I was on a panel about criminal case calendaring yesterday at the Courts Commission. While talking to people in preparation for the event, I kept hearing one thing: that North Carolina is the only state in which the prosecutor controls the calendar. After conducting some research, I don’t think that’s quite right. Continue reading
Tag Archives: calendaring
Trial courts may ultimately control their calendars, but there certainly is some power-sharing along the way. The constraints on a
trial district court’s authority to manage the flow of litigation are particularly significant in impaired driving cases. Indeed, G.S. 20-139.1(e2) requires that implied consent cases in district court be continued until the chemical analyst who analyzed the defendant’s breath, blood or urine can be present—unless the defendant waives his or her constitutional right to confront the analyst at trial.
Trial courts normally exercise discretion in determining whether to grant a motion to continue. However, a
trial district court ruling on a motion to continue by the State in an impaired driving case in order to secure the presence of a chemical analyst must consider G.S. 20-139.1(e2), which plainly states that “[t]he case shall be continued until the analyst can be present.” This subsection goes on to provide that “[t]he criminal case shall not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.” This latter statement is a curious directive, given that trial courts do not have the authority to dismiss a criminal case due to a witness’s failure to appear. Cf. State v. Joe, ___ N.C. ___, 723 S.E.2d 339 (2012) (concluding that trial court lacked authority to dismiss case on its own motion; noting that a trial court may grant a defendant’s motion to dismiss under G.S. 15A–954 or G.S. 15A–1227 or the State may dismiss pursuant to G.S. 15A–931); G.S. 15A-954 (setting forth grounds for dismissal in criminal proceedings, none of which relate to the absence of evidence); G.S. 15A-1227 (providing that a motion for dismissal for insufficiency of the evidence may be made upon close of the State’s evidence and at subsequent junctures). Perhaps this latter provision of G.S. 20-139.1(e2) indicates that the trial district court may deny the State’s motion to continue if the analyst willfully fails to appear pursuant to a court order, but, in other circumstances, must grant the State’s motion.
In short, the legislature has instructed district courts that they must continue certain implied consent cases so that a chemical analyst may appear. An exception may apply for cases in which the analyst does not appear after having been ordered to do so by the court.
May the legislature involve itself so directly with the trial courts’ management of cases? Our appellate courts have not considered the constitutionality of G.S. 20-139.1(e2), but I think the answer this question is yes—to some extent. Article IV, Section 13(2) of the North Carolina constitution authorizes the General Assembly to “make rules of procedure and practice for the Superior Court and District Court Divisions,” but provides that “[n]o rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.” The continuance rule in G.S. 20-139.1(e2) is a rule of a procedure that appears capable of application in a way that does not violate a defendant’s constitutional rights. If, for example, the State files a single motion to continue in a DWI case seeking calendaring of the case on a date at which the analyst is available to testify, the granting of that continuance pursuant to the statutory directive would not, absent additional facts, violate a defendant’s rights. However, if the State seeks a continuance to secure the presence of an analyst in a DWI case twelve months after the defendant is charged, after having been notified that the previous continuance granted was the last to be afforded to the State, the rote application of G.S. 20-139.1(e2) over a defendant’s objection might violate a defendant’s right to speedy trial and other substantive rights. Cf. Simeon v. Hardin, 339 N.C. 358, 377-79 (1994) (determining that the statutes granting the district attorney calendaring authority were facially valid but that there was a genuine issue of material fact as to whether the statutes were being applied in an unconstitutional manner). A
trial district court wishing to avoid this issue might, after granting the first continuance, order the analyst to appear at the next trial date, thereby invoking the apparent exception in G.S. 20-139.1(e2).
Because chemical analysis results often are the State’s best evidence of impairment and there are far more cases than analysts, I suspect that the State frequently relies upon the protections of G.S. 20-139.1(e2) when seeking a continuance. Readers, if you have litigated the issue of a
trial district court’s authority to deny a motion to continue in light of this provision, let us know the outcome and the court’s reasoning.
In State v. Friend, ___ N.C. App. ___, 724 S.E.2d 85 (2012), the Court of Appeals addressed the district court’s authority when, after the court refuses to allow a continuance, the State takes a voluntary dismissal and subsequently refiles the case. In Friend, the State voluntarily dismissed an impaired driving charge after the district court denied the State’s motion for a continuance; and when the State filed a new impaired driving charge nine days later based on the same incident, the district court dismissed the charge in light of its earlier refusal to grant the State a continuance. The Court of Appeals found that dismissal was not a proper remedy. The court found that the State’s taking of a voluntary dismissal and reinstitution of the charges after the district court’s denial of a continuance did not interfere with the district court’s authority over the calendar and therefore did not constitute a separation of powers violation. The court also found in the circumstances of the case that proceeding with prosecution of the charges did not violate the defendant’s speedy trial and due process rights. My colleague Shea Denning summarized the case here.
In State v. Sheppard, ___ S.E.2d ___ (Feb. 19, 2013), the Court of Appeals in an unpublished opinion further considered the problem of delay in district court, this time upholding dismissal of the charges on speedy trial grounds. In Sheppard, as in Friend, the defendant was charged with impaired driving. Also as in Friend, when the district court denied the State’s request for a continuance (in this case after an 11-month delay following arrest), the State took a voluntary dismissal and, later the same day, refiled the charges and rearrested the defendant. The district court denied the defendant’s motion to dismiss for a speedy trial violation, and the defendant was tried and convicted in district court, but on appeal for a trial de novo the superior court granted the motion to dismiss for a speedy trial violation. The Court of Appeals affirmed the superior court’s ruling, holding that the fourteen-month delay from the defendant’s arrest to her trial in district court supported the motion. In reaching its conclusion, the Court of Appeals rejected the State’s argument that the defendant waived her speedy trial right by objecting to the chemical analyst’s affidavit and asserting her right to confront the analyst at trial, recognizing that a defendant may not be required to give up one constitutional right to assert another.
