IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-158
Filed: 16 October 2018
Cumberland County, Nos. 14 CRS 57496, 57498, 57500
STATE OF NORTH CAROLINA
v.
WILLIAM YATES
Appeal by defendant from judgments entered 23 August 2016 by Judge
Thomas H. Lock in Cumberland County Superior Court. Heard in the Court of
Appeals 4 September 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Melissa H.
Taylor, for the State.
Mark L. Hayes for defendant-appellant.
ARROWOOD, Judge.
William Yates appeals from judgments entered upon his convictions for second
degree kidnapping, communicating threats, assault with a deadly weapon, breaking
or entering, assault on a female, first degree rape, and two counts of first degree
sexual assault. Because a recording equipment malfunction prevented the court
reporter from producing a full transcript of the trial, including crucial portions of the
victim’s testimony such as cross-examination, defendant is entitled to a new trial.
I. Background
STATE V. YATES
Opinion of the Court
On 13 October2014, a Cumberland County Grand Jury returned indictments
charging defendant with felonious breaking or entering, felonious assault inflicting
physical injury by strangulation, misdemeanor assault on a female, first degree
kidnapping, misdemeanor communicating threats, misdemeanor assault with a
deadly weapon, first degree forcible rape, and two counts of first degree sexual
offense. The State moved to join the offenses for trial and the motion was granted on
4 January 2016. Defendant’s case was tried in Cumberland County Superior Court
before the Honorable Thomas H. Lock beginning on 16 August 2016.
At the end of the State’s evidence, the trial court granted defendant’s motion
to dismiss the felonious assault inflicting physical injury by strangulation charge and
denied defendant’s motion to dismiss any of the other charges. On 19 August 2016,
the jury returned verdicts finding defendant guilty of felonious breaking or entering,
assault on a female, first degree kidnapping, communicating threats, assault with a
deadly weapon, first degree rape, and two counts of first degree sexual offense. Also
on 19 August 2016, the trial court signed an order dismissing the assault inflicting
physical injury by strangulation charge. The trial court entered a prayer for
judgment continued until 23 August 2016.
On 22 August 2016, defendant filed a motion for appropriate relief (“MAR”)
seeking to have the verdicts set aside and for a new trial. On 23 August 2016, the
trial court denied defendant’s MAR and entered judgments. The court first arrested
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Opinion of the Court
judgment on the first degree kidnapping conviction in favor of entering judgment for
second degree kidnapping. The court consolidated the second degree kidnapping,
communicating threats, assault with a deadly weapon, breaking or entering, and
assault on a female convictions and entered judgment sentencing defendant to a term
of 35 to 54 months’ imprisonment. The court then entered a separate judgment on
the first degree rape conviction sentencing defendant to a concurrent term of 336 to
464 months’ imprisonment. Lastly, the court consolidated the two first degree sexual
offense convictions and entered a third judgment sentencing defendant to a term of
336 to 464 months’ imprisonment to begin at the expiration of the sentence imposed
for first degree rape. Defendant gave notice of appeal in open court.
II. Discussion
On appeal, defendant argues that he has been denied a meaningful appeal
because a portion of the trial transcript is missing and that the trial court erred in
denying his motions to dismiss for insufficiency of the evidence. We grant defendant
a new trial based on the incomplete transcript of the trial proceedings.
1. Missing Transcript
In the first issue on appeal, defendant points out that a portion of the trial
transcript from 18 August 2016 is missing. Defendant asserts that he is entitled to a
new trial because the incomplete transcript has deprived him of a meaningful appeal.
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STATE V. YATES
Opinion of the Court
This Court has explained that “[o]ur 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.” In re Shackleford, __ N.C. App.
__, __, 789 S.E.2d 15, 18 (2016) (citing State v. Neely, 21 N.C. App. 439, 441, 204
S.E.2d 531, 532 (1974)).
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. General allegations of prejudice are
insufficient to show reversible error. 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.
Id. at __, 789 S.E.2d at 18 (internal quotation marks, citations, and emphasis
omitted).
To determine whether the right to a meaningful appeal has been lost, our
Courts conduct a three-step inquiry. First, we must determine whether defendant
has “made sufficient efforts to reconstruct the [proceedings] in the absence of a
transcript.” Id. at __, 789 S.E.2d at 18. Second, we must determine whether those
“reconstruction efforts produced an adequate alternative to a verbatim transcript—
that is, one that would fulfill the same functions as a transcript . . . .” Id. at __, 789
S.E.2d at 19 (internal quotation marks and citation omitted). Third, “we must
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Opinion of the Court
determine whether the lack of an adequate alternative to a verbatim transcript of the
[proceedings] served to deny [defendant] meaningful appellate review such that a
new [trial] is required.” Id. at __, 789 S.E.2d at 20.
