State v. Dorton, COA04-572.

• Decision Date: 16 August 2005
• Docket Number: No. COA04-572.,COA04-572.
• Citation: 617 S.E.2d 97
• Parties: STATE of North Carolina v. Tony Wayne DORTON.
• Court: North Carolina Supreme Court

617 S.E.2d 97

STATE of North Carolina v. Tony Wayne DORTON.

No. COA04-572.

Court of Appeals of North Carolina.

August 16, 2005.

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Appeal by defendant from judgment entered 13 February 2004 by Judge B. Craig Ellis in Scotland County Superior Court. Heard in the Court of Appeals 16 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

James M. Bell, Raleigh, for defendant-appellant.

CALABRIA, Judge.

Tony Wayne Dorton ("defendant") appeals a judgment entered on a jury verdict of guilty of second-degree sexual offense. Defendant received a sentence in the aggravated range with a minimum term of 92 months and a maximum term of 120 months in the North Carolina Department of Correction. We find no error regarding defendant's trial but remand for resentencing.

The State presented evidence that defendant and Pamela Dorton had two children during the course of their marriage. The eldest child (the "victim"), was sixteen years of age on 30 March 2002. Since school was out of session, the victim and her brother were at home on that date with their father, defendant, who was unemployed. Near midday, the victim checked the computer in her parents' room to see if she had received any e-mail. Defendant was dressed for an appointment with the Employment Security Commission but undressed and returned to bed while the victim was on the computer. After the victim finished on the computer, defendant asked the victim to lay down with him "to help him go back to sleep." Although reluctant, the victim complied. Defendant turned to the victim, began rubbing her on her side, and repeatedly asked her to engage in oral sex with him in increasingly demanding tones. Defendant then pinned the victim down and began to digitally penetrate her. The victim began crying and attempted to stop him. This angered defendant, and he started hitting her. In her distress, the victim urinated on herself. As a result, defendant let the victim go to the restroom.

While the victim was in the restroom, defendant entered and again attempted to force the victim to engage in sexual activity with him. When the victim told defendant that he "would have to kill her first," defendant forced the victim back into the bedroom and removed her clothes, resumed hitting her, and attempted to engage in both oral and vaginal sex with the victim; however, defendant's attempts were hampered due to the fact that he suffered from erectile dysfunction. The victim testified that throughout the event, defendant responded to her attempts to thwart his advances by hitting her with his hands and a shoe and choking her.

After defendant finished, he returned to the bathroom, and the victim retrieved her clothes and dressed. Defendant subsequently left for his appointment. The victim called her mother, who instructed the victim to call the police. The victim complied, and the police obtained a statement from her and took her to the hospital, where a rape kit was performed.

Defendant was arrested and indicted for second-degree rape and second-degree sexual offense. On 17 June 2002, defendant moved for a speedy trial. On 27 October 2003, defendant moved to dismiss the pending charges for denial of a speedy trial. In denying defendant's motion, the trial court noted that between 18 September 2002 and May of 2003, defendant had changed attorneys three times, the SBI lab tests were delayed due to a backlog in testing not attributable to the District Attorney's office, and, between March of 2003 and the following September session of Superior Court, the cases tried by the District Attorney's office predated defendant's case. The jury returned a verdict of guilty for second-degree sexual offense and a verdict of not guilty for second-degree rape. Defendant was sentenced as noted supra and appeals.

I. Right to Speedy Trial

In his first assignment of error, defendant asserts the trial court erred in failing to dismiss the charges as a result of the violation of his right to a speedy trial. The right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution, applicable to the states via the Fourteenth Amendment, and Article I, Section 18 of the North Carolina Constitution, and our analysis of each is the same. State v. Hammonds, 141 N.C.App. 152, 157-58 541 S.E.2d 166, 171-72 (2000). Analysis of whether a defendant's right to a speedy trial has been violated is based on a case-by-case balancing of the following four factors: "(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., 141 N.C.App. at 158, 541 S.E.2d at 172. Since the length of delay in the instant case was twenty months, it is presumptively prejudicial and triggers examination of the other three factors. See State v. Webster, 337 N.C. 674, 679, 447 S.E.2d 349, 351 (1994) (noting that a sixteen-month delay "is clearly enough to cause concern and to trigger examination of the other factors"). In doing so, however, we are mindful that "the length of delay is viewed as a triggering mechanism for the speedy trial issue," and, therefore, "`its significance in the balance is not great.'" Hammonds, 141 N.C.App. at 159, 541 S.E.2d at 172 (quoting State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67, 71 (1975)).

