AND DEFENDANT’S COUNSEL MADE NO MOTION TO DISMISS 14
CONCLUSION...... 20
CERTIFICATE OF SERVICE...... 21
TABLE OF CASES AND AUTHORITIES
Cases
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)...... 17
State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994)...... 9
State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001)...... 16
State v. Grady, 136 N.C. App. 394, 524 S.E.2d 75 (2000)...... 9
State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638 (1982)...... 10
State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001)...... 16
State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984)...... 9
State v. Silas, 360 N.C. 377, 627 S.E.2d 604 (2006)...... 10
State v. Snyder, 343 N.C. 61, 468 S.E.2d 221 (1996)...... 10
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 16, 17
Statutes
N.C.G.S. § 15A-923...... 9, 10
N.C.G.S. § 15A-1442...... 3
N.C.G.S. § 90-87...... 11, 12
N.C.G.S. § 90-95...... 2
N.C.G.S. § 90-98...... 12
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QUESTIONSPRESENTED
- DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND ITS INDICTMENT AFTER THE STATE RESTED ITS CASE?
- WAS THE DEFENDANT DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, WHEN THE STATE RESTED ITS CASE WITHOUT PRESENTING SUFFICIENT EVIDENCE OF THE CHARGED OFFENSE AND DEFENDANT’S COUNSEL MADE NO MOTION TO DISMISS?
STATEMENT OF THE CASE
On 6 June 2005, defendant Danny Ray Bridges was indicted on a charge of manufacturing methamphetamine at his residence, under N.C.G.S. § 90-95(B)(1A) (R p. 12).
The trial was conducted by the Hon.C. Preston Cornelius, Judge presiding in the Criminal Session of the SuperiorCourtofRutherfordCounty, on 12, 13 and 14 December 2006. Upon a motion by the State during the trial, the court amended the indictment to a charge of attempting to manufacture the drug (T pp. 81, 90-91).The jury found Mr. Bridges guilty ofattempting to manufacture methamphetamine (R p. 19). On11 January 2006, the Hon. C. Phillip Ginn, Superior Court Judge,sentenced the defendant in the presumptive range toa term of 93-121 (R pp. 23-24). Neither the defendant nor his counsel gave notice of appeal within the time allowed.
The defendant fileda petition for writ of certiorari with this Court on 23 February 2007 (R pp. 33-44), and the writ was allowed on 16 March 2007 to permit the defendant to proceed with an appeal of his conviction (R p. 63). Appellate Entries were entered by the Hon. Laura J. Bridges, Superior Court Judge, on 26 April 2007. The record on appeal was filed in the North Carolina Court of Appeals on 2 November 2007 (R p. 1), and the printed record was mailed by the Clerk on 7 November 2007. Defendant’s motion granting an extension to file the brief was allowed by this Court, and the time was extended to 14 December 2007.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
As a matter of right, pursuant to N.C.G.S. 15A-1442.
STATEMENT OF THE FACTS
At the beginning of Danny Ray Bridges’ trial, Mr. Bridges was represented by an appointed attorney, John Snyder. Mr. Bridges requested that the court continue his trial to allow him to retain counsel; the court denied his request, and the trial commenced (T pp. 4-11). The State’s evidence tended to show as follows:
On the evening of 9 January 2005, two officers with the Rutherford County Sheriff’s Department drove to the home of Danny Ray Bridges to execute a warrant for his arrest (T pp. 14-15). Upon arriving, Officer Chad Murray opened the screen door of the home and stepped inside, announcing to Mr. Bridges that he was under arrest (T p. 16, 19). Officer Murray noticed a strong odor while he was inside the home, similar to the odor he’d previously smelled at two methamphetamine labs (T pp. 17). Mr. Bridges was taken outside, handcuffed and made to lie on the ground; his face and nose were injured after he was taken into custody. The officers called EMS for medical care, and they alsocalled the Sheriff’s Department task force (T pp.22-24). The task force obtained a search warrant and searched the home (T p. 32). Items found in the home included pieces of glassware, a breathing mask, a medicine dropper, coffee filters with stains and residue, a glass jar containing a bilayered liquid, a device made of PVC pipe, hydrogen peroxide, and cold and allergy medicine. The State offered photos of those items as evidence at trial (T pp. 40-52, 65).
