No. COA 10-1432 TWENTY-FIFTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Caldwell County)

RASHAD DONTE JORDAN )

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DEFENDANT-APPELLANT’S BRIEF

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ii

INDEX

TABLE OF CASES AND AUTHORITIES.....................................................iv

QUESTIONS PRESENTED.............................................................................1

STATEMENT OF THE CASE.........................................................................2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW........................2

STATEMENT OF THE FACTS.......................................................................3

ARGUMENT....................................................................................................7

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING RASHAD JORDAN’S SUPPRESSION MOTIONS.........................................................................................7

A. Mr. Jordan Invoked His Rights To Remain Silent And To Assistance Of Counsel............................................................10

B. Interrogating Officers Must “Scrupulously Honor” A Defendant’s Right To Cut Off Questioning..................................13

C. After Rashad Jordan Unmistakably Invoked His Right To Silence And To Counsel, The Detective Used Deceptive Tactics To Convince Him To Waive His Rights............................................................................................14

D. The Trial Court’s Findings Of Fact Are Not Supported By Competent Evidence...............................................................17

E. The Trial Court’s Conclusions Of Law Fail To Reflect The Correct Application Of Legal Principles...............................19

iii

F. Allowing The Transcript Of The Interrogation To Be Introduced And Published To The Jury Was Prejudicial Error............................................................................20

II. THE TRIAL COURT ERRED BY ALLOWING AN INACCURATE TRANSCRIPT OF THE DEFENDANT’S INTERROGATION TO BE PUBLISHED TO THE JURORS........22

A The Audio Tape Is Difficult To Understand Leaving Critical Segments Open To Interpretation.................................................24

B. The Best Evidence Rule Precludes The Introduction Of Secondary Material.......................................................................26

C. Introduction Of The Transcript Was Grossly Prejudicial And Misleading Depriving Mr. Jordan Of Due Process And A Fair Trial.......................................................................................28

III. THE TRIAL COURT ERRED BY ALLOWING THE JURORS TO HEAR OUT OF CONTEXT AN EXCHANGE BETWEEN DEFENDANT AND A REPORTER IN THE COURTHOUSE HALLWAY........................................................................................31

A. Jurors Were Not Told Mr. Jordan Was Being Escorted By Sheriff’s Deputies And Lacked The Opportunity To Fully Answer The Reporter’s Questions................................................33

B. The Trial Court Failed To Perform The Balancing Test Mandated By Rule 403.................................................................36

C. The Error Was Prejudicial............................................................37

CONCLUSION.................................................................................................38

CERTIFICATE OF SERVICE AND FILING..................................................39

CERTIFICATE OF COMPLIANCE................................................................39

iv

TABLE OF AUTHORITIES

Cases

Arizona v. Roberson, 486 U.S. 675 (1988).........................................................13Arizona v. Fulminte,499 U.S. 279 (1991)...........................................................21Blackburn v. Alabama, 361 U.S. 199 (1960)......................................................16Bonicelli v. State, 339 P.2d 1063 (Okla.Crim.App. 1959)..................................26Boyd v. United States, 116 U.S. 616 (1886)........................................................16Chambers v. Florida, 309 U.S. 227 (1940).........................................................16Connecticut v. Barrett, 479 U.S. 523 (1987).......................................................14Davis v. United States, 512 U.S. 452 (1994).................................................13, 14Duggan v. State, 189 So.2d 890 (Fla.App. 1966)...............................................26Edwards v. Arizona, 451 U.S. 477 (1981)...........................................................13Harleysville Mut. Ins. Co. v. Santora, 444 N.E.2d 1076

(Ohio App. 1982).............................................................................................28In re Pittman, 149 N.C.App. 756, 561 S.E.2d 560, disc.

review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982(2003)...............................................................................9

Lutwak v. United States, 344 U.S. 604 (1953)....................................................37McNeil v. Wisconsin, 501 U.S. 171 (1991).........................................................14Michigan v. Jackson, 475 U.S. 625 (1986).........................................................14Michigan v. Mosely, 423 U.S. 96 (1975).............................................................13Miller v. Fenton, 474 U.S. 104 (1985)..................................................................9Minnick v. Mississippi, 498 U.S. 146 (1990)......................................................13Miranda v. Arizona, 384 U.S. 436 (1966).....................................................13, 16State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000).....................24, 32State v. Brown, 112 N.C.App. 390, 436 S.E.2d 163 (1993)..................................9

v

State v. Brown, 112 N.C.App. 390, 436 S.E.2d 163 (1993)..................................9State v. Fernandez, 346 N.C.1, 11, 484 S.E.2d 350, 357 (1997)..........................9State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988).................................9, 24State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (1997), cert

denied 532 U.S. 931 (2001)...............................................................................9State v. Haas, __ N.C.App. ___, 688 S.E.2d 98 (2010)......................................27State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002)...........................................14State v. Mackey, ___ S.E.2d ___, 2010 WL 5093922

(N.C.App. December 7, 2010).........................................................................32State v. Madric, 328 N.C. 223, 400 S.E.2d 31 (1991).........................................35State v. Martinez, 149 N.C.App. 553, 561 S.E.2d 528 (2002)............................27State v. Morris, 332 N.C. 600, 422 S.E.2d 578 (1992).......................................22State v. Murphy, 342 N.C. 813, 467 S.E.2d 428 (1996)......................................13State v. Phillips, 283 N.C. 339, 196 S.E.2d 270 (1973)......................................33State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).................................24, 32State v. Rogan, 640 N.E.2d 535 (Ohio App. 1994).............................................28State v. Temples, 74 N.C.App. 106, 327 S.E.2d 266 (1985).........................33, 37State v. Torres, 330 N.C. 517, 412 S.E.2d 20 (1992)..........................................13State v. York, 347 N.C. 79, 489 S.E.2d 380 (1997).............................................26Taylor v. Taylor, 343 N.C. 50, 468 S.E.2d 33 (1996).........................................35

Statutes

N.C. Gen. Stat. § 7A-27(b)....................................................................................2N.C. Gen. Stat. § 8C-1, Rules of Evidence 1002..............................23, 26, 27, 31N.C. Gen. Stat. § 8C-1, Rules of Evidence 1003................................................23N.C. Gen. Stat. § 8C-1, Rules of Evidence 1004................................................23N.C. Gen. Stat. § 8C-1, Rule 403............................................................24, 32, 35N.C. Gen. Stat. § 15A-1443(a)............................................................................37

vi

N.C. Gen. Stat. §15A-1444 (a)..............................................................................2

Rules

Rule 4(a) N.C.R.App.P..........................................................................................2

Treatises

Charles E. Carr, “Voices, Texts, and Technology: Evidence Law Confronts Tapes And Their Transcriptions, 35 St. Louis U.L.J. 289, 294 (1991)................................................................................................28

Kenneth S. Broun, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE (4th ed. 1993)....................................................................................26

Constitutional Provisions

N.C. Const. Art. I, Sec. 19.........................................................................8, 23, 31N.C. Const. Art. I, Sec. 23.........................................................................8, 23, 31U.S. Const. Amend. V..................................................................................passimU.S. Const. Amend. VI................................................................................passimU.S. Const. Amend. XIV..............................................................................passim

vii

No. COA 10-1432 TWENTY-FIFTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Caldwell County)

RASHAD DONTE JORDAN )

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT ERRED BY DENYING MR. JORDAN’S MOTIONS TO SUPPRESS HIS STATEMENT?

