G.S. 15A-943(b), State v. Shook, and the Requirement That Arraignment Not Occur the Week of Trial: Part II, When Arraignment is Delayed or Overlooked
Part I of this two-part blog addressed what happens at arraignment, compared the way arraignment works in North Carolina to the way it works in other states, and set forth various ways that arraignment can have procedural significance. Part II will now explore one of the most important issues related to arraignment:
What happens if arraignment does not occur until the week of trial?
As noted in Part I, where arraignment is overlooked, the state may attempt to arraign the defendant on the same day the trial is scheduled to begin. However, G.S. 15A-943(b) states that trial may not proceed under these circumstances without the defendant’s consent. In interpreting G.S. 15A-943(b), our appellate courts have concluded that the language vests a right in the defendant and that violation of the statute constitutes reversible error without the need for the defendant to show prejudice. See State v. Shook, 293 N.C. 315 (1977).
In Shook, the defendant was tried and convicted on felony firearm and assault charges. Id. at 315. The defendant’s arraignment had been calendared for a date in September, but the proceeding was continued to October. Id. at 316.At the October date, arraignment did not occur, and the defendant was instead committed for a pretrial examination of capacity. Id. at 317. The matter was subsequently set for trial in February, but arraignment still had not occurred. On the day trial was to begin, the court instructed the prosecutor to arraign the defendant, and the defendant objected “to the proceeding of the trial immediately after the arraignment.” Id. The court interpreted the objection as a motion to continue, denied the motion, and directed the clerk to “[p]ut a jury in the box.” Id.
On appeal, the Court of Appeals noted that G.S. 15A-943(b) was violated but granted no relief on account of lack of prejudice shown. Id. at 316. However, the North Carolina Supreme Court examined the statute and its commentary and concluded that the defendant was not required to show prejudice. Id. at 317-20. The Supreme Court first explained that G.S. 15A-943(a), with its requirement that arraignments be calendared on days other than those on which jurors and witnesses are present, was designed to promote efficiency and save citizens’ time. Id. at 317-18. However, even though subsection (b) is tied to (a) in that the rule prohibiting trial the same week of arraignment only applies in counties covered by (a), the purpose of (b) is different. The Supreme Court reasoned as follows:
Subsection (b) is apparently designed to insure both the state and the defendant a sufficient interlude to prepare for trial. This is necessary because before arraignment neither the state nor defendant may know whether the case need proceed to trial. The state may not know since no formal entry of plea has been made. Defendant himself may not know since prior to arraignment he may have been considering entering a guilty plea to the charge or pursuant to some plea negotiation which has taken place between him and the state. The week’s interim provided in General Statute 15A-943(b) assures an opportunity for trial preparation and thereby helps to avoid preparation which may well be not only extensive but also unnecessary.
Id. at 318. The court went on to conclude that all arraignments must be calendared and that the statute is “more than directory;” it “vests a defendant with a right.” Id. at 319. The court held that it would be “manifestly contrary to the intent of the legislature” to require a showing of prejudice where the statute requires a week’s time be provided unless the defendant consents. Id. As noted in a previous blog, this rule differs from the requirement under G.S. 7A-49.4(e) that the trial order be published ten working days before trial. Under State v. Jones, 265 N.C. App. 293 (2019), a violation of the latter provision requires a showing of prejudice for relief to be granted.
The above analysis might sound somewhat strange given that in most circumstances, the trial date has often been selected weeks if not months prior at the final administrative setting, see G.S. 7A-49.4, a fact of which the defendant most likely is aware. G.S. 7A-49.4(b) specifically requires that trial be set at least 30 days out from the final administrative setting. Nonetheless, even if the requirement that trial not occur the week of arraignment appears somewhat superfluous in light of other provisions notifying the defendant of the trial date, the holding of Shook that violation of the statute constitutes error per se remains good law. In addition, only felonies require administrative settings under G.S. 7A-49.4(b), and yet misdemeanor appeals still require arraignment where G.S. 15A-943 applies. Thus, the statute ensures that the defense (and the state) have adequate time to prepare for a misdemeanor appeal trial and prevents such cases from being tried the same week as arraignment. See State v. Vereen, 177 N.C. App. 233 (2006).
Are there any exceptions?
The rule that trial not occur the same week as arraignment has some inherent limitations. Courts have also recognized exceptions to its application.
