Bunting Bruce by BF1ZWkx

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									No. COA09-1679                  JUDICIAL DISTRICT 2

          NORTH CAROLINA COURT OF APPEALS

           ***************************************

STATE OF NORTH CAROLINA         )   BEAUFORT COUNTY
                                )
                                )   07CRS51184
          VS.                   )
                                )
BRUCE EDWARD BUNTING,           )
Defendant.                      )

           ***************************************

                DEFENDANT-APPELLANT’S BRIEF

           ***************************************

                   ************************

                            INDEX
                           0B




                   ************************

TABLE OF CASES……………………………………………. iii

OTHER AUTHORITIES……………………………………… iv

QUESTIONS PRESENTED…………………………………… 1

STATEMENT OF THE CASE…………………………………2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW.. 2

STATEMENT OF FACTS…………………………………….. 2

ARGUMENT:
   1.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR
        BY INSTRUCTING THE JURY AS A MATTER OF LAW
        THAT THE SUBSTANCE AT ISSUE IN THIS MATTER
        WAS OPIUM, THEREBY ELIMINATING THE STATE’S
        BURDEN TO PROVE THIS ELEMENT OF THESE
        TRAFFICKING OFFENSES……………………. 7

STANDARD OF REVIEW……………………………………. 8

LAW AND ANALYSIS……………………………………… 9

   2.   BRUCE BUNTING WAS DENIED EFFECTIVE
        ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY
        FAILED TO CHALLENGE THE SUFFICIENCY OF THE
        EVIDENCE AT ANY STAGE OF THIS TRIAL AND
        FURTHER FAILED TO OBJECT WHEN THE TRIAL
        COURT INSTRUCTED JURORS THAT, AS A MATTER OF
        LAW, THE STATE HAD PROVEN THAT THE
        SUBSTANCE AT ISSUE IN THIS CASE WAS
        OPIUM………………………………………….. 14

STANDARD OF REVIEW…………………………………… 14

LAW AND ANALYSIS……………………………………… 14

CONCLUSION……………………………………………….. 20

CERTIFICATE OF COMPLIANCE…………………………. 21

CERTIFICATE OF SERVICE………………………………… 21

INDEX TO APPENDIX………………………………………. 22




                         ii
                           TABLE OF CASES

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970)…………………………………………………………                                    10,11

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed.
422 (1947)……………………………………………………… 11

Speed v. Perry, 167 N.C. 122, 83 S.E. 176 (1914)…………… 12

State v. Aiken, 73 N.C. App. 487, 326 S.E.2d 919, review denied, 313 N.C.
604, 332 S.E.2d 180 (1985)…………………………………… 14

State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)…………..         8

State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248 (2000)…..      8

State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)…….. 16

State v. Davis, 158 N.C. App. 1, 582 S.E.2d 289 (2003)…….. 16

State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001), cert. denied, 535 U.S.
1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002)……………. 16

State v. Frye, 1 N.C. App. 542, 162 S.E.2d 91 (1968)………... 11

State v. Grogan, 40 N.C. App. 371, 253 S.E.2d 20 (1979)…… 11,12

State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S.
838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001)…………………….. 15

State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1976)……….. 13

State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963)………. 12

State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985)…………. 11

State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963)……….. 10




                                     iii
State v. Sanders, 298 N.C. 512, 259 S.E.2d 258 (1979), cert. denied, 454
U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981)…………….. 13

State v. Sidbury, 64 N.C. App. 177, 306 S.E.2d 844 (1983)…. 12

State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002), disc. review denied,
357 N.C. 169, 581 S.E.2d 444 (2003)…………………………. 16,17

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)…………………………………………………………. 15-20

                         OTHER AUTHORITIES
                        1B




United States Constitution:

      Fifth Amendment……………………………………… 10
      Sixth Amendment……………………………………… 16
      Fourteenth Amendment……………………………….. 10,11

North Carolina Constitution:

