State v. Benfield

55 N.C. App. 380 | N.C. Ct. App. | 1982

MORRIS, Chief Judge.

Defendant alleges that the trial court committed error by failing to arraign him in accordance with G.S. 15A-941. We find, however, that defendant was properly arraigned. The record reflects:

. . . the defendant appeared with his counsel in open court and was duly arraigned by the Assistant District Attorney reading the charges against him, whereupon, he pleaded not guilty.

Defendant argues that charges read to a defendant must appear in the record. We disagree.

Defendant, as appellant, has the burden on appeal to show that error was made. We will not presume that G.S. 15A-941 was not complied with when the record shows that an arraignment took place and defendant, duly represented by counsel, entered a plea of not guilty. If defendant was not properly informed of the charges against him at arraignment, it was his duty to object at that time and to have appropriate entries made in the record to show the basis for the objection.

State v. Small, 301 N.C. 407, 430-31, 272 S.E. 2d 128, 142-43 (1980). Defendant’s counsel indicated that defendant had been previously arraigned in Cleveland County and entered a plea of not guilty. Further, there is no evidence that defendant either objected or made appropriate entries in the record at the original arraignment or at the proceedings upon remand to Cleveland County, where arraignment was waived. Defendant contends that the waiver, which was oral, did not comply with G.S. 15A-945. That statute provides:

A defendant who is represented by counsel and who wishes to plead not guilty may waive arraignment prior to the day for which arraignment is calendared by filing a written plea, signed by the defendant and his counsel.

Defendant waived arraignment on the day of trial. Hence there was no need to submit a written waiver and G.S. 15A-945 is inapplicable.

Even were we to find that no arraignment had been conducted, failure of the record to show a formal arraignment does not entitle defendant to a new trial where the record indicates that defendant was tried as if he had been arraigned and had entered a plea of not guilty, as is the situation here. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980); State v. McCotter, 288 N.C. 227, 217 S.E. 2d 525 (1975). “In this case there can be no doubt either that defendant was fully aware of the charge against him or that he was in nowise prejudiced by the omission of a formal arraignment — if indeed it was omitted.” Id., p. 234.

Defendant further contends that his trial was erroneously conducted, to his prejudice, in Cleveland County. He points out that Judge Jackson entered an order directing that the trial take place in Iredell County, but that there was no order transferring the case back to Cleveland County. Defendant alleges that the record does not reveal a waiver of venue as set forth in G.S. 15A-133. We find no error in either regard and deem that venue was proper.

Venue for trial proceedings in cases within the original jurisdiction of the superior court lies in the county where the offense occurred. G.S. 15A-131(c). The breaking and entering and larceny charges were brought in Cleveland County based upon a criminal occurrence in that county. Thus, we are not persuaded that defendant suffered prejudice by having been tried in Cleveland County. Venue “does not affect the question of a defendant’s guilt or the power of the court to try him.” State v. Batdorf 293 N.C. 486, 496, 238 S.E. 2d 497, 504 (1977). Moreover, defendant failed to move to dismiss for improper venue as per G.S. 15A-952, hence, venue in Cleveland County became conclusive. G.S. 15A-135.

Defendant is mistaken in espousing that a transfer of venue must be in writing and signed by the defendant and the prosecutor. G.S. 15A-133(a) applies when there is a voluntary change of venue with the consent of all parties, according to the official commentary, and applies only to “a particular proceeding or stage of the proceedings rather than the more unusual change of venue for all subsequent stages of a proceeding.”

In the defendant’s trial, particularly the matters of arraignment and venue, we find

No error.

Judges ARNOLD and Becton concur.