First, by its terms, the statutory mandate in G.S. 15A-943(b) only applies if subsection (a) applies, requiring calendaring of arraignments. G.S. 15A-943(a) applies to counties that regularly schedule 20 or more weeks of trial sessions of superior court at which criminal cases are heard, or counties designated by the Chief Justice. See G.S. 15A-943(a), (b); State v. Sellars,52 N.C. App. 380, 388 (1981) (no G.S. 15A-943(b) violation; appellate court took judicial notice that Chatham County did not regularly schedule 20 weeks of trial sessions involving criminal cases at the time).
Second, a defendant must file a written request for arraignment within 21 days of indictment, or the right to arraignment, along with the right to not be tried the same week of arraignment, will be deemed waived. See State v. Trull, 153 N.C. App. 630, 634 (2002) (no G.S. 15A-943(b) violation where record did not contain written request for arraignment); State v. Lane, 163 N.C. App. 495, 502-02 (2004) (same). For misdemeanor appeals where no indictment is necessary, no written request is necessary to assert the right. See State v. Vereen, 177 N.C. App. 233 (2006).
Third, a defendant must properly invoke the right. This issue has been the subject of several appellate cases. Our courts have established that a defendant need not specifically invoke the statute by number to properly raise the issue. See State v. Cates, 140 N.C. App. 548, 551 (2000). However, the defendant must express a need for a continuance that is tethered to the purpose of the statute, which is to allow time to prepare for trial. Id. In Cates, the defendant moved for a continuance on the grounds that he misapprehended the charges on which he was being tried (the kidnapping indictment referred to intent to commit second-degree rape and second-degree sex offense, and the calendar listed these offenses, but at trial, the state announced its intent to try the defendant for first-degree rape and first-degree sex offense). Id. at 549-50. The defendant also asked for more time to resume plea negotiations and fully discuss the state’s latest plea offer. Id. at 552. The Court of Appeals concluded that these concerns related to the purpose of the statute: allowing adequate time to prepare. Thus, it held that the right was properly invoked, and found reversible error in proceeding to trial the week of arraignment.
In contrast, in State v. Davis, 38 N.C. App. 672, 675 (1978), the defense moved for a continuance on the “narrow ground” that a subpoena for an essential defense witness had been issued but not served. Contrasting the facts with those in Shook, the Court of Appeals held that the defendant had failed to properly invoke the right under G.S. 15A-943(b) and rejected his argument under G.S. 15A-943(b). One might question why an inability to procure the attendance of a key witness would not be considered a matter related to trial preparation. It appears, however, that the essential witness in Davis had not been seen in six months and the defendant failed to show the witness could be found at all. The defendant further failed to show how the witness’s testimony was truly essential. Thus, the holding of waiver in Davis may be grounded more on the speculative and unsupported nature of the motion to continue rather than on a lack of connection to the purpose of the statute. Compare State v. Vereen, 177 N.C. App. 233 (2006) (defendant properly invoked G.S. 15A-943(b) by articulating his need to investigate further by procuring surveillance footage or receiving an explanation for why the footage was destroyed; defendant also stated that witnesses who were previously present in court were unavailable).
Fourth, G.S. 15A-943(b) likely does not require a continuance where arraignment occurs in advance of trial and the State subsequently moves for amendment or procures a superseding indictment with minor amendments. See State v. Phillips, 180 N.C. App. 474, 2006 WL 3359720 (N.C. Ct. App. Nov. 21, 2006), *2-3 (unpublished) (the state was allowed to amend offense date for prior felony on habitual felon indictment; new arraignment not required under G.S.15A-943(b)). It is difficult for the defense to articulate any need for additional time to prepare in such circumstances, and arraignment on the “case” can fairly be said to have happened in a timely fashion. A harder question is posed by the situation in which the state adds new charges related to the same incident after arraignment and then attempts to proceed to trial or attempts to arraign on the new charges the same week as trial. The defense might persuasively argue that the statute creates a clear mandate and that trial should not proceed until the week after the defendant has been arraigned on all charges. However, the state might respond that arraignment has already occurred on the “case” (construed broadly) and that the addition of new charges does not require a new arraignment. See G.S. 15A-943. Given the risk of reversible error, the safest course for the state would be to ensure that arraignment on all charges occurs prior to the week of trial.
