In re: Alex Shackelford

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-1266

Filed: 19 July 2016

Wake County, No. 15 SPC 2844

IN THE MATTER OF: ALEX SHACKLEFORD

Appeal by respondent from order entered 16 May 2015 by Judge V.A. Davidian,

III in Wake County District Court. Heard in the Court of Appeals 30 March 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 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
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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

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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

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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

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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, 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

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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

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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 presented at the hearing was

sufficient to allow for meaningful appellate review.

We note 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

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filled. See, e.g., Bradshaw, 160 N.C. App. at 681, 587 S.E.2d at 86 (“[A] review of the

transcript indicates that much of the missing testimony was clearly referenced and

repeated by the witnesses, including respondent[.]”); State v. Owens, 160 N.C. App.

494, 499, 586 S.E.2d 519, 523 (2003) (“[A] review of the transcript reveals that all of

the questions posed by counsel prior to and comments made immediately following

the missing responses are included in the transcript and at no point was such a

missing response followed by an objection from defense counsel. Because the context

of the questioning and the likely responses that were elicited from the potential jurors

are therefore ascertainable from the record, defendant was not denied meaningful

appellate review[.]”); State v. Hammonds, 141 N.C. App. 152, 167, 541 S.E.2d 166,

177 (2000) (holding that while trial “transcript is incomplete in places . . . . it is

possible to reconstruct the substance of what was said, even if the precise words are

lost”), aff’d per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001).

While the State cites Lawrence in support of its argument that Respondent’s

appellate counsel was, in fact, able to compile an adequate substitute for a verbatim

transcript, we believe the State’s reliance on Lawrence is misplaced. In Lawrence, as

a result of a mechanical malfunction, the trial transcript was missing the testimony

of one of the State’s witnesses in its entirety along with a portion of the testimony

from another witness. Lawrence, 352 N.C. at 16, 530 S.E.2d at 817. On appeal, the

State set out in narrative form the unrecorded testimony as permitted under N.C.R.

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App. P. 9(c)(1). During a hearing to settle the record, the witnesses whose testimony

was missing from the transcript testified that the State’s narrative was accurate. In

addition, the court reporter from the trial responded that, according to her trial notes,

no objections had been made during the omitted portions of testimony. Under these

circumstances, our Supreme Court held that “[t]he State’s narrative constitute[d] an

available alternative that is ‘substantially equivalent’ to the complete transcript[.]”

Id.

We find Lawrence to be materially distinguishable from the present case. In

Lawrence, (1) the transcript was missing the complete testimony of only one witness

and the partial testimony of another witness — neither of whose testimony was

relevant to the focus of the defendant’s defense1; (2) the State provided a narrative of

the missing testimony, which the relevant witnesses confirmed was accurate; and (3)

the court reporter confirmed that no objections had been made during the omitted

portions of testimony.

Here, conversely, 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. While

1 The Supreme Court explained that “[i]nasmuch as defendant admitted shooting the victim,
the focus of his defense was his intent. The missing part of the transcript was not relevant to this
issue.” Id. at 17, 530 S.E.2d at 817.

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these notes could conceivably assist in recreating the hearing if supplemented by

other sources providing greater detail, they are not in and of themselves

“substantially equivalent to the complete transcript[.]” Id. at 16, 530 S.E.2d at 817

(quotation marks omitted). Accordingly, we cannot conclude that these notes from

Respondent’s trial counsel constitute an adequate alternative to a verbatim hearing

transcript “that would fulfill the same functions as a transcript . . . .” Id.

Finally, we must determine whether the lack of an adequate alternative to a

verbatim transcript of the hearing served to deny Respondent meaningful appellate

review such that a new hearing is required. See Hobbs, 190 N.C. App. at 187, 660

S.E.2d at 171 (“Without an adequate alternative, this Court must determine whether

the incomplete nature of the transcript prevents the appellate court from conducting

a meaningful appellate review, in which case a new trial would be warranted.”

(citation and quotation marks omitted)).

