State v. Neal, 280 N.C. App. 101, 2021-NCCOA-565 (Oct. 19, 2021)

The defendant appealed from his Alamance County convictions for attempted murder, discharging a weapon into an occupied vehicle, possession of firearm by felon, and assault with a deadly weapon with intent to kill. The offenses arose from an incident where the defendant and his romantic partner shot at a Child Protective Services worker while the worker was in her car. The partner later pled guilty to various offenses and agreed to testify against the defendant. (1) The defendant argued at trial that possession of firearm by felon requires actual possession and that a constructive possession instruction was improper. The trial court overruled the objection and gave the constructive possession instruction. On appeal, the defendant contended that the evidence did not support an instruction on constructive possession. Reviewing for plain error, the court determined the instructions on constructive possession and possession of firearm by felon were supported by the evidence and properly given. Any potential error from the constructive possession instruction did not impact the verdict, and this argument was rejected.

(2) The defendant also challenged the attempted first-degree murder instruction. Because no objection was made during the charge conference, the issue was again reviewed only for plain error. The instruction told jurors that if they found that the defendant intentionally inflicted harm upon the victim with a deadly weapon, the jurors could infer both an unlawful act and malice by the defendant. Here, the victim was not actually wounded during the shooting, and the defendant argued the instruction was therefore improper. The court again disagreed. The instructions as a whole properly placed the burden of proof on the State, and it was unlikely that any error here had an impact on the verdict. “As the State could not meet its burden of proving that the Defendant intentionally inflicted a wound on [the victim], the jury was not permitted to infer that Defendant acted unlawfully and with malice. We assume the jury followed the court’s instructions.” Neal Slip op. at 17. There was therefore no plain error in the attempted murder instructions.

(3) The defendant’s appeal was delayed for a year due to ten extensions of time for the court reporter to complete the trial transcript. Undue delay of a criminal appeal can create a due process violation. To determine whether a speedy appeal violation has occurred, the court examines the same factors it would in a speedy trial case. See Barker v. Wingo, 407 U.S. 514 (1972). Here, the delay of more than a year was sufficient to trigger the Barker inquiry. However, the court approved each request for extension of time to complete the transcript. The reason for the delay was therefore not attributable to the defendant or the State. The defendant did not assert a speedy appeal claim before filing his brief, and his alleged statements to appellate counsel to expedite the appeal did not count as a formal assertion of the right. Finally, the defendant claimed unique stresses from incarceration during COVID-19 and faded memory as prejudice. The court rejected this argument. The defendant failed to show that any significant and helpful evidence was lost due to his faded memory. Further, the defendant ultimately received the full transcript. This precluded a finding of prejudice. “Acknowledging Defendant’s allegation of stress caused by incarceration during the pandemic, Defendant has failed to show prejudice resulting from the delay.” Neal Slip op. at 21. There was therefore no due process violation, and the convictions were unanimously affirmed in full.