State v. McCoy

• Decision Date: 05 May 1981
• Docket Number: No. 88,88
• Citation: 277 S.E.2d 515,303 N.C. 1
• Parties: STATE of North Carolina v. Herman Nathaniel McCOY.
• Court: North Carolina Supreme Court

Page 515

277 S.E.2d 515

303 N.C. 1

STATE of North Carolina v. Herman Nathaniel McCOY.

No. 88.

Supreme Court of North Carolina.

May 5, 1981.

Rufus L. Edmisten, Atty. Gen. by Myron C. Banks, Sp. Deputy Atty. Gen., Raleigh, for the State.

Robert A. Farris, Jr., Wilson, for defendant-appellant.

EXUM, Justice.

Defendant assigns as error the denial of his statutory and constitutional rights to a speedy trial, the determination that he was competent to stand trial, numerous evidentiary rulings, the denial of his motions for nonsuit and mistrial, and portions of the trial court's instructions to the jury. We have carefully examined each assignment of error and conclude that defendant's trial was free from prejudicial error.

The state's evidence tends to show the following: Defendant resided in Wilson County with the deceased, Dorothy Smith, with whom he shared a bed, and with witnesses Grace Williams, Nellie Smith and Judy Batts. Defendant, Dorothy Smith, and other household members consumed alcoholic beverages during the day and night of 11 February 1979 and all retired about midnight. Grace Williams, Nellie Smith and Judy Batts were each awakened during the early morning hours by defendant who asked to be taken to the hospital because he had a headache. They all refused. Shortly thereafter they heard the front door open and close and a car leave. Upon entering defendant's bedroom five minutes later they found Dorothy Smith's bloodstained body. The telephone wires in both the bedroom and kitchen had been torn from the wall. Grace Williams and Nellie Smith used a neighbor's telephone to notify the police. Lieutenant Wayne Gay responded to the call. He arrived at the residence at approximately 4:00 a. m. on 12 February, viewed the body, removed exhibits and interviewed the inhabitants. Not long thereafter Deputy Sheriff Richard Winstead apprehended defendant in Gold Rock, North Carolina, and removed a .22 caliber pistol from him. SBI Agent Terry Newell talked with defendant in Nash General Hospital at approximately 9:00 a. m. After being advised of and waiving certain of his constitutional rights, defendant stated that he had shot Dorothy Smith. Dr. Robert Hadley examined Dorothy Smith's body and found a gunshot wound and a superficial stab wound. In his opinion the cause of death was a bullet wound to the brain and a subsequent hemorrhage. SBI Agent Richard Szymkiewicz, a gunshot residue expert, testified that in his opinion the bullet was fired from a distance of twelve inches. The state also offered the stipulated testimony of SBI Ballistics Agent Robert Cerwin to the effect that the bullet removed from Dorothy Smith's body was a .22 caliber lead bullet.

Defendant's evidence, presented through his own testimony, tended to show that he shot Dorothy Smith either accidentally or in self-defense. He testified that while both were in bed Smith, who weighed some fifty pounds more than he did, without provocation struck him in the face, kicked him between the legs, and attempted to stab him with a knife. In response he grabbed his pistol and struck her hand to push her back, whereupon the gun discharged and a bullet struck her face. Defendant fled the residence in fear that other members of the household would try to harm him upon discovery of Smith's death.

I

Defendant by his first assignment of error contends his motions to dismiss for undue delay in his trial were improperly denied. Defendant maintains the delay between issuance of the warrant (12 February 1979) and trial (7 January 1980) violated his constitutional right to a speedy trial. He further contends that the delay between indictment (25 June 1979) and trial violated our statutory speedy trial requirements. G.S. 15A-701. We find no merit in either contention.

Defendant's motions to dismiss on constitutional and statutory speedy trial grounds came on for hearing before Judge Small on 7 January 1980 just before trial was scheduled to begin. Judge Small offered the state and defendant opportunity to present evidence. Both declined to offer evidence and relied solely on "the file."

