State v. Gaddis, ___ N.C. App. ___, 2021-NCCOA-351 (Jul. 20, 2021)

The defendant’s first trial on charges of DWI, driving while license revoked, and driving without a valid registration or properly displayed license plate ended in a hung jury and mistrial. A retrial was scheduled for approximately two months later. One week before the retrial, defense counsel made a motion for production of the transcript of the prior trial for the purpose of impeaching and cross-examining the state’s witnesses, and moved for a continuance to allow time to receive the transcript. The trial court denied the defendant’s motions, and the retrial was held. Over the state’s objections, the defense called the defendant’s prior trial counsel to testify at the retrial and impeach the state’s witnesses’ testimony. The jury convicted the defendant of all charges and he appealed, arguing that the trial court committed reversible error by denying his motions for a transcript and continuance.

 The appellate court characterized the defendant’s arguments as “a puffer fish, attempting to ‘blow up’ Defendant’s lack of a transcript” into a constitutional error attributable to the state or the court, when it was “more accurately described as a desiccated sardine, consciously canned by his trial counsel.” Noting that any error or prejudice was invited by defense counsel’s delay in filing the motion for a transcript, as well as the failure to pursue other options such as issuing a subpoena to have the court reporter read back testimony at the retrial, the appellate court held that the defendant might have a basis to allege ineffective assistance of counsel, but he failed to demonstrate that the trial court committed prejudicial error by denying the pretrial motions.

Judge Murphy dissented and would have held that the trial court erred by denying defendant’s motions without making the necessary findings on whether the transcript was necessary to the preparation of an effective defense or there were adequate alternatives available.