II. WHETHER THE TRIAL COURT VIOLATED MR. JORDAN’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY PUBLISHING TO THE JURY THE POLICE-PRODUCED TRANSCRIPT OF AN INTERROGATION WHEN BOTH A VIDEO AND AN ENHANCED AUDIO WERE AVAILABLE?

2

III. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE JURORS TO HEAR THE DEFENDANT’S RESPONSES TO QUESTIONS SHOUTED AT HIM BY A TELEVISION REPORTER IN THE COURTHOUSE HALLWAY WHEN THE TAPE WAS INCOMPLETE AND THE JURORS WERE ALLOWED TO HEAR THE EXCHANGE BUT NOT SEE THE SETTING?

STATEMENT OF THE CASE

On 29 January 2007 Rashad Jordan was indicted on one count of first

degree murder. A superseding indictment issued on 16 November 2009. The

case came on for trial at the 7 December 2009 Session of the Caldwell County

Superior Court, the Honorable R. Stuart Albright presiding. On 15 December

2009 the jury returned a verdict finding Mr. Jordan guilty of first degree murder.

On 16 December 2009, the Court sentenced Mr. Jordan to life in prison. Notice

of appeal was given in open court on 16 December 2010

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

This is an appeal of right pursuant to the provisions of N.C. Gen. Stat. §§

7A-27(b) and 15A-1444(a) and Rule 4(a) N.C.R.App.P. from final judgments of

conviction by a defendant who pled not guilty and was found guilty of a non-

capital crime.

3

STATEMENT OF THE FACTS

Cedric Harshaw telephoned Rashad Jordan on the evening of January 19,

2007 concerning drugs. Makiaya Powell drove Mr. Jordan to Mr. Harshaw’s

residence. Timothy Jolly rode in the back seat. Mr. Jordan and Mr. Harshaw

walked a little and then returned to the car. As Mr. Jordan and Mr. Harshaw

stood next to the car, the driver, Makiaya Powell, fired at least one shot.

Timothy Jolly testified Mr. Jordan subsequently fired at Mr. Harshaw. The

weapon was never found. Mr. Powell, who at a minimum fired the first shot,

was not charged with any crime and was not called to testify. Mr. Jordan was

convicted of first degree murder.

The State called Timothy Jolly and Janarro Patterson to testify as

eyewitnesses to the shooting. Mr. Jolly spent January 19 drinking with Rashad

Jordan, while Janarro Patterson hung out with the victim all day. Timothy Jolly

testified he and Mr. Jordan met up in the morning of Friday and spent the day

riding around and drinking. (Tp. 869) In the afternoon, Mr. Jordan picked up

Makiaya Powell when Mr. Powell was released from jail. (Tpp. 870-871). The

men went to the area where Mr. Jordan’s grandmother and uncle lived to attend

a party. (Tp. 874) After Mr. Jordan and his uncle got in to an argument, the three

men left and went to another party. (Tp. 876) Timothy Jolly sat in the back seat,

Makiaya Powell drove and Rashad Jordan sat in the front passenger seat. (Tp.

4

876) Mr. Jolly testified he was drinking a lot, smoking weed and doing a little

coke. He and Mr. Jordan were pretty messed up and high into the night. (Tpp.

873, 894-895) Mr. Jolly testified he was so drunk he dozed off. When he woke

they were riding again. (Tp. 877) Sherrell Jones testified she was home in bed

with Xavier Horton when Mr. Jolly, Mr. Powell and Mr. Jordan came into her

bedroom. She testified they were just playing around and drunk. (Tp. 779-781)

They brought a gun with them. She testified that Rashad Jordan had it and

passed it to Timothy Jolly. When they left Mr. Jolly had the gun. (Tpp. 781,

791)

During the evening, Rashad Jordan received a telephone call from Cedric

Harshaw. Mr. Powell drove to Mr. Harshaw’s house. (Tpp. 878-879) Mr. Jordan

got out of the car and talked with Mr. Harshaw. Mr. Jordan testified he could

never hear what Mr. Jordan and Mr. Powell were saying, as he stayed in the

back seat. (Tpp. 880, 881, 895) Makiaya Powell got out of the car with a gun.

According to Mr. Jolly, Mr. Powell fired one shot. (Tpp. 881-882, 896) Mr.

Jolly testified Mr. Jordan walked around the car, took the gun from Mr. Powell

and shot Mr. Harshaw. (Tp. 884) Mr. Jolly remembered hearing four gunshots.

He saw Mr. Harshaw fall. (Tp. 885) Makiaya Powell and Rashad Jordan got

back in the car. Mr. Powell drove. Mr. Jolly was dropped off at a friend’s house.

(Tp. 885)

5

The next day, Saturday, January 20, a police officer came to Mr. Jolly’s

neighborhood and asked him to come to the police station. Mr. Jolly testified he

felt if he didn’t come he would be charged. (Tp. 898) Detective Dick testified

the first time Mr. Jolly came to the police station, a polygraph examination and

interview were attempted, but Mr. Jolly was too intoxicated. On the next

scheduled date, Mr. Jolly failed to show. He was rescheduled for February 1, but

showed up on January 30 instead. (Tpp. 1121-1122, 1137, 1142) When Mr.

Jolly returned on January 30, Detective Dick administered a pretest interview

and exploratory test. He concluded after careful evaluation and quality control

procedures that Mr. Jolly was being deceptive. (Tp. 1144) A voir dire was held

to determine whether the determination of the polygraph examiner that Mr.

Jolly’s answers were deceptive could be admitted to the jury. The court ruled the

polygraph result that Mr. Jolly was deceptive could not be admitted. (Tpp. 1155)

Janarro Patterson had known Cedric Harshaw for four or five years before

January 2007. On the 19th he spent the day drinking with Mr. Harshaw. (Tp.

812) They were at Mr. Harshaw’s house that evening when Mr. Harshaw

received a phone call. They went outside. Mr. Patterson went and sat in his car.

The car Makiaya Powell was driving pulled up and parked right behind Mr.

Patterson’s car. (Tp. 818) Mr. Harshaw and Mr. Jordan walked down the street

together. Mr. Jordan and Mr. Harshaw were not yelling or cursing at each other.

6

(Tp. 844) When they returned to where the cars were parked, Mr. Patterson saw

the driver get out of the car. (Tp. 818) He heard a shot. (Tpp. 814-815) After he

heard the first shot, Mr. Patterson ducked down in front of his car and heard four

or five more shots. (Tpp. 818, 821) He was unable to identify the shooter. (Tpp.

