State v. Dietz

• Decision Date: 06 April 1976
• Docket Number: No. 35,35
• Parties: STATE of North Carolina v. Phillip DIETZ.
• Court: North Carolina Supreme Court

Page 357

223 S.E.2d 357

289 N.C. 488

STATE of North Carolina v. Phillip DIETZ.

No. 35.

Supreme Court of North Carolina.

April 6, 1976.

Atty. Gen. Rufus L. Edmisten and Associate Atty. Daniel C. Oakley, Raleigh, for the State, appellant.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant-appellee.

MOORE, Justice.

We allowed the State's petition for discretionary review to consider the decision of the Court of Appeals in which that court (1) reversed the trial court and ordered a new trial because of the pre-indictment delay and (2) held that the trial court erroneously overruled defendant's objection to a question asked by the district attorney.

The State first contends that the trial court did not err in denying defendant's motion to dismiss the prosecution because of a four and one-half month pre-indictment delay, and that the Court of Appeals erroneously decided that the trial court should have held a sufficient hearing to determine the reason for the delay and the resulting prejudice, if any, to defendant. The State urges that there was sufficient evidence before the trial judge in the form of defendant's motion and affidavit to enable him to consider and rule on the motion without conducting an evidentiary hearing.

In United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971), the Supreme Court refused to extend the Sixth Amendment's guarantee of a speedy trial to those persons who had not yet been 'accused' of a crime, either by arrest or indictment. However, persons who allege pre-indictment delay are protected under the Fifth Amendment '. . . if it were shown at trial that the pre-indictment delay . . . caused Substantial prejudice to appellees' rights to a fair trial and that the delay was an Intentional device to gain tactical advantage over the accused . . .' (Emphasis added.) 404 U.S. at 324, 30 L.Ed.2d at 481, 92 S.Ct. at 465. The delay in that case was thirty-eight months from the date of the alleged offenses until indictment. The Court refused to dismiss the prosecution because of that delay.

This Court also considered pre-indictment delay in State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). There, we held the prosecution must be dismissed due to an intentional four-year delay by the State in securing an indictment against defendant. Justice Sharp (now Chief Justice), speaking for the Court, said:

'We here hold that when there has been an atypical delay in issuing a warrant or in securing an indictment and the defendant shows (1) that the prosecution deliberately and unnecessarily caused the delay for the convenience or supposed advantage of the State; and (2) that the length of the delay created a reasonable possibility of prejudice, defendant has been denied his right to a speedy trial and the prosecution must be dismissed.'

Numerous federal decisions have expanded on the Fifth Amendment standards applicable to the pre-indictment situation. These decisions have recognized the uncertainty after Marion of whether a successful claim under the Fifth Amendment must establish both actual prejudice to the defendant And intentional delay on the part of the government. Most are in accord, however, that at least in the absence of intentional governmental delay for the purpose of harassing or gaining advantage over defendant, the burden is on defendant to affirmatively demonstrate actual and substantial prejudice. United States v. Jackson, 504 F.2d 337 (8th Cir. 1974); United States v. Joyce, 499 F.2d 9 (7th Cir. 1974), Cert. den., 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Giacalone, 477 F.2d 1273 (6th Cir. 1973); United States v. White, 470 F.2d 170 (7th Cir. 1972). Most courts appear to engage in a balancing process, such as that mandated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a Sixth Amendment speedy trial case, of weighing the reasonableness of the delay against the prejudice to the accused. United States v. Jackson, supra; United States v. Norton, 504 F.2d 342 (8th Cir. 1974); Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847 (1972).

In the case at bar, the record reveals that Dan Crumley was working as an undercover agent, buying drugs for the SBI. At different times, Crumley received his money to purchase the drugs, totaling approximately $200, from SBI Agent James T. Maxey and reported all his buys to Agent Maxey. This particular undercover investigation took place over a five or six-month period, from January or February 1974 until around August 1974. During this time, Crumley made fourteen or sixteen purchases of drugs, only one of which was from defendant. Had the drugs obtained by Crumley been used as the basis for an arrest of defendant on the date of purchase, his identity as an undercover agent would have been exposed and his further effectiveness destroyed. Moreover, since Crumley remained at Western Carolina until the end of that term, he could have been in danger had his undercover activities been known. In fact, Agent Maxey, probably because of the possibility of that danger, arranged with the officials of Western Carolina and Elon College to have Crumley transfer to Elon at the end of the 1974 spring term.

