In re: Derrick Woodard ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1116
Filed: 16 August 2016
Wake County, No. 15 SPC 734
IN THE MATTER OF: DERRICK WOODARD
Appeal by respondent from order entered 12 February 2015 by Judge Louis
Meyer in Wake County District Court. Heard in the Court of Appeals 30 March 2016.
Roy Cooper, Attorney General, by Andrew L. Hayes, Assistant Attorney General,
for the State.
Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate
Defender, for respondent-appellant.
DAVIS, Judge.
Derrick Woodard (“Respondent”) appeals from the trial court’s order
involuntarily committing him to UNC Wakebrook Inpatient Treatment Facility
(“UNC Wakebrook”) for a period of inpatient treatment. On appeal, Respondent
argues that the lack of a verbatim transcript from 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 affirm the trial
court’s order.
Factual Background
On 2 February 2015, Dr. Edith Gettes filed an affidavit and petition for
involuntary commitment in which she alleged Respondent was mentally ill and
IN RE: DERRICK WOODARD
Opinion of the Court
dangerous to himself and others. A magistrate ordered Respondent to be held for
examination that same day. A hearing was held on 12 February 2015 before the
Honorable Louis Meyer in Wake County District Court. Following the hearing, the
trial court concluded that Respondent was mentally ill and presented a danger to
himself and others. That same day, the trial court entered an order containing the
following findings:
Respondent (‘R.’) had prior 10-day inpatient admission at
UNC Wakebrook in Nov. 2013 after presenting with
symptoms of paranoia and delusions. During this
admission, R. punched a wall and had his hand X-rayed;
however, R. improved with treatment and medication. R.
agreed to voluntary 90-day outpatient treatment and
medication thereafter, but refused to take medication after
initial supply ran out and refused to do follow up outpatient
treatment.
During 1st 2 months of 2015, R. made false Facebook
postings asserting gang membership that caused 2 males
to come to R’s home seeking retribution, and R. had
physical altercations with his step-sisters and father, and
R. was admitted for inpatient treatment at UNC
Wakebrook upon petition and magistrate’s custody order
for involuntary commitment.
During present admission to UNC Wakebrook, R. has been
treated by Dr. Br[i]an Robbins, who gave expert psychiatric
testimony at 2-12-15 district court hearing that R. is
diagnosed as being schizophrenic based on R. having
multiple delusions and paranoia (e.g., R. asserted he’s a
Navy Seal, is being followed by Black Panthers and Secret
Service, is Pres. Obama’s nephew, has a microchip planted
in his head, is a 6-time Olympic gold medalist) and R.
having disorganized thinking and disconnect as to why
treatment and medication are necessary and helpful for
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him.
During present admission at UNC Wakebrook, R.
threatened physical harm to Dr. Robbins and a nurse for
requiring R. to take medication; however, R. has improved
with treatment and medication during present inpatient
admission. R. is unable, without care, supervision and
assistance of others to exercise self-control, judgment and
discretion to satisfy his need for medical/psychiatric care,
and has exhibited severely impaired insight as to his need
for medical/psychiatric care, and there is reas[onable]
probab[ility] of R. suffering serious physical debilitation in
near future unless he gets adequate inpatient and
outpatient treatments. Within relevant past, R. has
threatened to inflict serious bodily harm on other persons
(including threatening serious bodily harm to UNC law
enforcement officers on 2/3/15) and there is reasonable
probability this conduct would be repeated unless R. gets
adequate inpatient and outpatient treatment.
The trial court ordered that Respondent be committed to UNC Wakebrook for
a period of inpatient treatment not to exceed 30 days and to Alliance Behavioral
Health for a period of outpatient treatment not to exceed 60 days. Respondent
entered written notice of appeal on 9 March 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.
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Opinion of the Court
Analysis
The sole issue presented in this appeal is whether Respondent is entitled to a
new involuntary commitment hearing because the lack of a verbatim transcript from
the underlying hearing denied him his right to meaningful appellate review.1 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).
This Court has very recently dealt with this same issue. See In re Shackleford,
__ N.C. App. __, __ S.E.2d __ (filed July 19, 2016) (No. COA15-1266). As we explained
in Shackleford, “the unavailability of a verbatim transcript may in certain cases
deprive a party of its right to meaningful appellate review and . . . in such cases, the
absence of the transcript would itself constitute a basis for appeal.” See id. at __, __
S.E.2d at __, slip op. at 4. The unavailability of a verbatim transcript does not,
however, automatically constitute reversible error. Id. at __, __ S.E.2d at __, slip op.
at 4. Rather, in order to show that the absence of a verbatim transcript entitles an
1We 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).