824, 838) Mr. Patterson did not see the direction of the first gunshot. (Tp. 824)

Mr. Patterson stayed hidden until the car pulled away up the hill. (Tp. 825) A

year later, Mr. Patterson talked with Mr. Jordan’s counsel. He signed a statement

saying he felt threatened by the police when he made his statement. The police

were pressuring him to say things. (Tpp. 842-843) He told the jurors he felt

when he answered a question the police would try to make him feel he was lying

to them and were trying to make him say what they wanted him to say, including

things he did not actually remember. (Tpp. 843, 851, 853)

The State called a cousin of the victim, Ronald Barnes, to testify to an

incident that occurred in his trailer on New Year’s Eve. Cedric Harshaw was

staying with Mr. Barnes. Rashad Jordan came with a woman and also spent the

night. The next morning, Mr. Jordan asked Mr. Barnes who else had stayed that

night, because some of his money was missing. (Tp. 752) Three years later, Mr.

Barnes told the police that a couple of weeks after New Year’s Eve, Mr. Jordan

approached Mr. Barnes at a convenient store and told him he was going to kill

his cousin. (Tp. 753)

7

Detective Jeffrey Dick found five casings near the area of the victim. As

EMS had already moved the body, some of the casings may have been kicked.

(Tpp. 1105, 1116) The pathologist testified the cause of death was internal

hemorrhage due to multiple bullet wounds. The most damaging wound went

through the aorta. (Tpp. 1257-1258) Mr. Harshaw’s blood alcohol level was

0.16 at the time of death. (Tp. 1259)

SBI Agent Shane Greene read from another agent’s report. The report

indicated gunshot residue on the defendant’s clothes, but Agent Greene could

not say whether the residue came from firing the gun or from being in close

proximity to a gun that was fired. (Tpp1307-1308) No gunshot residue testing

was done on Makiaya Powell or Timothy Jolly. (Tp. 1448)

ARGUMENT

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING RASHAD JORDAN’S SUPPRESSION MOTIONS

Rashad Jordan filed a Motion To Suppress Evidence of Defendant’s

Statements After Invocation Of Right To Silence on November 3, 2009. On

November 30, 2009, an Amended Motion was filed. (Rpp. 118-125) A hearing

was held on the motion to suppress on December 7, 2009. After presentation of

testimony, the court denied the motion to suppress, except for statements

concerning a prior prison sentence. Near the end of the interview, Mr. Jordan

8

stood up and indicated he was through talking. The detectives continued the

interrogation. The trial court excluded the interrogation after Mr. Jordan stood

and asked to be taken to the magistrate. (Rpp. 139-144; Tpp. 162-172)

Defendant renewed his motion to suppress at the time the order was read in open

court and before the videotape was played for the jurors. The renewed motions

were denied. (Tpp. 172, 1366, 1373, 1391, 1401) Defendant’s objections to

Detective Cornett’s testimony concerning the interrogation were denied. (Tpp.

1391, 1394, 1395. 1399, 1400) The trial court also denied Defendant’s

objections to the introduction and publication of a transcript of the interview,

which was prepared by the police department. (Tpp. 1409, 1410)

The Fifth, Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution

guarantee the right to the assistance of counsel and against compulsory self-

incrimination. The trial court erred in concluding the detective did not violate

Mr. Jordan’s constitutional rights when in response to Mr. Jordan’s refusal to

waive his rights, the detective persisted in asking questions and falsely assured

Defendant he could answer some, but not all of the questions put to him without

repercussions. Because the interrogation was conducted in violation of Mr.

Jordan’s constitutional rights, the trial court erred by denying the motions to

suppress.

9

STANDARD OF REVIEW

A trial court’s findings of fact on a motion to suppress are conclusive and

binding upon this court, if supported by competent evidence. State v. Brown,

112 N.C.App. 390, 436 S.E.2d 163 (1993); In re Pittman, 149 N.C.App. 756,

762, 561 S.E.2d 560, 565 (citations omitted), disc. review denied, 356 N.C. 163,

568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 155 L.Ed.2d 673 (2003). The

trial court’s finding of voluntariness is a question of law and is reviewed de

novo. Miller v. Fenton, 474 U.S. 104, 115 (1985); State v. Gardner, 322 N.C.

591, 594, 369 S.E.2d 593, 597 (1988). The State bears the burden of proving by

a preponderance of the evidence a knowing and intelligent waiver of rights, and

that resulting statements are voluntary. State v. Flowers, 128 N.C.App. 697, 497

S.E.2d 94 (1998). “The trial court’s conclusions of law must be legally correct,

reflecting a correct application of applicable legal principles to the facts found.”

State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (quoting State v.

Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997), cert denied 532 U.S.

931 (2001).

10

DISCUSSION OF THE ISSUE

A. Mr. Jordan Invoked His Rights To Remain Silent And To Assistance Of Counsel

Rashad Jordan was taken into custody in the early hours of January 20,

2007. Detective Cornett, who had known Mr. Jordan for eleven years, began by

reminding Mr. Jordan of their relationship. After this exchange he passed a

Miranda rights form over to Mr. Jordan and told Mr. Jordan where to sign and

date the form:

Cornett: I guess you’d rather see me sitting here than anybody

else, wouldn’t you?

Jordan: Yeah. And Brett. That’s why I don’t like Tolbert.

(Inaudible).

Cornett: Let me get that other one turned around (Inaudible).

Turn around (Inaudible). Sign your name right there and date

it right here.

(Tp. 50, Rp. 147) Instead of signing the form, Mr. Jordan began reading the

form out loud to himself. He then unambiguously stated he would not sign and

would not waive his rights.

Jordan: I need my rights. I ain’t signing my away right.

(Inaudible).

11

(Rp. 147) Mr. Jordan put the pen down and continued reading the form. (Tp.

151) Detective Cornett said something to Mr. Jordan. Mr. Jordan continued

reading the form and stated again he would not waive his rights:

Jordan: No promises or threats have been made to me

(Inaudible) of any kind (Inaudible). Naw man, I ain’t doin’

that. (Inaudible).

(Rp. 147) Instead of ceasing the questioning after Mr. Jordan had repeated his

unqualified refusal to sign away his constitutional rights, Detective Cornett

persisted. Mr. Jordan told the detective he needed to wait for the lawyer that his

people were getting for him:

Cornett: You don’t want to talk about it at all?

Jordan: I mean look man.

Cornett: Look, you know I can’t talk to you without . . .

Jordan: I know.

Cornett: Without you signing saying it’s ok. You know.

Jordan: I know but that ain’t right. Ya’ll ain’t even wanting to

question me man without a lawyer present. My people’s

already getting me a lawyer cuz [sic].

12

(Rp. 148) There is no question that Detective Cornett should have ended the

interrogation at this point. Instead the detective continued to try to inveigle Mr.

Jordan into waiving his rights, casting it as a “problem” that he could not ask

any questions:

Cornett: I can’t ask you, (Inaudible). That’s the problem. I can’t

ask you questions. You know I can’t ask you questions.

(Rp. 148) Detective Cornett then gave Mr. Jordan incorrect legal advice that he

could selectively answer questions:

Cornett: Exactly and you do have that right; you, you answer

what you want to. I mean it’s not like if you don’t answer it

right or don’t give me (Inaudible) throw you in the floor or

nothing, you know better than that.

