State v. Lyszaj

• Decision Date: 13 August 1985
• Docket Number: No. 712A84,712A84
• Parties: STATE of North Carolina v. Lawrence Morris LYSZAJ.
• Court: North Carolina Supreme Court

Page 288

333 S.E.2d 288

314 N.C. 256

STATE of North Carolina v. Lawrence Morris LYSZAJ.

No. 712A84.

Supreme Court of North Carolina.

Aug. 13, 1985.

Lacy H. Thornburg, Atty. Gen. by Grayson G. Kelley, Asst. Atty. Gen., Raleigh, for State.

James A. Beales, Jr., Elizabeth City, for defendant-appellant.

MITCHELL, Justice.

The defendant's primary argument is that his statutory and constitutional rights to a speedy trial were violated. He also contends that the trial court erred in permitting the prosecutor to ask a leading question. Finally, the defendant contends that the trial court erred in allowing the first degree burglary charge to go to the jury because the evidence was insufficient to support a finding that the crime in question occurred at night.

The record on appeal indicates that criminal warrants were issued on December 16, 1980, charging the defendant with armed robbery, conspiracy to commit an armed robbery, and first degree burglary in Pasquotank County, North Carolina. Early in 1981, the defendant was incarcerated on unrelated charges in the prison system of the State of Virginia. The defendant was still in custody there on April 26, 1982, when the Grand Jury of Pasquotank County returned true bills of indictment against the defendant for the same crimes charged in the 1980 warrants.

The defendant remained in custody in Virginia until December 15, 1983, when temporary custody of him was granted to the State of North Carolina under the Interstate Agreement on Detainers. N.C.G.S. 15A-761 to 767. At that time he was arrested under the North Carolina warrants. After several delays, the defendant's case was called for trial at the August 13, 1984 Session of Criminal Superior Court for Pasquotank County. The State offered evidence which tended to show that two men entered the home of Lloyd and Betty Turner at about 8:30 p.m. on December 9, 1980 and robbed them at gunpoint. During the trial the Turners identified the defendant as one of the men. The defendant offered alibi evidence to the effect that he was in the Norfolk, Virginia area on the date in question.

On March 14, 1984, the defendant filed a motion to dismiss under the provisions of the Speedy Trial Act, N.C.G.S. 15A-701, et seq., and the Constitution of the United States. On June 14, 1984, Judge Peel denied this motion. Judge Watts granted the defendant's motion to continue from February 7, 1984 through March 19, 1984, because counsel had not had time to prepare and because Judge Watts had been District Attorney in charge of these cases at the time the defendant was indicted. Judge Peel granted the State's motion to continue from March 19, 1984 through April 9, 1984, on the grounds that defense counsel needed more time to prepare his pretrial motions, the trial of other cases prevented the trial of this case during the session, and a judge's conference had been scheduled for Thursday and Friday of that term. Judge Peel granted another motion by the State to continue from April 14, 1984 to April 16, 1984 due to the defendant's inability to go forward on his pretrial motions. The final continuance from April 18, 1984 through May 14, 1984 was granted for the defendant by Judge Peel because the defense counsel had not had adequate time to prepare the pretrial motions.

On August 10, 1984, the defendant filed a motion to dismiss under the provisions of the Interstate Agreement on Detainers, G.S. 15A-761 to 767, alleging that he had been denied his right to a speedy trial. Judge Small denied this motion in an order filed on August 16, 1984. The defendant's trial began on August 13, 1984.

In his first assignment of error, the defendant contends that the trial court improperly denied his motion to dismiss under the Speedy Trial Act. We conclude that the defendant has not shown that the timing of his trial violated the provisions of the Act.

N.C.G.S. 15A-701(a1)(1) provides that the trial of a defendant charged with a criminal offense shall begin within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last. The defendant contends that he was served with criminal process when he was served with a fugitive warrant in March, 1981. Therefore, according to the defendant, the event which should trigger the running of the statutory period was the indictment on April 26, 1982. The defendant argues that since that date he has desired to return voluntarily to North Carolina to face these charges. He alleges that the long delay in his return was caused by the lack of a diligent and good faith effort by North Carolina authorities to secure his return.

The defendant, however, produced no evidence of the existence or service of any fugitive warrant or of a written waiver of extradition. Our review is limited to what is presented in the record on appeal. Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982); State v. Morgan, 225 N.C. 549, 35 S.E.2d 621 (1945). Relying on the record, it is apparent that the defendant was not served with criminal process until the warrants for his arrest were executed on December 15, 1983. It was on that date then that the 120 day statutory period commenced.

A period of 241 days elapsed between December 15, 1983 and the defendant's trial, which began on August 13, 1984. Certain exclusions, however, may be made under the Speedy Trial Act from this time period.

G.S. 15A-701(b)(1)(d) provides that delays resulting from hearings on any pretrial motions or the granting or denial of such motions be excluded from the computation of the 120 day period. Included in this excluded period is "all delay from the time a motion or other event occurs that begins the delay until" a final ruling on the motion or a final resolution of the event causing the delay.

The defendant made two motions to dismiss. The first was filed on March 8, 1984 and was ruled upon on June 14, 1984. Therefore, exclusion of a period of 99 days from the time requirements of the Act was proper. The second motion was filed on August 10, 1984, and was ruled upon on August 16, 1984. The defendant's trial, however, began on August 13, 1984, so only three of these days should be excluded.

G.S. 15A-701(b)(7) provides that exclusions may also be made for delays "resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding." In the present case, continuances were granted on this basis for a total of 95 days. However, since only 30 of these days did not overlap the period during which the first motion to dismiss was pending, only those 30 days can be excluded from the 120 day period.

Taking all of the foregoing excludable days into account, the 241 day period between the service of criminal process and the trial is decreased by 132 days to a total period of 109 days. Thus, the defendant's trial fell within the 120 day period prescribed by the Speedy Trial Act.

The defendant also assigns as error the denial of his constitutional right to a speedy trial. Both the fundamental law of this State and the Sixth Amendment to the Constitution of the United States guarantee those formally accused of crime the right to a speedy trial. State v. Avery, 302 N.C. 517, 276 S.E.2d 699 (1981). State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). The primary factors to consider in determining whether this right has been violated are: (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) prejudice to defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978); State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976).

The defendant points to the three and one-half year delay between the issuance of the initial warrants and his trial and argues that the causes for the delays were largely outside of his control. He claims that he was willing to return to North Carolina but did not as a result of North Carolina's failure to make a good faith effort to obtain his presence. He also points out that he did not waive his right to a speedy trial. Finally, the defendant argues that the delay prejudiced his defense in that he was required at trial to rely on his memory of events that had taken place over three years earlier.

Although the delay was considerable, much of it was attributable to the motions on behalf of the defendant. Also, there is nothing in the record other than bald contentions by the defendant to indicate that he desired a speedy trial, or that he was prejudiced in any way by the delay. This assignment is without merit.

The defendant next assigns as error the denial of his motion to dismiss for the State's failure to provide him a speedy trial as required by the Interstate Agreement on Detainers, N.C.G.S. 15A-761, Article IV(c), which states:

In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The defendant had been imprisoned in Virginia. Under the Interstate Agreement on Detainers, temporary custody of the defendant was granted to the State of North Carolina on December 15, 1983. The defendant asserts that his trial did not take place within 120 days of...