The North Carolina Court of Appeals

The North Carolina Court of Appeals

No. COA10-1172 DISTRICT 24

THE NORTH CAROLINA COURT OF APPEALS

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THE STATE OF NORTH CAROLINA)

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v.) From Avery

)09 CRS 50300

CHRISTOPHER JAMES WOODARD)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

DID THE TRIAL COURT UNFAIRLY PREJUDICE DEFENDANT BY COMPELLING DEFENDANT TO BE WEARING PRISON CLOTHING ON THE FIRST DAY OF HIS TRIAL, INCLUDING JURY SELECTION AND THE FIRST DAY OF EVIDENCE?

DID THE TRIAL COURT VIOLATE DEFENDANT’S RIGHTS TO DUE PROCESS BY COACHING THE ASSISTANT DISTRICT ATTORNEY ON HER EXAMINATION OF WITNESSES, INCLUDING TELLING HER WHAT QUESTIONS TO ASK OF ONE OF THE STATE’S CHIEF WITNESSES?

DID THE TRIAL COURT ERR BY ADMITTING INTO EVIDENCE, OVER DEFENDANT’S OBJECTION 404(B) EVIDENCE?

DID THE TRIAL COURT ERR BY DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGES AGAINST HIM BASED ON THE INSUFFICIENCY OF THE EVIDENCE PRESENTED?

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STATEMENT OF THE CASE

This case came on before the Honorable James U. Downs, Judge Presiding, at the April 26, 2010 Criminal Superior Court of Avery County. Defendant-Appellant (hereinafter, “defendant”) had been indicted for trafficking in more than 28 grams of opium by transportation, trafficking in more than 28 grams of opium by possession, breaking and entering, felony larceny and possession of stolen goods. A jury was duly impaneled, heard evidence, and on April 28, 2010 found defendant guilty of all charges. Defendant gave notice of appeal on April 28, 2010 in open court. On May 5, 2010, the Appellate Defender appointed undersigned counsel to perfect Defendant’s appeal. The transcript in this matter was electronically delivered to undersigned counsel on June 13, 2010. Undersigned counsel sought and received one extension of time from the trial court in this matter, giving her until August 18, 2010 to prepare and serve the proposed record on appeal. The record on appeal was filed on September 24, 2010 and docketed on September 28, 2010.

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STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Defendant hereby appeals his convictions pursuant to the Sixth and Fourteenth Amendments to the United States and North Carolina Constitutions; N.C.G.S. secs. 7A-27(b); 15A-1444(a) and the North Carolina Rules of Appellate Procedure.

STATEMENT OF THE FACTS

This case was called for trial on April 26, 2010 and began on even date with the selection of a jury. (Tr. P. 3) Just after the record indicates that the jury had been selected, the following colloquy ensued between the State and the Court:

THE STATE: “I anticipated generally picking the jury would take the rest of the afternoon. It’s taken quicker than I imagined. My first witness that I planned to call is the pharmacist over at Crossnore Drug. He may need a little more time to get over here.”

THE COURT: “Call another one first. Call him and get him here and call another one first.”

THE STATE: “You wouldn’t be open and also I see that Mr. – I just noticed he was still in prison clothes.

THE COURT: What you wanting to do? Quit all that mumbling around.

THE STATE:Your Honor ...

THE COURT:No, I’m not amenable to quitting now and starting tomorrow morning.

THE STATE:Okay.

THE COURT:Get on with it. We’ll waste time at the end of the week, not at the beginning.

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THE STATE:Yes, sir.

THE COURT:Get busy. Crossnore is just right around the curve.

THE STATE:Yes, sir. (Tr. Pp. 3-4)

And thus, defendant’s criminal trial began, with defendant wearing prison clothing. (Tr. P. 3)

The State’s evidence consisted of the following:

Detective Frank Catalano testified that he was called to investigate a break in to the Crossnore Drugstore on March 22, 2009 in the early morning hours, before dawn. He saw bottles of pills in the parking lot about 10-15 feet from a store window that was broken. Detective Catalano testified that the store’s pharmacist, Bill Martin, arrived on the scene. Inside the store drugs, Detective Catalano testified that pills were knocked off the shelf and on the floor. (Tr. Pp. 5-7)

