In re E.D. , 372 N.C. 111 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 125PA18
Filed 10 May 2019
IN THE MATTER OF: E.D.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 630 (2018), vacating an order
entered on 5 January 2017 by Judge Dan Nagle in District Court, Wake County.
Heard in the Supreme Court on 6 March 2019.
Joshua H. Stein, Attorney General, by Robert T. Broughton, Assistant Attorney
General, for the State, petitioner-appellant.
Glenn Gerding, Appellate Defender, by Wyatt Orsbon, Assistant Appellate
Defender, for respondent-appellee.
HUDSON, Justice.
This case is before us pursuant to the State’s petition for discretionary review1
of the Court of Appeals’ decision which held that “in cases where a respondent [who
is involuntarily committed to a State health facility] does not receive an examination
by a second physician as mandated by N.C. Gen. Stat. § 122C-266(a), the respondent
is not required to make a showing of prejudice resulting from the statutory violation
in order to have the trial court’s order authorizing her continued commitment
1 Respondent’s conditional petition for discretionary review was denied on 7 June
2018.
IN RE E.D.
Opinion of the Court
vacated.” In re E.D., ___ N.C. App. ___, ___, 813 S.E.2d 630, 634 (2018). We now
review: (1) whether “the Court of Appeals erred in concluding that N.C. Gen. Stat. §
122C-266(a) was the type of statutory mandate for which the right to appellate review
is automatically preserved regardless of a failure to object in the trial court”; and (2)
whether “the Court of Appeals erred in concluding that appellate relief is
automatically merited upon the showing of a violation of N.C. Gen. Stat. § 122C-
266(a).” Because the Court of Appeals erred in concluding that N.C.G.S. § 122C-
266(a) imposes a statutory mandate that automatically preserves violation of that
subsection for appellate review—and because respondent did not otherwise preserve
her argument alleging the violation by objecting on that basis at the hearing on her
involuntary commitment—we reverse the Court of Appeals’ decision without deciding
whether prejudice must be shown to obtain relief on appeal.
I. Factual and Procedural Background
The facts of this case begin on 26 December 2016 when respondent’s sister filed
an affidavit and petition for involuntary commitment in the District Court in Wake
County requesting that respondent be taken into custody.
In the affidavit respondent’s sister swore that respondent was mentally ill, was
a danger to herself or others, was in need of treatment for her mental illness in order
to prevent further disability and deterioration that would predictably result in
dangerousness, and was a substance abuser who was dangerous to herself or others.
-2-
IN RE E.D.
Opinion of the Court
In support of these assertions, respondent’s sister swore to the following facts: (1)
respondent was suicidal; (2) respondent attempted to jump out of a moving vehicle on
Christmas Eve; (3) respondent threatened to kill her sister, her niece, and her mother
when respondent’s sister turned out a light in her own home and moved eggs in the
refrigerator; (4) respondent has thrown knives, computers, and chairs at her sister;
(5) respondent has been diagnosed with bipolar I disorder with manic, psychotic
features; (6) respondent has abused prescription drugs and attempted to break down
a bathroom door when she was intoxicated after drinking liquor; and (7) respondent
threatened to “beat the skin off” her mother’s face.
At 7:01 p.m. on the same day that respondent’s sister filed the affidavit and
petition, a magistrate found that respondent was mentally ill, was a danger to herself
or others, was in need of treatment in order to prevent further disability and
deterioration that would predictably result in dangerousness, and was a substance
abuser who was dangerous to herself or others. Based on these findings, the
magistrate ordered that law enforcement take the respondent into custody for
examination by a physician or eligible psychologist within twenty-four hours of
issuance of the order.2 Respondent was taken into custody by Raleigh police at 8:00
2 N.C.G.S. § 122C-261(b) (2017) (“If the clerk or magistrate finds reasonable grounds
to believe that the facts alleged in the affidavit are true and that the respondent is probably
mentally ill and either (i) dangerous to self, as defined in G.S. 122C-3(11)a., or dangerous to
others, as defined in G.S. 122C-3(11)b., or (ii) in need of treatment in order to prevent further
disability or deterioration that would predictably result in dangerousness, the clerk or
magistrate shall issue an order to a law enforcement officer or any other person authorized
-3-
IN RE E.D.