      Article I, §19……………………………………………                          10,13
      Article I, §24……………………………………………                          13
      Article I, §27……………………………………………                          13
      Article I, §35…………………………………………..                         13

North Carolina General Statutes:

      §7A-27(b)……………………………………………..                             2
      §15A-979………………………………………………                               2
      §15A-1232……………………………………………..                             8,11,13
      §15A-1442……………………………………………..                             2
      §15A-1443……………………………………………..                             13
      §15A-1446……………………………………………..                             2
      §90-95………………………………………………….                               11

North Carolina Rules of Appellate Procedure:

      N.C.R. App. P. 10(a)(3)………………………………… 17,18



                                     iv
No. COA09-1679                JUDICIAL DISTRICT 2

          NORTH CAROLINA COURT OF APPEALS

           ***************************************

STATE OF NORTH CAROLINA       )    BEAUFORT COUNTY
                              )
                              )    07CRS51184
          VS.                 )
                              )
BRUCE EDWARD BUNTING,         )
Defendant.                    )

           ***************************************

                DEFENDANT-APPELLANT’S BRIEF

           ***************************************

                    QUESTIONS PRESENTED
                   2B




     1.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR
          BY INSTRUCTING THE JURY AS A MATTER OF LAW
          THAT THE SUBSTANCE AT ISSUE IN THIS MATTER
          WAS OPIUM, THEREBY ELIMINATING THE STATE’S
          BURDEN TO PROVE THIS ELEMENT OF THESE
          TRAFFICKING OFFENSES?

     2.   WAS BRUCE BUNTING DENIED EFFECTIVE
          ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY
          FAILED TO CHALLENGE THE SUFFICIENCY OF THE
          EVIDENCE AT ANY STAGE OF THIS TRIAL AND
          FURTHER FAILED TO OBJECT WHEN THE TRIAL
          COURT INSTRUCTED JURORS THAT, AS A MATTER OF
          LAW, THE STATE HAD PROVEN THAT THE
          SUBSTANCE AT ISSUE IN THIS CASE WAS OPIUM?




                              1
                       STATEMENT OF THE CASE

        At the 12 January 2009 Criminal Session of Beaufort County Superior

Court, the District Attorney called this criminal case for trial, charging Bruce

Edward Bunting on a true bill of indictment with trafficking by possession

of more than 28 grams of opium, trafficking by transportation of more than

28 grams of opium, and with trafficking by delivery of more than 14 but less

than 28 grams of opium. The Honorable William C. Griffin, Jr. presided.

        The State and the defendant presented evidence. The jury returned

verdicts finding Bruce Edward Bunting guilty of the charges. The trial court

sentenced Mr. Bunting to a term of 225 to 279 months in the North Carolina

Department of Corrections. The defendant entered timely notice of appeal

on 13 January 2009.

        STATEMENT OF GROUNDS FOR APPELLATE REVIEW

        This Court has jurisdiction over this appeal by virtue of N.C.G.S.

§7A-27(b) and N.C.G.S. §§15A-979, 15A-1442 and 15A-1446. Bruce

Edward Bunting entered timely notice of appeal on 13 January 2009. (T. p.

144).

                          STATEMENT OF FACTS
                         3B




        Mr. Bunting received a sentence of 225 to 279 months in the North

Carolina Department of Corrections following a jury trial that lasted



                                       2
approximately one and one-half days. The transcript of this matter consists

of 144 pages because jury selection, opening statements, and closing

arguments were not transcribed in the absence of defense counsel filing a

motion for complete recordation. (T. pp. 4-144).

      Samantha Midyette testified for the State in this matter in order to

“work off” a possible felony charge involving her use of a false prescription.

Specifically, Midyette would have been charged with attempting to obtain a

controlled substance by fraud. In exchange for her involvement in this

prosecution of Bruce Bunting, the State would not charge her with that

criminal offense. Midyette also admitted having convictions for felony

possession with intent to sell and deliver marijuana and misdemeanor

larceny that had been reduced from an embezzlement charge. On 23 April

2007, twelve days after working for the State in prosecuting Bruce Bunting,

Midyette stole gasoline and was later convicted for this offense. Midyette

agreed to help police arrest Mr. Bunting on 11 April 2007.

