State v. Johnson

• Decision Date: 19 November 1996
• Docket Number: No. COA95-514,COA95-514
• Citation: 478 S.E.2d 16,124 N.C.App. 462
• Parties: STATE of North Carolina, v. Melvin Ricky JOHNSON.
• Court: North Carolina Court of Appeals

Page 16

478 S.E.2d 16

124 N.C.App. 462

STATE of North Carolina, v. Melvin Ricky JOHNSON.

No. COA95-514.

Court of Appeals of North Carolina.

Nov. 19, 1996.

Attorney General Michael F. Easley by Assistant Attorney General F.J. Di Pasquantonio, for the State.

Christy & Ferguson by Jay H. Ferguson, Durham, for defendant-appellant.

JOHN, Judge.

Defendant was found guilty by a jury 20 October 1994 of possession of cocaine. He received a suspended sentence and was placed on five years supervised probation. The trial court ordered defendant, inter alia, to pay $100 restitution to the State Bureau of Investigation for the cost of analyzing the cocaine and to forfeit "to the School Fund" $460 seized from his person. Defendant appeals.

The essentially undisputed background facts are as follows: as the result of an August 1992 tip to the Durham Police Department that controlled substances were being sold at 1212 Dawkins Street, Investigator Milton Alston (Alston) conducted surveillance of the premises and observed activity consistent with that of trafficking in drugs. Alston subsequently enlisted an informant who was successful in buying cocaine from an unidentified individual at the residence in question. A second, subsequent transaction produced similar results.

Based upon his observations and the two purchases of cocaine, Alston obtained a search warrant for the premises at 1212 Dawkins Street. The warrant was executed 29 August 1992, at which time defendant, his mother, and a young woman were present. While searching defendant, police officers located a plastic bag containing 2.1 grams of cocaine in his front right pants pocket and discovered $481 in cash in his front left pocket. Police also found two plastic bags containing three grams of marijuana in a kitchen cabinet, and scales, plastic "baggies," and twist ties in the kitchen.

Defendant was arrested and later indicted on charges of possession of marijuana, possession of cocaine and possession with intent to sell or deliver cocaine. The marijuana charge was subsequently dropped and defendant was acquitted at trial of the offense of possessing cocaine with the intent to sell or deliver. Judgment was entered 20 October 1994 on the possession conviction.

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I.

Defendant's first contention is that his conviction was obtained without the effective assistance of counsel guaranteed by the Constitutions of the United States and North Carolina. He maintains a motion by counsel to dismiss the charges against him for violation of his federal and state constitutional rights to a speedy trial would have been granted, yet was never made. Defendant was charged with the crimes sub judice 29 August 1992, but was not tried until the 17 October 1994 session of court.

When claiming denial of effective assistance of counsel,

[a] defendant must [first] show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)(emphasis omitted)(quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984)).

However, if the appellate court determines "there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different," it need not consider in the first instance whether counsel's performance was actually deficient. Id. at 563, 324 S.E.2d at 249. The standard measuring ineffective assistance of counsel is the same under the United States and North Carolina constitutions. Id. at 562, 324 S.E.2d at 248. Therefore, our initial step is to examine whether defendant was indeed denied the right to a speedy trial such that "the result of the proceeding would have been different," id. at 563. 324 S.E.2d at 249, had defendant's counsel made a dismissal motion grounded upon violation of this right.

The United States Supreme Court has set forth a balancing test to assess whether a defendant's Sixth Amendment right to a speedy trial has been transgressed. The test focuses upon four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972). No one factor alone is decisive of the issue for or against a defendant; rather, the factors must be examined as a whole, "with such other circumstances as may be relevant." Id. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. The test under the speedy trial provision of Article 1, § 18 of the North Carolina Constitution is identical. State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994).

As to the first factor, the duration of time between arrest and trial is not determinative of whether a violation of the constitution has occurred; an overly lengthy time period merely triggers examination of the other three factors. State v. Jones, 310 N.C. 716, 721, 314 S.E.2d 529, 533 (1984). We believe the twenty-six month lag herein between defendant's arrest and trial requires consideration of the remaining factors. See State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67, 71 (1975) (twenty-two month delay); see also Webster, 337 N.C. at 679, 447 S.E.2d at 351 (sixteen month delay).

Although mutually conceding the record is unclear concerning the reason for the delay in defendant's trial, both defendant and the State advance countervailing assertions in their appellate briefs. The State points out that the defendant's initial appointed counsel moved to withdraw 2 September 1993, citing a "fundamental disagreement" with defendant regarding the handling of his case and defendant's specific request that counsel withdraw. Substitute counsel was appointed 8 November 1993. Defendant responds that "the charges [were] not of such complexity to require an unusual amount of preparation for either the State or the defendant" and notes defendant's pretrial motions were all filed by 2 September 1993, more than thirteen months prior to trial.

"The defendant has the burden of showing that the reason for the delay was the neglect or willfulness of the prosecution." Webster, 337 N.C. at 679, 447 S.E.2d at 351. On the instant record, which defendant concedes is inconclusive, defendant has not met that burden.

Regarding the third factor, a letter in the record from defendant to Judge Gregory Weeks, apparently written shortly after a 28 June 1994 hearing, states, "I have previously and is [sic] currently requesting, to no avail, that a motion for a speedy trial be brought before the court." Assertion of the right to a speedy trial is " 'entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.' " Id. at 680, 447 S.E.2d at 352 (quoting Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117). In the case sub judice, no assertion of the right to a speedy trial appears of record until approximately twenty-two months following defendant's arrest, notwithstanding defendant's claim to have earlier pressed for such a motion to be filed. As in Webster,

[d]efendant's failure to assert [his] speedy trial right sooner in the process does not foreclose [his] speedy trial claim, but it does weigh somewhat against [his] contention that [he] has been unconstitutionally denied a speedy trial.

Id.

Lastly, we consider the issue of prejudice. The purpose of the constitutional right to speedy trial is:

(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.

Id. at 681, 447 S.E.2d at 352 (emphasis omitted)(quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118).

Defendant was not incarcerated pending trial, but claims the delay hampered his ability to mount a defense. Defendant's mother died 13 August 1994, two months prior to his trial. Defendant insists that had his mother been alive at the time of trial, she could have explained the "innocuous nature" of the scales, plastic "baggies," and twist ties found in her kitchen and would also have testified concerning the source and ownership of the money found in defendant's pocket. In the absence of his mother, defendant continues, he was compelled to testify on his own behalf regarding these matters so as to protect himself from a conviction of possession with intent to sell or deliver cocaine. In consequence of the necessity of his taking the stand, defendant concludes, he was forced to acknowledge ownership of the cocaine found in his pocket, thereby incriminating himself on the possession charge. Defendant's argument is unpersuasive.

First, defendant was acquitted of the greater crime of possession with intent to sell or deliver a controlled substance. Further, defendant was not prejudiced by the admission contained in his testimony.

A felonious possession of narcotics conviction requires proof the defendant (1) possessed the controlled substance at issue (2) knowingly. State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). Ownership of the controlled substance need not be shown. State v. Pevia, 56 N.C.App. 384, 388, 289 S.E.2d 135, 138, cert. denied, 306 N.C. 391, 294 S.E.2d 218 (1982). Moreover, when narcotics are found on premises under the control of a defendant, this...