Opinion of the Court
p.m., and she was transported to UNC Hospital in Chapel Hill, North Carolina, at
8:30 p.m.3
On 27 December at 1:30 p.m., respondent received her first examination by a
physician as required by law.4 The examining physician opined that respondent was
mentally ill, was a danger to herself, and was a danger to others. As a result of these
findings, the physician recommended that respondent should be subject to inpatient
commitment for fifteen days.5
On the same day as her first examination at UNC Hospital, respondent was
transported to UNC Wakebrook Psychiatric Services (UNC Wakebrook) in Raleigh to
begin her inpatient commitment. After her arrival at UNC Wakebrook, respondent
received her second examination as required by law at 4:45 p.m.;6 however, during
this examination, respondent was seen by a psychologist. She was not examined by
under G.S. 122C-251 to take the respondent into custody for examination by a physician or
eligible psychologist.”).
3 Under North Carolina law, a law enforcement officer who assumes custody over a
mentally ill individual under N.C.G.S. § 122C-261(b) must, “[w]ithout unnecessary delay,”
take the individual to a facility for an examination “by a physician or eligible psychologist.”
Id. § 122C-263(a) (2017).
4 North Carolina law requires that, upon being taken into custody, the individual be
examined by a “physician or eligible psychologist” within twenty-four hours. Id. § 122C-
263(c) (2017).
5 “If the physician or eligible psychologist finds that the respondent is mentally ill and
is dangerous to self, as defined in G.S. 122C-3(11)a., or others, as defined in G.S. 122C-
3(11)b., the physician or eligible psychologist shall recommend inpatient commitment, and
shall so show on the examination report.” Id. § 122C-263(d)(2) (2017).
6 Id. § 122C-266(a) (2017) (requiring that a person subject to involuntary inpatient
commitment be examined within twenty-four hours of arrival at a facility).
-4-
IN RE E.D.
Opinion of the Court
a physician as required by law. N.C.G.S. § 122C-266(a) (2017) (“[W]ithin 24 hours of
arrival at a 24-hour facility described in G.S. 122C-252, the respondent shall be
examined by a physician.” (emphasis added)); see also id. § 122C-3(29), (30a) (Supp.
2018) (defining “physician” and “psychologist” separately, and stating that a
“physician” is “an individual licensed to practice medicine in North Carolina under
Chapter 90 of the General Statutes or a licensed medical doctor employed by the
Veterans Administration”).
Based on her evaluation of respondent, the psychologist opined that
respondent was mentally ill, a danger to herself, and a danger to others. Accordingly,
the psychologist recommended that respondent be subject to inpatient commitment
for five to ten days.7 Respondent remained in custody at UNC Wakebrook until the
hearing on her involuntary commitment in the District Court in Wake County on 5
January 2017.
Immediately following the hearing, the district court ordered that respondent
be involuntarily committed at UNC Wakebrook for a period not to exceed thirty days.8
7 “If the physician finds that the respondent is mentally ill and is dangerous to self, as
defined by G.S. 122C-3(11)a., or others, as defined by G.S. 122C-3(11)b., the physician shall
hold the respondent at the facility pending the district court hearing.” Id. § 122C-266(a)(1).
“A hearing shall be held in district court within 10 days of the day the respondent is taken
into law enforcement custody pursuant to G.S. 122C-261(e) or G.S. 122C-262.” Id. § 122C-
268(a) (Supp. 2018).
8 “To support an inpatient commitment order, the court shall find by clear, cogent, and
convincing evidence that the respondent is mentally ill and dangerous to self, as defined in
G.S. 122C-3(11)a., or dangerous to others, as defined in G.S. 122C-3(11)b. The court shall
-5-
IN RE E.D.
