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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 23. Rights of accused.

In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.

Cross References. - As to the rights of defendants in criminal cases, see also N.C. Const., Art. I, § 19 and the notes thereunder.

As to modes of prosecution, see N.C. Const., Art. I, § 22.

As to the right of jury trial in criminal cases, see N.C. Const., Art. I, § 24.

As to representation of indigent defendants, see Chapter 7A, Articles 36 through 38A (G.S. § 7A-450 et seq.).

As to testimony of defendants in criminal actions, see G.S. § 8-54.

As to witness testifying to any unlawful gaming done by himself or others, see G.S. § 8-55.

History Note. - The provisions of this section are similar to those of Art. I, § 11, Const. 1868, as amended in 1946.

Editor's Note. - Session Laws § 2011-6, s. 2, provides: "The General Assembly respectfully requests that the North Carolina Supreme Court reconsider, and overrule, its holding in State v. Carter that the good faith exception to the exclusionary rule which exists under federal law does not apply under North Carolina State law."

Legal Periodicals. - As to the right of defendant to accompany the jury to the scene of the crime, see 12 N.C.L. Rev. 268 (1934).

For article discussing the limits to confrontation, see 15 N.C.L. Rev. 229 (1937).

For note as to compelling accused to speak so that witness may identify his voice, see 27 N.C.L. Rev. 262 (1949).

For comment on right of confrontation, see 28 N.C.L. Rev. 205 (1950).

For note on self-incrimination and the use of chemical tests to determine intoxication, see 30 N.C.L. Rev. 302 (1952).

For note on the right to counsel, see 32 N.C.L. Rev. 331 (1954).

For note on right of confrontation at presentence investigation, see 41 N.C.L. Rev. 260 (1963).

For note on self-incrimination and the possibility of subjecting witness to punitive damages, see 42 N.C.L. Rev. 918 (1964).

For comment on right to counsel, see 44 N.C.L. Rev. 161 (1965).

For comment on the Sixth Amendment right of confrontation, as made obligatory in State prosecutions, see 44 N.C.L. Rev. 173 (1965).

For case law survey as to coerced confessions, see 45 N.C.L. Rev. 869 (1967).

For case law survey as to right to counsel, see 45 N.C.L. Rev. 875 (1967).

For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1043 (1981).

For note on the rape victim shield statute, see 3 Campbell L. Rev. 113 (1981).

For survey of 1982 law on evidence, see 61 N.C.L. Rev. 1126 (1983).

For 1984 survey, "When Is a Confession Coerced and When Is It Voluntary," see 63 N.C.L. Rev. 1214 (1985).

For recent development, "The Defense Calls ... the Accuser? State v. Brigman and How the North Carolina Court of Appeals Misconstrued Crawford's Application to Available Witnesses," see 84 N.C. L. Rev. 2082 (2006).

For comment, "Sacrificing Liberty for Security: North Carolina's Unconstitutional Search and Seizure of Arrestee DNA," see 34 Campbell L. Rev. 473 (2012).

For article, "Impunity for the Incorrigible Psychopath?: Neurobiological Abnormalities Do Not Exempt Psychopaths from Criminal Responsibility," see 7 Charlotte L. Rev. 239 (2016).

For article, "Silence, Confessions, and the New Accuracy Imperative," see 65 Duke L.J. 697 (2016).

Effect of Amendments. - For note, "Helplessly Imprisoned: State v. Hammonds Holds Involuntarily Committed Patients to the Same Constitutional Restraints as Prisoners," see 38 N.C. Cent. L. Rev. 173 (2016).

CASE NOTES





I. General Consideration.

II. Right to Be Informed of Accusation.

III. Right of Confrontation.

A. In General.

B. Illustrative Cases.

IV. Right to Counsel.

A. In General.

B. When Right Applies.

C. Appointment of Counsel for Indigents.

D. Waiver.

E. Ineffectiveness Not Shown.

V. Self-incrimination.

A. In General.

B. Confessions.

VI. Witness Fees, Costs, Etc.



I. GENERAL CONSIDERATION.



Editor's Note. - Some of the cases cited below were decided under former Art. I, § 11, Const. 1868, before and after its amendment in 1946.

Search and Seizure. - Where an officer observed defendant drive over a curb, back away from the officer, and reach into a pocket in a location known for drug activity, defendant's motion to suppress was properly denied because the officer had reasonable suspicion to make an investigatory stop and had probable cause to seize a film canister from defendant's pocket during a pat-down for weapons based on, inter alia, defendant's actions, the area's reputation, and the officer's prior experiences. State v. Robinson, 189 N.C. App. 454, 658 S.E.2d 501 (2008).

In a case in which the trial court granted defendant's motion to suppress finding that his arrest was illegal and as such was a violation of his right to be free from unreasonable seizures, the State appealed, arguing successfully that the trial court erred in basing its decision on whether a reasonable person would have felt free to leave during the interaction, rather than determining whether there existed special circumstances which would justify a law enforcement officer's actions, and whether those actions were the least intrusive means of carrying out the purpose of the stop. The trial court had to determine whether special circumstances existed that would have justified the officer's use of handcuffs such that they remained the least intrusive means reasonably necessary to carry out the purpose of the stop. State v. Carrouthers, 200 N.C. App. 415, 683 S.E.2d 781 (2009).

Private Counsel May Assist Prosecuting Attorney. - The trial court has discretionary power to allow private counsel to assist the prosecuting attorney in the trial of a case, it being the duty of the court to permit only such assistance as fairness and justice may require, and such power does not impinge on the provisions of this section. State v. Carden, 209 N.C. 404, 183 S.E. 898, cert. denied, 298 U.S. 682, 56 S. Ct. 960, 80 L. Ed. 1402 (1936).

Prejudicial Argument. - In a capital case, any argument made by the prosecuting attorney or by private prosecution appearing for the State which suggests to the jury that they can depend upon either judicial or executive review to correct any errors in their verdict and to share their responsibility for it is an abuse of privilege and is prejudicial to the defendant. State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975).

Defendant's contention that district attorney's argument to the jury referring repeatedly to the fact that defense counsel was from another part of the State constituted prejudicial error and denied defendant due process and the effective assistance of counsel would be overruled where defense counsel had opened the door with abusive comments attacking the credibility of two State witnesses and the honesty of two local law-enforcement officers. State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976).

The defendant's constitutional rights under Article I, Sections 19, 23, and 27 of the North Carolina Constitution were not violated by the prosecution's argument in opposition to the "catchall" mitigating circumstance of G.S. § 15A-2000(f) that the jury should not give any mitigating value to the fact that his accomplice was not sentenced to death where the prosecution did not imply that the accomplice's sentence could be treated as a nonstatutory aggravating circumstance. State v. Roseboro, 351 N.C. 536, 528 S.E.2d 1 (2000), cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000).

Non-Prejudicial Argument. - Prosecutor's arguments, including statements comparing defendant's cozy life in prison and his numerous protections under the Constitution with victims' lack of opportunities, was unlikely to have influenced the jury's sentencing recommendations and, therefore, did not deny defendant his constitutional due process rights. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Informing Defendant of His Rights. - Defendant was not "in custody" for Miranda purposes as a reasonable person in defendant's position would have concluded he was free to terminate the interviews if he so chose. State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994).

Right to Present a Defense. - Trial court did not err by excluding the testimony of a doctor under G.S. § 8C-1, N.C. R. Evid. 404, because his testimony did not constitute evidence of the decedent's character for violence, but rather testified that the decedent was an angry person who had thoughts of violence. Because the trial court's exclusion of the expert's testimony was within the bounds of the rules of evidence, defendant's right to present a defense under U.S. Const., amend. VI and this section was not violated. State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014).

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).

Right to Testify. - The Fourth Amendment to the United States Constitution and N.C. Const., Art. I, § 23 provide a criminal defendant with the right to testify, but do not place upon the trial court the duty of informing a pro se or represented defendant of this right; the trial court did not err by not asking defendant whether he wished to present evidence or testify on his own behalf after defense counsel told the court that defendant would offer no evidence. State v. Murray, 154 N.C. App. 631, 572 S.E.2d 845 (2002), cert. denied, 357 N.C. 467, 586 S.E.2d 778 (2003).

Trial court did not deprive the defendant of a fair trial by denying the defendant's pre-trial motion to continue the trial to a date more than 20 days after the defendant was charged in a true bill of indictment with habitual felon status; the assistant district attorney handling the case, notified the court that the State was not going to proceed with the habitual felon charge until a later date, if at all, and after the jury verdict was announced, the State dismissed the defendant's habitual felon indictment so that defendant was sentenced solely on the substantive charges against the defendant. State v. Adams, 156 N.C. App. 318, 576 S.E.2d 377 (2003), cert. denied, 357 N.C. 166, 580 S.E.2d 698 (2003).

When a motion to continue is based on a constitutional right, the trial court's ruling becomes a question of law and, upon appeal, it is subject to review by examination of the particular circumstances as presented by the record, and the denial of a motion to continue, regardless of its nature, is grounds for a new trial only upon a showing by defendant that the denial was erroneous and that his case was prejudiced as a result of the error. If the error amounts to a constitutional violation, as is here contended, there is prejudice requiring a new trial unless the State satisfies this court that the error is harmless beyond a reasonable doubt. State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988).

Impartial Jury And Fair Trial. - Trial court's failure to question the jurors about the third jury note did not violate defendant's right to an impartial jury and a fair trial because the jury's safety concern did not arise from an improper and prejudicial matter. State v. Mackey, 241 N.C. App. 586, 774 S.E.2d 382 (2015).

Jury Instructions. - 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).

While trial court's jury instructions may have been confusing initially, the court ultimately set forth the required elements as to felonious assault with a deadly weapon inflicting serious injury and, therefore, did not violate the defendant's constitutional rights under this section and N.C. Const., Art. I, Sections 19 and 27. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Defendant was not deprived of his constitutional rights where no conflict existed between the "Issues and Recommendation as to Punishment" form and the oral instructions given by the trial court. 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).

Instruction Informing Jury of Death Sentence. - Denial of defendant's written request for an instruction that "should you [the jury] return a verdict of guilty to the alleged crime of rape, the death penalty will be imposed by this Court" did not deny him his constitutional right of due process as guaranteed by U.S. Const., Amends. V and XIV and by N.C. Const., Art. I, §§ 19 and 36 and this section, since the record revealed that each juror knew that the sentence of death would be imposed upon the return of a verdict of guilty. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

Pecuniary Gain Instruction Not Violative of Constitutional Rights. - Jury instruction regarding capital felony committed for pecuniary gain to support submission of aggravating circumstance under G.S. § 15A-2000(e)(6) did not violate defendant's due process and fair trial rights under this section and N.C. Const., Art. I, § 19 although the gun may have been intended for his personal use, it had pecuniary value. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Error in conducting an informal meeting in chambers to discuss jury instructions, outside the presence of defendant, prior to the formal charge conference held in open court, was harmless beyond a reasonable doubt. State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991).

Bench Conferences. - Where the trial court reconstructed the substance of the bench conferences with the prospective jurors for the record and, before ruling, gave the defendant an opportunity to be heard, these exchanges at the bench which constituted reversible error did not deprive the defendant of his constitutional right to be present at every state of the proceeding. State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991).

Although trial court held private, unrecorded, sidebar conferences with a number of jury pool members, because these conferences took place prior to the commencement of defendant's trial, no error, constitutional or otherwise, was committed. State v. Rannels, 333 N.C. 644, 430 S.E.2d 254 (1993).

Judge's Contacts with Jurors. - The transcript lent support to contention that the trial judge did in fact go to the grand jury room to instruct the prospective jurors that they were at break; however, there was no prejudicial error based on this contact. State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993).

Right to Fair Trial Abridged by Trial Court's Comments. - Defendant was entitled to a new trial, as the trial court's extraneous comments regarding defense counsel, including a statement to the effect that "13 people" would get sick if defense counsel explored the same point one more time and that defense counsel was acting unethically regarding a witness statement given to police that the defense counsel referred to but which was not admitted into evidence, were improper and suggested the trial court was favoring the State in defendant's assault trial; since the comments were made in front of the jury, defendant was entitled to a new trial on the charge. State v. Brinkley, 159 N.C. App. 446, 583 S.E.2d 335 (2003).

Defendant's convictions were reversed as a trial court made comments that deprived defendant of a fair trial and violated his rights to due process when the trial court, inter alia: (1) sustained the trial court's own objections and refused to allow defendant to continue to question the state's star witness about the witness's use of a false identification; (2) admonished defense counsel when counsel attempted to question the witness about the witness's criminal record; (3) chided counsel when the trial court ruled on the state's objections; and (4) scolded counsel outside the presence of the jury when counsel attempted to make a record of the answers to questions that the trial court would not allow counsel to ask in the jury's presence. State v. McLean, 181 N.C. App. 469, 640 S.E.2d 770 (2007).

Swearing of Prospective Jurors. - Defendant had no right to be presen't when prospective jurors were preliminarily sworn, oriented and qualified for jury service in general, without regard to any particular case or trial. State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996).

The common law does not recognize a right of discovery in criminal cases. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Destruction of Evidence. - Destruction of marijuana by the State for lack of storage facilities, where the State made random samples, photographs and a copy of the laboratory report available to defendants, did not violate defendants' rights of confrontation under this section, nor infringe defendants' due process rights under the federal and State Constitutions. State v. Anderson, 57 N.C. App. 602, 292 S.E.2d 163, cert. denied, 306 N.C. 559, 294 S.E.2d 372 (1982).

When the State destroyed a knife that was involved in defendant's alleged crimes after defendant's convictions were affirmed, defendant's due process rights were not violated because (1) defendant never claimed the evidence was destroyed in bad faith, and, (2) despite the knife's unavailability, defense counsel was able to elicit impeaching testimony from the State's witnesses concerning the knife. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

One who is detained under a charge of driving under the influence has the same constitutional and statutory rights, including the rights given under this section, as any other accused. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

Revocation of Driver's License Cannot Constitute Double Jeopardy. - Revocation of defendant's driver's license did not constitute criminal punishment and, thus, defendant's conviction for driving while impaired did not violate N.C. Const., Art. I, §§ 19 and 23. State v. Hinchman, 192 N.C. App. 657, 666 S.E.2d 199 (2008).

Denial of access to a witness to a breathalyzer test when the State's sole evidence of the offense of driving while impaired is the personal observations of the authorities would constitute a flagrant violation of defendant's constitutional right to obtain witnesses under this section as a matter of law and would require that the charges be dismissed. State v. Ferguson, 90 N.C. App. 513, 369 S.E.2d 378, cert. denied, 323 N.C. 367, 373 S.E.2d 551 (1988).

Nonsupport. - In a prosecution under G.S. § 49-2, a verdict upon the issues of paternity and nonsupport, if resolved in favor of the State, is sufficient to support a judgment against defendant without a general verdict by the jury of guilty. This does not contravene the provisions of this section and N.C. Const., Art. I, § 24, requiring trial and verdict by jury in criminal cases. State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964).

Interrogation. - Second interrogation of a defendant was not unconstitutional under the facts of the case, and the trial court did not err by admitting the statement obtained by law enforcement officials during that second interrogation because uncontradicted evidence introduced during the suppression hearing supported the conclusion that the law enforcement officials involved in the investigation of one incident honored the defendant's invocation of his right to remain silent regarding another incident, and thereafter no questioning touched on that other incident and fresh Miranda warnings were given. State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204 (2005), vacated in part, rev'd in part, on other grounds, 361 N.C. 565, 648 S.E.2d 841 (2007).

Defendant's Failure to Request Competency Hearing or Make Motion Regarding Competency Waived Due Process Claim. - Defendant waived the claim that defendant's right to due process was violated when the trial court failed to ensure that defendant had the mental capacity to understand the nature and object to the proceedings, to consult with counsel, and to assist in her defense, because defendant did not request a competency hearing or make a motion detailing the conduct resulting in a question as to defendant's capacity to proceed after defendant's was not given anti-anxiety medication on one day of trial. State v. Goode, 197 N.C. App. 543, 677 S.E.2d 507 (2009).

Rebuttal of Insanity Defense with Psychiatric Evidence. - A fair opportunity to rebut a defendant's insanity defense may include more than one psychiatric examination of the defendant. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

When a defendant relies on the insanity defense and introduces expert testimony on his mental status, the prosecution may introduce expert testimony derived from prior court-ordered psychiatric examinations for the purpose of rebutting that testimony without implicating U.S. Const., Amend. V or this section of the Constitution of North Carolina. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

Defendant's absence during the final two hours of jury deliberations, did not result in substantial and irreparable prejudice to her case and was harmless error with regard to denying her the constitutional right to be present at every stage of her trial. State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808, cert. denied, 335 N.C. 180, 438 S.E.2d 206 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349 (1994), cert. denied, 335 N.C. 180, 438 S.E.2d 206 (1993).

Defendant's right to be present at every stage of the trial was not violated. State v. May, 334 N.C. 609, 434 S.E.2d 180 (1993), cert. denied, 510 U.S. 1198, 114 S. Ct. 1310, 127 L. Ed. 2d 661 (1994).

Trial judge's ex parte interrogations of two seated jurors, conferences with counsel in chambers, out of the presence of the defendant, and the judge's failure to reconstruct those actions in the defendant's presence violated the defendant's right to be present at every stage; however, because the court found that the error was harmless beyond a reasonable doubt, the defendant was not entitled to a new trial. State v. Williams, 343 N.C. 345, 471 S.E.2d 379 (1996), cert. denied, 519 U.S. 1061, 117 S. Ct. 695, 136 L. Ed. 2d 618 (1997).

Trial court did not violate the defendant's right to a fair trial because the defendant's trial had not commenced when the court held unrecorded bench conferences and deferred five jurors before the trial court began defendant's trial. The five jurors were not excused at a stage of the defendant's trial, and the defendant did not have the right to be present at the conferences. State v. Carpenter, 155 N.C. App. 35, 573 S.E.2d 668 (2002).

Although defendant's constitutional right to be present at every stage of defendant's criminal trial was violated when the trial court refused to allow defense counsel to review jury questions, the violation of that right was harmless beyond a reasonable doubt; the record revealed that the questions indicated that the jury had already agreed unanimously on second-degree murder, which was defendant's ultimate conviction, and was confused about whether their rejection of first-degree murder had to be unanimous. State v. Smith, 188 N.C. App. 207, 654 S.E.2d 730 (2008).

Error in excluding defendant from an in-chambers conference prior to the sentencing hearing was harmless, because defendant was given an opportunity to be heard at the hearing and the trial court reported the class level for each offense and any aggravating and mitigating factors on the record in open court. State v. Wright, 212 N.C. App. 640, 711 S.E.2d 797 (2011).

Even though the trial court's failure to disclose the third jury note violated defendant's right to presence, defendant was not prejudiced because had the trial court disclosed the note and defendant had renewed his objection under N.C. R. Evid. 403, the trial court would not have had any reason to change its ruling admitting the inmate's testimony of defendant's confession and threats to potential witnesses. State v. Mackey, 241 N.C. App. 586, 774 S.E.2d 382 (2015).

Failure to Include Defendant in Discussion Regarding Removal of Leg Shackles. - Even if trial judge's conversation with defendant's standby counsel, held outside defendant's presence, concerning whether or not to remove his leg shackles constituted a "stage" in the proceeding, the error in excluding defendant was harmless beyond a reasonable doubt. State v. Thomas, 134 N.C. App. 560, 518 S.E.2d 222 (1999), appeal dismissed, cert. denied, 351 N.C. 119, 541 S.E.2d 468 (1999).

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).

Defendant's Rights to Due Process or Effective Assistance of Counsel Not Violated. - Defendant failed to establish at the pretrial hearing that the denial of his motion for a continuance would violate his right to due process or the effective assistance of counsel, as he did not argue at the pretrial hearing that the trial of the charges was unusual or complex and the charges all arose from a single incident of high speed driving. State v. Moore, - N.C. App. - , - S.E.2d - (May 16, 2017).

Trial Court Did Not Deprive the Defendant of a Fair Trial by Denying the Defendant's Motion for a Mistrial. - Defendant was not denied his rights to confrontation, to effective assistance of counsel, to due process, to a jury trial, and to be free from cruel and unusual punishment when the trial court denied defendant's motion for a mistrial based on the alleged misconduct of a juror; the juror's inadvertent failure to disclose 40-year-old information she had forgotten did not amount to concealment, and the juror demonstrated no bias. State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004).

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).

Right to Remain Silent Not Violated. - State's cross-examination of defendant and its closing argument did not violate defendant's right to remain silent; it was not apparent that the State was commenting on post-Miranda silence when the State asked defendant "So, you didn't want to tell them (the police) that you had acted in self-defense?" In addition, the closing argument was not improper and was supported by witnesses' testimony. State v. Herndon, 177 N.C. App. 353, 629 S.E.2d 170 (2006), review denied, appeal dismissed, 360 N.C. 539, 634 S.E.2d 542 (2006).

Defense Counsel Not Ineffective for Failing to Object Where Testimony Properly Admitted. - Testimony regarding an officer's interaction with a detective and a third individual was non-hearsay since it was not admitted to prove the truth of the matter asserted, but rather to show how the officer formed a reasonable suspicion that defendant was involved in the robbery at issue, which in turn justified including defendant's photo in a lineup shown to the robbery victim; since this testimony was properly admitted, defense counsel was not ineffective for failing to object to it. State v. Alexander, 177 N.C. App. 281, 628 S.E.2d 434 (2006), cert. denied, appeal dismissed, 361 N.C. 358, 644 S.E.2d 357 (2007).

Trial counsel's failure to object to the admission of testimony of a director of a rape crisis center about the general reactions and characteristics of sexual assault victims was not ineffective assistance of counsel as defendant failed to show that trial counsel's failure to object fell below a standard of reasonableness, or that the trial result would have been different absent the error. State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559 (2008).

Applied in State v. Williams, 18 N.C. App. 145, 196 S.E.2d 370 (1973); State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980); State v. Maher, 54 N.C. App. 639, 284 S.E.2d 351 (1981); Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898 (1982); State v. Washington, 59 N.C. App. 490, 297 S.E.2d 170 (1982); State v. Roberts, 310 N.C. 428, 312 S.E.2d 477 (1984); State v. Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984); State v. Matthews, 69 N.C. App. 526, 317 S.E.2d 62 (1984); State v. Hunt, 72 N.C. App. 59, 323 S.E.2d 490 (1984); State v. Richardson, 99 N.C. App. 496, 393 S.E.2d 333 (1990); State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991); State v. Monroe, 330 N.C. 846, 412 S.E.2d 652 (1992); State v. Bromfield, 332 N.C. 24, 418 S.E.2d 491 (1992); State v. Crummy, 107 N.C. App. 305, 420 S.E.2d 448 (1992); State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992); State v. Harris, 111 N.C. App. 58, 431 S.E.2d 792 (1993); State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996); State v. Greene, 351 N.C. 562, 528 S.E.2d 575 (2000), cert. denied, 531 U.S. 1041, 121 S. Ct. 635, 148 L. Ed. 2d 543 (2000); State v. Quick, 152 N.C. App. 220, 566 S.E.2d 735 (2002); State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618 (2002), cert. denied, 357 N.C. 255, 583 S.E.2d 287 (2003); State v. Petro, 167 N.C. App. 749, 606 S.E.2d 425 (2005); State v. Hightower, 168 N.C. App. 661, 609 S.E.2d 235 (2005); State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005); State v. Love, 177 N.C. App. 614, 630 S.E.2d 234 (2006); State v. Person, 187 N.C. App. 512, 653 S.E.2d 560 (2007); State v. Calhoun, 189 N.C. App. 166, 657 S.E.2d 424 (2008), review denied, appeal dismissed, 362 N.C. 476, 666 S.E.2d 651 (2008); 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); State v. Williams, 363 N.C. 689, 686 S.E.2d 493 (2009), cert. denied 131 S. Ct. 149, 2010 U.S. LEXIS 6797, 178 L. Ed. 2d 90 (U.S. 2010).