(Rp. 148)

After convincing Mr. Jordan to waive his rights by assuring him he could

just answer some of the questions, Detective Cornett asked Mr. Jordan “to start

from the beginning and tell me what happened; what caused everything.” (Rp.

148 The transcript of this part of the interview continues for ten pages. (Rpp.

149-164) Mr. Jordan then stated: “I don’t want to talk no more man. Just

fingerprint me and take me to the Magistrate’s Office.” The trial court ruled that

13

any conversation after this final assertion of his right to silence be suppressed.

(Tp. 169; Rp. 143)1

B. Interrogating Officers Must “Scrupulously Honor” A Defendant’s Right To Cut Off Questioning

Once Miranda warnings have been given, if a suspect indicates “in any

manner, [and] at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U.S. 436,

473-74 (1966). Interrogation may be resumed only if the officers have

“scrupulously honored” the individual’s “right to cut off questioning.” Michigan

v. Mosely, 423 U.S. 96, 104 (1975); State v. Murphy, 342 N.C. 813, 823, 467

S.E.2d 428, 434 (1996). If an individual has requested counsel, police may not

resume the interrogation until counsel has been made available or until the

accused himself initiates further communications with the police. Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981); State v. Torres, 330 N.C. 517, 412 S.E.2d

20 (1992). “[A] suspect who has invoked the right to counsel cannot be

questioned regarding any offense unless an attorney is actually present.” Davis

v. United States, 512 U.S. 452, 458 (1994), citing to Minnick v. Mississippi, 498

U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988)

1 The un-redacted transcript of the interrogation prepared by the police department was introduced during the suppression hearing as State’s Exhibit Voir Dire Number 14. The transcript reproduced in the Record on Appeal is the redacted version published to the jury. (Rpp. 147-164)

14

Our Supreme Court held that invocation of the right to counsel does not

need to “be precise and unequivocal.” Torres at 527, 412 S.E.2d at 26. The

Court explained United States Supreme Court precedent requires “a broad,

rather than a narrow, interpretation to a defendant’s request for counsel.” Id. at

528, 412 S.E.2d at 26, quoting Connecticut v. Barrett, 479 U.S. 523, 529 (1987)

and Michigan v. Jackson, 475 U.S. 625, 633 (1986). The invocation of the right

to counsel requires “some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney.” Davis v. United States,

512 U.S. 452, 459 (1994), quoting McNeil v. Wisconsin, 501 U.S. 171, 178

(1991). The test is objective—whether a reasonable officer under the

circumstances would have understood the suspect’s statement to be a request for

an attorney. State v. Hyatt, 355 N.C. 642, 655, 566 S.E.2d 61, 70 (2002).

C. After Rashad Jordan Unmistakably Invoked His Right To Silence And To Counsel, The Detective Used Deceptive Tactics To Convince Him To Waive His Rights

Rashad Jordan invoked his constitutional rights without ambiguity.

Detective Cornett—as any reasonable officer would have—would have

understood Mr. Jordan was invoking his rights when he refused to sign the

Miranda form. Despite Mr. Jordan’s repeated refusal to waive his rights to

silence and to counsel, the detective continued to try to maneuver Mr. Jordan

into answering questions. The video recording of the interrogation begins with

15

Detective Corbett reminding Mr. Jordan he was lucky he was the interrogator: “I

guess you’d rather see me sitting here than anybody else wouldn’t you.” (Rp.

147) Detective Corbett handed Mr. Jordan the Miranda form and told him where

to sign and date the form. But Mr. Jordan refused to sign: “I need my rights. I

ain’t signing my away right [sic], (Inaudible).” (Rp. 147) (emphasis added) As

he continued reading the Miranda sheet, Mr. Jordan’s assertion of his rights

became more adamant: “No promises or threats have been made to me

(Inaudible) of any kind (Inaudible). Naw man, I ain’t doin’ that. (Inaudible).”

(Rp. 147) (emphasis added). Instead of ceasing interrogation, Detective Corbett

attempted to cajole Mr. Jordan into signing the form by: 1) informing him that

he had a right to selectively answer questions; 2) a promise that Mr. Jordan

would not be harmed if he didn’t answer the questions correctly. (Rp. 148) As

failure to answer some questions or answering the questions “incorrectly” could

and was used against Mr. Jordan at trial, the suggestion that he had a right to

selectively answer questions is a flagrant misrepresentation of the constitutional

protections lost by signing the form. The detective should have ceased the

interrogation when Mr. Jordan refused to sign the Miranda form stated and

repeatedly stated he would not waive his rights.

Chief Justice Warren explained in Miranda a study of the history of the

constitution revealed the importance of carefully guarding the guaranteed rights:

16

“Those who framed our Constitution and the Bill of Rights were ever aware of

subtle encroachments on individual liberty. They knew that ‘illegitimate and

unconstitutional practices get their first footing . . . by silent approaches and

slight deviations from legal modes of procedure.’” Miranda v. Arizona, 384 U.S.

436, 459 (1966), quoting Boyd v. United States, 116 U.S. 616, 635 (1886).

Miranda was meant to cure the tactic of coercing a confession through

psychological manipulation: “[T]his Court has recognized that coercion can be

mental as well as physical, and that the blood of the accused is not the only

hallmark of an unconstitutional inquisition.” Id. at 448, quoting Blackburn v.

Alabama, 361 U.S. 199, 206 (1960), citing to Chambers v. Florida, 309 U.S.

227 (1940). The opinion quotes from police interrogation manuals on how to

manipulate a suspect. The manuals suggested in part the interrogator stress his

own “kindness” and persevere in convincing the suspect to waive his rights.

Miranda at 450-451. Chief Justice Warren noted when all else failed,

interrogators used trickery and false legal advice: “When normal procedures fail

to produce the needed result, the police may resort to deceptive stratagems such

as giving false legal advice.” Id. at 455. Miranda held: “An individual swept

from familiar surroundings into police custody, surrounded by antagonistic

forces, and subjected to the techniques of persuasion described above cannot be

otherwise than under compulsion to speak.” Id. at 461.

17

Detective Corbett’s tactics in this case mirror the proscribed tactics in

Miranda. Detective Corbett first reminded Mr. Jordan of their relationship. He

persevered with the interrogation even when Mr. Jordan repeatedly declared he

would not sign the form and did not wish to waive any of his rights. Detective

Corbett succeeded in convincing Mr. Jordan to waive his rights only by giving

him the false legal advice that as an alternative he could answer some questions

and not others. Miranda instructed: “any evidence that the accused was

threatened, tricked, or cajoled into a waiver will, of course, show that the

defendant did not voluntarily waive his privilege.” Id. at 476. As Rashad Jordan

was both tricked and cajoled after repeatedly asserting his refusal to waive his

rights to silence and to assistance of counsel, this Court must find his

constitutional rights to the effective assistance of counsel under the Sixth

Amendment and right against self-incrimination under the Fifth and Fourteenth

Amendments were violated.

