State v. Hill

• Decision Date: 06 May 1975
• Docket Number: No. 60,60
• Citation: 214 S.E.2d 67,287 N.C. 207
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Terry Stephen HILL.

Page 67

214 S.E.2d 67

287 N.C. 207

STATE of North Carolina v. Terry Stephen HILL.

No. 60.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Richard F. Kane, Raleigh, for the State.

John H. McMurray, Morganton, for defendant appellant.

COPELAND, Justice.

In Assignment of Error No. 1 defendant challenges the refusal of the trial court to grant his motion to dismiss the secret assault bill on the ground his Sixth Amendment right to a speedy trial had been denied.

Numerous decisions by the federal courts and by this Court have established the following four interrelated factors to be considered in determining if a defendant's right to a speedy trial has been violated. (1) The length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice resulting to defendant from the delay. See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Macino, 486 F.2d 750 (7th Cir. 1973); State v. O'Kelly, 285 N.C. 368, 204 S.E.2d 672 (1974); State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972) (citing nine cases); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). See also, Annot., 57 A.L.R.2d 302 (1958), especially supplemental decisions.

In applying the above factors, the courts have adopted a balancing approach. See, e.g., Barker v. Wingo, Supra, 407 U.S. at 530, 92 S.Ct. 2182; United States v. Macino, Supra at 752; State v. O'Kelly, Supra, 285 N.C. at 371, 204 S.E.2d at 674. Nevertheless, it is still necessary to examine each factor separately.

Length of Delay. The delay in the instant case is not insubstantial since it involves a period of some twenty-two months. However, we elect to view this factor merely as the 'triggering mechanism' that precipitates the speedy trial issue. Viewed as such, its significance in the balance is not great. See, e.g., Barker v. Wingo, Supra 407 U.S. at 530, 92 S.Ct. 2182; State v. Harrell, Supra 281 N.C. at 115, 187 S.E.2d at 791.

Reason for Delay. In Barker, supra, the United States Supreme Court stated that '(a) deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.' However, the Court went on to state that '(a) more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' 407 U.S. at 531, 92 S.Ct. at 2192. In this State, the burden of showing neglect or wilful delay is on the defendant. See, e.g., State v. Harrell, Supra; State v. Johnson, Supra. This burden has not been met in this case. In fact, the record shows that the delay was due to overcrowded court dockets, a large number of capital cases, and a limited number of criminal sessions.

Assertion of Right to Speedy Trial. Failure to demand a speedy trial does not constitute a waiver of that right, but it is a factor to be considered. In Barker the Court emphasized that the assertion of the right 'is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.' 407 U.S. at 531--32, 92 S.Ct. at 2192. However, the Court was quick to emphasize that the failure to assert the right will 'make it difficult for a defendant to prove that he was denied a speedy trial.' Id. In the instant case, the record shows that defendant never requested his case to be placed upon the court calendar for trial.

Prejudice. This is the most elusive factor enunciated in Barker. As to prejudice, the Court offered the following guidelines:

'Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (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. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.' 407 U.S. at 532, 92 S.Ct. at 2193. (Emphasis supplied.)

Oppressive pre-trial incarceration was the only factor addressed by defendant during the course of the voir dire hearing on the speedy trial motion. Defendant testified about alleged inhuman treatment he received while incarcerated on unrelated offenses. However, the record does not reflect any causal relationship between defendant's alleged inhuman treatment and the indictment for secret assault.

Accordingly, in balancing the above factors, we believe the scales fall Heavily in favor of the State. This assignment is therefore overruled.

In Assignment of Error No. 2 defendant contends that the trial court committed prejudicial error in refusing to grant his motion for a continuance in the felonious assault case (#72--CRS--6079--A). The thrust of defendant's argument appears to be that his trial under this second indictment would (1) call for a different defense; (2) require a reconsideration of his position (3) deny him an opportunity to discuss a plea; and (4) deny him the opportunity to consider the effect of the two separate charges.

In most instances this would undoubtedly be a valid contention for 'the constitutional guaranty of the right of counsel requires that the accused and his counsel shall be afforded a reasonable time for preparation of his defense.' State v. Gibson, 229 N.C. 497, 501, 50 S.E.2d 520, 523 (1948), quoted with approval in State v. Moses, 272 N.C. 509, 512, 158 S.E.2d 617, 619 (1968) (per curiam). Accord, State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964). In the instant case, however, we find no facts that would except defendant's motion for a continuance from the general rule that such a motion is addressed to the sound discretion of the trial judge, whose ruling thereon is subject to review only in case of manifest abuse. See, e.g., State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Cox, 281 N.C. 275, 188 S.E.2d 356 (1972); State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972). See also, 2 Strong, N.C. Index 2d, Criminal Law § 91 (1967). Defendant had been charged on 1 September 1972 with secret assault upon Jack A. Ledford on 1 July 1972. Present counsel was appointed to represent defendant on the same day this first indictment was returned. The subsequent charge of felonious assault arose out of the same beating of Officer Ledford on 1 July 1972. Present counsel was also appointed to represent defendant in this case. It appears to us that the defense on the charge of felonious assault would not be appreciably different from that on the charge of secret assault. Furthermore, we believe that defendant has failed to show that any prejudice resulted from the trial court's denial of his motion. Cf. State v. Vick, N.C., 213 S.E.2d 335 (1975).

In his next series of assignments, defendant contends that the two charges against him, both arising out of the same transaction and occurrence, constituted double jeopardy in that one offense was split into two parts.

Double jeopardy has long been a fundamental prohibition of our common law and is deeply imbedded in our jurisprudence. See, e.g., State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971); State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971); State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962); State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Hicks, 233 N.C. 511, 64 S.E.2d 871 (1951); State v. Midgett, 214 N.C. 107, 198 S.E. 613 (1938); State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934); State v. Prince, 63 N.C. 529 (1869). See also, trial of William Penn and William Mead, 6 State Trials 952 (1816), and case of Edward Bushell for alleged misconduct as a juror at the Penn trial. Id. at 999. Rather than being a single doctrine, double jeopardy is actually comprised of three separate though related rules, prohibiting (1) reprosecution for the same offense following acquittal, (2) reprosecution for the same offense following conviction, and (3) multiple punishment for the same offense. See Patton v. North Carolina, 381 F.2d 636, 643--44 (4th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968). See also, Comment, Twice in Jeopardy, 75 Yale L.J. 262, 266 (1965). In the instant case, we are only concerned with the third rule.

The general rule in this State as to multiple punishments for the same offense is as follows: 'When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater . . . and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.' State v. Birckhead, Supra, 256 N.C. at 497, 124 S.E.2d at 841. This statement was quoted from Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794 (1929), and had previously been quoted with approval by Chief Justice Stacy in State v. Midgett, Supra.

The above cited rule is generally referred to as the 'same evidence test.' See Comment Criminal Law--Multiple Punishment and the Same Evidence Rule, 8 Wake Forest L.Rev. 243 (1972). For applications of the rule See, e.g., State v. Richardson, 279 N.C. 621, 185 S.Ed.2d 102 (1971); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Robinson, 116 N.C. 1047, 21 S.E. 701 (1895). Cf. State v. Hatcher, 277 N.C. 380, 390, 177 S.Ed.2d 892, 899 (1970). See also, State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971). A comparative analysis of the rule, contained in the law review comment, Supra, is helpful:

'For an offense to be the same in law as another offense, there must be at least partial...