Cited in State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971); In re Reddy, 16 N.C. App. 520, 192 S.E.2d 621 (1972); State v. Hardy, 17 N.C. App. 169, 193 S.E.2d 459 (1972); State v. Lankford, 31 N.C. App. 13, 228 S.E.2d 641 (1976); In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977); State v. Eatman, 34 N.C. App. 665, 239 S.E.2d 633 (1977); State v. Creech, 37 N.C. App. 261, 245 S.E.2d 817 (1978); State v. Brooks, 38 N.C. App. 445, 248 S.E.2d 369 (1978); State v. Evans, 40 N.C. App. 390, 253 S.E.2d 35 (1979); State v. Hunt, 297 N.C. 131, 254 S.E.2d 19 (1979); State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Shelton, 53 N.C. App. 632, 281 S.E.2d 684 (1981); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981); State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981); State v. Newman, 308 N.C. 231, 302 S.E.2d 174 (1983); State v. Wise, 64 N.C. App. 108, 306 S.E.2d 569 (1983); State v. Davis, 61 N.C. App. 522, 300 S.E.2d 861 (1983); State v. Abney, 79 N.C. App. 649, 339 S.E.2d 841 (1986); State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986); State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986); State v. Worthington, 84 N.C. App. 150, 352 S.E.2d 695 (1987); State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987); State v. Carson, 320 N.C. 328, 357 S.E.2d 662 (1987); State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987); State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988); State v. Hope, 96 N.C. App. 498, 386 S.E.2d 224 (1989); State v. Seaberry, 97 N.C. App. 203, 388 S.E.2d 184 (1990); State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990); State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991); State v. Cunningham, 108 N.C. App. 185, 423 S.E.2d 802 (1992); State v. James, 111 N.C. App. 785, 433 S.E.2d 755 (1993); State v. Medlin, 333 N.C. 280, 426 S.E.2d 402 (1993); State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410 (1993); State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993); State v. Harris, 333 N.C. 544, 428 S.E.2d 823 (1993); State v. Minter, 111 N.C. App. 40, 432 S.E.2d 146 (1993); State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993); State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994), cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994); State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994), cert. denied, 513 U.S. 1098, 115 S. Ct. 768, 130 L. Ed. 2d 665 (1995); State v. Peterson, 337 N.C. 384, 446 S.E.2d 43 (1994); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Thompson, 118 N.C. App. 33, 454 S.E.2d 271 (1995); State v. Porter, 340 N.C. 320, 457 S.E.2d 716 (1995); State v. Hinson, 341 N.C. 66,

459 S.E.2d 261 (1995); State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995); State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995); State v. Robinson, 342 N.C. 74, 463 S.E.2d 218 (1995); State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995); State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S. Ct. 2560, 135 L. Ed. 2d 1077 (1996); State v. Mundine, 122 N.C. App. 707, 471 S.E.2d 438 (1996); State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997); State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996); State v. Woods, 345 N.C. 294, 480 S.E.2d 647 (1997), cert. denied, 522 U.S. 875, 118 S. Ct. 194, 139 L. Ed. 2d 132 (1997); State v. Larry, 345 N.C. 497, 481 S.E.2d 907 (1997), cert. denied, 522 U.S. 917, 118 S. Ct. 304, 139 L. Ed. 2d 234 (1997); State v. Banks, 125 N.C. App. 681, 482 S.E.2d 41 (1997), aff'd, 347 N.C. 390, 493 S.E.2d 58 (1997), cert. denied, 523 U.S. 1128, 118 S. Ct. 1817, 140 L. Ed. 2d 955 (1998); State v. Hunt, 345 N.C. 720, 483 S.E.2d 417 (1997); State v. Rich, 346 N.C. 50, 484 S.E.2d 394 (1997); State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Jones, 346 N.C. 704, 487 S.E.2d 714 (1997); State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998); State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997); State v. Clark, 128 N.C. App. 87, 493 S.E.2d 770 (1997), cert. denied, 348 N.C. 285, 501 S.E.2d 913 (1998); State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999); State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161, 119 S. Ct. 2053, 144 L. Ed. 2d 219 (1999); State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42 (1998), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998); State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999), cert. denied, 528 U.S. 973, 120 S. Ct. 417, 145 L. Ed. 2d 326 (1999); Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999); State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001); State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001); State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001), cert. denied, 534 U.S. 1046, 122 S. Ct. 628, 151 L. Ed. 2d 548 (2001), cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10 (2001); State v. Wiley,

355 N.C. 592, 565 S.E.2d 22 (2002); State v. Trull, 153 N.C. App. 630, 571 S.E.2d 592 (2002), cert. denied, 356 N.C. 691, 578 S.E.2d 597 (2003); cert. dismissed, 794 S.E.2d 333, 2016 N.C. LEXIS 1059 (2016); Pittman v. N.C. Dep't of Health and Human Servs., 155 N.C. App. 268, 573 S.E.2d 628 (2002); State v. Howard, 158 N.C. App. 226, 580 S.E.2d 725 (2003), cert. denied, 357 N.C. 465, 586 S.E.2d 460 (2003); State v. Rasmussen, 158 N.C. App. 544, 582 S.E.2d 44 (2003), cert. denied, 357 N.C. 581, 589 S.E.2d 362 (2003); State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004); State v. Thompson, 359 N.C. 77, 604 S.E.2d 850 (2004); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004); State v. Price, - N.C. App. - , 611 S.E.2d 891 (2005); State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005); State v. Chivers, 180 N.C. App. 275, 636 S.E.2d 590 (2006), review denied, 361 N.C. 222, 642 S.E.2d 709 (2007); State v. Gillespie, 180 N.C. App. 514, 638 S.E.2d 481 (2006); State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (2007); State v. Whaley, 362 N.C. 156, 655 S.E.2d 388 (2008); State v. Wilson, 192 N.C. App. 359, 665 S.E.2d 751 (2008), aff'd, 363 N.C. 478, 681 S.E.2d 325 (2009); State v. Gabriel, 192 N.C. App. 517, 665 S.E.2d 581 (2008); State v. McFarland, 234 N.C. App. 274, 758 S.E.2d 457 (2014); State v. Borders, 236 N.C. App. 149, 762 S.E.2d 490 (2014).

Powers v. Tatum, 196 N.C. App. 639, 676 S.E.2d 89 (2009), review denied, stay denied, 363 N.C. 583, 681 S.E.2d 784 (2009); State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009); State v. Wilson, 363 N.C. 478, 681 S.E.2d 325 (Aug. 28, 2009); State v. Mohamed, 205 N.C. App. 470, 696 S.E.2d 724 (2010); State v. Choudhry, 206 N.C. App. 418, 697 S.E.2d 504 (2010), aff'd and modified 717 S.E.2d 348, 2011 N.C. LEXIS 659 (N.C. 2011); State v. Mendoza, 206 N.C. App. 391, 698 S.E.2d 170 (2010); State v. Hurt, 208 N.C. App. 1, 702 S.E.2d 82 (2010), rev'd 743 S.E.2d 173, 2013 N.C. LEXIS 657 (2013); State v. Paterson, 208 N.C. App. 654, 703 S.E.2d 755 (2010), review denied 365 N.C. 196, 710 S.E.2d 36, 2011 N.C. LEXIS 493 (N.C. 2011); State v. Clark, 211 N.C. App. 60, 714 S.E.2d 754 (2011), review denied 365 N.C. 556, 722 S.E.2d 595, 2012 N.C. LEXIS 140 (N.C. 2012); State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011); State v. Kidwell, 218 N.C. App. 134, 720 S.E.2d 795 (2012), review denied, 365 N.C. 564, 724 S.E.2d 909, 2012 N.C. LEXIS 274 (N.C. 2012); State v. Harrison, 218 N.C. App. 546, 721 S.E.2d 371 (2012); State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012); State v. Caudill, 227 N.C. App. 119, 742 S.E.2d 268 (2013), dismissed and review denied 747 S.E.2d 578, 2013 N.C. LEXIS 929 (2013); In re V.C.R., 227 N.C. App. 80, 742 S.E.2d 566 (2013); State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427 (2013), review denied, 743 S.E.2d 182, 2013 N.C. LEXIS 505 (2013); State v. Goins, 232 N.C. App. 451, 754 S.E.2d 195 (2014); State v. Rouse, 234 N.C. App. 92, 757 S.E.2d 690 (2014); State v. Ladd, - N.C. App. - , 782 S.E.2d 397 (2016).

II. RIGHT TO BE INFORMED OF ACCUSATION.



Purpose of the provision guaranteeing the right to be informed of the accusation is to enable the defendant to have a fair and reasonable opportunity to prepare his defense, to avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense, and to enable the court, on conviction, to pronounce sentence according to law. State v. Hartley, 39 N.C. App. 70, 249 S.E.2d 453 (1978), cert. denied, 296 N.C. 738, 254 S.E.2d 179 (1979); State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. Stills, 310 N.C. 410, 312 S.E.2d 443 (1984).

The purposes of this section and N.C. Const., Art. I, § 22 are (1) to provide certainty so as to identify the offense, (2) to protect the accused from twice being put in jeopardy for the same offense, (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of guilty or nolo contendere, to pronounce sentence according to the rights of the case. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961); State v. Foster, 10 N.C. App. 141, 177 S.E.2d 756 (1970); State v. Sutton, 14 N.C. App. 422, 188 S.E.2d 596 (1972).

Section Embodies Common-Law Rule. - This constitutional guaranty is, in essence, an embodiment of the common-law rule requiring the charge against the accused to be set out in the indictment or warrant with sufficient certainty to identify the offense with which he is sought to be charged, protect him from being twice put in jeopardy for the same offense, enable him to prepare for trial, and enable the court to proceed to judgment according to law in case of conviction. State v. Jenkins, 238 N.C. 396, 77 S.E.2d 796 (1953); State v. Nugent, 243 N.C. 100, 89 S.E.2d 781 (1955).

When Jeopardy Attaches for Dismissed Charges. - Jeopardy attached with respect to charges dismissed by the State at the close of its evidence. State v. Poston, 162 N.C. App. 642, 591 S.E.2d 898 (2004).

It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or an indictment. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

A valid indictment is essential to the jurisdiction of the court in a criminal case. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975).

Indictment Must Allege All Essential Elements of Offense. - An indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense sought to be charged. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961); State v. Sutton, 14 N.C. App. 422, 188 S.E.2d 596 (1972).

An indictment charging a statutory offense must allege all of the essential elements of the offense. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975).

Indictment Must Be Sufficient to Protect Defendant Against Subsequent Prosecution. - The allegations in a bill of indictment must particularize the crime charged and be sufficiently explicit to protect defendant against a subsequent prosecution for the same offense. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

But Special Form or Particular Words Are Not Required. - This section does not require that the accused be informed of the charge against him in any special form or particular words, except that it must be by presentment or indictment. State v. Gibson, 169 N.C. 318, 85 S.E. 7 (1915); State v. Carpenter, 173 N.C. 767, 92 S.E. 373 (1917).

Since no conclusion could be reached by reading the indictment other than that defendant was in custody at the time he allegedly committed malicious conduct by a prisoner, the trial court had jurisdiction over his case, as the State adequately alleged the offense such that defendant was notified of the offense against which he was called to defend. State v. Artis, 174 N.C. App. 668, 622 S.E.2d 204 (2005), cert. denied, - N.C. - , 630 S.E.2d 188 (2006).

An indictment that charges in a plain, intelligible and explicit manner the criminal offense the accused is put to answer affords the protection guaranteed by this section and N.C. Const., Art. I, § 22. State v. Helms, 247 N.C. 740, 102 S.E.2d 241 (1958).

If an indictment charges the offense in a plain, intelligible and explicit manner and contains averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the same offense, it is sufficient. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Sufficiency of Charging Offense in Words of Statute. - While it is a general rule prevailing in this State that an indictment for a statutory offense is sufficient if the offense be charged in the words of the statute, the rule is inapplicable where the words of the statute do not in themselves inform the defendant of the specific offense of which he is accused so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all its essential elements. In such situation, the statutory words must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the defendant and the court as to the offense intended to be charged. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

An indictment for a statutory offense is sufficient as a general rule when it charges the offense in the language of the statute. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

The court rejected the defendant's argument that because the indictment failed to allege two essential elements of first degree murder, i.e., premeditation and deliberation, his conviction of first degree murder based thereon violated Article I, §§ 19, 22 and 23 of the North Carolina Constitution. The court found that the defendant had adequate notice of the charge against him, as North Carolina has for nearly 100 years authorized the use of the short form murder indictment as sufficient to allege the elements of premeditation and deliberation, and the jury was properly required to find those elements beyond a reasonable doubt. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562 (2000).

Defendant's indictment included the critical language found in the statute, alleging that he failed to meet his obligation to report, and this language was consistent with that found in the charging statute and provided defendant sufficient notice to prepare a defense; additional detail about the reporting requirement was neither needed nor required, and thus the indictment was valid and conferred jurisdiction upon the trial court. State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016).

Relationship of Dates of Alleged Offenses Listed in Indictment to Double Jeopardy. - If, as the general rule provides, the date of an offense is not material, then the critical issue is whether there is an indictment for each alleged offense; when there is a corresponding number of indictments and offenses, then double jeopardy would only be a concern if the dates on the indictment are material. State v. Poston, 162 N.C. App. 642, 591 S.E.2d 898 (2004).

Relationship of Dates of Alleged Offenses Listed in Indictment to Double Jeopardy. - Absent evidence of the same number of incidents as indictments, time would have a most important effect upon the punishment, because a defendant will have received two consecutive terms of imprisonment for identical offenses based upon the same act, in violation of defendant's Fifth Amendment right not to be twice tried for the same offense. State v. Poston, 162 N.C. App. 642, 591 S.E.2d 898 (2004).

The time fixed in a bill of indictment usually is not an essential fact, and generally the State may prove that the crime was committed on another date; but when the State fixes the date in the indictment and the defendant presents evidence of an alibi relating to that date, time becomes of the essence, and the State may not, after the defendant has presented his alibi evidence and rested his case, introduce evidence tending to show the defendant's commission of the crime charged on another date. To permit a conviction on such evidence would violate rights guaranteed by this section. State v. Vincent, 35 N.C. App. 369, 241 S.E.2d 390 (1978).

Testing Sufficiency of Warrant or Indictment. - A motion to quash is a proper method of testing the sufficiency of a warrant or an indictment to charge a criminal offense. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

Form of Bill for Homicide. - This section and G.S. § 15A-924(a)(5) did not specifically repeal G.S. § 15-144, relating to essentials of a bill for homicide, nor did they repeal it by implication. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), aff'd, 95 N.C. 572, 383 S.E.2d 224 (1989).

Statute which established a form for a bill of indictment for perjury and enacted in express terms that this form would be sufficient was sufficient to apprise the defendant with reasonable certainty of the nature of the crime of which he stood charged. State v. Harris, 145 N.C. 456, 59 S.E. 115 (1907).

Short-form murder indictment which did not allege premeditation nor the elements of felony murder was held not defective. State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Court of appeals rejected defendant's argument that the trial court violated his rights under U.S. Const., Amends. V, VI, and XIV and N.C. Const., Art. I, §§ 19, 22, and 23, by entering a judgment convicting him of first degree rape and first degree sex offense on the basis of a short-form indictment. State v. Randle, 167 N.C. App. 547, 605 S.E.2d 692 (2004).

Short-form murder indictment is constitutional. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005).

Aggravating Circumstances of Capital Offense Need Not be Alleged. - The defendant's murder indictment complied with the requirements of this section and did not violate his constitutional rights; because defendant had notice that he was charged with first degree murder and the elements thereof, as well as his eligibility for the death penalty, the State was not required to allege the supporting aggravating circumstances. State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, - N.C. - , 619 S.E.2d 854 (2005).

State-court murder indictments are not required to allege the aggravating circumstances to be presented against capital defendants. State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003).

A warrant or indictment charging dissemination or possession of obscenity should at least so describe the alleged obscene matter or pictures as to render them capable of identification. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961).

An indictment which failed to show the causal relation between alleged false pretense and deceit, would be held not to inform defendant of the crime charged against him. State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 L.R.A. (n.s.) 363 (1910).

Indictment for Larceny and Receiving Stolen Goods. - Defendant had a constitutional right to have a bill of indictment for larceny and receiving stolen goods state the kind of property he was alleged to have taken or received, so that he could know precisely what he was called upon to meet, in order to have a fair and reasonable opportunity to prepare his defense, and so that, in the event of a conviction, the record might show with accuracy the exact offense of which he was convicted. The use of the embrasive word "meat" in the bill of indictment deprived the defendant of this substantial constitutional right. State v. Nugent, 243 N.C. 100, 89 S.E.2d 781 (1955).

In an indictment for larceny, the description "automobile parts . . . of one Furches Motor Company" sufficiently identified the property alleged to have been stolen, as the description identified the type of parts and the owner from whom they were taken. State v. Foster, 10 N.C. App. 141, 177 S.E.2d 756 (1970).

In a prosecution for larceny, the property alleged to have been taken should be described by the name usually applied to it in its condition at that time, and, if possible, the number, kind, quality, and other distinguishing features. State v. Hartley, 39 N.C. App. 70, 249 S.E.2d 453 (1978), cert. denied, 296 N.C. 738, 254 S.E.2d 179 (1979).

Where warrant which charged defendant with breaking and entering for the purpose of threatening to kill charged only a misdemeanor, and where defendant received his first notice that he was charged with breaking and entering with intent to commit larceny when the indictment was returned on the day of the trial, defendant was forced into a trial for which he was not allowed sufficient time to prepare his defense. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975).

No Fatal Variance Between Warrant and State's Evidence. - There was no fatal variance between a warrant and the State's evidence at trial on a charge of assaulting a government officer, as evidence showed the officer was performing the official act of arresting defendant when defendant assaulted the officer; whether the arrest was for communicating threats or for being intoxicated and disruptive in public was immaterial. State v. Roman, 203 N.C. App. 730, 692 S.E.2d 431 (2010).

Kidnapping. - An indictment charging that defendant "unlawfully, did feloniously and forcibly kidnap" a person named was not defective or violative of N.C. Const., Art. I, § 22 or this section for failure to charge additionally that the victim was forcibly carried away against her will. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Charge to Jury Held to Violate Section. - A charge to the jury which virtually put the defendant upon trial for an additional offense to that named in the bill, namely, conspiring with others than those alleged, violated the provisions of this section that "in all criminal prosecutions every man has the right to be informed of the accusation against him." State v. Mickey, 207 N.C. 608, 178 S.E. 220 (1935).

Indictment Properly Dismissed. - In defendant's conviction for robbery with firearm, the trial court properly denied defendant's motion to dismiss the indictment based on the State's withholding of evidence favorable to defendant, as any possible violation of defendant's rights was completely cured and without prejudice. State v. Geddie, - N.C. App. - , - S.E.2d - (Feb. 18, 2003).

Appeal to Superior Court. - The superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor. State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973).

III. RIGHT OF CONFRONTATION.

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A. IN GENERAL.

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The word "confront" does not simply secure to the accused the privilege of examining witnesses in his behalf, but is an affirmance of the rule of the common law that in trials by jury the witness must be present before the jury and accused, so that he may be confronted; that is, put face to face. And this, of course, includes the right of cross-examination. State v. Moss, 47 N.C. 66 (1854); State v. Thomas, 64 N.C. 74 (1870); State v. Harris, 181 N.C. 600, 107 S.E. 466 (1921); State v. Maynard, 184 N.C. 653, 113 S.E. 682 (1922); State v. Snipes, 185 N.C. 743, 117 S.E. 500 (1923); State v. Dixon, 185 N.C. 727, 119 S.E. 170 (1923); State v. Hightower, 187 N.C. 300, 121 S.E. 616 (1924); State v. Hartsfield, 188 N.C. 357, 124 S.E. 629 (1924); State v. Breece, 206 N.C. 92, 173 S.E. 9 (1934).

The word "confront" secures to the accused the right to have his witnesses in court and to examine them in his behalf. It further secures to the accused a fair opportunity to prepare and present his defense, which right must be afforded him not only in form but in substance. State v. Hackney, 240 N.C. 230, 81 S.E.2d 778 (1954); State v. Graves, 251 N.C. 550, 112 S.E.2d 85 (1960).

The right of confrontation is an absolute right rather than a privilege, and it must be afforded an accused not only in form but in substance. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

The defendant is entitled to a full and fair cross-examination upon the subject of the witness' examination-in-chief, and this is an absolute right rather than a privilege. State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969).

Right to compulsory process is not absolute, and a state may require that a defendant requesting such process at state expense establish some colorable need for the person to be summoned, lest the right be abused by those who would make frivolous requests. State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978).

Actual Presence Required. - The essential characteristic of defendant's constitutional right to presence is just that, his actual presence during trial. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991).

Under the N.C. State Constitution, defendant's actual presence is required throughout his trial, not just at particularly important junctures. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991).

Where an in-chambers conference occurred between the trial judge and counsel without defendant, defendant's constitutional right to be present at every stage of his capital trial was violated. State v. Meyer, 345 N.C. 619, 481 S.E.2d 649 (1997).

Where in-chambers discussion, which occurred outside of defendant's presence, was not included in the record, the court did not know the substance of the in-chambers conference held with the attorneys in defendant's absence; consequently, the court was unable to determine whether the error committed was harmless beyond a reasonable doubt and ordered a new sentencing proceeding. State v. Meyer, 345 N.C. 619, 481 S.E.2d 649 (1997).

Certain Violations of Right May Be Harmless. - Notwithstanding an accused's right to be present, at all stages of trial, certain violations of this right may be harmless if such appears from the record. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991).

Bench Conferences Not Violative of Right to Be Present. - A defendant's state constitutional right to be present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991).

A defendant's constitutional right to be present at all stages of his capital trial is not violated when the trial court conducts a bench conference among the lawyers in open court where defendant is present in the courtroom. State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998).

Defendant's constitutional right to be present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

Chambers Conference. - Although it was error to conduct a chambers conference with counsel for the state and counsel for defendant in the defendants absence, the error did not mandate automatic reversal. State v. Addison, 128 N.C. App. 741, 496 S.E.2d 412 (1998).

State carried the burden of demonstrating that error was harmless beyond a reasonable doubt where the court conducted a chambers conference with counsel for the state and counsel for defendant in the defendants absence. State v. Addison, 128 N.C. App. 741, 496 S.E.2d 412 (1998).

Bailiff's Communication with Jurors. - Defendant who was charged with murder and armed robbery was not denied his rights under the Confrontation Clause of the North Carolina Constitution, N.C. Const., Art. I, § 23, because the trial court told the bailiff to remind that jurors that they were not to discuss the case with anyone while the jury was not deliberating, and the bailiff gave that instruction while defendant was not present. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003).

Right To Be Present Not Violated When Jurors Excused During Bench Conferences. - Defendant's right to be present during all stages of his trial pursuant to this section was not violated when the trial court excused jurors during bench conferences State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, 522 U.S. 1125, 118 S. Ct. 1072, 140 L. Ed. 2d 131 (1998).

If, however, the subject matter of the conference implicates the defendant's confrontation rights, or is such that the defendant's presence would have a reasonably substantial relation to this opportunity to defend, the defendant would have a constitutional right to be present. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991).

Defendant's absence during certain conferences and discussions in his capital trial did not prejudice defendant in any way and was harmless beyond a reasonable doubt, where defendant's counsel was present, as was the court reporter, who recorded and transcribed the complete proceedings, the subjects of the conferences and discussions were either points of law, procedural matters, or administrative matters, none of which involved communication with the jury, and no witness gave testimony concerning defendant's guilt. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).

Right to Be Present at Every Stage. - This section is the sole source of the criminal defendant's nonwaivable state right to be present at every stage of his capital trial and of the corollary duty imposed on the trial court to insure his presence. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

The confrontation clause of the Constitution of North Carolina guarantees the right of the defendant to be present at every stage of the trial. This state constitutional protection afforded to the defendant imposes on the trial court the affirmative duty to insure the defendant's presence at every stage of a capital trial. The defendant's right to be present at every stage of the trial ought to be kept forever sacred and inviolate. In fact, the defendant's right to be present at every stage of his capital trial is not waivable. State v. Moss, 332 N.C. 65, 418 S.E.2d 213 (1992).

Even though the trial court's failure to disclose the third jury note violated defendant's right to presence, defendant was not prejudiced because had the trial court disclosed the note and defendant had renewed his objection under N.C. R. Evid. 403, the trial court would not have had any reason to change its ruling admitting the inmate's testimony of defendant's confession and threats to potential witnesses. State v. Mackey, 241 N.C. App. 586, 774 S.E.2d 382 (2015).

Right Does Not Apply to Physical Evidence. - This section only pertains to witnesses, and does not create a constitutional right of confrontation to physical evidence. State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988).

Right Includes Opportunity to Face Accusers and Witnesses with Other Testimony. - Defendants have a constitutional right of confrontation, which cannot lawfully be taken from them, and this includes the right of a fair opportunity to face the accusers and witnesses with other testimony. State v. Garner, 203 N.C. 361, 166 S.E. 180 (1932).

A defendant has the constitutional right, in a criminal prosecution, to confront his accusers with other testimony. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).

