State v. Farook

• Decision Date: 20 October 2020
• Docket Number: No. COA19-444,COA19-444
• Citation: State v. Farook, 850 S.E.2d 592 (N.C. App. 2020)
• Parties: STATE of North Carolina v. Khalil Abdul FAROOK
• Court: North Carolina Court of Appeals

850 S.E.2d 592

STATE of North Carolina

v.Khalil Abdul FAROOK

No. COA19-444

Court of Appeals of North Carolina.

Filed: October 20, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

Sarah Holladay, for defendant-appellant.

STROUD, Judge.

Defendant appeals the trial court's denial of his motions to dismiss his case for violation of his Sixth Amendment right to a speedy trial. Because the State failed to carry its burden of proof as to the reason for delay in defendant's trial and as defendant has demonstrated prejudice from this delay, defendant's right to a speedy trial was violated, and thus we reverse the order denying defendant's motion to dismiss and vacate defendant's judgment.

I. Background

The State's evidence showed that on 17 June 2012, defendant was driving when his vehicle collided with Mr. and Mrs. Jones, who were riding a motorcycle; both died from the collision. A blood sample was taken from defendant and submitted to the North Carolina State Crime Laboratory ("Crime Lab") for analysis on 28 June 2012. On 18 June 2012, warrants were issued for defendant's arrest on charges of felony hit and run resulting in death, driving while impaired, and resisting a public officer. On 19 June 2012, all three of the 18 June 2012 warrants were served and additional warrants were issued and served for two counts of felony death by vehicle. On 25 June 2012, pursuant to a search warrant seeking evidence for purposes of "D.N.A. collection, latent prints, trace evidence, document in the vehicle to show ownership" and evidence to assist in the "identification of the occupants[,]" law enforcement seized various items of evidence from defendant's vehicle, including swabs from various locations, the driver seat cushion, and a broken watch face. The samples were placed into "Temporary Evidence[.]"

On 2 July 2012, defendant was indicted for driving while impaired, resisting public officer, and two counts of felony death by vehicle. On 30 July 2012, defendant was indicted for reckless driving to endanger, driving left of center, driving while license revoked, and felony hit and run resulting in two deaths. Defendant remained in jail awaiting trial from the date he was arrested, 19 June 2012.¹

On 11 July 2012, Mr. James Randolph was appointed as defendant's counsel. On 10 December 2014, Mr. James Davis was assigned to defendant's case replacing Mr. Randolph. According to the trial court's findings of fact, on 25 March 2015, "[b]lood alcohol results [were] sent from State Crime Lab to District Attorney's Office." The blood sample was analyzed "to determine the alcohol concentration or presence of an impairing substance therein[;]" on 1 June 2015, the Crime Lab prepared the report, which did not state a blood alcohol level and was negative for all other substance tests. On 26 March 2015 -- nearly three years after defendant's arrest -- a "[r]ush request [was] sent from Brandy Cook for expedited testing of DNA[,]" and on 17 April 2015, the "DNA analysis [was] completed."²

On 30 June 2017, Mr. Davis moved to withdraw from defendant's case. In the motion to withdraw, Mr. Davis alleged that "[a]fter extensive review and numerous conferences with Defendant, he had elected this month to proceed to trial." Mr. Davis further alleged that he "has a large criminal and civil trial practice, both in and out of county and in state and federal court[,]" including "a civil marital tort jury trial currently set the week of September 25, 2017, in Stanly County, NC[;]" a "civil wrongful death jury trial tentatively set for October 23, 2017, in Davie County[;]" "four pending custody trials, a DWI trial, and many other district court trials[;]" "a capital murder trial on January 8, 2018 ... anticipated to last four to five months[,]" along with eight mediations and one deposition in the next two months. Mr. Davis noted that under the "scheduling order" defendant had a deadline of 6 October 2017 to file motions and notices and that "the Special Prosecutor intends to calendar the trial of Defendant's cases during the latter part of 2017 or early 2018."

On 5 July 2017, Mr. Aaron Berlin and Ms. Sarah Garner, "Special Prosecutors from the North Carolina Conference of District Attorneys" eventually became the State's attorneys on this case. On 5 July 2017, defendant rejected a plea offer by the State for "RECKLESS DRIVING TO ENDANGER, FEL HIT/RUN SER INJ/DEATH, DWI, FELONY DEATH BY VHIECLE X 2, DWLR, DRIVE LEFT OF CENTER[.]" This same day, Mr. Davis's motion to withdraw as defendant's counsel was granted and Mr. David Bingham was appointed in his stead, and defendant's cases were calendared for an "administrative hearing" on 7 August 2017.