D. The Trial Court’s Findings Of Fact Are Not Supported By Competent Evidence

The trial court found as a fact: “The defendant then orally waived his

Miranda rights freely, intelligently, voluntarily, and knowingly, free from any

coercion or duress, and agreed to speak with Detective Cornett.” (Finding of

Fact Paragraph 5, Tp. 139; also, Finding of Fact, Paragraph 16) These findings

ignored the indisputable facts that: 1) Mr. Jordan repeatedly asserted he would

18

not waive his rights; 2) Detective Cornett persisted in questioning him after the

refusals; and 3) that Mr. Jordan only waived his rights after Detective Cornett

falsely assured him he could safely selectively answer questions.

In two findings of fact, the trial court incorrectly characterized Detective

Cornett’s persistent tactics to convince Mr. Jordan to waive his rights as

“clarifying questions.” (Finding of Fact, Paragraph 12, Rp. 140; Finding of Fact,

Paragraph 19, Rp. 141) It is not a clarifying question to incorrectly inform the

suspect he can preserve his right to silence, but still answer some of the

questions: “Exactly and you do have that right; you, you answer what you want

to.” (Rp. 148) No competent evidence suggests this was a clarifying question.

Finding of Fact, Paragraph 15 states that the detective did not “threaten, coerce

or manipulate” Mr. Jordan. (Rp. 141) This finding ignores Detective Cornett’s

unconstitutional persistence in continuing the questioning after Mr. Jordan had

repeatedly asserted his rights and the detective’s use of false legal advice to

convince Mr. Jordan to sign the waiver.

Finding of Fact, Paragraph 28 states the defendant was “not under the

influence of any impairing substance” at the time of the interrogation. No

competent evidence of whether Mr. Jordan’s was or was not influenced by an

impairing substance was before the hearing court. Trial evidence showed more

likely than not, Mr. Jordan was impaired at the time of the interrogation.

19

Timothy Jolly testified he and Mr. Jordan had been drinking and during drugs all

day and in to the evening, that Mr. Jordan was as “wasted” as he was and they

were both drunk when they arrived at Mr. Harshaw’s residence. (Tpp. 894-895)

The time written on the Miranda form is 4:24 a.m. on January 20th, only hours

after the shooting.2 (Rp. 146)

E. The Trial Court’s Conclusions Of Law Fail To Reflect The Correct Application Of Legal Principles

The trial court concluded as a matter of law that Rashad Jordan fully

understood his Miranda rights and the waiver was made freely, intelligently,

voluntarily and knowingly. The court also concluded Mr. Jordan had at no time

asserted clearly and unequivocally his right to counsel or his right to silence.

(Rpp. 143) These conclusions were reached despite the fact that Mr. Jordan

repeatedly asserted his rights to counsel and to remain silent:

“I ain’t signing my away right.”

“Naw man, I ain’t doin’ that.”

“I know but that ain’t right. Ya’ll ain’t even wanting to question me

man without a lawyer present. My people’s already getting me a

lawyer cuz [sic].”

2 Officers arrived at the scene of the shooting at approximately 10:00 p.m. on the evening of January 19th. (Tp. 940)

20

(Rpp. 147-148) In addition to these statements, Mr. Jordan physically

demonstrated he did not want to waive his rights. According to hearing

testimony, as he was saying he would not waive his rights Mr. Jordan set down

the pen, pushed the Miranda form away from him and placed his hands on his

head. (Tpp. 109, 113, 115, 147) It is difficult to formulate actions more

unequivocal than stating “no”, pushing the form away and setting down the pen.

In finding the waiver of rights to be intelligent and knowing, the conclusions of

law failed to address the fact that Detective Corbett informed Mr. Jordan that he

has “the right” to answer some questions and not others.

Mr. Jordan unequivocally asserted his refusal to waive the constitutional

rights listed in the Miranda form, including the right to silence and the right to

counsel. Detective Corbett persisted in questioning Mr. Jordan after successive

assertions that he would not waive his rights. In the end, Detective Corbett

convinced Mr. Jordan to waive his rights by falsely asserting that there would be

no adverse consequences if he chose to answer some questions and not others, or

answered incorrectly. Mr. Jordan’s constitutional rights were violated.

F. Allowing The Transcript Of The Interrogation To Be Introduced And Published To The Jury Was Prejudicial Error

Both witnesses who testified agreed the first shot came from the driver’s

side of the car, where Makiaya Powell was standing. Timothy Jolly testified

21

Makiaya Powell fired the first shot. (Tpp. 814-815, 881-882, 886) How and after

how many shots the gun ended up in Mr. Jordan’s hands is not at all clear form

the testimony. Timothy Jolly testified he could not hear what Mr. Jordan and

Mr. Harshaw were saying because as he did not once get out of the back seat of

the car and “never did hear what was said”. (Tpp. 881, 896) Yet while he

“never” heard anything, Mr. Jolly was somehow able to hear Mr. Jordan tell Mr.

Harshaw to give him his money (Tp. 883) Mr. Patterson testified he was so

frightened he ducked down and didn’t see anything. Jurors would have been left

with reasonable doubt after this testimony whether Makiaya Powell or Rashad

Jordan fired the fatal shots. Mr. Jordan’s statement would have considerably

lessened these doubts.

The State has not met its burden of proving a knowing and intelligent

waiver of rights, resulting in a voluntary statement. It is the State’s burden to

demonstrate that the admission of Mr. Jordan’s statement was harmless error.

N.C. Gen. Stat. §15A-1443(b). When the admission of a confession and

accompanying prejudicial extraneous information is acknowledged by the State

as critical to its case, harmless error does not lie. Arizona v. Fulminante, 499

U.S. 279, 297-300 (1991).

While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses

22

the motive for and means of the crime may tempt the jury to rely on that evidence alone in reaching its decision.

Id. at 295. Accord State v. Morris, 332 N.C. 600, 610-611, 422 S.E.2d 578, 584-

585 (1992). This Court must find the trial court’s failure to suppress the

statement to be prejudicial constitutional error and vacate Rashad Jordan’s

conviction.

II. THE TRIAL COURT ERRED BY ALLOWING AN INACCURATE TRANSCRIPT OF THE DEFENDANT’S INTERROGATION TO BE PUBLISHED TO THE JURORS

Rashad Jordan’s interrogation was videotaped. (Tp. 1314; State’s Exhibit

19). Because the quality of the audio was poor, the State sent the recording to

SBI Agent Jonathan Dilday for digital enhancement. (Tpp. 1314-1315; State’s

Exhibit 20). Sharon Hendrix, a police department secretary, created a transcript

from the enhanced audio. (Tp. 73) The State played the video for the jurors. (Tp.

1403) Over the repeated objection of the Defendant, the police department

created transcript was published to the jury. Defendant objected both on

evidentiary and constitutional grounds:

But at this time I do want to move again to suppress the video. And I think the video is incomprehensible in many portions. . . . But then I suspect that they also at some point are going to want the jury to have access to the transcript. And I have some concerns about that, because the transcript was not made from the video. It

23

was made from the enhanced audio. And when Detective Cornett testified before us, he testified that he did not take notes throughout the interview, that he relied on the video, he relied on the enhanced audio. And that he along with someone else prepared a transcript. The transcript still contains inaudible portions. And it is not an official transcript. It wasn’t prepared by a court reporter. It has been prepared by somebody within the Police Department.