We have previously recognized the importance of a transcript on appeal.

[A]s any effective appellate advocate will attest, the most
basic and fundamental tool of his profession is the complete
trial transcript, through which his trained fingers may leaf
and his trained eyes may roam in search of an error, a lead
to an error, or even a basis upon which to urge a change in
an established and hitherto accepted principle of law.

Id. at 185, 660 S.E.2d at 170 (quoting Hardy v. United States, 375 U.S. 277, 288, 11

L.Ed.2d 331, 339 (1964) (Goldberg, J., concurring)).

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In Hobbs, the missing portion of the transcript encompassed the entire

testimonial portion of the trial, which included an unknown number of witnesses over

three days. Id. at 187, 660 S.E.2d at 171. We held that the appellant’s ability to

litigate the appeal was “hindered by the total unavailability of either a transcript or

an acceptable alternative for a majority of [the] defendant’s trial.” Id. at 187-88, 660

S.E.2d at 171. Thus, we concluded that the appellant had been “unable to procure

meaningful appellate review of his trial” and was entitled to a new trial. Id. at 188,

660 S.E.2d at 172.

Similarly, in State v. King, 218 N.C. App. 347, 721 S.E.2d 336 (2012), a

transcript was unavailable for nearly the entire habitual felon phase of a criminal

proceeding. We remanded for a new habitual felon hearing, holding that the “almost

complete lack of a transcript or adequate alternative narration of the habitual felon

phase of the proceedings in the lower court precludes our ability to review defendant’s

contentions on the habitual felon hearing and precludes any meaningful appellate

review.” Id. at 356, 721 S.E.2d at 343.

The present action provides an even clearer case of prejudice than that existing

in either King or Hobbs. It bears repeating that here we are not called upon to

determine how significant a missing portion of the transcript is to the appellant’s

ability to obtain meaningful review. Instead, we are dealing with a case in which the

transcript in its entirety is missing and cannot be adequately reconstructed.

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Holly Hill cites to In re Wright, 64 N.C. App. 135, 306 S.E.2d 825 (1983), in

support of its argument that Respondent has failed to establish prejudice. In Wright,

the respondents challenged the constitutionality of several statutory provisions

providing for the termination of parental rights. On appeal, the respondents asserted

that they were entitled to a new hearing due to an equipment malfunction that

rendered unintelligible the entire recording of their termination hearing, thereby

requiring the parties to reconstruct the record. We held that the respondents had

failed to demonstrate that the lack of a hearing transcript prejudiced them given that

it was “apparent from the pleadings and assignments of error that [the appellants’]

reliance from the outset has been on the unconstitutionality of the statutes proceeded

under, rather than on any evidence of their’s or any weakness in the petitioner’s

evidence.” Id. at 138, 306 S.E.2d at 827.

Thus, the issues raised by the appellants in Wright were unrelated to the

substance of the evidence actually presented at the hearing. Here, conversely,

Respondent is 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.

Finally, we reject Holly Hill’s argument that Respondent has failed to

demonstrate prejudice because he did not identify any specific errors or defects in the

involuntary commitment order. In its brief, Holly Hill makes the following assertions

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in support of this proposition: “The purpose of a verbatim transcript is to be able to

review the entire proceeding and determine whether there was error during the trial.

Without an allegation of error in [the] trial or in the order, there is no need for a

transcript.” (Internal citation omitted).

Under this circular logic, an appellant would never be able to show prejudice

in cases where — as here —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 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. See Neely, 21 N.C. App. at 441, 204 S.E.2d at 532.

Accordingly, we conclude that Respondent has demonstrated that he was

prejudiced by the lack of a verbatim transcript from the 14 May 2015 hearing and, as

a result, is unable to obtain meaningful appellate review of his involuntary

commitment. Therefore, he is entitled to a new hearing.

Conclusion

For the reasons stated above, we vacate the trial court’s 16 May 2015 order

and remand for a new commitment hearing.

VACATED AND REMANDED.

Judges ELMORE and HUNTER, JR. concur.

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