      Midyette spoke to law enforcement about purchasing some

prescription pills from Bruce Bunting that day. Mr. Bunting had “fronted”

her pain pills in the past. Midyette claimed that on 11 April, Mr. Bunting

called her after dropping off his prescriptions for Oxycontin and Oxycodone

stating that he would telephone her again once they were filled so that she



                                      3
could purchase some of these pills. Midyette wanted to purchase

approximately 100 Oxycontin and 100 Percocets. She recalled the price for

these pills was $2,000.

      Midyette agreed to meet Mr. Bunting in the Wal-Mart parking lot in

Washington. By that time, Midyette had already met with investigators and

obtained $2,000 and recording devices from them. Midyette drove to Wal-

Mart after detectives turned on the recording equipment.

      When she met Mr. Bunting, he was with Henry Silverthorne, or

“Steve,” who had driven Mr. Bunting’s truck. After Mr. Bunting got out of

the truck, he gave Midyette two grocery bags containing pills and she gave

him $2,000. Then, Midyette met with detectives and gave them the pills she

had received. Investigators removed the recording equipment and may have

also paid Midyette “gas money.” (T. pp. 5-24, 66). Police officers arrested

Bruce Bunting and found $4,000 on his person at that time.

      Investigators also found a prescription bottle for Mr. Bunting for 190

tablets of Oxycodone, 40 milligrams; a prescription bottle for 8 tablets of

Alprazolam, 25 milligrams; and a bottle of 190 tablets of Oxycodone, 15

milligrams. The amount of pills remaining in Bruce Bunting’s truck at the

time of arrest was 23.7 grams of Oxycodone and 7.4 grams of Oxycodone.

From Midyette, investigators obtained 100 small green pills which amounted



                                      4
to 10.1 grams of Oxycodone and 73 small purple pills which consisted of

15.4 grams of Oxycodone. (T. pp. 30, 49-60).

       Bruce Bunting willingly spoke to investigators. He advised that

Samantha called him earlier that day asking for Oxycodone. Initially, Mr.

Bunting was reluctant to give her any pills but he wanted to help her. Bruce

Bunting counted some of the pills and put them in a bag to give to her when

they met at Wal-Mart. He denied taking any money from Midyette. Mr.

Bunting further admitted giving Midyette’s boyfriend “Brad” pills earlier

that day because he continued to call him about needing them.       (T. pp. 61-

63).

       Defense counsel failed to move to dismiss this case at the close of the

State’s evidence. Bruce Bunting testified on his own behalf.

       Mr. Bunting is 59 years old and suffers from rheumatoid spinalitis, a

heart condition, seizures, and has had mini-strokes. In April 2007, Mr.

Bunting received prescriptions for painkillers as a result of his rheumatoid

spinalitis from Dr. Teixeira in Washington and also sought treatment at

Duke Hospital. At the time of trial, Mr. Bunting continued to regularly take

painkillers and nerve pills [Alprazolam] for his health problems.

       Bruce Bunting filled some prescriptions on 11 April 2007 but denied

giving any pills to Midyette that day. He admitted giving one to her



                                       5
boyfriend Brad for a toothache. Mr. Bunting denied receiving payment from

Brad, however. Bruce Bunting also gave Midyette money to help pay her

bills, occasionally, and she owed him $2,000 in April 2007. Midyette paid

Mr. Bunting $2,000 the day they met in the Wal-Mart parking lot. Mr.

Bunting was good friends with Midyette’s mother.

      The other money found on Bruce Bunting’s person at the time of his

arrest came from a $4,000 loan he had taken out to pay some bills. His

income in April 2007 was from Social Security and from his cousin using

his truck to haul junk and sharing the proceeds with Bruce Bunting.

