Opinion
No. COA12–737.
2013-02-19
STATE of North Carolina v. Katriena M. SHEPPARD.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Staples Hughes, Appellate Defender, by Kristen L. Todd, Assistant Appellate Defender, for defendant-appellee.
Appeal by the State from judgment entered 1 March 2012 by Judge Joseph E. Turner in Forsyth County Superior Court. Heard in the Court of Appeals 12 December 2012. Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Staples Hughes, Appellate Defender, by Kristen L. Todd, Assistant Appellate Defender, for defendant-appellee.
STEELMAN, Judge.
Where defendant waited fourteen months for trial, and responsibility for the delay from 29 March 2011 rested solely with the State, defendant's constitutional right to a speedy trial was violated. We affirm the trial court's dismissal of the charge against defendant.
I. Factual and Procedural History
On 8 September 2010, Katriena Sheppard (defendant) was arrested for driving while impaired, and was subsequently taken to a hospital for a blood test. She was charged with driving while impaired, failure to decrease speed to avoid colliding with another vehicle, unsafe movement, and driving upon a sidewalk. Defendant's first appearance was scheduled for 23 September 2010. Defendant was granted a continuance to confer with her attorney. The State was also granted multiple continuances.
On 29 September 2010, defendant filed a demand for a speedy trial pursuant to the Sixth Amendment to the United States Constitution and N.C. Gen.Stat. § 15–10. The State did not complete its analysis of defendant's blood sample until 11 February 2011. On 14 March 2011, defendant filed a second demand for a speedy trial. On 24 March 2011, the State's analyst signed an affidavit regarding the analysis, and mailed it to the Office of the Forsyth County District Attorney and the Forsyth County Clerk of Court. On 29 March 2011, this affidavit was filed with the Clerk of Court. On 18 April 2011, defendant filed a third demand for a speedy trial. On 13 June 2011, the State filed notice of intent to use the analyst's affidavit pursuant to N.C. Gen.Stat. § 20–139.1(c1). The State also requested and was granted a continuance by the District Court. The trial was set for 9 August 2011, with the notation that this would be the last continuance granted to the State.
On 17 June 2011, defendant filed a request for a trial date earlier than 9 August 2011. She also filed her fourth demand for a speedy trial, a motion to dismiss for violation of her right to a speedy trial, and an objection to the admission of the analyst's affidavit, invoking her right to confront and cross-examine the witnesses against her.
On 9 August 2011, the State moved for another continuance, on the grounds that the analyst was on secured leave. The trial court denied this motion. The State then voluntarily dismissed the charges against defendant. The charges were immediately re-filed and defendant was arrested on 9 August 2011, and released on bond that same day. A trial date was set for 9 November 2011. On 10 August 2011, defendant filed her fifth demand for a speedy trial, a request for a trial date earlier than 9 November 2011, and a motion to dismiss. On 2 September 2011, defendant filed her sixth demand for a speedy trial and another request for an earlier trial date. On 3 October 2011, defendant filed her seventh demand for a speedy trial and a request for an earlier trial date. On 31 October 2011, defendant filed another motion to dismiss. On 3 November 2011, defendant filed her eighth demand for a speedy trial in District Court.
On 9 November 2011, more than fourteen months after her initial arrest, defendant was tried in the District Court of Forsyth County, and found guilty of impaired driving. On 10 November 2011, defendant filed notice of appeal to Superior Court, and a demand for a speedy trial in Superior Court. On 5 December 2011, defendant filed her second demand for a speedy trial in Superior Court. On 5 January 2012, defendant filed her third demand for a speedy trial in Superior Court, and on 9 January 2012, she filed a motion to dismiss. Defendant also filed objection to the State's use of the analyst's affidavit in the absence of his or her testimony in court. On 18 January 2012, defendant filed her fourth demand for a speedy trial in Superior Court, and a request for an earlier trial date.
On 29 February 2012, the trial court heard defendant's motion to dismiss the charge based upon the failure of the State to afford defendant a speedy trial. On 1 March 2012, the trial court entered a written order containing detailed findings of fact and conclusions of law and dismissing the impaired driving charge.
The State appeals.
II. Argument
The State's sole argument on appeal is that the trial court erred in dismissing the impaired driving charge based upon the violation of defendant's right to a speedy trial. We disagree.
A. Standard of Review
In reviewing a trial judge's findings of fact, we are ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’
State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). “ ‘Verdicts and judgments are not to be lightly set aside, nor for any improper ruling which did not materially and adversely affect the result of the trial. An error cannot be regarded as prejudicial unless there is a reasonable probability that the result would have been different.’ “ State v. Turner, 268 N.C. 225, 232, 150 S.E.2d 406, 411 (1966) (citations omitted).
“Conclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations omitted). Whether a defendant's constitutional right to a speedy trial was violated is a legal determination subject to de novo review. State v. Chaplin, 122 N.C.App. 659, 664, 471 S.E.2d 653, 656 (1996).
B. Findings of Fact
The State contends that the trial court's findings of fact were not supported by competent evidence in the record. Specifically, the State asserts that findings of fact 11, 49, 73, 75, and 77 were not supported by evidence at trial. The State also contests the trial court's finding that defendant suffered psychological harm as a result of the delay in the trial of this matter.
In its finding of fact 11, the trial court found that “[b]ecause a blood test was involved, the Assistant District Attorney continued the case for more than two months, to December 8, 2010, to allow time for the chemical analysis to be performed by the State Bureau of Investigation.” The State contends that this is erroneous because the initial continuance was granted to defendant for the purpose of giving her time to confer with her attorney, and not to the State.
While the State is correct that the initial continuance was granted for the defendant, it is also true that, at the time the continuance was granted, the chemical analysis of the defendant's blood had not yet been completed. In fact, it was not completed until 11 February 2011, two months after 8 December 2010. In its conclusions of law concerning the delay from 8 September 2010 to 29 March 2011, the trial court weighed that delay “more neutrally [,]” acknowledging that “the State should be given a reasonable amount of time to prepare its case.” Even if the trial court erred in this finding, the State cannot show prejudice.
In finding of fact 49, the trial court noted that the voluntary dismissal taken by the prosecutor in District Court appeared to contravene the provisions of N.C. Gen.Stat. § 20–139.1(e2). We hold that this is not a finding of fact, but a conclusion of law. “[C]lassification of an item [as a finding of fact or conclusion of law] within the order is not determinative, and, when necessary, the appellate court can reclassify an item before applying the appropriate standard of review.” North Carolina State Bar v. Key, 189 N.C.App. 80, 88, 658 S.E.2d 493, 499 (2008). Since this is not a finding of fact but a notation of the apparent conflict between N.C. Gen.Stat. § 20–139.1(e2) and N.C. Gen.Stat. § 15A–931, we need not discuss this further.
In finding of fact 73, the trial court found that defendant had no other recourse to prevent delay, and that none of the delay from the date of the arrest on 9 August 2011 until the date of trial was chargeable to defendant. The State contends that this is erroneous, because defendant did not object to the State's motions for continuance, and because defendant objected to the admission of the affidavit of the analyst in the absence of the analyst's testimony. The implication of the State's argument is that, by objecting to the admission of the analyst's affidavit, defendant was responsible for the delay.
In Barker v. Wingo, the United States Supreme Court refused to find that inaction on the part of a defendant could constitute waiver of the right to a speedy trial. 407 U.S. 514, 525–28, 33 L.Ed.2d 101, 114–15 (1972). Similarly, defendant's failure to object to the State's motions for continuance cannot be held against defendant. The United States Supreme Court has held that a defendant cannot be required to surrender one constitutional right to assert another. See Simmons v. United States, 390 U.S. 377, 394, 19 L.Ed.2d 1247, 1259 (1968). The State contends that because defendant asserted her constitutional right to confront the analyst, she waived her constitutional right to a speedy trial. Under the rationale of Simmons, we must reject this argument.
In finding of fact 75, the trial court found that all of the delay after 29 March 2011 was attributable to the State's failure to monitor its case against defendant. The State contends that this delay was not the result of its own conduct, but of defendant's demand to confront the analyst at trial. As discussed above, a defendant cannot be required to surrender one constitutional right in order to assert another. We reject this argument.
In finding of fact 77, the trial court found that the State could have proceeded with the trial of defendant on 13 June 2011 and on 9 August 2011, but instead chose to voluntarily dismiss and re-file the charges. The State asserts that its case could not have succeeded without the analyst's testimony or affidavit, and that the trial court's finding of fact was in error.
The State was attempting to proceed under the provisions of N.C. Gen.Stat. § 138.1(a)(2), which permits the results of a chemical analysis as evidence of blood alcohol levels for purposes of proving the charge of impaired driving. However, as noted by the trial court, the State could have proceeded under N.C. Gen.Stat. § 138.1(a)(1), which merely requires evidence that a driver was “under the influence of an impairing substance.” We have previously held that eyewitness testimony is evidence of impaired driving. See State v. Norton, ––– N.C.App. ––––, ––––, 712 S.E .2d 387, 390–91 (2012). In the instant case, the State had the testimony of the arresting officer, the defendant's own statements, and her conduct leading up to her arrest, which it could have used at trial to establish defendant's impairment. There was evidence in the record to support the trial court's finding of fact that the State could have proceeded to trial.
