Appeal by defendant from order entered 26 April 1996 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 5 January 1998.
The opinion of the court was delivered by: Smith, Judge.
On 28 October 1995, defendant was arrested on charges of assault inflicting serious injury, assault on a female, and second degree trespass in violation of N.C. Gen. Stat. §§ 14-33(b)(1), (2) (1993) (effective 1 January 1995) (repealed 1 December 1995) and 14-159.13 (1993) (amended effective 1 January 1995), respectively. The charges arose out of alleged assaults by defendant on two women, one of whom claimed to be a former domestic partner of defendant, on 20 October 1995. After his arrest, defendant was taken before a magistrate but was denied pretrial release on all charges. Pursuant to N.C. Gen. Stat. § 15A-534.1 (1997), which sets forth the conditions of bail and pretrial release for crimes of domestic violence, the magistrate ordered that defendant be brought before a Judge or magistrate at 3:45 p.m. on 30 October 1995. On 30 October 1995, defendant was taken before a district court Judge and ordered released upon posting a $5,000.00 secured bond. Defendant was released that day after posting bond.
On 11 December 1995, defendant's case was called for trial in district court. Defendant entered pleas of not guilty to all charges and also moved to dismiss the charges pursuant to N.C. Gen. Stat. § 15A- 954(5)(1997) arguing that, since he had been held for nearly 48 hours without bond, further prosecution would violate the prohibition against double jeopardy. After a hearing, the district court, citing United States v. Halper, 490 U.S. 435, 448, 104 L. Ed. 2d 487, 502 (1989), disavowed by Hudson v. United States, 522 U.S. __, __ L. Ed. 2d __ (1997), concluded that denial of pretrial release conditions for defendant amounted to punishment on the pending charges and that further prosecution would subject defendant to multiple punishments for the same offense in violation of U.S. Const. amend. V and N.C. Const. art. I, § 19. The district court then dismissed the charges against defendant.
The State appealed to superior court pursuant to N.C. Gen. Stat. § 15A-1432(a)(1) (1997). The superior court found that N.C. Gen. Stat. § 15A-534.1 was regulatory, rather than punitive, in nature and concluded the statute did not violate the Double Jeopardy Clauses of either the federal or state constitutions. The court ordered the charges against defendant reinstated and remanded the case to district court for trial. Defendant thereafter filed a notice of appeal to this Court.
On appeal, defendant contends the superior court erred by concluding that N.C. Gen. Stat. § 15A-534.1 does not violate the Double Jeopardy Clauses in U.S. Const. amend. V and N.C. Const. art. I, § 19. He argues that his detention without bond for nearly 48 hours constituted punishment and that further prosecution for the charges would subject him to multiple punishments for the same offenses. While in his brief defendant cites the district court's Conclusion that both the federal and state constitutions provide protection from double jeopardy, defendant makes no argument regarding the North Carolina Constitution. Thus, defendant has waived any consideration of a double jeopardy violation under the North Carolina Constitution. See N.C.R. App. P. 28(b)(5) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.")
We first observe that defendant appealed the superior court's order reinstating the charges against him pursuant to N.C. Gen. Stat. § 15A- 1432(d), which permits a defendant to pursue an interlocutory appeal of a superior court's reversal of a district court's dismissal of criminal charges if "the defendant, or his attorney, certifies to the superior court Judge who entered the order that the appeal is not taken for the purpose of delay and if the Judge finds the cause is appropriately justiciable in the appellate division as an interlocutory matter." While the issue is not before us, we entertain some doubt as to the constitutionality of this statute. See N.C. Const. art. I, § 6 ("The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other."); N.C. Const. art. IV, § 13(2) ("The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division."). However, because the issue is not presented, we will assume no constitutional problems exist and address the merits of defendant's appeal since his attorney certified that the appeal was not taken for the purpose of delay and the superior court found the cause appropriately justiciable in the appellate division as an interlocutory matter. We note however that the appeal would not be appropriately justiciable in the appellate division except for N.C. Gen. Stat. § 15A- 1432(d). Thus, the phrase "appropriately justiciable" in the statute is meaningless. We believe that trial Judges would, in the exercise of their discretion, be well advised to refuse to certify cases pursuant to this statute. Instead, for the sake of judicial efficiency, trial judges should proceed to judgment on the pending criminal charges so that defendants will be required to appeal all relevant issues at the same time.
N.C. Gen. Stat. § 15A-533(b)(1997) states that a defendant charged with a non-capital offense must have conditions of pretrial release set in accordance with N.C. Gen. Stat. § 15A-534 (1997), which delineates the procedure for determining conditions of pretrial release. N.C. Gen. Stat. § 15A-534.1(a) provides, in pertinent part:
(a) In all cases in which the defendant is charged with assault on or communicating a threat to a spouse or former spouse or a person with whom the defendant lives or has lived as if married, with domestic criminal trespass, or with violation of an order entered pursuant to Chapter 50B, Domestic Violence, of the General Statutes, the judicial official who determines the conditions of pretrial release shall be a Judge, and the following provisions shall apply in addition to the provisions of G.S. 15A-534: (1) Upon a determination by the Judge that the immediate release of the defendant will pose a danger of injury to the alleged victim or to any other person or is likely to result in intimidation of the alleged victim and upon a determination that the execution of an appearance bond as required by G.S. 15A-534 will not reasonably assure that such injury or intimidation will not occur, a Judge may retain the defendant in custody for a reasonable period of time while determining the conditions of pretrial release. (2) A Judge may impose the following conditions on pretrial release:
a.That the defendant stay away from the home, school, business or place of employment of the alleged victim;
b.That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim;
c c.That the defendant refrain from removing, damaging or injuring specifically identified property;
d.That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a Judge. The conditions set forth above may be imposed in addition to requiring that the defendant execute a secured appearance bond.
(b) A defendant may be retained in custody not more than 48 hours from the time of arrest without a determination being made under this section by a Judge. If a Judge has not acted pursuant to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.
In challenging the constitutionality of this statute, defendant carries a heavy burden. Barringer v. Caldwell County Bd. Of Educ., 123 N.C. App. 373, 378, 473 S.E.2d 435, 438 (1996). "A strong presumption exists in favor of constitutionality, and a statute will not be declared unconstitutional unless it is clearly so, or the statute cannot be upheld on any ground. Moreover, `a mere doubt [as to constitutionality] does not afford ...