Detective Catalano testified that Mr. Martin gave him a list of inventory that was purportedly missing from the store, and also testified that the inventory purported to calculate the total monetary loss to the store at over $31,000. Among the drugs alleged to have been taken were various narcotics and controlled substances. (Tr. Pp.9-11) Detective Catalano testified that between four and five thousand pills were missing. (Tr. P. 13)

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According to Detective Catalano, he was contacted about a week later by Sheriff Dick Hollifield, of McDowell County about a man by the name of Christopher Hensley. Detective Catalano went to speak with Mr. Hensley, after which, he issued a warrant on Mr Hensley and also issued a warrant on a man named Mr. McDaniels, (later referred to as Patrick McDaniel), who, at the time, was in the Burke County jail. (Tr. Pp. 12-14). Detective Catalano testified that after speaking with Mr. McDaniels, he then took out a warrant on Christopher Woodard. (Tr. P. 14)

Detective Catalano testified that he met with defendant. When asked if he advised defendant of his rights, Detective Catalano testified, “Yes ma’am. When asked if defendant waived his rights, Detective Catalano testified, “At that point, I believe I was advised he didn’t have any – he didn’t know what I was talking about.” (Tr. P. 14)

The State then asked, “Okay. Did you advise him on why you were there or what you were investigating?” To which, Detective Catalano replied, “I believe I did. I don’t recall the exact words.” (Tr. P. 15) Detective Catalano testified that defendant told him he did not know what he was talking about. (Tr. P. 15)

Detective Catalano also testified that he and Mr. Hensley went to a place called Burkemont Mountain and there uncovered a large pile of prescription medication that was buried in a hole about three feet in depth. (Tr. Pp. 22-23) He testified that he collected the medication and counted them. (Tr. P. 24)

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Danny Phillips testified that he was present when Detective Catalano talked with Mr. Hensley and Mr. McDaniel and was also involved in the digging at Burkemont Mountain and in the counting of pills. (Tr. Pp. 27-29). Detective Phillips also testified that he was present when Detective Catalano interviewed defendant. When asked if defendant waived his rights, Detective Phillips sidestepped the question and responded saying, “He talked enough to tell us he didn’t know what we were talking about.” (Tr. P. 29)

William Martin testified that he was the pharmacist manager at Crossnore, and had been so for about a month. (Tr. P. 31). According to Mr. Martin over 2600 hydrocodone tablets were stolen from the store’s inventory. He claimed that he was able to identify the pill bottles because there was a date of purchase and a partial account number on stickers on the bottles. (Tr. P. 40) Defense counsel did not cross-examine Mr. Martin. Outside the presence of the jury, the trial court coached the Assistant District Attorney that she should ask Mr. Martin more questions about the bottles, and told her what to ask; whereupon, the State recalled Mr. Martin and examined him in accordance with the trial court’s advice. (Tr. P. 41-42)

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Christopher Hensley testified that he was twenty years old and unemployed. He testified that he and defendant and Patrick McDaniels committed the break in of Crossnore in question and stole pharmaceutical drugs. (Tr. Pp. 47-53). Mr. Hensley also testified, over defendant’s objection that defendant and Mr. McDaniel had also broken into a drugstore in Mitchell County a few days prior to this break-in. (Tr. Pp. 57-70) On cross-examination, Mr. Hensley admitted that he was a convicted felon and his transcript of plea of guilty for the Crossnore break-in was admitted into evidence as Defense Exhibit 1. (Tr. Pp. 71-75)

Patrick McDaniel testified that he is thirty-one and incarcerated for three years for the break-in in question in this case. (Tr. P. 87) He testified that he, Chris Hensley and Nathan Baldwin committed the break-in at Crossnore, and not defendant. (Tr. P. 91) Mr. McDaniel testified that the detectives were misinformed by Mr. Hensley about defendant. (Tr. P. 91) On cross-examination, Mr. McDaniel testified that the day he spoke with the detectives he was scared about facing 20 years in prison; that the detectives simply regurgitated Mr. Hensley’s statement to him when they spoke and that he simply “went along with it” out of fear. (Tr. P. 97)

ARGUMENT

I.THE TRIAL COURT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTS UNDER THE UNITED STATES AND NORTH CAROLINA CONSTITUTIONS, AND NORTH CAROLINA STATUTE BY COMPELLING DEFENDANT TO WEAR PRISON CLOTHING DURING JURY SELECTION AND DURING THE FIRST DAY OF THE PRESENTATION OF EVIDENCE AGAINST HIM.