On the issue of whether the four and one-half month delay was intentionally engineered by the State to disadvantage him, defendant, in the affidavit filed with his motion to dismiss, stated:

'Defendant is advised, informed and believes, and therefore alleges, that the State delayed the indictment, declined to issue a warrant against him, and delayed giving him any information about the nature and details and the names of witnesses against him, so that he would be substantially prejudiced in the defense of this prosecution because of his inability to remember places, dates, times, his own whereabouts, and for the further reason that the memory of any witnesses that he might have been able to obtain when he finally learned of the details of the charges against him would also be dimmed and lost to the defendant.'

The legitimate need to protect the existence of an ongoing undercover investigation from exposure has been frequently recognized by the federal courts as a reasonable justification for delay in bringing an indictment. United States v. Cowsen, 530 F.2d 734, 18 Crim.Law Rptr. (7th Cir. 1976); United States v. Jackson, supra; United States v. Emory, 468 F.2d 1017 (8th Cir. 1972). Defendant's allegations of malicious intent on the part of the law enforcement officials are unsupported by defendant's affidavit, and, defense counsel, on oral argument before us, stated that this affidavit was all the evidence he had.

Concerning his claim of prejudice due to the delay, defendant stated:

'That this defendant first became aware of the date on which the alleged offense is supposed to have occurred in November, 1974, and at that time learned for the first time that he is alleged to have sold marijuana to Dan Crumley on 17 May 1974 and that by the time such information was made available to him, the defendant was unable to remember precisely where he was on 17 May 1974, the names of persons that he saw on that date, the places he visited, the classes he attended, or any other information which might be helpful to him in advising his attorney and structuring a defense to this prosecution.'

Again, defendant produced no evidence to support these allegations. Mere claims of 'faded memory' have often been held not to constitute 'actual and substantial' prejudice required by Marion. United States v. McGough, 510 F.2d 598 (5th Cir. 1975); United States v. Giacalone, supra; United States v. Atkins, 487 F.2d 257 (8th Cir. 1973). Rather, the courts hold that defendant must show that lost evidence or testimony would have been helpful to his defense, that the evidence would have been significant, and that the evidence or testimony was lost as the result of the pre-indictment delay. United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129 (1972), Cert. den., 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973). Hardly a criminal case exists where the defendant could not make these general averments of impaired memory and lost witnesses. United States v. Marion, supra.

As stated by the Court in United States v. Cowsen, supra:

'. . . A claim of faded memory, the veracity of which can rarely be satisfactorily tested, can be plausibly asserted in almost any criminal case in which the defendant is not charged within a few weeks, at most, after the crime. The possibility of likelihood of faded memory has not, however, in itself, been viewed as prejudice that requires dismissal of an indictment, despite delays of much longer than the four and one-half months shown here. . . .'

Defendant relies on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), one of the few cases where prosecutions have been dismissed due to pre-indictment delay. There, the Court reversed a narcotics conviction involving a seven-month pre- indictment delay where the court found '(1) a purposeful delay of seven months between offense and arrest, (2) a plausible claim of inability to recall or reconstruct the events of the day of the offense, and (3) a trial in which the case against appellant consists of the recollection of one witness refreshed by a notebook.' Here, however, we do not have the seven-month unnecessary delay between offense and arrest that the court found in Ross. Defendant has not shown here, as in Ross, that he has been precluded from offering the testimony of a specific alibi witness because of the witness's uncertainty as to the events. Finally, here we do not have a suspect identification by the undercover agent. On the contrary, defendant and Crumley knew each other prior to the purchase of the marijuana on 17 May 1974. Ross has been called a 'paradigm case' in its own circuit, Robinson v. United States, supra, and is of no aid to this defendant.

Defend...