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appellant to a new hearing, he “must demonstrate that the missing recorded evidence
resulted in prejudice.” Id. at __, __ S.E.2d at __, slip op. at 4-5 (citation and quotation
marks omitted). Moreover, “[g]eneral allegations of prejudice are insufficient to show
reversible error.” Id. at __, __ S.E.2d at __, slip op. at 5. “[T]he absence of a complete
transcript does not prejudice the [appellant] 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 Shackleford, __ N.C. App.
at __, __ S.E.2d at __, slip op. at 5.
Applying this legal framework, 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 who
were present at the hearing: Judge Meyer; Dr. Brian Robbins (“Dr. Robbins”),
Respondent’s treating physician at UNC Wakebrook; Lori Callaway (“Callaway”), the
deputy clerk; Andrew Hayes (“Hayes”), counsel for the State; Kristen Todd (“Todd”),
Respondent’s counsel; and Respondent. In these letters, Respondent’s appellate
counsel requested that each of the recipients provide him with their recollections of
the hearing and any notes they possessed regarding the proceeding.
Guided by our decision in Shackleford, we believe that Respondent has
“satisfied his burden of attempting to reconstruct the record.” Shackleford, __ N.C.
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App. at __, __ S.E.2d at __, slip op. at 7 (citations and quotation marks omitted). In
Shackleford, as here, there was no transcript available from the involuntary
commitment hearing because the recording equipment failed to record the proceeding
and there had not been a court reporter present. Id. at __, __ S.E.2d at __, slip op. at
3. In his effort to reconstruct the record, the respondent’s appellate counsel similarly
sent letters requesting any notes and recollections from the hearing to the presiding
judge, the respondent’s treating physician, the deputy clerk, counsel for the inpatient
treatment facility at which the respondent was being treated, the respondent’s
counsel, and the respondent himself. Id. at __, __ S.E.2d at __, slip op. at 5-6.
In concluding that the respondent’s appellate counsel in Shackleford had met
his burden of attempting to reconstruct the record, we found our decision in State v.
Hobbs, 190 N.C. App. 183, 660 S.E.2d 168 (2008), to be particularly instructive:
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. In an effort to
reconstruct the proceedings, the defendant’s 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 [in Hobbs] had satisfied his
burden of attempting to reconstruct the record.
Shackleford, __ N.C. App. at __, __ S.E.2d at __, slip op. at 6-7 (internal citations
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omitted).
We explained that because the respondent’s appellate counsel in Shackleford
“took essentially the same steps as the appellant’s attorney in Hobbs[,] we similarly
conclude that [the respondent] has satisfied his burden of attempting to reconstruct
the record.” Id. at __, __ S.E.2d at __, slip op. at 7. The same is true in the present
case.
Therefore, we must next determine 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 explained below, we conclude that an adequate alternative has, in
fact, been produced in this case.
Respondent’s appellate counsel received responses from each of the recipients
of his letters. Callaway replied that she did not have any notes from the hearing. Dr.
Robbins stated that he did not have a specific recollection of the hearing and did not
keep any notes from it. Respondent reported that he had no detailed recollection of
the hearing. Todd provided her notes from the hearing, which consisted of eight pages
of handwritten notes. Hayes replied with a brief summary of the hearing testimony
based upon his notes from, and memory of, the hearing.
The most significant response came from Judge Meyer, who provided
Respondent’s appellate counsel with a detailed account of the testimony offered at
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the hearing in a five-page, single-spaced, typed memorandum. Judge Meyer stated
that the document was “based on his memory of testimony at the hearing after
reviewing personal notes of the hearing made by [him] during the hearing and after
additional reflection and recollection.” The memorandum contained individual
sections detailing the testimony of each witness: Kawana Woodard (“Kawana”),
Respondent’s sister; Donnie Farrington (“Farrington”), Respondent’s father; Dr.
