TABLES of AUTHORITIES Ii

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INDEX

TABLES OF AUTHORITIES...... ii

QUESTIONS PRESENTED

STATEMENT OF THE CASE

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

STATEMENT OF THE FACTS

ARGUMENTS

I.tHE COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED USE OF LEG IRONS ON THE DEFENDANT DURING TRIAL.

II.the state produced Insufficient evidence to prove that Mr. Evans committed the offenses of possession of a stolen motor vehicle and possession of cocaine.

Possession of a stolen motor vehicle

Possession of cocaine

CONCLUSION

CERTIFICATE OF FILING AND SERVICE

TABLE OF AUHORITIES

Cases

Deck v. Missouri, 2005 U.S. LEXIS 4180, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005) 8

People v. Harrington, 42 Cal. 165 (1871)...... 8

State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)...... 7

State v. Boyd, 2006 N.C. App. LEXIS 854, __ N.C. App. __, __ S.E.2d __ (2006) 15

State v. Jackson, 162 N.C. App. 695, 592 S.E.2d 575 (2004).....10

State v. Parker, 316 N.C. 295, 341 S.E.2d 555 (1986)...... 13

State v. Scott, 356 N.C. App. 591, 573 S.E.2d 866 (2002)...... 11

State v. Scott, 11 N.C. App. 642, 182 S.E.2d 256 (1971)...... 12

State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976)...... 9

Statutes

N.C. Gen. Stat. § 15A-1031...... 7

N.C. Gen. Stat. § 15A-1443...... 8

N.C. Gen. Stat. § 20-106...... 12

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No. COA06-410TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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v.)From Forsyth County

)05CRS1456; 05CRS55800, 01

EDDIE EVANS, JR.)

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DEFENDANT-APPELLANT’S BRIEF

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Questions Presented

whether tHE COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED USE OF LEG IRONS ON THE DEFENDANT DURING TRIAL?
whether the state produced Insufficient evidence to prove that Mr. Evans committed the offenses of possession of a stolen motor vehicle and possession of cocaine?

Statement of the Case

Eddie Evans, Jr. was indicted on June 27, 2005, by a Forsyth County Grand Jury, for possession of a stolen motor vehicle, possession of cocaine on jail premises, and for being an habitual felon. (Rpp.8-10) Mr. Evans was tried before a jury commencing on November 3, 2005 at the Superior Court of Forsyth County, the Honorable Ronald E. Spivey presiding. (Rp. 1) Guilty verdicts were entered against Mr. Evans for possession of a stolen motor vehicle and possession of cocaine. (Rpp. 14-15) Mr. Evans pleaded guilty to being an habitual felon. (Rpp. 16-19) Judgment and Commitment Orders were entered on November 4, 2005, and Mr. Evans was sentenced to two consecutive sentences of a minimum of 107 months and a maximum of 138 months imprisonment each. (Rpp.22-25) Mr. Evans appealed. (Rpp. 26-27)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Defendant appeals pursuant to N.C. Gen. Stat. § 7A-27(b) from a final judgment of the Forsyth County Superior Court.

Statement of the Facts

On the morning of May 12, 2006, Ms. Paula Bailey did not find her car when she stepped outside to leave for work. Ms. Paula Bailey testified that she delivers newspapers for the Winston-Salem Journal (Tp. 34) and that on the morning of May 12, 2005 she did not see her car – a white Tempo (Tpp. 35, 51). Ms. Bailey testified that she had only had the car for approximately two weeks before it disappeared on May 12, 2005. (Tp.36) Ms. Bailey also testified that she typically left an extra set of keys in either the ash tray or glove compartment. She explained that since her job required her to get in and out of her car a lot, she liked having an extra set of keys in the car. (Tp. 38) The extra keys consisted of an ignition key and a trunk key and were on a leather strap. (Tp. 40)

A few days later, on May 16, 2005, Ms. Bailey received a telephone call from the police to let her know they had recovered her car. (Tp. 41) The police picked Ms. Bailey up at about 3:15 a.m. and took her to where her car had been recovered whereupon she testified that she immediately recognized her car. (Tp. 43) Ms. Bailey testified that the car was not damaged and that the only thing she noted missing was the tape recorder and the tape of her paper route that had been provided for her newspaper delivery job. (Tpp. 43-44)

