State v. Jackson

• Decision Date: 06 June 1975
• Docket Number: No. 80,80
• Citation: 287 N.C. 470,215 S.E.2d 123
• Parties: STATE of North Carolina v. Ronald F. JACKSON.
• Court: North Carolina Supreme Court

Page 123

215 S.E.2d 123

287 N.C. 470

STATE of North Carolina v. Ronald F. JACKSON.

No. 80.

Supreme Court of North Carolina.

June 6, 1975.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

David R. Badger, Charlotte, for defendant-appellant.

MOORE, Justice.

By his first assignment of error defendant contends that his statutory constitutional rights to a speedy trial were violated.

Defendant was first tried and convicted before Chess, J., and a jury, at the 12 March 1973 Special Criminal Session of Union Superior Court, and from sentence imposed appealed to the Court of Appeals. That court, in an opinion certified 24 September 1973, awarded defendant a new trial. 19 N.C.App. 370, 199 S.E.2d 32 (1973). Thereafter, pretrial motions were heard before Copeland, J., at the 15 April 1974 Special Criminal Session of Union Superior Court and defendant was again tried before Seay, J., at the 6 May 1974 Criminal Session of Union Superior Court.

Defendant contends that a delay of some seven months from the time the decision of the Court of Appeals was filed on his first appeal to the date of the second trial violated his statutory right to a speedy trial under G.S. § 15--186 which, in pertinent part, provides:

'Procedure upon receipt of certificate of appellate division.--. . . In criminal cases where the judgment is not affirmed the cases shall be placed upon the docket for trial at the first ensuing criminal session of the court after the receipt of such certificate.'

The Court of Appeals held that this statute was not mandatory but was a directive to the clerk of the superior court regarding steps to be taken when the appellate division orders a new trial.

Defendant's counsel in his brief states:

'The defendant is in accord with the holding of the North Carolina Court of Appeals that literal compliance with North Carolina General Statutes Section 15--186 is not necessary where extraordinary circumstances exist and that whether there is good cause in delay of scheduling a case for retrial must be answered in light of the facts in a particular case. . . . Although many of the same principles applied by appellate courts in deciding whether a defendant has been denied his right to a speedy trial should be applied in determining whether there is good cause for delay in the scheduling of a case for retrial pursuant to North Carolina General Statutes Section 15--186, the defendant respectfully contends that the cited statute reflects the legislative intent to substitute an objective standard in lieu of the somewhat subjective standard utilized by appellate courts in their discussions of speedy trial questions based solely upon constitutional consideration. . . .'

The Court of Appeals, after a good examination of authorities from other states, concluded:

'Whether there is good cause for delay in the scheduling of a case for retrial and whether the defendant has been denied his constitutional right to a speedy retrial must be answered in light of the facts in a particular case. In answering these questions the same principles applied by our courts in deciding whether a defendant has been denied his right to a speedy trial should be applied.'

We agree. We do not believe that the General Assembly by G.S. § 15--186 intended to give defendants on retrial right to a more speedy trial than that guaranteed to all by the Constitution of the United States and the Constitution of North Carolina.

In State v. Brown, 282 N.C. 117, 123, 191 S.E.2d 659, 663 (1972), with reference to the constitutional right to a speedy trial, we said:

'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 the particular case. The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed. Sate v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); 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 (1972); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); 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). See 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).'

Accord, State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975); State v. Gordon, 287 N.C. 118, 213 S.E.2d 708 (1975).

In the present case Judge Copeland heard evidence from both the State and defendant on a motion to dismiss for failure to give defendant a speedy trial and made findings of fact substantially as follows:

1. The decision of the Court of Appeals was certified to the Union County Superior Court 24 September 1973.

2. The defendant was been out on bond since August 1973.

3. Neither defendant nor his counsel made any motion for a speedy trial orally until about two months prior to this hearing. A written motion for a speedy trial was filed on 8 March 1974.

4. A large number of criminal cases were pending, many including defendants in jail, and as many of these cases as possible had been disposed of since 24 September 1973, a substantial number of which involved defendants in jail awaiting trial.

Judge Copeland then concluded:

'AS A MATTER OF LAW . . . under the circumstances, the District Attorney has proceeded as rapidly as he could with these cases, considering the other cases that he had to try in this county and in this district.

'THE COURT ALSO CONCLUDES AS A MATTER OF LAW that no prejudice resulted to the defendant in this connection.'

As found by the trial court, the delay in this case largely resulted from the congested docket and from an attempt to give priority to jail cases. The congestion of criminal court dockets has consistently been recognized as a valid justification for delay. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); State v. Gordon, Supra; State v. Brown, Supra; State v. George, 271 N.C. 438, 156 S.E.2d 845 (1967); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965). The burden is clearly on the accused who asserts the denial of his right to a speedy trial to show that the delay is due to the neglect or willfulness of the prosecution. State v. Brown, Supra; State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Hollars, Supra. Defendant has filed to carry that burden.

In the present case no motion for a speedy trial was made prior to 8 March 1974, and on 18 April 1974, when Judge Copeland heard the motion, counsel for defendant stated that he was not prepared to try the case at that time for the reason that there were witnesses from out of state. '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.)' (Emphasis added.) State v. Johnson, Supra. Defendant's contention that he has been denied his right to a speedy trial is without merit.

Pursuant to the provisions of G.S. § 1--84 and G.S. § 9--12, defendant filed a pretrial motion for a change of venue from Union County or, in the alternative, for a special venire for the retrial of his case. Defendant contends that the trial court abused its discretion in denying this motion for the reason that newspaper articles published prior to the trial made it impossible for him to obtain a fair trial in Union County. In support of this motion, defendant offered petition verified by his attorney, and various newspaper clippings.

The newspaper articles in the Monroe Enquirer-Journal were factual and not inflammatory. The articles in the Charlotte papers were largely favorable to defendant. For instance, headlines in large print in an article in the October 2, 1973, edition of The Charlotte Observer boldly proclaimed, 'Convicted Man Telling Truth, N.C. Tests Show.' This statement referred to a polygraph test given defendant during the investigation of this case, the results of which are not admissible in evidence.

The Charlotte News in bold headlines in its March 14, 1973, edition stated, 'I'll Prove My Innocence, Robber Tells Union Judge.' Another article in the June 22, 1973, edition of The Charlotte Observer was headlined as follows: 'Agent Says N.C. Inmate Not Guilty.' This article referred to a statement made by an unnamed undercover agent for South Carolina's State Law Enforcement Division and quoted Chief J. P. Strom of that Division as saying that the evidence 'looks good and strongly indicates that Jackson may be innocent.' It is noted that neither of these South Carolina officers testified at trial. Still another headline in the June 28, 1973, edition of The Charlotte Observer stated, 'New Probe May Free Man Convicted in N.C. Robbery,' and then related statements made by various witnesses regarding defendant's innocence.

The Charlotte Observer and The Charlotte News are newspapers with wide circulation in that area. Defendant offered no evidence to show that such publicity was more widespread in Union County than in any other county to which the case might have been removed under G.S. § 1--84 or from which jurors could have been drawn under G.S. § 9--12.

Defendant contends, however, that the primary reason for the motion was not to move the trial outside the territory served by the Charlotte newspapers but to move it out of the area within which Mr. Lowery, the District Attorney; Mr. Fowler, the Sheriff; and Mr. Funderburk, an attorney, were well known. In his motion for a change of venue or a special venire, defendant alleges that some of the...