State v. ThompsonState v. Thompson
- Reporters:
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- Before:
- Whichard
The issue is whether
In 1979 Governor James B. Hunt, Jr., formally recognized that domestic violence is a “serious and invisible problem” in North Carolina. North Carolina Legislation 1979, at 61 (Inst, of Gov’t, Univ. of N.C. at Chapel Hill, Joan G. Brannon & Ann L. Sawyer eds. 1979). Shortly thereafter, the General Assembly responded to public concern about domestic violence by passing Senate Bill 171, which was codified as
In 1995, almost two decades after the enactment of
§ 15A-534.1 . Crimes of domestic violence; bail and pretrial release.
(a) In all cases in which the defendant is charged with assault on or communicating a threat to a spouse or former spouse or a person with whom the defendant lives or has lived as if married, with domestic criminal trespass, or with violation of an order entered pursuant to Chapter 50B, Domestic Violence, of the General Statutes, the judicial оfficial who determines the conditions of pretrial release shall be a judge, and .the following provisions shall apply in addition to the provisions of G.S. 15A-534:
(1) Upon a determination by the judge that the immediate release of the defendant will pose a danger of injury to the alleged victim or to any other person or is likely to result in intimidation of the alleged victim and upon a determination that the executionof an appearance bond as required by G.S. 15A-534 will not reasonably assure that such injury or intimidation will not occur, a judge may retain the defendant in custody for a reasonable period of time while determining the conditions of pretrial release.
(2) A judge may impose the following conditions on pretrial release:
a. That the defendant stay away from the hоme, school, business or place of employment of the alleged victim;
b. That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim;
c. That the defendant refrain from removing, damaging or injuring specifically identified property;
d. That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge.
The conditions set forth above may be imposed in addition to requiring that the defendant execute a secured appearance bond.
(3) Should the defendant be mentally ill and dangerous to himself or others or a substance abuser and dangerous to himself or others, .the provisions of Article 5 of Chapter 122C of the General Statutes shall apply.
(b) A defendant may be retained in custody not more thаn 48 hours from the time of arrest without a determination being made under this section by a judge. If a judge has not acted pursuant to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.
On 21 October 1995, shortly after the amendments to
Seven days later, on Saturday, 28 October’ 1995, the police arrested defendant and charged him with three misdemeanor offenses: assault inflicting serious injury,
Immediately following defendant’s arrest, at 3:45 p.m. on 28 October, defendant arrived before a second magistrate seeking a “Release Order” pending trial. The magistrate completed a “Release Order” form, but under recently amended
Upon this order of commitment, defendant spent almost forty-eight hours, including two nights, in jail without bond on three misdemeanor charges. On 30 October, officers led defendant from the jail to the courtroom. Following a bond hearing on the facts relevant to the charges, a judge released defendant on a $5,000 secured bond.
When defendant’s case was called for trial in District Court, defendant argued that
The State appealed, and the Superior Court reversed. The Superior Court concluded, without explanation, that “[t]he domestic violence bond law,
On defendant’s appeal from that decision, the Court of Appeals held that, on its face,
Defendant appealed to this Court on the basis that the case presented a substantial question arising under the Constitution of the United States.
Defendant again argues that
First, defendant states in his brief that
Second, although defendant at times argues broadly about
“A facial challenge to a legislative [a]ct is, of course, the most difficult challenge to mount successfully.”
United States v. Salerno,
481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987). “The presumption is that any act passed by the legislature is constitutional, and the court will not
Defendant contends that
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall... be deprived of life, liberty, or property, without due process of law.”
Defendant asserts that
In Salerno the Court said:
Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on “ ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ ” [Schall, 467 U.S. at 269, 81 L. Ed. 2d at 220], quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 9 L. Ed. 2d 644[, 661] (1963).
Salerno,
481 U.S. at 747, 95 L. Ed. 2d at 708. Further, when legislation serves a nonpunitive purpose, pretrial detention for up to forty-eight hours without a determination of probable cause may “in a particular case” pass constitutional muster under the prompt-trial requirements of the Fourth Amendment.
Here, the General Assembly did not express an intention to punish domestic-violence offenders when it amended
Because regulatory pretrial detention for forty-eight hours can, in appropriate circumstances, comport with the demands of substantive due process,
see County of Riverside,
500 U.S. at 56, 114 L. Ed. 2d at 63;
Salerno,
481 U.S. at 751, 95 L. Ed. 2d at 711, “we cannot categorically state” that the forty-eight-hour maximum pretrial detention authorized by
Defendant next contends that
In order to sustain the procedure contained in
In County of Riverside, the United States Supreme Court considered the constitutional claims of individuals who, unlike defendant here, were arrested without a warrant and, like defendant here, were detained for up to forty-eight hours before receiving a hearing of any kind. 500 U.S. at 48, 114 L. Ed. 2d at 57. The arrestees in County of Riverside appear to have argued, as defendant argues here, that legislation authorizing pretrial detention without providing an evidentiary hearing violates the protections afforded by the United States Constitution. Id. at 49, 114 L. Ed. 2d at 58. The Court contemplated these claims under the Fourth Amendment’s promptness requirement, but it ultimately reached the broad conclusion that “jurisdiction[s] that provide [] judicial [hearings] . . . within 48 hours of arrest will, as a general mаtter, ... be immune from systemic challenges” to the constitutionality of any prehearing detention. Id. at 56, 114 L. Ed. 2d at 63.
