All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.
History Note. - The provisions of this section are similar to those of Art. I, § 35, Const. 1868.
Legal Periodicals. - For comment on unborn child being a person within the meaning of this section, see 28 N.C.L. Rev. 245 (1950).
For note on criminal defendants' rights during sentencing, see 50 N.C.L. Rev. 925 (1977).
For survey of 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).
For note, "Wilder v. Amatex Corp.: A First Step Toward Ameliorating the Effect of Statutes of Repose on Plaintiffs with Delayed Manifestation Diseases," see 64 N.C.L. Rev. 416 (1986).
For note on the six year statutory bar to products liability actions, in light of Tetterton v. Long Manufacturing Co., 314 N.C. 44, 332 S.E.2d 67 (1985), see 64 N.C.L. Rev. 1157 (1986).
For article, "The American Medical Association vs. The American Tort System," see 8 Campbell L. Rev. 241 (1986).
For comment on tort reform, see 10 Campbell L. Rev. 439 (1988).
For article, "North Carolina Employment Law After Coman: Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).
For note, "The North Carolina Supreme Court Engages in Stealthy Judicial Legislation: Doe v. Holt," see 71 N.C.L. Rev. 1227 (1993).
For note, "Rule 9(j) - Is Requiring a Plaintiff in a Medical Malpractice Action to Certify His or Her Claim Before Filing Unconstitutional? - The Issue in Anderson v. Assimos," see 25 Campbell L. Rev. 219 (2003).
For note, "The Constitutional Floor Doctrine and the Right to a Speedy Trial," see 26 Campbell L. Rev. 101 (2004).
For article, "The Rising Tide of North Carolina Constitutional Protection in the New Millenium," see 27 Campbell L. Rev. 223 (2005).
For article, "The Past is Never Dead: Magna Carta in North Carolina," see 94 N.C.L. Rev. 1635 (2016).
I. General Consideration.
II. Access to the Courts.
III. Public Trials.
IV. Delay, Generally.
V. Speedy Criminal Trials.
I. GENERAL CONSIDERATION.
Editor's Note. - Some of the cases cited below were decided under former Art. I, § 35, Const. 1868.
Notice and an opportunity to be heard prior to depriving a person of his property are essential elements of due process of law which are guaranteed by U.S. Const., Amend. XIV and this section. State v. Cox, 90 N.C. App. 742, 370 S.E.2d 260 (1988).
Presumption That Proceedings Be Open. - The framers' use of the imperative word "shall" places constitutional limits on a court's discretion in exercising control of its proceedings and creates a strong presumption that court proceedings be open to the litigants and the public; however, there are some circumstances when a court may close proceedings and seal court records. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).
Punitive Damages Cap. - G.S. § 1D-25, which places a cap on punitive damages, is not unconstitutional under the open courts provision, because it does not limit the recovery of actual damages. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).
Because the Open Courts Clause of N.C. Const., Art. I, § 18 does not prevent the General Assembly from abolishing the recovery of punitive damages altogether, it follows that G.S. § 1D-25, which limits the awards of punitive damages, does not violate the Open Courts Clause. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).
Waiver of Rights. - While every reasonable presumption will be indulged against a waiver of fundamental constitutional rights by a defendant in a criminal prosecution, a defendant may waive the benefit of constitutional guarantees by express consent, by failure to assert them in apt time, or by conduct inconsistent with a purpose to insist upon them. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).
Right to Present A Defense. - Trial court erred by excluding the testimony of three character witnesses pertaining to the victim's past specific instances of violent conduct because the testimony was permitted under this section as defendant claimed he acted in self-defense, and the exclusion of the evidence denied defendant his constitutional right to present a complete defense. State v. Bass, - N.C. App. - , - S.E.2d - (June 6, 2017).
There is no constitutional impediment to arbitration agreements. Miller v. Two State Constr. Co., 118 N.C. App. 412, 455 S.E.2d 678 (1995).
Waiver by Arbitration. - An agreement to arbitrate a dispute is not an unenforceable contract requiring waiver of a jury; thus, the trial court erred in concluding that because arbitration provision did not provide for trial of facts by a jury that it was unconscionable and unenforceable under G.S. § 22B-10, and in violation of N.C. Const., Art. I, §§ 18 and 25. Miller v. Two State Constr. Co., 118 N.C. App. 412, 455 S.E.2d 678 (1995).
