Appeal by defendant from judgment entered 29 August 1996 by Judge George L. Wainwright, Jr., in Craven County Superior Court. Heard in the Court of Appeals 28 October 1997.
The opinion of the court was delivered by: Wynn, Judge.
Defendant Sam Ferebee appeals his conviction for stalking. Based on an error committed by the trial Judge before the defendant's trial occurred, the defendant must be given a new trial.
Ferebee was arraigned on 24 June 1996 and his trial was calendered for 27 August 1996. At his arraignment on 24 June 1996, Ferebee -- who was not represented by counsel at the time -- requested and was granted an extension of time in which to file motions for a bill of particulars and for change of venue. The trial court, however, did not specify a deadline or other time frame for the filing of the motions. The record reflects that Ferebee obtained counsel on 9 August 1996 and three days later, that counsel filed the motions for a bill of particulars and for a change of venue.
On 27 August 1996, Ferebee's counsel asked the court to rule on the motions. The trial court noted that at the arraignment on 24 June the Court declined to continue the arraignment and the defendant advised judge Wainwright that he would need additional time after he obtained counsel to file pretrial motions. Judge Wainwright nodded his head and the defendant believed that the Court had granted that request.
In response the trial court said: I think that's a true statement. I think that's absolutely true.
But let me tell you by my nodding of my head what I intended. I would have given Mr. Ferebee ample time to file anything, such as the normal 10 or 20 days, which is allowable, which I would always allow.
N.C. Gen. Stat. § 15A-952 provides that if arraignment is held prior to the session of court for which the trial is calendared motions for a bill of particulars and for change of venue must be made at or before the time of arraignment. N.C. Gen. Stat. § 15A-952(b) & (c) (Cum. Supp. 1996). Failure to file such motions within the prescribed time constitutes waiver of the motions. N.C. Gen. Stat. § 15A-952(e) (Cum. Supp. 1996). The trial court may grant a defendant additional time in which to file a motion. N.C. Gen. Stat. § 15A-952(b) (Cum. Supp. 1996).
Here, it is apparent that defendant was granted additional time at the arraignment, but did not file the motions until August 12th, forty-nine days later. The later-expressed intention of the trial court was apparently that Ferebee would have from ten to twenty days after the arraignment in which to file the motions. The trial court, however, did not tell Ferebee that that was what he meant. Nothing appears in the record to indicate that Ferebee knew or should have known of the Judge's unspoken deadline. And, in fact, nothing could appear in the record to indicate that knowledge because there was simply no way for Ferebee to have known the Judge's unexpressed thought.
An attorney may have been expected to recognize the need to have a specific deadline for the extension. In fact, once Ferebee retained counsel on 9 August 1996, both motions were filed within three days. However, in this case Ferebee was not yet represented by a lawyer when he requested and received the extension. Furthermore, it was not Ferebee's intention to represent himself. The trial Judge knew, as Ferebee had told him, that Ferebee planned to obtain counsel to represent him. A litigant who has not yet obtained an attorney could not be expected to recognize the need to clarify the Judge's grant of the extension. In such a situation, the trial court should have given him a definite date by which to file the motions.
Furthermore, on the facts of this case, the failure to give a definite date coupled with the later refusal to hear the motions constituted an abuse of discretion. Items in the record on appeal suggest that a fair trial required consideration of the motions, especially the motion for a change in venue. In particular, we note that included with the record were two letters from different churches in the community telling Ferebee not to return to worship there. Because it appears that proper consideration of the motions would have led to a change in venue, it was in the interest of Justice for the trial court to consider the motions. We therefore hold that the failure to do so constituted an abuse of discretion which prejudiced the defendant.
Accordingly, we vacate Ferebee's conviction and remand for consideration of the motions and a new trial.
Several other issues raised on appeal appear likely to reoccur during the new trial, so we consider them as well. Also, we note that the statute that Ferebee was charged with violating has subsequently been changed by the legislature. The version relevant for this appeal and for the new trial is as follows: (a)Offense. -- A person commits the offense of stalking if the person willfully on more than one occasion follows or is in the presence of another person without legal purpose: (1)With the intent to cause emotional distress by placing that ...