Robbins; and Respondent. Judge Meyer’s memorandum not only provides support
for each finding of fact in the trial court’s 12 February 2015 order but also contains
even greater detail regarding the testimony supporting these findings.2
The contrast between the results of the attempted reconstruction of the
hearing in this case and that in Shackleford is significant. In concluding that the
reconstruction efforts in Shackleford had failed to produce an adequate alternative to
a verbatim transcript, we explained that
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 these notes could
conceivably assist in recreating the hearing if supplemented
2 While Judge Meyer acknowledged in a prefatory statement that his memorandum was not
intended to be a comprehensive account of every aspect of the hearing, in light of the detail contained
therein and the obvious care with which the document was prepared, we are satisfied that his
memorandum, as supplemented by the notes and summary provided by the two attorneys who
participated in the hearing, is sufficient to constitute an adequate alternative to a verbatim transcript.
As we have previously explained, “notwithstanding the critical importance of a complete trial
transcript for effective appellate advocacy, the unavailability of a verbatim transcript does not
automatically constitute error.” Hobbs, 190 N.C. App. at 186, 660 S.E.2d at 170 (citation, quotation
marks, and brackets omitted).
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by other sources providing greater detail, they are not in
and of themselves substantially equivalent to the complete
transcript.
Shackleford, __ N.C. App. at __, __ S.E.2d at __, slip op. at 9-10 (internal citation,
quotation marks, and brackets omitted and emphasis added).
The present case serves as an example of the precise scenario contemplated in
the above-quoted language from Shackleford. Here, as in Shackleford, Respondent’s
counsel from the involuntary commitment hearing provided limited handwritten
notes referencing witness testimony from the hearing. However, while in Shackleford
these notes alone constituted the product of the respondent’s appellate counsel’s
efforts to reconstruct the proceeding, that is not the case here. Rather, in the present
case, these handwritten notes — along with the State’s attorney’s summary of the
hearing testimony — supplemented the thorough memorandum provided by Judge
Meyer. Thus, this case is materially distinguishable from Shackleford.
Together, the materials supplied to Respondent’s appellate counsel provide the
following account of the hearing: Kawana testified that at the beginning of January
2015 Respondent posted false comments on social media, including statements that
“I’m a Navy Seal . . . I’ve been raped.” She also stated that around this time
Respondent had been having altercations with his other two sisters, which was not
something that occurred when he was taking his medication and complying with his
treatment.
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Farrington, with whom Respondent lived, testified that two weeks prior to
Respondent’s pre-hearing inpatient admission, Respondent constantly fought with
his sisters and Farrington and falsely posted on Facebook that he was a “known gang
member.” Respondent admitted to Farrington that he had made posts regarding
gang members and said that he had “beat somebody up.” Two men came to
Farrington’s home to confront Respondent about his social media posts concerning
gang members, but Farrington told them to leave because Respondent was sick.
Farrington also testified that on the coldest day of December 2014, when the
temperature was 17 degrees, Respondent walked from his home to Farrington’s
workplace (a quarter mile away) wearing nothing but shorts and a t-shirt.
Dr. Robbins, who has been a psychiatrist since 2007 and at the time of the
hearing was UNC Wakebrook’s medical director, was qualified by the trial court as
an expert in psychiatry. Dr. Robbins stated that he had been treating Respondent at
UNC Wakebrook for the eight days preceding the hearing. He had also treated
Respondent at UNC Wakebrook for 10 days in November 2013.
Dr. Robbins testified that Respondent suffered from schizophrenia, a diagnosis
he had reached based on Respondent’s November 2013 inpatient admission (during
which Respondent “presented with paranoia and delusions, punched walls when
frustrated with his treatment, and then improved with medication and treatment”)
as well as his admission immediately preceding the 12 February 2015 hearing. Dr.
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Robbins made the following observations regarding Respondent’s mental condition at
the time of the latter admission:
(a) Respondent having multiple delusions that he is a Navy
Seal, that he is being followed by the Black Panthers and
the Secret Service, that he is a six time Olympic gold
medalist, that he has microchips implanted in his head,
that [UNC] Wakebrook medical staff are trying to “enlist
him,” that he is President Obama’s nephew, and that he is
a PhD. with eight degrees; (b) Respondent throwing away
most of his clothes and exhibiting disorganized thinking
and a “disconnect” between what his family wants and
what he wants; (c) Respondent beating on windows during
his current inpatient admission; (d) reports by family
members of Respondent’s altercations with his sisters and
other behavior such as Respondent walking long distances
in the freezing cold with very little clothes on; and (e) a
family history of schizophrenia, to wit, Respondent’s
mother suffering from schizophrenia.