Sometimes, Bruce Bunting shot pool for money. Otherwise, Mr. Bunting

was unable to work due to his poor health. He denied telling Detective

Kuhn that he gave Midyette pain pills on 11 April 2007. (T. pp. 76-92).

      Henry Silverthorne confirmed that he drove Bruce Bunting’s truck to

the pharmacy and to City Finance so that he could obtain a loan. Then, they

went to First Citizens Bank where, again, Mr. Silverthorne remained in the

car while Mr. Bunting went inside. Finally, the men got lunch at Taco Bell.

Henry recalled Brad speaking to Bruce while Mr. Silverthorne went inside to

get the food. The men ate lunch outside in the truck. Bruce received a

phone call. After this, Henry drove to the Wal-Mart parking lot where they

saw Samantha Midyette. Bruce Bunting got out of the truck and spoke to



                                     6
Midyette and Mr. Silverthorne remained inside, unable to hear their

conversation. Shortly thereafter, officers stopped Mr. Bunting’s truck.

      Henry Silverhtorne did not see Mr. Bunting open the prescription

bottles that he got that day. He confirmed, moreover, that he would use

Bruce Bunting’s truck to haul junk from taking down trailers, junk cars, and

other garbage, and that Mr. Bunting would receive money from Mr.

Silverthorne’s use of the truck in this manner.

      Again, defense counsel failed to move to dismiss the charges at the

close of all of the evidence. (T. pp. 94-103).

                                ARGUMENT

      1.     THE TRIAL COURT COMMITTED REVERSIBLE
             ERROR BY INSTRUCTING THE JURY AS A MATTER
             OF LAW THAT THE SUBSTANCE AT ISSUE IN THIS
             MATTER WAS OPIUM, THEREBY ELIMINATING THE
             STATE’S BURDEN TO PROVE THIS ELEMENT OF
             THESE TRAFFICKING OFFENSES.

 (Assignments of Error No.2 & 6: T. p. 115, lines 1-4; p. 116, lines 4-6; p.
117, lines 8-9; p. 123, lines 11-16; p. 138, lines 3-7; p. 139, lines 6-9; R. pp.
                                 58-59)

                         STANDARD OF REVIEW

      In this case, the trial court improperly altered the pattern jury

instruction on the substantive trafficking charges by advising them that the

substance at issue in this case constituted opium. This alteration of the

pattern instruction denied Mr. Bunting a fair trial because the trial court

                                       7
instructed the jury that an element of these offenses had been proven by the

State, in violation of N.C.G.S. §15A-1232. This Court reviews the alleged

violation of a statutory mandate by the trial court de novo. State v. Ashe,

314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). Thus, this issue is reviewed

de novo even absent a specific objection by Bruce Bunting to the court’s

instruction.

      The trial court’s instruction herein was sufficiently egregious to

warrant reversal even under the plain error standard of review. A defendant

establishes “plain error” if the claimed error is a fundamental error, so basic,

so prejudicial, so lacking in its elements that justice cannot have been done

or the error is a grave error which amounts to a denial of a fundamental right

of the accused which probably affected the jury's finding that the defendant

was guilty, and absent the error the jury would probably have reached a

different verdict. State v. Bowen, 139 N.C. App. 18, 22-23, 533 S.E.2d 248,

251-252 (2000).

      Because this issue implicates Bruce Bunting’s right to a trial by a jury

of 12, this error is preserved without objection or motion of trial counsel.

However, if the Court should determine that this error is instead subject to

"plain error" review, that standard is also met in this case. The trial court

committed plain error herein by instructing the jury as a matter of law that



                                       8
the State had proven an element of the offense – specifically that the

substance at issue in this case was opium.

                           LAW AND ANALYSIS

      In this case, the trial court instructed the jury that the State had proven

that the substance at issue in this case was in fact opium. This charge

amounted to the trial court stating that this element of the offenses of

trafficking had been proven instead of leaving this question of fact a matter

for the jury to resolve.