The right to face one's accusers and witnesses with other testimony is guaranteed by U.S. Const., Amend. VI, which is made applicable to the states by U.S. Const., Amend. XIV, and by this section and N.C. Const., Art. I, § 19. State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976).

Right to Cross-Examine. - The right of a defendant to confront his accusers includes the right to cross-examine them on any subject touched on in their examination-in-chief, and a witness testifying to facts incriminating defendant on his examination-in-chief may not deprive defendant of his right to cross-examine him on the ground that answers to questions asked on cross-examination might tend to incriminate the witness. State v. Perry, 210 N.C. 796, 188 S.E. 639 (1936).

The right to confront affirms the common-law rule that in criminal trials by jury the witness must be present and subject to cross-examination under oath. State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969).

A party to either a civil or criminal proceeding may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him, hostile to his cause, or interested adversely to him in the outcome of the litigation. State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975).

One of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary's witnesses. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Absence During Part of Prosecution's Presentation. - Nothing in the record showed that defendant was prejudiced by his absence during part of the presentation of the prosecution's evidence in defendant's capital case where all proceedings took place in open court; everything that took place was reflected in the record, and the record showed that defense counsel were in court and participated throughout defendant's absence to protect his interest, the trial judge told counsel they could confer with defendant as to the possibility of his return at any time, and the trial judge undertook to perform his duty to assure defendant's presence. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

Right Not Violated When Court Conducted Bench Conferences with Counsel for Both Parties. - A defendant's state constitutional right to be present at all stages of his capital trial was not violated when the trial court conducted bench conferences with counsel for both parties while the defendant was present in the courtroom. State v. Upchurch, 332 N.C. 439, 421 S.E.2d 577 (1992).

Where the trial court conducted numerous bench conferences with counsel in which defendant did not participate, nothing in the record indicated that defendant was not present in the courtroom during their discussions, the trial court received no evidence during any of these bench conferences, and most of the discussion concerned mechanical aspects of the proceedings, including lunch breaks, presentation of proposed instruction by the trial court to counsel for their comments, and argument of technical motions or objections out of the jury's hearing; therefore, because defendant was represented by counsel during each of these conferences, nothing in the record demonstrates how defendant's presence would have served any useful purpose, nor does defendant demonstrate how the conferences impinged upon his opportunity to defend and failed to demonstrate any violation of his constitutional protections. State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083 (1995).

Trial court's unrecorded private communications with three prospective jurors, perhaps violative of defendant's nonwaivable constitutional right to be present at every stage of his trial, were harmless error beyond a reasonable doubt because the record adequately revealed the substance of those communications and the jurors were properly excused. State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999).

Right Violated by Court's Private Bench Conferences With Jurors. - The fact that the jury recommended and the trial court entered a sentence of life imprisonment did not change the capital nature of that trial or his status as a capital defendant in that trial. Therefore, the unwaiveable requirement of his presence applied at every stage of his trial and was violated by the trial court's private bench conferences with prospective jurors. State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992).

Jury selection is a stage of a capital trial at which the defendant must be present. The trial court erred by conducting bench conferences with prospective jurors out of the hearing of the defendant and his counsel. Therefore, the Supreme Court had to order a new trial. State v. Moss, 332 N.C. 65, 418 S.E.2d 213 (1992).

Exclusion of Defendant from In Camera Hearing with Juror. - Although it is clearly error for the trial court to communicate with a juror in chambers in the absence of defendant, counsel, or a court reporter, not every violation of a constitutional right is prejudicial. Where the record of an in camera hearing attended only by a juror, the trial judge, counsel, and a court reporter reflected the benign substance of the conversation, the juror's growing unease with her ability to impose the death penalty, and where after the hearing the juror was promptly and properly removed for cause, obviating the possibility that anything said to her privately by the trial court might infect the jury as a whole, this action was harmless beyond a reasonable doubt. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of Calvert v. Peebles, 82 N.C. 334 (1880).

It was error for the trial court to exclude the defendants, their counsel, and the court reporter from its private conversations with prospective jurors prior to excusing those jurors. State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992).

Although it is error for the trial court to conduct a chambers conference with counsel for the state and counsel for defendant in defendant's absence, where defendant was present during the questioning of a juror and was fully apprised of the facts underlying the reasons for the juror's excusal, defendant had full opportunity to be heard and to lodge any objection he might have. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995).

Judge's Ex Parte Communications with Jury Before Verdict Rendered. - 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).

Assuming arguendo that judge's chance meeting in the corridor with jurors during a recess at which time judge and jurors discussed, inter alia, cameras in the courtroom and selection of a foreman, did constitute a "stage" of a capital proceeding, the error, if any, was harmless beyond a reasonable doubt where there existed in the record a reconstruction of the ex parte conversations. State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 983, 122 L. Ed. 2d 136, rehearing denied, 507 U.S. 967, 113 S. Ct. 1404, 122 L. Ed. 2d 776 (1993).

Where the court found two prospective jurors were ineligible to serve due to their recent service as prospective jurors, and third prospective juror, who had arranged to be a pallbearer at a funeral, was deferred for a "manifestly unobjectionable" reason, the error of the judge in communicating ex parte with the prospective jurors was harmless beyond a reasonable doubt. State v. Adams, 335 N.C. 401, 439 S.E.2d 760 (1994).

Ex parte "communication" between judge and jury, wherein the trial judge routinely inquired about any problems individual jurors might have that he needed to know about, did not violate defendant's state and federal constitutional rights to be present during the proceedings against him, where the trial judge's statement indicated that no such problems were either expressed by the jurors or discussed with them by the trial judge. State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

Where there was a sufficient record of the substance of ex parte communications between the judge and both prosecutor and defense counsel and defendant had opportunity to challenge the ruling in open court when it was announced in his presence, defendant was not prejudiced by the communications. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995).

Private Discussion Between Judge and Jurors Who Had Been Dismissed. - Defendant's State and federal constitutional rights to be present at all stages of his trial were not violated when the trial court talked privately with jurors, since the transcript showed that the trial judge sent all those who still were prospective jurors home and indicated that he was going to talk only to those whom he had dismissed from jury service. State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

No violation of defendant's constitutional right to be present at every stage of his trial, pursuant to this section, occurred on account of the trial court's alleged ex parte communication with, and the excusing of, a juror. The trial court's memorialization of the private communication between the prospective juror, the clerk and the trial court, which was neither questioned nor objected to by defendant or his counsel, disclosed that the prospective juror was excused for a valid reason and that the communication was harmless beyond a reasonable doubt. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562 (2000).

Bailiff's Communication with Prospective Jurors. - Where the bailiff was ordered to engage in unrecorded communications with prospective jurors and the trial jury, the actions of the clerk involved the clerk's administrative duties of calling the jury roll and explaining to the jurors what time they needed to arrive at court and did not relate to the consideration of defendant's guilt or innocence; therefore, no constitutional violation occurred. State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083 (1995).

Scope of cross-examination rests in the discretion of the trial judge, and his rulings thereon will not be disturbed absent a showing of abuse of discretion. State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980); State v. Moses, 52 N.C. App. 412, 279 S.E.2d 59, cert. denied, 303 N.C. 318, 281 S.E.2d 390 (1981).

Trial Judge May Limit Cross-Examination for Purposes of Impeachment. - When cross-examination is made for the purpose of impeaching the credibility of a witness, the method and duration of the cross-examination for these purposes rest largely in the discretion of the trial court, and the trial court may properly exclude such cross-examination when it becomes merely repetitious or argumentative. State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969).

To convict the defendant under the theory of aiding and abetting, the State has the burden of proving, among other things, that the crimes alleged have in fact been committed. Although it is not required that the principal be convicted, the guilt of the principal must be established beyond a reasonable doubt. This burden cannot be carried by testimony concerning judgments rendered in other trials to which the defendant was not a party and not able to cross-examine witnesses. The admission of such evidence violates defendant's right to confrontation under the Constitution of the United States and the Constitution of North Carolina. State v. Brown, 319 N.C. 361, 354 S.E.2d 225 (1987), overruling State v. Duncan, 28 N.C. 98 (1846) and State v. Chittem, 13 N.C. 49 (1830).

Undue Repetition, Argumentativeness and Peripheral Inquiry Should Be Banned. - While it is axiomatic that the cross-examiner ought to be allowed wide latitude, the trial judge has the responsibility to exercise his discretion in such a way that unduly repetitive and argumentative questioning, as well as inquiry into matters which are only peripherally relevant, are banned. State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980).

Right to Prepare and Present Defense Guaranteed. - The constitutional right of a defendant in a criminal prosecution to confront his accusers and adverse witnesses with other testimony, as provided by this section, includes the right to a fair opportunity to prepare and present his defenses, which right must be accorded him not only in form, but in substance as well. State v. Whitfield, 206 N.C. 696, 175 S.E. 93, cert. denied, 293 U.S. 556, 55 S. Ct. 114, 79 L. Ed. 658 (1934); State v. Utley, 223 N.C. 39, 25 S.E.2d 195 (1943); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1949), discussed in 27 N.C.L. Rev. 544 (1949); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949); State v. Whisnant, 271 N.C. 736, 157 S.E.2d 545 (1967).

The right of confrontation carries with it not only the right to face one's accusers and witnesses with other testimony, but also the opportunity fairly to present one's defense. State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962).

Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Every defendant is entitled under the Constitution to have a reasonable opportunity to prepare his defense. This includes the right to consult with his counsel and to have a fair and reasonable opportunity, in the light of all attendant circumstances, to investigate, to prepare, as well as to present his defense. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).

It is implicit in the guarantees of assistance of counsel and confrontation of one's accusers and witnesses that an accused have a reasonable time to investigate, prepare and present his defense. However, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of the circumstances of each case. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, cert. dismissed, 423 U.S. 918, 96 S. Ct. 228, 46 L. Ed. 2d 367 (1975); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976).

The right of a defendant charged with a criminal offense to present to the jury his version of the facts is a fundamental element of due process of law, guaranteed by the federal and state constitutions. State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L. Ed. 2d 559 (1999).

When Right Not Denied by Refusing Continuance. - The denial of a continuance is not prejudicial error where the record fails to show that it would have enabled defendant and his counsel to obtain additional evidence or otherwise present a stronger defense. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948).

Trial court did not err in denying the defendant's motions for a continuance before trial and during trial as the defendant failed to prove he would acquire proof of his innocence because of the continuance. State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002).

When Motion for Continuance Presents Question of Law. - When a motion for a continuance in a criminal case is based on a right guaranteed by U.S. Const., Amend. XIV, this section and N.C. Const., Art. I, § 19, the question presented is one of law and not of discretion, and the decision of the court below is reviewable. State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Atkinson, 7 N.C. App. 355, 172 S.E.2d 249 (1970).

A motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not subject to review on appeal, except in a case of manifest abuse; however, when the motion is based on a right guaranteed by the federal and State Constitutions, the question presented is one of law and the order of the court is reviewable. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, cert. denied, 377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052, rehearing denied, 379 U.S. 874, 85 S. Ct. 28, 13 L. Ed. 2d 83 (1964); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. Beeson, 292 N.C. 602, 234 S.E.2d 595 (1977).

While a motion for continuance is ordinarily addressed to the sound discretion of the trial court, and the trial court's ruling is not subject to review absent abuse of discretion, if the motion is based on the constitutional right of confrontation, in that the refusal of the motion denied defendant a reasonable time within which to prepare and present his defense, the decision of the trial court is reviewable as a question of law. State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978); State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981), overruled on other grounds, 314 N.C. 432, 333 S.E.2d 743 (1985).

Presence of Witnesses Required. - The right of confrontation confirms the common-law rule that, in criminal trials, the witnesses must be present and subject to cross-examination. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

But Not in All Cases. - The right guaranteed by this section does not mean that never under any circumstances shall a criminal charge be prosecuted except by the presence of living witnesses. State v. Dowdy, 145 N.C. 432, 58 S.E. 1002 (1907).

A good faith effort to obtain witness's presence must be shown to justify use of his prior testimony. State v. Biggerstaff, 16 N.C. App. 140, 191 S.E.2d 426 (1972).

Where Child Is Victim. - When considering admission of a child victim's statement to a social worker when the child is found to be incompetent as a witness, the confrontation clause and G.S. § 8C-1, Rule 803(24) require a case-by-case examination of the facts. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Introduction of Transcribed Testimony. - The constitutional right of confrontation is not denied an accused by the introduction at a subsequent trial of the transcribed testimony given at a former trial of the same action by a witness who has since died, become insane, left the State permanently or for an indefinite absence, become incapacitated to testify in court as a result of a permanent or indefinite illness, or absented himself by procurement of, or connivance with, the accused. The accuracy of the transcription must be attested and it must appear that the defendant had a reasonable opportunity to cross-examine the witness. State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967); State v. Biggerstaff, 16 N.C. App. 140, 191 S.E.2d 426 (1972).

Duly Authenticated Copy of Record. - While this section gives to the accused the right to confront his accusers, such does not apply when the facts, from their very nature, can only be proved by a duly authenticated copy of a record. State v. Dowdy, 145 N.C. 432, 58 S.E. 1002 (1907).

Statements falling within an exception to the general prohibition against hearsay may be admitted into evidence without violating a defendant's right to confrontation, if the evidence is reliable. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Where hearsay proffered by the prosecution comes within a firmly rooted exception to the hearsay rule, this constitutional provision was not violated, even though no particularized showing was made as to the necessity for using such hearsay or as to its reliability or trustworthiness. State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998).

Use of Hearsay in Criminal Trial. - A prosecutor is prohibited by U.S. Const., Amend. VI and this section from introducing any hearsay evidence in a criminal trial unless two requirements are met. The prosecution must show both the necessity for using the hearsay testimony and the inherent trustworthiness of the original declaration. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985), cert. denied and appeal dismissed, 316 N.C. 382, 342 S.E.2d 901 (1986).

Use of Hearsay in Sentencing Proceedings. - Trial court did not err in admitting hearsay evidence of an alleged bribe offered to the witness by defendant at defendant's sentencing; further, the use of this hearsay evidence did not violate the Confrontation Clause. State v. Sings, 182 N.C. App. 162, 641 S.E.2d 370 (2007), cert. denied, appeal dismissed, 361 N.C. 574, 2007 N.C. LEXIS 885 (2007).

There is a two-prong constitutional test for the admission of hearsay under the confrontation clause, i.e., necessity and trustworthiness. State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998).

The prosecution in a criminal trial must, as prerequisite to the introduction of hearsay evidence, show the necessity for using the hearsay testimony and establish the inherent trustworthiness of the original declaration. State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998).

In-Court Identification. - Where the evidence shows that witness had a good and sufficient opportunity to observe a defendant at the time the offense was being committed, and testifies that his in-court identification is based on his observation made at that time, the test of "clear and convincing evidence" is met. State v. Jackson, 24 N.C. App. 394, 210 S.E.2d 876, rev'd on other grounds, 287 N.C. 470, 215 S.E.2d 123 (1975).

If there is objection to an in-court identification by a witness who participated in an illegal lineup procedure, such evidence must be excluded unless it be determined on voir dire that the in-court identification is of independent origin and therefore not tainted by the illegal lineup. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Out-of-Court Declarations of Codefendant. - Even when the right of confrontation is afforded to a defendant implicated in the out-of-court declarations of a codefendant, the prejudicial impact of testimony of the codefendant's declarations must be evaluated in the light of the competent evidence admitted against the nondeclarant defendant. The gap between the impact of evidence which is not admitted against but incriminates the nondeclarant and of competent evidence of minimal probative value admitted against him in a given case may be so great as to constitute a denial of due process. State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).

Admission of Codefendant's Confession Inculpating Accused. - An accused's constitutional right of cross-examination is violated at his joint trial with a codefendant who does not testify, when the court admits the codefendant's confession inculpating the accused, notwithstanding jury instructions that the confession must be disregarded in determining the accused's guilt or innocence. State v. Heard, 285 N.C. 167, 203 S.E.2d 826 (1974).

In joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or declarant, and if such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately, assuming (1) that the confession is inadmissible as to the codefendant, and (2) that the declarant will not take the stand. State v. Heard, 285 N.C. 167, 203 S.E.2d 826 (1974).

The improper admission of evidence which violates the right of confrontation does not constitute prejudicial error unless there is a reasonable possibility that such evidence contributed to defendant's conviction. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Prosecution's privilege to withhold the identity of an informant is founded upon public interest in effective law enforcement and its application turns on the facts of each particular case. State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975).

Rights of Person Accused of Offense involving Intoxication. - When a person is taken into police custody for an offense of which intoxication is an essential element, time is of the essence, as intoxication does not last. Thus, if one accused of driving while intoxicated is to have witnesses for his defense, he must have access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest. The statute says he is entitled to communicate with them immediately, and this is true whether he is arrested at 2:00 A.M. or 2:00 P.M. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

Magistrate correctly imposed pretrial release restriction requiring a sober responsible adult to take custody of the defendant pursuant to G.S. § 15A-534.2; there was no constitutional violation of defendant's constitutional right to obtain evidence on his own behalf. State v. Bumgarner, 97 N.C. App. 567, 389 S.E.2d 425, cert. denied and appeal dismissed, 326 N.C. 599, 393 S.E.2d 873 (1990).

A criminal defendant is entitled to offer evidence in defense at trial, either through her own testimony or through the testimony of other witnesses. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Court May Not Forbid Defendant to Offer Detrimental Evidence. - The trial court is not authorized to forbid a defendant appearing in propria persona to offer evidence, otherwise competent, for the reason that, in the judgment of the court, however sound, such evidence would be detrimental to the defendant. The defendant, whether represented by counsel or appearing in propria persona, is entitled to use his own judgment as to the wisdom of introducing otherwise competent evidence. To deny him this right is to deny him his constitutional rights afforded both by U.S. Const., Amend. VI and this section. State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978).

Burden of Showing Denial of Right. - Appellant has the burden of showing not only error but also prejudicial error on appeal of trial judge's refusal to allow cross-examination of a witness. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

The burden is on defendant to show a clear denial of the right of confrontation. State v. Williams, 51 N.C. App. 613, 277 S.E.2d 546 (1981).

Waiver of Right. - The accused has the right to insist upon the production of his accusers, but this is a right which may be and is waived by failure to assert it in proper time. The right must be insisted upon in express terms and a general objection to the evidence is not sufficient. State v. Mitchell, 119 N.C. 784, 25 S.E. 783 (1896).

Defendant may waive the general right to be present at his trial by his voluntary and unexplained absence from court. State v. Davis, 186 N.C. App. 242, 650 S.E.2d 612 (2007), review denied, 362 N.C. 89, 656 S.E.2d 280 (2007).

Right of Confrontation Is Applicable to Contempt Proceedings. - The right of confrontation of the witnesses against an accused is applicable to contempt proceedings; thus, an adjudication of contempt against defendant based on the affidavit of the receiver of a corporation was invalid. Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

Right of Confrontation Does Not Apply to Civil Actions. - The right accorded defendant in a criminal prosecution to confront the witnesses against him does not apply to civil actions. Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904 (1943).

Proper standard for reversal in reviewing violations under this section of defendant's right to be present at all stages of his capital trial is the rigorous standard prescribed for review of violations of defendant's right to be present at trial under the federal Constitution. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

The proper standard for reversal in reviewing violations of defendant's state constitutional right to be present at his capital trial is the "harmless beyond a reasonable doubt" standard, and not the standard apparently prescribed in G.S. § 15A-1443(a). State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

Waiver of Rights. - For a case in which a defendant was held to have waived his rights under this section through his insufficiently explained absence from trial, see State v. Richardson, 330 N.C. 174, 410 S.E.2d 61 (1991).

Admission of Business Records Did Not Violate Defendant's Right of Confrontation. - State investigative reports that gave the results of DNA tests incriminating defendant were properly admitted at his trial for murder and rape under G.S. § 8C-1, N.C. R. Evid. 803(8), as public records, even though the investigator who made the records did not testify. His supervisor testified, the reports concerned routine matters and recorded only ministerial observations, and defendant's right of confrontation was not violated. State v. Forte, 360 N.C. 427, 629 S.E.2d 137 (2006).

Admission of nonhearsay raises no Confrontation Clause concerns; testimony regarding an officer's interaction with a detective and a third individual was non-hearsay, and raised no Confrontation Clause concerns, since it was not admitted to prove the truth of the matter asserted, but rather to show how the officer formed a reasonable suspicion that defendant was involved in the robbery at issue, which in turn justified including defendant's photo in a lineup shown to the robbery victim. State v. Alexander, 177 N.C. App. 281, 628 S.E.2d 434 (2006), cert. denied, appeal dismissed, 361 N.C. 358, 644 S.E.2d 357 (2007).

DNA Tests Incriminating Defendant Properly Admitted. - State investigative reports that gave the results of DNA tests incriminating defendant were properly admitted at his trial for murder and rape as business records under G.S. § 8C-1-803(6), even though the investigator who made the reports did not testify. His supervisor testified, and the reports were not testimonial but were neutral and were not prepared exclusively for trial, and defendant's right of confrontation was not violated. State v. Forte, 360 N.C. 427, 629 S.E.2d 137 (2006).

B. ILLUSTRATIVE CASES.

.

Depositions taken in the absence of a defendant could not be read against him. State v. Webb, 2 N.C. 103 (1794).

The taking of depositions in another state in the absence of the defendant was assumed by the court to be a "stage" of his capital trial. However, it was clear that all of the testimony of the witnesses during the taking of those depositions tended to support mitigating circumstances. The admission of those depositions into evidence during the capital sentencing proceeding, therefore, could not possibly have harmed the defendant. Accordingly, the State bore its burden of showing that any error as a result was harmless beyond a reasonable doubt. State v. McCollum, 334 N.C. 208, 433 S.E.2d 144 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895, reh'g denied, 512 U.S. 1278, 115 S. Ct. 26, 129 L. Ed. 2d 924 (1994).

Denial of pre-trial disclosure of evidence under G.S. § 8C-1, Rule 404(b) did not deprive defendant of a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, §§ 19 and 23 of the North Carolina Constitution. State v. Parker, (N.C. App. Oct. 3, 2000).

Improper Materials Published to Jury. - The defendant's confrontation rights were violated in his murder prosecution, where the prosecutor's notes of an interview with an alleged accomplice as well as a typewritten list of statements attributed to the defendants by an accomplice were inadvertently included among exhibits published to the jury, and neither of the documents had been admitted into evidence and both contained inadmissible material. State v. Hines, 131 N.C. App. 457, 508 S.E.2d 310 (1998).

Business Records. - Entries in the course of business, made upon the books of a railroad company by one who was at the time an agent of the company, and was still living, but was absent from the State, were held not competent evidence of the facts therein set forth upon the trial of a third person for crime. State v. Thomas, 64 N.C. 74 (1870).

Voir Dire. - The questioning of jurors in defendant's absence erroneously deprived defendant of his right to be present at his trial, but the error was harmless where the court was satisfied beyond a reasonable doubt that defendant's absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

This section gives a criminal defendant the right to be present at every stage of her trial. State v. Callahan, 102 N.C. App. 344, 401 S.E.2d 793 (1991).

A capital murder defendant's constitutional right to be present at every stage of the proceedings was not violated by holding 10 bench conferences outside his presence, where the defendant was present in the courtroom and represented by counsel at each conference, and the only unrecorded conference occurred during voir dire of a prospective juror who was excused for cause because her views would prevent or substantially impair her performance as juror. State v. Bonnett, 348 N.C. 417, 502 S.E.2d 563 (1998), cert. denied, 525 U.S. 1124, 119 S. Ct. 909, 142 L. Ed. 2d 907 (1999).

Defendant waived the right to be present during jury selection where defendant refused to sit quietly in the courtroom; defendant waived the right to raise the issue on appeal where defendant did not object at trial or allege plain error. State v. Miller, 146 N.C. App. 494, 553 S.E.2d 410 (2001).

No Right to Be Present at Pre-Trial Venue and Venire Negotiations. - The defendants' federal and state constitutional rights to be present at every stage of their capital trial were not violated when the court ordered the jury drawn from a special venire; although they were not present during out-of-court meetings relating to change of venue or a special venire which took place prior to commencement of defendants' trial, they were present at the hearing on change of venue; furthermore, when the trial court proposed a special venire, both defendants agreed, through counsel. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001).

Private Discussions with Prospective Jurors. - In capital case, trial court's error in having unrecorded private discussions with prospective jurors was harmless beyond a reasonable doubt, as the record did not indicate that any action was taken by the trial judge as a result of these discussions. State v. Scott, 150 N.C. App. 442, 564 S.E.2d 285 (2002), appeal dismissed, cert. denied, 356 N.C. 443, 573 S.E.2d 508 (2002).

