{
  "id": 8524134,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM THOMAS CYRUS",
  "name_abbreviation": "State v. Cyrus",
  "decision_date": "1983-02-15",
  "docket_number": "No. 822SC775",
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  "last_updated": "2023-07-14T17:52:46.639047+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Webb and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM THOMAS CYRUS"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nIn appealing from judgments imposing concurrent 18-month prison sentences for driving under the influence, third offense, and driving while license permanently revoked, defendant, William Cyrus, presents one argument: \u201cWhether the trial court erred in denying Defendant\u2019s Motion to Secure the Attendance of a Material Witness, pursuant to N.C. Gen. Stat. \u00a7 15A-813.\u201d\nI\nOn 4 March 1982, counsel for defendant, after conferring with the district attorney and the presiding judge, requested that defendant\u2019s cases be peremptorily set for trial. Defendant\u2019s counsel asked that the cases be called at 10:00 a.m. on 15 March 1982 because a material witness, Rudy Newsome, a resident of Houston, Texas, could be present at that time. The District Attorney agreed to \u201cswitch the calendar around [and to get the] two troopers [to court] to testify in this case, all at the request of the defendant. . . .\u201d\nOn 4 March 1982, defense counsel also conferred with the presiding judge about an order to secure the attendance of Rudy Newsome pursuant to G.S. \u00a7 15A-813, but \u201cdecided not to go through it because [he was] acting on the assumption that everything was indeed in order with [the] witness.\u201d On 11 March 1982, the defendant informed his attorney that Newsome would not be coming to testify. The following day, Friday, 12 March 1982, at approximately 2:00 p.m., defense counsel informed the District Attorney of that fact. On the morning of 15 March 1982, the defendant filed his motion to secure the attendance of a material witness. Based on the preceding facts and the analysis which follows, we find no error in the trial court\u2019s denial of that motion.\nII\nThe Uniform Act to Secure Attendance of a Witness from without a State in Criminal Proceedings, N.C. Gen. Stat. \u00a7 15A-811 (1978), et seq., gives the trial court the means to compel a non-resident witness to attend and testify at criminal proceedings in this State. State v. Tindall, 294 N.C. 689, 242 S.E. 2d 806 (1978). Our Supreme Court has identified three questions which are presented for review when a party attempts to invoke the Act\u2019s procedures: (1) whether the defendant has made an adequate showing that the prospective witness\u2019 testimony is material; (2) whether the defendant has adequately designated the witness\u2019 location; and (3) whether the trial judge\u2019s discretion to grant the motion was exercised in accord with the Sixth Amendment\u2019s guarantee that the accused be afforded compulsory process for obtaining witnesses in his favor. Id. at 700, 242 S.E. 2d at 812.\nIn this case, the trial court made every effort to accommodate the defendant and his attorney to have the witness available for the trial. The presiding judge and defense counsel even talked about an order to secure the attendance of the witness at trial. Defendant knew that the witness might not show up. The record suggests that defendant knew well before the case was calendared for trial that Newsome had marital problems that might prevent his coming back to North Carolina; that there were outstanding warrants against Newsome in North Carolina; and that Newsome might have trouble getting away from work during what was, for him, a very busy season.\nIt is true that a trial judge must not exercise his discretion to issue a material witness order in a manner inconsistent with the Sixth Amendment. See, State v. Tindall. It is also true that the right to compulsory process is a fundamental right and that neither our statute nor the Constitution prescribes time limits within which to exercise that right. It is equally true, however, that rights can be waived. The statute was designed in part to ensure the presence of witnesses like Rudy Newsome. As our Supreme Court said in State v. Graves, 251 N.C. 550, 558, 112 S.E. 2d 85, 92 (1960):\nWe do not suggest that an accused may be less than diligent in his own behalf in preparing for trial. He may not place the burden on the officers of the law and the court to see that he procures the attendance of witnesses and makes preparation for his defense. But the officers and the court have a duty to see that he has opportunity for so doing.\nNothing about the Uniform Act to Secure Attendance of a Witness from without a State in Criminal Proceedings changes that statement. Under the Act, the officers and the court have a duty to see that defendant has an opportunity for securing material witnesses. They are placed under no burden to demand that he do so.\nOn the record presented, the trial court\u2019s refusal to secure the attendance of the material witness was not an abuse of discretion and did not deny the defendant his right to compulsory process. For those reasons, we find\nNo error.\nJudges Webb and Phillips concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.",
      "Wayland J. Sermons, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM THOMAS CYRUS\nNo. 822SC775\n(Filed 15 February 1983)\nConstitutional Law \u00a7 68; Witnesses \u00a7 10\u2014 out-of-state witness \u2014 denial of motion to secure attendance\nThe trial court did not abuse its discretion or violate defendant\u2019s right to compulsory process in the denial of defendant\u2019s motion to secure the attendance of a material out-of-state witness pursuant to G.S. 15A-813 where, on 4 March, defendant\u2019s cases were peremptorily set for trial on 15 March because the witness, a resident of Texas, could be present at that time; defense counsel talked with the presiding judge about an order to secure the attendance of the witness at trial but decided not to obtain such an order; defendant informed his attorney on 11 March that the witness would not be coming to testify; defendant did not file his motion until the morning of 15 March; and defendant knew well before his cases were calendared for trial that the witness had marital problems that might prevent him from coming to North Carolina, that there were outstanding warrants against the witness in North Carolina, and that the witness might have trouble getting away from work at the time the cases were set for trial.\nAppeal by defendant from Small, Judge. Judgment entered 15 March 1982 in Superior Court, BEAUFORT County. Heard in the Court of Appeals 21 January 1983.\nAttorney General Edmisten, by Assistant Attorney General John C. Daniel, Jr., for the State.\nWayland J. Sermons, Jr., for defendant appellant."
  },
  "file_name": "0774-01",
  "first_page_order": 806,
  "last_page_order": 808
}