      The jury charge in this case included the following language:

      Now, members of the jury, the drugs or material described in
      the evidence as presented and offered into evidence in the case
      would be Opium within the meaning of the law, although some
      other name is used for that material…

      Again, the material described or offered into evidence would be
      Opium within the meaning of the law by unlawful
      transportation of 28 grams or more of Opium….

      Again, Opium, the materials described in the evidence would be
      Opium within the meaning of the law…

      Now, members of the jury, it is for you to determine from the
      evidence the amounts that the State has shown in its evidence,
      what those amounts are, and whether or not they were
      possessed either actually or constructively. Either kind of
      possession is sufficient under the law….

      Second, that the Opium which the defendant transported was 28
      grams of more. Again, it is for you to determine from the
      evidence whether he transported it and what the amounts
      were….

                                       9
      Now, members of the jury, the legislature has defined Opium in
      the statute, and that definition would include the materials
      offered into evidence in this case. It is a – I’m using the term
      “Opium” as a generic term in this instruction, but it would
      include the matters that you’ve seen and that have been offered
      and passed to you.

      (T. pp. 115-117, 123, 138-139).

      Thus, the court instructed the jury six times that the State had proven

that the matter in issue was, in fact, opium but that they only needed to

determine whether it was possessed, transported, or delivered, in the amount

alleged. This removed from the jury the issue of whether or not the State

had proven that the Oxycodone in this case constituted opium. Thus, Bruce

Bunting was denied his right to a trial by jury on this element of the charges

of trafficking.

      Article I, section 19 of the North Carolina Constitution and the Fifth

and Fourteenth Amendments of the United States Constitution secure for the

criminal defendant the right to due process of law. State v. Patton, 260 N.C.

359, 132 S.E.2d 891 (1963). The concept of due process affords the

defendant certain procedural protections, among them the guarantee that he

may not be convicted except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged. In re

Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375



                                      10
(1970); State v. Mize, 315 N.C. 285, 292-94, 337 S.E.2d 562, 567 (1985).

The Fourteenth Amendment protects criminal defendants against due

process violations by the states, Louisiana ex rel. Francis v. Resweber, 329

U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947).

      The trial court has the statutory duty to instruct the jury on all

elements of the crime. N.C.G.S. §15A-1232; State v. Frye, 1 N.C. App. 542,

162 S.E.2d 91 (1968). N.C.G.S. §90-95 provides that one of the elements of

the crime of trafficking is knowledge of the nature of the controlled

substances. Id. Instead of instructing the jury that they had to determine

whether the State proved that the substance at issue in this case was opium,

however, the trial court advised them that this had already been proven as a

matter of law.

      N.C.G.S. §15A-1232 provides that “[i]n instructing the jury, the judge

shall not express an opinion as to whether or not a fact has been proved and

shall not be required to state, summarize or recapitulate the evidence, or to

explain the application of the law to the evidence.” Thus, §15A-1232

forbids any expression of opinion by the court as to whether or not a fact has

been proved. The slightest intimation from a judge as to the strength of the

evidence or as to the credibility of the witness “will always have great

weight with the jury, and great care must be exercised to insure that neither



                                       11
party is unduly prejudiced by any expression from the bench which is likely

to prevent a fair and impartial trial.” State v. Grogan, 40 N.C. App. 371,

374, 253 S.E.2d 20, 22 (1979) (citation omitted). Therefore, trial judges:

      must be careful in what they say and do because a jury looks to
      the court for guidance and picks up the slightest intimation of
      an opinion. It does not matter whether the opinion of the trial
      judge is conveyed to the jury directly or indirectly as every
      defendant in a criminal case is entitled to a trial before an
      impartial judge and an unbiased jury.

State v. Sidbury, 64 N.C. App. 177, 178-179, 306 S.E.2d 844, 845

(1983)(citations omitted).