In the present case, the court reporter delivered a three volume transcript of
the trial proceedings to defendant. Volume I of the transcript includes the trial court
proceedings on 16 and 17 August 2016, during which the court heard pretrial
motions, conducted jury selection, and began to hear the State’s evidence. At the time
the trial was adjourned for the evening on 17 August 2016, the State was conducting
its direct examination of the alleged victim. Upon releasing the alleged victim from
the witness stand, the trial court instructed her “to return in the morning.” Volume
I of the transcript ends with a note indicating “[t]he trial adjourned at 5:04 p.m.,
August 17, 2016, and reconvened at 9:30 a.m., August 18 2016.” Volume II of the
transcript, however, begins with a note indicating that “[t]he hearing convened at
11:08 a.m., August 18, 2016[.]” At that time, the State called its next witness.
There is no record of what happened in court on 18 August 2016 from 9:30 a.m.
to 11:08 a.m. In place of a verbatim transcript, defendant’s appellate counsel
prepared and delivered a narrative form transcript. The narrative form transcript
states only that “[b]etween 9:30 AM and 11:08 AM on 18 August 2016, trial
proceedings occurred which included, at minimum, the cross examination of the
State’s witness[, the alleged victim].” However, given how the proceedings ended on
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STATE V. YATES
Opinion of the Court
17 August 2016, it is likely the State also continued its direct examination of the
alleged victim during that time. It is also possible that other witnesses testified.
Regarding the first two inquiries set out in Shackleford, defendant contends
that he made sufficient efforts to reconstruct the missing portion of the transcript
and that the alternative is inadequate. We agree.
Defendant’s appellate counsel included with the narrative form transcript a
“certificate of transcript” that was verified and notarized. The certificate explains
that the missing portion of the transcript is the result of a recording malfunction and
that, after neither the court reporter nor her supervisor could recover any recording
of the proceedings from 9:30 a.m. to 11:08 a.m. on 18 August 2016, this Court granted
a motion to prepare the transcript in narrative form. The certificate then details
counsel’s efforts to reconstruct the missing portion of the transcript.
Those efforts began with the mailing of a letter to the presiding judge, the
prosecutor, the court reporter, and defense attorneys on 18 October 2017 requesting
that they share their recollection of what occurred during the portion of the trial for
which there is no transcript. None of those parties involved in the trial responded to
the letter. A follow up email was sent to the prosecutor, the court reporter, and
defense attorneys on 13 November 2017 with the original letter attached. The
presiding judge was omitted from the email because his email address was unknown.
The email once more requested assistance in reconstructing the missing transcript.
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STATE V. YATES
Opinion of the Court
Again, there was no response. The certificate further explains that the only
information defendant’s appellate counsel has about the unrecorded portion of the
trial is that cross-examination of the alleged victim did take place. Counsel was able
to speak with the prosecutor by telephone on 22 August 2017 and the prosecutor
confirmed that defense counsel did cross-examine the alleged victim.
Comparing these efforts by defendant’s appellate counsel to reconstruct the
missing transcript to those efforts determined to be sufficient in State v. Hobbs, 190
N.C. App. 183, 660 S.E.2d 168 (2008), and Shackelford, we hold the efforts in the
present case were sufficient.
In Hobbs, in which the transcripts of the evidentiary phase of the defendant’s
trial were unavailable for the defendant’s appeal, the defendant’s appellate counsel
contacted the defendant’s trial counsel, the prosecutor, and the presiding judge in an
attempt to reconstruct the transcript. 190 N.C. App. at 186-87, 660 S.E.2d at 170-71.
Responses were received from the defendant’s trial counsel and the presiding judge
indicating they either had little memory of the proceedings or had no notes. Id. 186-
87, 660 S.E.2d 171. There was no indication of a response from the prosecutor. Id.
at 187, 660 S.E.2d at 171. Although noting in a footnote that “the precise burden
imposed upon appellants for reconstructing the records has not been defined[,]” Id. at
187 n.3, 660 S.E.2d at 171 n.3, this Court held as follows:
Although the better practice would have been for
defendant’s appellate counsel to follow up with the
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Opinion of the Court
prosecutor via telephone after failing to receive a response
from her letters, the State has advanced no argument in its
brief to this Court that the letters were not received.
