Volume 349 — North Carolina Reports

<bold>1. Arrest and Bail § 143 (NCI4th) — pretrial detention —</bold> <bold>domestic violence — automatic forty-eight hour detention —</bold> <bold>substantive due process</bold> <block_quote> Defendant failed to carry his burden showing that the detention authorized by N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(b) is facially unconstitutional as violative of substantive due process where defendant was arrested on a warrant for charges including misdemeanor assault inflicting serious injury, a domestic violence charge; defendant arrived before a magistrate seeking a release order pending trial at 3:34 p.m. on October 28, immediately following his arrest; the magistrate completed a release order form but, under N.C.G.S. § <cross_reference>15A-534.1</cross_reference>, designated defendant as a domestic violence arrestee and ordered him sent to jail with an Order of<page_number>Page 484</page_number> Commitment Form directing the custodian of the detention facility to bring defendant before a judge or magistrate on October 30 at 3:45 p.m. for bond; defendant remained in jail until Monday afternoon, almost forty-eight hours after his arrest; and there were at least two district court judges available early on Monday to conduct defendant's bond hearing, and probably two superior court judges. The United States Supreme Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may; the statute here serves the General Assembly's legitimate interest in insuring that a judge rather than a magistrate consider the terms of a domestic violence offender's pretrial release and the detention authorized by the statute is properly classified as a regulatory restraint.</block_quote> <bold>2. Arrest and Bail § 143 (NCI4th) — pretrial release —</bold> <bold>domestic violence — automatic forty-eight-hour detention —</bold> <bold>procedural due process</bold> <block_quote> Defendant failed to carry his burden of showing that the detention authorized by N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(b) following a domestic violence arrest is facially unconstitutional as violative of procedural due process. The statute insures that an arrestee detained by a magistrate pending a judicial determination of the conditions of his or her pretrial release will be detained no longer than forty-eight hours without a hearing and the arrestee detained under N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(b) should receive a hearing as soon as possible following his or her arrest. The statute thus provides the procedural protection considered to be immune from systemic challenges.</block_quote> <bold>3. Arrest and Bail § 143 (NCI4th) — pretrial detention —</bold> <bold>domestic violence — automatic forty-eight-hour detention —</bold> <bold>double jeopardy</bold> <block_quote> The defendant did not satisfy his burden of establishing that N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(b) is facially unconstitutional on double jeopardy grounds because detentions under the statute, when administered as intended, are regulatory and subsequent criminal prosecution of an arrestee who has been regulated, but not punished, does not expose the arrestee to multiple punishments for the same offense under established double jeopardy principles. Furthermore, the statute does not require pretrial detention or prescribe any minimum period of detention.</block_quote><page_number>Page 485</page_number> <bold>4. Appeal and Error § 150 (NCI4th) — pretrial detention —</bold> <bold>constitutionality of statute as applied — reserved for appeal</bold> <block_quote> Defendant preserved for appeal the constitutionality of a pretrial detention statute as applied to him by assignments of error to the court's conclusion that the statute was constitutional on the grounds that the statute violated double jeopardy and due process as well as the conclusion that the statute does not violate any substantive law. These assignments of error attack the broad conclusion by the court that the statute is constitutional and defendant is not limited either to a facial constitutional challenge or to an as-applied constitutional challenge.</block_quote> <bold>5. Arrest and Bail § 143 (NCI4th) — pretrial detention —</bold> <bold>domestic violence — unconstitutional as applied</bold> <block_quote> N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(b) was unconstitutional as applied to defendant in this case where defendant was arrested at 3:45 p.m. on a Saturday, the order of commitment did not authorize his release from jail for a bond hearing until 3:45 the following Monday, he was not brought before a judge upon the opening of court on Monday morning, and it is clear that at least two district court judges were available early on Monday and probable that two superior court judges were available. Under these discrete facts, the magistrate's order automatically detaining defendant without a hearing until well into the afternoon while available judges spent several hours conducting other business violated defendant's procedural due process rights to a timely pretrial release hearing under N.C.G.S. § <cross_reference>15A-534.1</cross_reference>(a). The constitutional violation deprived defendant of liberty unreasonably, well beyond any time period necessary to serve any governmental interest in detaining him without a hearing for regulatory purposes.</block_quote>