Trial court's action in excusing prospective jurors as a result of its private unrecorded bench conferences with them violated defendant's state constitutional right to be present at every stage of the trial and violated statutory requirements to make a true, complete and accurate record of the jury selection in a capital trial pursuant to G.S. § 15A-1241(a). State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990).

Ex Parte Communication with and Dismissal of Jurors Held Harmless. - The court's dismissal of six prospective jurors after unrecorded, private bench discussions was harmless where the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. State v. Cummings, 353 N.C. 281, 543 S.E.2d 849 (2001).

Clerk of Court's Communication with Jurors. - The trial court's direction to the clerk of court to meet privately with jurors about transportation and other logistical matters did not violate the defendants' constitutional rights, although the court omitted a warning to some of the jurors that "no one can answer or would answer any questions about any other aspect of the trial"; absent proof to the contrary, the appellate court assumed that the clerk did not discuss bus routes or travel time or other information which might relate to the crime but limited any discussion to logistics and administrative matters. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001).

Handling And Disclosure of Jury Notes. - The trial court did not violate defendant's federal or state constitutional rights to presence and effective assistance of counsel by refusing to disclose the full content of notes from the jury, failing to let counsel see or read the notes, or responding without eliciting and considering the informed positions of defendant and his counsel where the court substantially disclosed the content, heard from counsel and responded in open court to each of the communications. State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

Absence of Material Witness. - Defendants' right to confrontation was not denied by refusal of a motion to continue, on the ground of the absence of a material, expert, fingerprint witness, where the prosecuting attorney agreed that he would not offer evidence as to fingerprints. State v. Rising, 223 N.C. 747, 28 S.E.2d 221 (1943).

Trial court did not violate this section by denying a capital murder defendant's motions for a recess or continuance and for a mistrial after an eyewitness could not be located; defendant had the benefit of witness' tape-recorded statements to both the Sheriff's Department and his own counsel, and the evidence indicated the witness had gone into hiding for a long period under circumstances indicating no likelihood of locating him within a reasonable period of time. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).

Defendant was not deprived of his constitutional right to present witnesses to confront the evidence against him because his counsel's unsworn statement in support of a continuance, regarding the testimony of a witness whose location had just been discovered the day before, failed to provide detailed proof of a reason for delay and actually supported the State's case. State v. Cody, 135 N.C. App. 722, 522 S.E.2d 777 (1999).

Trial court erred by allowing a witness's deposition testimony to be entered into evidence in lieu of her live testimony due to her military deployment in violation of G.S. § 8C-1, N.C. R. Evid. 804, U.S. Const. amend. VI, and this article because the trial court failed to make the required findings of fact to demonstrate unavailability for the purposes of Rule 804 or the Confrontation Clause, the State failed in its burden of showing that the witness could not be made present at trial by process or other reasonable means, and the State failed in its burden of proving it had carried its constitutionally required burden of demonstrating that it had made a good-faith effort to obtain the witness' presence at trial. State v. Clonts, - N.C. App. - , - S.E.2d - (June 20, 2017).

Inability of Codefendants to Communicate. - Findings in post-conviction proceedings that petitioners, although jointly tried, were not allowed to communicate with one another prior to trial, and that their attempts to contact witnesses and friends were unsuccessful, did not support the lower court's conclusion of law that petitioners had not been denied any rights guaranteed to them by this section and N.C. Const., Art. I, § 19 and by U.S. Const., Amend. XIV. State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615 (1958).

Analysis of Evidence by Expert. - In defendant's trial on a charge of first degree murder, the trial court erred by denying defendant's motion for a continuance so she could find an expert to analyze the State's expert's conclusion that there was blood splatter on defendant's clothes which suggested that defendant was present when a victim was struck, and the appellate court ordered a new trial because the State did not carry its burden of showing that the trial court's ruling was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660 (2003).

Admission of the results of laboratory tests performed by a non-testifying witness did not violate defendant's right to confrontation, under U.S. Const., Amends. VI and XIV or N.C. Const., Art. I, § 23 because defendant was able to cross-examine a witness qualified as an expert who relied on the test results in giving an expert opinion. State v. Thompson, 188 N.C. App. 102, 654 S.E.2d 814 (2008), review denied, 362 N.C. 371, 662 S.E.2d 391 (2008).

Trial court properly denied defendant's motions to strike the death penalty and to suppress ballistics evidence. Because the State's failure to preserve potentially useful evidence from a crime scene was negligent at worst and there was no suggestion of bad faith, defendant's due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and N.C. Const., Art. I, §§ 19 and 23 were not violated. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, - U.S. - , 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

Trial court abused its discretion in excluding defendant's expert from testifying about tampering on defendant's computer, as the expert was experienced with the subject matter and was in a better position to have an opinion on the subject than was the trier of fact. State v. Cooper, 229 N.C. App. 442, 747 S.E.2d 398 (2013), dismissed 753 S.E.2d 783, 2014 N.C. LEXIS 96 (2014).

Inspection of Files of State Bureau of Investigation. - Where there was no contention that anything in the files of the State Bureau of Investigation was admitted in evidence and the record showed that no member of the Bureau testified during the trial, defendants' contention that they were entitled to an inspection of the files of the Bureau in regard to its investigation of the case was untenable, and denial of their petition for such inspection did not violate any of their rights under this section or under U.S. Const., Amends. V, VI, VII and XIV. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964).

State's Failure to Turn Over Ballistics Testing. - Defendant's right to confrontation was violated when the trial court, after ordering the State to turn over test-fired bullets and underlying data examinations for a defense ballistics examination, upon the State's revelation that it had lost the original shells, refused to require the State to retest the weapon in question and allowed the State's ballistics expert to testify. State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002).

Withdrawal of Witness Before Cross-Examination. - Where, during the testimony of a witness, the prosecution asks for and receives permission to withdraw the witness to be recalled later, but closes its case without recalling the witness, defendant, if he wishes to assert his right to cross-examine the witness, must request the court to have the witness return to the stand, and when he fails to do so, he may not assert that he was deprived of his constitutional right of confrontation. State v. Gattison, 266 N.C. 669, 146 S.E.2d 825 (1966), overruled on other grounds, 312 N.C. 276, 322 S.E.2d 133 (1984).

Use of Closed-Circuit Television in Courtroom Held Adequate to Allow Defendant to Cross-Examine 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).

Trial court did not err, pursuant to G.S. § § 15A-1225.1, in its decision to permit a juvenile witness to testify against defendant in the presence of the jury and attorneys, while making defendant go to another room where defendant could watch the proceedings in real time on closed circuit television because defendant's constitutional right to confrontation was not violated as there was a phone in the room so that defendant could cause a signal to flash on the phone on defense counsel's table to indicate that defendant wished to speak with the attorney and defendant's trial counsel had a full opportunity to cross-examine the witness when the witness was on the stand. Furthermore, the testimony of a licensed clinical social worker and psychotherapist, who had years of training and experience in providing therapy to young victims of trauma, supported the trial court's findings of fact and those findings of fact, in turn, supported the trial court's conclusions of law. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619 (2013).

State Fulfilled Confrontation Clause Requirement by Showing Good Faith Attempt. - Where a four-year-old child was unable to answer question put to her regarding sexual abuse due to fear, the judge's declaration that the child "is simply going to be unable to testify," amounted to an implicit declaration of unavailability; the State fulfilled the constitutional requirement of the confrontation clause by showing a good faith attempt to secure the witness for trial since the State produced the witness and attempted to elicit her testimony. State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989).

State Violated Confrontation Clause Requirement Where Good Faith Efforts Were Not Shown. - In a capital murder case, defendant's confrontation rights were violated where there was insufficient evidence to support a conclusion that the State employed good-faith efforts to contact and produce a witness at sentencing. State v. Nobles, 357 N.C. 433, 584 S.E.2d 765 (2003).

Admission of Prior Testimony. - Where a trial was terminated prior to verdict at the instance of defendant in order to obtain other counsel, the testimony of a witness at such trial, with full cross-examination taken in open court and properly attested, was properly admitted in evidence at the subsequent trial when it appeared that the witness was then on military duty outside the boundaries of the United States, and the admission of such testimony did not violate defendant's right of confrontation. State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967).

The admission of co-conspirator/brother's prior trial testimony did not violate the defendant's state or federal constitutional rights to confrontation and cross-examination; where the testimony was trustworthy and more probative than any other evidence which the State could produce through reasonable efforts. State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000).

Admission of Hearsay Evidence Pursuant to an Exception for an Unavailable Declarant. - Appellate court erred in finding that defendant's right to confrontation pursuant to N.C. Const., Art. I, § 23 was violated by allowing an officer to testify pursuant to G.S. § 8C-1, N.C. R. Evid. 804(b)(5), that the deceased victim picked defendant from a lineup; although the hearsay statement was testimonial, and thus implicated the confrontation clause, the error was harmless pursuant to G.S. § 15A-1443(b), as the outcome of the trial probably would have been the same if the lineup was excluded. State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), vacated, remanded, Lewis v. North Carolina, 126 S. Ct. 2983, 165 L. Ed. 2d. 985 (2006) (remanded for further consideration in light of Davis v. Washington, 126 S. Ct. 226, 165 L. Ed. 2d. 224 (2006)).

The trial court's admission of the victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him as guaranteed by both the Sixth Amendment to the United States Constitution and this section, nor did it violate G.S. § 8C-1, Rules 803(3), 404(b), and 403 of the North Carolina Rules of Evidence, where the hearsay statements constituted, and were admissible as, statements of the declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

Record Showing Guilty Plea by Codefendant. - In a prosecution for aiding and abetting, admission of record showing that codefendants had pleaded guilty to the offense deprived defendant of her right of confrontation. State v. Jackson, 270 N.C. 773, 155 S.E.2d 236 (1967).

Where defendant changed his plea from guilty to not guilty and requested the court to allow him time to obtain witnesses from other states, it was error for the court to force him to trial on the succeeding day, since, under the facts of the case, defendant was not given time to prepare for trial. State v. Whisnant, 271 N.C. 736, 157 S.E.2d 545 (1967).

Deprivation of Right to Call for Evidence. - Where the effect of failure of the arresting officer and of the custodian of the arrested person to perform their respective duties was such as to deprive the person of the constitutional right to call for evidence in his favor, his subsequent conviction lacked the required due process of law and could not stand. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

Extrajudicial statements made by defendants which implicated a codefendant were not inadmissible where each declarant took the stand and testified that the substance of the statements attributed to him was false. State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).

Death Certificate. - Defendant's right to confrontation and his right to fundamental fairness in a criminal trial guaranteed by due process were violated by the admission in evidence of the hearsay and conclusory statement in the victim's death certificate. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Disclosure of Informant. - Disclosure of informant whose information led the police to defendant would not be relevant or helpful to defendant where there was ample independent evidence of his guilt. State v. McDougald, 18 N.C. App. 407, 197 S.E.2d 11, cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973).

Where defendant did not contend that informant participated in or witnessed alleged crime, he had no constitutional right to discover the name of the informant. State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975).

Inspection of Witness' Statement. - Defendants' constitutionally protected rights of confrontation, due process, and equal protection were violated by the denial of their request to inspect what they contended was a written pretrial out-of-court statement by the State's witness. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Search Warrant and Affidavit. - It is error to allow a search warrant together with the affidavit to obtain the search warrant to be introduced into evidence, because the statements and allegations contained in the affidavit are hearsay statements which deprive the accused of his rights of confrontation and cross-examination. State v. Jackson, 24 N.C. App. 394, 210 S.E.2d 876, rev'd on other grounds, 287 N.C. 470, 215 S.E.2d 123 (1975).

Admission of Evidence Held Proper. - In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court properly admitted the videotaped statement defendant's wife gave to police, pursuant to G.S. § 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial, properly admitted letters one of defendant's co-conspirators wrote to a girlfriend urging the girlfriend to lie about the girlfriend's involvement in the co-conspirator's attempt to conceal evidence of the crime, pursuant to G.S. § 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and properly admitted evidence of similar crimes defendant committed shortly after the murder, pursuant to G.S. § 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, - U.S. - , 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Admission of Deposition Testimony of State's Absent Witness. - Even though it was error to admit the State's physician's deposition testimony at defendant's murder trial even though the defendant took advantage of his right to cross examine the physician at the deposition, because the defendant did not have the right to confront him at trial; the error was harmless error in view of the overwhelming testimonial and other evidence that the victim died and of the defendant's guilt. State v. Ash, 169 N.C. App. 715, 611 S.E.2d 855 (2005), cert. denied, appeal dismissed, 360 N.C. 66, 621 S.E.2d 878 (2005).

Admission of Hearsay Evidence Where the Declarant was Unavailable. - For purposes of a claim of a confrontation clause violation under N.C. Const., Art. I, § 23, a trial court's confrontation clause analysis of a statement should proceed as follows: the initial determination is whether the statement is testimonial or nontestimonial, and if the statement is testimonial, the trial court must then ask whether the declarant is available or unavailable to testify during the trial; if the declarant is unavailable pursuant to the G.S. § 8C-1, N.C. R. Evid. 804(b)(5) hearsay exception, the trial court must determine whether the accused had a prior opportunity to cross-examine the declarant about this statement, and if the accused had such an opportunity, the statement may be admissible if it is not otherwise excludable hearsay, but if the accused did not have this opportunity, the statement must be excluded. State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), vacated, remanded, Lewis v. North Carolina, 126 S. Ct. 2983, 165 L. Ed. 2d. 985 (2006) (remanded for further consideration in light of Davis v. Washington, 126 S. Ct. 226, 165 L. Ed. 2d. 224 (2006)).

Trial court's denial of defendant's motion for separate trial so prejudiced his defense as to amount to a denial of due process and his right to confrontation where defendant was precluded under the circumstances of the joint trial from introducing evidence of codefendant's out-of-court statement, which would have strengthened defendant's alibi defense. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

New Trial Required Where In-Chambers Conference Held in Defendant's Absence. - Because in-chambers conference that took place with the attorneys in defendant's absence at conclusion of testimony by forensic psychiatry expert was not recorded, and the nature and content of the private discussion could not be gleaned from the record, the State failed to meet its burden of showing that holding in-chambers discussion in defendant's absence was harmless beyond a reasonable doubt, and a new trial was ordered. State v. Exum, 343 N.C. 291, 470 S.E.2d 333 (1996).

Waiver of Plain Error Review. - Defendant's claim that he was deprived of his constitutional rights under the Confrontation Clause by the admission of out-of-court statements was waived under N.C. R. App. P. 10(b)(1) because defendant lodged only a general objection but did not object on constitutional grounds and did not assert on appeal plain error, as permitted under Rule 10(c); thus, plain error review was waived, and defendant's constitutional argument was not properly before the court on appeal. State v. Johnson, 181 N.C. App. 287, 639 S.E.2d 78 (2007), cert. denied, appeal dismissed, 361 N.C. 364, 644 S.E.2d 555 (2007).

No Error in Quashing Subpoena Where Defendant Never Showed Necessity for Compliance. - In an armed robbery prosecution, the trial court did not err in allowing the state's motion to quash the defendant's subpoena for "all the sawed-off shotguns confiscated by the Greensboro Police Department" since the date of the robbery, since defendant never stated why compliance with the subpoena was necessary to his defense, and the burden was on defendant not only to show error but also to show that the error complained of affected the result adversely to him. State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980).

Trial court properly determined that in-court identifications were not tainted by a pretrial photographic procedure, where the court found upon supporting voir dire evidence that the witnesses had ample opportunity to observe defendant during the course of the robbery in question; the in-court identifications of defendant were of independent origin based solely on what the witnesses saw at the time of the robbery and did not result from any out-of-court confrontation, photograph, or pretrial identification procedure; and the pretrial photographic procedures were not so unnecessarily suggestive as to lead to irreparable mistaken identification. State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980).

Judge's Recordation of Findings. - Defendant was not prejudiced by any error that might have resulted from a proceeding, conducted after an evidentiary hearing outside the presence of the jury and after the trial court ruled on defendant's suppression motions in open court, in which the judge merely recorded his own observations with the aid of the prosecutor and a witness; the record was silent as to whether the defendant was present or absent. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Violation of Confrontation Clause Was Not Shown. - Where defendant had the opportunity to cross-examine both witnesses in his murder trial the confrontation clause was not violated as to the victim's grandmother's testimony concerning what she told the defendant and as to the letter written from the victim to the defendant, authenticated by two witnesses. State v. Quick, 323 N.C. 675, 375 S.E.2d 156 (1989).

A capital murder defendant's confrontation rights were not prejudicially violated by his absence from an in-chambers conference, where the court allowed the defendant's request to record the trial in its entirety and discussed possible sequestration of certain witnesses, because these discussions did not relate in any material way to the pending charges. State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), aff'd, 350 N.C. 79, 511 S.E.2d 302 (1999).

Hearsay testimony concerning statements made by a child to a licensed psychological associate during an evaluation interview by a medical center's child sexual abuse team did not violate the defendant's confrontation rights, where the child was found incompetent to testify, and the statements were found to be trustworthy in that they were made for the purpose of medical diagnosis or treatment, and there was no evidence that law enforcement officials were involved in the decision to evaluate the child. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Defendant's confrontation rights under N.C. Const., Art. I, § 23 were not violated when the trial court refused to allow defendant to cross-examine the witness about the witness's disciplinary record, as there were confidentiality concerns about the record pursuant to G.S. § 115C-402, and defendant failed to show how the disciplinary record was relevant to impeach the witness's credibility under G.S. § 8C-1, Rule 608(b). State v. Oliver, 159 N.C. App. 451, 584 S.E.2d 86 (2003).

There was no error in the limitation on defendant's cross-examination of the victim where the reasons for her unwillingness to testify and the possibility of her being held in contempt did not bear on her credibility or bias toward defendant, nor was whether she believed defendant had been tried "enough" relevant to any matter at issue in the trial. State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306 (2005).

Because defendant's cross-examination was not restricted by law, and the trial court did not limit the scope of the examination, defendant's only limitation in cross-examining the police captain was his inability to play the lost videotape to the jury, and defendant had ample opportunity to cross-examine the captain regarding the quality of the videotape, his viewing of the videotape, and about what he saw on the videotape; defendant's confrontation rights under the Sixth Amendment were vindicated and his right to confrontation under N.C. Const., Art. I, § 23 was not violated. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Defendant's right to presence was not violated when the trial judge met with the jury to thank them for their service before discharging them because the jury's service was complete at the time; the meeting occurred after the jury had delivered a unanimous verdict, had been polled, and the trial court recorded the verdict. State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007).

Right to confrontation was not violated when the trial court refused to allow defendant to cross-examine a witness regarding the witness's alleged biased because there was no evidence that the witness, an inmate, received concessions for participating in the case against defendant. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896 (2007), review denied, 361 N.C. 704, 653 S.E.2d 878 (2007), appeal dismissed, review denied, 362 N.C. 372 (2008).

Defendant did not show that law enforcement officers' statements identifying defendant by defendant's nickname constituted inadmissible hearsay and, thus, defendant did not show a prerequisite for a Confrontation Clause violation, namely, that hearsay was involved; the law enforcement officers' identification of defendant was not admitted for the truth of the matter asserted, but instead was admitted to show why their investigation focused on defendant in a case where defendant shot another person. State v. Tate, 187 N.C. App. 593, 653 S.E.2d 892 (2007).

Subpoena defendant served on an out-of-state witness called by the State was invalid because the witness was in North Carolina pursuant to the State's summons and thus, the trial court did not err in releasing the witness after he testified for the State. State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014).

Brevity and Reliability of Witness. - Where testifying witness observed defendant during the day, from a short distance, and long enough to notice his unseasonable clothing, witness's identification of him was not too brief and therefore not inherently incredible, and its admittance into evidence was not violative of his due process rights under this section and N.C. Const., Art. I, §§ 19 and 27. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Unavailable Witness. - Where the record demonstrated the necessity for using hearsay declarations (in this case, unavailability of the witness), and the inherent trustworthiness of the declarations, defendant's confrontation rights were not violated. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Where child victim was unavailable to testify against defendant/father, admission of hearsay statements did not infringe upon the defendant's constitutional right to confront witnesses. State v. Pretty, 134 N.C. App. 379, 517 S.E.2d 677 (1999), cert. denied, appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).

Subject Matter of Bench Conference. - No error where the court documented the subject matter of the bench conference, either at the time of the conference or later in the transcript, and the record demonstrated that none of these conferences implicated defendant's right to confrontation. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Failure of the trial court to grant defendant's requested recess so that defendant could get a bench warrant for a defense witness did not violate defendant's Sixth Amendment right under the United States Constitution to have compulsory process to obtain witnesses and his right under the North Carolina Constitution to confront his accusers with witnesses and other testimony pursuant to this section. State v. Beck, 346 N.C. 750, 487 S.E.2d 751 (1997).

Trial court's exclusion of defendant's proposed cross-examination regarding co-defendant's outstanding warrants was reasonable in view of its repetitive and cumulative effect, was at any rate harmless error beyond a reasonable doubt, and was not a violation of the North Carolina Constitution. State v. McNeil, 350 N.C. 657, 518 S.E.2d 486 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 321 (2000).

Although a juvenile was not present during an evaluator's testimony by conference call, excluding him was harmless beyond a reasonable doubt, as the conference call occurred in the presence of the juvenile's counsel, who cross-examined the witness, the substance of the conference call was placed on the record, the evaluator's opinion was reduced to writing and available to all parties, and the juvenile did not object to his own absence. In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002).

New Trial Ordered Where Detective Allowed to Read a Witness' Statement Taken During Questioning. - Defendant's confrontation clause rights were violated when a trial court allowed a detective to read into evidence a statement the detective took while questioning a suspect in a stolen goods case; regardless of whether the man was unavailable, the statement was testimonial since it was taken in the course of interrogations and defendant had not had a prior opportunity to cross-examine the man regarding his statements; since that was the State's only evidence showing defendant knew the items he possessed were stolen, the error was not harmless and defendant was entitled to a new trial on charges of possession of stolen goods in violation of G.S. § 14-17.1. State v. Morton, 166 N.C. App. 477, 601 S.E.2d 873 (2004).

Requested Instructions. - In defendant's conviction for robbery with firearm, the trial court did not err in denying defendant's requested jury instructions that the victim had an interest in this case because of pending criminal charges; although the trial court's instruction was more general than defendant's requested instructions, it substantially conformed with defendant's request, and defendant was also allowed to cross-examine the victim regarding the pending criminal charges, and was allowed to argue the point to the jury. State v. Geddie, - N.C. App. - , - S.E.2d - (Feb. 18, 2003).

Denial of Continuance Motion. - Trial court did not err in denying defendant's motion for a continuance where the State, in defendant's attempted first-degree murder and assault with a deadly weapon case, presented defendant with a statement on the morning of trial that it had obtained from the man who had allegedly sold defendant the gun used in the shootings involved in defendant's case; defendant had not shown evidence that he would have been better prepared had the motion to continue been granted or that he was materially prejudiced by the denial of his motion, and defendant was given a recess by the trial court to allow his counsel to interview the man. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005).

Defendant's constitutional right to presence at trial was not violated by the denial of motions for continuance because defendant's absence from the second and third days of trial was only explained by contact with a defense witness, not defense counsel or the trial court, indicating that defendant was in the hospital with chest pains; a letter indicating that defendant had been in the hospital for observation did not offer a diagnosis or prognosis, and, thus, no medical emergency was shown, so defendant's absence could not be deemed involuntary. State v. Russell, 188 N.C. App. 625, 655 S.E.2d 887 (2008).

Denial of motion for a continuance to secure the attendance and testimony of a sergeant as a necessary and material witness for the defense was not erroneous because defendant did not articulate any specific facts about which the sergeant would testify and which would substantiate defendant's defense. State v. Walston, 193 N.C. App. 134, 666 S.E.2d 872 (2008).

Defendant's presence during drawing of prospective jurors. - Defendant was not deprived of his right to presence under the confrontation cause of the Constitution of North Carolina, as nothing suggested that the clerk failed to draw prospective jurors at random, in open court, and in defendant's presence. State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007).

Harmless Error. - While a trial court found juror misconduct violating defendant's constitutional rights where a juror looked up a drug on the Internet, the trial court properly denied a motion for appropriate relief because the constitutional violation was harmless beyond a reasonable doubt where there was no reasonable possibility that the mentioning of the Internet finding could have had an effect on an average juror. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433 (2010).

IV. RIGHT TO COUNSEL.

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A. IN GENERAL.