Indictment, Arraignment and Trial on Same Day. - Defendant's indictment, arraignment, and trial on the same day on a burglary charge was not such a flagrant violation of his due process rights that the court was required to dismiss the burglary indictment, since defendant, by not contesting indictments for armed robbery, larceny, and rape, conceded that he had been given sufficient time in which to prepare a defense on such charges; the burglary indictment arose out of the same series of events which led to the three other indictments; the offenses took place at such close proximity in time that any defense which counsel might have prepared to the charge of burglary could not have significantly differed from the defenses he prepared to the charges of larceny, armed robbery, and rape; and any proof of the nonexistence of the essential elements of burglary would necessarily be included in defendant's defense on the other charges in this case, because for each charge defendant would seek to disprove the State's evidence of the sequence of events leading up to the charge, which facts also supported the burglary indictment. State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980).
Foreclosure of Mortgages. - This section is not violated by G.S. § 45-21.34 and G.S. § 45-21.35, regulating the sale of real property upon the foreclosure of mortgages or deeds of trust. Woltz v. Asheville Safe Deposit Co., 206 N.C. 239, 173 S.E. 587 (1934).
G.S. § 45-21.36 is constitutional and valid, since it recognizes the obligation of the debtor to pay his debt and the right of the creditor to enforce payment by action in accordance with the terms of the agreement, but provides merely for judicial supervision of sales under power to the end that the price bid at the sale shall not be conclusive as to the value of the property, and that the creditor may not recover any deficiency after applying the purchase price to the notes without first accounting for the fair value of the property in accordance with well-settled principles of equity. Richmond Mtg. & Loan Corp. v. Wachovia Bank & Trust Co., 210 N.C. 29, 185 S.E. 482 (1936), aff'd, 300 U.S. 124, 57 S. Ct. 338, 81 L. Ed. 552 (1937).
The establishment of a cartway involves the taking of private property by eminent domain, and land therefor may not be taken without giving the owner notice and an opportunity to be heard, with right of appeal according to the due course of the law. Waldroup v. Ferguson, 213 N.C. 198, 195 S.E. 615 (1938).
The rights of the appellee would be protected when the appellant failed to print the record as required, and his motion to reinstate the case, after dismissal, came too late. Cowan v. Layburn, 116 N.C. 526, 21 S.E. 175 (1895).
Offenses Against Judicial System. - A person who commits an act of embracery is liable in civil damages to one who is damaged thereby. Employers Ins. v. Hall, 49 N.C. App. 179, 270 S.E.2d 617 (1980), cert. denied, 301 N.C. 720, 276 S.E.2d 283 (1981).
Not Applicable to Undergraduate Court. - Undergraduate Court's powers are not derivative of the North Carolina judiciary system nor are they limited by the safeguards protecting a citizen in the state court system; thus, the undergraduate court could not be categorized as a "court" and the proceedings are not required to be open to the public. DTH Publishing Corp. v. University of N.C. 128 N.C. App. 534, 496 S.E.2d 8 (1998), cert. denied, 348 N.C. 496, 510 S.E.2d 382 (1998).
Use of Closed Circuit Television Held Adequate to Allow Defendant to Confront Child Victim. - Where, in prosecution for taking indecent liberties with a four-year-old child, during voir dire hearing as to victim's competency as a witness, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination, the exclusion of defendant did not violate N.C. Const., Art. I, § 18, 19 or 23, as the trial court's use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim's testimony were sufficient to permit defendant to hear the evidence and to refute it. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).
Failure to Intervene Ex Mero Motu. - Defendant's rights to due process and a fair trial under N.C. Const., Art. I, §§ 18, 19, 23, 24, and 27 were not violated by the trial court's failure to intervene ex mero motu in the prosecutor's closing argument, as while comparisons between criminal defendants and animals were strongly disfavored, the state's use of an analogy to animals in packs helped explain the complex legal theory surrounding premeditation and deliberation. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476 (2011), review denied 365 N.C. 197, 709 S.E.2d 920, 2011 N.C. LEXIS 534 (N.C. 2011), dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (N.C. 2011).
Prosecutor's Conflict of Interest. - A prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists. In this context, an "actual conflict of interests" is demonstrated where a district attorney or a member of his or her staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant's detriment at trial. Any order of disqualification ordinarily should be directed only to individual prosecutors who have been exposed to such information. State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991).