      In the case sub judice, the judge’s instruction that the evidence

introduced in the trial of this matter constituted opium violated §15A-1232

by directing the jury that this element of the offense had been proven as a

matter of law. This instruction effectively removed the State’s burden of

proving that the substance at issue was opium. The trial court may not

intimate or suggest that facts in controversy have been established. See e.g.,

State v. Mitchell, 260 N.C. 235, 238-39, 132 S.E.2d 481, 483 (1963); and

Speed v. Perry, 167 N.C. 122, 83 S.E. 176 (1914). By this instruction, the

jury must have been left with the understanding that the judge was

instructing them that the State had met its burden of proof.

      Inserting this language, which in effect directed the jury’s verdict on

an element of the offense, was grossly prejudicial because one of the most

                                      12
essential questions for the jury was whether the State had proven that the

substance at issue was opium. Because this jury instruction effectively

advised that jury that this element of these trafficking offenses had been

proven by the State, it constituted an improper expression of opinion by the

court.

         The provisions of §15A-1232 are mandatory and failure to comply

with them is prejudicial error for which a new trial must be ordered. State v.

Hewett, 295 N.C. 640, 247 S.E.2d 886 (1976)(finding prejudicial error in

jury instructions that reviewed contentions of State but not of the defendant);

and State v. Sanders, 298 N.C. 512, 259 S.E.2d 258 (1979), cert. denied, 454

U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981). Relieving the State of its

burden to prove an element of a crime violates Bruce Bunting’s

constitutional rights under the Fifth, Sixth, Eighth and Fourteenth

Amendments of the United States Constitution and Art. I, §§19, 24, 27 and

35 of the North Carolina Constitution.

         A violation of a criminal defendant’s rights under the Constitution of

the United States is prejudicial unless the appellate court finds that it is

harmless beyond a reasonable doubt. The burden is upon the State to

demonstrate, beyond a reasonable doubt, that the error was harmless. See

N.C.G.S. §15A-1443(b). The State bore the burden of proof to establish



                                        13
that the substance at issue was opium. The trial court’s instructions intruded

into the province of the jury by directing the jurors that, as a matter of law,

this issue had been resolved by the trial court.

      Thus, Bruce Bunting should receive a new trial on all charges because

these errors were not harmless beyond a reasonable doubt.

      2.     BRUCE BUNTING WAS DENIED EFFECTIVE
             ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY
             FAILED TO CHALLENGE THE SUFFICIENCY OF THE
             EVIDENCE AT ANY STAGE OF THIS TRIAL AND
             FURTHER FAILED TO OBJECT WHEN THE TRIAL
             COURT INSTRUCTED JURORS THAT, AS A MATTER
             OF LAW, THE STATE HAD PROVEN THAT THE
             SUBSTANCE AT ISSUE IN THIS CASE WAS OPIUM.

(Assignments of Error No. 1 & 4: T. p. 75, line 1 – p. 76, line 8; p. 103, line
 13 – p. 104, line 7, p. 115, lines 1-4, p. 123, lines 11-13, p. 137, lines 4-12;
                                  R. pp. 58-59)

                         STANDARD OF REVIEW

      Whether counsel afforded effective representation presents a question

of law determined de novo by this Court’s review of the record. State v.

Aiken, 73 N.C. App. 487, 326 S.E.2d 919, review denied, 313 N.C. 604, 332

S.E.2d 180 (1985).

                           LAW AND ANALYSIS

      Defense counsel at trial failed to meet even a minimum standard of

effectiveness by not challenging the sufficiency of the State’s evidence by

motion to dismiss at the close of the State’s evidence and at the close of all

                                       14
of the evidence. Now, Bruce Bunting is procedurally barred from

challenging this issue on appeal. There was no strategic reason for failing to

move to dismiss the charges in this case. As a result, Bruce Bunting

received ineffective assistance of counsel at trial and this Court should

reverse and vacate Mr. Bunting’s judgments of conviction.