Dr. Robbins also testified that after Respondent’s November 2013 inpatient
admission at UNC Wakebrook, he refused to continue taking his medication, claiming
that it was unnecessary because he was not mentally ill. During the inpatient
admission immediately preceding the 12 February 2015 commitment hearing, UNC
Wakebrook medical staff had to force Respondent to take medication because of his
refusal to take it voluntarily.
Dr. Robbins further related Respondent’s statement that he had gotten into a
physical altercation with his sister. According to Dr. Robbins, Respondent also
threatened to kill certain law enforcement officers and threatened to punch both Dr.
Robbins and a nurse who was trying to give Respondent medication by means of a
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forced injection. Dr. Robbins explained that medical staff planned to further increase
Respondent’s dosage because he was “guarded, irritable, and paranoid” and that
although he had “shown some decrease in overt threats and delusions,” he was “still
exhibiting delusional behavior.”
Dr. Robbins testified that, in his professional opinion,
Respondent’s delusions and latent thoughts of behavior
threatening to himself and his family would pose a threat
of more altercations with his sister and others if he resides
at home with his father, that there is a reasonable
probability of Respondent repeating such conduct without
additional inpatient treatment followed by outpatient
treatment, that outpatient treatment alone is insufficient
because of Respondent’s pattern of refusing to take his
prescribed medication and refusing to comply with follow
up appointments and other outpatient treatment
requirements, and that without additional inpatient
treatment followed by outpatient treatment Respondent is
unable to exercise self-control, judgment and discretion to
take care of his medical needs and safety and there is a
reasonable probability of Respondent suffering serious
physical debilitation without additional inpatient
treatment followed by outpatient treatment.
Finally, Dr. Robbins testified as to his recommendation that Respondent undergo 30
days of additional inpatient treatment followed by at least 60 days of outpatient
treatment.
Respondent testified that a fight with his sisters had precipitated his most
recent inpatient admission. He denied ever claiming that he was a gang member,
had been raped, was President Obama’s nephew, and had been followed by the Black
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Panthers or the Secret Service. In addition, Respondent testified that he did not need
medication and that it made him bipolar. He further stated that he had threatened
Dr. Robbins and the nurse in “self-defense” because he did not want to take any more
medication and had stopped taking his medication after his November 2013
admission because of its side effects.
Respondent also denied that he was schizophrenic or mentally ill but admitted
he was “just bi-polar at times.” He testified that he would not take medication if the
dosage was too high because that would adversely affect his ability to get a job. He
stated that when he walked to Farrington’s workplace on the cold December day, he
was wearing a coat over his basketball shorts and t-shirt. Finally, Respondent denied
that he had (1) threatened to kill any law enforcement officers or told Dr. Robbins he
had done so; or (2) punched or beat on a window at UNC Wakebrook.
We observe that the above-referenced testimony provides support for all of the
trial court’s findings of fact. While Respondent notes that Judge Meyer’s
memorandum does not specifically indicate whether any objections were made to
evidence presented at the hearing, given that no mention of evidentiary disputes are
reflected either in that memorandum or in the accounts provided by the attorneys
who were present at the hearing, we are unwilling to deem the reconstructed record
inadequate simply because of the theoretical possibility that one or more rulings
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might have been made by the trial court at the hearing in response to objections by
counsel.
As the differing results we have reached in Shackleford and the present case
aptly demonstrate, the issue of whether an attempted reconstruction of a proceeding
is sufficient to preserve the right to meaningful appellate review does not lend itself
to clear, bright-line rules. Rather, such a determination must be made on a case-by-
case basis depending on the unique circumstances of each particular case.
Accordingly, we conclude that because Respondent has been able to obtain an
adequate alternative to a verbatim transcript of his involuntary commitment
hearing, he cannot show he was prejudiced by the absence of an actual transcript.
Consequently, he was not deprived of the opportunity for meaningful appellate review
of his involuntary commitment hearing.3
Conclusion
For the reasons stated above, we affirm the trial court’s 12 February 2015
order.
AFFIRMED.
Judges ELMORE and HUNTER, JR. concur.
3
We note that appellants who assert on appeal that they have been deprived of the ability to
obtain meaningful appellate review due to the unavailability of a verbatim transcript from a trial court
proceeding may also argue, in the alternative, specific errors that appear on the face of the order from
which appeal is being taken or errors that are discovered as a result of an attempt to reconstruct the
proceeding. However, Respondent has not raised any such specific errors in the present case.
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