District Attorney's Abuse of Calendaring Authority Unconstitutional. - Where the district attorney placed a large number of cases on the printed trial calendar knowing that all of the cases would not be called, thereby providing defendants virtually no notice of which cases were actually going to be called for trial, a tactic often employed by the district attorney in an attempt to surprise criminal defense counsel, the allegations were sufficient to state a claim that the statutes which grant the district attorney calendaring authority were being applied in an unconstitutional manner in the Fourteenth Prosecutorial District. Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).
Jury Conversations. - Where the record established that the substance of a conversation between a juror and the court related to the juror's having "overheard something about the case," where the court excused the juror, and to insure that "no one should be suspicious" about his ability to be fair and impartial, this juror was removed from the case prior to deliberations, and where no other juror indicated that he or she had overheard anything about the case, the conversation between the court and the juror could not have influenced the verdict. State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993).
Jury Instruction. - Pattern jury instruction used by trial court was internally consistent and meaningful, and did not misuse the term "extenuating," nor define the term "mitigating circumstance" in such a way as to confuse jurors or violate the defendant's due process and fundamental fairness rights. State v. Peterson, 350 N.C. 518, 516 S.E.2d 131 (1999), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181, 145 L. Ed. 2d 1087 (2000).
Applied in In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976); Petrou v. Hale, 43 N.C. App. 655, 260 S.E.2d 130 (1979); Dixon v. Peters, 63 N.C. App. 592, 306 S.E.2d 477 (1983); Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985); Teleflex Info. Sys. v. Arnold, 132 N.C. App. 689, 513 S.E.2d 85 (1999); Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36, 606 S.E.2d 734 (2005); State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010).
Cited in State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009).
II. ACCESS TO THE COURTS.
This section guarantees access to the courts for redress of injuries. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), aff'd, 306 N.C. 364, 293 S.E.2d 415 (1982).
This section guarantees to those who suffer injury to their persons, property or reputation, the right to seek redress therefor in the courts of this State; any law which attempts to deny that right runs afoul of this guarantee. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), aff'd, 306 N.C. 364, 293 S.E.2d 415 (1982).
As to the scope and effect of this section, see also Pentuff v. Park, 194 N.C. 146, 138 S.E. 616, 53 A.L.R. 626 (1927).
No Denial of Access Where Plaintiff Chooses Federal Forum First. - Open Courts clause in N.C. Const., Art. I, § 18, was not violated by the dismissal of the pharmacist's claim under the Persons with Disabilities Protection Act because the pharmacist was not denied access to nor barred from the state courts, but elected to commence federal administrative proceedings, thereby voluntarily surrendering the right to a remedy in state court. Bowling v. Margaret R. Pardee Mem'l Hosp., 179 N.C. App. 815, 635 S.E.2d 624 (2006), appeal dismissed, cert. denied, 361 N.C. 425, 648 S.E.2d 206 (2007).
Remedy Must Be Legally Cognizable. - The "remedy" constitutionally guaranteed "for an injury done" is qualified by the words "by due course of law." This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).
Common-Law Claims. - This section guarantees access to the courts to those who have claims, but it does not in all cases forbid the General Assembly from defining or abolishing claims which arise under the common law. Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982), judgment modified on other grounds, 308 N.C. 419, 302 S.E.2d 868 (1983).
Relation to Declaratory Judgment Actions. - Although the North Carolina Uniform Declaratory Judgment Act, G.S. § 1-253 to § 1-267, empowers a trial court to decline a request for declaratory relief under certain circumstances, G.S. § 1-257 should not be applied to thwart a properly presented constitutional challenge; the North Carolina courts are obligated to protect fundamental rights when those rights are threatened, and to that end, every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law. Therefore, where it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees, and where a statutory provision is specifically challenged by a person directly affected by it, declaratory relief as to the constitutional validity of that provision is appropriate; in other words, when the requested declaration satisfies the recognized criteria, the trial court has no discretion to decline the request. Augur v. Augur, 356 N.C. 582, 573 S.E.2d 125 (2002).
Hindrance of Others' Rights Not Justified. - The salutary principle set forth in this section does not justify the use of the courts for the assertion of fanciful rights or complaints based upon imaginary wrongs to hinder or delay others in the enjoyment of rights founded upon the law and in accord with justice and fair dealing among men. Carson v. Fleming, 188 N.C. 600, 125 S.E. 259 (1924).
Statute of Repose. - G.S. § 1-52(16)'s statute of repose is likely unconstitutional as applied to cancer under the North Carolina's constitutional right to open courts; thus, interpreting G.S. § 1-52(16)'s statute of repose to exclude latent diseases saves the statute from "grave doubts" regarding its constitutionality. Jones v. United States, - F. Supp. 2d - (E.D.N.C. Nov. 9, 2010).