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Right to Counsel Guaranteed. - An accused's right to counsel in a criminal prosecution is guaranteed by the U.S. Const., Amend. VI and is applicable to the states through U.S. Const., Amend. XIV, N.C. Const., Art. I, § 19 and this section. State v. Shores, 102 N.C. App. 473, 402 S.E.2d 162 (1991).

A defendant has the constitutional right to be represented by counsel whom he has selected and employed. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948); State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

Both the State and federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).

This right is not intended to be an empty formality. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).

But to Guarantee Effective Assistance. - The right to counsel is not intended to be simply an empty formality, but is intended to guarantee effective assistance of counsel. State v. Mathis, 293 N.C. 660, 239 S.E.2d 245 (1977); State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978); State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Constitutional right to counsel has long been recognized as an entitlement to the effective assistance of counsel. State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982).

But the right to counsel does not guarantee the best available counsel, errorless counsel, or satisfactory results for the accused. State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974); State v. Fuller, 27 N.C. App. 249, 218 S.E.2d 515 (1975); State v. Mathis, 293 N.C. 660, 239 S.E.2d 245 (1977).

Defendant's right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same. State v. Poole, 305 N.C. 308, 289 S.E.2d 335 (1982).

Right to Counsel May Be Forfeited - The defendant forfeited his right to counsel and the trial court did not err by requiring him to proceed pro se, without conducting an inquiry pursuant to G.S. § 15A-1242, where he was twice appointed counsel as an indigent, each time releasing his appointed counsel and retaining private counsel. Defendant was disruptive in the courtroom on two occasions, refused to cooperate with his counsel and assaulted him, resulting in an additional month's delay in the trial. State v. Montgomery, 138 N.C. App. 521, 530 S.E.2d 66 (2000).

The rights of communication go with the man into the jail, and reasonable opportunity to exercise them must be afforded by the restraining authorities. The denial of an opportunity to exercise a right is a denial of the right. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

And Are Not Limited to Receiving Professional Advice from Attorney. - Under this section, a defendant's communication and contacts with the outside world are not limited to receiving professional advice from his attorney. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

A defendant is entitled to consult with friends and relatives and to have them make observations of his person. The right to communicate with counsel and friends necessarily includes the right of access to them. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

The fact that a person is a defendant's lawyer, as well as his friend, does not impair his right to see the defendant at a critical time of the proceedings. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

The refusal of a jailer to permit the defendant's attorney to confer with him while he was in jail is a denial of a constitutional right. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).

Denial of Opportunity to Consult with Counsel, Family or Friends. - Where defendant was held in custody for nearly ten days without the opportunity to consult with counsel, or confer with his own family and friends, or have his interests protected, and was questioned during this entire period intermittently, denied sleep, and removed from one place to another, all the time being denied the opportunity to consult with counsel or friends, or appear before a committing magistrate, and other requirements such as being fully advised of his constitutional rights were not properly afforded defendant, his rights under this section were directly violated. Pugh v. North Carolina, 238 F. Supp. 721 (E.D.N.C. 1965).

It is the obligation of the attorney to serve as counselor and advocate to his client. State v. Luker, 65 N.C. App. 644, 310 S.E.2d 63 (1983), rev'd on other grounds, 65 N.C. App. 644, 316 S.E.2d 309 (1984).

Counsel Must Have Opportunity to Investigate, Prepare and Present Defense. - Since the law regards substance rather than form, the constitutional guaranty of the right of counsel contemplates not only that a person charged with crime shall have the privilege of engaging counsel, but also that he and his counsel shall have a reasonable opportunity in the light of all attendant circumstances to investigate, prepare and present his defense. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971); State v. Alderman, 25 N.C. App. 14, 212 S.E.2d 205 (1972), appeal dismissed, 287 N.C. 261, 214 S.E.2d 433 (1975).

The right to the assistance of counsel includes the right of counsel to confer with witnesses, to consult with the accused and to prepare his defense. State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Implicit in the constitutional right to effective counsel is that an accused and his counsel shall have a reasonable time to investigate, prepare and present the defense. State v. Minshew, 33 N.C. App. 593, 235 S.E.2d 866 (1977).

Amount of Preparation Time. - Effective assistance of counsel, as guaranteed by U.S. Const., Amend. VI and N.C. Const., Art. I, § 19 and this section, is denied unless counsel has adequate time to investigate, prepare and present his client's defense. Even so, no set time is guaranteed and whether a defendant is denied effective assistance of counsel must be determined upon the circumstances of each case. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978); State v. Moore, 39 N.C. App. 643, 251 S.E.2d 647, appeal dismissed, 297 N.C. 178, 254 S.E.2d 39 (1979); State v. Poole, 305 N.C. 308, 289 S.E.2d 335 (1982).

The circumstances surrounding the trial court's denial of the defendant's motion to continue did not demonstrate that it was unlikely that the defendant could have received effective assistance of counsel. The defendant failed to offer evidence tending to establish a violation of his constitutional right to a reasonable time to investigate, prepare and present his defense for murder charge and did not show that he had inadequate time to confer with counsel or that counsel had inadequate time to prepare for trial. State v. Tunstall, 334 N.C. 320, 432 S.E.2d 331 (1993).

Responsibility of Defendant for Lack of Preparation Time. - The conduct of a defendant in failing either to retain counsel or to avail himself of his right to court appointed counsel, if he is indigent, may make him solely responsible for any lack of trial preparation on the part of his counsel. State v. McDiarmid, 36 N.C. App. 230, 243 S.E.2d 398 (1978).

Where defendant was offered an opportunity to contact counsel, and he assured officers that he would seek his own counsel to assist him, and continued to assure the officers that he intended to employ private counsel, defendant's constitutional rights were not violated by eight days' delay in appointment of counsel. State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

When Failure to Grant Continuance Is Denial of Effective Assistance. - Unless counsel suggests the existence of material witnesses or information that would possibly lead to material evidence or material witnesses, the mere failure to grant a continuance in order to make an investigation would not, in and of itself, constitute a denial of effective assistance of counsel. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

In a prosecution for kidnapping and assaulting a policeman with a firearm, the trial court erred in denying defendant's motion for a continuance where the 17 days defendant's counsel had to prepare for trial was not a reasonable time under the circumstances. State v. Moore, 39 N.C. App. 643, 251 S.E.2d 647, appeal dismissed, 297 N.C. 178, 254 S.E.2d 39 (1979).

Where after the convening of the term the trial court ordered a special venire from another county to try defendant for rape, and counsel for defendant challenged the array on the ground that persons of defendant's race had been excluded from the jury list solely because of their race, but the court refused the request of counsel for time to investigate and secure evidence in support of such challenge to the array, although counsel obtained evidence from members of the special venire and bystanders of the courtroom tending to sustain the challenge, it was held that as it appeared that defendant was prejudiced by denial of reasonable opportunity to procure evidence in support of his challenge to the array, a new trial would be awarded for the denial of defendant's constitutional right to be properly represented by counsel. State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949).

The defendant was entitled to a new trial because the court's denials of his repeated motions for a continuance resulted in a violation of his constitutional rights to effective assistance of counsel, to confront his accusers, and to due process of law. Defendant's counsels had only thirty-four days to prepare for a complex, bifurcated capital case, involving multiple incidents in multiple locations over a two-day period, which they took over from another attorney who had done little other than filing pretrial motions while trying to persuade the defendant to accept a plea bargain. No evidence existed that any witness interviews had been performed; the orders based on the trial court's rulings on pretrial motions had not been prepared; and a jury questionnaire was not submitted for distribution to prospective jurors. State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000).

Trial court did not err or violate defendant's constitutional rights in denying defendant's motion for a continuance to permit defendant to procure an expert witness to evaluate and testify as to the State of North Carolina's DNA evidence because defendant had sufficient time to review the evidence against defendant and to procure the assistance of an expert, but simply failed to do so in time. State v. King, 227 N.C. App. 390, 742 S.E.2d 315 (2013).

There are no set rules to determine whether a defendant has been deprived of effective assistance of counsel; rather each case must be approached upon an ad hoc basis, viewing circumstances as a whole in order to determine this question. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978).

The question of inadequacy of representation cannot be determined solely upon the amount of time counsel spends with the accused or upon the intensiveness of his investigation. State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974).

Test of effective assistance of counsel is whether the assistance given was within the range of competence demanded of attorneys in criminal cases. State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982); State v. Scober, 74 N.C. App. 469, 328 S.E.2d 590 (1985).

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not be relied on as having produced a just result. State v. Dockery, 78 N.C. App. 190, 336 S.E.2d 719 (1985).

Farce and Mockery of Justice Test. - The incompetency of counsel for the defendant in a criminal prosecution is not a constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice. State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974); State v. Mathis, 293 N.C. 660, 239 S.E.2d 245 (1977); State v. McDiarmid, 36 N.C. App. 230, 243 S.E.2d 398 (1978); State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981).

Each case must be approached upon an ad hoc basis, viewing the circumstances as a whole, in order to determine whether an accused has been deprived of effective assistance of counsel. State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974); State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981).

Breach of Attorneys' Duty Does Not Automatically Require Reversal. - The duties of an attorney representing a criminal defendant include the duty of loyalty, a duty to advocate defendant's cause, and the duty to consult with defendant, investigate defendant's case and keep defendant informed. However, a breach of one of these duties does not automatically require reversal of defendant's conviction. Defendant must also demonstrate that the professionally unreasonable conduct of his counsel resulted in prejudice to defendant. State v. Dockery, 78 N.C. App. 190, 336 S.E.2d 719 (1985).

For case upholding finding of fact that defendant's counsel was not ineffective but that if he was, defendant did not show any prejudice, see State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988).

Appointment on Day Before Trial. - It is not ipso facto a denial of effective assistance because counsel were notified of their appointment and on the same day learned that the cases would be called for trial the following day. State v. Alderman, 25 N.C. App. 14, 212 S.E.2d 205 (1972), appeal dismissed, 287 N.C. 261, 214 S.E.2d 433 (1975).

Conflict of Interest. - Defendant's rights under the Sixth Amendment and N.C. Const., Art. I, §§ 19 and 23 were not violated by the denial of defense counsel's motion to withdraw since an inquiry was conducted into counsel's allegation that counsel had a conflict of interest under N.C. Rev. R. Prof. Conduct 1.7(a) because a former client was called as a witness against defendant; there was no conflict since: (1) counsel had represented the witness three years prior to defendant's trial and was no longer representing the witness; (2) counsel had no recollection as to specifics of the witness's case aside from the fact that the witness had been convicted; (3) counsel's statement that counsel would review counsel's file to see if counsel had any information to help defendant proved that counsel was committed to defendant's case; and (4) counsel made significant inroads to undermine the witness's credibility. State v. Thomas, 187 N.C. App. 140, 651 S.E.2d 924 (2007).

As defendant was effectively forced to go to trial while represented by trial counsel who had previously represented one of the State's witnesses and who acknowledged being in the possession of confidential information which might be useful for purposes of cross-examining that witness, defendant was entitled to a new trial. State v. Gray, 225 N.C. App. 431, 736 S.E.2d 837 (2013), review denied, 747 S.E.2d 534, 2013 N.C. LEXIS 784 (2013).

Physical Incapacity. - The question of effective assistance of counsel involving the physical incapacity of counsel does not turn on the physical incapacity of counsel as such, since this may or may not deprive a defendant of effective representation. Rather, it is necessary to examine counsel's specific acts or omissions. The reviewing court must approach such questions ad hoc and in each case view the circumstances as a whole. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Notwithstanding the defense attorney's hearing disability, his efforts and the assistance of co-counsel provided defendant with effective legal representation throughout the criminal proceedings. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Improper Mitigating Factors Tendered. - The defendant's right to present a complete defense, including evidence of mitigating circumstances, pursuant to this section, was not violated by the exclusion of friend of defendant's statement regarding the effect defendant's death would have on him; a third party's feelings are irrelevant to the capital sentencing proceeding. State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000), cert. denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001).

Denial of Continuance to Prepare Closing Argument. - Defendant's right to effective assistance of counsel was not denied when the trial court refused to continue the trial to give the defendant's counsel the weekend to prepare a closing argument for the guilt-innocence determination phase of the trial; defense counsel's closing argument met an objective standard of reasonableness and was within the range of competence demanded of attorneys in capital cases. State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

Admission of Testimony of Second Psychiatric Examination. - Defendant's right to effective assistance of counsel was not violated by admission of second treatment team's testimony as to information obtained during second court-ordered psychiatric examination, even though that admission was for the purpose of determining his capacity to proceed, as opposed to his sanity at the time of the crime; defendant had the opportunity to discuss with his lawyer whether or not to submit to the second court-ordered examination and to discuss its scope as well, and the absence of express language in the second order specifying defendant's examination to determine his mental state at the time of the offenses was not significant. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated and remanded for further consideration at, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532, 402 S.E.2d 577 (1991).

In a murder prosecution, the admission of psychiatric testimony as to defendant's mental state at the time of the crime did not affect his right to counsel because he had placed his mental condition in issue when he moved to continue the trial due to his psychiatric illness and asserted the defense of diminished capacity and inability to formulate the intent to kill, and he had the opportunity to consult with counsel concerning the scope of the examination conducted by the testifying psychiatrist. State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690 (2003), appeal dismissed, cert. denied, 357 N.C. 466, 586 S.E.2d 466 (2003).

The mere fact that defendant was convicted does not show that his counsel was either incompetent, neglectful or ineffective. State v. Mathis, 293 N.C. 660, 239 S.E.2d 245 (1977).

Burden on Defendant to Show Supportable Defense. - In bringing an ineffective assistance claim based on the failure to adequately present a defense, the central question is whether a supportable defense could have been developed. The burden of showing the probability that this defense existed is on the defendant. State v. Dockery, 78 N.C. App. 190, 336 S.E.2d 719 (1985).

Trial Court Hearings on Effectiveness of Counsel. - The trial judge, who actually sees the lawyer's behavior, is better able than an appellate court to evaluate the overall effectiveness of representation. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Because defendant did not waive her right to conflict free counsel, she argued that she claimed possession of the heroin and the paraphernalia to protect her boyfriend, and because he was represented by defense counsel's boss, there was a potential for a conflict under N.C. R. Prof. Conduct 1.7(a); thus, a hearing should have been held. State v. Mims, 180 N.C. App. 403, 637 S.E.2d 244 (2006).

The question of alleged failure of counsel to render effective representation can be considered on direct appeal. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978).

Decision Not to Introduce Evidence. - The trial court's deferral of its ruling on whether introduction of certain evidence by defendant would open the door to permit the State to introduce irrelevant and prejudicial evidence about defendant's prior convictions did not improperly chill the defendant's rights to introduce evidence; his decision not to introduce the evidence was purely tactical and did not implicate any rights. State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, - N.C. - , 619 S.E.2d 854 (2005).

Ineffective Representation Shown. - The counsel's substandard performance was prejudicial to the rape defendant, where the defense's failure to produce any evidence to support the theories proffered at the outset of the trial, including consent of the victim and inability of the defendant to perform the alleged acts, formed the basis of one of the principal closing arguments made by the State in favor of conviction. State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987).

Defendant's Burden to Show Ineffectiveness of Counsel. - Defendant's first degree murder conviction for stabbing his wife to death was affirmed because defendant failed to show ineffective assistance of counsel as he did not meet his burden of showing a reasonable probability that, but for defense counsel's failure to raise an issue at trial, the result of his proceedings would have been different. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Defendant's claim of ineffective assistance of counsel failed because defendant failed to satisfy his burden that there was a reasonable probability that a different outcome would have occurred if counsel had presented additional evidence of defendant's drug and alcohol problem. State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006).

Appointment of Counsel for Limited Purpose of Furnishing Advice. - Defendant was not prejudiced in any respect by the appointment of counsel for the limited purpose of furnishing advice to him if so requested, even though defendant did waive counsel and conducted his own defense. State v. Harper, 21 N.C. App. 30, 202 S.E.2d 795, cert. denied, 285 N.C. 375, 205 S.E.2d 100 (1974).

Rule Requiring Objection to Evidence when Offered Applies to Unrepresented Defendant. - Unless necessary to obviate manifest injustice, the rule applicable to a represented defendant, that the admission of incompetent evidence alone is not ground for a new trial where there was no objection at the time the evidence was offered, applies equally to an unrepresented nonindigent defendant. State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).

B. WHEN RIGHT APPLIES.

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A defendant is entitled to counsel at every critical stage of the proceedings against him. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

Although a defendant is granted a general right to counsel to assist in his or her defense, that right does not attach to all events leading to trial. The right attaches only to "critical" stages of the proceedings, those proceedings where the presence of counsel is necessary to assure a meaningful defense. State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S. Ct. 1041, 71 L. Ed. 2d 322 (1982).

Determining When Proceeding Is a Critical Stage. - In deciding whether a particular proceeding constitutes a critical stage, courts must focus their inquiry on whether the presence of counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right to meaningfully cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S. Ct. 1041, 71 L. Ed. 2d 322 (1982).

The guarantee of counsel only applies to "critical stages" of the prosecution, and what constitutes a critical stage is determined both from the nature of the proceedings and from the facts in each case. State v. Hall, 39 N.C. App. 728, 252 S.E.2d 100 (1979).

In Connection With Right to Testify. - Defendant was improperly forced to choose between testifying in defendant's own behalf or being represented by counsel at trial; by choosing to testify, defendant was forced to relinquish defendant's constitutional right to the assistance of counsel under the Sixth Amendment and N.C. Const., Art. I, § 23. The error was not harmless under subsection (b) of G.S. § 15A-1443 since the right to counsel was so basic to a fair trial that its infraction could never be treated as harmless error. State v. Colson, 186 N.C. App. 281, 650 S.E.2d 656 (2007), cert. denied, appeal dismissed, 362 N.C. 89, 656 S.E.2d 280 (2007), review denied, 362 N.C. 89, 656 S.E.2d 280 (2007), State v. Colson, 186 N.C. App. 281, 650 S.E.2d 656 (2007), cert. denied, appeal dismissed, 362 N.C. 89, 656 S.E.2d 280 (2007).

Administration of Gunshot Residue Test. - The administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches. State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S. Ct. 1041, 71 L. Ed. 2d 322 (1982).

Pretrial Identification Proceedings. - A defendant has a constitutional right to presence of counsel during a pretrial identification only when adversary judicial criminal proceedings have been instituted against him prior to the confrontation. State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384 (1980).

Because defendant's initial forfeiture did not carry over to his resentencing hearing, and a new inquiry conducted pursuant to G.S. § 15A-1242 was required for defendant to properly waive the right to counsel at the resentencing hearing; since no such inquiry occurred, defendant was deprived of the right to counsel at the resentencing hearing and was entitled to be resentenced. State v. Boyd, 205 N.C. App. 450, 697 S.E.2d 392 (2010).

Identification in One-Man Showup Conducted at Victim's Home. - The trial court properly admitted a burglary victim's in-court identification of defendant and evidence of the victim's identification of defendant in a one-man showup conducted at the victim's home within an hour after the crime and at a time when defendant was without counsel and had not waived counsel since (1) defendant was not entitled to counsel at the one-man showup because he was not in custody, (2) there was no reasonable possibility that the one-man showup could have led to a mistaken identification or contributed to defendant's conviction, and (3) the in-court identification of defendant by the victim was independent in origin and was not influenced by the showup. State v. Tann, 302 N.C. 89, 273 S.E.2d 720 (1981).

Lineup. - Accused is constitutionally guaranteed counsel at an in-custody lineup identification. When counsel is not present at the lineup, testimony of witnesses that they identified the accused at the lineup is rendered inadmissible, and any in-court identification is also rendered inadmissible, unless the trial judge first determines on a voir dire hearing that the in-court identification is of independent origin and is untainted by the illegal lineup. State v. Ingram, 20 N.C. App. 35, 200 S.E.2d 417 (1973).

Unless presence of counsel at a lineup is understandingly waived by the accused, testimony concerning the lineup must be excluded in absence of counsel's attendance. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Examination of Photographs. - Right to counsel's presence is not extended to out-of-court examinations of photographs which include a suspect, whether he is in custody or at liberty. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

An accused has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether the suspect is at liberty or in custody at the time. State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Probable Cause Hearing. - A probable cause hearing is a "critical stage" of the criminal process entitling an indigent person to appointed counsel if he desires assistance of counsel. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

Where defendant had waived his right to have assigned counsel at the preliminary hearing, but made a specific request for a lawyer prior to the selection of the jury at his trial in the superior court, he was entitled to be represented by counsel. State v. Haire, 19 N.C. App. 89, 198 S.E.2d 31 (1973).

Jury Instructions. - The trial court committed reversible error by administering admonitions to the jurors out of open court and in the absence of the defendant, counsel, or a court reporter. State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987); State v. Boyd, 332 N.C. 101, 418 S.E.2d 471 (1992).

Although the trial court erred in refusing to allow defendant's counsel to examine the questions that the jury posed in defendant's murder trial, the circumstances did not completely deprive defendant of counsel; after the trial court received the questions, the trial court merely repeated the original jury instructions that it had given and did not give any new instructions. State v. Smith, 188 N.C. App. 207, 654 S.E.2d 730 (2008).

What Constitutes Critical Stage Where Offense Involves Intoxication. - A critical stage has been reached in a defendant's case when, immediately after officers have interrogated the defendant and conducted their test for sobriety, they charge him with the offense of driving while intoxicated. The denial of counsel at this point makes it impossible for a defendant to have disinterested witnesses observe his condition and to obtain a blood test by a doctor - the only means by which defendant might prove his innocence. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

A defendant's guilt or innocence of driving while intoxicated depends upon whether he is intoxicated at the time of his arrest. His condition then is the crucial and decisive fact to be proven. Permission to communicate with counsel and friends is of no avail if those who come to the jail in response to a prisoner's call are not permitted to see for themselves whether he is intoxicated. In this situation, the right of a defendant to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971).

Trial for Misdemeanors. - Defendant was not denied his constitutional right to counsel by failure of the trial court to appoint counsel to represent him in the consolidated trial of two misdemeanors, where neither offense was a serious offense, notwithstanding the fact that the maximum punishment for the two offenses could have been seven months. State v. Speights, 12 N.C. App. 32, 182 S.E.2d 204, aff'd, 280 N.C. 137, 185 S.E.2d 152 (1971).

Juvenile Proceedings. - In order to comply with due process in a juvenile delinquency proceeding, the right of the juvenile to be represented by an attorney must be considered and an attorney provided or there must be a proper waiver of this right. In re Walker, 14 N.C. App. 356, 188 S.E.2d 731, aff'd, 282 N.C. 28, 191 S.E.2d 702 (1972).

C. APPOINTMENT OF COUNSEL FOR INDIGENTS.

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It is a cardinal principle of criminal law that an indigent defendant has the right under U.S. Const., Amend. VI to assistance of counsel for his defense. State v. Luker, 65 N.C. App. 532, 310 S.E.2d 63 (1983), rev'd on other grounds, 65 N.C. App. 644, 316 S.E.2d 309 (1984).

Prompt appointment of counsel in a capital case is mandatory and is required by this section. State v. Pearce, 266 N.C. 234, 145 S.E.2d 918 (1966).

Statute Making Appointment of Counsel for Indigents Discretionary Held Unconstitutional. - Former G.S. § 15-4.1, insofar as it purported to leave to the discretion of the trial judge the appointment of counsel for indigent defendants charged with serious offenses, was unconstitutional. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

The trial judge must make an express finding as to defendant's indigency or lack of indigency. State v. Pickens, 20 N.C. App. 63, 200 S.E.2d 405 (1973).

Where defendant is charged with a serious crime, it is important for the trial judge to determine in the first instance the question of indigency and for the record to show whether lack of counsel results from indigency or choice. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

Defendant is entitled to a detailed investigation into his economic situation. State v. Pickens, 20 N.C. App. 63, 200 S.E.2d 405 (1973).

Absence of Standards. - The theory that right to counsel has been denied because of absence of definite standards for determining indigency has been rejected by the Court of Appeals. State v. Smith, 27 N.C. App. 379, 219 S.E.2d 277 (1975).

When Defendant Prejudiced by Insufficient Inquiry. - Although it was incumbent upon the trial court to make a more sufficient inquiry into defendant's financial status and to determine the question of his indigency, defendant was not prejudiced unless he could show that he did not voluntarily and intelligently waive counsel. State v. Pickens, 20 N.C. App. 63, 200 S.E.2d 405 (1973).

Denial of counsel without evidence to support a finding of nonindigency entitles defendant to a new trial. State v. Haire, 19 N.C. App. 89, 198 S.E.2d 31 (1973).