Opinion of the Court
In its order the court found that respondent was mentally ill; and was a danger to
herself and others. At no point during the hearing did respondent raise the issue that
her second examination was not conducted by a physician as required by N.C.G.S. §
122C-266(a). Respondent filed her notice of appeal on 27 January 2017.
The Court of Appeals vacated respondent’s involuntary commitment order. In
re E.D., ___ N.C. App. at ___, 813 S.E.2d at 634. In so doing, the court reached two
conclusions that are pertinent here. First, relying on its own decision in In re Spencer,
the Court of Appeals held that respondent’s argument—that N.C.G.S. § 122C-266(a)
was violated when her second examination was conducted by a psychologist in lieu of
a physician—was preserved for appellate review even though respondent did not
raise the issue in the district court hearing on her involuntary commitment. Id. at
___, 813 S.E.2d at 632 (citing In re Spencer, 236 N.C. App. 80, 84-85, 762 S.E.2d 637,
640 (2014), disc. rev. denied, 367 N.C. 811, 767 S.E.2d 529 (2015). Specifically, the
Court of Appeals reasoned that its previous decision in In re Spencer required it to
conclude that N.C.G.S. § 122C-266(a) places a “statutory mandate” upon the trial
court that renders any violation of that subsection automatically preserved for
appellate review. Id. at ___, 813 S.E.2d at 632.
record the facts that support its findings.” Id. § 122C-268(j) (Supp. 2018).
Although respondent’s involuntary commitment order has expired, this case is not
moot. In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633, 635 (1977) (“The possibility that
respondent’s commitment in this case might likewise form the basis for a future commitment,
along with other obvious collateral consequences, convinces us that this appeal is not moot.”).
-6-
IN RE E.D.
Opinion of the Court
Second, the Court of Appeals relied on its own decision in In re Barnhill, to
hold that the violation of N.C.G.S. § 122C-266(a) entitled respondent to relief without
her needing to show that she was prejudiced by the violation. Id. at ___, 813 S.E.2d
at 633 (citing In re Barnhill, 72 N.C. App. 530, 532, 325 S.E.2d 308, 309 (1985)). In
its analysis the Court of Appeals distinguished the facts here and those of In re
Barnhill, from the facts of In re Spencer, in which a respondent was required to
demonstrate prejudice. Id. at ___, 813 S.E.2d at 633-34 (citations omitted). The court
reasoned that In re Spencer is distinct from the situation presented here because in
In re Spencer, the respondent conceded that he was actually examined by a physician,
id. at ___, 813 S.E.2d at 633 (“Here, respondent concedes that Dr. Saeed’s testimony
illustrates that he conducted an examination of respondent on 23 July 2013, the day
after he was admitted to Holly Hill Hospital.” (quoting In re Spencer, 236 N.C. App.
at 85, 762 S.E.2d at 640)); however, “no written records existed documenting the fact
that a second physician had examined the respondent,” id. at ___, 813 S.E.2d at 633
(citing In re Spencer, 236 N.C. App. at 84, 762 S.E.2d at 640). The Court of Appeals
limited In re Spencer to its facts by reasoning that “Spencer cannot be read as
standing for the entirely separate proposition that in cases where—as here—the
second examination requirement of N.C. Gen. Stat. § 122C-266(a) clearly has not been
followed, a respondent must nevertheless show prejudice stemming from her failure
to receive a second examination.” Id. at ___, 813 S.E.2d at 633-34.
-7-
IN RE E.D.
Opinion of the Court
We allowed the State’s petition for discretionary review of the Court of Appeals’
decision on 7 June 2018 and now review the issues presented therein: (1) whether
respondent’s issue is automatically preserved for appellate review; and (2) whether
respondent is entitled to relief on appeal without the need to demonstrate prejudice
from the violation of N.C.G.S. § 122C-266(a).