On 17 July 2017, defendant was indicted for two counts of second-degree murder and attaining the status of violent habitual felon. On 2 August 2017, defendant wrote to his attorney, Mr. Bingham, and requested he withdraw from the case. Defendant stated that his understanding was that "you are my brother-in-law[’s] attorney, and have been for years.... This will be a conflict of interest." Defendant requested that Mr. Bingham "ask one of these attorney[s] to take my case[,]" and listed three names. Defendant wrote, "My reason I ask this is because, Mrs. Anna Mills Wagoner the Resident Judge. She ask Mr. James Davis why didn[’]t he ask other attorney before he put in his withdraw from my case." On 7 September 2017, defendant sent a note to the clerk of court noting he had mailed a motion to dismiss his court-appointed attorney, Mr. David Bingham; on 11 September 2017, the letter requesting Mr. David Bingham be dismissed was filed. On 13 September 2017, Mr. David Bingham filed a motion to be removed from the case. On 14 September 2017, Mr. Bingham filed a motion for appointment of expert and asking for appointment of an investigator to interview witnesses to the incident and to "help him locate and establish alibi witnesses." On 25 September 2017, the trial court appointed Mr. Chris Sease as defendant's counsel. On 28 September 2017, Special Prosecutor Garner filed and served upon defendant's counsel a "Motion for Reciprocal Discovery and Defenses[,]" (original in all caps), pursuant to North Carolina General Statute § 15A-905 and a "Discovery Disclosure Certificate, 15A-957 Notice, Request for and Consent to Reciprocal Discovery[.]"

On 2 October 2017, the trial court entered an order establishing dates for filing and hearing motions; all defense motions were to be filed by 4 December 2017 and motions were to be heard on 27 January 2018. On 22 January 2018, Mr. Sease and Special Prosecutor Garner entered a consent agreement noting that defendant had "no pre-trial motions" and no reciprocal discovery to provide, while the State had "provided full discovery to the defendant" and afforded defendant's attorney "the opportunity to review in person the State's complete file[.]" The defendant also stipulated that "defendant uses the name Khalil Farook and was previously known as Donald Miller[.]"

On 19 March 2018, defendant sent the clerk of court a request for "information[ ] (motions) concerning my tr[ia]l delay for the years of 2013, 2014, 2015, 2016, 2017. That the District Attorney office file to delay my tr[ia]l. I need cop[ies] of each year." (Original in all caps.) A notation in different handwriting, apparently as the response from the Clerk's office, appears at the bottom: "There are no written motions in any of your files."³ On 7 August 2018, the State filed a notice of expert witness, identifying Trooper D.H. Deal as an expert in "Crash/Accident Reconstruction" and noting the trial was set for the week of 24 September 2018. On 9 August 2018, the State dismissed the charges for reckless driving to endanger, driving left of center, DWI, resisting a public officer, and both counts of felony death.

On 6 September 2018, defendant filed a pro se motion requesting his case be dismissed "on the grounds that the defendant, ... was deprived of effective assistance of counsel, and on flagrant violation of the Constitution of the United States and North Carolina, Amendment VI, VIII." (Original in all caps.) Defendant alleged that his appointed attorney, Mr. James Davis, did not speak to him until 57 months after he was appointed.⁴ Defendant also alleged he never agreed to any delays in his trial and that he had been prejudiced both by his ineffective counsel and the delay. On 13 September 2018, defendant filed another pro se motion similar to his motion a week earlier but also added that his former counsel, Mr. David Bingham had also been ineffective.

On 18 September 2018, defendant's attorney, Mr. Chris Sease, filed a motion to dismiss defendant's case due to the violation of his constitutional rights to a speedy trial.⁵ The motion to dismiss alleged, although the incident was on 17 June 2012, defendant was not charged or served with indictments for second degree murder, violent habitual felon, and habitual felon until 5 July 2017. Mr. Sease alleged that since defendant was incarcerated in the Rowan County Detention Center, he was easily accessible to the charging officer and District Attorney's Office and any failure to serve warrants on defendant was "through no fault of [defendant's] own." The motion also alleged defendant believed the warrants were "purposely held until after [ ]he had rejected the State's plea officer and after his original counsel of record had withdrawn from this case, in an attempt to oppress, harass and punish him further." The motion to dismiss also noted when events occurred which we summarize in a timeline:

31 July, 2012 Indictment.

6 August 2012^[6] Case was calendared for this week but Mr. Randolph, counsel, withdrew.

8 August 2012 Mr. Davis appointed as counsel.

13 August 2012 Defendant entered not guilty plea.

18 February 2013 Defendant's case was calendared but not reached.

19 March 2013 Defendant's case was calendared but not reached.

16 April 2013 Defen

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