Ms. Bailey identified Mr. Evans as the driver when her car was recovered and she testified that she had not given Mr. Evans permission to use her car. (Tp. 46)

Ms. Bailey further testified that one of the police officers handed her a brown paper bag and asked her to clean out her car and place what did not belong to her in the brown paper bag. (Tpp. 46, 52) During the course of removing things that were not hers, Ms. Bailey found a brown bottle under the passenger side floor mat with Mr. Evans’ name on it. (Tpp. 52-54) Ms. Bailey testified that she removed men’s clothing from the back seat and trunk of the car. (Tp. 56) Ms. Bailey testified that she left to go home at 3:45 a.m. (Tp. 57)

Officer S.W. Grinnell with the Winston-Salem Police Department testified that he was working in an off-duty capacity for the New Hope Initiative patrolling a high crime area. (Tpp. 62-63) At approximately 2:00 a.m., while driving around in his police car, Officer Grinnell noticed a car parked in front of a house that was still running but with the brakes on. (Tp. 65) Officer Grinnell testified that the two occupants of the car noticed him and turned into a driveway. (Tpp. 65-66) Officer Grinnell entered the license plate number in his computer and learned that the car had been reported stolen. (Tp. 65) Officer Grinnell testified that he then called in for back-up support. (Tp. 66) In the meantime, Officer Grinnell noticed that the occupants of the car had gotten out of the car and were knocking on the front door of the house where they had parked. (Tp. 65)

When police back-up arrived, Officer Grinnell testified that he told the driver and the passenger that they were being detained because their car had been reported stolen. (Tp. 67) Officer Grinnell identified the driver as Eddie Evans and the passenger as Angela Marie Jones. (Tp. 67) Officer Grinnell placed Mr. Evans under arrest and, during a search of Mr. Evans, found the spare keys Ms. Bailey identified as her spare set in Mr. Evans’ left front pocket. (Tp. 67) Ms. Jones was not arrested and was allowed to leave. (Tp. 68)

At the jail, Officer Grinnell was handed a pill bottle by one of the jailers, identified as State’s Exhibit No. 1. (Tp. 73) Officer Grinnell testified that the name on the pill bottle was Eddie Evans. (Tp. 74) Officer Grinnell testified that he opened the pill bottle and found “five off-white rock like substances.” (Tp. 74) Officer Grinnell testified that he secured the evidence and subsequently sent it to the State Bureau of Investigation (SBI) for it to be tested. (Tpp. 75-77)

Officer Grinnell testified that the pill bottle came from a book bag that had been in the trunk of Ms. Bailey’s car. (Tp. 71) According to Officer Grinnell, Officer Walsh looked through the bag and then placed it in the front seat of Officer Grinnell’s patrol car. (Tpp. 80-81) Once they arrived at the jail, Officer Grinnell testified that he took the book bag into the jail because Mr. Evans was handcuffed. (Tp. 81)

Nancy Gregory, a forensic drug chemist and a special agent with the North Carolina State Bureau of Investigation, testified as an expert for the State. (Tp. 15) Agent Gregory testified that the first thing she did with the evidence sent to be tested was to weigh it. (Tp. 21) Total weight was 1.9 grams. (Tp. 21) After weighing it, Agent Gregory tested it and received a positive indication for cocaine. (Tpp. 22-23) Agent Gregory then performed a further test and was able to identify the matter being tested as crack cocaine. (Tpp. 23-24) Agent Gregory testified that in her opinion, the item she tested was 1.9 grams of cocaine base. (Tp. 25) Agent Gregory testified that she did not test the prescription bottle found with the controlled substance for fingerprints or any other matter. (Tp. 30)

Arguments

I.tHE COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED USE OF LEG IRONS ON THE DEFENDANT DURING TRIAL.