The Court denied Defendant’s motion to suppress in accordance with his written

order for the constitutional grounds. In regard to Rule 403, the court found the

probative value was not substantially outweighed by the danger of unfair

prejudice, confusion or misleading the jury. (Tp. 1368) The State then informed

the Court that it planned to play the videotape and introduce the transcript. (Tp.

1372) Defendant renewed his objection based both on 403 and on constitutional

grounds and the Court again overruled the objection. (Tp. 1373)

The Best Evidence Rule requires that secondary evidence offered to prove

the contents of a recording be excluded whenever the original recording is

available. N.C. Gen. Stat. § 8C-1, Rules of Evidence 1002-1004. Allowing the

jurors’ understanding of what was said on the videotape to be skewed by what

the police department determined it could hear on an enhanced audio not played

for the jurors violated the Defendant’s right to due process and a fair trial under

the Fifth And Fourteenth Amendments to the United States Constitution and

N.C. Const. Art. I, Secs. 19 and 23. The Defendant must be granted a new trial.

24

STANDARD OF REVIEW

A trial court’s determination to admit evidence is reviewed for an abuse of

discretion. State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635

(2000). When an error is based on a constitutional right, the trial court’s ruling is

a question of law and is reviewed de novo. State v. Gardner, 322 N.C. 591, 594,

369 S.E.2d 593, 597 (1988)

DISCUSSION OF THE ISSUE

A The Audio Tape Is Difficult To Understand Leaving Critical Segments Open To Interpretation

During the interrogation, Detective Cornett asked Rashad Jordan to explain what happened

on the evening of January 19, 2007. Mr. Jordan told the detective Mr. Harshaw telephoned him

trying to purchase powder cocaine. Mr. Jordan didn’t have what Mr. Harshaw wanted, but agreed to

meet with him face-to-face. When Mr. Jordan arrived at Wilson Street the two men discussed the

transaction. Mr. Jordan needed to call someone, presumably to obtain the drug Mr. Harshaw was

seeking. Mr. Jordan didn’t want any trouble and just wanted to leave, but Mr. Harshaw was upset

because he thought Mr. Jordan was tricking him in some way. The transcript of the interrogation

produced by the police department marks as “Inaudible” some phrases, which can be discerned, and

contrariwise indicates as definite words phrases which are unclear.

Police Version Of What They Hear On The Enhanced Tape

Alternative Version Of What Can Be Heard On The Enhanced Tape

So all of us was over there. And we talked (Inaudible), you know what I mean? And uh, (Inaudible), which I ain’t (Inaudible) started to get upset cause I’m leaving, (Inaudible); you

So I goes over there and we talk a little. You know what I mean. And ah I imagine I’m trying to call somebody, which I had to. And then I just started to get upset, about leaving.

25

know what I’m saying. Me and him was talking, you know what I’m saying, so man that’s really good (Inaudible), you know what I’m saying. He like I don’t know what you mean by that. (Inaudible), ain’t nothing to me, you gonna have to kill me. So I went like what? (Inaudible)

I don’t want no trouble with him, you see what I’m saying. He heard something what I’m saying, he like “what you mean, you trying to play me?” Why I ain’t. Which I aint. (Inaudible) Kill me. So I’m like coming up. “What”

The police interpretation of the audio tape downplays Rashad Jordan statement

that he wanted to leave and didn’t want trouble.

Whichever transcribed version is more accurate, what was said or not said

by the Defendant on the tape is difficult to understand and open to varied and

possibly contradictory interpretations. The jurors were shown the video, but

were not allowed to hear the enhanced audio. They were then handed what they

must have believed was the “best evidence” of what was being said by the

individuals on the video. In fact the video was the primary evidence. The

enhanced audio was secondary evidence and the transcript was slanted tertiary

evidence.

B The Best Evidence Rule Precludes The Introduction Of Secondary Material

“To prove the content of a writing, recording, or photograph, the original

writing, recording, or photograph is required, except as otherwise provided in

these rules or by statute.” N.C. Gen. Stat. § 8C-1, Rule 1002. The best evidence

rule requires that secondary evidence offered to show the contents of a recording

26

should be excluded when the original recording is available. State v. York, 347

N.C. 79, 91, 489 S.E.2d 380, 387 (1997), citing to 2 Kenneth S. Broun, BRANDIS

& BROUN ON NORTH CAROLINA EVIDENCE § 253-257 (4th ed. 1993); See also,

Bonicelli v. State, 339 P.2s 1063, 1065 (Okla.Crim.App. 1959); Duggan v. State,

189 So.2d 890, 891 (Fla.App. 1966). The purpose of the rule is to secure the

most reliable evidence of the contents of a writing or recording where the

contents are in dispute. In York the Defendant motioned to be allowed to provide

the jury with transcripts of recorded statements given to the police by

codefendants in the case. The Court ruled, based both on the rules of evidence

and the constitution, that it was legally correct to exclude the transcripts:

In the present case, the tape recordings themselves were available, were introduced by defendant and were played for the jury. As such, the trial court properly excluded introduction of the transcripts under the best evidence rule. Defendant fails to offer any explanation as to how his constitutional right to present a defense was prejudiced by the denial of his request to introduce, in addition the transcripts. This assignment of error is overruled.

York at 91, 489 S.E.2d at 387. Later cases have held that the Best Evidence Rule

excludes secondary evidence only when the content of the secondary evidence is

in question. State v. Martinez, 149 N.C.App. 553, 560, 561 S.E.2d 528, 532

(2002). In Martinez a witness was allowed to testify to the content of a

telephone conversation. This Court held that Rule 1002 was not violated because

the contents of the recording were not disputed by the defendant and the audio

27

of the tape recording had not been played for the jury. Id. at 560, 561 S.E.2d at

532. See also, State v. Haas, __ N.C.App. ___, 688 S.E.2d 98, 101 (2010) (The

defendant did not contend that there was “any question as to the accuracy of the

transcript submitted to the jury at trial.”)

Unlike the defendants in Martinez and Haas, Rashad Jordan repeatedly

complained that the transcript was materially different from the tape as it

contained inaccuracies. Defendant moved the transcript be excluded based on

these inaccuracies. The State admitted to the Court that the audio portion of the

video tape was difficult to hear. Because of this the tape was sent to the SBI for

digital enhancement. Even after the SBI’s alterations, the words of the defendant

are difficult to discern and open to interpretation. It is exactly this situation in

which Rule 1002 proscribes the use of secondary evidence.

Other courts have emphasized that reducing a statement to writing when

the audio statement is available is never the best evidence: [A transcript] could

not capture or preserve nuance, voice tone, emphasis, evasion, faltering, or

emotion.” Harleysville Mut. Ins. Co. v. Santora, 444 N.E.2d 1076, 1081 (Ohio

App. 1982) A later court explained:

Translating a recorded and sometimes extended and animated conversation onto a typed transcript is like taking a three dimensional, full-color view of mountains, valleys, and meadows, and flattening it into a gray, colorless sheet of paper with merely

28

contour lines on it. You obtain some basic information, but you certainly will not get the full flavor of it.

