In re Shackleford

• Decision Date: 19 July 2016
• Docket Number: No. COA15–1266.,COA15–1266.
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Alex SHACKLEFORD.

789 S.E.2d 15

In the Matter of Alex SHACKLEFORD.

No. COA15–1266.

Court of Appeals of North Carolina.

July 19, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Charlene Richardson, for the State.

Appellate Defender, Glenn Gerding, by Assistant Appellate Defender, James R. Grant, for respondent-appellant.

Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe, Raleigh and Varsha D. Gadani, for Holly Hill Hospital.

DAVIS

, Judge.

Alex Shackleford (“Respondent”) appeals from the trial court's order involuntarily committing him to Holly Hill Hospital (“Holly Hill”) for a period of inpatient treatment. On appeal, Respondent argues that the lack of a verbatim transcript of his commitment hearing has deprived him of the opportunity for meaningful appellate review of the commitment order and entitles him to a new hearing. After careful review, we vacate the trial court's order and remand for a new hearing.

Factual Background

On 1 May 2015, Dr. Yi–Zhe Wang (“Dr. Wang”) filed an affidavit and petition for involuntary commitment in which he alleged Respondent was mentally ill and dangerous to himself and others. A magistrate ordered Respondent to be held for examination at Holly Hill that same day. A hearing was held on 14 May 2015 before Judge V.A. Davidian III in Wake County District Court. On 16 May 2015, the trial court entered an order containing the following findings and conclusions:

A. Respondent is a 22 year old male. Respondent was admitted to Holly Hill Hospital on April 25, 2014.

B. Dr. Wang is Respondent's treating physician at Holly Hill Hospital. Dr. Wang has examined the patient six out of seven days per week, beginning on April 27, 2015. Respondent stipulated at the hearing that Dr. Wang is an expert in the field of psychiatry.

C. Respondent has a mental illness and diagnosis of antisocial personality disorder

. Respondent presents with impulsiveness, unlawfulness, deceitfulness, agitation, anger, and lack of remorse.

D. Respondent has been prescribed Depakote for his illness. Dr. Wang testified that Respondent was initially compliant with medication but has refused medication in the two days prior to the hearing. Respondent's medication regimen is not stable at this point.

E. Respondent's grandmother, whom he has lived with since birth, testified that one week prior to the hearing, Respondent threatened to kill her and her husband and burn their house down. Respondent's grandmother also testified about an instance in which Respondent wrestled with his grandmother in an attempt to get to her money. Respondent has also told his grandmother about a voice in his head. Respondent's grandmother also testified about a number of occasions in which Respondent has demonstrated deceitfulness, impulsiveness, and a lack of remorse regarding his grandmother's job and property. His grandmother is concerned that Respondent will injure himself or another person if he is discharged from the hospital.

F. Dr. Wang testified that continued inpatient treatment is necessary. Treatment at a lower level of care would be inappropriate at this time since Respondent has not been cooperative with treatment and has no insight into his illness.

G. Respondent presents a danger to himself and others. Respondent is in need of further treatment at a 24–hour facility for up to 90 days to stabilize his condition and to prepare him to ultimately step down to a lower level of care.

The trial court ordered that Respondent be committed to Holly Hill for a period of time not to exceed 90 days. Respondent entered written notice of appeal on 5 June 2015. Following the entry of notice of appeal, Respondent's appointed appellate counsel, who did not represent him at the commitment hearing, was informed by the court reporting manager for the Administrative Office of the Courts that no transcript of the hearing could be prepared because the recording equipment in the courtroom had failed to record the hearing and there had not been a court reporter present in the courtroom.

Analysis

The only issue presented in this appeal is whether Respondent is entitled to a new involuntary commitment hearing because the lack of a verbatim transcript of the underlying hearing denied him his right to meaningful appellate review. Initially, we note that although Respondent's commitment period has expired, his appeal is not moot given the “possibility that [R]espondent's commitment in this case might ... form the basis for a future commitment, along with other obvious collateral legal consequences[.]” In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633, 635 (1977)

.

An order of involuntary commitment is immediately appealable.

N.C. Gen.Stat. § 122C–272 (2015)

. Pursuant to N.C. Gen.Stat. § 122C–268, the respondent is entitled on appeal to obtain a transcript of the involuntary commitment proceeding, which must be provided at the State's expense if the respondent is indigent. N.C. Gen.Stat. § 122C–268(j) (2015).

