State v. Berryman

BRADY, Justice

dissenting.

The indefensible position of the State was announced at oral arguments by State’s counsel: “Let’s posit a delay of 20 years; let’s posit a delay of 50 years ... the right doesn’t exist.” I cannot condone, much less join, the decision of the majority in this case or acquiesce to the ideas of State’s counsel at oral arguments. We have appellate rules for a reason, and those rules must be followed or the principles and policies upon which these rules are based fall to the wayside. *224 Because I believe this Court should promote the quick and fair administration of justice, I cannot join my colleagues in holding no violation of defendant’s rights occurred when an agent of the State delayed his appeal by six years. The majority opinion extends beyond the outer limits of justice, announcing a benchmark that is constitutionally inadequate. This unenviable position merely gives lip service to an important right that is essential to our criminal justice system. As I believe justice cries out for more, I respectfully dissent.

The State’s argument is: As no constitutional right exists to appeal one’s conviction, there can be no constitutional right to a speedy appeal. This reasoning does not comport with our jurisprudence or the jurisprudence of the Supreme Court of the United States. While there is no federal constitutional right to an appeal of a criminal conviction, see Abney v. United States, 431 U.S. 651, 656 (1977), in North Carolina there is a statutory right of appeal. See N.C.G.S. § 15A-1444 (2005); State v. Blades, 209 N.C. 56 , passim, 182 S.E. 714 , passim (1935). When the State grants a person a property or a liberty interest, the Fourteenth Amendment to the United States Constitution requires the interest not be later deprived without, due process of law, and many courts have recognized this principle as applicable to appeals. See, e.g., Douglas v. California, 372 U.S. 353 (1963); United States v. Johnson, 732 F.2d 379 (4th Cir.), cert. denied, 469 U.S. 1033 (1984); Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981).

Additionally, our North Carolina Constitution provides protection for our citizens in the form of the law ,of the land clause: “No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. art. I, § 19. In this State, the North Carolina Rules of Appellate Procedure are the laws of the land. Id. art. IV § 13(2). In fact, any statute which violates of the Rules of Appellate Procedure cannot stand because it also violates the Constitution. See State v. Elam, 302 N.C. 157, 160 , 273 S.E.2d 661, 664 (1981). The rules provide, in non-capital criminal cases, a transcript must be procured and delivered within sixty days from the “date the clerk of the trial court serves the order upon” the court reporter. N.C. R. App. P. 7(b). Laws are meaningless if not enforced. The citizenry should not be expected to follow the law while the agents of the State disregard it. Court reporters are not totally immune from any responsibility under the law. I cannot join the majority’s opinion, and I anxiously await discovery of the next *225 rule which will be pushed to the side to the detriment of the good will of the judiciary and the rights of our citizens.

There are compelling reasons why we should recognize a right to a speedy appeal based upon due process jurisprudence. In 1962 the Supreme Court of the United States said:

When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged. Second, the preference to be accorded criminal appeals recognizes the need for speedy disposition of such cases. Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement.

Coppedge v. United States, 369 U.S. 438, 449 (1962) (footnote omitted). This language is equally persuasive in this case. The very reason our appellate rules provide a sixty day period for the provision of a transcript is so the courts do not become clogged. It is important we keep our courts open and appeals speedy because “[d]elay... erodes the efficacy of law enforcement.” Id. A six-year delay certainly casts doubt upon our system of appellate review and is totally unacceptable. See Guam v. Olsen, 462 F. Supp. 608, 613 (D. Guam App. Div. 1978) (reversing a conviction and ordering an acquittal “turning loose a presumptively guilty [defendant, in order to vindicate the public policies involved” because of a two-year delay in transcript preparation), ce rt. denied, 444 U.S. 1016 (1980).

I agree with the majority and other persuasive jurisdictions that the test of Barker v. Wingo is the proper test in speedy appeal cases. 407 U.S. 514 (1972). The Supreme Court of the United States set out three protected interests in Barker . Prevention of oppressive pretrial incarceration, minimization of anxiety and concern of the defendant, and impairment of the defense. 407 U.S. at 532 .

