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Criminal Law-_right to arraignment--proceeding to trial on same day as arraignment
The trial court erred in a resisting a public officer in the performance of his duties case by
immediately proceeding to trial on the same day defendant was arraigned without defendant's
consent when defendant adequately invoked N.C.G.S. § 15A-943(b) and did not waive his right
to arraignment, because: (1) defendant twice moved the trial court to continue his case during his
formal arraignment so he could obtain evidence he subpoenaed and so his witnesses would be
available; (2) N.C.G.S. § 15A-941(d), which requires a defendant to file a written request for
arraignment within twenty-one days, is inapplicable to defendants who are before the superior
court for a trial de novo whose charges lie within the original jurisdiction of the district court;
and (3) defendant was entitled to an arraignment in superior court since defendant's not guilty
plea from the district court is completely disregarded when a trial de novo in the superior court is
a new trial from the beginning to the end.
Judge JACKSON concurring.
Attorney General Roy Cooper, by Assistant Attorney General M.
Janette Soles, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.
In general, when a defendant pleads not guilty at an
arraignment, he may not be tried without his consent in the week in
which he is arraigned.
(See footnote 1)
In this case, Defendant Christopher L.
Vereen contends the trial court erred by beginning his trial
(without his consent) the same day on which he was arraigned. Because Defendant twice moved the trial court to continue his case
during his formal arraignment so he could obtain evidence he
subpoenaed and so his witnesses would be available, we reverse the
trial court's decision to conduct Defendant's trial on the same day
as his arraignment.
The record shows that Defendant's case came before Superior Court, Durham County for trial de novo after Defendant was convicted in district court on 10 May 2004. When Defendant's case was called, the prosecutor informed the trial court that Defendant needed to be formally arraigned. The trial court asked Defendant how he pled to two of the charges, and defense counsel answered, not guilty[.] Before the trial court arraigned Defendant on the remaining charges, Defendant moved for a continuance on two grounds. First, Defendant stated that he had learned that morning that a police vehicle's surveillance tape, which Defendant had subpoenaed, had been destroyed, and Defendant requested that the State produce some kind of explanation as to why this pertinent evidence was destroyed. Second, Defendant stated that some of his witnesses were in court all day yesterday . . . and unable to come back at this time.
According to the prosecutor, it was the Durham Police Department's policy to destroy such tapes after ninety days. The prosecutor also told the trial court that he was not aware that there had been a subpoena issued. The trial court then inquired as to whether Defendant had been fully arraigned, and the prosecutor responded negatively. Defense counsel reiterated that she wanted to make that preliminary motion to hold this matter open until we could get those witnesses and those tapes[.] The trial court continued with the arraignment, and Defendant pled not guilty to charges of driving while impaired, misdemeanor fleeing to elude arrest, open container, assault on a government officer/employee, and resisting a public officer. After defense counsel spoke with Officer Swartz of the Durham Police Department, defense counsel told the trial court that the destroyed surveillance tapes were necessary to support Defendant's defense regarding some of the charges and asked the trial court to dismiss those matters. The prosecutor, who tried the case in district court, stated that there was no subpoena or request for the tapes at district court and that there was no evidence presented by Defendant that would have supported any type of witness on the scene that would be able to explain away surveillance tapes by the officers. The prosecutor then stated that the State was ready to proceed since both officers who were involved in the arrest were present.
Defendant's attorney responded that Defendant's testimony at trial supported the need for the surveillance tape. Defendant's attorney then stated that she had subpoenaed the convenience store where the incident occurred and had not heard back. She further stated that it has been less than thirty days since the appeal . . . it has not been enough time for us to get those subpoenas out and get the information back from those persons. Defense counsel again brought it to the court's attention that somedefense witnesses were not present. The court denied the motion to continue, stating [i]f it comes to the point that you present evidence today, I'll recess until in the morning so you can have your witnesses present. The trial then began, Defendant was convicted of resisting a public officer in the performance of his duties. Defendant appealed.
JACKSON, Judge concurs in a separate opinion.
I concur with the majority's decision that the trial court committed reversible error in proceeding to try defendant on the same day as he was arraigned. However, for the reasons stated below, I believe it was unnecessary for the majority to discuss the applicability of North Carolina General Statutes, section 15A- 941(d) to the instant case. In the instant case, neither defendant nor the State raised the issue of whether the State was required to submit a bill of indictment charging defendant with the various offenses. Neither party addresses section 15A-941(d) in their briefs, and they do not present any argument indicating that defendant was not entitled to an arraignment in superior court. There is no dispute that defendant was not indicted for the offenses, thus there was no indictment from which the twenty-one day tolling period would begin in which defendant could file a written request for an arraignment. Both parties agree that defendant was entitled to an arraignment, he received that arraignment, and his trial began on the same day. The dispute between defendant and the State concerns whether or not defendant waived his statutory right not to be tried in the same week in which he was arraigned, pursuant to North Carolina General Statutes, section 15A-943(b). It is my opinion that we may fully address defendant's appeal, and reach the same conclusion, without addressing the applicability, or inapplicability, of section 15A- 941(d) to defendant's case.
Accordingly, I concur that defendant is entitled to a new trial.
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