State v. Gordon

• Decision Date: 06 May 1975
• Docket Number: No. 39,39
• Citation: 287 N.C. 118,213 S.E.2d 708
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Richard GORDON.

Page 708

213 S.E.2d 708

287 N.C. 118

STATE of North Carolina v. Richard GORDON.

No. 39.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. James H. Carson, Jr. and Asst. Attys. Gen. Lester V. Chalmers, Jr. and Sidney S. Eagles, Jr., Raleigh, for the State.

Lacy W. Blue, Charlotte, for defendant appellant.

MOORE, Justice.

Before pleading to the bills of indictment, defendant moved to dismiss for failure of the State to afford him a speedy trial. Defendant assigns as error the denial of this motion.

In support of his motion, defendant introduced death certificates of two possible witnesses, Isaac Harris and Mattie Howze. Harris was shot on 15 January 1974, while robbing a store, and died on 19 January 1974. Howze was doused with gasoline and set on fire on 29 December 1973, and died on 30 December 1973. Defendant contends that had his cases been tried earlier, these two persons might have been helpful in the presentation of his defense. He offered no evidence as to what either of these persons would have testified had they been called as witnesses.

In opposition to defendant's motion to dismiss, the State offered the testimony of Thomas F. Moore, Jr., the District Attorney for the Twenty-Sixth Judicial District, who testified in part that from 21 August 1973 to 20 May 1974 approximately 70 weeks of criminal court were held in Mecklenburg County, with an average of about 100 persons awaiting trial at all times; that during this period approximately 1200 cases were disposed of, including between 150 to 200 requiring jury trials; that it takes about four to six months to bring a jail case to trial in the county because of the condition of the docket; that it took two to three months longer to bring this case to trial because of pretrial publicity adverse to the defendants; that the delay was necessary in order to secure a fair trial for the defendant; that there were other criminal cases that did not receive the publicity this case received; that additional time was needed to prepare this case because of the technical legal aspects involved; that the availability of Judge Ervin to try the case, because of the legal technicalities involved, was an important factor involved in setting the case for trial.

The following facts were stipulated by the two Assistant District Attorneys representing the State and counsel for defendant:

'1. That the defendant, Richard Gordon, was arrested on this charge or these charges on August 21, 1973, and has been held in custody without privilege of bond since that date.

'2. That he was given a preliminary hearing in the Mecklenburg County District Court on September 26, 1973, and was bound over to Superior Court for trial on these charges at that time; that no bond was permitted by the District Court.

'3. That on November 5, 1973, the Grand Jury of Mecklenburg County returned a true bill against the defendant, Richard Gordon, in each case.

'4. That the defendant made a motion for speedy trial on April 11, 1974, and that the case was called for trial on Monday, May 20, 1974.'

Based on the stipulation, the death certificates, and the testimony of District Attorney Moore, the trial judge made detailed findings of fact and then concluded as a matter of law:

'1. That the defendant has not been deprived of a speedy trial in the constitutional sense and that the defendant is not entitled to have this case dismissed, nor is he entitled to any other relief by virtue of his contention that he has been denied a speedy trial.

'2. That the evidence fails to disclose that the State has acted wilfully or that the State has been guilty of any neglect in its handling of the matter, the Court finding that the case has been called for trial on the first occasion on which it has been docketed and that there is no showing that the State handled this case in any fashion other than in the normal fashion in which serious criminal cases are handled and disposed of in Mecklenburg County Superior Court; that the defendant has failed to show that the fact that the case has not been called for trial prior to May 20, 1974, has in any wise prejudiced the defendant or that he has in any wise been harmed by virtue of the fact that the case was not called for trial prior to this date.'

The right to a speedy trial has been considered by this Court in many cases, including State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Cavallaro, 274 N.C. 480, 164 S.E.2d 168 (1968); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965).

The Supreme Court of the United States has also considered the constitutional guaranty of a speedy trial in various cases, including United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905).

The length of delay is never Per se determinative, although a delay of nine months, as in the present case, could contravene the defendant's right to a speedy trial under some circumstances. State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972).

The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. State v. Brown Supra; State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). '. . . But this right is necessarily relative and is consistent with delays under certain circumstances. (Citation omitted.)' State v. Spencer, Supra.

As we said in State v. Harrell, Supra:

'The word Speedy cannot be defined in specific terms of days, months or years, so the question whether a defendant has been denied a speedy trial must be answered in light of the facts in a particular case. Four factors should be considered in determining the reasonableness of a delay: the length of the delay, the reason for the delay, prejudice to the defendant, and waiver by the defendant. (Citations omitted.)'

The congestion of criminal court dockets has been consistently recognized as a valid justification for delay. Crowded dockets, lack of judges or lawyers, and other factors, make some delays inevitable. State v. Brown Supra; State v. George, 271 N.C. 438, 156 S.E.2d 845 (1967).

A delay from 21 August 1973, the date on which defendant was arrested, until 20 May 1974, the date of the trial, in view of the congested docket in Mecklenburg County, could hardly be considered 'willful or oppressive.' Pollard v. United States, Supra. The burden is clearly on the accused to show that the delay was due to the neglect or willfulness of the prosecution. State v. Brown, Supra; State v. Ball, Supra; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Hollars, Supra. Defendant has failed to carry that burden.

Defendant here apparently acquiesced in the delay until 11 April 1974--the date on which he first asked for a speedy trial. '. . . A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. (Citations omitted.)' State v. Johnson, Supra.

The record is devoid of any evidence of prejudice although defendant did state that he had expected to call the two deceased persons as possible witnesses. He did not attempt to show what he expected to prove by them had they been available. Nothing in the record suggests that his ability to present his defense was in any way impaired by the delay or by the death of those persons.

Defendant's contention that he has been denied his right to a speedy trial is without merit. This assignment is overruled.

Prior to 17 August 1973, defendant sometimes left a rifle or pistol in Apartment 3, occupied by the two sisters, Ellen Gilmore and Brenda Barber, adjoining Apartment 2 in which defendant lived. On 18 August a shotgun, a pistol and a 'long gun' in a zipper bag were seen by Ellen Gilmore in the closet of Apartment 3. On 21 August police officers, armed with a search warrant, went to Apartment 3, located and seized these guns. At trial they were identified by Ellen Gilmore as the ones or similar to the ones put in her closet by defendant. The State offered these guns in evidence. Defendant's counsel objected and moved to suppress for the reason that they had been seized in the course of an unlawful and unconstitutional search. This motion was overruled. The denial of this motion is the basis for defendant's second assignment of error.

Defendant contends that although the officers had a search warrant it was not introduced in evidence, and also, contrary to the State's contention, that he does have standing to challenge the introduction into evidence of the 30--30 rifle and other weapons seized in Apartment 3. '. . . The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures. . . .' State v. Craddock, 272 N.C. 160, 158 S.E.2d 25 (1967).

As stated by Chief Justice Burger in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973):

'. . . (T)here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of seized evidence at the time of the contested search and seizure. . . .'

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