State v. Johnson, 18

• Decision Date: 14 May 1969
• Docket Number: No. 18,18
• Citation: 275 N.C. 264,167 S.E.2d 274
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles E. JOHNSON, alias Charles E. Jones, and Herman Nathaniel McCoy.

Page 274

167 S.E.2d 274

275 N.C. 264

STATE of North Carolina v. Charles E. JOHNSON, alias Charles E. Jones, and Herman Nathaniel McCoy.

No. 18.

Supreme Court of North Carolina.

May 14, 1969.

Atty. Gen. T. W. Bruton, by Deputy Atty. Gen. Ralph Moody, for the State.

Cleveland P. Cherry, Rocky Mount, for Charles E. Johnson, alias Charles E. Jones, defendant appellant.

SHARP, Justice.

Defendant's first assignment of error is that the trial judge erred in overruling his motion to dismiss this prosecution because he had been denied his constitutional right to a speedy trial. The facts upon which defendant bases this motion are not in dispute.

On 1 November 1963, the seventh day after the robbery, Sheriff Womble obtained warrants charging Johnson and McCoy with the crime. At that time Johnson and McCoy were in jail in Wilson County, charged with having committed during the week of the Nash County robbery four other armed robberies, one in Edgecombe County and three in Wilson County. In addition, appellant Johnson was charged in Edgecombe with the crime of felonious assault. On the same day the sheriff obtained the warrants, he read them to Johnson and McCoy in the Wilson County jail. The warrants were not formally served on them because, Womble said, he lacked authority to act in Wilson County. However, at that time (Judge Parker found) defendants 'understood thoroughly the contents' of the warrants. At this point, the sheriff did nothing further to advance the trial of this action.

At the 11 November 1963 Session of Edgecombe, Johnson entered pleas of guilty in the two cases pending against him there. They were consolidated for judgment and one sentence of fifteen years in the State's prison was imposed by the Honorable George M. Fountain, Judge Presiding in the Seventh Judicial District (Wilson, Edgecombe, and Nash counties). At the December 163 Session of Wilson, Johnson also entered pleas of guilty to the three indictments pending there, and Judge Fountain imposed concurrent sentences of twenty, ten, and twenty years in the State's prison. These sentences ran concurrently with the Edgecombe County sentence.

Four years later, at the November 1967 Session of Nash, the grand jury returned the bill of indictment charging Johnson and McCoy with the Nash County robbery. Sheriff Womble said he could have secured the indictment in December 1963 but did not do so because he had been attempting, without success, to locate 'a third party', who was involved in the case. By November 1967, however, he was convinced he would never find that party. On 29 September 1967 he had filed a detainer against defendant with the Department of Correction.

At no time did either defendant ever request or demand a trial of the charge contained in the unserved warrant.

At the January 1968 Session counsel was appointed for both defendants and the case continued until March at their request. At the hearing upon defendant's motion to dismiss, Johnson's attorney testified that the case was then so old he could find nobody who remembered anything about it; that defendant did not give him the names of any witnesses and said that he could not remember where he was on 25 October 1963.

Mr. Roy R. Holdford, Jr., since 1 January 1963, the solicitor of the Second Solicitorial District (which included, Inter alia, Wilson, Edgecombe and Nash counties) testified that in 1963 he disposed of 1,700 cases. He had no recollection of Johnson and McCoy prior to 29 January 1968, although he had probably talked to Sheriff Womble when the defendants were tried in Wilson County.

In support of their motion, defendants introduced certified copies of the bills of indictment returned in Edgecombe and Wilson counties, the four commitments from Wilson County, and a letter to Johnson's attorney from the Department of Correction. This letter, dated 13 February 1968, stated that the Clerk of the Superior Court of Nash County had filed the detainer against defendant on 24 January 1968, and that Johnson's release was then tentatively scheduled 26 December 1977. Neither defendant testified.

Decisions of this Court establish:

1. The fundamental law of the State secures to every person Formally accused of crime the right to a speedy and impartial trial, as does the Sixth Amendment to the Federal Constitution (made applicable to the State by the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)).

2. A convict, confined in the penitentiary for an unrelated crime, is not excepted from the constitutional guarantee of a speedy trial of any other charges pending against him.