II. Analysis
We conclude that the Court of Appeals erred when it held that N.C.G.S. § 122C-
266(a) imposes a statutory mandate that automatically preserves a violation of that
provision for appellate review. On that basis, we reverse the decision of the Court of
Appeals. Because we so conclude, and because respondent did not raise the issue of
the violation of N.C.G.S. § 122C-266(a) at the district court hearing on her
involuntary commitment, this issue is not preserved for appellate review. As a result,
we need not—and do not—reach the issue of whether the Court of Appeals erred in
concluding that respondent was not required to demonstrate prejudice from the
violation.
This Court reviews a decision of the Court of Appeals for errors of law. N.C. R.
App. P. 16(a); State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d 911, 914 (2010) (citing
State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994)).
Rule 10 of the North Carolina Rules of Appellate Procedure states the general
rule governing how parties preserve issues for appellate review:
In order to preserve an issue for appellate review, a party
-8-
IN RE E.D.
Opinion of the Court
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party's request, objection, or motion.
N.C. R. App. P. 10(a)(1). Here, because respondent did not raise the issue of the
violation of N.C.G.S. § 122C-266(a) before the district court, she failed to preserve
this issue for appellate review under Rule 10 of the North Carolina Rules of Appellate
Procedure.
Nonetheless, “[i]t is well established that ‘when a trial court acts contrary to a
statutory mandate and a defendant is prejudiced thereby, the right to appeal the
court’s action is preserved, notwithstanding defendant’s failure to object at trial.’ ”
State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (first quoting State v. Ashe,
314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (citation omitted); then citing State v.
Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004), cert. denied, 544 U.S. 909, 125
S. Ct. 1600, 161 L. Ed. 2d. 285 (2005)); see State v. Hucks, 323 N.C. 574, 579, 374
S.E.2d 240, 244 (1988) (“When a trial court acts contrary to a statutory mandate, the
error ordinarily is not waived by the defendant's failure to object at trial.” (citing
Ashe, 314 N.C. at 39, 331 S.E.2d at 659)); see also State v. Bryant, 189 N.C. 112, 115,
126 S.E. 107, 109 (1925) (“The fact that exception was not entered at the time the
remark was uttered is immaterial. The statute is mandatory, and . . . may be
excepted to after the verdict.” (citation omitted)).
-9-
IN RE E.D.
Opinion of the Court
When a statute “is clearly mandatory, and its mandate is directed to the trial
court,” the statute automatically preserves statutory violations as issues for appellate
review. Hucks, 323 N.C. at 579, 374 S.E.2d at 244; see Ashe, 314 N.C. at 40, 331
S.E.2d at 659 (“N.C.G.S. § 15A-1233(a) require[s] the trial court to summon all jurors
into the courtroom before hearing and addressing a jury request to review testimony
and to exercise its discretion in denying or granting the request.”); Bryant, 189 N.C.
at 114, 126 S.E. at 108 (“No judge, in giving a charge to the petit jury, either in a civil
or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven
. . . .” (quoting 1 N.C. Cons. Stat. § 564 (1919)); see also State v. Aikens, 342 N.C. 567,
578, 467 S.E.2d 99, 106 (1996) (concluding that N.C.G.S. § 15A-1235(c) (1988) was
“permissive rather than mandatory” (citing State v. Williams, 315 N.C. 310, 326, 338
S.E.2d 75, 85 (1986))).
The State and respondent do not disagree with the rule that a statute’s
mandate must be directed to the trial court in order to automatically preserve a
statutory violation as an issue for appellate review; see, e.g., Davis, 364 N.C. at 303,
698 S.E.2d at 68 (concluding that the trial court “is not authorized to impose
punishment for the offenses enumerated in subsection (b) [of N.C.G.S. § 20-141.4
(2009)]”); Hucks, 323 N.C. at 579, 374 S.E.2d at 244; however, they do disagree about
when a statute’s mandate is directed to the trial court. Specifically, and relying on
-10-
IN RE E.D.
