State v. Jones, 425A83
| Decision Date | 30 April 1984 |
| Docket Number | No. 425A83,425A83 |
| Citation | 310 N.C. 716,314 S.E.2d 529 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Eddie Charles JONES, Sr. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Wilson Hayman, Raleigh, for the State.
William V. Bost, Salisbury, for defendant.
In the defendant's first assignment of error he contends that his statutory right to a speedy trial, under N.C.Gen.Stat. § 15A-701, has been violated. Specifically defendant argues that Superior Court judges holding court in Rowan County committed reversible error in granting five successive motions by the State for continuance, pursuant to N.C.Gen.Stat. § 15A-701(b)(7), and in excluding the time covered by the continuances from the Speedy Trial Act's mandatory 120 day period. Defendant contends the judges who granted the continuances erroneously failed to make findings of fact to justify granting the motions.
Under North Carolina's Speedy Trial Act, N.C.Gen.Stat. § 15A-701(a1), a criminal defendant must be brought to trial within 120 days of his arrest, service with criminal process, waiver of indictment, or his indictment, whichever occurs last. See: State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984).
In this case, the return of an indictment for first degree rape against defendant on 23 August 1982 triggered the running of the Speedy Trial Statute. Subsequent to defendant's indictment, the following motions were allowed by the trial court with the respective times excluded:
1. The defendant moved for a continuance from 30 August 1982 until 20 September 1982. By stipulation the parties have agreed to exclude this 21 day period from the computation.
2. The State moved to continue the trial from 20 September 1982 until 17 October 1982 for a period of 27 days on the grounds that the trial of other cases prevented the trial of this case during this session.
3. The State moved to continue the trial from 18 October 1982 until 14 November 1982 for a period of 27 days on the grounds that an essential witness for the State was absent or unavailable within the meaning of N.C.Gen.Stat. § 15A-701(b)(3).
4. The State moved to continue the trial from 15 November 1982 until 2 January 1983 for a period of 49 days on the grounds that "Officer R.J. Harrison was unavailable due to illness" and "State's witness, Patricia Jones, recently conceived a child and was not available." [The record reveals that Patricia Jones had recently given birth to a child.]
5. The State moved to continue the trial from 3 January 1983 until 30 January 1983 for a period of 27 days on the grounds that the trial of other cases prevented the trial of this case during this session.
6. The State moved to continue the trial from 7 February 1983 until 6 March 1983 for a period of 27 days on the grounds that a material witness, i.e., Patricia Jones, was unavailable.
An examination of the record reveals that a total of 211 days elapsed between defendant's indictment on 23 August 1982 and the commencement of his trial on 21 March 1983. Defendant concedes that this 211 day period should exclude the 21 days resulting from his 30 August 1982 request for a continuance. This reduction leaves 190 days.
Pursuant to N.C.Gen.Stat. § 15A-701(b)(7), any period of delay resulting from a continuance granted by a judge may be excluded in computing the time within which a criminal defendant's trial must begin provided, however, the judge who grants the continuance finds
In order to determine compliance with the Speedy Trial Act, we must examine the continuances granted to the State. We begin with the State's 15 November 1982 motion to continue based on the unavailability of the State's material witnesses. Trial Judge Wood found that R.J. Harrison, one of the two investigating officers, was unable to appear in court due to illness. We cannot assume, as defendant would have us do, that Officer Harrison's testimony was not essential to this case simply because there were two investigating officers. Judge Wood appropriately concluded that Officer Harrison was an essential witness and that his illness presented a sufficient ground to grant the continuance. In accord with N.C.Gen.Stat. § 15A-701(b)(7), the trial judge found as a fact that "the ends of justice served by granting the continuance outweigh the best interests of the public and defendant in a speedy trial." Thus, we hold that the 49 day period, from the date of the order on 15 November 1982 until the beginning of the next criminal court session on 3 January 1983, was properly excluded.
Further, with regard to this 15 November 1982 motion, the State offered that another material witness, Patricia Jones had "recently conceived a child" and therefore, was also unavailable to testify. According to the evidence, Mrs. Jones gave birth to a son on 28 October 1982. We assume that the use of the word "conceived" was inadvertent and that the word "delivered" was intended. We believe that the trial court was justified in finding Mrs. Jones, who was the victim's mother, to be an essential witness in this case. Although her testimony may have been merely corroborative, the support and security she would have provided for her young seven year old daughter testifying before strangers would be immeasurable. There existed sufficient grounds on which the trial court could conclude that Mrs. Jones was genuinely unavailable.
At a hearing on the defendant's motion to dismiss for the State's failure to provide a speedy trial, the State again moved to continue the trial from 7 February 1983 until 6 March 1983 on the grounds that a material witness, to wit, Mrs. Patricia Jones, was unavailable. The district attorney related to the trial judge the great difficulty he was experiencing in getting this witness to cooperate. Accordingly, the court granted an excluded continuance "because of [the] unavailability of a material witness" and issued a material witness order for Mrs. Jones. We find the trial court made sufficient findings of fact upon which to base its order to continue. This period of 27 days was properly excluded from the speedy trial time limit.
We note, at this juncture, that the combination of the excluded periods of 49 and 27 days, which resulted from the two continuances examined previously, provides a total of 76 days of excludable time. Upon subtracting this 76 day period from the time within which the defendant's case was brought to trial, to wit, 190 days, there remains exactly 114 days. With these exclusions, the State clearly complied with the statutory requirement of bringing a case to trial within the prescribed 120 days. Thus, it is not necessary that this Court pursue any further the written examination of the remaining continuances granted to the State. This assignment is overruled.
Defendant next argues that he was deprived of his constitutional right to a speedy trial as guaranteed by the Sixth and Fourteenth...
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