<bold>1. Constitutional Law § 343 (NCI4th) — presence of defendant —</bold> <bold>preliminary swearing of prospective jurors</bold> <block_quote> Defendant had no right to be present when prospective jurors were preliminarily sworn in, oriented, and generally qualified for service by a deputy clerk in the jury assembly room prior to the time the jurors were assigned to any particular courtroom for jury service.</block_quote> <bold>2. Jury § 266 (NCI4th) — jurors preliminary sworn by clerk —</bold> <bold>not statutory violation</bold> <block_quote> The procedure whereby prospective jurors were preliminarily sworn in, oriented, and generally qualified for service by a deputy clerk in the jury assembly room did not violate the requirement of N.C.G.S. § <cross_reference>9-14</cross_reference> that the jury be sworn "at the<page_number>Page 635</page_number> beginning of court" since that phrase refers to the beginning of the term of court rather than to the beginning of an individual trial.</block_quote> <bold>3. Jury § 92 (NCI4th) — voir dire — oath of jurors</bold> <block_quote> Defendant's right to a fair and impartial trial was not violated by his trial before a jury that had been selected during a <italic>voir dire</italic> process that did not require prospective jurors to take an oath that they would "tell the truth" where the record reflects that the jurors took the oath prescribed by N.C.G.S. § <cross_reference>9-14</cross_reference> prior to trial in this case.</block_quote> <bold>4. Evidence and Witnesses § 1240 (NCI4th) — statements to</bold> <bold>police — absence of Miranda warnings — defendant not in</bold> <bold>custody</bold> <block_quote> The trial court did not err by denying defendant's motion to suppress his first and second statements to the police because he had not been advised of his <italic>Miranda</italic> rights where defendant voluntarily drove to the police department for questioning as a potential witness; the first interview lasted approximately thirty minutes, was not confrontational, and did not produce any incriminating statements by defendant; the second interview occurred a short time later after defendant voluntarily agreed to answer a few more questions, and defendant was not restrained in any way and did not ask to leave; and the trial court correctly determined that defendant was not in custody at the time his first two statements were given to the police.</block_quote> <bold>5. Constitutional Law § 344.1 (NCI4th) — unrecorded bench</bold> <bold>conferences — absence of defendant — not constitutional</bold> <bold>violation</bold> <block_quote> Defendant's federal and state constitutional rights were not violated in this capital trial when the trial court conducted numerous bench conferences out of his presence and without providing a record of the substance of such conferences where defendant was represented by counsel at each of the bench conferences; defendant was present in the courtroom and was in a position to observe the context and to inquire of his attorneys as to the nature and substance of each one of the conferences; and defendant has failed to show the usefulness of his presence or that his presence at the bench would have had a reasonably substantial relation to his opportunity to defend.</block_quote><page_number>Page 636</page_number> <bold>6. Criminal Law § 545 (NCI4th Rev.) — State's witness —</bold> <bold>challenge to defendant to testify — mistrial denied</bold> <block_quote> The trial court did not err or abuse its discretion in denying defendant's motion for a mistrial in this capital case after defendant's older brother, testifying for the State, challenged defendant to take the stand in his own defense where the trial court found that the unsolicited comment was simply blurted out by the witness and took everyone by surprise; the prosecutor responded immediately to avoid further comment; and the trial court instructed the jury not to consider the comment "in any way whatsoever."