State v. Brooks

38 N.C. App. 445 | N.C. Ct. App. | 1978

MITCHELL, Judge.

The appellant first assigns as error the order of the trial court granting his motion for a continuance but revoking his appearance bond and ordering him taken into custody in the prison hospital for safekeeping. In support of this assignment, the defendant contends that the order denied him his rights to the effective assistance of counsel, to compel attendance of witnesses in his behalf, and to due process and equal protection of law guaranteed by the Constitution of the United States and the Constitution of North Carolina. The defendant argues that the action of the trial court in revoking his appearance bond was intended to so burden his exercise of his constitutional rights as to force him to waive those rights and to proceed with trial although unprepared. We specifically reject this argument, as both the order and the remainder of the record on appeal are absolutely devoid of any evidence whatsoever tending to indicate any effort by the trial court to coerce or pressure the defendant into waiving any of his rights.

At the time it allowed the defendant’s motions for a continuance, the trial court found that subpoenas had not been served upon the defendant’s witnesses. This finding is supported by unserved subpoenas directed to several of the defendant’s witnesses, which are contained in the record on appeal. The trial court also indicated that it based its order granting the continuance in part upon representations by the defendant and his attorneys concerning his ill health and inability to assist counsel in preparing his defense. The representations which were then before the trial court relating to the defendant’s ill health and inability to assist counsel are also included in the record on appeal. Having considered and made reference to these matters, the trial court found that the interests of justice required that a continuance be granted until the next criminal term of superior court in Rutherford County, and that the defendant’s bond be revoked in order to insure that he would be able to proceed at that time.

The order of the trial court was in all respects proper pursuant to its authority under G.S. 15A-534(f), which provides for revocation of an order of pretrial release for good cause shown. The defendant had specifically indicated to the court that his sickness and the medication it necessitated directly impaired his mental capacity. The defendant’s evidence additionally indicated that, absent hospitalization and definitive treatment, the condition might well continue to impair his mental ability beyond the next criminal term of superior court in Rutherford County. The trial court properly took this into account in deciding to revoke the defendant’s bond. In determining the conditions of release or the propriety of revoking a defendant’s bond, the trial court may consider not only the question of whether the defendant will appear for trial, but may also consider whether he will appear for trial in such mental and physicial condition as to be able to proceed. G.S. 15A-534(c) and (f). Had the defendant so chosen, he could, of course, have applied for an order setting forth new conditions of pretrial release after the trial court revoked his appearance bond. Upon such motion, the trial court would have been required to set new conditions of pretrial release. G.S. 15A-534(f). The trial court’s order granting the defendant’s motion for a continuance and revoking his appearance bond in order to insure that he would be both present and able to proceed with trial on the next date for which trial was set was without error.

However, having determined from competent evidence that the interests of justice required that the defendant’s case be continued in order that the defendant could be granted the opportunity to seek compulsory attendance of witnesses and the effective assistance of counsel, the trial court erred in allowing the case to proceed to trial upon the defendant’s motion for a speedy trial and for leave to withdraw his prior motions for a continuance. No evidence was introduced before the trial court indicating that the defendant’s impairments had subsided or no longer existed. Having determined that the interests of justice required a continuance, the action of the trial court in allowing the case to proceed to trial without evidence or findings that the impediments to those rights had subsided constituted a denial of those rights as well as the defendant’s rights to due process of law and equal protection of the laws. Each of these rights is specifically guaranteed to every defendant by the Constitution of the United States and the Constitution of North Carolina. U.S. Const, amend. XIV, § 1; N.C. Const. art. I, §§ 19 and 23.

The filing of the defendant’s motion for a speedy trial and for leave to withdraw the prior motions for a continuance may not be held to constitute a waiver of those rights preserved by the original order of the court granting the continuance. Courts indulge every reasonable presumption against the waiver of fundamental rights. Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971); State v. Stokes, 274 N.C. 409, 163 S.E. 2d 770 (1968). At the time the trial court granted the defendant’s motion to withdraw his prior request for a continuance, which amounted to a waiver of a right found to exist by the trial court, the defendant indicated that he was under the influence of drugs and unable to assist counsel. This evidence tended to find support in the statement of the defendant’s physician which was considered by the court. The trial court made no finding contrary to the unrebutted evidence that the defendant was unable to assist counsel in the preparation of his defense. The presumption against waiver of the fundamental rights protected by the trial court’s first order was not rebutted or overcome. The trial court having correctly found and concluded that the interests of justice required a continuance, the same interests of justice required that the defendant’s motion for speedy trial and to withdraw his prior motions be denied. For these reasons the trial court erred in permitting the case to go to trial, and the defendant must be and is granted a

New trial.

Judges MORRIS and ERWIN concur.