Assignment of Error No. 1

Pursuant with what appeared to be standard operating procedure at the Forsyth County Superior Court, Mr. Evans was tried while his legs were bound with leg irons. Prior to jury selection, the following exchange took place:

Ms. Massey:We need to address the issue of my client being in handcuffs.

The Court: Is he in leg irons as well?

Ms. Massey: Yes, sir.

The Court: Mr. Sheriff, is that going to violate your policy to undo the handcuffs for the jury?

Bailiff: No, sir. But we will keep the leg irons on unless Your Honor wants them taken off.

The Court: I had been thinking we had been taking the handcuffs off for trial but leaving the leg irons on. However you want to handle it.

Bailiff: Okay.

The Court: Mr. Evans, when I introduce you, if you’ll not get up but I will just point to you and Ms. Massey will get up sort of as your representative. Don’t try to stand up cause they might see something.

Defendant: Okay.

(Tpp. 7-8)

Since the decision to shackle Mr. Evans appears to be the uniform policy of the court house, the record reveals no basis or circumstance regarding the decision to shackle Mr. Evans. The trial court’s decision to permit Mr. Evans to be tried while shackled was erroneous and prejudiced Mr. Evans from receiving a fair trial. Accordingly, Mr. Evans should receive a new trial.

N.C. Gen. Stat. § 15A-1031 addresses the restraint of defendants at trial and provides that: “If the judge orders a defendant… restrained, he must: (1) [e]nter in the record out of the presence of the jury and in the presence of the person to be restrained and his counsel… the reasons for his actions; and (2) [g]ive the restrained person an opportunity to object…” (emphasis added) The statute mandates the judge to state the reasons for the restraint and provide the defendant a meaningful opportunity to object. Since the trial court violated a statutory mandate, the defendant’s right to appeal his restraint is automatically preserved despite the defendant’s failure to object at trial.[1] See State v. Ashe, 314 N.C. 28, 39-40, 331 S.E.2d 652, 659 (1985).

N.C. Gen. Stat. § 15A-1443 provides that when an error arises not under the Constitution but, by violation of statute the standard of review is whether the defendant was prejudiced by the error. “[T]he burden of showing such prejudice… is upon the defendant.” Id.

The United States Supreme Court recently addressed the issue of shackling in the courtroom in Deck v. Missouri, 2005 U.S. LEXIS 4180, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005). In Deck, the Court noted three fundamental principles underlying the hostility against shackling a defendant in the courtroom. Among those principles was the defendant’s right to a meaningful defense which the Court stated would be diminished with the use of physical restraints. See id. at *17. The Court cited People v. Harrington, 42 Cal. 165, 168 (1871), and quoted in a parenthetical that “shackles ‘impos[e] physical burdens, pains, and restraints…, ten[d] to confuse and embarrass’ defendants’ ‘mental faculties,’ and thereby tend ‘materially to abridge and prejudicially affect his constitutional rights.’” Deck, 2005 U.S. LEXIS 4180 at *17-18.

In rejecting the State’s argument that the defendant had not suffered prejudice, the Court in Deck noted that the practice of shackling would have negative effects that would not be apparent in a trial transcript. See id. at *24.

In the case at hand, the complete prejudicial effect to the defendant of having been shackled during trial is not apparent in the trial transcript. The only mention of Mr. Evans being shackled is at the beginning of the transcript before jury selection had started. The Court’s brief statement, however, speaks volumes on the demoralizing effect the shackles must have had on Mr. Evans:

(Tp. 8) From this brief statement, one can see how Mr. Evans’ personality must have been curtailed in not allowing him to fully get up when he was introduced to the jury and thereby show his respect and humility. Furthermore, he was warned against standing up because the jurors may see his leg irons. The warning placed Mr. Evans in a vigilant state to conceal his leg irons which could only have served to distract him from concentrating on his defense. Moreover, the warning not to get up because “they might see something” reinforced the shame of being shackled and the burden of concealing the dirty secret beneath the defendant’s table. Cumulatively, the effect of being shackled during trial could only have been prejudicial.