</block_quote> <bold>7. Evidence and Witnesses § 2908 (NCI4th) — statements</bold> <bold>volunteered by witness — opening of door by defendant</bold> <block_quote> The trial court did not err by refusing to strike statements by defendant's brother in this prosecution for two first-degree murders that defendant's evidence was a "circus" and that the "victims of this heinous crime deserve more than what they've been getting" where defendant opened the door to this testimony by impugning the character of the witness on cross-examination by implying that the witness had a sexual relationship with the wife of defendant's other brother and that the witness was going to profit by writing a book about the murders.</block_quote> <bold>8. Indigent Persons § 24 (NCI4th) — forensic crime-scene expert</bold> <bold>— funds denied</bold> <block_quote> The trial court did not err in denying defendant's motions for funds to employ a forensic crime-scene expert in this prosecution for two first-degree murders where the trial court had granted defendant's motions for funds to hire a private investigator, a firearms expert, a fingerprint expert, and an audiologist; and the trial court properly concluded that defense counsel had not made a threshold showing of need for a crime-scene expert or that such assistance was necessary for defendant to receive effective assistance of counsel and a fair trial.</block_quote> <bold>9. Evidence and Witnesses § 668 (NCI4th) — exhibits not</bold> <bold>admitted — references by witnesses — refusal to strike — not</bold> <bold>plain error</bold> <block_quote> Assuming <italic>arguendo</italic> that the plain error rule applies to the failure to strike the testimony of witnesses, the trial court did not commit plain error by failing to strike the testimony of several witnesses referring to two exhibits, a Ruger revolver and a Ruger<page_number>Page 637</page_number> firearm box, that had not been admitted into evidence where the substance of the testimony of these witnesses could have been obtained without the exhibits.</block_quote> <bold>10. Appeal and Error § 370 (NCI4th) — judicial settlement of</bold> <bold>record on appeal — allowing evidence — absence of defendant —</bold> <bold>not error or constitutional violation</bold> <block_quote> The trial court did not err and violate defendant's right to due process by actively soliciting and allowing the presentation of evidence at a hearing to settle the record on appeal without notice to defendant or his counsel where the trial court conducted a hearing in open court upon the record with defense counsel and the prosecutor present; defendant's presence was not required at a hearing to settle the record on appeal; and defendant has failed to show how he was prejudiced by not receiving advance notice since his counsel was present and fully examined the deputy clerk who testified and could have asked her to find and bring any necessary documents to the courtroom.</block_quote> <bold>11. Appeal and Error § 370 (NCI4th) — judicial settlement of</bold> <bold>record on appeal — ex parte communication with prosecutor —</bold> <bold>absence of prejudice</bold> <block_quote> Assuming <italic>arguendo</italic> that the trial court's comments and a deputy clerk's testimony during a conference to judicially settle the record on appeal showed the trial court's participation in an <italic>ex parte</italic> communication with the prosecutor, such <italic>ex parte</italic> communication would not be improper because it related only to the administrative functioning of the judicial system, and it appears that the trial court was only being careful to assure that the appellate court would have a complete record to properly resolve issues raised by defendant in the record on appeal.</block_quote> <bold>12. Criminal Law § 1349 (NCI4th Rev.) — capital sentencing —</bold> <bold>mitigating circumstances — use of "may" in instructions</bold> <block_quote> The trial court's use of the word "may" in its instructions in a capital sentencing proceeding on Issues Three and Four did not make consideration of established mitigating circumstances discretionary.</block_quote> <bold>13. Criminal Law § 1402 (NCI4th Rev.) — death penalty not</bold> <bold>disproportionate</bold> <block_quote> Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate where<page_number>Page 638</page_number> defendant was convicted of both counts of first-degree murder under the theory of premeditation and deliberation; defendant was an integral part of a calculated plan to rob a store and to kill whomever was closing the store to eliminate them as witnesses; defendant procured the murder weapon and shot each of the victims twice in the head, at close range, with a revolver; and the jury found as aggravating circumstances for each murder that the murder was committed for the purpose of avoiding and preventing a lawful arrest, the murder was committed for pecuniary gain, and the murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against another person or persons.</block_quote> <block_quote> Justice WYNN did not participate in the consideration or decision of this case.</block_quote>