State v. Rogan, 640 N.E.2d 535, 546 (Ohio App. 1994).

The trial court in this case instructed the jury the transcript was to be used

for corroboration purposes only, but this ignored the innate importance of the

written word. (Tp. 1410) When a transcript selects from various interpretations,

“the written interpretation becomes the accepted one. No matter how often a

judge may assert that the recording is the best evidence and that the recording,

not the transcript, controls when the two are different, it is from the transcript

that the tape will be understood.” Charles E. Carr, “Voices, Texts, and

Technology: Evidence Law Confronts Tapes And Their Transcriptions, 35 St.

Louis U.L.J. 289, 294 (1991).

C Introduction Of The Transcript Was Grossly Prejudicial And Misleading Depriving Mr. Jordan Of Due Process And A Fair Trial

The State’s theory of the case was that Rashad Jordan, not Makiaya

Powell, fired the fatal shots. The evidence at trial permits a reasonable doubt

about how many times Mr. Powell fired the gun and whether he fired in the air

or at the victim. Janarro Patterson told the jury he was sitting in his car smoking

a cigarette when he saw the driver get out of the car, with a gun. He thought the

first shot came from the driver’s side, but he did not know the direction of the

first gunshot. (Tpp. 817, 819, 820, 822, 824) Without explanation as to why he

29

would get out of the car after he heard the shot, Mr. Patterson testified after he

heard the first shot he went in front of his car and “got down.” (Tp. 821) Mr.

Patterson heard more shots, but could not identify the shooter. (Tp. 838) Mr.

Patterson did not testify that Mr. Powell had fired into the air or that he handed

the gun to Mr. Jordan after the first shot. Timothy Jolly was the State’s only

witness who was willing to admit to having seen the shooting, but he was

discredited. Mr. Jolly had a number of felony and misdemeanor convictions.

(Tpp. 889-890, 891-893)) He admitted to the jury that he had spent the day

doing cocaine, marijuana and just about non-stop drinking. (Tp. 869, 873, 894-

895) He was so intoxicated he was asleep in the back seat of the car when they

arrived at Wilson Street. (Tp. 876) Mr. Jolly gave conflicting testimony as to

whether he could or could not hear the conversation between Mr. Jordan and

Mr. Harshaw. (Tpp. 881, 883) He admitted Makiaya Powell fired the first shot,

but was unclear about how the gun got from Mr. Powell’s hands to Mr. Jordan

or where Mr. Jordan was standing when the subsequent shots were fired. On

cross-examination, Defendant was able to show that Mr. Jolly turned up at the

police station so drunk he could not be interviewed. (Tp. 901)

As the testimony of the State’s witnesses to the shooting was weak, it was

necessary to bolster their testimony by the suggestion of a strong motive. To this

end, the State wanted the jurors to believe Mr. Jordan went to Wilson Street

30

intending to confront Mr. Harshaw about money Mr. Jordan believed Mr.

Harshaw had taken from him. The police version of the tape omits the pivotal

statement that Mr. Jordan didn’t “want no trouble with” Cedric Harshaw. The

police version finds “Inaudible” whether it was Mr. Jordan or Mr. Harshaw who

wanted to leave. Contrary to this interpretation, it is possible to hear Mr. Jordan

say: “I just started to get upset about leaving.” A possible interpretation of the

enhanced audiotape shows: 1) Mr. Jordan and Mr. Harshaw were discussing a

drug sale; 2) Mr. Jordan did not want trouble; and 3) Mr. Harshaw became

agitated over his belief that Mr. Jordan was trying to trick him, while Mr. Jordan

denied he was trying to trick him. The police interpretation of the tape has so

many “Inaudibles” that Mr. Jordan’s explanation is basically incoherent,

allowing the State to continue to claim Mr. Jordan’s motive in going to Wilson

Street was to confront Mr. Harshaw about the missing money. This would

buttress the State’s unsupported theory of the case that Mr. Powell only shot in

to the air and then passed the gun off to Mr. Jordan.

By publishing to the jury its interpretation of which words and phrases

were audible and which were not, the State was in effect slanting the defendant’s

account to suit its theory. The best evidence rule and the constitutional right to

due process and a fair trial were violated because the contents of a confession

are material to the issue of guilt or innocence. This Court must find the

31

publication of a disputed transcript of the Defendant’s statement deprived him of

a fundamentally fair trial in violation of the Fifth and Fourteenth Amendments

to the United States Constitution and N. C. Constitution Art. I, Secs. 19 and 23

and was prejudicial constitutional error.

III. THE TRIAL COURT ERRED BY ALLOWING THE JURORS TO HEAR OUT OF CONTEXT AN EXCHANGE BETWEEN DEFENDANT AND A REPORTER IN THE COURTHOUSE HALLWAY

Rashad Jordan was brought to the courthouse in January 2007 for a pre-

trial hearing. As Mr. Jordan was escorted down a hallway, a television reporter

shouted questions. A portion of this exchange was published to the jury as

State’s Exhibit 14A. (Tp. 1228) At trial the questions are termed an “interview”,

but the videotape shows what actually happened was a reporter shouting

questions at Mr. Jordan as he was escorted down the hallway and into the

courtroom. Defendant objected to the introduction of the videotape based on a

newspaper report on the interview, which indicated Mr. Jordan’s comments

were not fully recorded. Defendant also objected based on N.C. Gen. Stat. 8C-1,

Rule 403. The court overruled Defendant’s objections after voir dire and again

before the tape was played to the jury. (Tpp. 1220, 1229). When a Rule 403

motion is made, a trial court must engage in a balancing to test to determine

32

whether the evidence is more prejudicial than probative. In this case the trial

court failed to weigh the probative value of the evidence versus possible

prejudice. The prejudice to the client was great. The jurors were not allowed to

see the video, as Mr. Jordan was dressed in a jail uniform. Thus, they only heard

the questions and answers. Because they could hear but not see the video, the

jurors did not know that the questions and Mr. Jordan’s responses occurred as

sheriff’s deputies had Mr. Jordan in custody and were escorting him down the

hallway. Instead the jurors could have visualized an interview with Mr. Jordan

voluntarly sitting at a reporter’s table. In addition, the jurors could not see and

were not told about non-verbal responses.

STANDARD OF REVIEW

A trial court’s determination to admit evidence is reviewed for an abuse of

discretion. State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635

(2000). When an error is based on a trial court’s failure to follow a statute, it is a

question of law and is reviewed de novo. State v. Mackey, ___ S.E.2d ___, 2010

WL 5093922 (N.C.App. December 7, 2010). Admission of relevant evidence

may be reversible error when the probative value is clearly outweighed by unfair

prejudice. State v. Phillips, 283 N.C. 339, 196 S.E.2d 270 (1973; State v.

Temples, 74 N.C.App. 106, 327 S.E.2d 266 (1985).