Detective Will Sisk advised Mr. Bridges of his Miranda rights, and Mr. Bridges waived his rights (T pp. 34-35). Mr. Bridges made a statement to Detective Sisk, outlining his addiction to methamphetamine beginning in 2002 or 2003, and his efforts to supply himself with the drug (T pp. 34-36).Mr. Bridges described watching others “cook crank”, and learning about the process himself. He told Detective Sisk that he and an acquaintance had twice tried unsuccessfully to produce the drug themselves, and that at the time he was arrested, they were trying one more time(T pp. 36-37). Mr. Bridges explained that when he was taken into custody, they had just done a “pill wash”, but hadn’t started mixing volatile chemicals together (T p. 31).
SBI Special Agent Georgian Baxter, a forensic drug chemist, was called to investigate and assess Mr. Bridges’ home and the van parked in the yard on the evening of his arrest (T p. 56). In addition to the items previously mentioned, Agent Baxter described finding a number of commonplace items – rock salt, cat litter, plastic tubing, a one-burner stove, Coleman fuel, butane fuel, propane torches,rubbing alcohol, wooden mortar and pestle, boxes of unopened matchbooks, tincture of iodine (T pp. 66-69) – which Agent Baxter testified could also be used in the process of making methamphetamine (T pp. 57-61, 72-73, 76).
Agent Baxter tested the residue on several coffee filters and identified three substances that are immediate precursor chemicals in the manufacture of methamphetamine (T pp. 64-65, 67, 70-71). No methamphetamine was conclusively detected in any substance tested by Agent Baxter (T pp. 65-66, 71, 77).
After the State rested its case, the State requested that the charge against Mr. Bridges be changed from “manufacturing” to “attempted manufacturing” of methamphetamine, and the court allowed the change (T pp. 79, 81, 90-91). The defendant requested that the court allow his newly retained counsel, Marvin Sparrow, to represent him, and the court allowed him to appear to assist Mr. Snyder (T pp. 81-86).Thereafter, the defense presented evidence, including testimony by Mr. Bridges (T pp. 93-138).
The jury found Mr. Bridges guilty of attempting to manufacture methamphetamine (R p. 19; T pp. 165-166). Subsequently, he was sentenced in the presumptive range to a term of 93 to 121 months (R pp. 23-24).
ARGUMENTS
- THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND ITS INDICTMENT AFTER THE STATE RESTED ITS CASE.
ASSIGNMENT OF ERROR 9
T pp. 79, 81, 90-91
Introduction
The State moved to amend the indictment afterresting its case. The court allowed the change to the indictment and the case proceeded on the charge of attempted manufacture of a controlled substance. At issue is whether the alteration to the indictment substantially changed the offense charged and prejudiced the defendant by affecting his ability to prepare for trial.
Standard of Review
Whether a change in an indictment is a substantial alteration or not presents a question of law and is reviewable de novo. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516 (1994).
Factual Background
At trial, State’s witness SBI Agent Baxter testified that she had analyzed the contents of several unknown substances found in Mr. Bridges’ home. In her tests, she determined the presence of three immediate precursor chemicals in the manufacture of methamphetamine: pseudoephedrine, iodine crystals and red phosphorus (T pp. 64-65, 67, 71). Agent Baxter also reported on her analysis of the bilayered liquid found in a glass jar.
According to Agent Baxter, two tests are required in order to determine whether an unknown substance is a controlled substance: a preliminary test and a confirmatory test. During
Agent Baxter’s analysis of the bilayered liquid, the preliminary test indicated the presence of methamphetamine. However, the required confirmatory test indicated a very weak presence of the drug, in an amount too low to meet the conclusive standard. Therefore, Agent Baxter concluded that the liquid did not contain an identifiable quantity of methamphetamine (T pp. 65-66, 71, 77). Agent Baxter did not report detecting methamphetamine in any other substance found in Mr. Bridges’ home.