Opinion of the Court
our decisions in Davis, Hucks, and Ashe,9 the State contends that a statute directs its
mandate to a trial court when it does so expressly or when it “involve[s] actions that
a trial court can perform: returning jurors to a courtroom, ensuring a random panel
of jurors, appointing assistant counsel, or sentencing in accordance with the law.”
Respondent argues, however, that the State’s interpretation of our case law is “not
the end of the story. Some statutes, this Court has observed, implicitly impose a
9 The State also relies on our decision in State v. Braxton, 352 N.C. 158, 177, 531
S.E.2d 428, 439 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).
However, such reliance is misplaced because, in that decision, we did not conclude that the
issue was automatically preserved for appeal. Id. at 177, 531 S.E.2d at 439. In fact, Braxton
belongs to a line of cases in which we have determined that a defendant waives appellate
review of the requirement found in N.C.G.S. § 15A-1214(a) that jurors be selected from the
panel by a random procedure when that defendant fails to follow the statutory procedure for
challenging the jury panel. See N.C.G.S. § 15A-1211(c) (2017) (“The State or the defendant
may challenge the jury panel.”); Braxton, 352 N.C. at 177, 531 S.E.2d at 439 (“In this case,
defendant never followed th[e] specific procedure [under N.C.G.S. § 15A-1211(c) (1999) for
asserting a challenge to the jury empaneling procedure]. . . . In light of defendant’s failure
to follow the procedures . . . we hold that defendant failed to preserve this issue for appellate
review.” (citing State v. Atkins, 349 N.C. 62, 102-03, 505 S.E.2d 97, 122 (1998), cert. denied,
526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999)); see also Tirado, 358 N.C. at 571,
599 S.E.2d at 530 (reasoning that the defendants waived their assignment of error regarding
selection of their jury panel when they failed to follow the procedure in N.C.G.S. § 15A-1211(c)
(2003)); State v. Wiley, 355 N.C. 592, 606-07, 565 S.E.2d 22, 34-35 (2002) (concluding that the
defendant’s statutory challenge to the jury selection procedure was preserved in N.C.G.S. §
15A-1211(c) (2001), but ultimately determining that the defendant’s failure to follow the
statutory procedure waived his challenge), cert. denied, 537 U.S. 1117, 123 S. Ct. 882, 154 L.
Ed. 2d 795 (2003); State v. Meyer, 353 N.C. 92, 112-13, 540 S.E.2d 1, 13 (2000) (concluding
that the defendant did not preserve the issue for appellate review when he failed to follow
the procedure contained in N.C.G.S. § 15A-1211(c) (1999)), cert. denied, 534 U.S. 839, 122 S.
Ct. 93, 151 L. Ed. 2d 54 (2001); State v. Golphin, 352 N.C. 364, 411-12, 533 S.E.2d 168, 202
(2000) (concluding that the defendants’ challenge to the jury empaneling procedure on the
grounds that it was not random as required by N.C.G.S. § 15A-1214(a) (1999) was preserved
even though defendants did not follow the procedure contained in N.C.G.S. § 15A-1211(c),
but ultimately concluding that their failure to comply with that subsection waived the
challenge), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d. 305 (2001).
-11-
IN RE E.D.
Opinion of the Court
mandate on the trial court.” Specifically, respondent relies on our decisions in Hucks,
State v. Lawrence, and State v. Cummings, in contending that a statute also directs
a mandate to a trial court when the enactment implicitly requires the trial court “to
supervise the conduct of other state actors.”
Accordingly, the State argues that the Court of Appeals erred in concluding
that the issue of the violation of N.C.G.S. § 122C-266(a) was automatically preserved
because that statute does not expressly direct its mandate at the trial court, and
because the mandate involves “a psychiatric examination of a civil-commitment
respondent” which the trial court cannot perform. By contrast, respondent argues
that the Court of Appeals was correct to conclude that the issue was automatically
preserved because the district court, presumably through its role in conducting
hearings, is implicitly called upon to supervise state health care facilities when people
are involuntarily committed to those facilities.
