Opinion
No. COA12–652.
2013-01-15
STATE of North Carolina v. George Thomas TAYLOR, Defendant.
Attorney General Roy A. Cooper, III by Assistant Attorney General Thomas D. Henry, for the State. Paul F. Herzog, for defendant-appellant.
On writ of certiorari to review judgments entered on or about 31 July 2009 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 2 January 2013. Attorney General Roy A. Cooper, III by Assistant Attorney General Thomas D. Henry, for the State. Paul F. Herzog, for defendant-appellant.
STROUD, Judge.
Defendant appeals from judgments entered upon his convictions for assault with a deadly weapon inflicting serious injury. We find no error.
According to the evidence at trial, defendant assaulted two men at a Food Lion in Forest City, North Carolina on 24 March 2007. Defendant fled the scene and was arrested on 14 November 2007.
On 25 April 2008, defendant filed a motion for a speedy trial. On 28 April 2008, defendant was indicted for two counts of assault with a deadly weapon with intent to kill inflicting serious injury. On 6 July 2009, in two superseding indictments, defendant was also charged with two counts of attempted first degree murder.
Defendant was tried before the 28 July 2009 Criminal Session of Rutherford County Superior Court. At the outset of trial, defendant renewed his motion for a speedy trial and requested that the trial court dismiss the charges against him. The trial court denied defendant's motion and proceeded to trial. As to the two assault charges, the jury found defendant guilty of two counts of the lesser included offense, assault with a deadly weapon inflicting serious injury. The jury found defendant not guilty of the two attempted murder charges. The trial court sentenced defendant to two consecutive terms of 46 to 65 months imprisonment. Defendant appeals.
Defendant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We disagree.
“The Sixth Amendment to the United States Constitution and the fundamental law of this State provide every individual formally accused of a crime the right to a speedy trial.” State v. Hammonds, 141 N.C.App. 152, 157, 541 S.E.2d 166, 171 (2000), appeal dismissed and disc. review denied, 353 N.C. 529, 549 S.E.2d 860 (2001); seeN.C. Const. art. I, § 18. We review de novo defendant's claim that his right to a speedy trial was violated. State v. Chaplin, 122 N.C.App. 659, 664, 471 S.E.2d 653, 656 (1996).
“In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a balancing test involving four interrelated factors for courts to conduct on a case by case basis in determining whether a defendant's constitutional right to a speedy trial has been violated.” Hammonds, 141 N.C.App. at 158, 541 S.E.2d at 172. These factors are as follows: “(1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay.” Id. (citation omitted).
The Supreme Court has further stated:
“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.”
Id. ( quoting Barker, 407 U.S. at 533, 33 L.Ed.2d at 118–19).
As to the first factor, our Supreme Court has stated, “the length of the delay is not per se determinative of whether defendant has been deprived of his right to a speedy trial.” State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003). “The length of delay is a triggering mechanism that requires further inquiry into the other Barker factors only after the delay is deemed presumptively prejudicial.” State v. Berryman, 360 N.C. 209, 219, 624 S.E.2d 350, 357 (2006) (citation omitted). In the instant case, nearly twenty-one months passed between defendant's arrest and his trial. While this delay is long enough to trigger examination of the other Barker factors, it is not, standing alone, indicative of a constitutional violation. See State v. Jones, 310 N.C. 716, 721, 314 S.E.2d 529, 533 (1984). Therefore, we must examine the remaining factors.
Regarding the second factor—the reason for the delay—our Supreme Court has explained:
[D]efendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution. Only after the defendant has carried his burden of proof by offering prima facie evidence showing that the delay was caused by the neglect or willfulness of the prosecution must the State offer evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie evidence....
The constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.... Neither a defendant nor the State can be protected from prejudice which is an incident of ordinary or reasonably necessary delay. The proscription is against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.
Spivey, 357 N.C. at 119, 579 S.E.2d at 255 (emphasis in original) (internal quotations marks and citations omitted).
Defendant claims that the only continuance which was attributable to him occurred on 1 June 2009, when defense counsel was hospitalized. Therefore, defendant argues, the remainder of the delay was caused by the prosecution. We disagree. Defendant was arrested in November 2007, and six months later, dismissed his attorney. His new attorney presumably needed time to familiarize himself with the case. Therefore, at least some of the delay early in the case was attributable to defendant.
Moreover, defendant has failed to prove that the remaining delay was due to the neglect or willfulness of the prosecution. Defendant suggests that the prosecutor neglected the case as evidenced by spare activity and long gaps in time. However, four of the trial court's scheduling orders contain defendant's and/or his attorney's signatures. Therefore, it appears that defendant consented to the rescheduling of trial dates on at least four occasions. At a minimum, any delay consented to by defendant is “due largely to the operation of neutral factors and not to any malevolent intent on the part of the prosecution.” State v. Webster, 337 N.C. 674, 680, 447 S.E.2d 349, 352 (1994) (citation omitted). Based on the foregoing, this factor does not weigh in favor of defendant.
The third factor—defendant's assertion of his right to a speedy trial—also does not weigh in defendant's favor. Defendant filed his speedy trial motion and noticed it for hearing on 28 April 2008, approximately five months into his incarceration. While his filing may have been timely, defendant has failed to offer any explanation as to why the motion was not heard on 28 April 2008 or at any time during the subsequent fifteen months before trial. Therefore, we find this factor to neither weigh in favor of or against defendant.
The last factor in our analysis is whether the defendant has suffered prejudice as a result of the delay. Our Supreme Court has stated:
The right to a speedy trial is designed: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.
Webster, 337 N.C. at 680–81, 447 S.E.2d at 352 (emphasis in original).
Here, defendant has made little showing of any prejudice. Defendant claims that the prosecutor neglected the case, offered a plea agreement, and then retaliated against defendant by seeking superseding indictments after he rejected the plea agreement. However, defendant has offered no support for these assertions, and as such, they amount to mere speculation that the prosecutor had improper motives for seeking superseding indictments. Moreover, these bald assertions do not explain by what means defendant's ability to prepare a defense was hampered by the delay. Indeed, defendant was ultimately acquitted of the new charges sought in the superseding indictments, and he was convicted of lesser-included assault charges. Therefore, defendant has failed to demonstrate any significant prejudice resulting from the delay.
In conclusion, after balancing the four factors articulated in Barker, we conclude that defendant's constitutional right to a speedy trial has not been violated. Accordingly, we hold that the trial court did not err in denying defendant's motion to dismiss for lack of a speedy trial.
No error. Chief Judge MARTIN and Judge HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).