State v. Avery

• Decision Date: 07 April 1981
• Docket Number: No. 89,89
• Citation: 276 S.E.2d 699,302 N.C. 517
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Theodore AVERY.

Page 699

276 S.E.2d 699

302 N.C. 517

STATE of North Carolina v. Theodore AVERY.

No. 89.

Supreme Court of North Carolina.

April 7, 1981.

Rufus L. Edmisten, Atty. Gen. by James Peeler Smith, Asst. Atty. Gen., Raleigh, and Lex Allen Watson, II, 1980 Summer Intern, Campbell Law School, for the State.

Joseph J. Flythe, Ahoskie, for defendant-appellant.

EXUM, Justice.

Defendant Avery assigns as his error the denial of his constitutional and statutory rights to a speedy trial, joinder of the offenses for trial, certain evidentiary rulings, denial of his motion to dismiss at the close of all the evidence, denial of his motion for mistrial, and an erroneous charge to the jury by the trial judge. Upon careful examination of defendant's contentions we conclude that he received a fair trial free from prejudicial error.

The state's evidence tends to show the following: At approximately 5:00 p. m. on 1 August 1979 defendant and one Stephen Hall, both prisoners in the Bertie County jail, assaulted the jailer as he placed a bucket in their cell. While Hall blocked the cell door to prevent the jailer's escape, defendant repeatedly struck the jailer with his fists and with a black boot. Defendant, threatening to kill the jailer, demanded the keys to his pickup truck; the jailer gave the keys to Hall. Defendant locked the jailer in a cell and, after prying open a cabinet drawer with a hammer, stole a .38 caliber pistol belonging to Bertie County and a money box containing change for the soft-drink machine. Defendant and Hall then fled the jail in the jailer's pickup truck and traveled towards Perrytown, North Carolina.

During the trip defendant said that "if anybody tried to stop him, he was going to kill them." Defendant and Hall abandoned the truck in an open field and walked to a nearby house where friends of Hall lived. Hall secured a ride to Perrytown; he turned himself in to law enforcement authorities the next day. Defendant was able to get a ride to the home of his sister, Shirley Avery, in Lewiston, where he spent the night.

Shortly after dark on 2 August 1979 Sheriff Edward Daniels, after being informed that defendant might be found in one of three houses, divided law enforcement officers into three groups with each being responsible for the search of one of the houses. In Sheriff Daniels' group were Officers Tom Ashley, Calvin Cherry and Donald Cowan. This group proceeded to the house of Shirley Avery. Upon arrival Sheriff Daniels, accompanied by Officer Ashley, went to the porch, identified himself, and knocked on the door; Officers Cherry and Cowan remained outside the house. Receiving no response, Sheriff Daniels again identified himself and knocked on the door. There was no response, although he could hear music coming from within the house. Officer Ashley then turned the door knob and pushed the door open. The two men entered the house and, while calling out, "If anyone is in here, come out," walked through the living room and a bedroom. As they prepared to enter a bathroom located at the rear of the bedroom Sheriff Daniels and Officer Ashley heard a woman's voice asking who was in her house. They returned to the front porch where they were confronted by Shirley Avery. After Sheriff Daniels explained the purpose of their search Shirley Avery denied any knowledge of her brother's whereabouts.

While Sheriff Daniels was talking to Shirley Avery, Officer Cherry entered the house. He walked through the living room and bedroom and then, with his flashlight focused on the floor, stepped into the bathroom. A shot was fired, striking Officer Cherry in the chest and killing him. Officer Ashley, unaware of the presence of a window in the bathroom, rushed to the bedroom, trained his weapon upon the bathroom door, and "heard a noise as if somebody was going to come out." He was then informed by Sheriff Daniels that someone had been seen either running around the house or going out the window. Later that night a neighbor told Sheriff Daniels that she had seen defendant, wearing only black pants, climb out of the bathroom window of Shirley Avery's house.

