State v. Sanders

321 S.E.2d 836 (1984)

STATE of North Carolina v. Stanley SANDERS.

No. 496A82.

Supreme Court of North Carolina.

November 6, 1984.

Rufus L. Edmisten, Atty. Gen. by Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by Ann B. Petersen and James R. Glover, Asst. *837 Appellate Defenders, Chapel Hill, for defendant.

PER CURIAM.

The defendant in this appeal presents fifteen questions for review arising out of the guilt and the penalty phases of his trial. Among these questions are serious challenges to the adequacy and accuracy of Judge Thornburg's instructions to the jury in the penalty phase of the defendant's trial on the aggravating circumstances, mitigating circumstances and other elements that the jury must find before it can sentence the defendant to death.

In support of his contentions, defendant has reproduced specific portions of the trial judge's instructions to the jury during the penalty phase of the trial. The portions of the jury instructions before us contain a strikingly large number of incomplete sentences, unintelligible phrases and words so misspelled as to cast doubt upon their meaning. Even by correcting grammatical errors and accounting for what might conceivably have resulted from mere lapsus linguae on the part of the trial judge, we are unable to make any reasonable sense of the challenged instructions. Given the nature of these problems, we are entirely convinced that the confusing instruction is not attributable to the able trial judge, but was erroneously transcribed by the court reporter. Indeed, both the State and the defendant concede that "the transcription of the entire trial appears to be incomplete and, at places, simply inaccurate", and that "it is impossible to determine what was a transcription error and what was actually said."

We have repeatedly stated that the record which is certified imports verity, and we are bound by it. State v. Johnson, 295 N.C. 227, 244 S.E.2d 391 (1978); State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971); State v. Fields, 279 N.C. 460, 183 S.E.2d 666 (1971). Appellate counsel for the State and for the defendant have diligently attempted to provide us with the best possible record under the circumstances. We are informed that it is unlikely that the record on appeal can be improved from the existing records of the original court reporter who no longer resides within the state. We are convinced that meaningful appellate review of the serious questions presented by defendant's appeal is completely precluded by the entirely inaccurate and inadequate transcription of the trial proceedings and that no adequate record can be formulated.

In view of the gravity of the offenses for which defendant was tried and the penalty of death which was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules of Appellate Procedure and, in the interest of justice, vacate the judgments entered and order a new trial. Therefore, we vacate the judgments entered by Judge Thornburg and remand the case to the Superior Court, Transylvania County, for a new trial on all charges.

VACATED AND REMANDED.