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North Carolina v. Ferguson6/21/1988
ublic Defender's Office and the Bar would take care of this matter, open that thing up. You're going to have plenty to talk about. You're going to have an awful lot to talk about, in the absence of Mr. Myers, and I'm expecting to listen to a very good argument.
Mr. Plumides: I promise you you'll have one.
The Court: But I think insofar as my duty is concerned, might I have the duty to bring this case to a conclusion.
A trial judge's "distress" over the circumstances surrounding a defendant's arrest are of little comfort when not coupled with an application of the relevant law. Nor can the criminal justice system rely on the hope that the local Bar will take measures to ensure the rights of criminal defendants. We therefore remand this case for entry of required findings of fact and conclusions of law regarding the alleged constitutional and statutory violations.
If, on remand, the trial judge finds and concludes that none of defendant's statutory or constitutional rights have been violated then an appropriate judgment should be entered. If, on the other hand, the trial judge should find that Mrs. Ferguson's arrival to the jail was timely and she made reasonable efforts to gain access to defendant, then defendant was denied access to a potential witness. The denial of access to a witness in this case -- when the State's sole evidence of the offense is the personal observations of the authorities -- would constitute a flagrant violation of defendant's constitutional right to obtain witnesses under N.C. Const. Art. I Sec. 23 as a matter of law and would require that the charges be dismissed. Cf. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971) (defendant's attorney was denied access to defendant after posting bail and asking the jailer to see him. The Court held, because time is of the essence when one is taken into police custody for an offense of which intoxication is an essential element, defendant was unconstitutionally denied the opportunity to confront the State's witnesses with other testimony).
III
We have considered defendant's three remaining assignments of error and find them to be without merit.
We vacate the judgment and remand for further findings of fact consistent with this opinion.
Disposition
We vacate the judgment and remand for further findings of fact consistent with this opinion.
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