Criminal Practice — DWI – Mistrial & Retrial – Transcript Request – Alternative Evidence

Where defense counsel waited until a week before defendant’s retrial to request the transcript from defendant’s previous mistrial, the trial court did not abuse its discretion by denying defendant’s request and his motion to continue. Defendant may assert a claim

for ineffective assistance of counsel. In any event, defendant was present for both proceedings, and the attorney who represented him at his previous trial was allowed to testify at the retrial in order to impeach the testimony of the state’s eyewitnesses.

We find no error in defendant’s convictions for driving while impaired, driving while license revoked for an impaired driving offense, driving without a valid registration, and driving without a displayed license plate.

Dissent

(Murphy, J.): The trial court erred when it denied the indigent defendant’s motion for a continuance to produce a prior proceeding’s transcript without finding (A) whether a transcript was necessary for preparing an effective defense and (B) whether there were alternative devices available to defendant which were substantially equivalent to a transcript.

Much of the state’s case rested on whether eyewitnesses saw defendant driving. Even if testimony from defendant’s former attorney could be considered in our review of the denial of pretrial motions, since the state repeatedly impeached the attorney’s testimony as an incomplete recollection of events, the attorney’s testimony was not a substantially equivalent alternative to a trial transcript.

State v. Gaddis (Lawyers Weekly No. 011-137-21, 21 pp.) (John Tyson, J.) (Hunter Murphy, J., dissenting) Appealed from Union County Superior Court (Jeffery Carpenter, J.) Mary Maloney for the state; Jarvis John Edgerton for defendant. 2021-NCCOA-351