In speedy appeal cases, criminal defendants wait in prison unless they are lucky enough and have the resources and circumstances to be released on bail, a rare occurrence in North Carolina. See N.C.G.S. § 15A-536 (2005). In prison, there is no Blackberry, there is no Internet, and there are no iPods. The inmate’s liberty is significantly *226 curtailed. Except for capital punishment, confinement to prison is the most serious deprivation of life and liberty our law allows. Therefore, it is vital we work quickly on appeal to provide potentially wrongfully or unconstitutionally confined defendants the relief required to right the wrong in a timely manner. If a defendant’s conviction should be reversed, every day spent in prison are days that can never be given back. Should a defendant be entitled to a new trial, evidence wastes away in the lockers, memories fade, and recollections become clouded while the defendant waits years for the preparation of his transcript. These are not merely hypothetical, but real situations that will occur because of the majority’s failure to impose a proper sanction for the violation of defendant’s rights. The United States Court of Appeals for the Fifth Circuit spoke well when it said: “The cancerous malady of delay, which haunts our judicial system by postponing the rectification of wrong and the vindication of those unjustly convicted, must be excised from the judicial process at every stage.” Rheuark, 628 F.2d at 304 .

Therefore, I agree the similarities in the interests of a speedy trial and the interests of speedy appeals are sufficiently similar to use the Barker v. Wingo balancing test to determine when a defendant is denied his constitutional right to a speedy appeal. This balancing test considers the following factors: (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. See Barker, 407 U.S. at 530 . Here we have an extraordinary time of delay. Six years is longer than either of the time periods in Rheuark (two years) or Johnson (two years). Six years is longer than the five year delay before trial in Barker . Six years is certainly a long enough period of time to implicate the right to a speedy appeal.

As to the second prong of the Barker test, the reason for the delay is not exactly apparent; however, it was no fault of defendant’s. At least ten inquiries were made seeking the transcript from the court reporter before the transcript was finally delivered. All we know is that for some reason, the court reporter was unable to fulfill his duties in getting the transcript to defendant in time for him to properly perfect the record on appeal.

This seems to be a systemic problem. Chief Justice Lake delivered these words to the General Assembly on 7 April 2003:

Two years ago, in my State of the Judiciary, I gave the General Assembly one clear example of where we have been far less *227 than cost-efficient, and have flat-out failed the people of North Carolina. I stated that it is not an infrequent occurrence for a' superior court judge to open court on a Monday morning for the call of the calendar and then the trial of an important case. The attorneys are in place, the litigants are there, the witnesses are there, the clerk of court is there, and the courtroom is filled to overflowing with prospective jurors from throughout the county. The case is ready to proceed — with one notable exception. There is no court reporter. The entire process disintegrates, not just for that important case, but frequently for the entire session of court. This is because we did not have then and we do not have now sufficient court reporters to cover our judges in court, and the funding for any kind of reliable video or audio backup has not been forthcoming.

The damage from this kind of breakdown is measured not just in the cost of wasted time and resources, but also in the enormous amount of bad will and hostility generated and directed toward our court system by all those citizens who have been made to suffer the wasteful loss of valuable time out of their lives. The cost of a court reporter is minimal compared to this. Also, the lack of sufficient court reporter resources is probably the single factor most responsible for extreme delay in appellate review of cases.

Chief Justice I. Beverly Lake, Jr., 2003 State of the Judiciary to the North Carolina General Assembly, 6-7 (April 7, 2003). The Chief Justice went on to detail certain cases before this Court in which the lack of adequate and competent court reporters severely delayed the resolution of appeals in death penalty cases. Id. at 7-9. In his final mention of court reporters in this speech, the Chief Justice noted:

At the Court of Appeals level, there are motions in hundreds of cases each year for extensions of time for preparation of the transcript by court reporters, who obviously must prepare their transcripts for the appellate courts when they are not taking testimony in the trial courts. Two years ago, I asked the General Assembly to give us at least four additional court reporters as a priority matter. Today, we have a net loss of one.

Id. at 9.

This situation is no better two years later. See Chief Justice I. Beverly Lake, Jr., Remarks of Chief Justice I. Beverly Lake, Jr. *228 to the “Judicial Advocates” Meetings (Sept. 26-28 2005). The North Carolina Constitution provides: “The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.” N.C. Const. art. IV, § 1. In his speeches, the Chief Justice iterated his position that the underfunding of the judiciary by the General Assembly unconstitutionally deprives the judicial department of the power to fulfill its duties in the state. I make one further contention — the vast underfunding of the judicial department insofar as it causes years-long delays in the complete resolution of criminal cases violates the Due Process Clause of the United States Constitution and the “law of the land” clause of the North Carolina Constitution. Yet, as recognized by one federal court: “We cannot hold the reporter in contempt; we cannot mandate the Superior Court to hire more reporters; we cannot mandate the Legislature to appropriate more money for that purpose.” Olsen , 462 E Supp. at 614. However, “[n]o administrative or budgetary problem in connection with the employment of court reporters can be allowed to take precedence over the . . . public interests at stake in this case.” Id. at 613 .