Statutes of Limitations. - G.S. § 1-50 does not violate the "open courts" provision of the North Carolina Constitution. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).
G.S. § 1-50(5) (now G.S. § 1-50(a)(5)) and G.S. § 1-15(c) are not unconstitutional as being violative of the open courts provision of the North Carolina Constitution and the equal protection clauses of the State and federal Constitutions. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).
G.S. § 1-75.12 Does Not Deny Litigants Access to North Carolina Courts. - G.S. § 1-75.12, which gives the trial court the power to enter a stay pending final disposition of another similar action litigated in another court, does not deny litigants access to North Carolina courts in violation of this section, but merely postpones litigation here pending the resolution of the same matter in another sovereign court. Home Indem. Co. v. Hoechst-Celanese Corp., 99 N.C. App. 322, 393 S.E.2d 118 (1990).
Trial court's application of G.S. § 1-75.12 did not violate the "open courts" provision contained in this section. Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 435 S.E.2d 571 (1993).
Jurisdiction over Justiciable Matters of Civil Nature. - Except for areas specifically placing jurisdiction elsewhere (such as claims under the Workers' Compensation Act), the trial courts of North Carolina have subject matter jurisdiction over all justiciable matters of a civil nature. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987).
Error In Dismissing Case For Lack Of Subject Matter Jurisdiction. - Business court erred in dismissing a cable company's case against a town for lack of subject matter jurisdiction because there existed a justiciable controversy; the controversy arose from the parties' failure to reach an agreement regarding pole attachment rates within 90 days, and that failure violated the company's right to establish just, reasonable, and nondiscriminatory pole attachment rates within 90 days of a request to negotiate under the Public Utilities Act. Time Warner Entm't Advance/Newhouse P'ship v. Town of Landis, 228 N.C. App. 510, 747 S.E.2d 610 (2013).
Contract dispute between the parties constituted a "justiciable matter" that was "cognizable" in North Carolina trial courts; therefore, the trial judge's determination that there was no subject matter jurisdiction was in error. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987).
Sealing of Peer Review Materials. - The qualified constitutional right on the part of the public to attend civil court proceedings did not preclude the trial court, under the facts presented, from giving effect to the protections of G.S. § 131E-95 by sealing peer review materials and closing court proceedings concerning those materials. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999).
Sealing of Search Warrants. - Press was not entitled to unseal three search warrants related to a homicide investigation where release of the information would have undermined the ongoing investigation because the press's qualified right of access was outweighed by the compelling, countervailing governmental interests in prosecuting the defendant, protecting the defendant's right to a fair trial, and preserving the integrity of the ongoing or future investigation. In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010).
In Forma Pauperis Proceedings. - N.C. Const., Art. I, § 18 provides for open courts and G.S. § 1-110 furthers the right by allowing access "to sue" in North Carolina's courts, notwithstanding a party's inability to advance court costs; however, the legislature's use of the words "to sue" and "advance" in G.S. § 1-110 clearly indicate its intent that a motion to proceed in forma pauperis should be filed in "advance" of filing suit. Griffis v. Lazarovich, 164 N.C. App. 329, 595 S.E.2d 797 (2004).
Standing. - Allegations and evidence presented by the neighbors in regards to the increased traffic, increased water runoff, parking, and safety concerns, as well as the secondary adverse effects on the neighbors' businesses, were sufficient special damages to give standing to the neighbors to challenge, pursuant to G.S. § 160A-388(e2), the issuance of a special use permit for the opening of an adult establishment. Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 669 S.E.2d 279 (2008).
Standing to Challenge Transfers from Highway Trust Fund. - Taxpayers had standing to challenge unlawful or unconstitutional government expenditures and were entitled to seek a declaratory judgment; a trial court erred in dismissing taxpayers' suit, on behalf of themselves and others similarly situated, which challenged money transfers from the North Carolina Highway Trust Fund to the general fund. Goldston v. State, 361 N.C. 26, 637 S.E.2d 876 (2006).
Standing to Bring Antitrust and Consumer Fraud Action. - Trial court erred in dismissing a consumer's action against manufacturers under N.C. G.S. § 75-1 and G.S. § 75-1.1 pursuant to G.S. § 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing because the consumer had standing to bring the antitrust and consumer fraud action; if the consumer could demonstrate that the increased ethylene propylene diene monomor elastomers prices affected the price of the goods he purchased, then he would have established the type of injury to indirect purchasers that the General Assembly intended to remedy by allowing indirect purchaser suits. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).