After Agent Baxter’s testimony, the State rested its case and court adjourned for the evening (T pp. 79-80). At the beginning of the proceedings on the following day, the State requested that the court allow the indictment to be amended from charging “manufacturing” to “attempted manufacturing” of methamphetamine, based on the State’s own evidence (T p. 81). The trial court initially deferred discussion on the issue (T p. 81). Later, the State renewed its request. During the ensuing discussion of that issue and of the defendant’s motion to dismiss, the trial court indicated that it had previously granted the State’s motion to amend the indictment (T pp. 90-91). Subsequently, the court’s instruction to the jury was that the defendant was charged with attempting to manufacture methamphetamine (T pp. 153-154), and the jury found Mr. Bridges guilty of that charge (T p. 165-166; R p. 19).
Discussion
During the State’s case, there was substantial evidence that the defendant had tried to produce methamphetamine but no evidence that the defendant had,in fact, successfully manufactured the drug. After the State’s own expert witness testified that she could not be certain any methamphetamine had been produced, the State realized, in the middle of the trial, that it had not proved its case. Quickly shifting gears, the State sought and received permission to substantially amend the indictment and charge the defendant with attempted manufacture of the drug.
Jurisdiction to try a defendant on a felony charge is predicated on a valid bill of indictment. That right is guaranteed by Article I, Section 22 of the North Carolina Constitution. An indictment charging a statutory offense is required to allege all the essential elements of that offense. The evidence in a criminal case must correspond with the essential and material allegations of the indictment required to charge the offense. State v. Grady, 136 N.C. App. 394, 396, 524 S.E.2d 75, 77 (2000).
A variation between the allegation of the indictment and the proof at trial is not fatal as long as the variation does not alter an element of the crime, or if it may be considered mere surplus in the indictment. A change in the indictment becomes material and of the essence when it deprives the defendant of the opportunity to adequately present his defense. State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984).
Our statutes provide, in plain language, that a bill of indictment cannot be amended. N.C.G.S. § 15A-923(e). Despite this express prohibition against amendment of an indictment, the Courts have interpreted this prohibition against amendments narrowly, meaning only that an indictment may not be amended in a way that would substantially alter the charge set forth in the indictment. State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994). Our Courts have also determined that an indictment may not alter the burden of proof. State v. Snyder, 343 N.C. 61, 468 S.E.2d 221 (1996). Prejudice is inherent in any amendment which alters the burden of proof or affects a material change in the allegations of the indictment. State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638 (1982).
Recently, in State v. Silas,our Supreme Court has reviewed the issue of amended indictments and expressed a standard for determining whether the amendment amounts to a substantial alteration of the charged offense:
In enacting Chapter 15A of the General Statutes, the Criminal Procedure Act, the General Assembly provided that a bill of indictment may not be amended. This Court has interpreted that provision to mean a bill of indictment may not be amended in a manner that substantially alters the charged offense. In determining whether an amendment is a substantial alteration, we must consider the multiple purposes served by indictments, the primary one being to enable the accused to prepare for trial.
State v. Silas, 360 N.C. 377, 379-80, 627 S.E.2d 604, 606 (2006) (quotations, citations, and alterations omitted; emphasis added).
In Silas, that Court elaborated on the concept of “substantial alteration”: “[w]hen the prosecution amends an indictment in such a manner that the defendant can no longer rely upon the statement of the intended felony in the indictment, such an amendment is a substantial alteration and is prohibited by N.C.G.S. § 15A-923(e).” Id.at 382, 627 S.E.2d at 607. To allow such practice would enable the State to thwart the very purpose of an indictment, “'“to enable the accused to prepare for trial.”'” Id.(citations omitted).
Here, in preparing a defense, the defendantwas entitled to rely on the specific allegation made in the original indictment: a charge of manufacturing methamphetamine under N.C.G.S. § 90-95(b)(1a). When the trial court allowed the State to amend the indictment to attempted manufacture, the amendment amounted to more than a substantial alteration of the offense;it actually amounted to a substantially new charge against the defendant.
In anticipating objections to the assertion that manufacturing is a different offense than attempted manufacturing, defendant points to several statutes within Article 5, the NC Controlled Substances Act, under which the defendant was charged. N.C.G.S. § 90-87(15) defines the term “manufacture” as follows:
...the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and "manufacture" further includes any packaging or repackaging of the substance or labeling or relabeling of its container...