Accordingly, defendant satisfied his burden of
demonstrating the absence of available alternatives to the
missing transcripts.
Id. at 187, 660 S.E.2d at 171.
Similarly in Shackleford, in which the transcript of the respondent’s
involuntary commitment hearing was unavailable for the respondent’s appeal, the
respondent’s appellate counsel sent letters to those parties present at the hearing,
including the judge, deputy clerk, respondent’s counsel, respondent, and others,
seeking assistance in reconstructing the hearing transcript. __ N.C. App. at __, 789
S.E.2d at 17-18. The respondent’s trial counsel provided notes from the hearing, but
otherwise the responses from those present at the hearing were not helpful. Id. at
__, 789 S.E.2d at 18. Relying on Hobbs, this Court explained that “[the r]espondent’s
appellate counsel took essentially the same steps as the appellants’ attorney in
Hobbs. Therefore, we similarly conclude that [r]espondent has satisfied his burden
of attempting to reconstruct the record.” Id. at __, 789 S.E.2d at 19.
In this case, defendant’s appellate counsel’s efforts to reconstruct the missing
portion of the transcript emulated those efforts determined to be sufficient in Hobbs
and Shackleford and included a follow-up communication that this Court noted in
Hobbs was “better practice.” Thus, we hold defendant has met his burden.
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STATE V. YATES
Opinion of the Court
Notwithstanding the efforts of defendant’s appellate counsel, defendant was
unable to produce an adequate alternative to a verbatim transcript. As detailed
above, the reconstructed transcript provides only that “[b]etween 9:30 AM and 11:08
AM on 18 August 2016, trial proceedings occurred which included, at minimum, the
cross-examination of the State’s witness[, the alleged victim].”
In Shackleford, this Court described an “adequate alternative to a verbatim
transcript” as “one that ‘would fulfill the same functions as a transcript . . . .’ ” Id. at
__, 789 S.E.2d at 19 (quoting State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817
(2000)). This Court also noted that “in virtually all of the cases in which we have held
that an adequate alternative to a verbatim transcript existed, the transcript of the
proceeding at issue was only partially incomplete, and any gaps therein were capable
of being filled.” Id. at __, 789 S.E.2d at 19 (emphasis omitted). Shackleford, however,
was distinguishable from those cases in which only part of the transcript was missing
because in Shackleford, “the transcript of the entire proceeding is unavailable, and
the only independent account of what took place at the hearing consists of five pages
of bare-bones handwritten notes that—in addition to not being wholly legible—clearly
do not amount to a comprehensive account of what transpired at the hearing.” Id. at
__, 789 S.E.2d at 19-20 (emphasis omitted). Thus, this Court concluded in
Shackleford that the notes from the respondent’s trial counsel did not constitute an
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Opinion of the Court
adequate alternative to a verbatim transcript of the hearing. Id. at __, 789 S.E.2d at
20.
Although only a portion of the transcript was missing in this case, unlike those
cases referenced in Shackleford in which gaps in the transcripts were capable of being
filled, see id. at __, 789 S.E.2d at 19 (citing In re Bradshaw, 160 N.C. App. 677, 587
S.E.2d 83 (2003), State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003), and State
v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000), as examples of cases where
it was possible to reconstruct an incomplete transcript), there was no way to
reconstruct the missing portion of the transcript in the present case. Despite
sufficient efforts to reconstruct the transcript, defendant’s appellate counsel was only
able to verify that cross-examination of the alleged victim did take place. Without
any suggestion as to the substance of the missing testimony, the alternative produced
by defendant’s appellate counsel does not fulfill the same functions as a transcript
and is not an adequate alternative.
Having determined defendant made sufficient efforts to reconstruct the
missing portion of the transcript and that the alternative is inadequate, we turn to
the final step of the inquiry, “whether the lack of an adequate alternative to a
verbatim transcript of the [trial] served to deny [defendant] meaningful appellate
review such that a new [trial] is required.” Id. at __, 789 S.E.2d at 20.