In his final facial challenge to
Contrary to defendant’s position, there are a number of circumstances under which the detention
Further,
We conclude that defendant has not satisfied his burden of “establish[ing] that no set of circumstances exists under which the [a]ct would be valid.” Salerno, 481 U.S. at 745, 95 L. Ed. 2d at 707.
We turn, then, to defendant’s contention that this statute was applied unconstitutionally in this case. The State argues, and the Court of Appeals held, that “defendant has waived any challenge to the constitutionality of the statute as applied to him” because “defendant’s assignments of error ... attack only the facial validity of the statute.” Thompson, 128 N.C. App. at 556, 496 S.E.2d at 602. We disagree. Defendant assigned as error “[t]he [superior] court’s conclusion of law that the bond statute is constitutional on the ground that the statute violates the double jeopardy clauses of the United States Constitution and North Carolina Constitution.” Defendant also assigned as error “[t]he [superior] court’s conclusion of law that the bond statute is constitutional on the ground that the statute violates the due process clauses of the United States Constitution and North Carolina Constitution.” Defendant further assigned as error “[t]he [superior] court’s conclusion of law that the bond statute does not violate any substantive law.” These assignments attack the broad conclusion by the Superior Court that
Defendant correctly recognizes that pretrial detеntion pursuant to
Defendant argues that the magistrate here unconstitutionally delayed the post-detention process to which he is entitled under the Due Process Clause of the Fifth Amendment. Defendant was arrested at 3:45 p.m. on a Saturday. The magistrate’s order of commitment did not authorize defendant’s release from jail for a bond hearing until 3:45 p.m. the following Monday. Defendant was not brought before a judge upon the opening of court on Monday morning. He, instead,
This Court may take judicial nоtice of the public records of other courts within the state judicial system.
Alpine Motors Corp. v. Hagwood,
233 N.C. 57, 62 S.E.2d 518 (1950). We accordingly take judicial notice of the following facts established by the public records contained in the office of the Clerk of Superior Court, Durham County. Two sessions of District Court convened in Durham County at or about 9:00 a.m. on 30 October 1995, the date in question: a session of District Criminal Court with Judge Carolyn Johnson presiding, and a session of District Traffic Court with Chief Judge Kenneth Titus presiding. Two sessions of Superior Criminal Court also commenced in Durham County on that date: one with Judge Robert L. Farmer presiding, and one with Judge A. Leon Stanback, Jr., presiding. The records do not reveal the starting time for the Superior Court sessions. We can, however, take judicial notice of matters of common and general knowledge.
Hughes v. Vestal,
264 N.C. 500, 506, 142 S.E.2d 361, 366 (1965);
Dowdy v. Southern Ry. Co.,
237 N.C. 519, 526,
75 S.E.2d 639, 644 (1953). We accordingly take judicial notice of the commonly known fact that our superior courts generally convene for the conduct of business somewhere in the 9:00-10:00 a.m. range. It is thus clear that at least two District Court judges were available early on Monday, 30 October 1995, to conduct defendant’s bond hearing, and it is probable that two Superior Court judges were available. Under these discrete facts, we agree with defendant that the magistrate’s order automatically detaining him without a hearing until well into the afternoon, while available judges spent several hours conducting other business, violated his procedural due process rights to a timely pretrial-release hearing under N.C.G.S:
As discussed above, procedural due process “imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews, 424 U.S. at 332, 47 L. Ed. 2d at 31. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965). “ ‘Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances.’ ” Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 1236 (1961) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162-63, 95 L. Ed. 817, 849 (1951) (Frankfurter, J., concurring)). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 494 (1972). Accordingly, resolution of whether the statutory procedures as implemented here are constitutionally sufficient requires analysis of the particular circumstances of the case.
In deciding whether the challenged delay in judicial review of defendant’s pretrial detention satisfies the flexible demands of procedural due process, we must examine both the private and governmental interests affected. Mathews, 424 U.S. at 334, 47 L. Ed. 2d at 33. The United States Supreme Court has articulated the following factors to be considered when a statute is challenged as unconstitutional as applied under principles of procedural due process:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335, 47 L. Ed. 2d at 33. More recently, the Court slightly reformulated these factors for use in assessing the permissibility of post-deprivation process delay such as that at issue here. It stated:
In determining how long a delay is justified in affording a post-[deprivation] hearingand decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken.