Finally, the State challenges generally the trial court's finding that defendant suffered psychological harm resulting from the delay of the trial. The State contends that there are contradictions in the trial court's order. In its conclusions of law, the trial court concluded that “[t]he defendant suffered increased anxiety ... as a direct result of the State's undue delay of her trial.” However, in its findings of fact, the trial court found that defendant suffered “from mental health problems ... since before being charged in this case.”
We hold that these two determinations are not mutually exclusive. It is possible for a party to have a pre-existing condition which is aggravated as a direct result of another party's actions. The trial court's finding and its conclusion are not contradictory.
These arguments are without merit.
C. Conclusions of Law
The State next contends that the trial court erred in concluding that defendant's right to a speedy trial was violated.
In Barker v. Wingo, the United States Supreme Court created a four-factor balancing test for courts to apply when a defendant alleges undue delay in bringing a case to trial. These factors are: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of her right to a speedy trial; and (4) whether defendant suffered prejudice as a result of the delay. 407 U.S. at 530–32, 33 L.Ed.2d at 117–18.
Our Supreme Court has held that the same analysis applies when a defendant asserts a violation of North Carolina's speedy trial law. State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000). There is no exact calculus in balancing these factors; rather, they are to be considered together on a caseby-case basis, wherein no one factor is outcome-determinative. State v. Washington, 192 N.C.App. 277, 282–83, 665 S.E.2d 799, 803 (2008). If a defendant establishes that the factors weigh in her favor, the charges against her should be dismissed. Id. at 297–98, 665 S.E.2d at 812.
In the instant case, the trial court made detailed findings of fact on each of the Barker factors in concluding that defendant's right to a speedy trial was violated. First, the trial court found that the length of the delay in bringing the case to trial, fourteen months, was “presumptively prejudicial[.]”
We have previously held that “[a] defendant's right to a speedy trial attaches upon being formally accused of criminal activity, by arrest or indictment. The period relevant to speedy trial analysis ends upon trial. If the length of delay approaches one year, we examine the remaining three factors in Barker.” State v. Friend, ––– N.C.App. ––––, ––––, 724 S.E.2d 85, 90 (2012) (citations omitted). The trial court found that the delay in this case was more than fourteen months. This finding is not challenged by the State on appeal, and is thus binding upon this court. State v. Collins, –––N.C.App. ––––, ––––, 724 S.E.2d 82, 84 (2012) (citing State v. Brown, 199 N.C.App. 253, 256–57, 681 S.E.2d 460, 463 (2009)). The fourteen-month delay requires a Barker inquiry.
Second, the trial court found that the delay was attributable to the State. We have previously held that the guarantee of a speedy trial is a “proscription [ ] against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.' “ Washington, 192 N.C.App. at 283, 665 S .E.2d at 804 (quoting State v. Hammonds, 141 N.C.App. 152, 160, 541 S.E.2d 166, 173 (2000), cert. denied, 536 U.S. 907, 153 L.Ed .2d 184 (2002)).
The trial court held that the period of delay from 8 September 2010 to 29 March 2011 was attributable to the State, but was weighed “more neutrally” because the State “should be given a reasonable amount of time to prepare its case.” However, with respect to the delay from 29 March 2011 to 9 August 2011, the trial court held that this delay was
attributable solely to the State and was more than simply the delay occasioned by crowded dockets and prosecutorial caseloads. During that period, the trial was significantly delayed by prosecutorial neglect, the lack of a tracking system within the prosecutor's office, and the State's disregard of the defendant's repeated requests to be tried.
The trial court held that this weighed “more heavily in the balance against the State.”
Third, the trial court noted the repeated demands by defendant for a speedy trial. These demands began within one month of defendant's initial arrest, and the trial court's findings of fact show that, prior to trial in District Court, defendant had made eight demands. Similarly, defendant made four demands prior to trial in Superior Court.
Fourth, the trial court concluded that defendant suffered prejudice, in the form of anxiety, being arrested twice, and being forced to borrow money to fund her defense.
Balancing these four factors, the trial court concluded that the delay violated defendant's constitutional right to a speedy trial.
The State contends that this conclusion of law was not supported by the findings of fact. The State argues that the trial court's relevant findings are not supported by evidence in the record. As noted above, the trial court's findings were either supported by evidence, or not prejudicial to the State. These findings in turn support the trial court's conclusions of law.
As previously noted, our review of the trial court's conclusions of law is de novo. Applying this standard of review, we agree with the reasoning of the trial court, and hold that the trial court did not err in concluding that the delay violated defendant's constitutional right to a speedy trial.
This argument is without merit.
III. Conclusion
The trial court did not err in dismissing the charge against defendant based upon the State's violation of defendant's right to a speedy trial.
AFFIRMED. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).