State v. English , 171 N.C. App. 277 ( 2005 )

STEELMAN, Judge

concurring.

I fully concur with the majority opinion in this case, but write separately because I believe defendant’s appellate counsel should be sanctioned for presenting the argument discussed in section IIA of the opinion.

Appellate counsel has a duty to zealously and diligently represent his or her client. This is especially true when that client is a criminal defendant facing incarceration because of a conviction in the trial court. However, there are limits to zealous representation. Rule 34(a)(1) of the Rules of Appellate Procedure states that counsel may be sanctioned when “the appeal [is] not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” N.C. R. App. P. 34(a)(1) (2005). These strictures apply to each of the arguments made within an appellate brief.

In defendant’s sixth assignment of error he asserts as error: “The Trial Court’s failure to intervene ex mero mo tu when State’s witness Officer McKinney read into evidence, and the State later introduced as Exhibit No. 4, the chemist’s report regarding the analysis of the substance . . . .” This assignment of error concludes by stating, “To the extent this error is not otherwise preserved, defendant asserts plain error.”

Appellant’s counsel proceeds to argue for eight pages in the brief that the trial court’s error violated defendant’s constitutional right to confront a witness under the rationale of Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d 177, 199, (2004). Although defendant asserts plain error, appellant counsel fails to argue it in the brief. The argument ignores facts as set forth in the majority’s opinion, which reveal that not only did defendant’s trial counsel stipulate that the laboratory report could be received into evidence, but the trial judge had an extensive conversation with defendant to make certain he understood the ramifications of the stipulation. The trial judge went above and beyond what he was required to do to insure defendant’s constitutional rights were fully protected. However, appellant’s counsel completely ignores defendant’s stipulation that “the report may be received into evidence without further authentication or further testimony.” Appellate counsel never attempts to argue that the stipulation was somehow invalid, nor that trial counsel was ineffective in any manner.

The role of the appellate courts is to review and correct errors which actually occurred in the trial division. The function of an appellant’s brief is to clearly and concisely bring those errors to the appellate court’s attention, together with controlling authorities. It is not the function of an appellate brief to discuss intellectual and academic points of law that do not arise from the facts of the case being discussed.

I do not undertake the writing of the concurrence lightly. It was not my intent to discourage criminal appellate counsel from zealously representing their clients, but rather to emphasize that there are limits to what is acceptable conduct by counsel, even in criminal cases.

There was no basis in fact or law for the arguments asserted by appellate counsel for defendant pertaining to his sixth assignment of error. For these reasons, I believe this Court should impose sanctions upon counsel for the appellant.