We conclude that the State’s reading of our prior decisions is more consistent
with our present view of these cases. Specifically, in Davis we concluded that there
was a statutory mandate that automatically preserved an issue for appellate review
when the statute at issue prohibited the trial court from entering additional
sentences against defendant because other judgments entered against him
“impose[d] greater punishment for the same conduct.” 364 N.C. at 305-06 698 S.E.2d
at 70 (citing N.C.G.S. § 20-141.4(b) (2009)). In Hucks we concluded that appellate
review was automatically preserved for the alleged violation of a statute that “state[d]
-12-
IN RE E.D.
Opinion of the Court
simply but unequivocally that an indigent facing a possible death penalty may not be
tried unless an assistant counsel has been appointed in a timely manner.” 323 N.C.
at 579, 374 S.E.2d at 244 (citing N.C.G.S. § 7A-450(b1)). We reasoned that “[t]he
statute requires the trial court to appoint assistant counsel as a matter of course
when an indigent is to be prosecuted in a capital case. It neither expressly nor
impliedly places any responsibility on the defendant to ask for assistant counsel.” Id.
at 579, 374 N.C. at 244. In Ashe we concluded appellate review was automatically
preserved for the violation of a statute that “require[d] the trial court to summon all
jurors into the courtroom before hearing and addressing a jury request to review
testimony and to exercise its discretion in denying or granting the request.” 314 N.C.
at 40, 331 S.E.2d at 659 (citing N.C.G.S. § 15A-1233(a)). Finally, in Bryant we
concluded that appellate review was automatically preserved for the violation of a
statute which stated that “[n]o judge, in giving a charge to the petit jury, either in a
civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently
proven.” 189 N.C. at 114, 126 S.E. at 108 (quoting 1 N.C. Cons. Stat. § 564 (1919)).
In each of these cases we concluded that there was a statutory mandate that
automatically preserved an issue for appellate review when the mandate was directed
to the trial court either: (1) by requiring a specific act by the trial judge, Bryant, 189
N.C. at 114, 126 S.E. at 108; or (2) by requiring specific courtroom proceedings that
the trial judge has authority to direct, see Davis, 364 N.C. at 301-06, 698 S.E.2d at
67-70; Hucks, 323 N.C. at 579, 374 S.E.2d at 244; Ashe, 314 N.C. at 40, 331 S.E.2d at
-13-
IN RE E.D.
Opinion of the Court
659.
We are not persuaded by respondent’s argument that our case law extends the
statutory mandate exception in Rule 10(a) of the North Carolina Rules of Appellate
Procedure beyond the two instances described above. Specifically, respondent’s
reliance on our decision in Hucks is misplaced because in that case the statute
required the trial court to act within its authority to direct courtroom proceedings to
appoint an assistant counsel for an indigent defendant in a capital murder trial. 323
N.C. at 579, 374 S.E.2d at 244.
Further, we do not view State v. Lawrence as compelling authority here
because in that case the statute required the trial court to act within its authority to
direct courtroom proceedings to ensure that the State passed a full panel of twelve
jurors to the defendant during jury selection. 352 N.C. 1, 12-13 530 S.E.2d 807, 814-
15 (2000) (citing N.C.G.S. § 15A-1214(d) (1999), which stated that “[w]hen the
prosecutor is satisfied with the 12 in the box, they must then be tendered to the
defendant”), cert. denied, 531 U.S. 1083, 121 S. Ct. 789, 148 L. Ed. 2d 684 (2001).
Unlike the cases involving the requirement that jurors be selected from the
panel at random under N.C.G.S. § 15A-1214(a), our cases, such as Lawrence, which
concern the requirement that a prosecutor tender a full panel of jurors to the
defendant under N.C.G.S. § 15A-1214(d) and (f), have held that a violation of that
requirement is automatically preserved for appellate review. See State v. Garcia, 358
N.C. 382, 406, 597 S.E.2d 724, 742 (2004) (concluding that appellate review was
-14-
IN RE E.D.