      When the record establishes that counsel failed to act within the range

of competency demanded of criminal defense attorneys and that, absent

counsel’s deficient performance, a reasonable probability exists that the

result would have been different, the defendant’s conviction or sentence

must be reversed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984); State v. Grooms, 353 N.C. 50, 540 S.E.2d 713

(2000), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001).

The defendant “need not show that counsel’s deficient conduct more likely

than not altered the outcome in the case.” Strickland v. Washington, supra,

466 U.S. at 693, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. Rather than meet a

preponderance of the evidence standard, the defendant need only show a

“reasonable probability” of prejudice, i.e. “a probability sufficient to

undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068, 80

L.Ed.2d at 698. Ineffective assistance of counsel claims may be reviewed on

direct appeal “when the cold record reveals that no further investigation is



                                       15
required, i.e., claims that may be developed and argued without such

ancillary procedures as the appointment of investigators or an evidentiary

hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524

(2001)(citations omitted), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153

L. Ed. 2d 162 (2002). If the record contains insufficient information on

which to resolve the claim, this Court should dismiss the assignment of error

without prejudice to raise the matter anew in a motion for appropriate relief.

State v. Davis, 158 N.C. App. 1, 582 S.E.2d 289 (2003).

      To establish ineffective assistance of counsel, a Defendant must meet

a two-prong test using “an objective standard of reasonableness.” State v.

Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 248 (1985)(citations

omitted). The test, as set out by the United States Supreme Court in

Strickland v. Washington, supra, is as follows:

      First, the Defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so
      serious that counsel was not functioning as the ‘counsel’
      guaranteed the Defendant by the Sixth Amendment. Second,
      the Defendant must show that the deficient performance
      prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the Defendant of a fair trial,
      a trial whose result is reliable.
Strickland at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 674. “The fact that

counsel made an error, even an unreasonable error, does not warrant reversal

of a conviction unless there is a reasonable probability that, but for counsel’s


                                       16
errors, there would have been a different result in the proceedings.” State v.

Wade, 155 N.C. App. 1, 18, 573 S.E.2d 643, 655 (2002), disc. review

denied, 357 N.C. 169, 581 S.E.2d 444 (2003)(citation omitted). “This

determination must be based on the totality of the evidence before the finder

of fact.” Id. In this case, Bruce Bunting received ineffective assistance of

counsel when his attorney failed to move to dismiss the charges at the close

of the evidence, barring this Court from reviewing the sufficiency of the

evidence on appeal.

      An attorney’s failure to take some possible action will not be deemed

deficient performance under the first prong of the Strickland standard if the

failure was based on a reasonable strategic decision by the attorney.

Strickland, 446 U.S. at 689, 104 S. Ct at 2065, 80 L.Ed.2d 674. The

ultimate consideration in any analysis under Strickland is whether ”counsel’s

conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland,

466 U.S. at 686, 104 S. Ct at 2064, 80 L.Ed.2d 674.

      In the instant case, Mr. Bunting’s trial attorney inexplicably failed to

move to dismiss the charges at the end of the State’s evidence and at the end

of all of the evidence. The effect of this omission is that Mr. Bunting is

procedurally barred from attacking the sufficiency of the trial evidence on



                                      17
appeal. See N.C.R. App. P. 10(a)(3). There is no possible legitimate

strategic reason for failing to enter a motion to dismiss at the close of all

evidence in a criminal trial. Such action is standard procedure in a criminal

trial, at least “for the record,” regardless of the strength of the evidence, to

preserve the defendant’s appellate rights. Bruce Bunting pleaded not guilty

to these charges and sought a jury trial, asserting his innocence to the

charged offenses. Thus, if Mr. Bunting had known the importance of

challenging the sufficiency of the evidence in the context of appellate

procedure, surely he would have preserved the record himself. Instead,

however, he reasonably relied upon his defense counsel to preserve the

record on his behalf, apparently to his detriment.

