STATE v. RHYNES (2021)

Court of Appeals of North Carolina.2021-03-02No. No. COA19-386

Summary · law.co

Holding. The judgment of conviction was affirmed. The court found no prejudicial error and determined the appeal was wholly frivolous.

A defendant convicted of attempted first degree murder appealed his case. His attorney, unable to identify meritorious issues for appeal, requested that the court conduct an independent review of the record for potential errors. The defendant filed his own brief arguing that portions of an evidentiary hearing were not transcribed and that those missing portions contained exculpatory evidence regarding fingerprints on shell casings, which he characterized as a Brady violation involving suppressed evidence.

The court found that it could not review the defendant's claim because the record contained no indication that the alleged hearing had even occurred, and without a transcript of that hearing, there was nothing for the court to examine. The court acknowledged the defendant's difficulty in raising arguments about missing transcripts when the record itself does not reflect the hearing took place. However, the court left open the possibility that the defendant could pursue relief at the trial court level through a properly supported motion for appropriate relief, assuming the trial court had not previously addressed the issue.

After conducting a thorough examination of the complete record, the court found no arguable errors of any kind and concluded the appeal lacked merit.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether missing portions of an evidentiary hearing constitute a Brady violation when no hearing appears in the appellate record
Standard for reviewing claims of suppressed exculpatory evidence on appeal without a transcript
Whether appellate review is possible when the underlying hearing does not appear in the record

Procedural posture

The defendant appealed from a judgment of conviction for attempted first degree murder entered by the trial court on September 12, 2018.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

¶ 1 On or about 12 September 2018, the trial court entered judgment on the jurys verdict convicting defendant

of attempted first degree murder.

Defendant appeals.

¶ 2 Defendants attorney has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so. Indeed, on 30 March 2020, defendant filed a pro se brief with this Court.

¶ 3 Defendant appears to contend that portions of an evidentiary hearing were not transcribed, and those portions contain crucial exculpatory suppressed evidence of fingerprints on shell casings from two guns; defendant views this as a Brady violation. See generally Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). Unfortunately, we are unable to discern any reviewable issues from defendants pro se brief.

¶ 4 Without a transcript of the alleged hearing, there is simply nothing for us to review. In fact, our record does not contain any indication this hearing occurred. While we appreciate defendants dilemma in attempting to raise an argument about a failure to transcribe an evidentiary hearing, while our record does not give any indication of such a hearing, we cannot review this issue without further information. However, this opinion does not prevent defendant from pursuing further review at the trial court level, such as a properly-supported motion for appropriate relief, presuming the trial court has not previously ruled on the issue.

¶ 5 We have fully examined the record to determine whether any issues of arguable merit appear, are unable to find any possible prejudicial error, and conclude this appeal is wholly frivolous.

NO ERROR.

Report per Rule 30(e).

FOOTNOTES

. We note defendants name on the judgment and as captioned on his brief are spelled differently with the brief containing a “w” that the judgment does not.

. Charges for attaining the status of habitual felon and armed habitual felon were dismissed. Further, per the transcript, the jury also found defendant guilty of possession of a firearm by a felon, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a weapon into occupied property, and the trial court arrested judgment on these convictions. Only the attempted first degree murder judgment is in our record.

STROUD, Chief Judge.

Judges TYSON and COLLINS concur.