Opinion of the Court
automatically preserved when the prosecutor passed less than a full panel of twelve
replacement jurors to the defendant during jury selection and thereby violated
N.C.G.S. § 15A-1214(f) (2003)), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L.
Ed. 2d 122 (2005); see also State v. Jaynes, 353 N.C. 534, 544-45, 549 S.E.2d 179, 189
(2001) (concluding that appellate review was automatically preserved when, in
violation of N.C.G.S. § 15A-1214(d) (1999), the defendant was allowed to examine
prospective jurors before the State was able to challenge those jurors and to pass a
full panel of jurors to the defendant), cert. denied, 535 U.S. 934, 122 S. Ct. 1310, 152
L. Ed. 2d 220 (2002); Lawrence, 352 N.C. at 13, 530 S.E.2d at 815. We have also held
that appellate review is automatically preserved for a violation of N.C.G.S. § 15A-
1214(c) which involves the defendant’s and prosecutor’s right to voir dire jurors. State
v. Jones, 336 N.C. 490, 496-97, 445 S.E.2d 23, 26 (1994).
Unlike the statutory mandate in N.C.G.S. § 15A-1214(a), the mandates in
N.C.G.S. §§ 15A-1214(c) and 15A-1214(d) and (f) directly involve the trial court’s
responsibility “to exercise its discretion,” id. at 497, 445 S.E.2d at 27, to see that
“[f]airness is promoted by ensuring that the defendant has a full opportunity to face
jurors, question them, and challenge unsatisfactory candidates.” Garcia, 358 N.C. at
407, 597 S.E.2d at 743. By contrast, the responsibility is squarely on either “[t]he
State or the defendant,” N.C.G.S. 15A-1211(c) (2017), to challenge the empaneling
procedure that occurs before jurors are “assigned to the jury box” and “retain [their]
seat[s],” id. § 15A-1214(a) (2017). As such, appellate review of N.C.G.S. § 15A-
-15-
IN RE E.D.
Opinion of the Court
1214(a) is waived when the appellant fails to follow the procedure for challenging a
jury panel set out in N.C.G.S. § 15A-1211(c). Cf. Hucks, 323 N.C. at 579, 374 S.E.2d
at 244 (concluding that appellate review of the issue was automatically preserved, in
part, because the statute “neither expressly nor impliedly place[d] any responsibility
on the defendant to ask for assistant counsel”); Ashe, 314 N.C. at 35, 331 S.E.2d at
657 (“While the statute does not expressly say that the trial judge must have the
jurors conducted to the courtroom, we have no doubt that the legislature intended to
place this responsibility on the judge presiding at the trial.”).
Finally, to the extent respondent relies on State v. Cummings, we conclude that
Cummings is inapposite because the Court there did not even address whether there
was a statutory mandate that automatically preserved a statutory violation as an
issue for appellate review. 352 N.C. 600, 611-12, 536 S.E.2d 36, 46 (2000) (discussing
how a “statutory mandate” found in N.C.G.S. § 148-76 (1999) allowed the prosecution
to subpoena defendant’s prison records but not addressing whether any alleged
violation of the “statutory mandate” was automatically preserved as an issue for
appellate review), cert. denied, 532 U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641(2001).
We hold that a statutory mandate that automatically preserves an issue for
appellate review is one that, either: (1) requires a specific act by a trial judge, see
State v. Starr, 365 N.C. 314, 316-19, 718 S.E.2d 362, 364-66 (2011) (concluding that
appellate review was automatically preserved when the trial judge refused to exercise
-16-
IN RE E.D.