Supplementation of the Record. - Trial court did not abuse its discretion in denying a neighbor's motion to supplement the record to include affidavits by the neighbor and a real estate appraiser addressing the issue of standing, when the neighbor challenged a design application for a house that was submitted by landowners in a historic district, because the affidavits which the neighbor proffered as supplements added very little new substantive information to the already voluminous record and would not have provided a basis for standing. Cherry v. Wiesner, - N.C. App. - , 781 S.E.2d 871 (2016), review denied, 792 S.E.2d 779, 2016 N.C. LEXIS 674 (2016).
III. PUBLIC TRIALS.
The public, and especially the parties, are entitled to see and hear what goes on in the court. That the courts are open is one of the sources of their greatest strength. In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).
A criminal defendant also has the right to a public trial, a right guaranteed by this section and U.S. Const., Amends. VI and XIV. The public, and especially the parties are entitled to see and hear what goes on in the courts. State v. Callahan, 102 N.C. App. 344, 401 S.E.2d 793 (1991).
In a court proceeding, all parties are entitled to be present at all stages so that they may hear the evidence and have an opportunity to refute it if they can. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782 (1957); Cook v. Cook, 5 N.C. App. 652, 169 S.E.2d 29 (1969).
Judge's announcement of his ruling in open court could not reasonably be characterized as a hearing, much less one at which defendant's presence was required, where judge simply took a final step in the process of deciding whether to release any part of defendant's prison records to the prosecution and announced his decision from the bench. State v. Rich, 346 N.C. 50, 484 S.E.2d 394 (1997), cert. denied, 522 U.S. 1002, 118 S. Ct. 573, 139 L. Ed. 2d 412 (1997).
The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court. In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).
In every criminal prosecution it is the right of the accused to be present throughout the trial, unless he waives the right. And in capital trials such rights cannot be waived by the prisoner. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1963), commented on in 41 N.C.L. Rev. 260.
Judge's Ex Parte Communications with Jury Before Verdict. - Where, during the course of the trial, the presiding trial judge engaged in an ex parte communication with the jury, and prior to reconvening court, the judge entered the jury room where the jurors had gathered and was alone with the jurors, this conduct on the part of the presiding judge violated the defendant's rights under N.C. Const., Art. I, § 23 and this section, and U.S. Const., Amends. VI and XIV. State v. Callahan, 102 N.C. App. 344, 401 S.E.2d 793 (1991).
The trial court's ex parte in camera hearing in which the trial court excluded both defendant and defense counsel in order to consider a motion concerning the identity of the State's confidential informant was improper and violated his constitutional right to an open court and public trial where the trial court excluded defendant and his counsel from the hearing on defendant's motion without hearing evidence and finding facts as to the necessity for their exclusion and without affording him the right to offer evidence in support of his motion. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52 (2000).
Clearing Courtroom During Testimony of Child Rape Victim. - In a prosecution for first-degree rape of a child, the constitutional right of defendant to a public trial was not violated by the court's order, entered pursuant to G.S. § 15-166, that during the testimony of the seven-year-old victim the courtroom would be cleared of all persons except defendant, defendant's family, defense counsel, defense witnesses, the prosecutor, the State's witnesses, officers of the court, members of the jury and members of the victim's family. State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981).
Questioning of Child in Custody Proceeding. - Without doubt the court may question a child in open court in a custody proceeding, but it can do so privately only by consent of the parties. Cook v. Cook, 5 N.C. App. 652, 169 S.E.2d 29 (1969).
In a proceeding for the custody of a minor child, where the judge conferred with the minor in chambers in the absence of counsel and the parties, the judgment would be reversed and the cause sent back for rehearing upon objection duly entered by petitioner, the record failing to show consent or waiver of his constitutional right. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782 (1957).
Provision in Separation Agreement Requiring Closed Hearings. - Separation agreement that required sealed court files and closed hearings on disputes over the separation to protect privacy for personal and financial affairs of the children violated the public policies of open judicial proceedings in N.C. Const., Art. I, § 18 and open court records in the State's Public Records Act, G.S. § 132-1. France v. France, 209 N.C. App. 406, 705 S.E.2d 399 (2011).