A. Reason for Delay

In examining the second factor, a "defendant has the burden of showing that the delay was caused by the neglect or wilfulness of the prosecution[,] [which may be rebutted with] evidence fully explaining the reasons for the delay." State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003). Prohibited are delays that are purposeful or oppressive and could have been avoided by reasonable effort, not "good-faith delays which are reasonably necessary for the State to prepare and present its case." State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969) (citations omitted).

In the instant case, the trial court noted the numerous changes in defendant's attorneys between September of 2002 and May of 2003. Moreover, the trial court found additional delay was "due to a backlog in testing at the SBI" not "attributable to the District Attorney's office." Defendant contends "it is immaterial whether the delay was caused by law enforcement or the District Attorney because, in either case, such delay should be attributable to the State." However, our Supreme Court indicated in Spivey that this expanded attribution to the State is improper by noting that the defendant's burden was to show prosecutorial neglect or willfulness. Spivey, 357 N.C. at 119, 579 S.E.2d at 255. See also id., 357 N.C. at 127, 579 S.E.2d at 260 (Brady, J., dissenting) (focusing the analysis of the second factor on the "elected District Attorney" and noting that "the district attorney's indifference toward defendant is evidence of precisely the type of neglect that reflects a violation of a defendant's right to a speedy trial"). Finally, we note the trial court's uncontested finding of fact (concerning the trial of cases with dates of offenses preceding that of defendant) is an appropriate method of determining the order in which to dispose of cases. See Spivey, 357 N.C. at 120, 579 S.E.2d at 255 (observing that the district attorney had "dealt with cases in chronological order, beginning with the oldest [and][d]efendant's case was tried based on this policy"). These reasons indicate defendant failed to show that the State willfully or neglectfully delayed defendant's trial.

B. Assertion of Right to Speedy Trial

Defendant did assert his right to a speedy trial early in the process; accordingly, this factor balances in favor of defendant's assignment of error. However, we note that the "assertion of the right, by itself, d[oes] not entitle [a defendant] to relief." Id., 357 N.C. at 121, 579 S.E.2d at 256.

C. Resulting Prejudice

Prejudice to defendant as a result of delay concerns the following three objectives: "(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." Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101, 118 (1972). The test for prejudice is "whether significant evidence or testimony that would have been helpful to the defense was lost due to delay[,]" see State v. Jones, 98 N.C.App. 342, 344, 391 S.E.2d 52, 54-55 (1990), as opposed to "claims of faded memory and evidentiary difficulties inherent in any delay." State v. Goldman, 311 N.C. 338, 345, 317 S.E.2d 361, 365 (1984). Defendant's assertions are precisely those diminished in Goldman in that defendant only gives generalized assertions that there was some "diminished memory" and, therefore, defendant's defense was impaired. Moreover, while defendant cites to certain portions of the testimony of medical witnesses and the victim concerning things they could not remember, we note (1) the victim was able to testify and be cross-examined as to the incident and (2) the medical witnesses produced written records from which they testified. Accordingly, this factor weighs against defendant. In balancing the four factors together, we do not find defendant's constitutional right to a speedy trial was impermissibly transgressed. This assignment of error is overruled.

II. Failure to Sequester the Victim's Mother

Defendant, in his second assignment of error, asserts the trial court erred in denying his motion to sequester all of the State's witnesses. The trial court allowed defendant's motion with respect to all witnesses except for the victim's mother, who was permitted to remain with her in court. Sequestration of witnesses "`rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the ruling was so arbitrary that...