(Proposed Issue No. 4; Tr. P. 3)

A.Standard of Review

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An error not preserved by objection at trial or operation of law may be assigned as plain error on appeal. N.C. R. App. P. 10(c)(4) 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).

B.Facts Underlying the Issue

As detailed in the facts statement of this brief, defendant, by admission of the State, was wearing prison clothing during his first day of trial, during which a jury was selected, and the State began putting on evidence against him. To recap the colloquy:

THE STATE: “You wouldn’t be open and also I see that Mr. – I just noticed he was still in prison clothes.

THE COURT: What you wanting to do? Quit all that mumbling around.

THE STATE:Your Honor ...

THE COURT:No, I’m not amenable to quitting now and starting tomorrow morning.

THE STATE:Okay.

THE COURT:Get on with it. We’ll waste time at the end of the week, not at the beginning.

THE STATE:Yes, sir.

THE COURT:Get busy. Crossnore is just right around the curve.

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THE STATE:Yes, sir. (Tr. Pp. 3-4)

And thus, defendant’s criminal trial began, with defendant wearing prison clothing. (Tr. P. 3) It is notable that defendant’s trial attorney did not object to this error.

C.Legal Analysis

N.C.G.S. section 15 176 states that a criminal defendant is not to be tried in prison uniform. Specifically, the statute states:

It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with shaven or clipped head. And no person charged with a criminal offense shall be tried in any court while dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with head shaven or clipped by or under the direction and requirement of any sheriff, jailer or other officer, unless the head was shaven or clipped while such person was serving a term of imprisonment for the commission of a crime. N.C.G.S. section 15 176

Notably, the statute also provides as follows: “Any sheriff, jailer or other officer who violates the provisions of this section shall be guilty of a Class 1 misdemeanor.” (October 1, 1994)

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This case is distinguishable from cases in which it was not clear or not acknowledged that the defendant was being tried while wearing prison clothing, such as State v. Westry, 15 N.C.App. 1, 12, 189 S.E.2d 618, cert. denied 281 N.C. 763, 191 S.E.2d 360 (1972) and State v. Berry, 51 N.C. App. 97, 275 S.E.2d 360 (1981).

In the instant case, the State attempted to get the trial court to delay the start of defendant’s trial, in part, because she had thought jury selection would take longer than it had, and she was unprepared to call her first witness, and because she noticed and pointed out to the trial court that defendant was wearing prison clothing. In response to this, the trial court urged her to “get on with it,” and to “get busy,” failing to acknowledge her plea regarding defendant. (Tr. P. 3-4) Thus, the trial court in effect compelled the trial to begin, and by so doing, compelled defendant to stand trial wearing prison clothing, in direct violation of G.S. 15-176. This procedure violated the plain language of the statute.

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There is no question that compelling Mr. Woodard to stand trial for a crime while wearing prison clothing prejudiced his appearance as an innocent man before the jury that ultimately convicted him. It is axiomatic that in our country a person is innocent until proven guilty; not the other way around. The trial court’s failure to comply with this statute, by compelling defendant to stand trial in his prison clothing was plain error that unfairly prejudiced him at his criminal trial. For this reason, his conviction should be vacated.

II.THE TRIAL COURT VIOLATED DEFENDANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT, INCLUDING HIS RIGHTS TO DUE PROCESS AND TO AN IMPARTIAL JUDGE BY COACHING THE ASSISTANT DISTRICT ATTORNEY ON HER EXAMINATION OF WITNESSES, INCLUDING TELLING HER WHAT QUESTIONS TO ASK OF ONE OF THE STATE’S CHIEF WITNESSES.

(Proposed Issue No. 5; Tr. P. 42)

A.Standard of Review

When reviewing a trial judge's comments and actions to determine if they cross into the realm impermissible acts, we must apply a totality of the circumstances test. State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). A trial judge's broad discretionary power to supervise and control the trial “will not be disturbed absent a manifest abuse of discretion.” State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984).