Civil Commitment Proceedings. - This section does not create a constitutional right on the part of the press and public to attend civil commitment proceedings. WSOC Television, Inc. v. State ex rel. Att'y Gen., 107 N.C. App. 448, 420 S.E.2d 682, cert. denied, 333 N.C. 168, 424 S.E.2d 905 (1992).
Exclusion of Former Attorney Not Warranted. - In a special proceeding initiated by plaintiffs for the partition of certain land held as a tenancy in common, plaintiffs' former attorney was not subject to being excluded from the courtroom merely because he filed a pleading adverse to plaintiffs' interest after they had terminated his services, especially in light of the fact that the record affirmatively disclosed that he did not represent anyone or take part in or affect the trial in any way. Ingram v. Craven, 68 N.C. App. 502, 315 S.E.2d 364 (1984).
Judge's Warning to Restrict Public Egress Was Proper. - Where trial judge informed those in the courtroom that he was concerned that the jury would be distracted by movement of spectators in and out of the room, and where he consequently warned them that if they wished to leave the courtroom, they should do so immediately, for they would not be allowed to do so after closing arguments began, barring an emergency, the order was not a denial of a public trial in violation of this section since the judge did not vacate the courtroom nor bar the courtroom door without due warning to those within and without, and since the judge was authorized under G.S. § 15A-1034(a) to impose reasonable limitations on access to the courtroom. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).
Removal of Spectators From Courtroom Was Justified. - Trial judge did not err in removing four spectators from the courtroom, where the evidence showed, inter alia, that the spectators were talking in the courtroom, in violation of the judge's pretrial order. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009).
IV. DELAY, GENERALLY.
The creation of inferior courts by the legislature has been useful in the administration of justice without "delay" in accordance with this section. Albertson v. Albertson, 207 N.C. 547, 178 S.E. 352 (1935).
A motion for a continuance is addressed to the discretion of the trial judge to be determined by him upon the facts in the exercise of his duty to administer right and justice without sale, denial, or delay. State v. Godwin, 216 N.C. 49, 3 S.E.2d 347 (1939).
Delay Caused by Irregular Pleading. - Under the provisions of this section an adversary party ought not to be delayed in the final adjudication of the controversy by the fact that the exceptions taken by the opposite party are so drawn as to take two chances, first of a favorable decision by the court, and then of a finding in his favor by the jury. Nor ought he to be delayed because the demand for a jury trial fails to point out the precise issue as to which testimony must be offered. Keystone Driller Co. v. Worth, 118 N.C. 746, 24 S.E. 517 (1896).
Disregarding Attempted Appeal from Nonappealable Order. - In order to promote the principle set forth in this section, courts may disregard an attempted appeal from a nonappealable interlocutory order and proceed with trial to avoid delay. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).
The denial of a motion for judgment on the pleadings is not immediately appealable, since otherwise a litigant could delay the administration of justice in contravention of this section. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952).
Delay Not Wilful. - There was no showing that the prosecution wilfully or through neglect or for improper purposes delayed defendant's trial where the delay was due largely to the operation of neutral factors and not to any malevolent intent on the part of the prosecution. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).
Delay Not Found. - Plaintiff offered no evidence to support the claim that the dual role served by the Attorney General's Office both in representing defendant institution and being legal advisor to State Personnel Commission caused actual bias or unfair prejudice to plaintiff, nor that it created any delay in the disposition of her claims. Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 468 S.E.2d 557 (1996).
V. SPEEDY CRIMINAL TRIALS.
Right to Speedy Trial. - Every person formally accused of crime is guaranteed a speedy and impartial trial by this section and U.S. Const., Amend. VI and XIV. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Prisoners confined for unrelated crimes are entitled to the benefits of the constitutional guaranty of a speedy and impartial trial. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Because the record was unclear on what happened in the trial court between November 13, 2006 and August 26, 2008, the delay was sufficient to warrant an evidentiary hearing on the issue of defendant's right to a speedy trial. State v. Clark, 201 N.C. App. 319, 689 S.E.2d 553 (2009).
The constitutional guarantee of a speedy trial does not outlaw good faith delays which are reasonably necessary for the State to prepare and present its case. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Time Period Involved in Right to Speedy Trial. - The right to a speedy trial pertains to the time period between the date of the occurrence of the alleged crime and the date when a defendant is "accused" of committing that crime, and an individual becomes "accused" of a crime for the purpose of calculating the length of this delay when he is either arrested or indicted. State v. Salem, 50 N.C. App. 419, 274 S.E.2d 501, cert. denied, 302 N.C. 401, 279 S.E.2d 355 (1981).