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STATE V. YATES
Opinion of the Court
Defendant argues the incomplete transcript in this case has denied him
meaningful appellate review because the missing transcript includes, at the very
least, the cross-examination of the alleged victim, whom defendant contends is the
State’s chief witness and only eyewitness. Defendant contends that without the
alleged victim’s testimony the State could not present a prima facie case, and without
a complete transcript of the alleged victim’s testimony, or an adequate alternative,
there is no way to identify specific errors below to raise on appeal. Defendant,
however, has identified potential issues based on pretrial motions, testimony, and
closing arguments. These potential issues include the admission of Rule 404(b)
evidence that defendant sought to exclude through a motion in limine, the admission
of cyber evidence, the admission of evidence of jail records regarding visitation,
telephone calls, deposits, and emails related to defendant that the defense sought
through a subpoena and were the subject of an objection and motion to quash by the
State, and the admission of evidence of criminal charges against the alleged victim
that could have been used to attack her credibility that was the subject of a motion
for discovery by defendant, a motion in limine by the State, and pre-trial arguments
on admissibility that led the trial court to reserve its ruling for trial. Defendant
contends that references to particular evidence in the closing arguments, or
alternatively, the lack of references to particular evidence, calls into question what
rulings the trial court made regarding the above evidence during the unrecorded
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STATE V. YATES
Opinion of the Court
portion of the trial. Defendant, however, is unable to identify specific errors because
there is no transcript.
In response to defendant’s argument, the State asserts “[it] is the appellant’s
responsibility to make sure that the record on appeal is complete and in proper
form[,]” In re L.B., 184 N.C. App. 442, 453-54, 646 S.E.2d 411, 417-18 (2007), and that
defendant must “demonstrate that the missing recorded evidence resulted in
prejudice. General allegations of prejudice are insufficient to show reversible error[,]”
State v. Quick, 179 N.C. App. 647, 651, 634 S.E.2d 915, 918 (2006) (citations omitted).
The State argues defendant’s contention that there may have been appealable issues
that were not transcribed is not enough because the “allegation does not allege
specific prejudice as required.” The State claims defendant’s argument is based on
conjecture and speculation.
In Shackleford, this Court rejected a similar argument that the respondent had
not demonstrated prejudice because he had not identified specific errors. __ N.C.
App. at __, 789 S.E.2d at 21. As in this case, the respondent in Shackleford was
“expressly contending that the unavailability of a transcript prejudiced him by
depriving him of the ability to determine whether any potentially meritorious issues
exist for appellate review.” Id. at __, 789 S.E.2d at 21. This Court explained that
an appellant would never be able to show prejudice in cases
where . . . the absence of a transcript renders the appellant
unable to determine whether any errors occurred in the
trial court that would necessitate an appeal in the first
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Opinion of the Court
place. In such cases, the prejudice is the inability of the
litigant to determine whether an appeal is even
appropriate and, if so, what arguments should be raised.
Id. at __, 789 S.E.2d at 21. This Court ultimately held that the respondent in
Shackleford had demonstrated prejudice and was unable to obtain meaningful
appellate review. Id. at __, 789 S.E.2d at 21.
Here, defendant’s argument is that he has been denied meaningful appellate
review as a result of the incomplete transcript because he does not know with
certainty what happened during the cross-examination of the alleged victim, a critical
stage of the trial. Thus, defendant cannot identify errors below that may have
affected the outcome of his trial. As stated in Shackleford, this inability to identify
potential meritorious issues is the prejudice defendant has shown.
Nevertheless, based on the record available in this case, defendant has
identified potential issues related to the admissibility of specific evidence which was
the subject of pretrial motions and arguments that were likely addressed by the trial
court during the portion of the trial that was not transcribed. Given that the
transcript is unavailable, this is the best defendant could do after defendant’s
appellate counsel’s efforts to reconstruct the transcript were fruitless. Because the
lack of a complete transcript has prevented defendant from identifying errors below,
defendant has been prejudiced and has been denied meaningful appellate review.
Therefore, defendant is entitled to a new trial.
2. Motion to Dismiss
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STATE V. YATES
Opinion of the Court
Defendant also argues the trial court erred in denying his motions to dismiss
for insufficiency of the evidence. However, because defendant is entitled to a new
trial and any review of the record evidence by this Court would be a review of an
incomplete transcript of the evidence presented below, we do not address this issue
further.
III. Conclusion
Because meaningful appellate review is impossible in this case absent a
verbatim transcript of the trial below, defendant is entitled to a new trial.
NEW TRIAL.
Judges BRYANT and HUNTER, JR. concur.
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