State v. Ball

• Decision Date: 20 January 1971
• Docket Number: No. 89,89
• Citation: 178 S.E.2d 377,277 N.C. 714
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Carl James BALL.

Page 377

178 S.E.2d 377

277 N.C. 714

STATE of North Carolina v. Carl James BALL.

No. 89.

Supreme Court of North Carolina.

Jan. 20, 1971.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. R. Bruce White, Jr., and Staff Atty. Richard N. League, Raleigh, for the State.

William S. Geimer, Asst. Public Defender, for defendant appellant.

MOORE, Justice.

Defendant first assigns as error the court's denial of his motion that he be discharged because he had not been given a speedy trial. In support of this motion, defendant's counsel made a statement to the court, and the solicitor for the State made a statement in reply. From these statements the court made the following findings of fact:

'1. That the defendant was arrested on or about the 9th day of January, 1970, and remained in the Cumberland County Jail since that time except for a period of about two days, beginning on March 31, 1970, when he escaped from the Cumberland County Jail.

'2. That preliminary hearing in the District Court was had on January 23, 1970, at which time he was represented by employed counsel and bond for his appearance was then set at $5,000.00. That shortly thereafter the Public Defender's office was assigned as counsel for the defendant and has represented him since. That a true bill of indictment was returned by the grand jury on February 16, 1970. That by letter dated April 7, 1970, from Mr. William S. Geimer, Assistant Public Defender, to the Solicitor demand was made for the trial of defendant as third in priority for those for whom demand was made at that time and that on June 8, 1970, a similar demand was made by Mr. Geimer, in which the defendant was listed as the first of those demanding trial. That the case has been calendared on one or more occasions for trial and that it has not been continued either at the request of the state or of the defendant, but that it has not been reached during any week calendared because of other business of the court.

'3. That since the February 16, 1970, Session there have been _ _ weeks of Superior Court for the trial of Criminal Cases of which in _ _ weeks two sessions of Superior Court for the trial of criminal cases were held; that those weeks of court have been fully utilized for the trial of criminal cases and that a majority of the jury trials for the time in which the defendant was in jail have been cases in which the defendants have been in jail longer than this defendant.

'4. That the solicitor has available to him by law, himself and two assistant solicitors for the prosecution of the docket; that there are available in the Cumberland County Courthouse only two courtrooms suitable for the trial of jury cases and that these have been regularly in use.

'5. That no showing has been made in behalf of the State for any reason for the delay of this case other than the press of other business and no showing has been made by the defendant of any special prejudice to his defense by reason of the delay.'

The fundamental law of this State reserves to each defendant the right to a speedy trial. State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892; State v. Johnson, 275 N.C. 264, 167 S.E.2d 274; State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Patton, 260 N.C. 359, 132 S.E.2d 891; State v. Webb, 155 N.C. 426, 70 S.E. 1064. This was true long before the decision in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), in which the Supreme Court of the United States held that the right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States was made applicable to the states by the Fourteenth Amendment. The circumstances of each particular case determines whether a speedy trial has been afforded. Undue delay cannot be defined in terms of days, months, or even years. The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by the defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed. The burden is on the accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. State v. Hatcher, supra; State v. Johnson, supra; State v. Hollars, supra; Note, Pre-indictment Delay and the Question of When the Right to a Speedy Trial First Attaches, 6 Wake Forest Intra.L.Rev. 139 (1969).

Defendant relies upon Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), contending that under that case he is entitled to his discharge. In Dickey the Court held that a delay of seven years was unwarranted and ordered defendant released. However, Mr. Chief Justice Burger, speaking for the Court in that case, said: 'Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable,' and in the same case Mr. Justice Brennan, in a concurring opinion, said:

'What are the criteria to be used in judging the constitutionality of those delays to which the safeguard applies? This Court has stated that '(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, supra 198 U.S. 77, at 87, 25 S.Ct. 573, at 576, (49 L.Ed. 950 (1905), 49 L.Ed. at 954). We have also observed that '(w)hile justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041, 1048 (1959). It appears that consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the Speedy Trial Clause.'

And in another portion of this same opinion, Mr. Justice Brennan continues:

'* * * Perhaps the most important reason for the delay of one criminal prosecution is to permit the prosecution of other criminal cases which have been in process longer than the case delayed. * * *'

Dickey is clearly distinguishable from the case now under review. That case involved a delay of seven years; the case at bar involved a delay of 145 days from indictment to trial. In Dickey, Mr. Chief Justice Burger noted that actual prejudice to Dickey was shown by the fact that police records were lost, two of his witnesses had died, and another witness was unavailable.

Judge McKinnon found that the delay in the present case was caused by a crowded docket, and by lack of a sufficient number of courtrooms and terms of court. Judge McKinnon...