The majority asserts defendant has shown no evidence supporting his contention the State acted willfully to delay or neglect the production of the transcript. However, it is obvious that an agent of the State was neglectful in preparation of the transcript. Official court reporters are provided for by statute, and the court reporter in this case, Johnie L. King, III, was an employee of the Administrative Office of the Courts and, therefore, an agent of the State. See N.C.G.S. § 7A-95 (2005). “Few positions in a society governed by law are more important than that of a court reporter.” See Lanier v. State, 684 So. 2d 93, 101 (Miss. 1996) (holding a defendant would be allowed, on retrial, to argue the court reporter’s “negligence, incompetence or malfeasance” in failing to provide a transcript in three and one-half years prejudiced his defense). There is no other explanation than the reporter did not finish the transcript on time. A six-year delay in the preparation of a one hundred forty-two page transcript can come about only through willful action or neglect of the preparation of the transcript. “[D]elays caused by . . . court reporters are attributable to the government for purposes of determining whether a defendant has been deprived of due process on appeal.” United States v. Wilson, 16 F.3d.1027, 1030 (9th Cir. 1994). I refuse to concur with a result that holds a defendant’s rights were not violated merely because it was *229 one state actor, the court reporter, who was neglectful, as opposed to another state actor, such as the trial court or the prosecutor. 1

The third factor here, defendant’s assertion of his right, does not weigh against defendant. What else was the defendant to do in this case besides make numerous requests for transcripts? It is not essential in a speedy trial case for the defendant to assert his right to a speedy trial, and the failure to do so is not an express waiver, however, it is a factor to consider. See Barker, 407 U.S. at 531-32 . However, as the Court noted in Barker , “We .emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532 . Defendant asserted his right to a speedy appeal and its violation by both seeking quick preparation of the transcript and asserting the right before the Court of Appeals. I believe defendant did all that was required of him by obtaining an order from the trial court ordering the preparation of the transcript and by making numerous oral and written requests for the delivery of the transcript over a six-year period. This Court has historically required defendants to cross every “t” and dot every “i” in preserving issues and making arguments before this Court. While the majority acknowledges this delay is egregious, it turns a blind eye, allowing the court reporter to blatantly disregard his professional and legal duty to prepare a one hundred forty-two page transcript in a specified period, with no fear of reprisal. It is not a criminal defendant’s duty to manage and supervise the court reporters of this State. See Allen v. State, 686 N.E.2d 760, 784 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999). Perhaps defendant should have requested a day-pass from the warden at Central Prison to travel to the Wake County courthouse and prepare his transcript himself!

The final prong of the Barker test is whether the defendant suffered prejudice because of the delay. The majority uses spurious logic here to say that because the Court of Appeals found defendant’s appeal without merit he suffered no prejudice. I once again draw an analogy from the realm of speedy trial cases and note the Supreme Court of the United States held in Doggett v. United States:

[A]ffirmative proof of particularized prejudice is not essential to every speedy trial claim.... Thus, we generally have to recognize that excessive delay presumptively compromises the reliability *230 of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

505 U.S. 647, 655-56 (1992) (citations omitted). Here, the length of delay is totally unacceptable and without excuse. Six years for the preparation of any transcript exceeds all bounds of reasonableness and decency in the quick prosecution and resolution of criminal matters.

The time allowed by our law for the preparation of a non-capital criminal transcript is sixty days. Here, it took nearly two thousand two hundred days to prepare a one hundred forty-two page transcript, or approximately thirty-six times longer than allowed. “When the Government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to relief.” Id. at 658 (footnotes and citations omitted). If six times the time period is sufficient to find presumptive prejudice, thirty-six times the time period allowed by law is certainly sufficient.

The majority incorrectly places the burden on defendant to prove the reason for delay and the prejudice resulting therefrom. This presumption of prejudice must be rebutted by the State and not merely by pointing to the lack of evidence of actual prejudice — for this is the exact problem the Supreme Court of the United States identified in Doggett: It is difficult for a defendant to demonstrate prejudice because a delay that results in the fogging of memories may benefit either side. Here, the State has presented nothing that rebuts this presumption. In addition, this presumption of prejudice should apply in speedy appeal cases because in the event a defendant is entitled to a new trial, the longer the appeal takes, the more likely prejudice will result in the clouding of witnesses’ memories along with the deterioration of evidence.

Because all the Barker factors weigh in favor of defendant, I would hold he is entitled to relief. As the majority’s decision today encourages unreasonable delay in the process of criminal justice, I respectfully dissent and would reverse and remand to the Court of Appeals with instructions to fashion a proper remedy for this constitutional violation.

. Even if the delay is in part attributable to defendant’s counsel, I cannot place the responsibility for the inordinate delay upon defendant when the blame would lie with defendant’s ineffective counsel. See e.g., Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995), cert. denied, 516 U.S. 905 .