STATE OF NORTH CAROLINA
v. Cleveland County
No. 01 CRS 51764
SAMUEL CHRISTOPHER McCLUNEY
Attorney General Roy Cooper, by Assistant Attorney General M.
Janette Soles, for the State.
Angela H. Brown for defendant-appellant.
EAGLES, Chief Judge.
Samuel Christopher McCluney (“defendant”) appeals from the
trial court's judgment entered on a jury verdict finding him guilty
of resisting a public officer. On appeal, defendant asserts three
assignments of error: (1) that the trial court erred in denying his
request for a continuance; (2) that the trial court erred by trying
defendant immediately after his arraignment; and (3) the trial
court should have granted defendant's motion to dismiss. After
careful review of the briefs and record, we hold that defendant is
entitled to a new trial.
The record shows that the matter came before the superior
court on 12 November 2001 for trial de novo after defendant was
convicted in district court on 15 October 2001. At the call of thecase for trial, defendant moved for a continuance on the ground
that defendant's counsel had been given information that morning by
defendant regarding his medical status at the time of the offense.
In response to inquiry by the court, defendant indicated that he
had the information for about three weeks, and that the information
concerned injuries he sustained, including a broken neck and brain
hemorrhage, in an automobile accident on 23 December 2000.
According to the prosecutor, defendant sought this information to
prove temporary insanity. Based upon the information presented,
the court denied the motion to continue. The prosecutor then
stated that defendant needed to be arraigned. Defendant thereupon
entered a plea of not guilty. The court then inquired whether
there were any pretrial matters to be decided before bringing the
prospective jurors into the courtroom. After the parties indicated
there were no pretrial matters, the court began defendant's trial.
Defendant contends that the trial court erred by trying
defendant on the same day he was arraigned. Our General Assembly
has established that in a county having twenty or more weeks of
superior court at which criminal cases are heard, the defendant
“may not be tried without his consent in the week in which he is
arraigned.” G.S. § 15A-943(b) (2001). This Court takes judicial
notice that the 2001 trial calendar prepared by the Administrative
Office of the Courts indicates that Cleveland County had more than
twenty weeks of superior court in which criminal cases were heard.
Therefore, G.S. § 15A-943(b) applies to the present case. Generally, a violation of G.S. § 15A-943(b) is reversible
error per se and no showing of prejudice is required. State v.
Shook, 293 N.C. 315, 319-20, 237 S.E.2d 843, 847 (1977). However,
the statute may be waived by the defendant's failure to object.
State v. Davis, 38 N.C. App. 672, 675, 248 S.E.2d 883, 886 (1978).
To preserve the statutory right to a minimum of a week's passage
between arraignment and trial, the defendant's objection need not
explicitly cite the statute and is sufficient if the objection or
a motion to continue relates to the purposes for which the statute
was enacted. State v. Cates, 140 N.C. App. 548, 551, 537 S.E.2d
508, 510 (2000). The statute is “designed to insure both the state
and the defendant a sufficient interlude to prepare for trial.”
Shook, 293 N.C. at 318, 237 S.E.2d at 846.
Here, defendant sought a continuance so he could obtain
additional evidence in preparation for trial. We conclude
defendant adequately invoked the protection of the statute.
Consequently, the court committed reversible error in proceeding to
try defendant on the same day as he was arraigned. Defendant is
entitled to a new trial.
The award of a new trial renders moot defendant's other
assignments of error as they may not recur.
New trial.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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