Indigent Defendant May Waive Right to Counsel. - The purpose of the statutory provision for appointment of counsel, at public expense, for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny, or to restrict the right of the indigent to waive counsel, i.e., to represent himself, while permitting the affluent defendant to exercise such right, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the power of the legislature. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972).

Investigators did not violate U.S. Const., amends. VI and XIV or N.C. Const., Art. I, §§ 19 and 23 by continuing to question defendant after appointed provisional counsel arrived at the sheriff's office and requested to see defendant where defendant voluntarily waived his Miranda rights, initialed the form, and did not request an attorney at any time before he made a statement. State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012).

And May Represent Himself. - A defendant in a criminal proceeding has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539 (1975), overruled on other grounds, State v. Barnes, 324 N.C. App. 539, 380 S.E.2d 118 (1989).

A defendant on the trial of a criminal case, including a coram nobis proceeding at which the defendant is present and witnesses are to be examined and cross-examined, has a right to conduct and manage his own case pro se. The right to act pro se is a right arising out of the federal Constitution and not the mere product of legislation or judicial decision. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972).

Defendant appearing pro se by his own choice does so at his peril and does not automatically become a ward of the court. State v. McDougald, 18 N.C. App. 407, 197 S.E.2d 11, cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973).

Court Did Not Err in Refusing to Allow Defendant Represented by Appointed Counsel to Make Pro Se Closing Argument. - Trial court did not err when it refused to let defendant, who was represented by appointed counsel, make a closing argument to the jury. State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22 (2004), cert. denied, 359 N.C. 193, 607 S.E.2d 653 (2004), aff'd, - N.C. - , 611 S.E.2d 833 (2005), remanded, Forrest v. North Carolina, 126 S.C. 29777 (U.S. 2006).

Revocation of Waiver of Appointed Counsel. - Trial court did not err when the court allowed defendant to be represented by counsel because there was no evidence that the trial court expressly forced appointed counsel on defendant; after defendant voluntarily revoked his waiver of appointed counsel and informed the trial court that he would no longer represent himself but would be represented by his court-appointed attorney, the trial court ensured that representation by the court-appointed attorney was fully defendant's choice before the court appointed defense counsel. State v. Worrell, 190 N.C. App. 387, 660 S.E.2d 183 (2008), appeal dismissed, review denied, 362 N.C. 688, 671 S.E.2d 531 (2008), review dismissed, 363 N.C. 589, 684 S.E.2d 160 (2009).

Request for Substitution of New Counsel. - Trial court's denial of defendant's request to have appointed counsel removed was not error, because appointed counsel was an experienced attorney and defendant's disagreements as to trial strategy and defense counsel's questioning on cross-examination was not sufficient to render counsel's assistance ineffective. State v. Glenn, 221 N.C. App. 143, 726 S.E.2d 185 (2012).

Condition of probation requiring the defendant to reimburse the State for costs of court-appointed counsel does not infringe upon defendant's constitutional right to counsel. State v. Foust, 13 N.C. App. 382, 185 S.E.2d 718 (1972), overruled on other grounds in State v. Young, 21 N.C. App. 316, 204 S.E.2d 185 (1974).

Facts Held Insufficient to Sustain Finding of Nonindigency. - The fact that the defendant was a painter capable of earning $60.00 per week when he was able to obtain work and that he had made little, if any, effort to secure counsel, either privately or by court appointment, was not sufficient to sustain a finding that he was not indigent at the time of trial and, therefore, not entitled to a court-appointed attorney when one was requested at the trial. State v. Haire, 19 N.C. App. 89, 198 S.E.2d 31 (1973).

D. WAIVER.

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Right to Represent Oneself. - A defendant's right to represent himself is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution; by this section of the North Carolina Constitution; and by G.S. § 15A-1242. State v. LeGrande, 346 N.C. 718, 487 S.E.2d 727 (1997).

Defendant was deprived of the constitutional right to self-representation because defendant was not allowed to represent himself despite the fact that the record showed that defendant was competent, understood, and voluntarily exercised his free will, the trial court clearly expressed its that opinion it would be mistake for defendant to represent himself and warned defendant he would have to "play by the rules." State v. Walters, 182 N.C. App. 285, 641 S.E.2d 758 (2007).

Although a trial court required that defendant either proceed with counsel or represent himself, that decision did not violate defendant's constitutional right to counsel under N.C. Const., Art. I, § 23. State v. Covington, 205 N.C. App. 254, 696 S.E.2d 183 (2010).

Trial court did not abuse its discretion by denying the mother's request to waive counsel and represent herself in a proceeding that adjudicating her children abused and neglected juveniles because G.S. § 7B-602(a1) did not require the trial court to allow parents to waive counsel and represent themselves but rather gave the trial court the discretion to do so, the court held that there was no constitutional right to self-representation for a parent in an abuse, neglect, and dependency proceeding, and it was apparent that the mother was entirely under the control of her boyfriend and was incapable of understanding the effect his behavior had had on her children. In re J.R., - N.C. App. - , 791 S.E.2d 922 (2016).

Right to Counsel May Be Waived. - A defendant in a criminal proceeding, whether at trial or in pretrial proceedings, may waive his right to counsel if he does so freely and understandingly and with full knowledge. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978); State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999).

First degree felony murder and conspiracy to commit robbery with dangerous weapon convictions were affirmed since the trial court's decision to admit a videotape of the defendant's post-Miranda interrogation was properly based on substantial evidence that he (1) signed a waiver of, and (2) never made a clear, unambiguous, and unequivocal assertion of his right to counsel, and did not assert his right to remain silent. State v. Ash, 169 N.C. App. 715, 611 S.E.2d 855 (2005), cert. denied, appeal dismissed, 360 N.C. 66, 621 S.E.2d 878 (2005).

Failure to ask for a lawyer does not constitute waiver of a defendant's right to counsel. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

But Defendant Need Not Know the Source of the Right Before Waiving It. - The court disagreed with contention by the defendant that in order to waive his right to counsel a defendant must have explained to him his right to counsel under U.S. Const., Amend. VI and under this section. If a defendant is told he has a right to counsel, as the defendant was, he does not have to know the precise source of the right before waiving it. State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993).

What Record Must Show on Waiver. - The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

Defendant was granted a new trial on his indictment for habitual felon status because, despite defendant's dissatisfaction with his prior counsel and clearly-stated desire to proceed pro se, the trial court erred by failing to conduct an inquiry as required by G.S. § 15A-1242. State v. Watlington, 216 N.C. App. 388, 716 S.E.2d 671 (2011).

Duty of Court to Determine If Defendant Has Waived Right to Counsel. - The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of the trial court, which imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver of counsel by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

When the voir dire evidence is conflicting and contradictory on the question of whether a defendant waived his right to counsel, it is incumbent upon the trial judge to weigh the credibility of the witnesses, resolve the crucial conflicts and make appropriate findings of fact. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

Trial court did not err in allowing defendant to represent himself because the court complied with the statutory requirements of G.S. § 15A-1242 and G.S. § 7A-457 prior to allowing such self-representation; its inquiry that satisfied those provisions fully satisfied the constitutional requirement that any waiver of counsel be knowing and voluntary. State v. Davis, - N.C. App. - , - S.E.2d - (Aug. 6, 2002), cert. denied, 356 N.C. 170, 568 S.E.2d 623 (2002).

Trial court did not make an adequate determination pursuant to G.S. § 15A-1242 and N.C. Const., Art. I, § 23 that defendant's decision to proceed pro se was knowingly, intelligently, and voluntarily made because: (1) defendant did not show that defendant appreciated the consequences of proceeding without counsel, or that defendant understood that murder was punishable by death; (2) it was not sufficient that defendant agreed that defendant had been afforded excellent legal counsel, or that defendant claimed the decision was made without "haste" and was "something that (defendant had) thought about for quite some time"; and (3) that defendant's responses were clear and succinct and that defendant was calm and revealed no sign of confusion, reticence, or hesitation could not substitute for the required inquiry. State v. Moore, 362 N.C. 319, 661 S.E.2d 722 (2008).

Defendant was granted a new trial because the trial court failed to determine whether he knowingly, intelligently and voluntarily waived his right to counsel as required under G.S. § 15A-1242; defendant's waiver of counsel at his first district court appearance was insufficient to constitute a valid waiver of counsel at his subsequent trial because at that time, defendant had not yet been indicted, and thus, defendant was not informed of the charges for which he was indicted such that his waiver was knowingly, voluntarily, and intelligently. State v. Anderson, 215 N.C. App. 169, 721 S.E.2d 233 (2011), aff'd 365 N.C. 466, 722 S.E.2d 509, 2012 N.C. LEXIS 122 (2012).

Waiver Inquiry Inadequate. - Trial court erred in permitting defendant to waive counsel and proceed pro se at a probation revocation hearing without first satisfying the requirements of G.S. § 15A-1242. Nothing in the record or transcript indicated that defendant understood and appreciated the consequences of his decision to proceed pro se or comprehended the nature of charges and proceedings and the range of possible punishments. State v. Sorrow, 213 N.C. App. 571, 713 S.E.2d 180 (2011).

Affirmative Showing of Waiver by State. - When the State seeks to offer in evidence a defendant's in-custody statements, made in response to police interrogation and in the absence of counsel, the State must affirmatively show not only that the defendant was fully informed of his rights but also that he knowingly and intelligently waived his right to counsel. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

Withdrawal of Waiver of Counsel. - Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him. State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999).

A criminal defendant must move the court to withdraw his prior waiver of counsel. State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999).

Motion or Request to Withdraw Waiver of Counsel Not Shown. - Criminal defendant's statements during trial that because he did not have an attorney he did not know how to question jurors or prepare an opening statement did not equate to a motion or request to withdraw his previous waiver of counsel. State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999).

Right to Counsel Held Waived. - Even though counsel was appointed for defendant, he waived the right to have counsel when he initiated a conversation and volunteered statements to investigators without being questioned; neither his Fifth Amendment nor his Sixth Amendment rights were violated and his statements were properly admitted at his trial. State v. Boggess, 358 N.C. 676, 600 S.E.2d 453 (2004).

It was no error to let defendant proceed pro se at a probation revocation hearing because (1) the court explained the charges, proceedings, and possible sentence and explained defendant's right to assigned counsel, in response to which defendant clearly and unequivocally asked to represent himself, (2) defendant said he understood the consequences of representing himself, and (3) he was 23 years old, spoke English, had a G.E.D. degree, had attended college, had no known mental defects, and did not have to navigate complex evidentiary or procedural rules. State v. Faulkner, - N.C. App. - , 792 S.E.2d 836 (2016).

Forfeiture of Right to Counsel. - Defendant, who appeared before at least four judges in 14 months, hired and fired counsel twice, was briefly represented by a public defender, refused to indicate his wishes with respect to counsel, advanced unsupported legal theories concerning jurisdiction, and claimed not to understand anything other than what was said on jurisdiction, engaged in purposeful conduct and tactics to delay and frustrate the orderly process of the trial courts that resulted in a forfeiture of his right to counsel. State v. Mee, 233 N.C. App. 542, 756 S.E.2d 103 (2014).

Although defendant did not waive the right to counsel, defendant's refusal to answer whether he wanted assistance of counsel at three separate pretrial hearings and his repeated and vigorous objection to the trial court's authority to proceed amounted to willful obstruction and delay of trial proceedings and, therefore, defendant forfeited his right to counsel. State v. Brown, 239 N.C. App. 510, 768 S.E.2d 896 (2015).

Trial court violated defendant's constitutional right to counsel by requiring him to represent himself where he neither voluntarily waived his right to be represented by counsel nor engaged in such serious misconduct as to warrant forfeiture of his right to counsel without any warning that he would be required to represent himself or an inquiry under G.S. § 15A-1242 to ensure that he understood the consequences of self-representation. The record showed that defendant was uniformly polite and cooperative, he did not deny the trial court's jurisdiction, disrupt court proceedings, or behave offensively, and he did not hire and fire multiple attorneys or repeatedly delay the trial. State v. Blakeney, - N.C. App. - , 782 S.E.2d 88 (2016).

E. INEFFECTIVENESS NOT SHOWN.

.

Failure to Request Lesser Included Offense in Jury Instruction. - Defense counsel's decision not to request a charge on common law robbery as a lesser included offense to a charge of robbery with a deadly weapon was not ineffective assistance of counsel because that decision was a viable "all or nothing" trial strategy in which counsel hoped that the jury would find one element of the crime missing and then find defendants not guilty; counsel reasonably used that strategy in an attempt to preserve defendants' military careers, and the fact that the strategy failed did not mean defendants received ineffective assistance of counsel. State v. Walker, 167 N.C. App. 110, 605 S.E.2d 647 (2004).

Defense counsel's negative remarks about defendant's intelligence and decision making, at the sentencing hearing, did not amount to ineffective assistance, but were an attempt to show that defendant was not mentally capable of making informed, reasoned decision and thus, should not be harshly sentenced. State v. Davis, 167 N.C. App. 770, 607 S.E.2d 5 (2005).

Prejudice Not Shown. - Even if counsel was ineffective by failing to file an affidavit with the suppression motion or to support the pretrial motions with citation to legal authority, defendant could not show prejudice, given that the trial court reached the correct result on the suppression motion and that defendant was not prejudiced by the admission of the surveillance video. State v. Moore, - N.C. App. - , - S.E.2d - (July 18, 2017).

Ineffective Representation Not Shown. - For cases in which ineffective representation of counsel was not shown, see State v. Minshew, 33 N.C. App. 593, 235 S.E.2d 866 (1977); State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981); State v. Jordan, 49 N.C. App. 561, 272 S.E.2d 405 (1980).

Counsel's Strategic Decisions. - Applying the Wiggins test, North Carolina Supreme Court found that counsel for a death-sentenced defendant was not shown to be ineffective because counsel (1) was not under a mandate to second-guess two mental health experts that opined that certain tests were not necessary to determine whether the defendant had brain damage that would have indicated a murder was not intentional or indicated a mitigator, (2) had interviewed other persons regarding the defendant's behavior patterns to assist in formulating his own opinion, and (3) took into consideration that that particular brain injury defense was not proven to be effective based on the result of the first trial in which the defendant also received a death sentence; the highest court concluded that the counsel did not prematurely abandon a defense based on organic brain damage and that their election to pursue a defense/mitigation strategy predicated on other grounds constituted a reasonable professional judgment. State v. Frogge, 359 N.C. 228, 607 S.E.2d 627 (2005).

Defendant did not show that he received ineffective assistance of counsel, as counsel's decision to ask a witness about out-of-court statements made by defendant's cousin was a tactical decision, which an appellate court would not second guess. State v. Medina, 174 N.C. App. 723, 622 S.E.2d 176 (2005), cert. denied, - N.C. - , 630 S.E.2d 448 (2006).

Counsel's decision to pursue a theory of sexual asphyxiation or accident instead of suicide was a defense strategy that could not be second-guessed on appeal. State v. Scanlon, 176 N.C. App. 410, 626 S.E.2d 770 (2006).

Defense counsel's decision to address defendant's repeated lies to defense counsel and others was a prudent stop in pulling the sting from damaging evidence and did not amount to ineffective assistance. State v. Campbell, 177 N.C. App. 520, 629 S.E.2d 345 (2006).

Defendant convicted of voluntary manslaughter did not show that defendant received ineffective assistance of counsel in violation of N.C. Const., Art. I, § 23 and, thus, defendant was not entitled to a reversal of defendant's convictions. Although defendant claimed that counsel's performance was deficient, defendant could not show that defendant did not receive a fair trial, as the claimed deficiencies involved either trial tactics, which were entitled to great deference on appeal, or matters that did not affect the outcome of the trial. State v. Moore, 194 N.C. App. 754, 671 S.E.2d 545 (2009), appeal dismissed, review denied, 363 N.C. 379, 679 S.E.2d 840 (2009).

Where defendant was charged with first degree murder under the felony murder rule, trial counsel's alleged admissions of fact did not constitute ineffective assistance of counsel because trial counsel made the challenged admissions of fact with defendant's consent and defendant expressly consented to counsel's strategy of attempting to persuade the jury that defendant neither intended to kill nor actually killed the murder victim. State v. Pemberton, 228 N.C. App. 234, 743 S.E.2d 719 (2013).

Failure to Request Jury Instructions. - Defendant did not receive ineffective assistance of counsel for counsel's failure to request jury instructions where it was determined that the trial court did not commit error in failing to instruct the jury on those offenses; moreover, defendant was acquitted on two of the five charges submitted to the jury, so he was not prejudiced by counsel's performance. State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567 (2004).

As defendant's denial of his pointing of any gun was inconsistent with the defenses of necessity or justification, defendant's attorney made a tactical decision to present a theory of defense based upon defendant's own statements to police; as such, defense counsel's decision not to request jury instructions on necessity and justification with respect to a charge of assault by pointing a gun could not be ineffective assistance of counsel. State v. Langley, 173 N.C. App. 194, 618 S.E.2d 253 (2005), cert. dismissed, - N.C. - , 630 S.E.2d 447 (2006), cert. denied, - N.C. - , 630 S.E.2d 447 (2006).

Because there was no plain error in the failure to provide a voluntary intoxication instruction to the jury, defendant's assertion of ineffective assistance of counsel with respect thereto failed; defendant's evidence concerning his low I.Q., smoking marijuana, and sharing alcohol over the course of an evening was not so overwhelming as to render the lack of a voluntary intoxication instruction prejudicial. State v. Andrews, 170 N.C. App. 68, 612 S.E.2d 178 (2005).

Failure to Make Proper Motions. - Defendant's contention that he received ineffective assistance of counsel when his counsel moved for a mistrial as opposed to a new trial or appropriate relief after the jury had already returned its verdict failed where defendant failed to show any prejudice resulting from counsel's failure to make the proper motion. State v. Banks, 163 N.C. App. 31, 591 S.E.2d 917 (2004).

Defendant did not show counsel's assistance was ineffective for not arguing a warrantless blood draw's constitutionality because defendant showed no prejudice, as (1) defendant could be convicted based on an officer's opinion of appreciable impairment, and (2) evidence of impairment aside from the blood draw was overwhelming. State v. Perry, - N.C. App. - , - S.E.2d - (June 20, 2017).

Failure to Object to Chain of Custody. - Where defendant was convicted of raping a 13-year-old female, defense counsel was not ineffective for failing to stipulate to the chain of custody of the products of conception to avoid introducing them into evidence; any error was harmless as there was no reasonable probability that the alleged error affected the outcome of the trial. State v. Watts, 172 N.C. App. 58, 616 S.E.2d 290 (2005), vacated in part, on other grounds, remanded, 361 N.C. 161, 2006 N.C. LEXIS 1402 (2006).

Failure to Object to Sentence. - Where defendant was sentenced within the presumptive range as a Level VI habitual felon, because he was given a very favorable plea bargain in which twenty-one felony offenses were consolidated for judgment with the original ten felony offenses such that defendant received no additional time for these twenty-one felonies, his sentence was upheld pursuant to G.S. § 15A-1340.12, and counsel was not ineffective for failing to object to the sentence as violative of the Eighth Amendment and on grounds that legislative policy considerations constitute ineffective assistance of counsel. State v. Cummings, 174 N.C. App. 772, 622 S.E.2d 183 (2005), review denied, 361 N.C. 172, 641 S.E.2d 306 (2006), cert. denied, 550 U.S. 963, 127 S. Ct. 2441, 167 L. Ed. 2d. 1140 (2007).

Stipulation to Facts. - Mere fact that the State asked defendant to stipulate to a prior felony that did not correspond to the prior felony stated in the indictment did not render the error a substantive evidentiary one attributable to the State; instead, the record revealed an intention by defense counsel, after conferring with defendant, to stipulate to a prior felony and an assumption by the State that the stipulation relieved it of the burden of establishing that element of the possession of a firearm by a felon charge. State v. Mason, 174 N.C. App. 206, 620 S.E.2d 285 (2005).

Failure to Move for Dismissal. - Counsel was not ineffective for failing to move to dismiss the charge of first-degree burglary and the lesser included offenses at the close of evidence, as the victim's testimony that she was awakened by the loud noise of someone kicking the front door and that two men were standing over her father with guns in the room where the door was located, was sufficient evidence to show a breaking and entering took place. State v. Andujar, 180 N.C. App. 305, 636 S.E.2d 584 (2006).

Trial counsel was not ineffective for failing to make a motion to dismiss the robbery charge and the lesser included offenses because there was testimony that defendant told a witness that he and a friend had committed a robbery of some Mexicans and about some of the specifics of the way the crime was committed. State v. Andujar, 180 N.C. App. 305, 636 S.E.2d 584 (2006).

Failure to Object to Questioning. - Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting certain important facts from a voluntary discussion with a deputy, counsel's failure to object did not constitute ineffective assistance. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274 (2007), cert. denied, appeal dismissed, 361 N.C. 432, 649 S.E.2d 390 (2007).

Failure to Object to Probation Condition. - Defendant's counsel was not ineffective for failing to object to a special condition of probation because it could not be said that the outcome of the probation revocation hearing would have been any different had counsel for defendant objected to the condition of probation. State v. Howell, 184 N.C. App. 369, 646 S.E.2d 622 (2007), appeal dismissed, review denied, 362 N.C. 240, 660 S.E.2d 490 (2008).

Failure to Object to Polygraph. - Counsel's failure to object to the mention of defendant's having taken a polygraph test did not constitute ineffective assistance of counsel in violation of N.C. Const., Art. I, § 23, because given the very slight nature of the evidence, defendant could not show that without that evidence a different result would have been reached. State v. Carter, 186 N.C. App. 259, 650 S.E.2d 650 (2007).

Failure to Request Recording. - Defendant did not receive ineffective assistance of counsel, even though counsel did not request recordation under G.S. § 15A-1241(b) of opening/closing arguments, jury selection, and rulings on matters of law, as defendant acknowledged that defendant could not show prejudice. State v. Thomas, 187 N.C. App. 140, 651 S.E.2d 924 (2007).

Failure to Object to Testimony. Defendant's counsel did not provide ineffective assistance of counsel by not renewing an objection to the admissibility of a statement that defendant made to the defendant's spouse regarding the killing of the victim; the statement did not involve a confidential communication pursuant to G.S. § 8-57(c) because it was made within the hearing of a third person and, thus, the statement was admissible. State v. Kirby, 187 N.C. App. 367, 653 S.E.2d 174 (2007), appeal dismissed, review denied, 362 N.C. 241, 660 S.E.2d 493 (2008).

Trial counsel's failure to object to repeated characterizations of the police informant as a confidential and reliable informant (CI) and counsel's use of that designation did not constitute ineffective assistance of counsel as defendant did not show prejudice since the State proved its case using a video recording of the controlled buy of narcotics by the CI showing the pill bottle and the money that exchanged hands, and did not rely on the credibility of the CI. State v. Johnson, 214 N.C. App. 436, 714 S.E.2d 502 (2011), review denied 718 S.E.2d 393, 2011 N.C. LEXIS 933 (N.C. 2011), cert. dismissed, 747 S.E.2d 558, 2013 N.C. LEXIS 869 (2013).

Trial counsel's failure to object to hearsay and lay opinion that characterized a confidential informant (CI) as a prescription medication addict who was not a potential threat to other people but characterized defendant as a drug dealer who posed a greater threat to other people did not constitute ineffective assistance as defendant did not show prejudice since the State proved its case using a video recording of the controlled buy of narcotics by the CI showing the pill bottle and the money that exchanged hands, and did not depend on the credibility of the CI. State v. Johnson, 214 N.C. App. 436, 714 S.E.2d 502 (2011), review denied 718 S.E.2d 393, 2011 N.C. LEXIS 933 (N.C. 2011), cert. dismissed, 747 S.E.2d 558, 2013 N.C. LEXIS 869 (2013).

Failure to Object to Admission of Prior Conviction. - Defendant was not denied effective assistance of counsel when defendant's trial lawyer agreed to stipulate that defendant had a prior felony conviction, without insisting that the nature of the conviction not be disclosed to the jury, as defendant failed to prove that the prior conviction, possession of cocaine, equated with the charges of possession of a firearm by a felon and assault with a deadly weapon inflicting serious bodily injury such that the jury was likely to have believed that if defendant possessed cocaine in the past, defendant was likely to have committed the charged offenses. State v. Tice, 191 N.C. App. 506, 664 S.E.2d 368 (2008).

Defendant did not receive ineffective assistance of counsel under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), during habitual felon proceedings; although counsel admitted defendant had three prior felony convictions, counsel never admitted defendant was an habitual felon. State v. Womack, 211 N.C. App. 309, 712 S.E.2d 193 (2011).