In fact, our legislature was mindful of the prejudice inherent in shackling a defendant when it codified the North Carolina Supreme Court’s decision in State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976). See N.C. Gen. Stat. § 15-1031. In Tolley, the Court noted that shackling should be avoided because it interferes with defendant’s thought process and ease of communicating with one’s attorney. The impediment that shackling would have had on Mr. Evans in this regard cannot be reflected in the record as a defendant’s thought process and ability to communicate are not documented in a trial transcript. Accordingly, our legislature placed a mandate upon the trial court to ascertain the need for shackling since it should not be resorted to so lightly and uniformly.

Recently, this Court reiterated its support for Tolley in State v. Jackson. See State v. Jackson, 162 N.C. App. 695, 592 S.E.2d 575 (2004). This Court stated that a trial court’s “obligation” to substantiate in the record their decision to shackle a defendant “is not excused when attempts are made to conceal from the jury the fact that the defendant is shackled.” Id. at 701. This Court noted that “the concerns that shackling interferes with the defendant’s thought processes and communications with counsel, and affronts the dignity of the trial process, are not cured by mere concealment from the jury.” Id.

In summary, the trial court’s decision to shackle the defendant at his trial was prejudicial. Accordingly, the defendant should be granted a new trial.

II.the state produced Insufficient evidence to prove that Mr. Evans committed the offenses of possession of a stolen motor vehicle and possession of cocaine.

Assignment of Error No. 7

The trial court erred in denying the defendant’s motion to dismiss the charges of possession of a stolen motor vehicle and possession of a controlled substance in a prison or jail. The State failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant was aware that the motor vehicle he was driving was, in fact, stolen. Regarding the possession of cocaine charge, the State’s evidence was contradictory and insufficient. The trial court, therefore, should have dismissed both charges.

In ruling upon a motion to dismiss, the court considers, in the light most favorable to the State, “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense.” State v. Scott, 356 N.C. App. 591, 595, 573 S.E.2d 866, 868 (2002). “If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.” Id.

Possession of a stolen motor vehicle

Mr. Evans was indicted and convicted of possession of a stolen motor vehicle pursuant to N.C. Gen. Stat. § 20-106. N.C. Gen. Stat. § 20-106 provides the following:

Any person who, with intent to procure or pass title to a vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives or transfers possession of the same from or to another, or who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken, and who is not an officer of the law engaged at the time in the performance of his duty as such officer shall be punished as a Class H felon.

(emphasis added).

At the heart of the charge of possession of a stolen motor vehicle is the State’s burden to produce sufficient evidence that the defendant possessed the stolen property knowing or having reason to believe that the vehicle had been stolen or taken. “[G]uilty knowledge need not be shown by direct proof of actual knowledge, … rather such knowledge may be implied by evidence of circumstances surrounding the receipt of goods.” State v. Scott, 11 N.C. App. 642, 645, 182 S.E.2d 256, 258 (1971).

In the case at hand, the State failed to meet its burden of producing sufficient evidence that Mr. Evans knew or should have known that the vehicle in which he was stopped had been stolen five days prior. There was no evidence presented at trial that Mr. Evans was, in fact, the person that stole the vehicle and therefore had direct knowledge that the vehicle was stolen. Also, the defendant was found using the car five days after it had been stolen. (Tp. 41) A sufficient amount of time had passed for the car to have traded hands and for the defendant to have come into possession of the vehicle without having reason to believe it had been obtained illegally. Furthermore, there was no visible sign of damage to the car that would have led Mr. Evans to believe that the car had been taken away from the owner without consent. (Tp. 60) For example, the car had not been hot wired or the windows smashed to gain access to the car. Finally, the evidence at trial showed that Mr. Evans did not try to run away from the police when he was stopped. See State v. Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986) (evidence defendant fled from police can be circumstantial evidence of defendant’s consciousness of guilt). Mr. Evans stopped when he was approached by the police and was cooperative. (Tpp. 66-67) In summary, Mr. Evans’ behavior at the time he was stopped, the lack of damage to the car, and the amount of time that had passed since the car was reported stolen was evidence the defendant did not know and should not have had reason to know that the car he was driving had been stolen.