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In deciding whether a judge should recuse himself from a proceeding, the test is whether a reasonable person would question the judge’s impartiality. Savani v. Savani, 102 N.C.App. 496, 500, 403 S.E.2d 900, 903 (1991) An error not preserved by objection at trial or operation of law may be assigned as plain error on appeal. N.C. R. App. P. 10(c)(4) 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).

B.Facts Underlying the Issue:

During the assistant district attorney’s examination of State’s witness, Mr. William Martin, the pharmacist manager of the Crossnore Drugstore, the trial court assisted the State in formulating questions that were helpful to the State’s case against defendant. The context was as follows: Ms. Springer, the assistant district attorney, was asking Mr. Martin to identify various State’s exhibits, including State’s Exhibit 6, an inventory sheet listing drugs that were purportedly taken from the drugstore; and State’s Exhibit 7, an exhibit with Mr. Martin testified was a generic Carbamazepine bottle that belonged to the drugstore. The State then moved to introduce these exhibits into evidence. Defense counsel objected, arguing, “I have no idea what’s inside of that bottle and I’m not certain that this is an objection I need to make for whatever else is in that box over there.” The court overruled defendant’s objection. (Tr. P. 41)

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The assistant district attorney then questioned Mr. Martin about “identifying codes” that purported to show that the prescription bottles recovered by law enforcement in this case belonged to Crossnore. (Tr. P. 41) Ms. Springer asked, “[s]o on any pills bottles that have that sticker you would be able to identify as being pill bottles that were in your inventory?” Mr. Martin replied: “Yes, this was – we were blinded to what the deputies had picked up. This report was generated strictly from our reporting mechanism.” (Tr. P. 42)

At this point Ms. Springer stated on record that she had no further questions. Defense counsel declined to cross-examine Mr. Martin. The trial court then asked the jury to go into the jury room, “for just a moment please.” (Tr. P. 42). Outside the presence of the jury, the following colloquy ensured between the Court and the State:

THE COURT:Mrs. Springer.

THE STATE:Yes, sir.

THE COURT:Are you not going to ask this witness to open up that bottle and see if those pills have identifying marks on them to show that they’re consistent with what the external identification of the bottle shows that they are?

THE STATE:Yes, sir, I think that would be a great idea.

Whereupon, the trial court called Mr. Martin back to the witness stand and then called for the jury to return. (Tr. P. 42-43). The court then stated: “All right, go ahead.” Whereupon, Ms. Springer questioned Mr. Martin in accordance with the trial court’s instructions. (Tr. P. 43)

C. Legal Analysis

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Every defendant is entitled to a fair and impartial trial. See State v. Miller, 288 N.C. 582, 598, 220 S.E.2d 326, 337 (1975) “The substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.” Id.

Every person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge . . . in keeping with substantive and procedural due process requirements of the Fourteenth Amendment.'" State v. Sanderson, 336 N.C. 1, 7, 442 S.E.2d 33, 37 (1994), quoting State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975).

The Code of Judicial Conduct Canon 3C(1)(d) provides that "a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” It is well settled that a trial judge must be recused from presiding over a particular trial if the judge's "objectivity may reasonably be questioned" or if "a perception could be created in the mind of a reasonable person that [the judge] thought the defendant [was] guilty of the crimes with which [he was] charged and that it would be difficult for the defendant to receive a fair and impartial trial before [the judge]." State v. Fie, 320 N.C. 626, 628, 359 S.E.2d 774, 776 (1987).

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Furthermore, the trial court “must abstain from conduct or language which tends to discredit or prejudice any litigant.” McNeill v. Durham County ABC Board, 322 N.C. 425, 429, 368 S.E.2d 619, 622, reh'g denied, 322 N.C. 838, 371 S.E.2d 278 (1988). The judge must abstain from conduct or language which tends to prejudice the accused or his cause with the jury. State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951).

The trial court’s coaching Ms. Springer in how to frame and ask questions of one of its chief witnesses assisted the State in presenting its evidence in a more convincing manner to the jury. There is no question that this coaching gave the State an advantage, and, simultaneously, disadvantaged defendant. This was “conduct which tend[ed] to prejudice ... [defendant’s] cause with the jury.”