Failure to Provide Notice of Intended Defenses. - Defendant failed to meet the burden of establishing ineffective assistance of counsel by counsel failing to provide notice of defendant's intended defenses at trial because there was no reasonable probability that the alleged error of counsel affected the outcome of the trial as defendant failed to present substantial evidence of either voluntary intoxication or diminished capacity. State v. McDonald, 191 N.C. App. 782, 663 S.E.2d 462 (2008), review denied, 362 N.C. 686, 671 S.E.2d 328 (2008).

Defendant did not receive ineffective assistance of counsel, when defendant was convicted of both second-degree rape and statutory rape predicated on a single act of sexual intercourse with the victim, because defendant could not have been prejudiced by ineffective assistance of counsel when a double jeopardy argument would have been unsuccessful at trial, as neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven. State v. Banks, 367 N.C. 652, 766 S.E.2d 334 (2014).

Counsel Not Ineffective for Failing to File Motion to Dismiss - Defendant's conviction of robbery with a dangerous weapon, G.S. § 14-87, was affirmed because defendant did not receive ineffective assistance of counsel based on a failure to move to dismiss the charge; the evidence was sufficient to support the charge, because the evidence established that defendant used a box cutter, which was classified as a dangerous weapon, and that the victim believed that his life was being threatened. State v. Pratt, 161 N.C. App. 161, 587 S.E.2d 437 (2003).

Through the testimony of a middle school teacher that defendant, a juvenile, dragged her and struggled while the teacher was trying to prevent defendant from assaulting another student, the State had presented enough evidence for a charge of assault on a state employee in violation of G.S. § 14-33(c)(4) to withstand a motion to dismiss. Thus, defense counsel was not ineffective for failing to renew the motion at the close of all of the evidence. In re A.V., 188 N.C. App. 317, 654 S.E.2d 811 (2008).

V. SELF-INCRIMINATION.

.

A. IN GENERAL.

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Liberal Construction. - The Constitution ought to be liberally construed to preserve personal rights and protect the citizen against self-incriminating evidence. Smith v. Smith, 116 N.C. 386, 21 S.E. 196 (1895); State v. Medley, 178 N.C. 710, 100 S.E. 591 (1919).

The constitutional guaranties against self-incrimination should be liberally construed. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

Right to Remain Silent at All Times. - The right to remain silent does not arise when an arrestee is given his Miranda warnings. It is a right which he possesses at all times under U.S. Const., Amend. V and under this section. State v. Lane, 46 N.C. App. 501, 265 S.E.2d 493, aff'd, 301 N.C. 382, 271 S.E.2d 273 (1980).

The constitutional inhibition against self-incrimination is directed against compulsion, and not against voluntary admissions, confessions, or testimony freely given on the trial. Such statements, confessions, and testimony voluntarily given on a former trial are received against the accused as his admissions. State v. Farrell, 223 N.C. 804, 28 S.E.2d 560 (1944); State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195 (1959).

The privilege against self-incrimination is one against being compelled to testify. It furnishes no protection against the use of testimony which was voluntarily given. State v. Floyd, 246 N.C. 434, 98 S.E.2d 478 (1957).

A defendant has a right not to be compelled to be a witness against himself in any criminal case. State v. Wills, 293 N.C. 546, 240 S.E.2d 328 (1977).

Privilege Protects Against Only Real Dangers. - The privilege against self-incrimination protects against real dangers, not remote and speculative possibilities, and a witness may not arbitrarily refuse to testify without existence in fact of a real danger, it being for the court to determine whether that real danger exists. Johnson County Nat'l Bank & Trust Co. v. Grainger, 42 N.C. App. 337, 256 S.E.2d 500, cert. denied, 298 N.C. 304, 259 S.E.2d 300 (1979); Shaw v. Williamson, 75 N.C. App. 604, 331 S.E.2d 203, cert. denied, 314 N.C. 669, 335 S.E.2d 496 (1985).

Court Determines Applicability of Privilege. - The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself. His say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified and to require him to answer if it clearly appears to the court that he is mistaken. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

And Applicability Depends upon the Case. - If a witness, upon interposing his claim of immunity, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evidenced from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

Questions Subjecting Defendant to Punitive Damages. - This provision protects defendants from being required to answer questions, on an order of examination, which will necessarily tend to subject them to a verdict or an award of punitive damages, and to an execution against the person, the effect of which would be to deprive them entirely of their homestead exemption and of any personal property exemption over fifty dollars. Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964).

Guaranty Extends to Any Proceedings Sanctioned by Law. - The constitutional guaranties against self-incrimination are to be liberally construed and they apply not only to criminal prosecutions but to any proceedings sanctioned by law, including examinations before trial. Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964).

The privilege against self-incrimination may be exercised by a witness in any proceeding. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

The constitutional privilege against self-incrimination applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. Johnson County Nat'l Bank & Trust Co. v. Grainger, 42 N.C. App. 337, 256 S.E.2d 500, cert. denied, 298 N.C. 304, 259 S.E.2d 300 (1979).

Civil Actions Involving Arrest, Imprisonment or Execution Against the Person. - The constitutional protection against self-incrimination extends to civil actions that subject one to arrest, imprisonment or execution against the person. Shaw v. Williamson, 75 N.C. App. 604, 331 S.E.2d 203, cert. denied, 314 N.C. 669, 335 S.E.2d 496 (1985).

Privilege Extends to Pleading Stage of Civil Action for Punitive Damages. - A defendant may plead his privilege against self-incrimination in a civil action where the plaintiff asks for punitive damages, and the privilege applies to protect a party from self-incrimination at the pleadings stage of an action. Therefore, in an action to recover compensatory and punitive damages for alienation of affections and criminal conversation, where defendant refused to answer the allegations of plaintiff's complaint claiming his constitutional privilege against self-incrimination, the trial court erred in deeming the allegations as admitted pursuant to G.S. § 1A-1, Rule 8(d). Byrd v. Hodges, 44 N.C. App. 509, 261 S.E.2d 269 (1980).

Refusal to Answer Interrogatories in Civil Action for Punitive Damages. - Fact that a plaintiff seeks punitive damages does not, ipso facto, entitle defendant to refuse, with impunity, to submit to requested discovery, where the responses, whether individually or collectively, would not necessarily tend to subject defendant to a punitive damages award. Stone v. Martin, 56 N.C. App. 473, 289 S.E.2d 898, cert. denied and appeal dismissed, 306 N.C. 392, 294 S.E.2d 220 (1982).

In a wrongful death action, defendant faced no peril of being subject to execution against the person for not satisfying a judgment for punitive damages, as there was no allegation in the complaint that would support the required statutory findings for execution against the person. Therefore, there was no basis for defendant declining to answer interrogatories on the grounds of self-incrimination. Shaw v. Williamson, 75 N.C. App. 604, 331 S.E.2d 203, cert. denied, 314 N.C. 669, 335 S.E.2d 496 (1985).

In a wrongful death action, defendant could not have incriminated himself criminally by answering certain interrogatories, because, based on the same incident referred to in the complaint, he was charged with death by vehicle and driving while intoxicated, pled guilty, and complied with the judgments entered on the convictions. Shaw v. Williamson, 75 N.C. App. 604, 331 S.E.2d 203, cert. denied, 314 N.C. 669, 335 S.E.2d 496 (1985).

Scope of Protection. - The fair interpretation of the clause that the defendant "shall not be compelled to give evidence against himself" seems to be to secure one who is or may be accused of crime from making any compulsory revelations which may be given in evidence against him on his trial for the offense. LaFontaine v. Southern Underwriters Ass'n, 83 N.C. 132 (1880).

Chapter 13 debtor who was sued in state court in an action alleging alienation of affection, criminal conversation, and defamation arising out of an alleged affair between the debtor and plaintiff's former wife did not have to answer certain questions plaintiff's counsel asked during an examination conducted pursuant to Fed. R. Bankr. P. 2004 because his answers could have been used in a prosecution under G.S. § 14-184; however, cards, letters, email messages, text messages, and Facebook messages the debtor exchanged with plaintiff's former wife were not protected and had to be produced. In re Welsh, - Bankr. - (Bankr. E.D.N.C. Nov. 7, 2013).

Admissions Tending to Incriminate. - The protection against self-incrimination is not limited to admissions that would subject a witness to criminal prosecution; the privilege also extends to admissions that may only tend to incriminate. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

Links in Chain of Evidence. - The privilege afforded against self-incrimination extends not only to answers that would in themselves support a conviction under a criminal statute, but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971). See also, Smith v. Smith, 116 N.C. 386, 21 S.E. 196 (1895).

The protection afforded by the privilege against self-incrimination does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Johnson County Nat'l Bank & Trust Co. v. Grainger, 42 N.C. App. 337, 256 S.E.2d 500, cert. denied, 298 N.C. 304, 259 S.E.2d 300 (1979).

Silence in Face of Accusation of Guilt. - Defendant's silence in face of an accusation of guilt cannot be competent as an implied admission when the accusation is made during interrogation of defendant by officers of the law. To compel defendant to reply to an accusation under such circumstances on pain of having his silence considered against him would amount to an infringement of his constitutional right not to be compelled to incriminate himself. State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967).

Defendant's silence in the rightful exercise of his privilege against self-incrimination may not be considered an admission of the truth of incriminating statements made in defendant's presence by a prospective State's witness in response to an officer's questions. State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974).

If police officers properly warn an accused of his constitutional rights, his silence may not be used against him. State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975).

Where an arrestee is the focus of suspicion, has been held in custody for a significant period of time without being advised of his Miranda rights, is aware of his right to remain silent, and makes it clear that he is relying on his right to remain silent, his in-custody silence in the face of accusation and possible prosecution cannot be the subject of cross-examination. State v. Lane, 46 N.C. App. 501, 265 S.E.2d 493, aff'd, 301 N.C. 382, 271 S.E.2d 273 (1980).

Where police officers told defendant that anything he said, or did not say, in response to statements made by an eyewitness could be used for or against him, their warning violated the provision of this section, which requires that no person charged with crime shall be compelled to give self-incriminating evidence. State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967).

Necessity of Advising Defendant of Rights Where Significantly Deprived of Freedom. - When an officer told defendant that he would get a warrant for him and would leave an officer at defendant's home until the warrant could be procured, defendant was deprived of his freedom in a significant way; it was therefore necessary to advise him of his rights before his answer to the question as to how long he had been at his home could be introduced into evidence. State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989).

As to admissibility of in-custody silence for purpose of impeachment, see State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975).

Defendant's failure to testify may not be considered an admission of the truth of testimony which tends to incriminate him. State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975).

Adverse comments on defendant's failure to testify are impermissible. State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975).

Defendant was entitled to a new trial because the trial court erroneously overruled his objection to the prosecution's closing comments about defendant's decision not to testify in trial for felonious breaking or entering. The error was prejudicial and required a new trial. State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993).

Defendant's Fifth Amendment and N.C. Const., Art I, § 23 rights were violated where the prosecutor's statements referred repeatedly to defendant's silence, not merely to his behavior, and clearly urged the jury to infer that defendant was sane enough to know that remaining silent was in his best interest; the error was not harmless beyond a reasonable doubt as the only real issue was whether defendant was legally insane at the time of the murder, three mental health experts testified that they believed defendant was legally insane, and lay witnesses and circumstances presented the only evidence of defendant's sanity. State v. Durham, 175 N.C. App. 202, 623 S.E.2d 63 (2005).

But May Be Harmless. - The prosecutor's improper, slightly veiled, indirect comment on defendant's failure to testify was harmless beyond a reasonable doubt. State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001), cert. denied, 534 U.S. 1000, 122 S. Ct. 475, 151 L. Ed. 2d 389 (2001).

Assuming that the prosecutor commented on defendant's failure to testify, the error was harmless given that defendant stipulated to his prior conviction and the evidence showing that he possessed the firearms found in his vehicle. State v. Martinez, - N.C. App. - , 795 S.E.2d 386 (2016).

But, trial court did not err in allowing police officer's comments on murder defendant's decision to exercise her constitutional right to remain silent upon her arrest; the comments were elicited by the defense counsel and defense counsel repeatedly asked officer to explain his answers and did not object to, or move to strike the comments. State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993), cert. denied, 510 U.S. 1028, 114 S. Ct. 644, 126 L. Ed. 2d 602 (1994).

Statements made by prosecutor regarding the demeanor of the defendant was not comparable to statements previously held to be improper comments on a defendant's failure to testify. State v. Bates, 343 N.C. 564, 473 S.E.2d 269 (1996), cert. denied, 519 U.S. 1131, 117 S. Ct. 992, 136 L. Ed. 2d 873 (1997).

Prosecutor Impermissibly Commented on Defendant's Silence. - State's cross-examination of defendant, examination of the officer, and closing argument attacked defendant's exercise of his right against self-incrimination in such a manner as to leave a strong inference with the jury that part of defendant's testimony was an after-the-fact creation; the prosecutor impermissibly commented on defendant's silence in violation of his rights under the North Carolina and federal constitutions. State v. Shores, 155 N.C. App. 342, 573 S.E.2d 237 (2002).

Misstatement of Silence Jury Instruction. - The defendant's rights under this section were not violated by the trial court's misstatement that the defendant's failure to testify "creates into presumption against him" where the court went on to state, "therefore, his silence in this case is not to influence your decision in any way." State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000), cert. denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001).

Right to Remain Silent Not Violated. - Where the State did not ask detective whether defendant exercised his right to remain silent, he only testified that defendant was read his rights and indicated he understood those rights and no specific inquiry or argument was made about defendant's silence, defendant's exercise of his right to remain silent therefore was not used against him and his constitutional rights were not violated. State v. Carter, 335 N.C. 422, 440 S.E.2d 268 (1994).

Where the prosecutor was directly responding to argument made by defendant relating to a specific piece of evidence and the argument did not relate to whether defendant himself sought to testify, it simply constituted a misstatement regarding the parties' relative rights to introduce the statement, not a comment on defendant's failure to testify. State v. Ratliff, 341 N.C. 610, 461 S.E.2d 325 (1995).

Defendant's right to remain silent under this section was not violated by the State's reference to his failure to assert his self-defense when he made spontaneous inculpatory statements prior to his arrest, nor by its reference to his post-arrest silence. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Trial court's curative instruction to the jury following the prosecutor's comment at trial was sufficient, even though not made immediately after the prosecutor's comments, as the the trial court stated that the comment was improper, and the statement was followed by an instruction to the jury not to consider the failure of the accused to offer the accused as a witness. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).

Testimony that defendant declined to answer questions after he was arrested was harmless error because (1) the prosecutor did not solicit the testimony, which was offered in response to a question asking for a chronology of events surrounding defendant's arrest, (2) no further reference was made during the trial to defendant asserting his post-arrest right to remain silent, and (3) there was strong circumstantial evidence establishing defendant's guilt. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683 (2003).

Trial court did not err by allowing a detective to testify that defendant refused to make a statement to police because defendant did not object to that testimony during trial; in addition, the trial court did not have an obligation to give the jury a curative instruction, sua sponte, after a witness who testified stated during cross-examination that if defendant didn't agree with what the witness said, defendant should defend himself. State v. Batchelor, 157 N.C. App. 421, 579 S.E.2d 422 (2003).

Trial court did not violate defendant's right to remain silent where the police detective testified that defendant was quiet during questioning and often refused to respond to questions, and where the prosecutor referred to this testimony during closing arguments; the detective was asked about defendant's demeanor during questioning, not defendant's exercise of the right to remain silent, as defendant had waived defendant's Miranda rights and had agreed to speak with the detective. State v. Lyles, 172 N.C. App. 323, 615 S.E.2d 890 (2005), appeal dismissed, 360 N.C. 73, 622 S.E.2d 625 (2005).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting from a voluntary discussion with a deputy such important facts as that the victim had been drunk, was possibly on cocaine, and had threatened defendant's life several times prior to the shooting, defendant's right to remain silent was not violated, because the cross-examination questions did not constitute an impermissible comment upon the invocation of the right, and any error was harmless. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274 (2007), cert. denied, appeal dismissed, 361 N.C. 432, 649 S.E.2d 390 (2007).

Although defendant contended that the trial court erred by overruling his objections to the prosecutors' closing arguments, the appellate court found that: (1) defendant's argument that the prosecutor's statements regarding defendant's failure to present mental health evidence or a mental health defense violated his constitutional right not to testify under N.C. Const., Art. I, § 23 was without merit because the State's argument highlighted the total lack of evidence at trial supporting the forecast of evidence by defense counsel in the opening statement and was not a comment on the failure of the accused to testify; and (2) defendant's argument that the prosecutor's arguments regarding the failure to present an accident defense violated defendant's right not to testify because defendant was the only person who could testify that the child's injuries were accidental was without merit because the prosecutor's comments were not directed toward defendant's failure to testify, but rather were directed to the lack of any mention of mental health or accident in the trial court's jury instructions, and the prosecutor's argument was a request to the jury to follow the trial court's instructions, and not to create legal issues during their deliberations that were not part of the trial court's instructions. State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450 (2009).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial erred by failing to intervene ex mero motu to exclude comments made by the prosecutor during closing arguments. The prosecution responded to defendant's attacks on two individuals and made permissible comments on defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State; the prosecution's remarks did not constitute a direct reference to his failure to testify and did not require a curative instruction. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009), review denied, 363 N.C. 857, LEXIS 386 (2010).

Comment on Prior Silence After Defendant Takes Stand. - With or without a Miranda warning, a defendant's right to remain silent is guaranteed by U.S. Const., Amend. V, as well as by this section. Any comment upon the exercise of this right, nothing else appearing, is impermissible. However, when a defendant chooses to testify in his own behalf, his U.S. Const., Amend. V right to remain silent must give way to the State's right to seek to determine, by way of impeachment, whether his prior silence is inconsistent with his trial testimony. The test is whether, under the circumstances at the time of arrest, it would have been natural for defendant to have asserted the same defense asserted at trial. State v. McGinnis, 70 N.C. App. 421, 320 S.E.2d 297 (1984).

Argument on Failure to Tell Police of Defense. - District attorney's question and argument to the jury as to defendant's failure to tell the police of his defense were prejudicial errors; since there was no eyewitness to the shooting other than defendant, and since his defense depended on the jury's acceptance of his version of the event, the State failed to demonstrate beyond a reasonable doubt that it was harmless to attack the credibility of his version by improper evidence, which improper evidence was reinforced by jury argument. State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989).

Truth or Falsity of Statements. - The constitutional privilege against self-incrimination bars the introduction of all statements falling within its scope, without regard for their truth or falsity. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951), overruled on other grounds, State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975).

Forced Production of Incriminating Documents. - The protection afforded to defendants in criminal action by this section is a matter of absolute right to them, and extends to the forced production of letters and other papers in their possession that may tend to incriminate them upon the trial. State v. Hollingsworth, 191 N.C. 595, 132 S.E. 667 (1926).

The introduction in evidence of incriminating papers taken from the defendant at the time of the arrest does not infringe the constitutional guarantee against self-incrimination, under this section, and when he takes the stand in his own behalf he waives his constitutional right against self-incrimination. State v. Shoup, 226 N.C. 69, 36 S.E.2d 697 (1946), distinguishing State v. Hollingsworth, 191 N.C. 595, 132 S.E. 667 (1926).

Although the constitutional privilege against self-incrimination applies to the production of papers, so that if the accused is compelled to produce them the privilege is violated, lawful seizure of such evidence (as, for example, pursuant to a valid search warrant) obviously differs from requiring the accused to produce it and does not violate the privilege. State v. Downing, 31 N.C. App. 743, 230 S.E.2d 581 (1976).

Inapplicability of Privilege to Physical Evidence. - Upon trial of defendant for violating the prohibition law, the introduction into evidence of testimony of the officer making the arrest that he found a half-gallon jar of liquor on the person of the defendant was competent, and was not in violation of the constitutional provision that a defendant may not be compelled to give evidence against himself, the provision not applying to physical facts or conditions. State v. Hickey, 198 N.C. 45, 150 S.E. 615 (1929).

The admission of incriminating testimony of defendant's physical condition by witnesses who examined her without objection did not violate defendant's constitutional right not to be compelled to give evidence against herself, as provided in this section. State v. Eccles, 205 N.C. 825, 172 S.E. 415 (1934).

The constitutional guarantee that a defendant shall not be compelled to testify against himself, as provided by this section, does not preclude testimony by a witness as to marks on defendant's body tending to identify him as the perpetrator of the crime. State v. Riddle, 205 N.C. 591, 172 S.E. 400 (1934); State v. Floyd, 246 N.C. 434, 98 S.E.2d 478 (1957).

The scope of the privilege against self-incrimination includes only the process of testifying by word of mouth or in writing. It has no application to such physical, evidential circumstances as may exist on the accused's body or about his person. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951), overruled on other grounds, State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975); State v. Paschal, 253 N.C. 795, 117 S.E.2d 749 (1961).

The scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i.e., the process of disclosure by utterance. It has no application to such physical evidential circumstances as may exist on the accused's body or about his person. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970).

Identifying Physical Characteristics. - Handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and are outside the protection of the privilege against self-incrimination. State v. Greene, 12 N.C. App. 687, 184 S.E.2d 523 (1971), appeal dismissed, 280 N.C. 303, 186 S.E.2d 177 (1972).

Distinguishing Marks. - Where witnesses for the State had testified as to a small scar near the culprit's left eye, a small mole on his left ear, and gold fillings in his teeth, upon return of the jury into the courtroom in disagreement as to defendant's identity as the culprit, the court did not commit prejudicial error in permitting a juror, with defendant's consent, to examine defendant's body for the distinguishing marks. State v. Floyd, 246 N.C. 434, 98 S.E.2d 478 (1957).

Chemical analyses of blood or breath are not within the protection of U.S. Const., Amends. V and XIV, or this section, as such chemical analyses are not evidence which is testimonial or communicative in nature. State v. White, 84 N.C. App. 111, 351 S.E.2d 828, cert. denied, 319 N.C. 227, 353 S.E.2d 404, appeal dismissed, 319 N.C. 409, 354 S.E.2d 887 (1987).

Blood and Urine Tests. - Where defendant pleaded insanity at the time of the homicide due to the continued use of liquor and opiates, and the record failed to show any compulsion on the part of the officers in obtaining specimens of defendant's blood and urine in order to ascertain the presence or absence of alcohol or morphine in his system, it was held that defendant's contention that the obtaining of the specimens compelled him to give evidence against himself, in violation of this section, was untenable. State v. Cash, 219 N.C. 818, 15 S.E.2d 277 (1941).

Expert testimony as to the results of a test of defendant's blood is admissible on the trial of a charge of driving a motor vehicle upon the public highways within the State while under the influence of intoxicating beverages. State v. Willard, 241 N.C. 259, 84 S.E.2d 899 (1954).

Admission of evidence of a defendant's refusal to submit to a chemical test designed to measure the alcoholic content of his blood does not violate his constitutional right against self-incrimination. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970).

Examination of Clothing. - No constitutional rights were invaded when an officer required defendant, who was accused of rape, to surrender for examination and analysis the clothing worn by him at the time the crime was alleged to have been committed. State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873 (1962); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780 (1969).

Evidence of Footprints. - The constitutional privilege against self-incrimination is not violated by the introduction of evidence of footprints to identify the accused, even where these are obtained by coercion. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951), overruled on other grounds, State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975).

Photographs. - The admission of the photograph of a lineup including the defendant was not violative of his rights under this section or N.C. Const., Art. I, § 19, where the photograph was properly identified and entered into evidence for the purpose of illustrating the testimony of a witness, and, although the defendant objected to the questions identifying the picture, he did not ask that its admission be restricted. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112 (1967).

Motion Pictures. - Motion pictures of an accused in a criminal action are not per se testimonial in nature, and, where they are properly used to illustrate competent and relevant testimony of a witness, their use does not violate accused's privilege against self-incrimination. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970).

When a sound motion picture contains incriminating statements by the defendant made from his knowledge of the offense upon defendant's objection, the judge must conduct a voir dire to determine the admissibility of the in-custody statements or admissions contained in the sound picture. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970).

Demonstration of Act of Killing. - Upon trial for murder in the first degree, where there is other circumstantial evidence of the prisoner's guilt, it is not duress to require the prisoner to place himself in such position as to show that he could have fired the fatal shot from a window and killed the deceased, as this is not considered as making a person furnish evidence against himself, it being dependent upon physical facts and conditions and not upon confessions or statements of the prisoner. State v. Thompson, 161 N.C. 238, 76 S.E. 249 (1912).