The general takeaways from Friend and Sheppard on calendaring in district court can be summarized as follows:
1. The district court has ultimate authority over its calendar and may refuse to grant a request for a continuance by the State. Friend recognized this authority in light of Simeon v. Hardin, 339 N.C. 358 (1994), which addressed the limits on prosecutorial control over the criminal calendar, and Sheppard reinforces the principle. See also Michael Crowell, Control of the Calendar in Criminal District Court (UNC School of Government, July 2010). (Note that G.S. 20-139.1(e2) contains special provisions on continuances in impaired driving cases involving testimony by a chemical analyst; the statute was not directly at issue in either case.)
2. If the district court refuses to grant a continuance, the State must proceed with the case or take a voluntary dismissal. Because the court has ultimate authority to manage cases on its calendar, the State may not ignore the court’s order denying a continuance and unilaterally reschedule the case to a different date. See generally Crowell at 4. If the State does not take a voluntary dismissal, the district court may order the State to call its first witness and, if the State does not proceed, may acquit the defendant for a failure of proof. See State v. Watts, 35 So.3d 1, 7 (Ala. Crim. App. 2009); People v. Mooar, 416 N.E.2d 81, 84 (Ill. App. Ct. 1981).
3. If the State takes a voluntary dismissal and subsequently refiles the charges, the district court may not dismiss the case solely because the court previously denied the State’s request for a continuance. Although refiling of the charges may seem in derogation of the court’s previous scheduling orders, Friend found that refiling does not unconstitutionally interfere with the court’s authority over the calendar.
4. A district court has the authority to dismiss a case after refiling if prosecution of the charges violates other of the defendant’s rights. (Note that G.S. 20-38.6 contains special provisions on dismissal motions in impaired driving cases.) Thus:
- If the two-year statute of limitations for misdemeanors has run (measured from the offense date to the refiling date), the defendant is entitled to dismissal. See generally State v. Madry, 140 N.C. App. 600 (2000).
- If there was delay in prosecution of the case before the State took a dismissal, the district court may consider that delay along with any delay after refiling of the case in ruling on a motion to dismiss for violation of the right to a speedy trial. See United States v. Columbo, 852 F.2d 19, 23–24 (1st Cir. 1988) (“Were it otherwise, the government would be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.”). In Friend, the court stated that it did not need to consider the delay in district court because the defendant did not make a speedy trial demand until after he appealed for a trial de novo in superior court; therefore, only the delay in superior court was relevant. This interpretation seems inconsistent with the four-factor analysis for speedy trial claims in Barker v. Wingo, 407 U.S. 514 (1972), under which a request for a speedy trial is one factor and not determinative. (Notwithstanding its initial statement, the court in Friend went on to consider the entire delay in assessing and ultimately rejecting the defendant’s speedy trial claim.) Friend’s view of the applicable period of delay was not at issue in Sheppard, in which the defendant made eight speedy trial requests in district court and another four requests in superior court.
- A due process violation may also provide grounds for dismissal. In Simeon v. Hardin, 339 N.C. at 377–78, a civil action for declaratory and injunctive relief, the Court found that the plaintiff’s allegations about the district attorney’s calendar practices were sufficient to state a claim of a due process violation (and potentially other constitutional violations), and the case was remanded for further proceedings. The plaintiffs alleged that the practices included, among other things: manipulating the calendar to exact pretrial punishment on incarcerated defendants and pressure defendants to plead guilty; calling cases for trial without adequate notice, thereby impairing the quality of representation; and calendaring cases repeatedly and causing defendants unnecessary expense and inconvenience. Friend found no violation of due process; Sheppard did not address the issue.
5. If the State refiles the charges after taking a voluntary dismissal and issues an arrest warrant rather than a criminal summons, rearrest may lend support to a claim of a speedy trial violation per the prejudice factor in Barker v. Wingo or a due process violation per Simeon v. Hardin. While the court probably could not dictate the criminal process to be used by the State should it decide to refile, the court certainly could unsecure any bond for a defendant if rearrested.
Friend and Sheppard are probably not the last words on calendaring in district court, but they advance our understanding of the applicable principles and procedures.
I regularly am asked questions about criminal case calendaring. There are relatively detailed statutory provisions regarding the calendaring of superior court cases. As to district court cases, however, the statutes are much less clear, and the practice around the state appears to vary, with prosecutors generally playing the leading role, but judges, defense lawyers, clerks, and magistrates participating to some extent in some districts.
A particularly recurrent issue is the extent of the court’s control over the calendaring of district court cases. For example, when a defendant’s motion to continue is allowed, can the court set the next court date, or does the authority to determine that date lie with the district attorney? Or, to what extent may a court adopt rules that constrain the district attorney’s exercise of his or her calendaring power?
Fortunately, my colleague Michael Crowell has written a paper entitled Control of the Calendar in Criminal District Court, available here as a free PDF, that sheds light on these issues. It’s less than four pages long, and is well worth a read if you are ever involved in district court cases.