Unless some fixed time limit is prescribed by statute, speedy trial questions must be resolved on a case-by-case basis. While all relevant circumstances must be considered, four interrelated factors are of primary significance: (1) the length of delay, (2) the reason for the delay, (3) the extent to which defendant has asserted his right and (4) the extent to which defendant has been prejudiced. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978); State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).
Undue delay which is arbitrary and oppressive or the result of deliberate prosecution efforts to hamper the defense violates the constitutional right to a speedy trial. State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).
Defendant Causing Delay Not Denied Speedy Trial. - A criminal defendant who has caused or acquiesced in a delay will not be permitted to use it as a vehicle in which to escape justice. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Right Must Be Asserted. - Failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Defendant's failure to assert her speedy trial right sooner in the process did not foreclose her speedy trial claim, but it did weigh somewhat against her contention that she had been unconstitutionally denied a speedy trial. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).
Burden on Defendant. - The length of a delay is not determinative of whether a violation has occurred; the issue must be resolved on the facts of each case, and the defendant has the burden of establishing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).
Defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he is being deprived of such right. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).
Defendant was not deprived of his constitutional right to a speedy trial as guaranteed by this section, since delay of two and one-half years was not inordinate, State had a legitimate reason for its delay and defendant showed no prejudice resulting from the delay. State v. Avery, 95 N.C. App. 572, 383 S.E.2d 224 (1989), appeal dismissed and cert. denied, 326 N.C. 51, 389 S.E.2d 96 (1990).
Defendant was not denied his constitutional right to a speedy trial, where delay was not the result of prosecutorial willfulness or neglect, and where defendant did not assert his right to a speedy trial until three years after his arrest and failed to show that he was prejudiced by the delay. State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73 (1999).
Trial court properly denied defendant's motion to dismiss on the grounds that the State violated his constitutional right to a speedy trial where he failed to show that the delay of his second trial was due to the neglect or willfulness of the prosecution, where he failed to assert his right in the five-year interval, and where his claim that the delay resulted in his inability to locate key witnesses was undermined by his failure to call all his witnesses in the first trial. State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999).
The defendant's right to a speedy trial was not violated, although the length of delay from indictment to trial, was 3 years and 326 days, where: the delay resulted not from willful misconduct but from the appointment of substitute defense counsel and changes in prosecutors; the State only refused to comply with discovery requests by defendant when these concerned evidence or information to which he was not statutorily entitled; and defendant's continual refusal to cooperate in the preparation of his defense resulted in the withdrawal of counsel nearly two years after the indictment. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).
The defendant, whose trial was delayed approximately four and a half years, was not denied his constitutional right under this section where: the local docket was congested with capital cases; the prosecutor's decisions pertaining to scheduling and trial order were not based upon unconstitutional factors, rather the delay was due to neutral factors; the defendant's actions were not consistent with a desire for speedy trial; and although the investigator had died, the State presented other investigators who testified to the same events and observations sought by defendant, and gave the defendant the opportunity to impress upon the jury the absence of the detective best able to testify as to certain events and observations. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).
Defendant was not denied the right to a speedy trial on a rape conviction, as defendant's excessive post-accusation incarceration before trial was outweighed by defendant's inability to prove neglect or willfulness by the prosecutor combined with a lack of allegation or proof of prejudice. State v. Strickland, 153 N.C. App. 581, 570 S.E.2d 898 (2002), cert. denied, 357 N.C. 65, - S.E.2d - (2003), cert. dismissed, - N.C. - , 602 S.E.2d 679 (2004).
Appellate court did not err in affirming the trial court's denial of defendant's motion to dismiss arguing his speedy trial right was violated as application of the four-factor Barker test did not show that the four-year delay between defendant's indictment for the killing of another man and his plea bargain to second-degree murder right before trial was the result of the State's inaction or unreasonableness; rather, the evidence showed that the trial court had a crowded docket regarding murder charges and that defendant was not prejudice by the delay, and thus, denial of the motion to dismiss was not error. State v. Spivey, 357 N.C. 114, 579 S.E.2d 251 (2003).
There was no error in denying defendant's motion to dismiss because defendant's constitutional right to a speedy trial was not violated even though almost two years passed between the date of the offenses and trial; defendant failed to demonstrate actual or substantial prejudice resulting from the delay as he alleged only anxiety and concern, and also failed to meet his burden of showing that the reason for the delay was the neglect or willfulness of the prosecution. State v. Doisey, 162 N.C. App. 447, 590 S.E.2d 886 (2004).