FDIC v. Mallen, 486 U.S. 230, 242, 100 L. Ed. 2d 265, 279 (1988). The Fourth Circuit has explained this reformulation as follows:
Presumably, this refinement was undertaken out of recognition of the awkwardness of a literal application оf the Mathews factors in this context. Where the question is not whether there will be post-deprivation review, but the timeliness of such review, it is not meaningful to inquire, as it is in the typical procedural due process context, whether the procedure sought — sooner review — would reduce the likelihood of an erroneous deprivation. The deprivation has already occurred, it is understood that there will be judicial review, and the deprivation, even if in error, cannot be “undone” by sooner judicial review. At most, the risk of an extended erroneous deprivation could be reduced. The more relevant questions therefore are the harm to the private interests that will be occasioned by the delay in review and the state’s justifications for the delay.
Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir. 1994) (citation omitted).
In considering the first factor articulated in both Mathews and FDIC, it is beyond question that the private interest at stake, liberty, is a fundamental right. “Th[e] traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” Stack v. Boyle, 342 U.S. 1, 4, 96 L. Ed. 3, 6 (1951). The right to freedom prior to trial is reflected in the “principle that there is a presumption of innocence in favor of the accused [which] is the undoubted law, axiomatic and elementary, and ... lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 39 L. Ed. 481, 491 (1895).
Delay in post-deprivation judicial review under
Having recognized the importance of defendant’s interest in liberty prior to trial as well as the potential harm caused by delay in providing post-detention proceedings, we consider “the justification offered by the Government for delay [in providing post-deprivation proceedings] and its relation to the underlying governmental interest.”
FDIC,
486 U.S. at 242, 100 L. Ed. 2d at 279. Defendant’s private interests in liberty are not without public counterpart. The State has a legitimate interest in providing that a legally trained judge perform individualized determinations of bail and set conditions of release in domestic-violencе cases. The State, however, also claims a corollary interest in detaining a domestic-violence arrestee while securing a judge to perform this function. The State argues that this legitimate interest justifies a forty-eight-hour delay in providing post-deprivation proceedings to a domestic-violence offender, even when a judge becomes available to conduct such hearing prior to the expiration of the forty-eight hours. This argument is untenable. Here, once a judge became available to conduct a post-detention hearing on Monday morning, further delay in providing this hearing did not serve any underlying interest of the State. All such interests had been served in full. Judicial review of pretrial detention may not be delayed unreasonably without running afoul of
The State suggests a second justification for an automatic forty-eight-hour delay in bringing a domestic-violence arrestee before an
available judge for a pretrial-release hearing. It contends that this delayed hearing is justified to allow the arrestee to “cool off.” In this manner, the State argues, as stated by the Court of Appeals, “
This “cooling off’ justification for detaining a domestic-violence arrestee beyond the time at which a judge is available to consider the conditions of that arrestee’s pretrial release has no relationship to the State’s interest in having a judge, rather than a magistrate, conduct domestic-violence, pretrial-release hearings under
Eliminating unnecessary delay in bringing a domestic-violence arrestee before a judge for a hearing to determine bail and conditions of pretrial release benefits domestic-violence arrestees at minimal or no cost to the State. See Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33 (stating that considering whether a statute violates procedural due process as applied requires that a court consider “the probable value, if any, of additional or substitute procedural safeguards”). Here, for example, a prompt hearing before the first available judge would likely have prevented several hours of unnecessary governmental deprivation of defendant’s liberty as well as the potential harm incident to that deprivation. When defendant ultimately received a pretrial-release hearing before a judge, he wаs promptly released upon a secured bond. This suggests that if he had received this hearing earlier, he would have been released earlier.
Further, providing a domestic-violence arrestee with a pretrial-release hearing before the first available judge, rather than delaying the hearing until the outer limits of the forty-eight-hour prehearing detention limitation under
We now consider the final FDIC factor: “the likelihood that the interim decision [to detain defendant] may have been mistaken.” FDIC, 486 U.S. at 242, 100 L. Ed. 2d at 279. A first magistrate determined that there was probable cause to arrest defendant on a domestic-violence charge based upon the allegations of one individual. A second magistrate ordered defendant detained based solely upon that probable-cause determination. When his case came to trial, defendant pled not guilty and asserted that he did not commit a crime of domestic violence. There is no record evidence establishing definitively whether detention was warranted.
Even assuming that defendant committed the thrеe misdemeanor offenses with which he was charged, defendant might have “irretrievably suffered] the full penalty” for two of those offenses prior to a hearing before a
Having considered the factors articulated in
FDIC
and
Mathews,
we conclude that the application of
Having determined that
Accordingly, we reverse the decision of the Court of Appeals and remand the case to that court for further remand to the Superior Court, Durham County, for the entry of an order of dismissal.
REVERSED AND REMANDED.