"The file," insofar as it is reproduced in the record on appeal, reveals the following facts material to these motions: Defendant, after leaving the scene of the shooting in Wilson County, robbed a service station in Gold Rock, Nash County. During the course of this robbery he shot and wounded a law officer and was in turn shot five times. He was taken to Nash General Hospital in Rocky Mount where he was placed under arrest for armed robbery but not for murder. A murder warrant for defendant's arrest arising from the shooting of Dorothy Smith was issued on 12 February 1979. Defendant remained hospitalized for treatment of his wounds from 12 February 1979 until 1 June 1979 when the murder warrant was served on him.

Defendant was indicted for Smith's murder on 25 June and arraigned on 2 July at which time he entered a plea of not guilty. The case was set for trial on 24 July. On 6 July defendant moved to continue the case beyond the calendared trial date in order to interview Lt. Gay who was then on vacation. Judge David Reid, Jr., granted the motion, and continued the case until the 20 August 1979 Session of Wilson Superior Court. On 20 July defendant moved to dismiss the charges on the ground the delay between the issuance and service of the warrant had already violated his constitutional right to a speedy trial.

On 23 August Judge Elbert S. Peel entered an ex parte order continuing the case to 1 October because "all available court time was utilized in the disposition of other serious cases." On 11 October defendant moved for a psychiatric and medical examination to determine his competency to stand trial. Judge Reid granted the motion on 11 October and ordered the trial calendared for 29 October. On 7 November Judge Peel continued the matter because defendant was still in Dorothea Dix Hospital pursuant to his earlier request for a pre-trial evaluation of his competency to stand trial. Judge Peel again continued the case on 20 December for the same reason. On 3 January 1980 a copy of Dorothea Dix's forensic unit's report on defendant's competency to stand trial was made available to the state and defendant.

On 7 January Judge Herbert Small on the basis of "the file" before him concluded that defendant had been denied neither his constitutional nor statutory right to a speedy trial and denied defendant's motion to dismiss. We agree with this ruling.

A

We take up first defendant's claim that his constitutional right to a speedy trial has been denied. "The right of every person formally accused of crime to a speedy and impartial trial is secured by the fundamental law of this State, State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965), and guaranteed by 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). Prisoners confined for unrelated crimes are entitled to the benefits of this constitutional guaranty. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969)." State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 387-88 (1977). The Sixth Amendment provides, in part: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial...." In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court made it clear that the Sixth Amendment's speedy trial clause "is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." Id. at 313, 92 S.Ct. at 459. Marion held, also, that a putative defendant is protected against delayed accusations, i. e., accusations occurring some time after the crime was allegedly committed, not by constitutional speedy trial guarantees but by the dictates of constitutional due process. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Duke, 527 F.2d 386 (5th Cir. 1976); State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976).

The Due Process Clause is concerned essentially with the fundamental fairness of the proceedings. United States v. Lovasco, supra, 431 U.S. 783, 97 S.Ct. 2044. The clause "has a limited role to play in protecting against oppressive delay." Id. at 789, 97 S.Ct. at 2048. Essentially a pre-accusation delay violates due process only if the defendant can show that the delay actually prejudiced the conduct of his defense and that it was unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant. See United States v. Marion, supra, 404 U.S. 307, 92 S.Ct. 455; United States v. Lovasco, supra, 431 U.S. 783, 97 S.Ct. 2044. Lovasco makes clear that the sine qua non of a due process violation is actual prejudice to the defense of the case. Lovasco probably establishes that defendant must also demonstrate an unjustified and unreasonable delay undertaken by the prosecution to gain some tactical advantage. But see State v. Dietz, supra, 289 N.C. 488, 223 S.E.2d 357, in which, prior to Lovasco, this Court noted that in considering an alleged due process violation most courts weighed "the reasonableness of the delay against the prejudice to the accused." Id. at 491, 223 S.E.2d at 359. Because the constitutional speedy trial mandate is designed to protect interests in addition to ensuring a fair trial for defendant, its violation may occur even in the absence of actual prejudice to the defense of the case. State v. McKoy, supra, 294 N.C. 134, 240 S.E.2d 383. See also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), especially Justice White concurring.

Here the arrest warrant was issued on 12 February 1979 but defendant was not arrested pursuant to it until 1 June 1979. A question arises as to whether the delay between...