                 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
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                                  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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                                   Opinion of the Court



             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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                                     Opinion of the Court



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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                                   Opinion of the Court



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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                                         Opinion of the Court



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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