Trial court properly denied defendant's motion to dismiss for denial of a speedy trial, pursuant to his rights under U.S. Const., Amend. VI and N.C. Const., Art. I, § 18, as the 20-month delay was presumptively prejudicial and defendant had asserted his right to a speedy trial, but the reason was attributable to the trial court's case load, which was not due to neglect or willfulness by the State, and to the multiple continuances granted to defendant, and he failed to show that he was prejudiced thereby. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97 (2005), cert. denied, 360 N.C. 69, 623 S.E.2d 775 (2005).
Defendant's constitutional right to a speedy trial under N.C. Const., Art. I, § 18 and U.S. Const., Amend. VI was not violated because, although a delay of three years and seven months from arrest to trial was exceptionally long, defendant's right to a speedy trial was not impaired as defendant demonstrated no prejudice whatsoever from the delay and he was not incarcerated during the delay; indeed, he moved to another state during the delay. State v. McBride, 187 N.C. App. 496, 653 S.E.2d 218 (2007).
Defendant failed to demonstrate that the dismissal of the driving while impaired charge and subsequent refiling violated his due process or speedy trial rights, because defendant did not assert the right until his appeal from the district court to the superior court and the reasons for the delay were attributable as much to defendant as to the State. State v. Friend, 219 N.C. App. 338, 724 S.E.2d 85 (2012).
Defendant failed to show a violation of defendant's constitutional right to a speedy trial under N.C. Const. art. I, § 18 because, although the nearly three and one-half year delay between defendant's indictment and his trial was long and defendant's prolonged pre-trial incarceration necessarily caused him hardship, the delay was not caused by the prosecution's neglect or willful misconduct. The evidence tended to show that the changes in defendant's representation caused much of the delay. State v. Kpaeyeh, - N.C. App. - , 784 S.E.2d 582 (2016).
Defendant's speedy trial claim failed, because, while the delay of nearly 28 months between defendant's arrest and trial raised a questions of reasonableness, some delay was due to defendant's indecision about counsel, issues regarding communication with counsel, and counsel's scheduling conflicts, and the backlog at the crime lab was a neutral reason for the delay, as defendant failed to show the prosecution or the crime lab underutilized resources available to prepare the case for trial. State v. Johnson, - N.C. App. - , 795 S.E.2d 126 (2016).
Defendant Denied Right to Speedy Trial. - Where defendant's case did not occur until nearly three years from the date of arrest for trafficking in cocaine by transporting cocaine, and during that time the case was placed on the trial calendar thirty-one times, but never called by the district attorney, and essential witness was no longer available at time of trial, defendant suffered substantial prejudice, and was denied his right to a speedy trial. State v. Chaplin, 122 N.C. App. 659, 471 S.E.2d 653 (1996).
Defendant's right to a speedy trial under the Sixth Amendment and N.C. Const., Art. I, § 18 was violated where, inter alia, the record showed: (1) that much of the over four-year delay between defendant's arrest and defendant's trial was caused by the State's failure to submit evidence to the State Bureau of Investigation lab to be examined for over three years; (2) that the State's failure to request a comparison of the evidence to a person the State was notified might have been the guilty party; (3) defendant formally asserted defendant's right to a speedy trial more than a year and a half before the trial began; and (4) the delay in bringing defendant to trial prejudiced defendant, as, inter alia, defendant was incarcerated for 366 days prior to trial. State v. Washington, 192 N.C. App. 277, 665 S.E.2d 799 (2008).
Balancing the four factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d. 101 (1972), defendant was not denied the right to a speedy trial and there was no reasonable probability that had counsel advanced a motion to dismiss based on denial of that right, the result of the proceeding would have been different. State v. Johnson, 124 N.C. App. 462, 478 S.E.2d 16 (1996).
Where there was some prejudice to defendant caused by the delay in her trial, the weight of it in the balancing process was diminished by the absence of any impairment to her defense against the criminal charge and the absence of substantial pretrial incarceration. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).
Foreign Custody and Absence of Prejudice as Factors in Denying Speedy Trial Violation. - Defendant was not denied his right to a speedy trial by the delay between his indictment in November, 1977 and his trial in July, 1979, where he was either in federal custody or in custody in South Carolina except from February to September, 1978 and March to July, 1979, and the remaining time fell short of denying defendant his constitutional right to a speedy trial because there was no evidence that any of the delay for which this State was responsible prejudiced his case or his ability to present his defense. State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980).