N.C.G.S. § 90-87(15).
Nowhere in this definition does “manufacture” include the attempted manufacture of a controlled substance. By way of contrast, defendant would point to the definition of “deliver” and “delivery” as defined in the same statute:
“Deliver” or “delivery” means the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
N.C.G.S. § 90-87(7)(emphasis added).
If the legislature had intended the charge of controlled substance “manufacture” to also include the “attempted manufacture” of those substances, they would have written the definition to include that situation, as they did in considering the delivery of controlled substances to include “attempted transfer”.
That the attempted act of manufacture is a separate offense is further reinforced by considering the following statute in that Article:
Except as otherwise provided in this Article, any person who attempts or conspires to commit any offense defined in this Article is guilty of an offense that is the same class as the offense which was the object of the attempt or conspiracy and is punishable as specified for that class of offense and prior record or conviction level in Article 81B of Chapter 15A of the General Statutes.
N.C.G.S. § 90-98. That is, a person who attempts to commit manufacture of methamphetamine, as defined in Article 5, is guilty of an offense, but of a separate offense in the same class as the offense – the manufacture of methamphetamine – which was attempted.
Our Courts have recognized that where an amendment to an indictment may change the theory to an alternate but lesser included offense, an amendment is acceptable. Here, though, an attempt to manufacture is not a lesser-included offense of manufacturing.
Effectively, then, by allowing the State to amend the indictment, a new charge was brought against the defendant in the middle of his trial. The defendant could no longer rely upon the statement of the intended felony in the indictment; thus, the amendment was a substantial alteration, and the defendant was prejudiced.
If the defense had been able to prepare a case to defend the charge of attempted manufacture, theremight well have been a different focus at trial. The right to present a defense includes more then the right to test the sufficiency of the evidence; it also includes the right to argue to the jury the reasonable inferences from that evidence. In order to do this, the defense would have needed an opportunity to develop a coherent theory of the case and to present that to the jury. Here, though, the defense had no forewarning that the charge would change midway through the trial, and no chance to develop an alternate theory.
Conclusion
The trial court allowed the State to make a substantial alteration of the charge against the defendant after the State rested its case. Because this occurred in the middle of the trial, the trial court deprived the defendant of the right to prepare an effective case against the amended charge. Therefore, the defendant was denied a fair trial and his conviction should be vacated.
- THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE STATE RESTED ITS CASE WITHOUT PRESENTING SUFFICIENT EVIDENCE OF THE CHARGED OFFENSE AND DEFENDANT’S COUNSEL MADE NO MOTION TO DISMISS.
ASSIGNMENT OF ERROR 7
T pp. 79, 81, 90-91
Introduction
Defendant’s counsel did not move to dismiss the case against the defendant at the close of State’s evidence. Subsequently, the State conceded that the evidence it had presented was insufficient to support the original indictment, and the State requested that the trial court amend the charge against the defendant. At issue is whether defendant’s constitutional right to effective assistance of counsel was denied by his attorney’s failure to move to dismiss at the close of the State’s case, and by his failure to object to the State amending the indictment midway through the trial.
Standard of Review
The standard of review for a constitutional claim is de novo.
Factual Background
At the conclusion of testimony by the State’s witnesses, the State rested its case and court adjourned for the evening. The defense did not move to dismiss before court ended (T pp. 79-80). At the beginning of the proceedings on the following day, the State conceded that the evidence presented did not support the indicted charge of manufacturing methamphetamine. Without making a formal motion, the prosecutor indicated that the State wanted to change the theory of the case and seek to convict the Mr. Bridges on a charge of “attempted manufacturing”. The trial court deferred discussion on that topic until another issue was resolved (T p. 81).
Later in the proceeding, defendant’s counsel moved to dismiss the case (T p. 90). The trial court denied defendant’s motion to dismiss. When the defendant’s counsel raised the issue of the amendment, the trial court indicated that the amendment had been allowedbefore the ruling on the motion to dismiss:
THE COURT: ...The Court denies your motion to dismiss on that basis. Any other motions?
MR. SPARROW [Defendant’s co-counsel]: Did I understand the DA to be amending the charge?