33

DISCUSSION OF THE ISSUE

A Jurors Were Not Told Mr. Jordan Was Being Escorted By Sheriff’s Deputies And Lacked The Opportunity To Fully Answer The Reporter’s Questions

Rashad Jordan was brought to the Caldwell County courthouse in January

2007 for a pre-trial proceeding. He was dressed in jail garb and handcuffed. As

he was walking down a hallway, flanked by sheriff’s deputies, a television

reporter, who cannot be seen in the video, shouted questions at him. Mr. Jordan

responded, but it is evident in the video that the deputies are continuing to move

him along into the courtroom, preventing Mr. Jordan from expanding on his

answers or even giving consideration to what he said. The jurors were not

allowed to view the video, because Mr. Jordan was in jail clothes. Because of

this they could not see he was ushered into the courtroom before he could fully

answer. None of these limitations were described to the jurors. Instead they were

allowed to believe the exchange was a normal television interview. Caldwell

County Sheriff’s Deputy Michael Wright was called by the State to verify that

the videotape was an accurate rendition of what Mr. Jordan said to the reporter.

The questions posed to Deputy Wright cast the exchange as an interview:

Q. Were you on duty in January of 2007 when this defendant

appeared at this courthouse for a prior proceeding involving this

matter, sir?

34

A. Yes, I was.

Q. Were you present when this defendant was interviewed by Dave

Flaherty, a reporter for WSOC TV channel nine news?

A. Yes, I was.

(Tp. 1227) (emphasis added)

This was highly prejudicial to the Defendant because the jurors were led

to believe that Mr. Jordan was giving curt answers and was not sympathetic to

the victim’s family, when in fact he was being marched down a courthouse

hallway and into a courtroom before he could fully answer the question.

Defendant’s counsel informed the court that part of Mr. Flaherty’s

interview was not shown in the television cutting. She objected that the footage

was incomplete: “This is not the interview. We don’t have the interviewer here

to say, ‘This is what I asked him and this is what he said back to me.’” (Tp.

1215) Defense counsel read a newspaper report on the interview to the court:

It starts on page one with my client’s picture and it says, “WSOC channel nine reporter, Dave Flaherty, interviewed Jordan as he was leaving court.” Flaherty, “Do you have anything to say about all of this?” And it goes on to this page, Jordan, “No.” Flahery [sic], “Why did it happen?” Jordan, “I don’t know, just something happens, you know.” Flaherty, “Are you sorry about it all?” Jordan, “Yeah, I wish it never occurred, but it did.” Flaherty, “Do you have anything to say to his family?” Jordan, and it’s got in parenthesis (No answer). Jordan [sic] again asked if Jordan was, “Just sorry?” And Jordan said, “Yeah.”

35

(Tp. 1214) Mr. Jordan’s final answer “Yeah” was not in the clipping played to

the jury.

B The Trial Court Failed To Perform The Balancing Test Mandated By Rule 403

Rules of evidence in North Carolina are statutory. Whether the trial court

has complied with a statutory requirement is a question of law. State v. Madric,

328 N.C. 223, 227, 400 S.E.2d 31, 34 (1991); Taylor v. Taylor, 343 N.C. 50, 54,

468 S.E.2d 33, 35 (1996). N.C. Gen. Stat. §8C-1, Rule 403 states in pertinent

part: “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues . . . .” The trial court in this case apparently gave no consideration to

whether showing the audio portion only of part of the defendant’s responses to a

television reporter was more prejudicial than probative. Instead of doing a

balancing test, the trial court ruled after voir dire:

THE COURT: The Court is overruling the defendant’s objection based on a reporter who is not here. I don’t know the circumstances under which the conversation came about. I don’t know if the reporter—what context it was in or anything else. I’m overruling the objection for those reasons as well as other reasons based on Rules of Evidence.

(Tp. 1220) When the tape was introduced into evidence, defendant again

objected. The objection was overruled. (Tp. 1229) This Court must find the trial

court’s ruling erroneous as the trial court failed to comply with the statutory

36

requirement that it must weigh the probative value against prejudice to the

defendant. If the required analysis had been performed, it would have been

manifest that allowing the jury to hear the reporter’s questions and Mr. Jordan’s

answers without explaining the context was grossly prejudicial. Balanced

against the prejudice, the probative value was minimal. Mr. Jordan expressed his

sympathy for the family and his wish that it could be undone. Mr. Jordan says he

does not know why “it” happened and he is sorry it occurred. This is far from a

confession that he killed the victim or even an indication that he was the

responsible party. The responses do not add to the evidence the jury has heard.

In balance the audio-only television clip should have been excluded.

C The Error Was PrejudicialIn order to show prejudicial effect which rises to reversible error, a

defendant must demonstrate “a reasonable possibility [exists] that, had the error

in question not been committed, a different result would have been reached at

the trial.” N.C. Gen. Stat. § 15A-1443(a). The verdict in this case depended on

the jury’s perception of the veracity of Timothy Jolly and upon its interpretation

of the defendant’s words. The State’s evidence would have left a reasonable

doubt that it was Rashad Jordan and not Makiaya Powell who fired the fatal

shots. A statement coming before the jury that could be interpreted as an

acknowledgment of guilt because the jurors were not allowed to view the setting

37

must be found prejudicial. Because the jurors were not told the defendant was

being marched down a hallway by guards and was shuttled into the courtroom

before he could fully answer, they could have easily misinterpreted his answers.

Defendant asks this court to consider the errors cumulatively. As

explained in State v. Temples, 74 N.C.App. 106, 327 S.E.2d 266 (1985), while

errors standing alone may not constitute an unfair trial, cumulative error may:

We do not hold today that any of the errors discussed above, standing alone, rise to the level of prejudicial error. When the errors committed by the trial judge are considered collectively, however, we believe there is indeed a reasonable possibility that the jury would have reached a different verdict had these errors not occurred.

Id. at 110, 327 S.E.2d at 268, citing to Lutwak v. United States, 344 U.S. 604

(1953). This Court must find that the combination of failing to suppress the

defendant’s interrogation after refusing to waive his rights, publication to the

jury of a slanted transcript of the interrogation, and the publication of the audio-

only interaction between Mr. Jordan and a television reporter deprived Mr.

Jordan of his federal and state constitutional rights to due process and a fair trial.

38

CONCLUSION

For the reasons set forth above, Defendant respectfully contends that this

Court should reverse his conviction order a new trial.

Respectfully submitted this the 29th day of December 2010.

Electronic Filing/s/ Marilyn G. OzerAttorney for Appellant211 North Columbia StreetChapel Hill, NC 27514(919) 967-8555redwood@nc.rr.com

39

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed

electronically pursuant to Rule 26.

I further hereby certify that a copy of the above and foregoing Defendant-

Appellant’s Brief has been duly served upon Steven M. Arbogast, Special

Deputy Attorney General by e-mail to sarbog@ncdoj.gov.

This the 29th day of December 2010.

Electronic FilingMarilyn G. OzerAttorney at Law

CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief was prepared using Microsoft Word, Times

New Roman, 14-point type. The word count, including footnotes and citations,

is 8748 words.

This the 29th day of December 2010.

Electronic FilingMarilyn G. OzerAttorney at Law

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