Positioning of Defendant for Purpose of Identification. - Testimony that defendant was placed for identification in the relative position to a witness as the perpetrator was seen by her just before committing a criminal offense is not objectionable as forcing defendant to give evidence against himself in denial of his constitutional rights. State v. Neville, 175 N.C. 731, 95 S.E. 55 (1918).

Who Is Protected. - Immunity from self-incrimination extends not only to one who actually testifies as a witness, but also to the defendant in the trial, even if he declines to testify as a witness in his own behalf. State v. Hollingsworth, 191 N.C. 595, 132 S.E. 667 (1926).

The privilege against self-incrimination can be claimed only by the witness, and when it is claimed, it is guaranteed by U.S. Const., Amend. V, as well as by this section. State v. Smith, 13 N.C. App. 46, 184 S.E.2d 906 (1971).

A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. State v. Wills, 293 N.C. 546, 240 S.E.2d 328 (1977).

The defendant waives his constitutional privilege not to answer questions tending to incriminate himself when he voluntarily testifies in his own behalf. State v. Allen, 107 N.C. 805, 11 S.E. 1016 (1890).

Whenever the defendant in a criminal action voluntarily testifies in his own defense he assumes the position of a witness and subjects himself to all the disadvantages of that position. In doing so, he acknowledges the right of the prosecution to test his credibility and he waives his constitutional privilege not to answer questions which tend to incriminate him or to prove the specific offense with which he is charged. State v. O'Neal, 187 N.C. 22, 120 S.E. 817 (1924).

Defendant was tricked or cajoled into waiving his right to counsel and his privilege against self-incrimination, and his statements to a State Bureau of Investigation agent therefore were not voluntary, where the evidence tended to show that defendant and his attorney went to SBI headquarters in Raleigh for defendant to be given a polygraph examination; defendant and his attorney were told that the examination would consist of the polygraph test itself and an interrogation; they were also told that the attorney could not be present during the test phase but that he would be allowed to be present during the interrogation phase; contrary to this advice, defendant's attorney was left outside the examination room during the test and the interrogation; the attorney, who could neither see nor hear what was transpiring, thought the testing phase was still in progress, and defendant himself apparently assumed that his lawyer would be admitted to the room at the proper time. State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980).

Defendant Testifying May Be Cross-Examined on In-Custody Statements. - A trial court may properly allow the prosecuting attorney to cross-examine defendant with reference to in-custody statements for the purpose of impeaching defendant's trial testimony, notwithstanding the fact that defendant was not represented by counsel and had not waived the right to counsel when the statements were made. State v. Nobles, 14 N.C. App. 340, 188 S.E.2d 600, cert. denied, 281 N.C. 626, 190 S.E.2d 472 (1972).

Defendant's privilege against self-incrimination was not violated where State was permitted to show for purposes of impeachment that defendant had not voluntarily turned himself in to the police after defendant had already testified to the contrary. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

The prosecutor's impeachment of defendant by cross-examining him about his failure to tell officers, while making an in-custody statement, that he was acting to protect himself from attack when he shot deceased did not violate defendant's constitutional rights. State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, appeal dismissed and cert. denied, 301 N.C. 403, 273 S.E.2d 449 (1980).

In a capital murder case where defendant claimed to have been present when another person killed the victim, it was not improper for the State to cross-examine defendant as to defendant's failure, in post-arrest statements, to reveal the identity of the other person. State v. Fair, 354 N.C. 131, 552 S.E.2d 568 (2001).

Questions About Prior Convictions on Cross-Examination. - Defendant's testimony on cross-examination about an additional conviction for assault with a firearm which he had failed to mention during his direct examination was relevant impeachment evidence; thus, it was not only proper but also prudent for the prosecutor to attempt to elicit further details about defendant's prior convictions. State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384 (1980).

Failure to Disclose Alibi Defense Prior to Trial Not an Inconsistent Prior Statement for Cross-Examination Purposes. - In a prosecution of defendant for possession and sale of heroin, where defendant was arrested and taken to a police station, indictments were read to him, and defendant interrupted the reading to state that he had not sold heroin to the person named in the indictments, defendant's failure to disclose his alibi defense to the police officers then, or to some other person prior to trial, did not amount to an inconsistent statement in light of his in-court testimony relative to an alibi, and the district attorney's cross-examination of defendant concerning failure to disclose his alibi was sufficiently prejudicial to warrant a new trial. State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980).

Accomplice Could Not Refuse to Answer on Cross-Examination After Incriminating Defendant. - An accomplice could not testify on direct examination to facts tending to incriminate defendant and at the same time refuse to answer questions on cross-examination relating to matters embraced in his examination-in-chief, and where he refused to answer relevant questions on cross-examination on the ground that his answers might tend to incriminate him, it was error for the court to refuse defendant's motion that his testimony-in-chief be stricken from the record, the refusal to answer the questions on cross-examination rendering the testimony-in-chief incompetent. State v. Perry, 210 N.C. 796, 188 S.E. 639 (1936).

Defendant who, prior to his own indictment, gave testimony at codefendant's continuance hearing, placing himself in the company of the prosecuting witness on the evening in question, was not denied his privilege against self-incrimination, even though he was not represented by counsel or informed of his right against compulsory self-incrimination, despite the fact that codefendant's attorney, who had sought his testimony, was acting with the full complicity of the State, as defendant was not compelled to speak to his detriment. State v. Flowers, 318 N.C. 208, 347 S.E.2d 773 (1986).

Pre-arrest warrantless recording of defendant's incriminating statements through witness did not violate defendant's right to be free of unreasonable search and seizure under N.C. Const., Art. I, § 20, inasmuch as defendant had no legitimate expectation of privacy regarding a conversation he voluntarily maintained with a confederate; the recording did not violate defendant's right under this section to be free from compulsory self-incrimination because his participation in the conversation was wholly voluntary, albeit ill-advised, and did not violate defendant's right under this section to counsel because the conversation in question occurred during the initial investigation of defendant prior to his arrest. State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990).

Right Not Violated. - Defendant's alleged "Hobson's choice" between asserting her privilege against self-incrimination and her right to testify on her own behalf was illusory where trial court's denial of defendant's motion for a continuance in noncapital indictment for murder of stepson did not force defendant to choose between two constitutional rights but to make a purely tactical decision as to whether it would be more advantageous to testify in this trial, in her capital trial, in both trials, or not at all; defendant would have faced the same dilemma regardless of which case was tried first since any incriminating statements made at the first trial could later be used against her at the second trial. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Defendant's motion to suppress incriminating statements made by him to a police officer while evidence was being presented during voir dire was properly denied since the statements made by defendant were spontaneous and did not warrant a conclusion that the officer should have known that he was about to elicit an incriminating statement from defendant by responding "so do I" when defendant commented he knew where a baseball cap had come from that was being presented as evidence; defendant's constitutional rights were not violated, because the officer's conduct did not constitute interrogation and no Miranda warning was required. State v. Jackson, 165 N.C. App. 763, 600 S.E.2d 16 (2004).

While the court did not believe the prosecutor's questions were intended to focus the jury's attention on defendant's lack of cooperation with law enforcement following his arrest, even elevating the inquiry to a condemnation of defendant's silence could not amount to plain error when defendant made the same inquiry on cross examination. State v. King, 218 N.C. App. 347, 721 S.E.2d 336 (2012).

Affidavit on Motion to Suppress. - Section § 15A-977(a) requires an affidavit for a motion to suppress, but requiring the affidavit does not amount to compelling defendant to be a witness against himself in a criminal case in violation of U.S. Const., Amend. V and this section. State v. Gibson, 32 N.C. App. 584, 233 S.E.2d 84 (1977).

Miranda Not Applicable to Abuse and Neglect Proceedings. - In case involving termination of parental rights, admission of mother's confession to injuring her child was not a violation of her Miranda rights; Miranda does not apply to civil juvenile abuse and neglect proceedings. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).

Compelling Admission as Condition for Release Pending Appeal. - Trial court erred by denying a juvenile's release while his appeal was pending in part because he refused to admit committing the offenses for which he was adjudicated delinquent; compelling such an admission to win release violated the juvenile's self-incrimination privilege under the state and federal constitutions. In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002).

Exclusionary Rule Held Not To Apply To Evidence Obtained As Result of Faulty Confession. - Physical evidence obtained due to defendant's statements to police as to the location of the victim's body, obtained in violation of defendant's Miranda and Edwards rights, was not fruit of the poisonous tree and did not have to be suppressed under the exclusionary rule. State v. Goodman, 165 N.C. App. 865, 600 S.E.2d 28 (2004), cert. denied, 359 N.C. 193, 607 S.E.2d 655 (2004).

B. CONFESSIONS.

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When Confession Is Admissible. - An extrajudicial confession by an accused is admissible against him when it is voluntarily given and is not induced by threats or fear, and when the defendant has knowingly and intelligently waived his right to have counsel present at the time the confession is given. State v. Ferrell, 46 N.C. App. 52, 264 S.E.2d 134 (1980).

First degree felony murder and conspiracy to commit robbery with dangerous weapon convictions were affirmed since the trial court's decision to admit a videotape of the defendant's post-Miranda interrogation was properly based on substantial evidence that he (1) signed a waiver of, and (2) never made a clear, unambiguous, and unequivocal assertion of his right to counsel, and did not assert his right to remain silent. State v. Ash, 169 N.C. App. 715, 611 S.E.2d 855 (2005), cert. denied, appeal dismissed, 360 N.C. 66, 621 S.E.2d 878 (2005).

Inadmissibility of Involuntary Confessions or Incriminating Statements. - Although Miranda warnings are required only when defendant is being subjected to custodial interrogation and are not required during the investigatory stage when defendant is not in custody at the time he makes the statement, all involuntary confessions or incriminating statements, made in custody or out, are ordinarily inadmissible for any purpose. State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980).

Exclusion of Second Confession After Improper First Confession. - Neither section 19 nor this section of N.C. Const., Art. I required the suppression of a defendant's second confession, made after proper warnings and the defendant's voluntary waiver of his constitutional rights, when that confession followed an earlier confession which had to be excluded under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Hicks, 333 N.C. 467, 428 S.E.2d 167 (1993), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

Plea of Guilty. - If a plea of guilty or nolo contendere is sustained, it must appear affirmatively that it was entered voluntarily and understandingly. State v. Ford, 281 N.C. 62, 187 S.E.2d 741 (1972).

Procedural safeguards effective to secure the privilege against self-incrimination are necessary whenever law-enforcement officers question a person who has been taken into custody or otherwise deprived of his liberty in any significant way. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975).

The ultimate test of the admissibility of a confession still remains whether the statement made by the accused was in fact voluntarily and understandingly made. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Garnett, 24 N.C. App. 489, 211 S.E.2d 519, appeal dismissed, 287 N.C. 262, 215 S.E.2d 622 (1975); State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980).

Every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969).

Admissibility depends upon whether the statement was freely and voluntarily made and whether the officers who elicited the statement employed appropriate procedural safeguards. State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980).

Question of voluntariness must be determined by the total circumstances of each particular case. State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980); State v. Leak, 90 N.C. App. 351, 368 S.E.2d 430 (1988).

If the totality of circumstances indicates that defendant was threatened, tricked, or cajoled into a waiver of his rights, his statements are rendered involuntary as a matter of law. State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980).

In determining whether a defendant's statement was in fact voluntarily and understandingly made, the court must consider the totality of the circumstances of the case and may not rely upon any one circumstance standing alone and in isolation. State v. Richardson, 70 N.C. App. 509, 320 S.E.2d 900 (1985), rev'd on other grounds, 316 N.C. 594, 342 S.E.2d 823 (1986).

Where defendant asserted that he had not slept nor eaten during the two days prior to his arrest, but failed to show by convincing evidence that he was impaired, intoxicated or coerced at the time he made statements to the police, the trial court did not commit reversible error by admitting defendant's statements into evidence. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000).

Defendant's motion to suppress post-arrest inculpatory statements was properly denied in his trial for first-degree murder and for robbery with a dangerous weapon where the totality of the circumstances indicated that defendant had voluntarily made the statements, that his waiver of his Miranda rights was voluntary, intelligent, and knowingly made, that he never asked for counsel, that the conditions of the interview were of a non-coercive nature, that he was not on any substance or in need of food or bathroom breaks, and the fact that he had subnormal mental capacity did not, alone, render the statement incompetent; accordingly, there was no violation of his rights under this section and suppression of his statements was not required. State v. Mahatha, 157 N.C. App. 183, 578 S.E.2d 617 (2003), cert. denied, 357 N.C. 466, 586 S.E.2d 773 (2003).

Mental Condition as a Factor. - Though defendant's mental condition is a factor to be considered, that factor standing alone will not render an otherwise voluntary confession inadmissible. State v. Leak, 90 N.C. App. 351, 368 S.E.2d 430 (1988).

Where defendant contended that the four and one-half hour delay in taking him before a judicial official after service of warrants was a coercive factor which rendered his confession involuntary, but he did not show any causal connection between the confession and the delay, no constitutional provision required exclusion of his statement on this ground. State v. Leak, 90 N.C. App. 351, 368 S.E.2d 430 (1988).

A confession obtained by the slightest emotions of hope or fear ought to be rejected. State v. Richardson, 70 N.C. App. 509, 320 S.E.2d 900, rev'd on other grounds, 316 N.C. 594, 342 S.E.2d 823 (1986).

Effect of Miranda Warnings. - The fact that the technical procedural requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966) are demonstrated by the prosecution does not, standing alone, control the question of whether a confession was voluntarily and understandingly made, but the answer to this question must be found from a consideration of the entire record. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975).

Custodial admonitions to an accused by police officers to tell the truth, standing alone, do not render a confession inadmissible. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975).

Intoxication when Confession Is Made. - Where a defendant pleads drunkenness as a bar to the admissibility of his confession, unless defendant's intoxication amounts to mania - that is, unless he is so drunk as to be unconscious of the meaning of his words - his intoxication does not render inadmissible his confession of facts tending to incriminate him. The extent of his intoxication when the confession was made, however, is a relevant circumstance bearing upon its credibility, and is a question exclusively for the jury's determination. State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972); State v. Williams, 289 N.C. 439, 222 S.E.2d 242, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Defendant claimed his Miranda waiver and confessions were affected by alcohol and precription drugs; the voluntariness of his Miranda waiver and confessions were supported by an officer's testimony that the defendant was attentive and very coherent and very understanding when he was read his Miranda rights. State v. Tuck, 173 N.C. App. 61, 618 S.E.2d 265 (2005).

Intoxication Held Not to Preclude Conclusion of Voluntariness. - Where officers did not begin questioning defendant until some two hours after a blood alcohol test, and one officer explicitly testified that defendant appeared sober during the interview and spoke rationally and coherently, and the trial court specifically found that defendant was not under the influence of alcohol during the interview, the fact that defendant may have experienced some lingering, mild intoxication at the time of the confession did not preclude the conclusion that he confessed voluntarily. State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988), death sentence vacated and remanded on other grounds, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990).

Confession Held Voluntary. - The granting of defendant's request to see his girlfriend and the mother of his child did not render his confession involuntary where the investigators's statements that they would attempt to contact the women were made only in response to defendant's request, where there was no evidence that investigators used the request as an inducement to obtain his confession, where investigators advised defendant that the police had no control over whether the women came to the station, where defendant himself stated that his confession was not thereby induced, and where the request had no relation to relief from the charges he faced. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000).

Trial court properly denied defendant's motion to suppress incriminating statements he made to law enforcement, and properly admitted those statements at trial, as none of the tactics that defendant cited that were used by the detectives who questioned him rendered his confession involuntary or made his statements to police subsequently inadmissible. State v. Maniego, 163 N.C. App. 676, 594 S.E.2d 242 (2004).

Defendant's post-Miranda statement was admissible because defendant was a 30-year-old high school graduate with experience in the criminal justice system based upon his numerous prior arrests, defendant was not threatened after being advised of his Miranda rights orally and in writing, defendant waived his Miranda rights orally and in writing, defendant did not ask to speak to an attorney, and the officers advised defendant of the charge, the possible sentence he could receive, the need for him to be truthful and help himself out by cooperating; and told defendant that if he cooperated his cooperation would be related to the district attorney's office and the judge. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777 (2005).

Defendant's first degree murder conviction was affirmed because the trial court did not err by denying defendant's motion to suppress his written confession as defendant's written waiver of his Miranda rights and his written confession were made understandingly, knowingly, and voluntarily with the assistance of a police officer who acted as defendant's interpreter. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Hearing on Voluntariness. - When a purported confession of a defendant is offered into evidence and defendant objects, the trial judge, in the absence of the jury, hears evidence of both the State and the defendant upon the question of the voluntariness of defendant's statements. The general rule is that after such inquiry, when there is conflicting evidence offered at the voir dire hearing, the trial judge shall make findings of fact to show the bases of his ruling on the admissibility of the evidence offered. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969).

In-custody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised as to his constitutional rights. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970).

When the State offers a confession in a criminal trial and defendant objects, the competency of the confession must be determined by the trial judge in a preliminary inquiry in the absence of the jury. State v. Garnett, 24 N.C. App. 489, 211 S.E.2d 519, appeal dismissed, 287 N.C. 262, 215 S.E.2d 622 (1975).

When a defendant challenges the admissibility of an in-custody confession, the trial judge must conduct a voir dire hearing to determine whether the confession was voluntarily made and whether the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966) have been met. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

When Findings Unnecessary. - When there is no conflict in the evidence on voir dire, it is not error to admit a confession without making specific findings. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

Effect of Trial Court's Findings. - Trial judge's findings as to the voluntariness of a confession, and any other facts which determine whether it meets the requirements for admissibility, are conclusive if they are supported by competent evidence in the record. State v. Garnett, 24 N.C. App. 489, 211 S.E.2d 519, appeal dismissed, 287 N.C. 262, 215 S.E.2d 622 (1975); State v. Ferrell, 46 N.C. App. 52, 264 S.E.2d 134 (1980); State v. Leak, 90 N.C. App. 351, 368 S.E.2d 430 (1988).

In determining whether an in-custody statement is voluntarily and understandingly made, the trial court's findings of fact are conclusive on appeal if supported by competent evidence. State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467 (1975).

Confession as a Condition of Probation Not Allowed. - Juvenile who was adjudicated to be a delinquent because of his sexual assault of another child could not be required, as a condition of his probation, to admit to the underlying offense, for purposes of treatment, without being granted use immunity or some other protection from the use of such an admission against him. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004).

Review on Appeal. - Whether the conduct and language of investigating officers amounted to such threats or promises as to render a subsequent confession involuntary is a question of law reviewable on appeal. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975).

Whether conduct on the part of interrogating officers constitutes a threat or induces fear and whether a purported waiver has been knowingly and intelligently given are questions of law reviewable on appeal. State v. Ferrell, 46 N.C. App. 52, 264 S.E.2d 134 (1980).

If the State offers a part of a confession, the accused may require the whole confession to be admitted into evidence. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Court's denial of defendant's motion to suppress in-custody inculpatory statements he gave to law enforcement officers did not violate his constitutional rights. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Inculpatory Statements of Codefendants. - Court did not err in allowing into evidence "sanitized" versions of purported statements by codefendants which were inculpatory of each other. State v. Ferrell, 46 N.C. App. 52, 264 S.E.2d 134 (1980).

Admission of Confessions Upheld. - When a defendant has been given all the warnings required by the State and federal rules of evidence, and he understands them, and freely and voluntarily waives the right to have right to counsel and freely and voluntarily makes a confession, then the admission of this confession in evidence at a jury trial does not violate defendant's right against self-incrimination. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781, cert. denied, 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 2d 104 (1974).

Where the trial court found that defendant was fully apprised of his rights to counsel and to remain silent, that he said he understood them, that he did not appear to be under the influence of drugs, and that he knew what he was doing, the trial court ruled correctly that his subsequent confession was admissible. State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467 (1975).

Although defendant contended that his lack of sleep and food and his heavy use of drugs and alcohol shortly before his periods of interrogation rendered any in-custody statement involuntary, where after an extensive voir dire hearing the trial court found that defendant was not interrogated on the evening of his arrest because he was drunk, defendant was not under the influence of intoxicating liquors or drugs and was furnished food and coffee when interrogated on the following day, defendant was read his rights before questioning began, and defendant signed a waiver of his rights, the in-custody statement was freely, understandingly and voluntarily made and was therefore properly admitted into evidence. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 429 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

In a prosecution for armed robbery, the testimony of a witness employed as a dispatcher by the police department relating defendant's in-custody confession of guilt was admissible notwithstanding the dispatcher's failure to advise defendant of his constitutional rights, where the dispatcher questioned defendant while visiting a relative who shared defendant's cell, was not in any way acting as a police officer, and was not, in fact, a police officer. State v. Johnson, 29 N.C. App. 141, 223 S.E.2d 400, cert. denied, 290 N.C. 310, 225 S.E.2d 831 (1976).

In a prosecution for driving under the influence, the trial court did not err in admitting defendant's confession made to a police officer where the court found that defendant was properly advised of his rights; he knowingly waived his rights; he pointed to or told the officer of the wreck and described the location where he had the wreck; and his answers to the questions were free, voluntary, and not coerced by the officer; and the fact that defendant was intoxicated at the time of his confession did not require its exclusion. State v. Spencer, 46 N.C. App. 507, 265 S.E.2d 451 (1980).

The trial court's findings of fact, not specifically excepted to by the defendant, fully supported its conclusions of law that defendant's statements to the police were freely, voluntarily and understandingly made and that none of the defendant's State constitutional rights were violated by his arrest, detention, interrogation or statements. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000).

Confession made by 14 year old defendant in murder case held voluntary. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426 (1995).

VI. WITNESS FEES, COSTS, ETC.

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Appointment Fee Under G.S. § 7A-455.1. - Plain language of N.C. Const., Art. I, § 23, prohibiting the assessment of costs against acquitted defendants, encompasses the appointment fee provided for by G.S. § 7A-455.1(a); by requiring payment of the appointment fee by acquitted defendants, the general assembly devised a statutory framework that does not comport with the constitutional limitation prohibiting a criminal defendant from paying costs unless found guilty, and as such it may not stand. Accordingly, the appointment fee set out in § § 7A-455.1 is a cost of prosecution and may not be imposed upon a defendant in a criminal matter until that defendant has been convicted or pled guilty or nolo contendere. State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004).

G.S. § 7A-455.1(b), which required payment of the appointment fee regardless of the outcome of the proceedings was severed in order to allow the State to assess the appointment fee against convicted defendants as constitutionally allowed under N.C. Const., Art. I, § 23; G.S. § 7A-455.1(a), requiring payment at the time of the appointment was also severed, as it was inconsistent with the ruling that the appointment fee was a cost, and as pursuant to G.S. § 7A-304(a), costs, including the pretrial release services fee under G.S. § 7A-304(a)(5) and and the North Carolina State Bureau of Investigation laboratory fee under G.S. § 7A-304(a)(7), were assessed only after a defendant was convicted or entered a plea of guilty or nolo contendere. State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004).

G.S. § 7A-455.1 is unconstitutional because the portion of the appointment fee under G.S. § 7A-455.1(a) that is paid to the North Carolina Indigent Persons' Attorney Fee Fund does not fall within the definition of "fees" since it is not directly related to the individual defendant who is resisting prosecution or defending against a particular criminal charge, but helps support that part of the criminal justice system that enables the State constitutionally to prosecute indigent defendants who qualify for court-appointed counsel; N.C. Const., Art. I, § 23 does not insulate acquitted defendants from bearing the burden of paying for their own counsel, but it does shield an acquitted defendant from having to pay for a system designed to reimburse the State for expenses necessarily incurred in the conduct of the prosecution. State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004).

Inclusion of virtually identical language to former N.C. Const., Art. I, § 11 in N.C. Const., Art. I, § 23 convincingly demonstrates North Carolina's continuing dedication to the principle that acquitted defendants should not be required to pay the costs of their prosecution; thus, requiring acquitted defendants to pay the appointment fee under G.S. § 7A-455.1, which was a cost of prosecution, would defeat the intent and purpose of either Constitution's provision. State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004).

Payment of Witness Fees. - This provision, exempting an acquitted defendant from payment of necessary witness fees of the defense, does not require that they shall be paid by the public; the section operates only to deprive the witnesses of their common-law right to look to defendant for payment. State v. Hicks, 124 N.C. 829, 32 S.E. 957 (1899).

Assistance of a Pathologist. - Even though defendant's identity as the perpetrator of the crime charged was critical, and the state's case was built on circumstantial evidence, defendant failed to satisfy his burden of showing either that the assistance of a pathologist would have materially aided him in the preparation of his defense or that the lack thereof deprived him of a fair trial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

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