      Accordingly, trial counsel’s performance here fell below an objective

standard of professional reasonableness and thus satisfies the first prong of

Strickland. Similarly, Mr. Bunting received ineffective assistance of counsel

when his attorney failed to object following the court’s jury instructions that

the substance introduced during the trial of this matter was opium. Any first

year law student would understand that the State bears the burden of proof in

a criminal trial to establish each element of a crime beyond a reasonable

doubt. Her failure to object could not be attributed to “trial strategy.”




                                        18
      But for trial counsel’s errors, there is a reasonable probability that the

result of Mr. Bunting’s trial would have been different or that his

convictions would have been vacated on appeal. The State’s evidence in this

matter consisted of the unreliable testimony of a woman facing felony

charges of her own if she failed to “substantially assist” the State in

obtaining a conviction against Bruce Bunting. Thus, had counsel lodged the

standard motion to dismiss with the trial court at the proper time, there was a

reasonable likelihood that Mr. Bunting would not have been convicted.

Even assuming arguendo that the trial court would have denied Mr.

Bunting’s motion to dismiss, there remains a reasonable probability that this

Court would have vacated Mr. Bunting’s convictions had it reached his

insufficiency claim on the merits. Similarly, there is a reasonable

probability that the jury might have decided differently if they had had to

determine the nature of the substance at issue in this case.

      While appellate counsel firmly believes that trial counsel’s deficient

performance affected the outcome of the trial, “a defendant need not show

that counsel’s deficient conduct more likely than not altered the outcome of

the case.” 466 U.S. at 693, 104 S. Ct at 2068, 80 L.Ed.2d 674. He need

only show that but for trial counsel’s errors, there is a reasonable probability

that the result of the proceeding would have been different. “A reasonable



                                       19
probability is a probability sufficient to undermine confidence in the

outcome.” 466 U.S. at 694, 104 S. Ct at 2068, 80 L.Ed.2d 674. Because

there is a reasonable probability the outcome of Mr. Bunting’s trial and

appeal would have been different had his trial counsel performed up to

acceptable standards, Bruce Bunting has been prejudiced by his trial

counsel’s ineffective assistance.

      This Court must reverse and remand Mr. Bunting’s convictions.

                               CONCLUSION

      For all of the foregoing reasons, the defendant-appellant respectfully

requests that this Court reverse and vacate Bruce Edward Bunting’s

judgments of conviction or order a new trial in this matter.

      Respectfully submitted, this the 12th day of February, 2010.

                          ELECTRONICALLY SUBMITTED
                          Geoffrey W. Hosford
                          Attorney for Defendant-Appellant
                          State Bar No. 21239
                          P.O. Box 1653
                          Wilmington, NC 28402
                          (910)251-8333
                          geoffrey_hosford@yahoo.com
                          H                              H




                                      20
         CERTIFICATE OF COMPLIANCE WITH RULE 28

      Undersigned counsel hereby certifies that this brief is in compliance

with N.C.R. App. 28(j)(2) in that it is printed in 14-point Times New Roman

font and contains no more than 8,750 words in the body of the brief,

footnotes, and citations included, as indicated by the word-processing

program used to prepare the brief.

                      CERTIFICATE OF SERVICE

      The undersigned counsel for defendant-appellant, Bruce Bunting,

hereby certifies that a copy of the foregoing Defendant-Appellant’s Brief

was served upon the State of North Carolina on the 12th day of February,

2010, upon the State via e-mail pursuant to N.C. R. App. P. 26(c), which

allows service by e-mail if a document is electronically filed with a North

Carolina appellate court:


      Thomas Henry                     H   thenry@ncdoj.gov
      Assistant Attorney General
      Dept. of Justice
      P.O. Box 629
      Raleigh, NC 27602-0629

                                ELECTRONICALLY SUBMITTED
                                Geoffrey W. Hosford
                                Attorney for Defendant-Appellant




                                      21
                 INDEX TO APPENDIX

N.C.G.S. §90-95……………………………………………… A-1

Transcript of charge conference……………………………… A-14




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