State v. Mills, 486A82

Citation299 S.E.2d 203,307 N.C. 504
Decision Date28 January 1983
Docket NumberNo. 486A82,486A82
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Bobby Lee MILLS.

Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for the State.

Tharrington, Smith & Hargrove by Wade M. Smith, Roger W. Smith, and Douglas E. Kingsbery, Raleigh, for defendant.

MARTIN, Justice.

Defendant's first assignment of error alleges that he was prosecuted for the three murders in violation of the North Carolina Speedy Trial Act, N.C.G.S. §§ 15A-701 to -704 (1978 & Cum.Supp.1981). For the reasons stated below, we hold that the Speedy Trial Act was not violated.

Defendant was originally indicted for the murders of Collins, Broadwell, and Murray on 27 April 1981. These indictments alleged that the murders occurred 15 January 1973. On 9 November 1981 the grand jury returned superseding indictments which alleged that the murders occurred on 11 January 1973, rather than on 15 January 1973. A motion filed by the defendant 4 December 1981 to dismiss the pending charges on the basis of a violation of the North Carolina Speedy Trial Act was denied. Defendant's trial on the murder charges began 8 March 1982.

In pertinent part, the Speedy Trial Act states:

[T]he trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1, 1978, and before October 1, 1983, shall begin within the time limits specified below:

(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last.

N.C.Gen.Stat. § 15A-701(a1)(1) (Cum.Supp.1981). Defendant argues that the speedy trial clock began to run on 27 April 1981, the date of the original indictments charging him with commission of the murders. Therefore, since more than 120 days (excluding those not counted under N.C.G.S. 15A-701(b)) had elapsed by 8 March 1982, the date on which he was brought to trial, he was tried in violation of the Speedy Trial Act. The defendant urges us to overrule the decision of the Court of Appeals of North Carolina in State v. Moore, 51 N.C.App. 26, 275 S.E.2d 257 (1981), which held that when a superseding indictment is appropriate and obtained in good faith, the 120-day period begins on the date the new indictment is returned. In the present case, trial commenced within 120 nonexcludable days of the date on which superseding indictments were returned.

We find the reasoning in Moore persuasive and hold that when superseding indictments are appropriate and obtained in good faith, then for purposes of N.C.G.S. 15A-701(a1)(1) the 120-day period begins on the day the new indictments are returned.

In the instant case the state had a valid reason for obtaining new indictments which alleged correctly the date on which the three murders were committed: the date could have been critical to the state's ability to prove that the defendant was guilty if the defendant ultimately chose to offer evidence at trial intended to establish an alibi defense. It was also relevant to ensure protection of the defendant from double jeopardy. The obtaining of new indictments was thus appropriate and in good faith.

As the Moore court observed, N.C.G.S. 15A-646 states in part:

If at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereof, another indictment or information is filed in the same court charging the defendant with an offense charged or attempted to be charged in the first instrument, the first one is, with respect to the offense, superseded by the second and, upon the defendant's arraignment upon the second indictment or information, the count of the first instrument charging the offense must be dismissed by the superior court judge.

Defendant here pled not guilty to the charges in the original indictments. He had not been brought to trial before 9 November 1981, the day on which the new indictments were returned. Therefore, the second indictments were issued "before entry of a plea of guilty ... or commencement of a trial." Thus, because the new indictments charged defendant with the same crimes as were charged in the original indictments, the new indictments superseded the earlier ones. For purposes of N.C.G.S. 15A-701(a1)(1), 9 November 1981 was the day on which the last of the following occurred: arrest, service of criminal process, waiver of indictment, or indictment. Because defendant was brought to trial within 120 days of this date, N.C.G.S. 15A-701(a1)(1) was not violated. We concur with the Moore court

that the opportunity afforded the State by G.S. 15A-646 to obtain a new indictment which supersedes one previously issued could be exercised for the purpose of defeating the time limitations for commencement of trial imposed by the Speedy Trial Act. Concern regarding that possibility is, however, appropriately addressed to the General Assembly.

51 N.C.App. at 29, 275 S.E.2d at 260. Meanwhile, defendants are protected by the requirement that in order for the 120-day period to begin on the date superseding indictments are returned, such indictments must have been appropriate and sought in good faith.

Defendant next assigns as error the trial court's denial of his motion to suppress the testimony of a particular witness. Grounds for the motion were that the state had failed to notify defendant before trial of the existence of the witness, had failed to furnish defendant before trial with a copy of the plea agreement pursuant to which the witness testified, and had failed to tell defendant the substance of oral statements that defendant had made and which were the subject of the witness's testimony. Defendant claims that the trial court violated N.C.G.S. 15A-903(a)(2), which reads as follows:

(a) Statement of Defendant.--Upon motion of a defendant, the court must order the prosecutor:

....

(2) To divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial.

In the present case the witness was a prisoner in a cell adjoining one in which defendant and another inmate were incarcerated when he overheard defendant make certain statements to his cellmate concerning the three murders. The witness contacted his lawyer and later offered to testify against defendant in exchange for certain promises of the prosecuting attorney relevant to the witness's conditions of imprisonment. The agreement containing the resulting bargain was not signed until moments before the witness took the stand. It was not until then that the state made the decision to call the witness to testify.

Defendant urges this Court to overrule a line of cases holding that N.C.G.S. 15A-903(a)(2) requires the pretrial disclosure to defense counsel of a defendant's oral statements only when the statements were made to a person acting on behalf of the state. State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980); State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979); State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979)...

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5 cases
  • Curley v. State
    • United States
    • Maryland Court of Appeals
    • May 3, 1984
    ...Allen, 641 S.W.2d 471, 475 (Mo.App.1982); State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073, 1074 (1972); State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983); Miller v. Commonwealth, 217 Va. 929, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 76......
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    • North Carolina Supreme Court
    • July 28, 1995
    ...1977, the effective date of our capital punishment statute. State v. Dampier, 314 N.C. 292, 333 S.E.2d 230 (1985); State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983); State v. Harris, 306 N.C. 724, 295 S.E.2d 391 (1982); State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980). Our review of......
  • State v. Lowther
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    • February 17, 1989
    ...1141-42 (1985)). See also State v. Fisher, 351 N.W.2d 798 (Iowa 1984); State v. Jackson, 645 S.W.2d 725 (Mo.App.1982); State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983); State v. Stephans, 52 Ohio App.2d 361, 370 N.E.2d 759 (1977); Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806 (1985);......
  • State v. Parker
    • United States
    • North Carolina Supreme Court
    • April 2, 1986
    ...to be excluded, these indictments were obtained within the 120-day period set out in the Speedy Trial Act. In State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983), we held that when superseding indictments are appropriate and obtained in good faith, the 120-day period begins on the date the ......
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