Opinion of the Court
his discretion to either allow or deny the jury’s request to review evidence under
N.C.G.S. § 15A-1223(a) (2009)); Bryant, 189 N.C. at 114, 126 S.E. at 108; or (2) leaves
“no doubt that the legislature intended to place th[e] responsibility on the judge
presiding at the trial,” Ashe, 314 N.C. at 35, 331 S.E.2d at 657, or at specific courtroom
proceedings that the trial judge has authority to direct,10 id. at 40, 331 S.E.2d at 659;
see also Davis, 364 N.C. at 301-06, 698 S.E.2d at 67-70; Garcia, 358 N.C. at 406, 597
S.E.2d at 742 (concluding that appellate review was automatically preserved when
the prosecutor passed less than a full panel of twelve replacement jurors to the
defendant during jury selection and thereby violated N.C.G.S. § 15A-1214(f) (2003));
Jaynes, 353 N.C. at 544-45, 549 S.E.2d at 189 (concluding that appellate review was
automatically preserved when, in violation of N.C.G.S. § 15A–1214(d) (1999), the
defendant was allowed to examine prospective jurors before the State was able to
challenge those jurors and to pass a full panel of jurors to the defendant); Jones, 336
N.C. at 496-97, 445 S.E.2d at 26 (concluding that appellate review was automatically
preserved when the defendant claimed that the trial court’s ruling violated his right
10 Consistent with our prior case law, this rule does not treat the North Carolina Rules
of Evidence as statutes that contain mandates that automatically preserve issues for
appellate review. See State v. Young, 368 N.C. 188, 209, 775 S.E.2d 291, 305 (2015) (“The
same logic upon which the Court of Appeals relied in reaching a contrary result would
necessarily result in treating most of the provisions of the North Carolina Rules of Evidence
as ‘mandatory,’ a result that would be contrary to the manner in which this Court has treated
evidentiary arguments that were not supported by an objection lodged at trial for most of its
history. As a result, since defendant did not object to the admission of evidence concerning
the wrongful death and declaratory judgment complaint and default judgments on the basis
of N.C.G.S. § 1-149, he is not entitled to challenge the admission of this evidence as violative
of that statutory provision on appeal.”).
-17-
IN RE E.D.
Opinion of the Court
to voir dire jurors under N.C.G.S. § 15A-1214(c) (1988)); State v. Buchanan, 330 N.C.
202, 224-27, 410 S.E.2d 832, 845-47 (1991) (concluding that appellate review was
automatically preserved when the trial judge violated N.C.G.S. § 15A-2000(b) (1988)
by failing to individually poll the jurors on whether they agreed with the defendant’s
sentence in a capital case in violation of N.C.G.S. § 15A-2000(b) (1988)); Hucks, 323
N.C. at 579, 374 S.E.2d at 244.
Here N.C.G.S. § 122C-266(a) states that “within 24 hours of arrival at a 24-
hour facility described in G.S. 122C-252, the respondent shall be examined by a
physician.” As such, this statute does not require a specific act by a trial judge.
Furthermore, the statute does not place any responsibility on a presiding judge.
Instead, the provision requires that a physician perform an examination at a
designated “state facilit[y].” Id. § 122C-252 (2017). Therefore, N.C.G.S. § 122C-
266(a) does not fit within either category of statutory mandates that would
automatically preserve an issue for appellate review.
As a result, we conclude that this alleged violation of N.C.G.S. § 122C-266(a)
is not automatically preserved and that respondent failed to preserve the issue when
she did not raise it during the district court hearing on her involuntary commitment.
See N.C. R. App. P. 10(a)(1). Accordingly, the Court of Appeals’ decision in In re
Spencer, 236 N.C. App. 80, 762 S.E.2d 637 (2014), is overruled to the extent it conflicts
with this conclusion.
III. Conclusion
-18-
IN RE E.D.
Opinion of the Court
Because respondent’s issue is not preserved for appellate review, we reverse
the decision of the Court of Appeals on that basis. Moreover, because of our decision,
we need not—and do not—reach the issue of whether the Court of Appeals erred in
concluding that respondent was automatically entitled to relief without having to
demonstrate that she was prejudiced by the violation of N.C.G.S. § 122C-266(a).
REVERSED.
Justice DAVIS did not participate in the consideration or decision of this case.
-19-