3. Undue delay cannot be categorically defined in terms of days, months, or even years; the circumstances of each particular case determine whether a speedy trial has been afforded. Four interrelated factors bear upon the question: the length of the delay, the cause of the delay, waiver by the defendant, and prejudice to the defendant.

4. The guarantee of a speedy trial is designed to protect a defendant from the dangers inherent in a prosecution which has been negligently or arbitrarily delayed by the State: prolonged imprisonment, anxiety and public distrust engendered by untried accusations of crime, lost evidence and witnesses, and impaired memories.

5. The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. 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. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed, 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); State v. Patton, 260 N.C. 359, 132 S.E.2d 891, cert. denied, 376 U.S. 956, 84 S.Ct. 977, 11 L.Ed.2d 974 (1964); State v. Webb, 155 N.C. 426, 70 S.E. 1064.

The North Carolina cases which establish the foregoing principles dealt with delays between the return of the indictment and the trial. This case involves a pre-indictment delay and the question when the right to a speedy trial first attaches. It requires us to decide whether the interval between the time the State acquired evidence sufficient to justify defendant's prosecution (at which time a warrant for his arrest was secured) and the time it procured the indictment, constituted a delay violating his right to a speedy trial.

It has generally been held that federal and state constitutional guarantees of a speedy trial were inapplicable to delays in commencing a prosecution; that prior to the time a defendant was actually charged he was not an 'accused' and the right to a speedy trial arose only after a formal complaint had been lodged. State v. LeVien, 44 N.J. 323, 209 A.2d 97 (1965); 21 Am.Jur.2d Criminal Laws § 248 (1965); See State v. Hodge, 153 Conn. 564, 219 A.2d 367 (1966); People v. Hryciuk, 36 Ill.2d 500, 224 N.E.2d 250 (1961); Note: The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1588, 1613 (1965); Note: Justice Overdue, 5 Stan.L.Rev. 95, 99--100 (1952). The federal courts have held that an accused's right to have a prosecution dismissed because of a delay between the date of the offense and commencement of criminal prosecution is controlled by the applicable statute of limitations and not by the Sixth Amendment. United States v. Panczko, 367 F.2d 737 (7th Cir.1966); Bruce v. United States, 351 F.2d 318 (5th Cir.1965); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963) and cases cited therein; 22A C.J.S. Criminal Law § 474 (1961). However, in Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), a delay of seven months between offense (narcotic violation) and formal complaint was held to have deprived the defendant of due process. In Ross, the record disclosed (1) a Purposeful delay of seven months between offense and arrest, (2) the defendant's plausible claim of inability to recall or reconstruct the events of the day of the offense, and (3) a trial in which the government's case consisted of the recollection of one witness refreshed by a notebook. Id. at 215. In Taylor v. United States, 99 U.S.App.D.C. 183, 283 F.2d 259 (1956), the court added 'the long delay in the return of the indictment (3 years, 7 months)' to the government's two-year delay thereafter in trying the defendant and held that, considering all the factors involved, the defendant had been denied a speed trial. Accord, Petition of Provoo, 17 F.R.D. 183 (D.Md. 1955), affirmed, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955).

After a complaint has been filed an inordinate delay in serving the warrant or in securing an indictment will violate the right to a speedy trial. 21 Am.Jur.2d Criminal Law § 248 (1965); Annot., Delay between filing of complaint or other charge and arrest of accused as violation of right of speedy trial, 85 A.L.R.2d 980 (1962); Ex parte Trull, 133 Kan. 165, 298 P. 775 (1931); Jones v. State, 250 Miss. 186, 164 So.2d 799 (1964); 21 Am.Jur.2d Criminal Law § 248 (1965). See note: The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 482--85 (1968).

The situation of one against whom a warrant has been issued but not served that and of 'the potential defendant'--the suspect who has not been formally charged--is practically the same. The question whether the latter is within the speedy trial guaranty is, as pointed out by the Illinois court in People v. Hryciuk, Supra, of comparatively recent origin. 20 Stan.L.Rev. 476, 485--493 (1968); See 5 Stan.L.Rev. 95 (1952). In Hryciuk, the defendant was arrested on 14 March 1939 for a rape, to which he then confessed. Two days later he confessed to a 1937 murder. He was not indicted for the murder but was tried and convicted for rape. In March 1953, in a post-conviction proceeding he was granted a new trial on the rape conviction. The following day he was indicted...