At approximately 6:00 a. m. on 3 August defendant entered the kitchen of a trailer where two young girls were. He asked them not to tell anyone they had seen him. The girls left the trailer and told an SBI agent that defendant was inside. Several officers searched the trailer; they pulled defendant, wearing only black pants, from beneath a bed. A .38 caliber pistol was found under the bed. A ballistics expert testified that in his opinion the bullet which killed Officer Cherry was fired from this pistol. The pistol was further identified as being like the pistol taken from the Bertie County jail.

Defendant testified that he did not shoot Officer Cherry. He said he was some twenty-five feet away from his sister's house when he heard a gunshot. He went to the bathroom window, peeped in, and saw Sheriff Daniels standing over Officer Cherry's body. It appeared to him that "Sheriff Daniels was trying to put the pistol back into Calvin Cherry's holster." Defendant remained at the bathroom window approximately five seconds after which he picked up a pistol he found lying on the ground in front of the window. He ran and was later apprehended.

I

Defendant Avery first assigns as error the denial of his constitutional right to a speedy trial. Both the fundamental law of this state and the Sixth Amendment to the United States Constitution guarantee those persons formally accused of crime the right to a speedy trial. State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). Interrelated factors to be considered in determining whether a defendant's constitutional right to a speedy trial has been violated are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978); State v. Wright, supra; State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976).

Here the length of delay between defendant's arrest on 3 August 1979 and his trial on 28 January 1980 was approximately six months. This lapse of time is insufficient under the circumstances of these crimes even to be "presumptively prejudicial" so as to trigger inquiry into the other factors. Barker v. Wingo, supra at 530, 92 S.Ct. at 2191. Further, a significant portion of this delay was attributable to defendant's motion for change of venue; there is nothing in the record to indicate that defendant requested a speedy trial; and finally, defendant does not allege nor can we find any prejudice to defendant by the delay. Defendant's brief contains only the bare allegation that defendant was deprived of his constitutional right to a speedy trial; it contains no argument nor citation of authority to support this allegation. This assignment of error is overruled.

II

Defendant Avery also assigns as error the denial of his statutory right to a speedy trial. On 28 January 1980 Judge Donald L. Smith denied defendant's 23 January motion to dismiss for failure to grant a speedy trial under the Speedy Trial Act, G.S. § 15A-701. The statute requires a defendant's trial to begin "(w)ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last." ³ Here the last of the above-named events, defendant's indictment, occurred on 4 September 1979; trial began on 28 January 1980, more than 120 days later. But G.S. § 15A-701(b) provides:

"The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:

(1) Any period of delay resulting from other proceedings concerning the defendant including, but not limited to, delays resulting from ....

d. Hearings on pretrial motions or the granting or denial of such motions ...."

On 5 September 1979 defendant moved for change of venue or, in the alternative, for a special venire. On 29 October, the next Criminal Session of Bertie Superior Court, his motion for special venire was allowed by Judge Small. Defendant was tried on 28 January by a jury selected from a Northampton County venire pursuant to Judge Small's order. Judge Smith, in denying defendant's motion to dismiss, excluded the period of delay from 30 October 1979 to 28 January 1980 from computations under the Speedy Trial Act.

We conclude that Judge Smith properly denied defendant's motion to dismiss on statutory speedy trial grounds. We need not, however, consider the propriety of Judge Smith's exclusion of the entire 30 October to 28 January period. That portion of the period between 5 September and 29 October was properly excludable under our holding in State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981). When this much of the period is excluded, the trial occurred within 120 days of indictment.

In Oliver we recognized that a motion for change of venue, while pending, necessarily delays the setting of a case for trial until it is determined. We concluded, therefore, that such a motion is within the statutory reference to "pretrial motions" found in G.S. § 15A-701(b)(1)(d). We held: "Provided the motion is heard within a reasonable time after it is filed and the state does not delay the hearing for the purpose of thwarting the speedy trial statute, the time between the filing of the motion and its disposition is properly excluded in computing the time within which a trial must begin." Id. at ---, 274 S.E.2d at 192. In Oliver a 29-day period between filing and disposition of defendant's motion for change of venue was found to be reasonable.

Although the 54-day period in the present case would ordinarily approach the borders of reasonableness, we find it under...