Our caselaw contemplates the possibility that the unavailability of a verbatim transcript may in certain cases deprive a party of its right to meaningful appellate review and that, in such cases, the absence of the transcript would itself constitute a basis for appeal. See State v. Neely, 21 N.C.App. 439, 441, 204 S.E.2d 531, 532 (1974)

(“If the circumstances so justify, [the appellant] might ... assert as an assignment of error that he is unable to obtain an effective appellate review of errors committed during the trial proceeding because of the inability of the Reporter to prepare a transcript.”).

However, the unavailability of a verbatim transcript does not automatically constitute reversible error in every case. Rather, to “prevail on such grounds, a party must demonstrate that the missing recorded evidence resulted in prejudice.” State v. Quick, 179 N.C.App. 647, 651, 634 S.E.2d 915, 918 (2006)

. General allegations of prejudice are insufficient to show reversible error. Id. Moreover, “the absence of a complete transcript does not prejudice the defendant where alternatives are available that would fulfill the same functions as a transcript and provide the [appellant] with a meaningful appeal.” State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817 (2000), cert. denied, 531 U.S. 1083, 121 S.Ct. 789, 148 L.Ed.2d 684 (2001) ; see also

In re Bradshaw, 160 N.C.App. 677, 681, 587 S.E.2d 83, 86 (2003) (denying request for new trial where “respondent in this case has made no attempt to reconstruct the evidence....”); In re Clark, 159 N.C.App. 75, 83, 582 S.E.2d 657, 662 (2003) (rejecting request for new hearing where “respondent has made no attempt to ... provide a narration of the evidence....”).

Thus, in accordance with the legal framework set out above, we must first determine whether Respondent made sufficient efforts to reconstruct the hearing in the absence of a transcript. In this regard, Respondent's appellate counsel sent letters to the following persons present at the hearing: Judge Davidian; Dr. Wang; Lori Callaway (“Callaway”), the deputy clerk; Varsha Gadani (“Gadani”), counsel for Holly Hill; Kristen Todd (“Todd”), Respondent's counsel; and Respondent. In these letters, Respondent's appellate counsel requested that each of the recipients provide him with their recollections of the hearing and any notes they possessed regarding the proceeding.

Respondent's appellate counsel received a response from each recipient except for Respondent. Judge Davidian's reply stated as follows: “I do not have any additional memories of the case, other than presented in the order, nor did I retain any notes from the case.” Callaway replied that she did not have any notes from the hearing. Appellate counsel for Holly Hill responded on behalf of both Dr. Wang and Gadani, stating that “they believe that the findings of fact accurately reflect their recollection of the evidence presented at the hearing” and that “[a]ny notes regarding the hearing would be protected under the work product doctrine. In any event, our notes from the hearing would not shed any light on the testimony presented at trial.” The only recipient of the letter who made any attempt to help reconstruct the events of the hearing was Todd, who provided to Respondent's appellate counsel her notes from the hearing.

We find our decision in State v. Hobbs, 190 N.C.App. 183, 660 S.E.2d 168 (2008)

, to be particularly instructive on the question of whether Respondent has “satisfied his burden of attempting to reconstruct the record.” Id. at 186, 660 S.E.2d at 170. In Hobbs, the court reporter's audiotapes and handwritten notes from the entire evidentiary stage of the defendant's criminal trial were lost in the mail. Id. at 184, 660 S.E.2d at 169–70. In an effort to reconstruct the proceedings, the defendant's appellate counsel sent letters to the defendant's trial counsel, the trial judge, and the prosecutor asking for their accounts of the missing testimony. The defendant's trial counsel stated that he had little memory of the charges or the trial, possessed no notes from the trial, and was unable to assist in reconstructing the proceedings. The trial judge stated that she had no notes from the case, and the prosecutor never responded to the inquiry. In light of these efforts, we determined that the appellant had satisfied his burden of attempting to reconstruct the record. Id. at 186–87, 660 S.E.2d at 170–71

.

In the present case, Respondent's appellate counsel took essentially the same steps as the appellant's attorney in Hobbs. Therefore, we similarly conclude that Respondent has satisfied his burden of attempting to reconstruct the record.

We next address whether Respondent's reconstruction efforts produced an adequate alternative to a verbatim transcript—that is, one that “would fulfill the same functions as a transcript....” Lawrence, 352 N.C. at 16, 530 S.E.2d at 817

. As discussed more fully below, we are unable to conclude that the limited reconstruction—consisting solely of Todd's notes—of the evidence...