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State v. Vereen10/18/2005
In general, under North Carolina law, " hen a defendant pleads not guilty at an arraignment . . ., he may not be tried without his consent in the week in which he is arraigned." N.C. Gen. Stat. § 15A-943(b) (2004). In this case, Defendant Christopher L. Vereen contends the trial court committed reversible error by beginning his trial (without his consent) the same day on which he was formally arraigned. Because Defendant twice moved the trial court to continue his case during his formal arraignment so he could obtain evidence he subpoenaed and so his witnesses would be available, we reverse the trial court's decision to conduct Defendant's trial on the same day as his arraignment. The record shows that Defendant's case came before Superior Court, Durham County for trial de novo after Defendant was convicted in district court on 10 May 2004. When Defendant's case was called, the prosecutor informed the trial court that Defendant needed to be formally arraigned. The trial court asked Defendant how he pled to two of the charges, and defense counsel answered, "not guilty[.]" Before the trial court arraigned Defendant on the remaining charges, Defendant moved for a continuance on two grounds. First, Defendant stated that he had learned that morning that a police vehicle's surveillance, which Defendant had subpoenaed, had been destroyed, and Defendant requested that the "State produce some kind of explanation as to why this pertinent evidence was destroyed." Second, Defendant stated that some of his witnesses were in court "all day yesterday . . . and unable to come back at this time."
According to the prosecutor, it was the Durham Police Department's policy to destroy such tapes after ninety days. The prosecutor also told the trial court that he was not aware that there had been a subpoena issued. The trial court then inquired as to whether Defendant had been fully arraigned, and the prosecutor responded negatively.
Defense counsel reiterated that she "wanted to make that preliminary motion to hold this matter open until we could get those witnesses and those tapes[.]" The trial court continued with the arraignment, and Defendant pled not guilty to charges of driving while impaired, misdemeanor fleeing to elude arrest, opencontainer, assault on a government officer/employee, and resisting a public officer. After defense counsel spoke with Officer Swartz of the Durham Police Department, defense counsel told the trial court that the destroyed surveillance tapes were necessary to support Defendant's defense regarding some of the charges and asked the trial court to dismiss those matters. The prosecutor, who tried the case in district court, stated that there was no subpoena or request for the tapes at district court and that there was no evidence presented by Defendant that would have supported any type of witness on the scene "that would be able to explain away surveillance tapes by the officers." The prosecutor then stated that the State was ready to proceed since both officers who were involved in the arrest were present.
Defendant's attorney responded that Defendant's testimony at trial supported the need for the surveillance tape. Defendant's attorney then stated that she had "subpoenaed the convenience store" where the incident occurred and had not "heard back." She further stated that "it has been less than thirty days since the appeal . . . it has not been enough time for us to get those subpoenas out and get the information back from those persons." Defense counsel again brought it to the court's attention that some defense witnesses were not present. The court denied the motion to continue, stating " f it comes to the point that you present evidence today, I'll recess unti
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